Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS AMENDMENT REGULATION 2000 (NO. 2) 2000 NO. 74

STATUTORY RULES 2000 No. 74

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs Amendment Regulation 2000 (No. 2)

Section 270 of the Customs Act 1901 (the 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 for giving effect to the Act.

The purpose of the Regulations is to amend the Customs Regulations 1926 (the Regulations) as a result of the enactment of the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000.

On 3 April 2000, the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Criminal Sanctions Act) received Royal Assent. The Criminal Sanctions Act amends the Customs Act 1901 to inter alia provide for increased criminal penalties for certain importation and exportation offences and to improve arrangements for disposal of abandoned goods.

The regulations insert a new regulation at 176A that prescribes a period of 90 days after which Australian Customs Service may dispose of certain abandoned goods (item 1 of Schedule 1).

These regulations further insert a new regulation, 176B, providing for the secure storage of records of an external search of a detainee and for a register to be kept of the details of any movement or removal of the records (item 1 of Schedule 1).

Regulation 179AA and new Schedule 1AA identify the goods that constitute tier 1 and tier 2 goods for the purpose of the new criminal sanctions for offences relating to their prohibited importation or exportation and prescribe their critical quantities. Tier 1 goods are specified performance enhancing drugs; and specified non narcotic drugs; and other specified goods. Where a critical quantity is specified in the Schedule the specified drug does not constitute a tier 1 good unless the quantity exceeds the critical quantity. Tier 2 goods include, amongst other items, certain military warfare items, weapons, firearms, ammunition and parts, counterfeit credit and debit cards, certain chemical compounds, anti personnel sprays and child pornography and child abuse items.

Details of the regulations are set out in the Attachment.

The regulations commenced on the commencement of the items of Schedule 2 of the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 which commenced on 26 May 2000.

ATTACHMENT

Customs Amendment Regulations 2000 (No. 2)

Regulation 1 - Name of regulations

Regulation 1 provides that the regulations are named the "Customs Amendment Regulations 2000 (No. 2)".

Regulation 2 - Commencement

Regulation 2 provides that the regulations commence on the commencement of the items of Schedule 2 to the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (the Criminal Sanctions Act).

Regulation 3 - Amendment of Customs Regulations 1926

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

Schedule 1 - Amendment

Item 1 - Regulation 176A

Item 1 amends the Regulations by inserting new regulation 176A to prescribe a period for disposal of certain abandoned goods. The Criminal Sanctions Act provides for the disposal of goods which the Collector has reason to believe are abandoned at a Customs place. The Collector is taken to have reason to believe that the goods have been abandoned if no one has claimed ownership of the goods within a specified period of time. The Criminal Sanctions Act provides for a period, not exceeding 120 days, to be prescribed after which the goods will be disposed of. The regulations prescribe a period of 90 days after which Customs may dispose of the goods (item 1 of Schedule 1).

Item 1 - Regulation 176B

Item 1 also inserts a new regulation, 17613, storage of records of an external search. The Criminal Sanctions Act provides for the retention and destruction of videotape or other electronic records, photographs or samples made or obtained during or as a result of an external search of a person.

The regulations make provision for the secure storage of any videotape or other electronic record of an external search, and any photograph or image pending its ultimate destruction. The regulation (item 1.1 of Schedule 1) applies to records of an external search of a detainee. In the regulations, 'records of an external search of a detainee' means any videotape or other electronic record of external search and any photograph, image or sample relating to the detainee mentioned in new paragraph 219RAF(1) (b), (c) or (d) of the Customs Act (item 1 (5) in Schedule 1). The records must be securely stored (item 1.2 of Schedule 1). A register of the details of any movement or removal of the records or any part of the records must be maintained, either manually or electronically, by a person responsible for the custody of the records (item 1(3) of Schedule 1). The details which are required to be maintained in relation to the movement or removal of the records or part of the records must include the name of the agency and of the person moving or removing the records or any part of the records; the reason for the removal or movement; the date of movement or removal; the date of return (if any) and the date of destruction of the records (item 1(4) of Schedule 1).

Item 2 - Tier 1 and Tier 2 Goods (Act s 233BAA, s 233BAB)

Item 2 inserts a new regulation that links and. explains the connections between the various parts of proposed Schedule 1AA and new sections of the Customs Act inserted by the Criminal Sanctions Act.

In the Customs Act, subsection 233BAA (1) provides that the regulations may provide that specified performance enhancing drugs; and specified non narcotic drugs; and other specified goods constitute tier 1 goods. New subregulation 179AA(1) provides that the goods in Part 1 of Schedule 1AA constitutes tier 1 goods.

The Customs Act, subsection 233BAA(3), allows for the regulations to prescribe a critical quantity of a drug, and the drug does not constitute tier 1 goods unless it is of a quantity that exceeds the critical quantity. Proposed subregulation 179AA(2) provides that the critical quantity of any tier 1 good is as specified in column 3 of the proposed schedule 1AA.

In the Customs Act, subsection 233BAB(1) provides that regulations may provide for specified goods to constitute tier 2 goods. Subregulation 179AA(3) provides that the goods specified in Part 2 of new Schedule 1 AA are the goods which have been identified as constituting tier 2 goods.

Item 3 - Schedule 1AA Tier 1 and Tier 2 Goods

Item 3 inserts Schedule 1AA tier 1 and tier 2 Goods. This schedule identifies those goods which are prescribed and for which a critical quantity may be prescribed.