Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Schedule 1 - Psychoactive Substances

GENERAL OUTLINE

Schedule 1 makes amendments to the Code and the Customs Act to strengthen the Commonwealth's ability to respond to new and emerging illicit drugs, also known as 'new psychoactive substances'. Border agencies in Australia and around the world have been detecting increasing numbers of new psychoactive substances in recent years.

New psychoactive substances are designed to mimic the psychoactive effects of illicit drugs, but their chemical compositions are not captured by existing controls on those drugs. These substances are often marketed as 'legal' alternatives to illicit drugs, which may imply they have been assessed as safer or less harmful than those illicit drugs. This is incorrect. These substances are typically untested, of varying composition, concentration and toxicity and carry unknown or unpredictable side effects.

Currently, the importation of illicit drugs is controlled under Part 9.1 of the Code and the Customs (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations). Both the Code and Prohibited Imports Regulations ban substances based on their chemical composition, with analogue clauses to capture structurally similar substances.

Under the Code, new and harmful drugs, plants and precursors may be criminalised indefinitely by regulation (see sections 301.7 and 301.8) or for up to 18 months under an emergency determination (see sections 301.13 and 301.14), to allow time to assess whether a substance should be listed indefinitely under the Code. NPS may be added to the Prohibited Imports Regulations, based on the advice of the Therapeutic Goods Administration (TGA) and Office of Chemical Safety (within the Department of Health) about their potential risks and harms.

However, there is evidence that manufacturers design the chemical structures of psychoactive substances to avoid these controls and prohibitions. Australian governments face difficulties in assessing and banning these substances quickly enough to keep up with the rate of their introduction.

The amendments in Schedule 1 will fill the regulatory gap between when psychoactive substances first appear and when they are controlled under other parts of the Code or under the Prohibited Imports Regulations. They will ensure that new psychoactive substances cannot be imported while the Government assesses their harms and considers the appropriate controls to place on them. The measure takes a precautionary approach to dealing with psychoactive substances. It is intended to work in parallel with, and not replace, any of the existing schemes which regulate the importation of both illicit drugs and substances with a legitimate use into Australia.

Schedule 1 introduces a new offence into the Code for importing a psychoactive substance that does not have a legitimate use or which is not already prohibited. As there are no known domestic manufacturers of the active ingredients for new psychoactive substances, these ingredients must be imported. Banning the importation of these substances is therefore an important part of reducing their supply in Australia.

Schedule 1 also introduces an offence into the Code of importing a substance where its presentation contains a representation that it has the same effects as, or substantially similar effects to, a serious drug, or that it is a lawful alternative to a serious drug.

This offence is necessary to prevent the importation of substances overtly presented in such a way as to suggest they are legal or safe versions of serious drugs.

Schedule 1 also makes a range of amendments to Part XII of the Customs Act to allow Australian Customs and Border Protection Service (ACBPS) and Australian Federal Police (AFP) officers to exercise appropriate administrative powers to search for, detain, seize and destroy substances prohibited under the new offences in the Code. These amendments will largely build on the existing powers that officers can exercise in relation to special forfeited goods, modified to give effect to the precautionary approach of the importation ban.

Criminal Code Act 1995

Item 1 - After Part 9.1 of the Code

This item will insert a new Part 9.2 into the Code to introduce new offences relating to the importation of psychoactive substances.

Existing Part 9.1 of the Code contains the Commonwealth's serious drug offences. Its purpose is to create offences relating to drug trafficking and to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. The offences covered by Part 9.1 relate to controlled drugs, plants and precursors as well as border controlled drugs, plants and precursors. Each of the drugs, plants and precursors to which these offences relate are listed in the Criminal Code Regulations 2002 (Criminal Code Regulations).

Part 9.2 will supplement the offences in Part 9.1 that relate to known and listed substances by introducing a precautionary ban on psychoactive substances whose harms have not yet been assessed. As evidence about the harms of these psychoactive substances becomes available, they may be listed as serious drugs in the Criminal Code Regulations in accordance with the conditions set out in section 301.7 of the Code, or made subject to an emergency determination under section 301.13.

Section 320.1

New section 320.1 sets out the key definitions for the offences in new sections 320.2 and 320.3.

New subsection 320.1(1) provides definitions for consume, psychoactive effect, psychoactive substance and serious drug alternative.

'consume'

The term consume is used in the definition of psychoactive substance. It is defined broadly and intends to outline most of the ways by which a person may introduce a substance into his or her body.

'psychoactive effect'

The term psychoactive effect is used in the definition of psychoactive substance. There are two alternate limbs to the definition of psychoactive effect. The first deals with the physiological effects on a person of consuming a serious drug. The second deals with the addictive effects of those drugs. A substance will have a psychoactive effect if it satisfies one of those limbs.

'psychoactive substance'

The term psychoactive substance is central to the offence in new section 320.2. A psychoactive substance is defined as a substance which has the capacity to induce a psychoactive effect when consumed by a person. This is a broad definition, intended to capture all substances that mimic, or have similar effects to, serious drugs listed in the Criminal Code Regulations. This definition covers many substances, such as alcohol, medicines and industrial chemicals, that have a legitimate use and are either low-risk or properly controlled under an existing regulatory regime. These substances will be excluded from the operation of the offence in new subsection 320.2(1) by virtue of new subsection 320.2(2).

'serious drug alternative'

The term serious drug alternative is used in relation to the representation of a substance. As there may be similarities in the psychoactive effects of some therapeutic goods and serious drugs, the definition is limited to including only those substances that are represented as having 'substantially similar' effects to a serious drug, and not merely 'similar' effects.

The term is central to the offence in new subsection 320.3(1), which bans the importation of substances whose presentation includes a representation that they are a serious drug alternative. When used in relation to the offence in subsection 320.3(1), the definition seeks to capture substances that are presented as either mimicking the psychoactive effects of serious drugs, or as being lawful alternatives of those drugs (for example, substances packaged as 'legal highs').

The term is also used in relation to the exclusion in paragraph 320.2(2)(d) of therapeutic goods from the offence of importing a psychoactive substance. When used in this paragraph, it aims to ensure that substances that are represented either as mimicking the effects of a serious drug, or as being lawful versions of those drugs, are caught by the offence in subsection 320.2(1) and are not excluded from the offence just because they are also therapeutic goods within the meaning of the Therapeutic Goods Act 1989 (Therapeutic Goods Act).

The term relies on the definition of serious drug in Part 9.1, which includes controlled and border controlled drugs and plants.

