EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 246

 

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 2007 (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 for giving effect to the Act.

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 Schedules, by prohibiting importation absolutely, or by making importation subject to a permission or licence.

The purpose of the Regulations is to introduce a new importation prohibition on plastic explosives. The new prohibition complements amendments made to the Criminal Code Act 1995 by the Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2007, which gives effect to Australia’s international obligations under the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991.

The Regulations add a new regulation to the Principal Regulations to prohibit the importation of plastic explosives, other than those plastic explosives included in a class of goods described in Schedule 2 to the Principal Regulations, unless the Attorney-General or a person authorised by the Attorney-General has given permission to do so.

The Regulations also introduce other provisions with respect to the imposition of conditions on the permission and the revocation of a permission under certain circumstances.

Details of the Regulations are outlined in the Attachment.

No consultation was undertaken specifically in relation to the Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.

The Regulations commence on the commencement of Schedule 1 to the Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2007.

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ATTACHMENT

DETAILS OF THE CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2007 (No. 4)

Regulation 1 - Name of Regulations

This regulation provides that the title of the Regulations is the Customs (Prohibited Imports) Amendment Regulations 2007 (No. 4).

Regulation 2 - Commencement

This regulation provides for the Regulations to commence on the same day as the commencement of Schedule 1 to the Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2007. This Act amends the Criminal Code Act 1995 (the Criminal Code) by inserting a new Subdivision B in Division 72. New Subdivision B creates offences relating to plastic explosive and gives effect to Australia’s international obligations under the Convention on the Marking of Plastic Explosives for the Purposes of Detection, done at Montreal on 1 March 1991.

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

This regulation provides that the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) are amended as set out in Schedule 1 to the Regulations.

SCHEDULE 1 - AMENDMENTS

Item [1] - After regulation 4A

This item inserts a new regulation 4AA into the Principal Regulations. New regulation 4AA restricts the importation of plastic explosives into Australia.

New subregulation 4AA(1) prohibits the importation of plastic explosives into Australia unless permission to import the good has been granted by the Attorney-General or an authorised person and the permission is produced to the Collector. ‘Collector’ is defined in subsection 8(1) of the Customs Act 1901 (the Act) to mean the Chief Executive Officer of Customs, the Regional Director of a State or Territory or any officer doing duty in the matter in relation to which the expression is used.

New subregulation 4AA(2) provides that if an authorised person formed an opinion that a permission under new subregulation 4AA(1) should not be granted, the authorised person must refer the application to the Attorney-General who may grant, or refuse to grant the permission.

New subregulation 4AA(3) enables the Attorney-General or an authorised person to specify conditions or requirements which must be complied with by the holder of the permission and when the holder must comply with a condition or requirement.

New subregulation 4AA(4) gives the Attorney-General or an authorised person the power to revoke a permission where the holder does not comply with a condition or requirement specified under new subregulation 4AA(3). New subregulation 4AA(4) provides that the revocation must be in writing.

New subregulation 4AA(5) makes it clear that the power of revocation is not limited to circumstances where the holder has been charged with an offence under subsection 50(4) of the Act for not complying with the condition or requirement. Subparagraph 50(3)(b)(iv) of the Act provides that the regulations may make provision for the revocation of a permission that is granted subject to a condition or requirement, whether or not the holder of the permission is charged with an offence against subsection 50(4) of the Act.

New subregulation 4AA(6) provides that new regulation 4AA does not apply to plastic explosives included in a class of goods described in Schedule 2 to the Principal Regulations. For example, new regulation 4AA would not apply to plastic explosives included in the class of goods ‘explosives or incendiary materials which are designed or adopted for warfare or like purposes’ which is specified in paragraph (c) of item 8 of Schedule 2 to the Principal Regulations. Permission is already required under regulation 4 of the Principal Regulations to import goods included in a class of goods described in Schedule 2 to the Principal Regulations.

New subregulation 4AA(7) defines two terms used in the regulation, being ‘authorised person’ and ‘plastic explosive’. ‘Authorised person’ is defined to mean an SES employee, or an acting SES employee, of the Attorney-General’s Department who is authorised in writing by the Attorney-General to be an authorised person for the purposes of new regulation 4AA. The term ‘plastic explosive’ has the same meaning as in new Subdivision B of Division 72 of the Criminal Code. Section 72.36 in new Subdivision B of Division 72 of the Criminal Code defines ‘plastic explosives’ to mean an explosive product (including an explosive product in flexible or elastic sheet form) that is:

(a) formulated with:

(i) one or more high explosives which in their pure form have a vapour pressure less than 10¯⁴ Pa at a temperature of 25°C; and

(ii) a binder material; and

(b) as a mixture, malleable or flexible at normal room temperature.