Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2002 (NO. 2) 2002 NO. 139

EXPLANATORY STATEMENT

STATUTORY RULES 2002 No. 139

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2002 (No. 2)

Section 270 of the Customs Act 1901 (the Act) provides in part that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which are required or permitted to be prescribed for giving effect to the Act.

Section 112 of the Act provides in part that the Governor-General may, by regulation, prohibit the exportation of goods from Australia and that power may be exercised by prohibiting the exportation of goods absolutely or by prohibiting the exportation of goods unless specified conditions or restrictions are complied with. The regulations may provide that the exportation of the goods is prohibited unless a licence, permission, consent or approval to export the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations.

The Customs (Prohibited Exports) Regulations 1958 (the principal Regulations) control the exportation of specified goods by prohibiting exportation absolutely, or by making exportation subject to the permission of a Minister or an authorised person.

The purpose of the amending Regulations is to amend the principal Regulations to prohibit the exportation of certain substances commonly used in the manufacture of illicit drugs and to introduce exemptions for drugs obtained under prescription, over-the counter drugs, drugs contained in certain first aid kits and drugs used by health professionals in emergencies, so that those drugs can be exported from Australia without the exporter having to be licensed and having to hold an export permit. The amending Regulations also make a number of technical amendments to the principal Regulations.

The amending Regulations would:

       implement controls on precursor chemicals (Schedule 2);

       introduce exemptions for exported drugs where the drug was prescribed by a medical practitioner or a veterinarian; can be purchased over-the-counter; is in the first aid kit of an aircraft or ship; or is being exported by medical professionals for use in the emergency treatment of another person (item 17 of Schedule 1);

       insert parts and divisions into the principal Regulations and amend existing headings (items 1, 2, 3, 4, 7, 13, 16, 20, 22, 32 and 35 of Schedule 1);

       update references to Ministers, Departments and Secretaries (items 8, 14, 33, 34, 36 and 37 of Schedule 1); and

       make technical amendments to update references to other legislation and ensure consistency of style (items 5, 6, 8-12, 14, 15, 18, 19, 21, 23-31, 36 and 38 of Schedule 1).

In 1992, Australia ratified the United Nations Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 ("the Convention"). The Convention requires countries to regulate the use and movement of chemicals that are commonly used in the production of illicit drugs. Those substances are listed in Tables I and II of the Convention. In particular, Article 12 of the Convention requires that the competent authority of a country should be notified before those substances are exported from that country.

Currently, the exportation of all of the substances listed in Table I is prohibited under regulation 8 of the principal Regulations, other than potassium permanganate and acetic anhydride (which were recently transferred from Table II to Table I). In respect of these two substances and those substances contained in Table II, a new regulation has been inserted (with a corresponding new schedule) to prohibit the exportation of those substances in certain circumstances. The substances in Table II, which are not already subject to export controls, are: acetone, ethyl ether, hydrochloric acid, methyl ethyl ketone, piperidine, sulphuric acid and toluene.

The Regulations also contain a number of new exemptions from the prohibition on the exportation of certain drugs, including those obtained under a prescription or over-the-counter, those contained in a first aid kit, and those used for the emergency treatment of a person or animal on board an aircraft or ship. The purpose of this change is to exempt a person exporting these drugs from the requirement to obtain an export licence or permission. The current prohibitions on exportation without a licence are considered too restrictive and inconsistent with domestic controls on the relevant drugs.

The amending Regulations also amend the principal Regulations by inserting part and division headings, and by amending existing regulation headings. The purpose of these changes is to make the principal Regulations more user-friendly and easier to read. The amending Regulations also update Ministerial and departmental references to conform with the current Administrative Arrangement Orders. A number of amendments ensure consistency of drafting throughout the principal Regulations and to reflect current drafting practices. These amendments are of a technical nature only, and do not involve any change in policy.

Details of the amending Regulations are set out in the Attachment.

The amending Regulations relating to precursor substances in Schedule 2 commence on 1 September 2002. Regulations 1 to 3 and Schedule 1 (the remaining amendments) commence on 1 July 2002.

ATTACHMENT

CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2002 (NO. 2)

Regulation 1 - Name of Regulations

Regulation 1 provides that these Regulations are the Customs (Prohibited Export) Amendment Regulations 2002 (No. 2).

Regulation 2 - Commencement

Regulation 2 provides that regulations 1 to 3 and Schedule 1 commence on 1 July 2002. Schedule 2 commences on 1 September 2002.

Regulation 3 - Amendment of Customs (Prohibited Export) Regulations 1926

Regulation 3 provides that Schedules 1 and 2 amend the Customs (Prohibited Export) Regulations 1958 (the Regulations).

SCHEDULE 1 - AMENDMENTS COMMENCING ON 1 JULY 2002

Items 1, 2, 3, 4, 7, 13, 16, 20, 22, 32 and 35

Items 1, 2, 3, 4, 7, 13, 16, 20, 22, 32 and 35 insert, or substitute, new Part, Division and Regulation headings into the principal Regulations.

