Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 72

Subsection 270(1) 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 or for the conduct of any business relating to Customs.

The purpose of the Regulations is to allow the importation of semi-automatic paintball markers and their parts into Australia.

A paintball marker is a firearm that uses compressed gas to propel a paintball. It is used for recreation, sports competition or occupational purposes. A paintball is a round pellet that is filled with a type of marking dye or paint, covered by a gelatine shell.

Section 50 of the Act provides in part that the Governor-General may, by regulation, prohibit the importation of goods into Australia and that the power may be exercised by prohibiting the importation of goods absolutely or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of certain goods. The Principal Regulations variously prohibit the importation of specified goods absolutely, or make importation subject to the permission of a Minister or an authorised person.

After the adoption of the 1996 National Firearms Agreement, Commonwealth, State and Territory Ministers with responsibility for policing matters agreed that the Principal Regulations be amended to prohibit the importation of semi- and fully automatic firearms other than for specified purposes. Paintball markers were caught within this prohibition. Paintball enthusiasts were therefore allowed to import only single-shot and repeat (pump) action paintball markers.

The use of semi-automatic paintball markers is not prohibited by those States and Territories that permit paintball, and may be used in competition within Australia. The prohibition on importing semi-automatic paintball markers has caused frustration for paintball players and field operators who argue that paintball markers are not dangerous and that the current restrictions imposed by the Principal Regulations are detrimental to the potential growth of the sport. Though semi-automatic paintball markers (including parts) cannot be imported into Australia, semi-automatic paintball markers manufactured in Australia can be legally purchased in those States and Territories where paintball is permitted.

To better align the Principal Regulations regarding semi-automatic paintball markers with State and Territory legislation, in November 2003 Police Ministers agreed that the Principal Regulations should be amended to allow the importation of semi-automatic paintball markers (and their parts) and that their importation be regulated by the 'Police authorisation test' found in Part 1 of Schedule 6 to the Principal Regulations.

The 'Police authorisation test' is one of a number of tests against which the importation of firearms or firearms accessories may be measured to determine whether importation of a particular item is permitted. The 'Police authorisation test' is administered by State or Territory police and requires that a person/importer must be licensed or authorised in that State or Territory to possess the article being imported before import permission will be granted. This test is presently utilised for the importation of single-shot and repeat (pump) action paintball markers.

Under the 'Police authorisation test' all firearms, including paintball markers, must be safety tested. Exemption from safety testing has not been sought for paintball markers. However, given their unique nature and technical characteristics, a modified safety/identification test specifically designed for paintball markers has been inserted under item 1 of Part 3 of Schedule 6 to the Principal Regulations (Safety requirements for firearms). This ensures that imported paintball markers have appropriate safety features and are not capable of fully automatic operation. The absolute prohibition of a paintball marker that has a fully automatic firing capability continues.

Finally, there is evidence that some international paintball manufacturers are producing markers which bear a close resemblance to prohibited military style assault rifles, machine guns, machine pistols and automatic firearms. When the gas canister is detached from these paintball markers it is conceivable that they could be used in criminal activity, in the same manner as replica firearms. The Regulations prohibit the importation of these types of paintball markers into Australia.

Details of the amendments are set out in the Attachment.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The amendments to the Regulations will commence on the date of their notification in the Gazette.

Statutory Rule Draft No:

ATTACHMENT

Customs (Prohibited Imports) Amendment Regulations 2004 (No. 1)

Regulation 1 - Name of Regulations

Regulation 1 provides for the regulations to be named the Customs (Prohibited Imports) Amendment Regulations 2004 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides for the regulations to commence on the date of their notification in the Gazette.

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

Regulation 3 provides for the Customs (Prohibited Imports) Regulations 1956 to be amended as set out in Schedule 1.

Schedule 1 Amendments

Item 1 - Schedule 6, Part 2, item 1 column 2

Item 1 omits the words 'Single shot airgun designed exclusively to fire paintballs' and 'Repeating action airgun designed exclusively to fire paintballs' from a class of firearms for which certain import conditions apply. These two types of firearms are covered in a new item 14A, described below.

Item 2 - Schedule 6, Part 2, item 5, column 2

Item 2 omits the figures '2 or 3' and inserts '2, 3 or 14A' to apply certain import conditions to firearms and accessories described in new item number 14A.

Item 3 - Schedule 6, Part 2, after item 14

Item 3 inserts a new item 14A, which deals solely with paintball markers, into Part 2 of Schedule 6. Column 2 of item 14A describes what type of paintball markers and parts are permitted to be imported into Australia. There will also be a requirement that the paintball marker not have a fully automatic firing capability or bear a resemblance to a submachine gun, assault rifle, machine pistol or handgun that has an automatic firing capability. Column 3 of item 14A describes the conditions on the import of these firearms, including compliance with the 'Police authorisation test', the need to meet the safety requirements set out in item 1 of Part 3, Schedule 6 and the requirement to bear a unique serial number.

Item 4 - Schedule 6, part 2, item 20, column 2

Item 4 omits figures '9 or 12' and insert '9, 12 or 14A' to include ammunition (paintballs) for item 14A (paintball markers).

Item 5 - Schedule 6, Part 3, subitem 1.5

Item 5 replaces the existing subitem 1.5 to include a reference to the new subitem 1.10 (modified safety identification test for paintball markers) described below.

Item 6 - Schedule 6, Part 3, after subitem 1.9

Item 6 inserts new subitem 1.10 which is a modified safety/identification test designed specifically for paintball markers.