Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 1999 (NO. 3) 1999 NO. 202

STATUTORY RULES 1999 NO. 202

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 1999 (No. 3)

Section 50 of the Customs Act 1901 ("the Act") provides in part that:

"(1)       The Governor-General may, by regulation, prohibit the importation of goods into Australia.

(2)       The power conferred by the last preceding subsection may be exercised -

       ....... (c) by prohibiting the importation of goods unless specified conditions

or restrictions are complied with.

(3)       Without limiting the generality of paragraph (2)(c), the regulations - ... (a) may provide that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations; and..."

The Customs (Prohibited Imports) Regulations 1956 ("the Regulations") control the importation of the goods specified in the various regulations or the Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a specified person.

These regulations introduce controls on the importation of the substance Erythropoietin ("EPO") (item 1 of Schedule 7A).

In addition, the regulations contain technical amendments that update references to Ministerial, Secretarial and Departmental titles and make other consequential amendments to reflect the current policy responsibility for the particular import controls in Regulation 5.

The Government is committed to deterring the use of banned drugs in sport. Strategies designed to achieve this include import control of banned substances. EPO is one substance banned in sport that has been identified as not being subject to import control under the current Regulations and which is appropriate to be restricted.

The regulations provide that the importation of EPO will be prohibited unless the user has a genuine medical need substantiated by appropriate documentation from a medical practitioner. EPO is a drug used in the treatment of serious medical conditions such as acute renal failure and HIV.

A person who is a competitor or is travelling with a competitor and has a genuine medical requirement for EPO must have a permission to import EPO.

There is a limited exception from the import controls where a passenger requires the substance for medical treatment and the import is supported by medical prescription.

This exception from the import control for personal importations by passengers is necessary given that EPO is a drug used in the treatment of serious medical conditions and there is no desire to adversely affect legitimate users of this drug.

This exception will not apply where a competitor or person travelling with a competitor imports the substance. In such a circumstance, a permission is still required. These regulations give effect to the commitment of the Government.

Regulations 5, 5A, 5F, 5H and 5HA of the Regulations deal with the controls on the importation of certain drugs, antibiotic substances and other goods that are the policy responsibility of the Minister administering the Therapeutic Goods Act 1989. This means the Minister for Health and Aged Care is now the relevant Minister with policy responsibility for these controls.

The technical amendments to regulations 5, 5A, 5F, 5H and 5HA of the Regulations are necessary to avoid continued amendment to the regulations each time a department has a name change.

The proposed regulations are explained in greater detail in the Attachment.

The regulations commenced on gazettal.

ATTACHMENT

Customs (Prohibited Imports) Amendment Regulations 1999 (No. 3)

Regulation 1 - Name of regulations

Regulation 1 provides for the regulations to be named the Customs (Prohibited Imports) Amendment Regulations 1999 (No. 3)

Regulation 2 - Commencement

Regulation 2 provides that these regulations commenced on gazettal.

Regulation 3 - Amendment of Customs (Prohibited Imports) Regulations 1956

Regulation 3 provides that the Regulations are amended as set out in Schedule 1.

Schedule 1 - Amendments

Proposed items 1, 2, 3, 4, 6 and 8 of Schedule 1 - various amendments to regulations 5, 5H and 5HA.

Proposed items 1, 2, 3, 4, 6 and 8 of Schedule 1 provide for technical amendments to existing regulations to reflect the current policy responsibility for the particular import.

Regulation 5 identifies the person who is the authorised officer for the purposes of the regulations. When this regulation was last inserted the authorised officer meant an officer of the Department of Human Services and Health. It is now proposed to substitute this definition to take account of Administrative Arrangement Orders.

It is also proposed to insert a definition of Secretary to mean the Secretary to the Department. The Secretary will mean the Secretary to the Department administered by the Minister administering the Therapeutic Goods Act 1989. It is proposed to have this reflected in regulations 5A, 5F and 5H.

it is now proposed to update the references to the relevant authorised officer, Secretary, Minister and Department to take into account the Administrative Arrangements order of 21 October 1998. References to Department of Human Services and Health will be changed to Department of Health and Aged Care as appropriate. The proposed substitution of Minister in regulation 5HA(1) takes account of Administrative Arrangements order of 21 October 1998 which places this administration within the Department of Health and Aged Care.

Proposed item 5 of Schedule 1 - New regulation 5G - Importation of certain substances.

Proposed item 5 of Schedule 1 inserts a new regulation 5G into the Regulations.

The regulation provides for the introduction of controls on the importation of the substance Erythropoietin (EPO). Importation of such substance will be prohibited unless permission in writing to import has been given by the Secretary or an authorised officer and the permission is produced to a Collector (subregulation 5G(1)).

The prohibition on the import of the substance does not apply if the substance is required for the medical treatment of a person who is a passenger and who imports the substance with them on the aircraft or ship (subregulations 5G(2)(a) and (b)).

The substance must be prescribed for them by a medical practitioner for the medical treatment (subregulation 5G(2)(c)).

The amount imported must not exceed the amount prescribed by the medical practitioner for that treatment (subregulation 5G(2)(d)).

The exception to the prohibition on import of the substance does not apply if the substance is required for the medical treatment of a person who is a competitor or a person who has come to Australia for purposes relating to the performance of a competitor or a competitors interests (subregulations 5G(3)(a) and (b)).

A permission may specify conditions or requirements to be complied with by the holder of the permission and when this must occur (subregulation 5G(4)(a) and (b)).

If the holder of a permission does not comply with a condition or requirement the Secretary may, in writing, revoke the permission (subregulation 5G(5)).

In this regulation the term "authorised officer" is defined to mean an officer authorised in writing by the Secretary to be an authorised officer for this regulation 5G(6).

In this new regulation the term "medical practitioner" is defined to mean a person authorised as a medical practitioner under a law of a State, Territory or another county subregulation 5G(6).

In this new regulation the term "Secretary" is defined to mean the Secretary to the Department administered by the Minister administering the Therapeutic Goods Act 1989 subregulation 5G(6).

The new controls are not proposed as an absolute prohibition as there are limited circumstances where the importation of such substance is necessary. The prohibition does not apply where a genuine medical need is evidenced and substantiated by a prescription from a medical practitioner for treatment. However a competitor or a person associated with a competitor who has a requirement for the substance must obtain a permission to import the substance into Australia.