Items 5, 6, 9, 10, 11, 12, 14, 15, 18, 19, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 36, 37 and 38

Items 5, 6, 9, 10, 11, 12, 14, 15, 18, 19, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 36, 37 and 38 amend the principal Regulations to conform with the most recent Administrative Arrangement Orders and current drafting practices. None of these items make substantive amendments to the principal Regulations.

Item 8 - Subregulation 8(1)

This item amends the definition of 'authorised officer' in accordance with current drafting practice, and insert a definition of 'Department' and 'Secretary', for the purposes of regulation 8.

Item 17 - Regulations 10, 10A, 10B

Item 17 substitutes regulations 9A, 10, 10AA, 10A and 10B for existing regulations 10, 10A and 10B.

Regulation 9A inserts definitions for the purposes of Division 2 of the Regulations. This will negate the need for definitions in each of the regulations in Division 2, as currently exists. The definitions in regulation 9A are all the same as those that currently exist in the principal Regulations. For ease of reference, definitions of 'Schedule 8 drug' 'Department' and 'Secretary' have also been included.

The provisions of current regulation 10 would be re-enacted in regulation 10 without any substantive amendment (although some stylistic changes are made). Regulation 10 also sets out a number of new exemptions to the general prohibition on the exportation of Schedule 8 drugs, as described below. Generally, the exemptions will allow the exportation of prescription, over-the-counter, veterinary and first aid or emergency drugs without a licence or permission, in certain circumstances.

The first new exemption applies where a drug is to be exported from Australia by a person on board a ship or aircraft if the drug:

(a)       is not a drug listed in Schedule IV to the "Single Convention" (regulation 9A defines "Single Convention" for the purposes of Division 2); and

(b)       is required for the medical treatment of the person or of another person under the care of the person; and

(c)       was prescribed by a medical practitioner for the purposes of that treatment; and

(d)       was supplied to the person in accordance with the prescription of the medical practitioner referred to in (c) (new paragraph 10(1)(b)).

New paragraph 10(1)(c) applies in respect of certain drugs that can be purchased 'over the counter' at a pharmacy without a prescription. That is, the exemption will apply where a drug is to be exported from Australia by a person on board a ship or aircraft if the drug:

(a)       is not a drug listed in Schedule IV to the "Single Convention"; and

(b)       is required for the medical treatment of the person or of another person under the care of the person; and

(c)       is included in Schedule 2 or Schedule 3 to the "current Poisons Standards" as defined in section 52A of the Therapeutic Goods Act 1989; and

(d)       is being exported in an amount that does not exceed:

(i)       if the drug is a divided dosage product (including tablets and capsules) where pseudoephedrine is the sole active ingredient, 30 dosage units;

(ii)       if the drug is a divided dosage product (including tablets and capsules) where it contains pseudoephedrine in combination with other active ingredients, 50 dosage units;

(iii)       in any other case, three months supply of the recommended daily dosage of the drug.

New paragraph 10(1)(d) applies where a drug is to be exported from Australia by a person on board a ship or aircraft if the drug:

(a)       is not a drug listed in Schedule IV to the "Single Convention"; and

(b)       is required for the medical treatment of an animal that is being exported and is under the care of the person; and

(c)       was prescribed by a veterinarian for the purposes of that treatment; and

(d)       was supplied to the person in accordance with the prescription of the veterinarian referred to in (c).

New paragraph 10(1)(e) applies where a drug is to be exported from Australia by a person on board a ship or aircraft if the drug:

(a)       is not a drug listed in Schedule IV to the "Single Convention"; and

(b)       is required for the medical treatment of an animal under the care of the person; and

(c)       is included in Schedule 2 or Schedule 3 to the "current Poisons Standard" as defined in section 52A of the Therapeutic Goods Act 1989; and

(d)       is being exported in an amount that does not exceed:

(i)       if the drug is a divided dosage product (including tablets and capsules) where pseudoephedrine is the sole active ingredient, 30 dosage units;

(ii)       if the drug is a divided dosage product (including tablets and capsules) where it contains pseudoephedrine in combination with other active ingredients, 50 dosage units;

(iii)       in any other case, three months supply of the recommended daily dosage of the drug.

New paragraph 10(1)(f) applies to a drug that is exported from Australia on a ship or aircraft if:

(a)       the drug is not a drug listed in Schedule IV to the "Single Convention"; and

(b)       the drug is for first-aid or emergency purposes during the ship or aircraft's voyage or flight; and

(c)       the amount of the drug being exported is consistent with the number of passengers and crew on board the ship or aircraft and the duration of the voyage or flight.

New paragraph 10(1)(g) applies to a drug that is exported from Australia by a person on board a ship or aircraft if:

(a)       the drug is not a drug listed in Schedule IV to the "Single Convention"; and

(b)       the person is a medical practitioner, nurse or paramedic; and

(c)       the person is exporting the drug for the purposes of providing emergency medical treatment to another person; and

(d)       the amount of the drug being exported is consistent with the treatment of that other person.