New subsection 320.1(2) will provide that expressions used in existing Part 9.1 have the same meaning in Part 9.2. In particular, new Part 9.2 will rely on the terms import and serious drug as defined in section 300.2 of the Code.

Subsection 320.2(1)

New section 320.2 will create an offence for importing a psychoactive substance.

New subsection 320.2(1) provides that a person commits an offence if he or she imports a psychoactive substance. A person faces a maximum penalty of imprisonment for 5 years, 300 penalty units, or both for committing the offence.

To establish that a person has committed an offence against subsection 320.2(1), the prosecution will need to prove beyond reasonable doubt that:

•

the defendant imported a substance (fault element: intention), and

•

the substance was a psychoactive substance (fault element: recklessness).

Subsection 320.2(2)

A number of substances with a legitimate use or which are controlled by some other regime may fall within the definition of psychoactive substance. Some of these substances are used for legitimate purposes-as foods for human consumption or in medicine, industry, horticulture, agriculture and veterinary practices-and their importation is already regulated under an appropriate regime. Others may already be controlled as illicit drugs under the Code or Prohibited Imports Regulations.

To the greatest extent possible, new subsection 320.2(1) is not intended to apply to these substances and overlap with controls over them. The Government has already made a decision about how these substances should be regulated and the penalties that should attach to their unlawful or unauthorised importation.

The effect of the exclusions set out in subsection 320.2(2) is to ensure that substances with a psychoactive effect can only be imported for specific purposes. The offence will ban the importation of a psychoactive substance for all uses or purposes other than those specified in paragraphs 320.2(2)(a)-(i) or in regulations made under paragraph (l). Under paragraphs 320.2(2)(j) and (k), the offence will also not apply to illicit drugs whose importation is already prohibited.

These provisions are not intended to displace or override the operation of the general defences in the Code, including the defence of lawful authority in section 10.5.

The exclusion of these categories of substances essentially replicates existing practice at the border. An ACBPS or AFP officer who stops a suspicious substance will refer it to the relevant regulator if there are any potential issues with its importation. This practice will not change following the introduction of the offence in section 320.2.

Paragraph 320.2(2)(a): food

Paragraph 320.2(2)(a) excludes certain types of food, as defined by the Food Standards Australia New Zealand Act 1991 (Food Standards Act), from the offence in subsection 320.2(1). Under subsection 5(1) of that Act, food relevantly includes:

(a)

any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared)

(b)

any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a), above, and

(c)

any substance used in preparing a substance or thing referred to in paragraph (a), above.

Given the breadth of the definition of food in the Food Standards Act, subsection 320.2(2) only seeks to exclude from the operation of the offence those foods that either have health and safety standards set by Food Standards Australia New Zealand, or which have been traditionally used as foods in Australia and New Zealand (and which do not therefore need the same level of regulatory control). Some of the foods captured by this exemption, such as alcoholic beverages, coffee, tea, chocolate and some herbs and spices, may have a psychoactive effect when consumed by a person. These are already subject to appropriate regulatory controls around their importation through the Food Standards Code and Imported Food Control Act 1992 (Imported Food Control Act). It is appropriate that imported food that does not comply with these standards continues to be dealt with under that regulatory regime.

For example, Rebecca would not commit an offence against section 320.2 if she imported a carton of caffeinated drinks that contained in excess of the maximum amount of caffeine set out in the relevant standard of the Australia New Zealand Food Standards Code. While these drinks would have a psychoactive effect, there is a food standard in relation to them and they would fall within the exclusion under paragraph 320.2(2)(a). However, Rebecca may have committed an offence against the Imported Food Control Act.

Paragraph 320.2(2)(b): tobacco products

Paragraph 320.2(2)(b) excludes tobacco products, as defined in section 8 of the Tobacco Advertising Prohibition Act 1992, from the offence in subsection 320.2(1). While tobacco may have a psychoactive effect when used by a person, the offence is not intended to interfere with the regime applicable to the importation of raw or processed tobacco.

For example, Toby would not commit an offence against section 320.2 if he imported a carton of cigarettes. While cigarettes contain a psychoactive substance, they would be a tobacco product within the meaning of paragraph 320.2(2)(b).

Paragraphs 320.2(2)(c)-(e): therapeutic goods

Paragraphs 320.2(2)(c)-(e) exclude certain types of therapeutic goods from the offence in subsection 320.2(1). The Therapeutic Goods Act regulates the importation of goods that have, are represented as having, or are likely to be taken as having, a therapeutic use. It also regulates the importation of goods whose sole or principal use is a therapeutic use. As far as possible, that Act should continue to govern the importation of those goods.

Under section 3 of the Therapeutic Goods Act, a good has a therapeutic use if it is used in, or in connection with, amongst other things:

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preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons

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influencing, inhibiting or modifying a physiological process in persons, or

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testing the susceptibility of persons to a disease or ailment.

Given the breadth of the definition of therapeutic goods, it potentially captures a range of new psychoactive substances on the basis that they have a therapeutic use (within the meaning of paragraph (b), above). However, the controls in the Therapeutic Goods Act are not designed to deal with psychoactive substances intended for use as alternatives to serious drugs. Paragraphs 320.2(2)(c)-(e) recognise that it is not possible to exclude all 'therapeutic goods' within the meaning of the Therapeutic Goods Act from the offence in subsection 320.2(1), and that it is appropriate for the therapeutic goods regime to continue to deal with substances that are:

•

imported for legitimate therapeutic purposes, and

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not intended for use as an alternative to or replacement for a serious drug.

For this purpose, paragraphs 320.2(2)(c)-(e) exclude a range of therapeutic goods from the offence in subsection 320.2(1). It is possible that the importation of particular goods may be an offence under both subsection 320.2(1) and the Therapeutic Goods Act. However, a person who may have committed offences under both the Code and the Therapeutic Goods Act will be dealt with in accordance with the most appropriate provisions, having regard to all the circumstances.

Paragraph 320.2(2)(c) excludes goods that are listed or registered goods, within the meaning of the Therapeutic Goods Act, from the offence in subsection 320.2(1). For the purposes of the Therapeutic Goods Ac t, listed or registered goods are therapeutic goods which are listed or registered on the Australian Register of Therapeutic Goods (ARTG). The ARTG lists or registers specific products for importation and supply by individual sponsors. Paragraph 320.2(2)(c) is only intended to exclude listed or registered products lawfully imported (that is, by the person in relation to whom the product is listed or registered in the ARTG (or a person acting on their behalf or with their authority)).

