Criminal Code Regulations 2019

The regulations reach anyone who imports, exports, traffics, manufactures or possesses a substance or plant that may be a controlled or border controlled drug, plant or precursor under Part 9.1 of the Code. They reach the parties to cross-border firearms trafficking offences in sections 360.2 and 360.3 of the Code. They reach AFP members, the Australian Federal Police generally, and legal aid commissions in each State and Territory who may be requested to arrange representation for young people in control order proceedings. They reach prescribed information-sharing recipients including AFP employees, State and Territory police members, corrective services and parole officers, the Director of Public Prosecutions and equivalents, the Director-General of Security, ASIO employees, APS employees in immigration, citizenship and passport portfolios, authorised officers under Division 9A of Part IB of the Crimes Act 1914, and relevant experts engaged for risk assessment under Division 105A or Division 395 of the Code.

The regulations also reach forensic laboratories, medical and scientific research facilities, the Commissioner and Deputy Commissioners of the Australian Federal Police, heads or deputy heads of State and Territory police forces, and entities that import drugs on their behalf when they are seeking to import psychoactive substances or substances represented to be serious drug alternatives under the section 19 conditions.

Section 5 sends the reader to subsection 104.28(6) of the Code: where an issuing court is dealing with a control order proceeding involving a young person, the court may request a legal aid commission to arrange legal representation under section 6. Section 7 imposes information obligations on AFP members and legal representatives of the AFP. They must, in writing, inform the chief executive officer of the legal aid commission of the request and provide the young person's name, residential address, contact details, date of birth, the name and contact details of at least one parent or guardian, and information about any communication assistance the young person needs (subsection 7(2)). They must inform the young person and ensure the young person understands the information provided, taking into account age, language skills, mental capacity and other relevant factors (subsection 7(3)). They must take reasonable steps to inform a parent or guardian (subsection 7(5)). All these notifications must occur as soon as practicable after the issuing court makes the request and at least 48 hours before the next day when the court conducts proceedings relating to the control order (subsection 7(6)).

Section 19 sets the conditions for importing psychoactive substances or substances represented to be serious drug alternatives. The importer must hold a licence under subregulation 5(5) of the Customs (Prohibited Imports) Regulations 1956, must be covered by subsection 19(2), and must give the Health Secretary or an authorised person written notice before importation specifying the identity and amount of the substance, the purpose of the importation, a 30-day window in which the importation is likely to occur, the importer's name and licence number, the importer's employer if relevant, and any other information required by the Health Secretary. Subsection 19(2) lists the categories of permitted importer: forensic laboratories and their employees for forensic analysis; the AFP and State or Territory police forces for law enforcement; the AFP Commissioner and Deputy Commissioners and heads or deputy heads of police forces for law enforcement; medical research facilities and their employees for medical research; scientific research facilities and their employees for scientific research; and entities that import drugs on behalf of any of those persons under written request.

Section 8 declares the corresponding State preventative detention laws for the purposes of the section 100.1(1) definition in the Code: Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), Part 2A of the Terrorism (Community Protection) Act 2003 (Vic), the Terrorism (Preventative Detention) Act 2005 (Qld), the Terrorism (Preventative Detention) Act 2006 (WA), the Terrorism (Preventative Detention) Act 2005 (SA), the Terrorism (Preventative Detention) Act 2005 (Tas), Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), and Part 2B of the Terrorism (Emergency Powers) Act 2003 (NT).

Section 9 prescribes the matters a Supreme Court of a State or Territory may take into account under paragraph 105A.15A(3)(a) of the Code in determining whether circumstances are beyond a terrorist offender's control in continuing detention order proceedings: the offender's financial circumstances; whether the offender has engaged in unreasonable conduct during the proceeding contributing to the inability to afford legal representation; whether the offender has tried to obtain legal aid or legal assistance and the outcomes; and any other matter the Court considers relevant. Section 20A mirrors that scheme for community safety order proceedings under paragraph 395.34(3)(a).