Subregulations 10(2), (3) and (4) have not been altered in substance.

Regulation 10AA allows the Minister to approve the exportation from Australia of drugs specified in, or included in a class of drugs specified in, a notice in the Gazette. This mirrors similar provisions in the Customs (Prohibited Imports) Regulations 1956.

Regulations 10A is amended to refer to terms that would be defined in regulation 9A.

Regulation 10B is amended to change the reporting requirement which requires that licensed exporters report details of each Schedule 8 drug exported from Australia in a return provided to the Secretary. That return must be made within 5 days after the end of the report week. Under subregulations 10B(2) and (3), the Secretary can set report weeks by notice published in the Gazette. Subregulation 10B(4) defines the term 'report week'.

Items 19 and 20

Regulation 10E and subregulation 10F(1) are amended to refer to terms that would be defined in regulation 9A.

SCHEDULE 2 - AMENDMENTS COMMENCING ON 1 SEPTEMBER 2002

Item 1 - Part 2. Division 2, heading

Item 1 replaces the heading to Division 2 of Part 2 of the principal Regulations so that it also refers to precursor substances.

Item 2 - Subregulation 9A(1), before the definition of active principle

Item 2 inserts a definition of '1988 Convention' into regulation 9A of the principal Regulations. Regulation 9A defines a number of terms for the purposes of Part 2 of Division 2 of the principal Regulations. The Secretary, authorised persons and Chief Executive Officer of Customs must take into account the requirements of the 1988 Convention when making decisions in respect of precursor substances (regulation 10CA refers).

Item 3 - Subregulation 9A(1), after the definition of narcotic drug

Item 3 inserts definitions of 'notifiable precursor substance' and 'precursor substance' into regulation 9A of the principal Regulations. 'Precursor substances' are all of the substances listed in Schedule 9 to the principal Regulations. Notifiable precursor substances are those precursor substances listed in Part A of Schedule 9 and those precursor substances listed in Part B of Schedule 9 if they are to be exported to certain notified countries in amounts greater than 100 litres. Regulation 10AB prohibits the exportation of precursor substances and notifiable precursor substances unless certain conditions are met.

Item 4 - After regulation 10AA

Regulation 10AB prohibits the exportation of the precursor substances and notifiable precursor substances in certain circumstances.

Under subregulation 10AB(1) a precursor substance is able to be exported if the substance is exported from Australia by a person who is a licensed exporter. That is, for all precursor substances the person exporting the substance must be a licensed exporter.

Under subregulation 10AB(2), if the precursor substance is also a notifiable precursor substance, the substance cannot be exported unless:

(a)       that person has notified the Secretary of their intention to export the substance 5 days prior to the day of expected exportation; and

(b)       the Secretary, or an authorised person has not, by an instrument in writing, notified the person that they cannot export the goods; and

(c)       the substance is exported within 3 months after the date on which the notification was received by the Secretary; and

(d)       the amount of the substance does not exceed the amount specified in the notification; and

(e)       the substance is consigned to the country specified in the notification; and

(f)       when requested by a Collector, the exporter produces the notification to the Collector.

Subregulation 10AB(3) requires the notification to be given to the Secretary to be in writing, to be in the form approved by the Secretary and to specify the country to which the substance is to be exported and the quantity of the substance that is to be exported.

Item 5 - Subregulation 10A(1)

Item 6 amends subregulation 10A(1) of the principal Regulations to allow a person to apply for a licence to export precursor substances.

Item 6 - After subregulation 10A(2)

Item 7 inserts new subregulation 10A(2) into the principal Regulations to direct that the Secretary or authorised person may grant an application for a licence to export a precursor substance only if the grant would be consistent with regulation 10CA.

Item 7 - After subregulation 10A(4)

Item 8 inserts new subregualtions 10A(4A) and (4B) into the principal Regulations which sets out how long a licence will be in force and when it can be revoked.

Items 8, 9 and 10

Items 9, 10 and 11 amend regulation 10B so that the conditions that apply to a licence which allows the exportation of drugs, will also apply in respect of licences which allow the exportation of precursor substances.

Items 11, 12 and 13

Items 12, 13 and 14 insert new regulation 10CA and amend regulation 10E to require the Secretary, authorised persons and Chief Executive Officer of Customs to take into account the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances that was adopted in Vienna on 19 December 1988 when making certain decisions.

Items 14 to 17

Items 15 to 18 amend regulation 10F and its heading, to make certain decisions made in respect of precursor substances reviewable by the Administrative Appeals Tribunal.

Item 18 - After Schedule 8

Schedule 9 contains a list of precursor substances for the purposes of regulation 10AB. The Schedule is divided into two parts. The exportation of a Part A substances is prohibited unless the exporter of the substance is a licensed exporter of that substance and they has notified the Secretary of the intended exportation. The exportation of those substances in Part B is prohibited unless the exporter of the substance is a licensed exporter and if the substances is being exported to certain countries in quantities greater than 100 litres, the exporter has notified the Secretary of the intended exportation.


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