Paragraph 320.2(2)(d) excludes from the offence in subsection 320.2(1) goods that are represented in any way to be for therapeutic use, unless that representation is that the goods are a serious drug alternative. This paragraph excludes the importation of goods that are, on their face, more properly regulated under the Therapeutic Goods Act as therapeutic goods. This paragraph does not exclude from the offence in subsection 320.2(1) goods that are represented to be a serious drug alternative (that is, substances whose physical presentation represents them to either mimic the psychoactive effects of serious drugs or to be lawful alternatives for those drugs). Goods represented in this way and which are not within paragraphs 320.2(2)(c) or (e) should more properly be dealt with under the offences in subsections 320.2(1) or 320.3(1). Goods represented in any way to be for therapeutic use but which are not represented as being a serious drug alternative will not be caught by the offence in section 320.2. Unless the Therapeutic Goods Act authorises it, their importation would remain an offence under that Act.

Paragraph 320.2(2)(e) excludes from the offence in subsection 320.2(1) therapeutic goods that are exempted from the operation of certain parts of the Therapeutic Goods Act or are the subject of certain approvals under that Act. Goods falling within this paragraph include those:

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that are exempt from registration or listing because they are imported as a result of an emergency

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that are exempt from registration or listing because they are imported solely for use for experimental purposes in humans

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that are exempt from registration or listing because they are imported in any other of the circumstances set out in regulation 12A or Schedules 5 or 5A of the Therapeutic Goods Regulations 1990 (Therapeutic Goods Regulations)

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unregistered goods that are imported where there is a shortage of a registered medicine, or

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that are imported for the treatment of individual patients.

This paragraph ensures that therapeutic goods which do not fall within the definitions of the goods specified in paragraphs 320.2(2)(c) and (d) but which can be lawfully imported under the Therapeutic Goods Act are also excluded from the offence in subsection 320.2(1).

The following examples illustrate the operation of the exemptions relating to therapeutic goods in paragraphs 320.2(3)(c)-(e):

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Carl would not commit an offence against section 320.2 if he imported a painkilling product that had a psychoactive effect, was in all respects the same as one listed on the ARTG and he was not the sponsor of the product. The painkiller is a psychoactive substance and it is not a listed or registered good within the meaning of the Therapeutic Goods Act (because Carl is not the listed sponsor). It would not fall within the exemption in paragraph 320.2(2)(c). However, as the product would be packaged in such a way that it would be represented as being for a therapeutic use, it would fall within the exemption in paragraph 320.2(2)(d). Carl may have committed an offence under the Therapeutic Goods Act.

•

Suzanne would not commit an offence against section 320.2 if she imported a box of pills that had a psychoactive effect and were packaged as an 'anti-depressant', but were not listed on or registered under the ARTG or otherwise exempt or approved under the Therapeutic Goods Act. While these pills are a psychoactive substance, they are represented as being for a therapeutic use (and not as a serious drug alternative) and would fall within the exemption in paragraph 320.2(2)(d). However, Suzanne may have committed an offence under the Therapeutic Goods Act.

•

Robert would commit an offence against section 320.2 if he imported a box of pills that had a psychoactive effect and were labelled 'legal ecstasy'. These pills are a psychoactive substance and, while they are represented as being for a therapeutic use (within the meaning of the Therapeutic Goods Act), they are also represented as being a lawful alternative to a serious drug. They would not fall within the exemption in paragraph 320.2(2)(d). Robert would also commit an offence against section 320.3.

•

Luke would commit an offence against section 320.2 if he imported a bag of leaves that had a psychoactive effect and were labelled 'Legal high - as good as marijuana!'. These leaves are a psychoactive substance and, while they are represented as being for a therapeutic use (within the meaning of the Therapeutic Goods Act), they are also represented as having the same effects as, or substantially similar effects to, a serious drug, and as being a lawful alternative to such a drug. They would not fall within the exemption in paragraph 320.2(2)(d). Luke would also commit an offence against section 320.3.

•

Kate would not commit an offence against section 320.2 if she imported a new drug with a psychoactive effect for experimental use in treating influenza and had obtained the relevant approvals from the Department of Health. While the drug would be a psychoactive substance, its importation is subject to an approval under section 19 of the Therapeutic Goods Act and the goods would fall within the exclusion under paragraph 320.2(2)(e).

Paragraphs 320.2(2)(f)-(h): agricultural and veterinary chemicals

Paragraphs 320.2(2)(f) and (g) exclude all agricultural and veterinary chemical products from the offence in section 320.2(1). Agricultural and veterinary chemical products are defined in the Agricultural and Veterinary Chemicals Code Act 1994 (Agvet Code) by reference to their actual or represented use in agriculture or veterinary science.

These paragraphs also exclude from the offence a range of substances that have been specifically exempted from the requirements of the Agvet Code, including those excluded under the Agricultural and Veterinary Chemicals Code Regulations and substances prepared by or in accordance with the instructions of a veterinary surgeon in the course of his or her profession. The controls in the Agvet Code and Agricultural and Veterinary Chemicals (Administration) Act 1992 (Agvet Administration Act) should continue to govern the importation of these substances.

Paragraph 320.2(2)(h) also excludes those active constituents for proposed or existing agricultural and veterinary chemical products that have been approved, exempted from the importation offence in the Agvet Administration Act, or are imported subject to written permission from the Australian Pesticides and Veterinary Medicines Authority (APVMA) under the Agvet Administration Act. Active constituents for agricultural and veterinary chemical products may have a psychoactive effect in humans and only those that have been considered and appropriately dealt with under the Agvet Code and Agvet Administration Act should be excluded from the offence in subsection 320.2(1). The exclusion of only certain active constituents may result in an overlap between an offence in the Agvet Code or Agvet Administration Act and the offence in subsection 320.2(1). A person who may have committed multiple offences will be dealt with in accordance with the most appropriate provisions, having regard to all the circumstances.

For example, Margaret would not commit an offence against section 320.2 if she imported an animal tranquiliser that was not registered with the APVMA and which had psychoactive effects when consumed by a person. While the substance would be a psychoactive substance, it would be a veterinary chemical product and would fall within the exemption in paragraph 320.2(2)(g). However, Margaret may have committed offences against the Agvet Administration Act, Agvet Code and state or territory laws controlling the use of veterinary chemical products.

Paragraph 320.2(2)(i): industrial chemicals

Paragraph 320.2(2)(i) excludes industrial chemicals, within the meaning of the Industrial Chemicals (Notification and Assessment) Act 1989 (ICNA Act), from the offence in section 320.2(1). The ICNA Act provides a system for the notification and assessment of the occupational health and safety, public health and environmental risks associated with the importation, manufacture and use of industrial chemicals. The importation of industrial chemicals is appropriately regulated under the ICNA Act.

