Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 108

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 other business relating to the Customs.

Sections 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 PI Regulations) control the importation of specified goods for the purposes of the Act.

The purpose of the amending Regulations is to introduce new import restrictions on synthetic greenhouse gases and certain air-conditioning and refrigeration equipment and to clarify existing restrictions on ozone depleting gases.

Existing subregulations 5K(1) and 5K(3) of the PI Regulations prohibit the importation of ozone depleting substances mentioned in Schedule 10 to the PI Regulations unless a licence to import the goods has been granted under the Ozone Protection Act 1989 (the OP Act) and the licence is produced to a Collector.

The OP Act was amended by the Ozone Protection and Synthetic Greenhouse Gas Legislation Amendment Act 2003 (the Amendment Act) and renamed the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the OPSGGM Act).

The existing restrictions on ozone depleting substances complement restrictions on the importation of ozone depleting substances imposed by the former OP Act. This Act controlled the importation of ozone depleting substances but did not provide for these prohibitions to be enforced at the customs border. Ozone depleting substances were therefore included in the PI P Regulations to make them prohibited imports.

The renamed OPSGGM Act contains the same controls on the importation of ozone depleting substances as the former OP Act, with some minor amendments, and has also introduced new restrictions on such substances.

The amending Regulations amend the PI Regulations to reflect the new and amended import restrictions in the OPSGGM Act.

The amending Regulations insert new substances, consisting of a range of synthetic greenhouse gases and an ozone depleting substance, into Schedule 10 to the

PI Regulations. They also substitute new regulation 5K for existing regulation 5K of the PI Regulations.

New regulation 5K prohibits the importation, without a licence, of a substance mentioned in Schedule 10 to the PI Regulation as well as certain air-conditioning and refrigeration equipment. New regulation 5K also sets out new exceptions to the import restrictions.

Details of the amending Regulations are in Attachment A.

The amending Regulations commenced on the date of their notification in the Gazette.

0401409A

ATTACHMENT A

DETAILS OF THE CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2004 (No. 2)

Regulation 1 - Name of Regulations

Regulation 1 provides that the Regulations are the Customs (Prohibited Imports) Amendment Regulations 2004 (No. 2).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on the date of their notification in the Gazette.

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

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

SCHEDULE 1 - AMENDMENTS

Item 1 - Definition of CFC

Item 1 defines CFC (chlorofluorocarbon) to mean a substance mentioned in Part 1 of Schedule 10, whether existing alone or in a mixture. This term is used in new regulation 5K.

Item 2 - Definitions of HCFC and HFC

Item 2 defines HCFC (hydrochlorofluorocarbon) and HFC (hydrofluorocarbon) to mean a substance mentioned in Part 5 and Part 9 of Schedule 10 respectively, whether existing alone or in a mixture. These terms are used in new regulation 5K.

Item 3 - Definition of PFC

Item 3 defines PFC (perfluorocarbon) to mean a substance mentioned in Part 10 of Schedule 10, whether existing alone or in a mixture. This term is used in new regulation 5K.

Item 4 - Definition of SGG

Item 4 defines SGG (synthetic greenhouse gas) to mean a HFC or a PFC. This term is used in new regulation 5K and is defined in the same manner as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the OPSGGM Act).

Item 5 - Regulation 5K

Item 5 substitutes new regulation 5K.

New subregulation 5K(1) prohibits the importation of a substance to which regulation 5K applies as well as pre-charged equipment unless a licence to import that substance granted under the OPSGGM Act, or a copy of that licence, is produced to the Collector. Importations from external Territories are specifically excluded as these are not subject to the restrictions in the OPSGGM Act.

New subregulation 5K(2) specifies that this regulation applies to a substance mentioned in column 2 of an item in Schedule 10.

In accordance with section 9 of the OPSGGM Act, new subregulation 5K(3) makes it clear that subregulation 5K(1) does not apply to the importation of a substance mentioned in column 2 of an item in Schedule 10 that is:

(a)       contained in goods (except pre-charged equipment) that will use the substance in the operation of the goods; or

(b)       present in goods because the substance was used in the manufacturing process for the goods.

New subregulation 5K(4) provides an exception to the prohibition with respect to a CFC, HCFC, or SGG on a board a ship or aircraft that is used exclusively to service or maintain air-conditioning or refrigeration equipment during international journeys. This exception mirrors section 12B of the OPSGGM Act.

New subregulation 5K(5) provides an exception to the prohibition with respect to a SGG that is imported for use as a cover gas in the manufacture and casting of magnesium. This exception is similar to the exception prescribed in regulations 3 and 3A of the Ozone Protection And Synthetic Greenhouse Gas Management Regulations 1995 pursuant to paragraph 13(1A)(b) of the OPSGGM Act.

New subregulation 5K(6) provides an exception to the prohibition with respect to pre-charged equipment that is a personal or household effect of a passenger, or a member of the crew, of a ship or aircraft, consistent with paragraph 13(6A)(b) of the OPSGGM Act.

New subregulation 5K(7) defines pre-charged equipment to mean air-conditioning or refrigeration equipment that contains a HFC or HCFC, as well as motor vehicles that contain such equipment.

Item 6 - Schedule 10

Item 6 inserts new Parts 8, 9 and 10 into Schedule 10. Part 8 lists a single substance, bromochloromethane, which is an ozone-depleting substance. Part 9 sets out a range of HFCs and Part 10 sets out a range of PFCs.