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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2005 (NO. 4) (SLI NO 249 OF 2005)
Select Legislative Instrument 2005 No. 249
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2005 (No. 4)
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 Customs.
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 the goods specified in the various regulations and the Schedules to the Principal Regulations, by prohibiting importation absolutely, or by making importation subject to a permission or licence.
Schedule 2 to the Principal Regulations specifies goods the importation of which is prohibited unless the permission in writing of the Minister or an authorised person to import the goods has been granted.
The purpose of the amending Regulations is to substitute item substitute item 29A of Schedule 2 to the Principal Regulations, which previously restricted the importation of protective jackets and vests, body armour, and other articles of apparel, that are designed to resist the penetration of a projectile discharged from a firearm.
The previous item 29A was inserted into Schedule 2 in March 2002 in accordance with the uniform prohibited weapons list developed pursuant to resolutions of the Australasian Police Ministers’ Council (APMC) in 1998. In October 2002, the Australian Customs Service (Customs) seized a “body armour, fragmentation protective vest” which, in their view, fell within the terms of item 29A. The importer was prosecuted under paragraph 233(1)(b) of the Act for importing a prohibited import. In a decision handed down by the County Court of Victoria on
13 May 2004, R v Younan - appeal number AP-404068, it was held that the vest was designed for protection against non-deforming fragments emitted from explosive devices and not designed to resist penetration of a projectile discharged from a firearm and hence it did not fall within the terms of item 29A.
The amending Regulations substitute a broader item 29A. New item 29A covers certain anti-ballistic articles able to be worn, either independently or as part of something else, that are designed or adapted to protect the human body from the effects of a weapon. Such articles include body armour, protective jackets, protective vests, protective suits, anti-ballistic articles or any other similar articles. Anti-ballistic articles used for eye or hearing protection are excluded from the restrictions.
As well as covering articles that are designed to protect against non-deforming fragments emitted from explosive devices, new item 29A ensures that parts of these articles are restricted, for example anti-ballistic plates designed to fit in protective jackets.
No consultation was undertaken in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements. Prior to the May 2004 Court case, and in line with the framework agreed through the Australasian Police Ministers’ Council, Customs applied the regulation to control all body armour, protective jackets, protective vests and the like, on importation into Australia, irrespective of their specific anti-ballistic properties.
The amending Regulations commence on the day after they are registered.