The ICNA Act applies to all industrial chemicals. For the purposes of the ICNA Act, a substance is an industrial chemical if it has a use other than an excluded use. Under the ICNA Act, substances which have one or more excluded uses as defined in that Act (as a food or food additive, for therapeutic purposes or as an agricultural or veterinary chemical) are not industrial chemicals. However, substances that have one or more excluded uses and another non-excluded use will be industrial chemicals for the purposes of the ICNA Act. The importation of these substances is more appropriately controlled by the ICNA Act than by the offence in subsection 320(1).

It is important to note that psychoactive substances imported for use as alternatives to serious drugs are not industrial chemicals. They will be excluded from the definition of industrial chemicals on the basis that they are used as foods or are for therapeutic use, as those terms are defined in subsection 7(2) of the ICNA Act. The exclusions for foods and therapeutic goods under the ICNA Act are wider than their exclusion from section 320.2. Foods and therapeutic goods excluded from the operation of subsection 320.2(1) under paragraphs 320.2(2)(a) and (c)-(e) are a subset of foods and therapeutic goods excluded from the operation of the ICNA Act. Psychoactive substances that are foods or therapeutic goods for the purposes of the ICNA Act, but which are not foods or therapeutic goods for the purposes of paragraphs 320.2(2)(a) and (c)-(e) are most appropriately dealt with by the Code.

Psychoactive substances that have both an excluded use under the ICNA Act and a non-excluded use will fall within the definition of 'industrial chemical' under the ICNA Act and paragraph 320.2(2)(i). These substances are being imported for an industrial use and it is appropriate that their importation is subject to the controls under the ICNA Act.

For example, Jonathan would not commit an offence against section 320.2 if he imported glue for the manufacture of goods that had a psychoactive effect when consumed by a person, and which did not comply with the assessment or registration requirements of the ICNA Act. While the glue is a psychoactive substance, it has an industrial use and falls within the exemption in paragraph 320.2(2)(i). However, Jonathan may have committed an offence against the ICNA Act.

Paragraph 320.2(2)(ia):

Paragraph 320.2(2)(ia) excludes plants and fungi and their extracts from the offence in subsection 320.2(1).

The offence in subsection 320.2(1) was not intended to capture plants, fungi and their extracts that are imported for legitimate horticultural, botanical or agricultural purposes. Paragraph 320.2(2)(ia) is intended to provide importers of plants and fungi that may also have a psychoactive effect when consumed by a person with certainty that their conduct is not in breach of subsection 320.2(1).

For example, Sarah would not commit an offence against section 320.2 if she imported an ornamental cactus that contains a substance that has a psychoactive effect when consumed by a person. However, there may be other controls applying to the importation of the cactus, such as quarantine requirements, the Criminal Code (where the cactus or the psychoactive substance in it is listed as a controlled or border controlled plant) or the Prohibited Imports Regulations (where the cactus or the psychoactive substance in it as a prohibited import).

Paragraph 320.2(2)(j): serious drugs

Paragraph 320.2(2)(j) excludes from the offence in subsection 320.2(1) substances already dealt with under the serious drug offences in Part 9.1 of the Code. This includes substances listed as controlled or border controlled drugs, plants and precursors. It will also include analogues of controlled and border controlled drugs. While these substances are psychoactive, the Government has already assessed the harms associated with these substances and they should be subject to penalties that apply to their importation and handling as set out in Part 9.1.

Paragraph 320.2(2)(k): prohibited imports

Paragraph 320.2(2)(k) excludes prohibited imports within the meaning of the Customs Act from the offence in subsection 320.2(1). Prohibited imports, including prohibited drugs, include known psychoactive substances. As above, such substances are appropriately controlled under the Customs Act and should be excluded from the offence in subsection 320.2(1).

Paragraph 320.2(2)(l): regulations

Paragraph 320.2(2)(k) excludes substances prescribed by the regulations from the offence in subsection 320.2(1). This provision will allow the Governor-General to make regulations to allow the importation of specific substances or classes of substances that have a legitimate use but do not fall within one of the existing exclusions.

320.2(2): burden of proof

In proceedings for an offence against subsection 320.2(1), the defendant bears the evidential burden for proving that a substance falls within one of the exclusions in paragraphs 320.2(2)(a) to (l). This relies on subsection 13.3(3) of the Code.

It is appropriate for the defendant to bear the evidential burden of proving that a substance is excluded from the offence in subsection 320.2(1). The exclusions listed in subsection 320.2(2) primarily relate to the intended use of the substance. The intended use of a substance is a matter peculiarly within the knowledge of the owner or importer of the goods. Evidence of the intended use of the substance, including its compliance with applicable regulatory standards, will be readily available from the owner's or importer's business or personal records.

Further, there are twelve categories of substances that are excluded from the offence of importing a psychoactive substance. If the onus was on the prosecution, it would have to prove beyond reasonable doubt that the imported substance did not fit within each of the twelve excluded categories before a charge could be made out. Given the nature of the evidence required, this would be significantly more difficult and costly than it is for the defendant to raise evidence that the substance fell in one exclusion category.

Subsection 320.2(3)

New subsection 320.2(3) makes it clear that the exclusions to the offence will not apply to substances to which a psychoactive substance (other than those excluded by paragraphs 320.2(2)(a)-(l)) has been added. The purpose of the new subsection is to ensure that a person cannot escape the offence in subsection 320.2(1) by modifying a substance that would otherwise fall within an exclusion in subsection 320.2(2), to include a substance that would ordinarily be caught by the offence.

For example, Frances would commit an offence against subsection 320.2(1) if she imported cigarettes that contained a mix of tobacco and a psychoactive substance that was not tobacco. While the cigarettes would be a tobacco product, they contain a non-tobacco psychoactive substance and Frances would not be able to rely on the exclusion in paragraph 320.2(2)(b).

Subsection 320.2(4)

New subsection 320.2(4), which is based on section 300.5 in Part 9.1 of the Code, clarifies that, in a prosecution for an offence against new subsection 320.2(1), the prosecution need only prove that the defendant knew, or was reckless as to whether, the substance he or she imported was a psychoactive substance. The prosecution will not be required to prove that the defendant knew, or was reckless as to, the precise identity of the substance or its precise effects.

This subsection is important as importers, sellers and users of new psychoactive substances frequently do not know their precise chemical structure or their exact effects. The ingredients in psychoactive substances are frequently misdescribed and can produce effects not anticipated by suppliers or users. It is appropriate for the offence to prevent people from importing a psychoactive substance, even if it is not the precise substance they intended to import, or if it does not have the precise effects they anticipated.

