EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 355

 

Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2009 (No. 9)

 

 

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, or as may be necessary or convenient to be prescribed, for giving effect to the Act.

 

Section 233BAA of the Act provides in part that the regulations may provide that specified goods constitute tier 1 goods. It is an offence under section 233BAA to import or export such goods. These offences are punishable by a fine not exceeding 1000 penalty units or imprisonment for up to five years, or both. Goods cannot be listed as tier 1 goods unless their importation or exportation is prohibited under the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) or the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) respectively. Part 1 of Schedule 1AA to the Customs Regulations 1926 (the Principal Regulations) currently lists those goods that are tier 1 goods for the purposes of section 233BAA.

 

The purpose of the amending Regulations is to amend the Principal Regulations to prescribe commercial quantities of objectionable goods (for example, material containing excessive sexual violence, or that promotes or incites crime or violence), and objectionable goods imported for particular purposes, as tier 1 goods. This allows the imposition of a term of imprisonment of up to five years.

 

The importation of objectionable goods is prohibited by regulation 4A of the PI Regulations and the exportation of objectionable goods is prohibited by regulation 3 of the PE Regulations. The criteria for determining objectionable goods are consistent with the RC (Refused Classification) criteria in the National Classification Code and the Classification (Publications, Films and Computer Games) Act 1995.

 

A commercial quantity of objectionable goods is defined in the amending Regulations as 25 or more objectionable goods. Individuals importing small quantities of objectionable material for personal use are subject to the pre-existing maximum penalty of 1000 penalty units but are not liable for imprisonment. This quantity also takes into account those Commonwealth, state and territory classification offences where the quantities are used as prima facie evidence of intent to sell, in offences for supplying, and in offences for a commercial quantity. These offences variously apply to specific quantities of publications, films or computer games, ranging from three to 50.

 

The amending Regulations also prescribe the particular purposes. These purposes concern actions with a commercial end. Listing objectionable goods imported for commercial purposes as tier 1 goods removes the opportunity for commercial adult industry operators to avoid the proposed import control relating to 25 or more objectionable goods by importing smaller quantities of such goods. For example, an adult industry operator that imported one objectionable good to sell it, or display it in public, could still be liable for up to five years imprisonment.

 

Consultation on the amending Regulations was undertaken with the Attorney‑General's Department and the Australian Customs and Border Protection Service. No further consultation was necessary as the amending Regulations impose no increased compliance costs for legitimate business. The amending Regulations have no to low regulatory impacts on business and individuals.

 

The amending Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.