Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 1999 (NO. 2) 1999 NO. 201

STATUTORY RULES 1999 NO. 201

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 1999 (No. 2)

Section 50 of the Customs Act 1901 ("the Act") provides in part that:

"(1)       The Governor-General may, by regulation, prohibit the importation of goods into Australia.

(2)       The power conferred by the last preceding subsection may be exercised -

       ....... (c) by prohibiting the importation of goods unless specified conditions

or restrictions are complied with.

(3)       Without limiting the generality of paragraph (2)(c), the regulations - ... (a) may provide that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations; and ..."

The Customs (Prohibited Imports) Regulations 1956 ("the Regulations") control the importation of the goods specified in the various regulations or the Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a specified person.

Purpose

These regulations introduce controls on the importation of counterfeit credit, debit and charge cards (item 8 of Schedule 1).

In addition, the regulations contain technical amendments that:

*       update references to Ministerial and Departmental titles, and make other necessary consequential amendments, to reflect the current policy responsibility for the particular import controls in regulations 4R and 4S (items 1 to 7 of Schedule 1).

Background

a) Counterfeit credit, debit and charge cards controls

Some estimates place the amount of annual domestic credit card and international fraud involving Australian credit cards in the hundreds of millions of dollars. There is also evidence that counterfeit cards are being manufactured overseas and brought into Australia to perpetrate fraud on Australian financial institutions. There are concerns that the Sydney 2000 Olympic Games may create an environment for the escalation of this fraud.

The criminal law dealing with possession and use of counterfeit cards is the responsibility of the States and Territories. However, through these regulations, the Australian Government has introduced tighter Commonwealth controls to permit the seizure and forfeiture of counterfeit credit cards if detected at the Customs barrier (item 8 of Schedule 1).

The regulations provide that the importation of counterfeit credit, debit and charge cards is prohibited unless a permission in writing to import the card has been given by the Minister and the permission is produced to a Collector.

b) Technical amendments

Regulation 4R deals with the importation of radioactive substances. The Minister for Health and Aged Care is now the only relevant Minister who has policy responsibility for these controls. The technical amendments made to regulation 4R were necessary to: i) update outdated Ministerial and Departmental titles; ii) remove references to the "Minister", as the Minister responsible for the Customs Act 1901 no longer has a policy role in granting permissions for these substances; and iii) make appropriate consequential amendments (items 1 to 6 of Schedule 1).

The second technical amendment amends regulation 4S of the Regulations. Regulation 4S deals with the importation of cigarette lighters. This regulation implements part of the Government's consumer affairs policy. As such. the Minister with relevant policy responsibility for these controls is now within the Treasury portfolio. A new definition of the term "Minister" is proposed for regulation 4S to ensure that it is the Minister administering Part V of the Trade Practices Act 1974 who is responsible for granting any permissions under the regulation (item 7 of Schedule 1).

The regulations are explained in greater detail in the Attachment.

The regulations commenced on gazettal.

ATTACHMENT

Regulation 1 - Name of regulations

Regulation 1 provides for the regulations to be named the Customs (Prohibited Imports) Amendment Regulations 1999 (No. 2).

Regulation 2 - Commencement

Regulation 2 provides that these regulations commenced on gazettal.

Regulation 3 - Amendment of Customs (Prohibited Imports) Regulations 1956

Regulation 3 provides that the Regulations are amended as set out in Schedule 1 -

Schedule 1 - Amendments

Items 1, 2, 3, 4, 5 and 6 of Schedule 1 - Various amendments of regulation 4R, importation of radioactive substances

Items 1, 2, 3, 4, 5 and 6 of Schedule 1 provide for technical amendments to existing regulation 4R to reflect the current policy responsibility for the particular import controls.

Regulation 4R deals with the importation of radioactive substances. When this provision was originally inserted by Statutory Rules 1989 No. 60, "authorised officers" could either be from the Australian Nuclear Science and Technology Organisation ("ANSTO") or from the Department of Community Services and Health, as it was then described. The relevant respective Ministers were given responsibility for appointing the authorised officers and for granting or refusing permissions. As at the time the Minister with responsibility for ANSTO was also the Minister with administrative responsibility for the Customs Act 1901, the term "Minister" was used in regulation 4R to refer to this Minister.

Then, Statutory Rules 1992 No. 413 inserted a new definition of the term "authorised office? which no longer included officers or employees of ANSTO. However, the references to the Minister responsible for ANSTO were not removed at the same time. These references have now been removed, as the Minister with administrative responsibility for the Customs Act 1901 no longer has a relevant policy responsibility for issuing permissions to import radioactive substances. Consequential amendments have been made to regulation 4R to take account of the fact that only one Minister should now be referred to in this regulation.

In addition, references to the relevant Minister and Department have been updated to take account of the Administrative Arrangements ordered on 21 October 1998. This means that references to the Minister for, and Department of, Human Services and Health will be changed to references to the Minister for, and Department of, Health and Aged Care, as appropriate.

Item 7 of Schedule 1 - subregulation 4S(5) - Importation of lighters

Item 7 of Schedule 1 inserts a new definition of "Minister" in regulation 4S. Regulation 4S deals with controls on the importation of cigarette lighters. It is designed to protect consumers from dangerous lighters. At the time this regulation was originally inserted in 1997 (by Statutory Rules 1997 No. 22) the Minister for Small Business and Consumer Affairs was also responsible for the Customs Act 1901, and so the term "Minister" was used in the regulation, without fully setting out the appropriate Ministerial title.

The Administrative Arrangements Order published on 21 October 1998 transferred responsibility for consumer affairs to the Treasury portfolio. This means that a new definition of the term "Minister" has been inserted in regulation 4S. The Minister administering Part V of the Trade Practices Act 1974 will now be responsible for granting any permissions under the regulation (item 7 of Schedule 1).

A note is also provided to alert readers to the need to refer to the Administrative Arrangements order to determine which Minister has the relevant responsibility.

Item 8 of Schedule 1 - New regulation 4T - Importation of counterfeit credit, debit and charge cards

Item 8 of Schedule 1 inserts a new regulation 4T into the Regulations.

It provides for the introduction of controls on the importation of counterfeit credit, debit and charge cards. Importation of such cards is prohibited unless a permission in writing to import the card has been given by the Minister and the permission is produced to a Collector (subregulation 4T(1)).

A permission may specify conditions or requirements to be complied with by the holder of the permission, and when this must occur (subregulation 4T(2)).

If the holder of a permission does not comply with a condition or requirement, the Minister may revoke the permission (subregulation 4T(3)).

In this new regulation, the term "Minister" is defined to mean the Minister administering the Australian Federal Police Act 1979. The Australian Federal Police is the relevant agency with policy responsibility for the new controls.

These controls are intended to apply to any credit, debit and charge cards that can be used to obtain credit or money, goods, services, or any other thing of value or any other property.

The ordinary meaning of the term "counterfeit" is intended to apply to these controls. This means that any non-genuine credit, debit and charge cards that are. for instance, made to imitate, and pass for genuine cards are intended to be subject to the new controls. Examples of the situations that are intended to be covered include where a card has a name and number that do not match the issuing authority's records, and where more than one card has the same number embossed on it.

The new controls are not absolute prohibitions, as there may be limited circumstances where the importation of such cards is desirable. For example, it is possible that law enforcement agencies, financial institutions or credit providers (such as the credit card companies) may seek to examine such cards to enable them to improve mechanisms to avoid counterfeiting. However, only the Minister will be able to give such a permission (paragraph 4T(1)(a)).