Section 320.3

New section 320.3 will create an offence for importing a substance whose presentation, including its labelling or packaging, makes or contains an express or implied representation that the substance is a serious drug alternative.

New subsection 320.3(1) provides that a person commits an offence if he or she imports a substance and that substance is presented in such a way, including through its labelling or packaging, that it expressly or implicitly represents the substance to either have the same, or substantially similar effects to, a serious drug, or to be a lawful alternative to such a drug. A person faces a maximum penalty of imprisonment for 2 years, 120 penalty units, or both for committing an offence against section 320.3.

This offence will rely on the default fault elements, set out in Division 5 of the Code. To establish that a person has committed an offence against subsection 320.3(1), the prosecution will need to prove beyond reasonable doubt that:

•

the defendant imported a substance (fault element: intention), and

•

the presentation of the substance included an express or implied representation that the substance was a serious drug alternative (fault element: recklessness).

This offence is intended to ban the importation of substances whose physical presentation represents them to either:

•

mimic the psychoactive effects of illicit drugs listed as controlled or border controlled drugs or plants under the Code, or

•

be lawful alternatives for those drugs.

It is not necessary, in a prosecution for an offence against subsection 320.3(1), for the prosecution to prove that the substance had a psychoactive effect. The offence depends only on the physical presentation of the substance.

The offence applies only to representations about the substance that are made as a result of the physical presentation of the substance.

The offence applies to representations that are explicit-in the sense that they are directly made by the presentation of the substance-and those that are implicit-in the sense that they rely on a person's knowledge of the illicit drug market. An example of an explicit representation would be where the labelling of a substance stated that it was a 'legal high' or 'synthetic cannabis'. An example of an implicit representation would be where the packaging of a substance suggested it was a new version of an illicit drug by drawing on the drug's street name, such as 'New Kronic' ('Kronic' is a product name which has been used to market synthetic cannabinoids which are prohibited as border controlled drugs under the Code).

Subsection 320.3(2) clarifies that the presentation of the substance includes matters relating to the name of the substance, the way it is labelled or packaged, and any advertising or other informational material associated with the substance. This is not an exclusive explanation, and the presentation of a substance could also include the colouring or shape of the substance, or any markings on it that suggest it is a serious drug alternative.

Subsection 320.3(3) lists a range of substances that are excluded from the offence in subsection 320.3(1).

There may be some substances that have a legitimate use and whose presentation is regulated under another regulatory regime, but which may be caught by the offence in subsection 320.3(1). For example, the labelling or packaging of a legal painkiller may suggest it has similar effects to those of an illicit opioid, but that it is to be used for lawful therapeutic purposes. As much as possible, the offence in subsection 320.3(1) is not intended to interfere with the presentation requirements of other regulatory regimes (in this case, the therapeutic goods regime). A substance presented in compliance with the requirements and standards of one of those regimes should not be prohibited from importation under subsection 320.3(1).

Paragraph 320.3(3)(a) excludes certain types of food, as defined by the Food Standards Act, from the offence in subsection 320.3(1). Food for which there is a standard will be excluded from the offence. Such foods are appropriately regulated under the Food Standards Act, which will deal with their labelling, display, ingredients and safety.

The exclusion will not apply to the presentation of other foods for which there is no standard, or which do not have a history of use in Australia and New Zealand in the form in which they are presented. Where these foods are presented as being a serious drug alternative, they will be subject to the offence in section 320.3(1).

Paragraphs 320.3(3)(b) and (c) exclude certain types of therapeutic goods from the offence in subsection 320.3(1). These exclusions are necessary as the packaging or labelling of some therapeutic goods may suggest that they have similar pharmacological effects to those of serious drugs. Those therapeutic goods have been assessed and appropriate controls placed on their presentation under the Therapeutic Goods Act.

The exclusion in paragraph 320.3(3)(b) is to put beyond doubt that therapeutic goods that are listed or registered on the ARTG and imported by the person in relation to whom they are listed or registered (or a person acting on their behalf or with their authority) are excluded from the offence. The TGA has assessed these goods and placed appropriate controls on their presentation. They should be dealt with under the Therapeutic Goods Act, not the offence in subsection 320.3(1).

The exclusion in paragraph 320.3(3)(c) applies to goods that are exempted from the operation of certain parts of the Therapeutic Goods Act or are subject to approvals under that Act. Goods falling within this paragraph include those:

•

that are exempt from registration or listing because they are imported as a result of of an emergency

•

that are exempt from registration or listing because they are imported solely for use for experimental purposes in humans

•

that are exempt from registration or listing because they are imported in any other of the circumstances set out in regulation 12A or Schedules 5 or 5A of the Therapeutic Goods Regulations

•

unregistered goods that are imported where there is a shortage of a registered medicine, or

•

that are imported for the treatment of individual patients.

This paragraph ensures that therapeutic goods which do not fall within paragraphs 320.3(3)(b) or (c) but which can be lawfully imported under the Therapeutic Goods Act are also excluded from the offence in subsection 320.3(1).

Other therapeutic goods will only fall within the offence in subsection 320.3(1) if their presentation represents them to be a serious drug alternative. Appropriate controls have not necessarily been placed around the presentation of these substances. Accordingly, it will be open for authorities to deal with these substances in the most appropriate manner in the circumstances, whether under the offence in subsection 320.3(1) or under the Therapeutic Goods Act.

Paragraphs 320.3(3)(d) and (e) exclude all agricultural and veterinary chemical products and their active constituents that can be lawfully imported into Australia under the Agvet Code and Agvet Administration Act. These paragraphs ensure that substances that comply with the regulatory scheme set out in that Code and Act will not be caught by the offence in subsection 320.3(1), even where their presentation may include a representation that they are a serious drug alternative. The APVMA has already assessed these substances and instituted appropriate controls around their use and presentation. The exclusion of only certain agricultural and veterinary chemical products and their active constituents may result in an overlap between an offence in the Agvet Code or Agvet Administration Act and the offence in subsection 320.2(1). A person who may have committed multiple offences will be dealt with in accordance with the most appropriate provisions, having regard to all the circumstances.

Paragraph 320.3(3)(f) excludes substances prescribed by the regulations from the offence in subsection 320.3(1). This provision will allow the Governor-General to make regulations to allow the importation of specific substances or classes of substances that have a legitimate use but do not fall within one of the existing exclusions.

In proceedings for an offence against subsection 320.3(1), the defendant bears the evidential burden for proving that a substance falls within one of the exclusions of paragraphs 320.3(3)(a) to (c), in reliance on subsection 13.3(3) of the Code.

