Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2001 (NO. 1) 2001 NO. 60

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 60

Issued by the authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 2001 (No. 1)

Section 270 of the Customs Act 1901 (the Act) provides in part that the Governor-General may make regulations consistent 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.

(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 ‘Principal Regulations’) control the importation of the goods specified in the various regulations or the Schedules to the Principal Regulations, by prohibiting importation absolutely, or by making importation subject to the permission of a Minister or an authorised person.

The purpose of the Regulations is to extend the provisions for importation of handguns by firearms dealers and to make additional minor amendments. The new provisions allow dealers to hold a limited number of newly imported handguns for sale to authorised end-users or certified firearm dealers. Dealers can apply to the CEO or an authorised officer of Customs for a certificate to enable them to hold a specified number of handguns as stock for a specified period.

In addition the Regulations amended a number of provisions which were unnecessarily restrictive or were no longer required.

In particular, the Regulations:

•       introduce importation control for handgun frames;

•       remove firearm controls from the importation of antique (pre-1900) handguns;

•       permit temporary firearm imports for a range of UN and government-related purposes;

•       extend the range of firearm articles that are able to be transhipped;

•       repeal provisions specific to the Sydney 2000 Olympic and Paralympic Games that are no longer required.

The Regulations also enable commercial organisations and dealers who have imported firearms under the official purposes test to sell firearms directly to a government interested in buying an article imported for demonstration, inspection, evaluation, training or testing purposes.

The Regulations remove restrictions under the ‘specified purposes test’ of Schedule 6 of the Principal Regulations to permit temporary importation of certain firearms for a wider range of purposes, such as for modification, testing, training, research or development.

Details of the Regulations are set out in the Attachment.

The Regulations commence on 9 April 2001.

Attachment

Regulation 1 – Name of Regulations

The name of these Regulations is the Customs (Prohibited Imports) Amendment Regulations 2001 (No. 1).

Regulation 2 – Commencement

Regulation 2 provides that these amendments commence on gazettal.

Regulation 3 – Amendment of the Customs (Prohibited Imports) Regulations 1956

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

Regulation 4 – Transitional

This Regulation provides transitional arrangements regarding control of category H articles (handguns) imported under Item 7 of Part 1 of Schedule 6 (‘dealer test – category H article’) in the Principal Regulations.

Item 5 of Part 3 of Schedule 6, which provides conditions for the importation of handguns under the dealer test as amended by Item 24 of these Regulations applies to the importation of category H articles imported after the commencement of the Regulations.

In relation to category H articles imported for demonstration and testing before the commencement of the Regulations, the existing subitem 5.3 of the Principal Regulations does not apply. Category H articles imported under the former dealer test for a purpose other than demonstration and testing, are subject to the conditions in subitem 5.2 of Part 3 of Schedule 6 of these Regulations as in force prior to the amending Regulations.

Schedule 1 – Amendments

Part 1 - Amendment of Regulation 4F

Item 1 amends subregulation 4F(3) to take account of a new condition. It refers to Part 3 (other than item 1) of Schedule 6, rather than to Items 2, 3 and 4 of Part 3.

Part 2 – Amendment of Schedule 6, Part 1

Item 2 – Paragraph 2.2(d)

Item 2 makes changes to the specified purposes test. It permits importation for the purposes of modification or testing, or for training, research or development, in addition to importation for repairs.

In addition to the importation of articles owned by a foreign government, Item 2 provides for the importation of articles under a contract in force with the government of the Commonwealth, State or Territory; a country other than Australia; or the United Nations.

Item 3 and 4 – Subparagraph 2.2(e)(ii) and Paragraph 2.2(f)

Item 3 and Item 4 omit paragraph 2.2(f) and the reference to paragraph 2.2(f) contained in 2.2(e)(ii). These provisions existed specifically for the purposes of the Sydney 2000 Olympic and Paralympic Games and no longer apply.

Item 5 – Paragraph 4.1 (a) and (b)

Item 5 omits the reference in the police authorisation test to ‘relevant police officer’, replacing it with ‘relevant police representative’.

Item 6 – Paragraph 4.1(c)

Item 6 omits a reference to subitem 4.3, a provision specific to the Olympic and Paralympic Games.

Item 7 – Paragraph 4.1(c)

Item 7 provides that certification of importers of category H articles under the police authorisation test will be carried out by a ‘relevant police representative’ rather than a ‘relevant police officer’.

Item 8 – Subitems 4.3 and 4.4

Item 8 omits subitems 4.3 and 4.4, provisions specific to the Olympic and Paralympic Games.

