ATTACHMENT A

 

Details of the Customs Legislation Amendment (Prohibited Substances) Regulations 2018

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Customs Legislation Amendment (Prohibited Substances) Regulations 2018.

 

Section 2 - Commencement

 

Table item 1 provides for the whole of the Instrument to commence on the day after it is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section sets out the authority under which the Customs Legislation Amendment (Prohibited Substances) Regulations 2018 (the Regulations) are made, which is the Customs Act 1901.

 

Section 4 - Schedules

 

This section is the formal enabling provision for the Schedule to the Regulations, and provides that, each instrument that is specified in a Schedule to the Regulations, is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this instrument has effect according to its terms.

 

The Instruments being amended are the Customs (Prohibited Exports) Regulations 1958 (the Prohibited Exports Regulations) and the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations).

 

Schedule 1-Amendments

 

Customs (Prohibited Exports) Regulations 1958

 

Regulation 10 of the Prohibited Exports Regulations provides that the exportation from Australia of a Schedule 8 drug is prohibited unless certain circumstances apply. Schedule 8 sets out the description of those drugs the exportation of which is prohibited if specified conditions, restrictions or requirements are not complied with.

 

Together items 1-9 amend the Prohibited Export Regulations to implement the 2018 scheduling decisions of the United Nations Commission on Narcotic Drugs which added new substances to the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol and the Convention of Psychotropic Substances of 1971.

 

Items 1 - 5      Part 1 of Schedule 8

 

These items ensure Australia's continuing compliance with these international drug conventions by adding the newly scheduled drugs to Part 1 of Schedule 8 of the Prohibited Exports Regulations.

 

Items 6 - 9      Part 2 of Schedule 8

 

These items also ensure Australia's continuing compliance with these international drug conventions by adding the newly scheduled drugs to Part 2 of Schedule 8 of the Prohibited Exports Regulations.

 

Item 10           Part 3 of Schedule 8 (table item 4B)

 

This item repeals table item 4B Carfentanyl. This table item is no longer required in Part 3 of Schedule 8 as this drug is now being scheduled in Part 1 of Schedule 8 by item 2 of the Regulations.

 

 

Customs (Prohibited Imports) Regulations 1956

 

Regulation 5 of the Prohibited Imports Regulations provides the framework which controls the importation of drugs into Australia. The term drug is defined under Regulation to include a chemical, compound, or other substance or thing that is included in Schedule 4. Schedule 4 sets out the description of those drugs.

 

Items 11, 13, 17, 18, 19, 21, 22 and 23         Schedule 4

 

Together these items implement the 2018 scheduling decisions of the United Nations Commission on Narcotic Drugs which added new substances to the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol and the Convention of Psychotropic Substances of 1971.

 

These items ensure Australia's continuing compliance with these international drug conventions by adding the newly scheduled drugs to the Prohibited Imports Regulations.

 

Item 12           Schedule 4 (table item 5B)

 

This item makes a minor typographical amendment to table item 5B.

 

Item 14           Schedule 4 (at the end of the cell at table item 14AA, column headed "Description of drugs")

 

This item makes a minor typographical amendment to table item 14AA.

 

Item 15           Schedule 4 (after table item 14AB)

 

This item inserts new table item 14ABA 4-amino-3-phenylbutyric acid (otherwise known as phenibut). This substance has been recently included in Schedule 9 to the Poisons Standard. Schedule 9 of the Poisons Standard contains substances that are prohibited by law except when required for medical or scientific purposes, or purposes approved by the Commonwealth and/or State and Territory Health authorities. This amendment ensures that phenibut is subject to import controls under the Prohibited Imports Regulations.

 

Item 16           Schedule 4 (table item 36A)

 

This item amends table item 36A to omit the reference to the drug Carfentanyl and to substitute Carfentanil (otherwise known as carfentanyl). This item is required for accuracy.

 

Item 20           Schedule 4 (table item 139AB)

 

This item repeals table item 139AB 4-methoxymethamphetamine. This table item is no longer required as it is a duplicate of the drug listed at table item 179A Para-methoxymethylamphetamine (otherwise known as PMMA).

ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Customs Legislation Amendment (Prohibited Substances) Regulations 2018

 

This Legislative Instrument is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

The Legislative Instrument amends the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) and the Customs (Prohibited Exports) Regulations 1958 (the Prohibited Exports Regulations) in relation to substances to maintain the currency of drug control measures on import into, and export from, Australia.

 

The Legislative Instrument is required in part to recent scheduling decisions by the United Nations Commission on Narcotic Drugs for the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, the Convention on Psychotropic Substances of 1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. The amendments ensure Australia's continuing compliance with these treaties by adding the newly scheduled drugs to the Prohibited Imports and Prohibited Exports Regulations.

 

An additional listing is included in the Prohibited Imports Regulations for phenibut, a substance recently classified domestically as a prohibited drug in Schedule 9 to the Poisons Standard. Including phenibut in the Prohibited Imports Regulations will make its classification clear to officers at the border.

 

The restriction of access to these substances is balanced by the ability to obtain import or export permission for those substances where legitimate circumstances exists, such as medical necessity.

 

The outcome of these amendments is that importation of the listed goods would be permissible with approval from the relevant authority (in this case the Department of Health), but the illicit movement of goods would be an offence.

 

To the extent these substances are required for medical purposes, this amendment may engage the right to enjoyment of the highest attainable standard of physical and mental health under Article 12 of International Covenant on Economic, Social and Cultural Rights (ICESCR) but that the exceptions listed above will make sufficient allowance such that this right is not limited.

 

Human rights implications

The Legislative Instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Conclusion
The Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Senator Linda Reynolds CSC

Assistant Minister for Home Affairs