It is appropriate for the defendant to bear the evidential burden of proving that a substance is excluded from the offence in subsection 320.3(1). The exclusions listed in subsection 320.3(3) primarily relate to the intended use of the substance. This is a matter peculiarly within the knowledge of the owner or importer of the goods. Evidence of the intended use of the substance, including its compliance with applicable regulatory standards, will be readily available from their business or personal records.

Further, if the onus was on the prosecution, it would have to prove beyond reasonable doubt that the imported substance did not fit within each of the excluded categories before a charge could be made out. Given the nature of the evidence required, this would be significantly more difficult and costly than it would be for the defendant to raise evidence that the substance fell in one exclusion category.

Subsection 320.3(4)

New subsection 320.3(4), which is based on section 300.5 in Part 9.1 of the Code, clarifies in paragraph (a) that, in a proceeding for an offence against subsection 320.3(1), it is enough that the representation related to the substance being an alternative to any serious drug (whether because of its effects or purported lawfulness).

Paragraph 320.3(4)(b) clarifies that, in a proceeding for an offence against subsection 320.3(1), the prosecution does not need to show that the defendant intended for people to understand that the relevant representation related to a particular serious drug. It will be enough for a prosecution to prove that the representation was that the substance was an alternative to any serious drug (whether because of its effects or purported lawfulness), and that the defendant knew, or was reckless as to, that fact.

Paragraph 320.3(4)(c) clarifies that the prosecution does not need to prove that the defendant knew, or was reckless as to, the precise identity of the substance or its precise effects. As noted above, in any case, it is not necessary for the prosecution to prove that the substance had a psychoactive effect at all as the offence in subsection 320.3(1) depends only on the physical presentation of the substance.

These paragraphs are necessary to give effect to the purpose of the offence, which is to prevent the importation of substances presented as alternatives, lawful or otherwise, to listed illicit drugs. The representation of psychoactive substances in this manner is not appropriate. Representing a substance as a 'legal' alternative to illicit drugs may encourage a person to use these drugs on the assumption that they have been tested and assessed as safe when compared to more established illicit drugs. This is incorrect-these substances are typically untested, of varying concentration and toxicity and carry unknown or unpredictable side effects.

These paragraphs are also necessary because manufacturers, importers, sellers and users frequently do not know the precise chemical structure and exact effects of substances they import. The ingredients in psychoactive substances are frequently misdescribed and can produce effects not anticipated by suppliers or users.

In these circumstances, it should not matter whether the person importing the substance intends to present it as being the same as, substantially similar to, or a lawful alternative to, a particular serious drug. It is enough that the person knows, or is reckless as to, the fact that the representation is about any serious drug.

Customs Act 1901

Items 2 to 13 make a range of amendments to Part XII of the Customs Act, which sets out the powers of officers to search for and seize goods that are imported unlawfully, and provides mechanisms for the forfeiture of those goods. These amendments ensure that ACBPS and AFP officers can exercise these powers over, and that the forfeiture mechanisms apply to, substances banned under new sections 320.2 and 320.3 of the Code.

While the amendments will largely extend the existing powers and mechanisms to psychoactive substances and goods presented as serious drug alternatives, they will also create a new procedure for dealing with claims for the return of seized psychoactive substances. This procedure will require a person whose goods have been seized on suspicion or belief that they are a prohibited psychoactive substance to commence court action to recover their goods. This is necessary to give effect to the precautionary nature of the ban and ensure that substances whose harms have not been assessed cannot be imported.

Item 2 - Subsection 183UA(1)

The Bill will amend subsection 183UA(1) to insert definitions of prohibited psychoactive substance and prohibited serious drug alternative. These amendments are necessary to ensure that ACBPS and AFP officers can exercise their existing search and seizure powers against substances that are captured by the new offences in the Code, and to provide mechanisms for their forfeiture once they have been seized.

The term prohibited psychoactive substance refers to any substance that would be caught by the new offence in section 320.2 of the Code. That offence applies to all psychoactive substances, unless they are excluded under subsection 320.2(2) of the Code. Substances that are excluded from the offence will also be excluded from this definition.

The term prohibited serious drug alternative refers to any substance caught by the new offence in section 320.3 of the Code. That offence applies to all substances whose presentation (including, but not limited to, its labelling or packaging) contains an express or implied representation that the substance is a serious drug alternative, unless the substance is excluded under subsection 320.3(3) of the Code.

Item 3 - Subsection 183UA(1) (paragraph (a) of the definition of special forfeited goods )

The Bill will amend the definition of special forfeited goods in subsection 183UA(1) to include prohibited psychoactive substances and prohibited serious drug alternatives. This will allow ACBPS and AFP officers to exercise over prohibited psychoactive substances or serious drug alternatives their existing powers to search for, detain and seize without a warrant goods which they suspect are special forfeited goods. Officers will also be able to seek warrants to search for and seize these substances.

Item 4 - Section 205D (heading)

This amendment is consequential to the amendment in item 7, which establishes an alternative process for dealing with claims for the return of goods seized on the suspicion or belief that they are prohibited psychoactive substances.

Item 5 - After subsection 205D(1)

This item is also consequential to the amendment in item 7. The item inserts new subsection 205D(1A) to ensure that the existing procedure for dealing with claims for the return of goods under section 205D will not apply to goods seized on suspicion or belief that they are prohibited psychoactive substances.

Item 6 - At the end of section 205E

This amendment is also consequential to item 7. This item inserts new subsection 205E(4) to ensure that the existing process for allowing ACBPS to seek an extension of time from a magistrate to deal with disputes over the seizure of special forfeited goods set out in section 205E does not apply to goods seized on suspicion or belief that they are prohibited psychoactive substances.

Item 7 - After section 205E

This item establishes an alternative process for dealing with claims for the return of goods seized on the suspicion or belief that they are prohibited psychoactive substances. This procedure is necessary to give effect to the precautionary nature of the ban on the importation of these substances. If a person cannot prove that a seized substance either does not have a psychoactive effect or that it is a psychoactive substance that falls within one of the exclusion categories in paragraphs 320.2(2)(a)-(i) or (l) of the Code because it has a legitimate use, then it will be condemned as forfeited on the basis that it is a prohibited psychoactive substance.

Prohibited serious drug alternatives will be dealt with in accordance with existing procedures for resolving claims for the return of seized goods. An officer will be more readily able to determine whether or not a substance is a prohibited serious drug alternative, particularly because there are only a very limited range of potential legitimate uses for such a substance (see paragraphs 320.3(3)(a)-(e) of the Code). An importer should also be able to establish compliance with the requirements of the relevant regulatory regime with relative ease.