Item 9 – Item 7, Subitem 7.1

Item 9 amends the dealer test for category H articles. Previously, the importer was required to obtain written permission to import from a relevant police officer and then produce this to a Collector. Under the changes, the importer is required to obtain a statement from a relevant police representative certifying that the person holds a current and valid licence or authorisation in accordance with the law of the State or Territory where the person carries on a business as a firearm dealer, to possess and sell category H articles. The importer must give the statement to a Collector at or before importation.

Part 3 - Amendments of Schedule 6, Part 2

Item 10 – Item 5, column 3

Item 10 provides that certain firearm accessories may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these accessories is now possible.

Item 11 - Item 8, column 3

Item 11 provides that accessories for category C firearms may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these accessories is now possible.

Item 12 – after Item 9A

Item 12 inserts a new provision, Item 9B, to cover the importation of a frame or receiver for a firearm to which Item 9 (handguns) applies. It requires the importation to comply with at least one of either the official purposes test; the specified purposes test; the specified person test; the Police authorisation test; or the dealer test.

Item 13 – Item 10, column 2

Item 13 replaces the reference to ‘firearm part’ with ‘firearm part (other than a frame or receiver)’ to accommodate the new Item 9B.

Item 14 – Item 11, column 3

Item 14 provides that firearm accessories for Item 9 firearms (handguns) may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these accessories is now possible.

.

Item 15 – Item 14, column 3

Item 15 provides that firearm accessories other than those for firearms under Items 1, 2, 3, 6 and 9 of Part 2 may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these accessories is now possible.

Item 16 – Item 18, column 3

Item 16 provides that devices which increase the capacity of an integral or tubular firearm magazine may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these devices is now possible.

Item 17 – Item 19, column 3

Item 17 provides that firearm ammunition (components of which have a projectile of a certain type or which may defeat soft body armour or bullet resistant material) for Items 1, 2, 3, 6, 9, and 12 firearms may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of this ammunition is now possible.

Item 18 – Item 20, column 3, paragraph (b)

Item 18 provides that ammunition for firearms described under Items 1, 2, 3, 6, 9, and 12 of Part 2, (other than ammunition to which Item 19 applies) may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of this ammunition is now possible.

Item 19 – Item 21, column 3

Item 19 provides that projectile components of ammunition for firearms described under Items 1, 2, 3, 6, 9, and 12 of Part 2 may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these components is now possible.

Item 20 – Item 22, column 3

Item 20 provides that a component of ammunition (designed to defeat soft body armour or bullet resistant material) for Item 9 firearms (handguns) may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these components is now possible.

Item 21 – Item 23, column 3, paragraph (b)

Item 21 provides that a component of ammunition for firearms under Items 1, 2, 3, 6, 9, and 12 of Part 2, (other than those described under Items 21 and 22) may be imported under the specified purposes test. The effect of adding this option is that transhipment (entry to an Australian port on the way to another destination) of these components is now possible.

Part 4 – Amendments of Schedule 6, Part 3

Item 22 – Paragraph 2.1(a)

Item 22 amends the conditions of the specified purposes test to provide that an article may be destroyed as an alternative to exporting that article.

Item 23 – Paragraphs 3.2(a), 3.3(a) and 3.4(a)

Item 23 amends the condition under the official purposes test requiring certain articles to be exported or destroyed. It now also allows these articles to be acquired by the government of the Commonwealth, State or Territory.

Item 24 – Item 5 - Dealer Test – category H article

Item 24 revises the conditions of the dealer test for handgun importations.

Proposed new subitem 5.1 defines a ‘category H (dealer stock) article’ as a category H article imported under the dealer test in Item 7 of Part 1 and held by the importer or a person who acquired it from the importer. It also defines ‘licensed firearm dealer’ as a licensed firearm dealer for category H articles.

Proposed new subitem 5.2 provides that the importation of a category H article is subject to compliance with the conditions set out in subitems 5.3, 5.4, 5.5 and 5.6.

Proposed new subitem 5.3 requires the importer to store a category H article with a Collector unless the importer produces a certificate stating that they are certified for stock purposes for a specified number of category H (dealer stock) articles. This must be accompanied by evidence that the release of the article will not result in them holding more category H (dealer stock) articles than they are certified to hold. The importer must also provide a written declaration that they hold a valid and current licence or authorisation in accordance with State or Territory law to possess category H articles.

Proposed new subitem 5.4 provides that in addition to disposing of a category H article to a person (other than a dealer) licensed or authorised under State or Territory law to possess the article, an importer may dispose of the article to a person certified to hold a specified number of category H (dealer stock) articles for stock purposes. It also allows the importer to dispose of the article by exporting it.

