Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015 (12 of 2015)

Schedule 1   Psychoactive substances

Customs Act 1901

7   After section 205E

Insert:

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

(1) This section applies if:

(a) goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2); and

(b) the goods are seized on belief or suspicion that they are a prohibited psychoactive substance; and

(c) a claim for the return of the goods may be made under section 205B; and

(d) not later than 30 days after the day the seizure notice was served, a claim is made under section 205B for return of the goods.

(2) The authorised person who seized the goods must, subject to any law of the Commonwealth, a State or a Territory permitting their retention, destruction or disposal, return the goods unless:

(a) the goods have been dealt with under section 206; or

(b) not later than 30 days after the day the claim is made, the CEO gives the claimant a written notice stating that the goods will be condemned as forfeited if the claimant does not, within 30 days after receiving the notice, institute proceedings against the Commonwealth:

(i) to recover the goods; or

(ii) for a declaration that the goods are not forfeited.

(3) A notice under paragraph (2)(b):

(a) must be served personally or by post; and

(b) may be served on a person who is outside Australia.

(4) The goods are condemned as forfeited to the Crown if:

(a) the claimant does not institute proceedings of a kind referred to in paragraph (2)(b) within the period of 30 days after receiving the notice under that paragraph (or within that period as extended, or further extended, under section 205EB); or

(b) the claimant institutes such proceedings within that period (or within that period as extended or further extended), and at the end of the proceedings there is not:

(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, if they have been disposed of or destroyed before the end of the proceedings; or

(iii) a declaration that the goods are not forfeited.

(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:

(a) at the end of the period for lodging an appeal against the judgment, if no appeal is lodged within that period; or

(b) when the appeal lapses or is finally determined, if an appeal is lodged against the judgment within that period.

(6) For the purposes of this section, the return of goods requires their return to the person reasonably believed to be the owner of the goods in a condition as near as practicable to the condition in which they were seized.

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

(1) A person who has been given a notice under paragraph 205EA(2)(b) in relation to goods may, before the end of the applicable period under paragraph 205EA(4)(a), apply to a magistrate for an extension, or a further extension, of the period.

(2) If the magistrate is satisfied that:

(a) it is necessary that the retention of the goods continue while information is assembled relating to whether the goods are a prohibited psychoactive substance; and

(b) there has been no avoidable delay in assembling that information;

the magistrate may order that the period be extended, or further extended, for a period specified in the order.

205EC Proceedings for recovery of suspected prohibited psychoactive substances

(1) Proceedings of a kind referred to in paragraph 205EA(2)(b) may be instituted or continued even if the goods to which the proceedings relate are disposed of or destroyed.

(2) In proceedings of a kind referred to in paragraph 205EA(2)(b):

(a) the Commonwealth bears the onus of proving that the goods to which the proceedings relate were imported; and

(b) the person instituting the proceedings bears the onus of proving that the goods:

(i) are not a psychoactive substance; or

(ii) are a substance to which, because of subsection 320.2(2) of theCriminal Code, section 320.2 of theCriminal Code does not apply.

(3) If:

(a) the goods to which proceedings of a kind referred to in paragraph 205EA(2)(b) relates have been disposed of or destroyed before the end of the proceedings; and

(b) the court hearing the proceedings decides that, apart from the disposal or destruction, it would have ordered that the goods be returned to a person;

the court must order the Commonwealth to pay the person an amount equal to the market value of the goods at the time they were disposed of or destroyed.