Subsection 205EA - Treatment of goods seized if a claim for return is made-suspected prohibited psychoactive substances

Subsection 205EA(1) will set out the circumstances in which a person may make a claim to recover a seized substance. The procedure in subsection 205EA will only apply:

•

to goods seized on the reasonable suspicion, or under a seizure warrant on the reasonable belief, that they are or contain a prohibited psychoactive substance

•

where the owner may make a claim for their return under section 205B, and

•

where the owner has, in fact, made such a claim within 30 days of being served with a seizure notice under existing section 205 (failure to do so will lead to the goods being condemned as forfeited to the Crown under section 205C).

Subsection 205EA(2) will require ACBPS to notify a person claiming the return of a prohibited psychoactive substance of the procedure for resolving his or her claim and the consequences for failing to abide by relevant timeframes. The subsection will provide that, where a prohibited psychoactive substance has been seized, and the owner has made a claim for its return, the Chief Executive Officer of ACBPS (CEO) must return that substance unless one of two circumstances exists.

The first circumstance is where the goods have been dealt with and disposed of or destroyed under section 206 and their return is physically impossible. Section 206 also sets out the procedure for seeking compensation for goods disposed of in accordance with that section. The second circumstance is where, not later than 30 days after the day the claim for return of the goods is made, the CEO gives the claimant written notice that the goods will be condemned as forfeited unless the claimant institutes proceedings against the Commonwealth, within 30 days after receiving that notice, to either recover the goods or to seek a declaration that the goods are not forfeited.

The procedure in this subsection, in combination with the requirement under existing subsection 205B(2) that a person provide a written claim for return that includes the grounds on which the claim is made, gives a person whose goods have been seized an opportunity to provide further information about those goods to ACBPS. It also gives ACBPS an opportunity to consider whether, based on all the information available to it, the goods it has seized are a prohibited psychoactive substance. This will reduce the potential for unnecessary disputes over goods which should be returned.

Subsection 205EA(4) sets out the procedure for dealing with goods once a person has made a claim for their return and the CEO has provided him or her with a notice under subsection 205EA(2). Unlike the procedure in current section 205D, the onus to institute proceedings will be on the person seeking to recover seized goods.

Under paragraph 205EA(4)(a), the goods will be condemned as forfeited to the Crown if the claimant does not institute proceedings for the recovery of the goods, within 30 days of being served with a notice under paragraph 205EA(2)(a). Subject to any extension of time granted under section 205EB, a person will have between 60 and 90 days from when he or she has been notified of the seizure of goods to commence proceedings for their recovery.

Under paragraph 205EA(4)(b), the goods will be condemned as forfeited to the Crown unless the claimant obtains one or more of the following at the end of the proceedings:

(i)

an order for the claimant to recover the goods; or

(ii)

an order for the Commonwealth to pay the claimant the market value of the goods at the time they were disposed of or destroyed; or

(iii)

a declaration that the goods were not forfeited.

In proceedings for the recovery of seized goods under new section 205EA, a claimant may prove that the goods were not a prohibited psychoactive substance on the basis that they were exempted under subsection 320.2(2) of the Code (under new paragraph 205EC(2)(b), the claimant will bear the onus of proving this matter). In doing so, an importer may show that the goods are unlawful under the regulatory scheme relevant to the exemption in subsection 320.2(2) of the Code. In practice, this will mean that the claimant would not be able to recover the goods unless he or she had the relevant authorisation or permission to import them, or they were otherwise exempt from the requirements of the relevant regulatory scheme.

For example, Paul proves to a Court that goods seized on suspicion of being a prohibited psychoactive substance were, in fact, a weed killer, which is an agricultural chemical product. Such goods would not be prohibited psychoactive substances by virtue of paragraph 320.2(2)(f) of the Code. However, in order to legally import the goods, Paul must also have authorisation or permission to import the goods, or they are exempt from such a requirement. Unless he has obtained this permission or authorisation, or the goods fall under an exemption in the Agvet Code or Administration Act that did not require specific permission or authorisation, the court may not make one of the orders listed in subparagraphs 205EA (4)(b)(i)-(iii). Prohibited psychoactive substances that are condemned as forfeited to the Crown become the property of the Commonwealth under section 205G. They may then be dealt with in accordance with the directions of the CEO, under section 208D.

The effect of subsection 205EA(4), in combination with sections 205G and 208D, is that ACBPS will be able to dispose of prohibited psychoactive substances where the importer has not established that they are a legitimate import. This will assist in ensuring that prohibited psychoactive substances do not reach the market and put users at risk of serious harm or death.

Subsection 205EA(5) sets out when proceedings that go to judgment end for the purposes of subsection 205EA(4) and, therefore, when ACBPS will be able to dispose of prohibited psychoactive substances. If there is no appeal against the judgment, proceedings will end under paragraph 205EA(5)(a) once the period for lodging an appeal has expired. If there is an appeal against the judgment, the proceedings will end under paragraph 205EA(5)(b) once the appeal lapses or is finally determined.

Subsection 205EA(6) makes it clear that goods must, as much as is practicable, not be degraded while held by ACBPS, The subsection will also clarify that, if goods are to be returned, they should only be returned to the person that ACBPS reasonably believes to be their owner.

Section 205EB - Extending the period for instituting proceedings for recovery of suspected prohibited psychoactive substances

Section 205EB will provide a mechanism for a person who has been given a written notice under new paragraph 205EA(2)(b) that his or her goods will be forfeited to seek an extension of the 30 day period in which to bring a claim. This provision is intended to provide a claimant with the opportunity to seek more time to prepare information in order to commence proceedings for the recovery of the goods, without the possibility that the ACBPS might dispose of or destroy the goods. A person may not obtain such an order if he or she has unreasonably delayed in assembling information in relation to potential proceedings.

Subsection 205EB(1) provides that a claimant has a time limit for making an application for an extension of time. He or she must apply to a magistrate before the end of:

(a)

30 days after being served with the notice under paragraph 205EA(2)(b), or

(b)

any further period of time that a magistrate may order ACBPS to retain the goods.

A magistrate has a discretion whether or not to grant an extension of time under subsection 205EB(2).

A claimant may apply for, and a magistrate may grant, multiple extensions of time, subject to the claimant satisfying the conditions in paragraphs 205EB(2)(a) and (b).

Section 205EC - Proceedings for recovery of suspected prohibited psychoactive substances

Section 205EC sets out a range of procedural matters in relation to proceedings for the return of seized prohibited psychoactive substances.