Section 10 prescribes the persons authorised to share information for the purposes of subsections 105A.19(1) and (3) of the Code (continuing detention orders), and section 20B does the same for subsections 395.44(1) and (4) (community safety orders). The classes are broad and include AFP employees, State and Territory police members, corrective services officers and contractors, Commonwealth post-sentence service contractors, the DPP and similar officers, OPP staff, the Director-General of Security and Deputy Director-General of Security, ASIO employees and affiliates, APS employees in immigration, citizenship and passport-administering departments, authorised officers under Division 9A of Part IB of the Crimes Act 1914, and relevant experts appointed under section 105A.18D or section 395.43 of the Code.

Section 20 prescribes State and Territory firearm laws for the definition of "firearm law" in subsections 360.2(3) and 360.3(2) of the Code (cross-border firearms trafficking offences): the Firearms Act 1996 (NSW), the Firearms Act 1996 (Vic), the Weapons Act 1990 (Qld), the Firearms Act 1973 (WA), the Firearms Act 2015 (SA), the Firearms Act 1996 (Tas), the Firearms Act 1996 (ACT), the Firearms Act 1997 (NT), and the Firearms and Prohibited Weapons Act 1997 (Norfolk Island), plus regulations made under any of those Acts.

Section 21 prescribes the dangerous or harmful substances and things that must not be carried by post under subparagraph 471.15(1)(b)(ii) of the Code: gas that is so toxic or corrosive to humans as to pose a hazard to health; thermally unstable substances likely to undergo a strongly exothermic decomposition; and substances that ignite or self-heat when in contact with air.

The regulations themselves do not contain offence provisions. They populate the prescribed lists for offences in the Criminal Code and trigger Code-based penalties. The downstream offences are punished under the Criminal Code at scales such as: section 307.1 (importing or exporting a commercial quantity of a border controlled drug, life imprisonment); section 307.11 (importing or exporting a commercial quantity of a border controlled precursor, 25 years' imprisonment or 5,000 penalty units, or both); section 471.15 (sending dangerous articles by post); sections 360.2 and 360.3 (cross-border firearms trafficking, with penalties scaling with the trafficked quantity); and the various Part 9.1 offences for controlled drugs, plants and precursors.

The regulations are also wired into Part 5.3 of the Code (terrorism, control orders, preventative detention orders), Division 105A (continuing detention orders) and Division 395 (community safety orders). Information-sharing under sections 105A.19 and 395.44 supports the operational management of those regimes; legal aid arrangements under section 6 support fair process for young people facing control orders.

The Health Secretary and authorised persons under regulation 5 of the Customs (Prohibited Imports) Regulations 1956 carry out the front-line gatekeeping for psychoactive substance and serious drug alternative imports.

The 48-hour notice under subsection 7(6) is the key timing rule for control order proceedings involving a young person. Notification to the legal aid commission, to the young person and to a parent or guardian must happen as soon as practicable after the issuing court makes the section 6 request and at least 48 hours before the next court day on the control order matter.

The 30-day notification window under subparagraph 19(1)(c)(iii) is the key timing rule for psychoactive substance and serious drug alternative imports. The importer must specify a 30-day window during which the importation is likely to occur, alongside the substance, amount, purpose, importer details and employer information.

For the prescribed quantity offences, time runs from the date of the importation, exportation, sale or possession. Sentencing is anchored in the schedules' commercial, marketable and trafficable quantities at the time of the conduct, with section 23 of the regulations confirming that functions and duties under the instrument may be performed in relation to conduct, events or circumstances that occurred before the section commences, subject to section 22 (the saving and transitional provisions for the original instrument) and section 7 of the Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislation Act 2003.

The regulations sit at the intersection of the Criminal Code and a long list of other Commonwealth, State and Territory statutes. The Criminal Code Act 1995 is the parent statute (section 3 authority). The Customs (Prohibited Imports) Regulations 1956 supply the licensing framework (section 4 definition of authorised person; subregulation 5(5) licences; subregulation 5(20) drug definition). The Therapeutic Goods Act 1989 identifies the Health Secretary. The Australian Federal Police Act 1979 supplies the AFP employee definition (paragraph 10(a) and 20B(a)). The Australian Security Intelligence Organisation Act 1979 supplies the ASIO employee and ASIO affiliate definitions. The Migration Act 1958, the Australian Citizenship Act 2007 and the Australian Passports Act 2005 frame the APS employee categories (paragraphs 10(h) and 20B(i)). The Director of Public Prosecutions Act 1983 supplies the OPP staff definition. The Crimes Act 1914 (Division 9A of Part IB) supplies the authorised officer definition.

