CUSTOMS (PROHIBITED IMPORTS) AMENDMENT (TABLET PRESSES, ENCAPSULATORS AND OTHER MEASURES) REGULATIONS 2020 (F2020L00399) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT (TABLET PRESSES, ENCAPSULATORS AND OTHER MEASURES) REGULATIONS 2020 (F2020L00399)

EXPLANATORY STATEMENT

Issued by Assistant Minister for Customs, Community Safety and Multicultural Affairs Parliamentary Secretary to the Minister for Home Affairs

Customs Act 1901

Customs (Prohibited Imports) Amendment (Tablet Presses, Encapsulators and Other Measures) Regulations 2020

The Customs Act 1901 (the Customs Act) concerns customs-related functions and is the legislative authority that sets out the customs requirements for the importation of goods into, and exportation of goods from, Australia.

Subsection 270(1) of the Customs Act provides, in part, that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act.

Section 50 of the Customs Act provides, in part, that the Governor-General may, by regulation, prohibit the importation of goods into Australia and that the power may be exercised by prohibiting the importation of goods absolutely or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

The purpose of the Customs (Prohibited Imports) Amendment (Tablet Presses, Encapsulators and Other Measures) Regulations 2020 (the Regulations) is to amend the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) to extend the current prohibition on the importation of tablet presses to include complete and incomplete encapsulators, and incomplete tablet presses.

Tablet presses are equipment that can be used to compact or mould powdered or granular solids or semi-solid material into coherent solid tablets. Under regulation 4G of the Prohibited Imports Regulations, the importation of tablet presses is prohibited unless the Minister or an authorised person has granted permission in writing to import the goods.

However, this prohibition does not extend to incomplete tablet presses. Extending the prohibition to incomplete tablet presses ensures that the importation of equipment which is not yet in full working order, but which could be converted to full working order with some additional parts, is also prohibited without permission.

Encapsulators are equipment that can be used to produce coherent solid capsules by completely enveloping powdered or granular solids, semi-solid material, liquids or gases. This equipment is highly sought after by criminal organisations involved in the domestic manufacture of illicit substances. The Regulations are necessary to assist in controlling the manufacture and supply of such substances and in combatting illicit drugs in Australia. For the same reason set out above for tablet presses, the prohibition also extends to incomplete encapsulators.

The importation controls on tablet presses and encapsulators are consistent with the supply reduction policy under Australia's National Drug Strategy and will reduce the ability of criminals to access tablet presses and encapsulators to domestically manufacture illicit drugs.

The Regulations extend the current provisions dealing with the granting of import permissions for tablet presses to complete or incomplete encapsulators and incomplete tablet presses. This ensures that the legitimate use of this equipment, such as in the pharmaceutical, confectionary and industrial manufacturing sectors, can be maintained.

The Regulations also delete notes from several regulations in the Prohibited Imports Regulations which contain references to the Scaleplus website and the Comlaw website. The notes are unnecessary because those websites have been replaced by the Federal Register of Legislation.

Details of the Regulations are set out in Attachment A. A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment B.

The Department of Home Affairs released a discussion paper in February 2019 (https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/tablet-press-import-control). It invited comment from members of the public, industry, academia, government departments and law enforcement agencies about the effectiveness of the import control for tablet presses, and whether amendments should be made to improve regulation 4G. Responses to the discussion paper supported the extension of the Prohibited Imports Regulations to include complete and incomplete encapsulators, and incomplete tablet presses.

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

The Regulations commence on 1 May 2020.

OPC64275 - A

ATTACHMENT A

Details of the Customs (Prohibited Imports) Amendment (Tablet Presses, Encapsulators and Other Measures) Regulations 2020

Section 1 - Name of Regulation

This section provides that the title of the Regulations is the Customs (Prohibited Imports) Amendment (Tablet Presses, Encapsulators and Other Measures) Regulations 2020 (the Regulations).

Section 2 - Commencement

This section sets out, in a table, the date on which each of the provisions contained in the Regulations commences.

Table item 1 provides for the whole of the instrument to commence on 1 May 2020.

Section 3 - Authority

This section sets out the authority under which the Regulations are to be made, which is the Customs Act 1901 (the Customs Act).

Section 4 - Schedules

This section is the formal enabling provision for the Schedules to the Regulations, and provides that each instrument that is specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this instrument has effect according to its terms.

The instrument that is amended is the Customs (Prohibited Imports) Regulations 1956.

Schedule 1 - Tablet presses and encapsulators

Customs (Prohibited Imports) Regulations 1956

Item 1 Subregulation 2(1)

This item inserts definitions of "encapsulator" and "tablet press" in subregulation 2(1) of the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations). Those terms have the meanings given by subregulation 4G(7), as amended by items 7 and 8 of Schedule 1 to the Regulations.

Item 2 Regulation 4G (at the end of the heading)

This item adds "and encapsulators" at the end of the heading to regulation 4G. This amendment clarifies the scope of regulation 4G, as amended by Schedule 1 to the Regulations.

Item 3 Subregulation 4G(1)

This item inserts "or encapsulator" after "a tablet press" in subregulation 4G(1).