Subsection 205EC(1) provides that proceedings may be commenced or continued even if the goods to which the proceedings relate are disposed of or destroyed. In the event that goods have already been disposed of or destroyed, a person may be able to seek compensation in lieu of recovering the goods (see subsection 205EC(3)).

Subsection 205EC(2) specifies the burden of proof in proceedings for the recovery of suspected prohibited psychoactive substances. Under paragraph 205EA(2)(a), the Commonwealth will bear the onus of establishing that the goods to which the proceedings relate were imported. The person instituting proceedings will bear the onus of proving that the goods are not otherwise a prohibited psychoactive substance.

To recover the goods, the person instituting the proceedings will have to prove that:

(a)

the substance is not a prohibited psychoactive substance on the basis that it is either:

(i)

not a psychoactive substance within the meaning of subsection 320.1(1) of the Code because it does not have the capacity to induce a psychoactive effect when consumed by a person, or

(ii)

excluded from being a prohibited psychoactive substance because it falls within one or more of the legitimate use exceptions set out in subsection 320.2(2) of the Code.

If a claimant is able to prove that the substance is not a prohibited psychoactive substance on the basis that it falls within one of the legitimate use exceptions in subsection 320.2(2) then, in practice, he or she will not be able to import the substance unless:

(i)

he or she has the relevant permission or authorisation to import the substance under the relevant regulatory regime, or

(ii)

authorisation was not required, or the substance fell within an exemption that did not require specific permission or authorisation to import, under the relevant regulatory regime.

Requiring the person instituting proceedings to prove that a seized substance is not a prohibited psychoactive substance is necessary to assist in protecting public health. Placing the onus on the claimant will assist in preventing the importation of unknown, unassessed and potentially dangerous substances which are intended for human consumption. It is incumbent upon an importer to:

•

be aware of the purpose for which he or she is importing a substance

•

obtain all relevant and necessary authorisations and permissions for that importation, and

•

where the substance does not fit within one of the exemptions in subsection 320.2(2) of the Code-and particularly where it is intended for human consumption-be aware of whether its consumption has the capacity to induce a psychoactive effect.

It will be peculiarly within the importer's knowledge whether a substance fits within one of the existing regulatory schemes or exemptions in subsection 320.2(2) of the Code and may therefore be imported. If the substance is being imported for a legitimate purpose, evidence about the intended use of the substance will be readily available from the importer's business or personal records.

Further, the exemptions in paragraphs 320.2(2)(a)-(i) of the Code set out very broad categories of goods with legitimate uses that can be imported. This is supplemented by the ability of the Governor-General to list further specific substances or categories of uses under paragraph 320.2(2)(l) of the Code. If a substance has a legitimate use and is not being imported for use or supply as an alternative to an illicit drug, proving this on the balance of probabilities will not be an onerous task.

Similarly, a person will have a number of opportunities prior to going to Court to recover the goods to convince ACBPS that they are not a prohibited psychoactive substance and that either the goods should not be seized or, if they have been seized, they should be released. As outlined above, a person will be able to provide information to ACBPS (or the AFP) about the substance, its effects and intended use:

•

before the goods are seized, when they are stopped at the border

•

after the goods have been seized and before proceedings are commenced, when he or she lodges a claim for the return of the goods under subsection 205B, and

•

when he or she commences proceedings for the recovery of the goods, following a notice from the CEO under subsection 205EA(2).

At each point set out above, ACBPS (or the AFP, before the goods are passed to ACBPS) will examine the information before it and assess whether the goods are likely to be a prohibited psychoactive substance or whether they should be returned to their owner.

In these circumstances, it is reasonable to require a person who disputes the seizure of a substance on the grounds that an officer reasonably suspects or believes it is a prohibited psychoactive substance to prove that it is lawfully able to be imported.

Subsection 205EC(3) provides for a compensation mechanism for a person whose goods have been seized and disposed of or destroyed before the conclusion of proceedings. In these circumstances, subsection 205EC(3) provides that, if the court hearing the proceedings decides it would have ordered goods to be released to the person who instituted proceedings, the Commonwealth must pay the claimant the market value of the goods, determined at the time they were destroyed. This will ensure that importers are not unfairly punished if their goods are mistakenly seized and disposed of or destroyed.

Item 8 - Subsection 205F(1)

This amendment is consequential to the amendments in item 7.

Section 205F gives a person the right to seek compensation for the loss of goods that have been forfeited to the Commonwealth because the person failed to make a claim for their return under section 205B in the required timeframe. This amendment will ensure that this subsection applies where goods are condemned as forfeited to the Crown as a result of a person's failure to initiate proceedings to recover the goods, in accordance with paragraph 205EA(5)(a).

If the person has a reasonable excuse for failing to commence proceedings in time, or for failing to seek an extension of the time in which to commence those proceedings under section 205EB, he or she may seek compensation for the forfeiture of the goods under section 205F.

Item 9 - After subsection 206(2)

Section 206 provides for the immediate disposal of certain dangerous goods. New subsection 206(2A) will allow ACBPS to dispose of prohibited psychoactive substances and prohibited serious drug alternatives, consistent with the treatment of other dangerous goods. This provision is necessary to ensure that ACBPS does not need to retain possession of dangerous and illicit drugs for any longer than necessary.

Under new subsection 206(2A), the CEO or Regional Director for a State or Territory will be permitted to cause the goods to be dealt with in such a manner as he or she considers appropriate (including to destroy the goods), provided that:

(a)

the goods were seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) on the reasonable suspicion that they were a prohibited psychoactive substance or prohibited serious drug alternative; and

(b)

the CEO or Regional Director is satisfied that the goods are a prohibited psychoactive substance or a prohibited serious drug alternative.

If a person's goods are incorrectly destroyed under these powers, he or she will have the right to recover the market value of the goods at the time they were destroyed.

Item 10 - Subsection 206(3)

This amendment is consequential to the amendments in item 9.

Item 11 - Subsection 206(5)(c)

This amendment is also consequential to the amendments in item 9.

Item 12 - Subsection 206(6) and (7)

This amendment is also consequential to the amendments in item 9.

Item 13 - Section 208D

This amendment is consequential to the amendments in item 7.

Section 208D sets out the manner in which goods that are forfeited, or condemned as forfeited, to the Crown are to be dealt. Unless the goods are narcotic-related goods, they are to be dealt with and disposed of in accordance with the directions of the CEO. The Bill will amend subsection 208D so that it applies to goods condemned as forfeited under section 205EA.