Commonwealth Numbered Regulations - Explanatory Statements

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CRIMINAL CODE AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 45 OF 2011)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 45

Issued by the authority of the Minister for Justice

Criminal Code Amendment Regulations 2011 (No. 1)

Section 5 of the Criminal Code Act 1995 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. 

Part 9.1 of the Act contains Commonwealth serious drug offences.  These offences are divided into domestic offences involving 'controlled' drugs, plants and precursors, and import/export offences involving 'border controlled' drugs, plants and precursors.  The substances falling within each of the controlled and border controlled categories, and their threshold quantities for determining penalty levels, are listed in Division 314 of the Act. 

Subdivision A of Division 301 of the Act provides that additional substances and threshold quantities may be prescribed for the purposes of Part 9.1 by interim regulations.  Interim regulations can also prescribe a quantity for a particular substance that is already listed in Division 314, if quantities of a listed substance are not already provided. 

Interim regulations are intended to be used where there are reasons to justify the temporary prescription of a substance and/or quantities for a substance (for up to 12 months) pending full consideration by experts and the provision of expert advice to the Minister for Justice, to determine whether prescription of a substance and/or quantities should be in the Act itself.  Once a substance is prescribed in interim regulations, it will be subject to the serious drug offences in the Act. 

The Regulations amend the Criminal Code Regulations 2002, and prescribe additional substances and threshold quantities pursuant to Subdivision A of Division 301 of the Act.  

Details on the substances and the threshold quantities are set out in the Attachment.

These substances have been identified by law enforcement agencies as requiring prescription on the basis there is an illicit market or the potential for an illicit market to exist in Australia.  With the exception of two substances, no established medical uses have been identified for these substances. 

Each substance is currently subject to import controls under the Customs (Prohibited Imports) Regulations 1956, and to licencing and permit schemes through the Office of Chemical Safety and Environmental Health within the Australian Government Department of Health and Ageing.  Each substance is also subject to legislative, regulatory or voluntary industry control in all States and Territories.  

Sections 301.1 and 301.3 of the Act provide that in order to prescribe a drug in interim regulations, the Minister for Justice must be satisfied that: 1) taking the substance would either create a risk of death or serious harm; or have a physical or mental effect substantially similar to that caused by taking a substance already listed in the Act, and 2) there is a substantial risk that the substance will be taken without appropriate medical supervision. 

Section 301.2 of the Act provides that in order to prescribe a precursor in interim regulations, the Minister for Justice must be satisfied that there is a substantial risk that the substance concerned will be used to unlawfully manufacture a controlled drug.

Section 301.5 of the Act provides that interim regulations may prescribe quantities of substances, including quantities of substances that are already prescribed in Division 314 that do not have quantities listed.

The Minister for Justice is satisfied that the conditions prescribed by the Act have been met in relation to these substances.

The Act specifies no other conditions that need to be satisfied before the power to make the Regulations may be exercised.

Prior to the making of the Regulations, consultation was undertaken with the Australian Crime Commission, Australian Federal Police, Commonwealth Director of Public Prosecutions, Australian Customs and Border Management Service and Commonwealth Department of Health and Ageing.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

Authority:  Section 5 of the Criminal Code Act 1995

ATTACHMENT

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