Commonwealth Numbered Regulations - Explanatory Statements

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Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 2000 (No. 4)

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.

Section 50 of 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.

The Customs (Prohibited Imports) Regulations 1956 (the PI 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 an authorised person.

The purpose of the Regulations is to amend the PI Regulations to permit the importation of certain prohibited goods into Australia by sky marshals provided that certain requirements are met, including the immediate surrender of the goods to an authorised Customs officer.

During the Olympic Games, it is possible that foreign countries may wish to deploy "sky marshals" on flights to Australia. A "sky marshal" is a person who provides protection to the passengers and crew of an aircraft generally or to particular passengers such as heads of State or other dignitaries against a variety of security threats, including terrorism. These duties may require the sky marshal to be armed with a variety of weapons, including firearms, knives and anti-personnel sprays. Sky marshals will also usually wear protective clothing.

The importation of these goods into Australia is prohibited. The High Court has held that goods have been "imported" into Australia when they are brought within the limits of a port or airport for the purpose of landing them (R v. Bull (1973) 131 CLR 203). The Regulations will permit their importation by sky marshals where strict conditions are met, including that the Australian Government has given its prior agreement to the importation and that the goods are immediately surrendered to Customs for safe-keeping.

The Regulations are explained in more detail in the attachment.

The regulations commenced on gazettal.

Authority: Sections 50 and 270 of the Customs Act 1901


Customs Amendment Regulations 2000 (No. 4)

Regulation 1 - Name of Regulations

Regulation 1 provides that proposed Regulations are the Customs (Prohibited Imports) Amendment Regulations 2000 (No. 4).

Regulation 2 - Commencement

Regulation 2 provides that the proposed Regulations would commence on gazettal.

Regulation 3 - Amendment of Customs Regulations 1926

Regulation 3 provides that Schedule 1 amends the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations).

Schedule 1 - Amendment

Item 1 - After regulation 3B

Item 1 inserts a new regulation 3C into the Prohibited Imports Regulations.

New subregulation 3C(1) provides for sky marshals to import certain goods, firearms and other weapons, anti-personnel sprays and protective clothing, otherwise prohibited or restricted under the Prohibited Imports Regulations where 4 criteria are met. The criteria are that:

*       the goods must be imported into Australia in an aircraft by a sky marshal in the course of duty;

*       there must be an agreement in force between the relevant foreign Government and Australia regarding such importations;

*       immediately after the goods are imported, the sky marshal must surrender the goods to an authorised officer for secure storage until exportation; and

*       within 3 months of the date of importation, the goods are exported by a sky marshal representing the foreign country.

This last criterion ensures that the goods may be exported by any of the foreign country's sky marshals and not necessarily by the particular sky marshal who imported the goods.

New subregulation 3C(2) defines three terms for the purposes of new regulation 3C.

The first defines "airline" to mean a person who carries on a commercial air transport enterprise that involves offering or operating scheduled or chartered services.

"Authorised officer" is defined to mean an officer of Customs authorised in writing by the CEO to be an authorised officer for the purposes of this regulation.

Finally, "sky marshal" is defined to mean a person who travels on an aircraft to provide security for its passengers or crew and is employed or engaged by:

*       the Government of a foreign country; or

*       an agency of the Government of a foreign country; or

*       an airline.

New subregulation 3C(3) sets out when a sky marshals is to be taken to represent a foreign country. A sky marshal represents a foreign country if..

*       he or she is employed or engaged by the Government of the foreign country or an agency of that Government to carry out the duties of a sky marshal; or

*       where he or she is employed or engaged by an airline, the aircraft is registered under the law of the country.

Item 2 - Subregulation 4(1)

Item 2 amends subregulation 4(1) by omitting the words '(1AAA) and (1AAB)' and inserting "(1AAA), (1AAB) and (1AAC)".

item 3 - After subregulation 4(1AAB)

Item 3 inserts a new subregulation in regulation 4. Subregulation 4(1) of the PI Regulations prohibits the importation into Australia of goods specified in Schedule 2 unless the permission in writing of the Minister or an authorised person to import the goods has been granted. Schedule 2 goods include warfare equipment, daggers and other knives, devices for administering electric or acoustic shocks and protective clothing and body armour.

New subregulation (1AAC) provides that the prohibition in subregulation 4(1) does not apply to goods that are specified in items 8, 9, 12, 13, 14, 18D, 19, 19A, 21, 23 or 29A that meet the criteria mentioned in proposed new subregulation 3C(1). These items are warfare equipment (such as equipment to make smoke screens and gases designed to incapacitate persons); daggers; electric shock devices, acoustic shock devices; devices to discharge a gas or a liquid; ballistic knives; flick knives; knuckle dusters; goods incorporating a concealed knife or blade; shuriken throwing irons and protective clothing. Thus, a sky marshal may import such goods into Australia where all the conditions mentioned in new subregulation 3C(1) are met, including the immediate surrender of the goods to Customs.

Item 4 - After subregulation 4(2)

Item 4 adds new subregulation 4(3). Subregulation 4(2) provides that the importation of goods specified in Schedule 3 is prohibited unless the conditions, restrictions or requirements specified in the third column of that Schedule opposite the description of the goods are complied with.

New subregulation 4(3) provides that the prohibition in subregulation (2) does not apply to goods that are specified in item 1 of Schedule 3 and that meet the criteria mentioned in subregulation 3Q1). Goods specified in item 1 of Schedule 3 include anti-personnel sprays (such as capsicum spray).

Item 5 - Subregulation 4F(1)

Item 5 amends subregulation 4F(1) by omitting the words "(2) and (2A)" and inserting "(2), (2A) and (2B)".

Item 6 - After subregulation 4F(2A)

Item 6 adds new subregulation 4F(2B). Subregulation 4F(1) provides that, subject to subregulations (2) and (2A), the importation of a firearm, a firearm accessory, a firearm part, a firearm magazine, ammunition, a component of ammunition or a replica unless:

(a) the firearm etc is an article to which an item of Part 2 of Schedule 6 applies; and

(b) the importation is in accordance with the requirements set out in column 3 of the item.

New subregulation (2B) provides that subregulation (1) does not apply to the importation of a firearm etc that meets the criteria mentioned in subregulation 3C(1).

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