EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 293

Issued by the Authority of the Minister for Justice and Customs

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005

Schedule 1 to the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (the Act) repeals drug importation and exportation offences in section 233B of the Customs Act 1901 and relocates those offences to Division 307 of Part 9.1 of the Criminal Code.  Schedule 1 of the Act commenced on 6 December 2005.

Item 76 of Schedule 1 to the Act provides that regulations may make provision for matters of a transitional nature arising from the amendments or repeals made by Schedule 1 to the Act.

The Regulations deal with transitional arrangements for telecommunications interception warrants and surveillance device warrants that apply to the investigation of offences under section 233B of the Customs Act 1901.

The purpose of the Regulations is to ensure that any such warrants that were issued before 6 December 2005, and have not yet expired, may be used to collect evidence of both the offences under section 233B of the Customs Act 1901 (the old offences), and the corresponding new offences in Division 307 of Part 9.1 of the Criminal Code.

Details of the Regulations are set out in the Attachment.

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

The Regulations commenced on the day of registration.

The Regulations were made in consultation with the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions and the Australian Crime Commission.  Wider consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements.  It has no direct or substantial indirect effect on business.

ATTACHMENT

Details of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005

Regulation 1 -- Name of Regulations

This regulation provides that the title of the Regulations is the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005

Regulation 2 -- Commencement

This regulation provides for the Regulations to commence on the day they are registered.

Regulation 3 -- Definitions

This regulation defines terms used in the Regulations.

It provides that the term "old law" has the meaning given by item 75 of Schedule 1 to the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (the Act).  Item 75 of Schedule 1 to the Act provides:

Old law means:

(a)     the provisions of Division 2 of Part XIII of the Customs Act 1901 as in force from time to time before the commencement of this Schedule to the extent to which those provisions related to narcotic substances; and

(b)     any law related to those provisions.

 

Division 2 of Part XIII of the Customs Act 1901 contains the section 233B drug importation offences which the Act is repealing and relocating to Division 307 of Part 9.1 of the Criminal Code.

Regulation 4 -- Transitional arrangements

The purpose of this regulation is to ensure that surveillance device warrants or telecommunications interception warrants issued for the purpose of investigating offences under section 233B of the Customs Act 1901, and that continue to operate on or after 6 December 2005, can be used for the purpose of investigating either offences under section 233B of the Customs Act 1901 or new corresponding offences under Division 307 of Part 9.1 of the Criminal Code.

A drug importation offence committed before 6 December 2005, or partially committed before that date, will be an offence under section 233B of the Customs Act 1901.  It is important that surveillance device warrants and telecommunications interception warrants can still be used on or after 6 December 2005 to investigate such offences.  Paragraph 4(a) ensures that the warrants can continue to be used for this purpose.

Paragraph 4(a) provides that the warrant continues in force as if a reference in the warrant to a provision of the old law were a reference to the old law as applied by item 75 of Schedule 1 to the Act.  The effect of item 75 of Schedule 1 to the Act is to ensure that the old offences under section 233B of the Customs Act 1901, and any law related to those provisions in place immediately before the commencement of Schedule 1 to the Act, will continue to apply in relation to:

*        criminal conduct engaged in before the commencement of Schedule 1 of the Act, and

*        criminal conduct that spans the old and new schemes.

Sub-regulation 4(a) ensures that existing warrants can continue to be used to investigate such conduct.

A drug importation offence committed on or after 6 December 2005 will be an offence under Division 307 of Part 9.1 of the Criminal Code.  It is also important that surveillance device warrants and telecommunications interception warrants can be used on or after 6 December 2005 to investigate those offences.

Paragraph 4(b) provides that a reference to section 233B, or part thereof, in a warrant includes a reference to the corresponding provision in Division 307 of Part 9.1 of the Criminal Code.  The table in paragraph 4(b) lists the new Criminal Code offence provisions which correspond to the offence provisions in section 233B of the Customs Act 1901.