State and Territory legal aid statutes are named in the chief executive officer of a legal aid commission definition (Legal Aid Commission Act 1976 (WA), Legal Services Commission Act 1977 (SA), Legal Aid Commission Act 1990 (Tas), Legal Aid Act 1990 (NT)). State and Territory preventative detention statutes are declared in section 8. State and Territory firearm laws are prescribed in section 20.

The regulations are also subject to the Acts Interpretation Act 1901 by force of paragraph 13(1)(a) of the Legislation Act 2003 (section 23(2) cross-reference).

The schedules are the operative content for drug offences. Anyone advising on a Part 9.1 offence must check the schedule item that corresponds to the substance, plant or precursor and the trafficable, marketable or commercial quantity threshold for the date of the conduct. The 2002 predecessor instrument had different items and structure; section 22 saves things done under the Criminal Code Regulations 2002, and section 23 confirms operation in relation to past conduct. The High Court in Director of Public Prosecutions (Cth) v Kola [2024] HCA 14 cites both the 2002 instrument's section 5D(1) and Schedule 4 item 41, and the 2019 regulations' sections 14(a) and (b) and Schedule 2 clause 1 item 43, for the same offence (importing cocaine), illustrating the cross-period traceability.

The section 19 import conditions are strict. A research facility employee must be an employee of an actual forensic, medical or scientific research facility. A licensed third-party importer can only import at the written request of a person or body in paragraphs 19(2)(a) to (e) and only if that person or body holds the import licence. The Health Secretary can require additional information in the written notice and can determine the way the notice is given.

The information-sharing classes under sections 10 and 20B are broad. Practitioners advising on confidentiality should map the recipient class against the prescribed list before disclosing post-sentence order information. The lists differ between continuing detention orders and community safety orders, and they can change as the regulations are amended.

The 48-hour notice period for young person legal representation under subsection 7(6) is a hard floor. AFP members and legal representatives need to plan around the issuing court's timetable: a delay in giving the prescribed information could derail the next court day.

Section 21 catches gases and reactive substances even where they are not on a specific dangerous goods list elsewhere in Commonwealth law. The qualifier "without exception" is important: there is no carrier-defence carve-out under this regulation for the listed categories.

A regulator considering a research import of a psychoactive substance must check whether the importer falls within section 19(2). A scientific researcher employed by a university research centre can rely on subsection 19(2)(e). The researcher must hold an import licence under subregulation 5(5) of the Customs (Prohibited Imports) Regulations 1956 and lodge a written notice with the Health Secretary or an authorised person specifying the substance, amount, purpose, the 30-day import window, name, licence number, employer name and any other information the Health Secretary requires.

A defendant charged with importing a commercial quantity of cocaine under section 307.1 of the Criminal Code is sentenced by reference to Schedule 2 of the Criminal Code Regulations 2019 (clause 1, item 43 in the database citation list referenced by Kola), which prescribes the substance and the commercial quantity. The same case requires the prosecution to prove agreement to import the prescribed quantity in conspiracy proceedings under section 11.5(1) of the Code, with absolute liability applying to the physical element under section 307.1(3) by force of section 11.5(7A) for any special liability provisions.

A NSW police officer carrying out a cross-border firearms trafficking investigation under section 360.2 of the Code must look to section 20 of the regulations to confirm that the Firearms Act 1996 (NSW) is a prescribed firearm law, and that the conduct alleged engages the offence as a result.

A young person aged 16 who is the subject of a control order proceeding has the protection of section 5 to 7 representation arrangements. The issuing court can request the NSW legal aid commission under section 6 to arrange representation; AFP members and AFP legal representatives must give the prescribed information at least 48 hours before the next court day.