Proposed new subitem 5.5 provides that an importer who has disposed of an article in accordance with subitem 5.4, must, when later seeking release of category H (dealer stock) articles, produce a written declaration setting out details of the previous disposal. If the disposal was to a person certified to hold category H (dealer stock) articles for stock purposes, the declaration must include evidence that the person holds a valid and current licence or authorisation in accordance with State or Territory law to possess category H articles and that the acquisition will not result in them holding more category H (dealer stock) articles than they are certified to hold.

Proposed new subitem 5.6 requires an importer who disposes of a category H (dealer stock) article to a person certified to hold category H (dealer stock) articles to provide the CEO or an authorised officer of Customs with a copy of the declaration relating to the disposal. Unless already provided to the Collector, this must be provided within 7 days after the disposal.

Proposed new subitem 5.7 provides that a person is ‘certified for stock purposes’ for a specified number of category H (dealer stock) articles if the person is a licensed firearm dealer and holds a current and valid certificate issued by the CEO or an authorised officer allowing them to hold that number of category H (dealer stock) articles for a specified period.

Proposed new subitem 5.8 provides that a licensed firearm dealer may apply to the CEO or an authorised officer for a certificate to hold a specified number of category H (dealer stock) articles for stock purposes for a specified period.

Proposed new subitem 5.9 requires a person applying for a certificate under subitem 5.8 to provide a copy of the relevant State or Territory licence authorising the possession and sale of category H articles. There are additional requirements for a person wishing to hold more than 10 category H articles for stock purposes. These requirements include details of disposals, number of articles likely to be required in the next 6 months, and statements regarding storage and record keeping. The person may also be subject to a criminal record check.

Proposed new subitem 5.10 provides that where the CEO or an authorised officer is satisfied from a person’s application that it is appropriate for the person to hold a number of category H (dealer stock) articles for stock purposes, the officer may issue a certificate to that effect for a specified period.

Proposed new subitem 5.11 requires a person certified for stock purposes for a specified number of category H (dealer stock) articles to notify the CEO or an authorised officer in writing of any change in circumstances affecting their business as a firearm dealer.

Proposed new subitem 5.12 provides that the CEO or an authorised officer may revoke a certificate issued to a person under subitem 5.10 on a number of grounds. A certificate may be revoked if the person ceases to be a licensed firearm dealer; fails to meet the storage and security requirements under the relevant State and Territory laws; makes a false or misleading statement in relation to the certificate or a declaration; holds more category H (dealer stock) articles for stock purposes than certified to hold; has been convicted of a firearms-related offence committed within the previous 10 years or has failed to inform the CEO or an authorised officer of any change in the person’s circumstances in relation to their business as a firearms dealer. The CEO may also have regard to any other relevant matter (for example a conviction involving fraudulent conduct) in deciding that it is not appropriate for the person to hold any category H articles for stock purposes.

In the case of a person who is certified to hold more than 10 category H (dealer stock) articles for stock purposes, the certificate may be also be revoked if this number is not appropriate, having regard to the average monthly number of category H articles disposed of by the person in the previous six months; and the number of category H articles likely to be disposed of by the person in the following 6 months.

Proposed new subitem 5.13 defines ‘previous relevant disposals’ in relation to a person who has applied under subitem 5.8 to hold more than 10 category H (dealer stock) articles for stock purposes. The number is based on the average monthly disposals of these articles by the applicant over a 6-month period.

Proposed new subitem 5.14 preserves the application to Item 5, Part 4 of the Spent Convictions Scheme under Part VIIC of the Crimes Act 1914.

Proposed new subitem 5.15 provides that any person may disclose information to the CEO or an authorised officer in relation to Item 5, Part 4 notwithstanding any contrary provision of a State or Territory law.

Part 5 - Amendments of Schedule 6, Part 4 (interpretation)

Item 25 – Item 1B – meaning of relevant police representative

Item 25 defines ‘relevant police representative’ as being the chief police officer for a State or Territory (eg the Commissioner of the police force); or a person authorised in writing to act on behalf of that chief police officer.

Item 26 – subitem 3A.1 – meaning of category H article

Item 26 replaces the existing subitem 3A.1 definition of a ‘category H article’ so that it includes a frame or receiver mentioned in item 9B of Part 2, and excludes firearms, frames or receivers manufactured before 1 January 1900.

Item 27 – item 5.1(b) – meaning of licensed firearms dealer

Item 27 expands the reference to a person who is licensed to sell the article in the course of business, to include ‘dispose of it, or deal with it for other commercial purposes in the course of business’.

Item 28 – further amendments – relevant police officer

Item 28 amends a number of provisions by omitting ‘relevant police officer’ and replacing it with ‘relevant police representative’.


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