Subregulation 4G(1) prohibits the importation into Australia of a tablet press unless the Minister or an authorised person has granted permission in writing to import a tablet press.

This amendment extends the current prohibition on importing tablet presses to include encapsulators. "Encapsulator" has the meaning given by subregulation 4G(7), as amended by item 7 of Schedule 1 to the Regulations, which covers both complete equipment and equipment that is not complete.

Item 4 At the end of subregulation 4G(1)

This item adds "or encapsulator" at the end of subregulation 4G(1).

This amendment is consequential to the amendment made by item 3 of Schedule 1. It extends the current prohibition on importing tablet presses to include encapsulators.

Item 5 Subregulation 4G(2)

This item inserts "or encapsulator" after "tablet press" in subregulation 4G(2).

Subregulation 4G(2) deals with applications for permission to import a tablet press. An applicant must make the application on the form approved by the Secretary to the Department of Home Affairs, and lodge the application with the Minister or an authorised person, and give to the Minister or authorised person any information that the Minister or authorised person reasonably requires for the purpose of making a decision on the application.

This amendment extends the current process relating to applications for permission to import a tablet press to include encapsulators.

This amendment allows applicants to apply for permission to import an encapsulator, in the same way that applicants can apply for permission to import a tablet press.

Item 6 Paragraph 4G(4)(b)

This item adds "or encapsulator" after "tablet press" in paragraph 4G(4)(b).

Subregulation 4G(4) sets out what a permission to import a tablet press may specify. A permission may specify, among other things, a time (before or after the importation of the tablet press) at which the holder must comply with a condition or requirement.

This amendment ensures that the Minister or authorised person can specify a time, before or after the importation of an encapsulator, at which the holder must comply with a condition or requirement.

Item 7 Subregulation 4G(7)

This item inserts a definition of "encapsulator" in subregulation 4G(7).

"Encapsulator" is defined as:

* equipment that can be used to produce a coherent solid capsule by completely enveloping any of the following:

* a powdered or granular solid;

* semi-solid material;

* a liquid;

* a gas; or

* equipment to which the above description would apply were the equipment not incomplete, damaged, temporarily or permanently inoperable, or unfinished.

The definition covers complete equipment (i.e. equipment that is in full working order), as well as equipment that is incomplete, damaged, temporarily or permanently inoperable, or unfinished. The aspect of the definition that covers an encapsulator that is incomplete, damaged, temporarily inoperable, or unfinished is intended to cover equipment that requires only a few additional components to become functional.

Extending the prohibition to encapsulators that are not complete ensures that equipment which is not yet in full working order, but which could be converted to full working order with some additional parts, is also prohibited from importation without permission.

Together with the amendments that are made by items 2 to 6 of Schedule 1, this definition extends the current prohibition on importing tablet presses, and the current process which allows applicants to apply for permission to import a tablet press, to include complete encapsulators and encapsulators that are not complete.

Item 8 Subregulation 4G(7) (definition of tablet press)

This item repeals the existing definition of "tablet press" and substitutes a new definition in subregulation 4G(7).

"Tablet press" is defined as:

* equipment that can be used to compact or mould either or both of the following into a coherent solid tablet:

* a powdered or granular solid;

* semi-solid material; or

* equipment to which the above description would apply were the equipment not incomplete, damaged, temporarily or permanently inoperable, or unfinished.

The definition covers complete equipment (i.e. equipment that is in full working order), as well as equipment that is incomplete, damaged, temporarily or permanently inoperable, or unfinished. The aspect of the definition that covers a tablet press that is incomplete, damaged, temporarily inoperable, or unfinished is intended to cover equipment that requires only a few additional components to become functional.

Together with the amendments that are made by items 2 to 6 of Schedule 1, this definition ensures that the current prohibition on importing tablet presses, and the current process which allows applicants to apply for permission to import a tablet press, include tablet presses that are not complete.

Extending the prohibition to tablet presses that are not complete ensures that equipment which is not yet in full working order, but which could be converted to full working order with some additional parts, is also prohibited from importation without permission.

Schedule 2 - References to Scaleplus and Comlaw

Customs (Prohibited Imports) Regulations 1956

Item 1 Subregulation 5(20) (note to the definition of Department)

This item repeals the note to the definition of "Department".

The note explains that the latest Administrative Arrangements Orders mentions which Minister administers the Therapeutic Goods Act 1989, and that a copy of the Orders can be found on the internet at http://scaleplus.law.gov.au/home/docs/legtables/aao.htm.

The note is unnecessary because the Scaleplus website has been replaced by the Federal Register of Legislation.

Item 2 Subregulation 5G(6) (note to the definition of Secretary)

This item repeals the note to the definition of "Secretary".

The note is the same as the note mentioned in item 1 of Schedule 2 to the Regulations.

The note is unnecessary because the Scaleplus website has been replaced by the Federal Register of Legislation.

Item 3 Subregulation 5H(1) (note to the definition of Secretary)

This item repeals the note to the definition of "Secretary".

The note is the same as the note mentioned in item 1 of Schedule 2 to the Regulations.

The note is unnecessary because the Scaleplus website has been replaced by the Federal Register of Legislation.

Item 4 Subregulation 5HA(1) (note to the definition of Minister)

This item repeals the note to the definition of "Minister".

The note is unnecessary because the Scaleplus website has been replaced by the Federal Register of Legislation.

Item 5 Subregulation 5L(1) (note)

This item repeals the note in subregulation 5L(1).

The note explains that for the Minister administering the Prohibition of Human Cloning for Reproduction Act 2002, see the latest Administrative Arrangements Order, available on the internet at http://www.comlaw.gov.au.

The note is unnecessary because the Comlaw website has been replaced by the Federal Register of Legislation.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Customs (Prohibited Imports) Amendment (Tablet Presses, Encapsulators and Other Measures) Regulations 2020

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Tablet presses are equipment that can be used to compact or mould powdered or granular solids or semi-solid material into coherent solid tablets. Encapsulators are equipment that can be used to produce coherent solid capsules by completely enveloping powdered or granular solids, semi-solid material, liquids or gases. Both types of equipment can produce large numbers of pills (for example, some equipment can produce 70,000 capsules per hour).

Tablet presses and encapsulators are used for legitimate purposes in the pharmaceutical, confectionary and industrial manufacturing sectors. However, they are also highly sought after by criminal organisations for use in the domestic manufacture of drugs including MDMA (ecstasy). Regulating the importation of this equipment will assist in controlling the manufacture and supply of illicit drugs in Australia.

Regulation 4G of the Customs (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations) currently prohibits the importation of tablet presses into Australia unless the Minister or an authorised person has granted permission in writing to import the tablet press. Importing a prohibited import, such as a tablet press, without permission, is a strict liability offence pursuant to section 233 of the Customs Act 1901.

This Legislative Instrument amends subregulation 2(1) and regulation 4G of the Prohibited Imports Regulations to extend the import prohibition to incomplete tablet presses, encapsulators and incomplete encapsulators.

Incomplete tablet presses and incomplete encapsulators are equipment that could be used to produce tablets or capsules were the equipment not incomplete, damaged, temporarily or permanently inoperable, or unfinished.

Matters relating to import permission (applications, grants/refusals, revocation) and penalties for unlawfully importing incomplete tablet presses, encapsulators and incomplete encapsulators are the same as currently apply to tablet presses.

The proposed prohibition on the importation of encapsulators is balanced against the ability to obtain permission to import an encapsulator for legitimate purposes.

The outcome of these amendments is that the importation of incomplete tablet presses, encapsulators and incomplete encapsulators is lawful with permission from the relevant person, but the unlawful importation of such equipment is an offence.

Human rights implications

This Legislative Instrument engages the following rights:

* Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), and

* Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

Under section 233 of the Customs Act, the importation of a prohibited import is a strict liability offence. The Prohibited Imports Regulations extend the import prohibition to complete and incomplete encapsulators, and to incomplete tablet presses, so that the importation of such equipment without permission from the relevant person is also a strict liability offence.

The proposed offence may engage the right of a presumption of innocence under Article 14(2) of the ICCPR. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Importantly, a strict liability offence will not violate the presumption of innocence if it pursues a legitimate aim and is reasonable, necessary and proportionate to that aim. Not having to prove fault in circumstances where prohibited incomplete tablet presses, encapsulators and incomplete encapsulators are being imported aims to control the manufacture and supply of illicit drugs in Australia. This is achieved by reducing the ability of criminals to access tablet presses and encapsulators (including those which are not yet in full working order, but which could be converted to full working order with some additional parts) to domestically manufacture illicit drugs.

The strict liability nature of the offence in reasonable, necessary and proportionate to achieving that aim.

Additionally, it remains incumbent on the prosecution to prove the physical element of the offence beyond reasonable doubt. An accused will always have the defence of honest and reasonable mistake of fact. If relied upon, this is an evidential burden on the defence to prove, on the balance of probabilities, that the accused had an honest and reasonable mistaken belief of fact, which, if those facts existed, would not have constituted an offence.

For these reasons, the strict liability offence is not inconsistent with the presumption of innocence set out in Article 14(2) of the ICCPR because it maintains all existing protections contained in Australian law.

The proposed control on encapsulators may engage the right to enjoyment of the highest attainable standard of physical and mental health under Article 12 of ICESCR. However, the restriction of access to encapsulators is balanced by the ability of an applicant to obtain import permission where legitimate circumstances exist, such as in the pharmaceutical, confectionary and industrial manufacturing sectors. As such, the limitation to Article 12 that this amendment may present is necessary in order to protect the Australian community, and it is reasonable and proportionate as access to encapsulators is available where there is a legitimate need.

Conclusion

The Legislative Instrument is compatible with human rights because to the extent that the Legislative Instrument may limit Article 14(2) of the ICCPR or Article 12 of the ICESCR, the limitations are reasonable, necessary and proportionate.

The Hon Jason Wood

Assistant Minister for Customs, Community Safety and Multicultural Affairs

Parliamentary Secretary to the Minister for Home Affairs