Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) 1991 NO. 248

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 248

CUSTOMS ACT 1901

ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS

CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT)

Section 50 of the Customs Act 1901 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 sub-section 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 ("the Regulations") control the importation of the goods specified in the various Regulations or the Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister of State or a specified person.

Background

The Statutory Rules contain several amendments to the Regulations which:

i)       remove import controls on filled milk;

ii)       amend the sanctions regime against Iraq in line with current international measures and ensure consistency between import and export controls directed at Iraq; and

iii)       amend the import controls on firearms to take account of commentary by the Senate Standing Committee on Regulations and Ordinances, and to add a substantive new category of firearm which is to be exempt from the absolute import prohibition.

i)       Removal of Import Controls on Filled Milk

The importation of 'filled milk' is presently controlled by Item 8A of Schedule 3 of the Regulations. Filled milk, which is defined in Item 8A, may only be imported if the importer produces to the Collector a permission in writing of the Minister of State for Primary Industries and Energy.

The importation of filled milk was the subject of Report No. 424 of the Industries Assistance Commission in its 'Food Processing and Beverages Industries Inquiry' which has been accepted. The Statutory rules omit Item 8A and remove the controls in subregulation 6.3.

ii)       Amendment of Trade Sanctions against Iraq

Under the present controls over the importation of goods from Iraq, regulation 4QA prohibits the importation of goods from Iraq, goods of Iraqi origin and goods the Minister certifies he has reasonable grounds for believing are from Iraq or of Iraqi origin, unless the permission in writing of the Minister is first obtained. The Minister's permission must only be granted, however, consistently with Australia's international obligations, which includes United Nations Security Council Resolutions.

The amendments effect a minor technical amendment to the existing sanctions regime, to effectively dispense with the requirement to name the particular United Nations Security Council Resolutions concerning sanctions measures against Iraq. Amendments to overcome similar concerns in respect of export sanctions were introduced into the Customs (Prohibited Exports) Regulations by Statutory Rules 1991 No. 118, and the amendment in Regulation 4 will ensure consistency of controls over all trade with Iraq.

iii)       Amendment to Firearms Controls

The controls under the Regulations over the importation of firearms were the subject of substantive amendment by Statutory Rule 460 of 1990, which commenced on 21 December 1990. Those Statutory Rules amended the Regulations by prohibiting absolutely the importation of all firearms, including military style weapons and copies of such weapons, other than specified exempt firearms.

One of the categories of exempt firearms was that provided for in paragraph 2(1)(b), being:

b)       a handgun in respect of which the importer produces to a Collector, at or before importation, a statement in an approved form issued by or on behalf of:

i)       the Commissioner of the Australian Federal Police; or

ii)       the Commissioner, or Chief Commissioner, of the police force of a State or Territory;

to the effect that that police force has no objection to the importation by the importer of that firearm;"

This provision in particular was the subject of a motion of disallowance moved by the Chair of the Senate Standing Committee on Regulation and Ordinances last Sittings (Autumn 1991). The Committee was concerned that this provision vested an unlimited and unreviewable discretion to determine the limits to the prohibition in Police Commissioners who are not Commonwealth officials. The Committee's concern was that the provision operated on the subjective objection to the importation of the firearm which may be taken by a Commissioner, with no criteria to guide or limit that discretion.

The Minister for Small Business and Customs accepted the Committee's concerns and undertook to amend the Regulations to limit the statement by the relevant Police Commissioner to a mere statement of fact as to whether or not the importer holds a licence or authorisation to possess the handgun in the relevant jurisdiction into which it is to be imported.

The amendments in subregulation 2.1 will operate to clarify the definition of "exempt firearms" in respect of hand guns on the basis of the Minister's undertaking, and thereby remove the objectionable unlimited discretion vested in officials.

In addition to this amendment, the control over the importation of firearms is further amended to create a new exemption from the absolute import prohibition, to permit the importation of firearms to be used in connection with the production of a film in Australia where the Minister for Justice and Consumer Affairs has granted a permission in writing to import the goods and that permission is produced to a Collector. The exercise of this discretion is to be conditional upon the Minister being satisfied:

-       that the firearms intended to be imported are not available in Australia; and

-       that in the film location in which the firearms are to be used, the relevant Commissioner of police has licensed or authorised the importer to possess the firearms in that location.

It will also be a condition of such a permission that the firearms be re-exported within 6 months from the date of importation, or within such further period as the Minister specifies in the permission. (New subregulation 2.3 and Regulation 3 refers).

The Regulations are explained in greater detail below:

Amendment

Regulation 1: provides that the Customs (Prohibited Imports) Regulation are amended as set out in the proposed Regulations.

Interpretation

Regulation 2: amends the Interpretation Regulation as follows:

Subregulation 2.1: amends the definition of an "exempt firearm" with respect to handguns in order to clarify that the exemption from the prohibition is based upon whether the importer of the handgun is licensed or authorised to possess that particular handgun in the State or Territory in which the firearm is to be used. The importer must be licensed or authorised by the Commissioner of Police of that State or Territory (or by the Commissioner of the Australian Federal Police if the importation is to take place in the Australian Capital Territory). A statement in an approved form by the relevant Commissioner must be given to Customs to evidence the fact that the importer is licensed or authorised to possess the particular handgun.

       It is necessary to provide for both 'licences' and 'authorisations' because some States and Territories 'license' handgun carriers while others 'authorise' handgun carriers.

       This proposed amendment gives effect to the undertaking by the Minister for Small Business and Customs to the Senate Standing Committee on Regulations and Ordinances on 8 May 1991, as discussed fully above.

Subregulation 2.2: effects minor technical amendments to subparagraphs 2(1)(c)(ii) and 2(1)(c)(iii) to correct grammatical errors by removing 'it' from the two paragraphs.

Subregulation 2.3: amends the definition of 'exempt firearms' by including firearms in respect of which the importer produces to a Collector a written permission from the Minister for the importation of that firearm. The substantive provisions which affect the granting of a permission and the conditions subject to which permissions may be granted are provided for in new regulation 4D which is created by new regulation 3 of these Statutory Rules.

Subregulation 2.4: amends the definition of 'firearms' by specifically excluding single shot or repeating action airguns designed exclusively to fire paintballs from that definition. An absolute prohibition is to apply in respect of paintball guns which have a rapid fire or automatic capability. At present the definition of firearm is broad enough to cover, and thereby prohibit, many goods which in reality do not warrant the import control such as nail or stapling guns, flare guns and line throwing guns. Consequently these were specifically excluded. As the position on paintball guns required clarification, since they can only fire harmless gelatin balls of paint used in recreational war games, they will also be added to the list of exclusions.

Regulation 3: New Regulation 4D

Subregulation 3.1 inserts new regulation 4D which provides that the Minister of State for Justice and Consumer Affairs may give written permission for the importation of certain firearms. The firearms in respect of which such permission is given thereby become 'exempt firearms' by the amendment provided for in regulation 2.3 above.

Permission may not be given under this subregulation unless the Minister is satisfied that:

-       the firearm is of a kind not available in Australia; and

-       the firearm is to be used in the production of a film in a State or Territory in which the importer holds a license or authorisation in accordance with a law of the State or Territory to possess firearm of that kind.

These Statutory conditions provide flexibility to enable, subject to the Minister's permission, that importations in pursuance of legitimate film making endeavours may be allowed, while ensuring that firearms of a kind already available in Australia will not be unnecessarily imported. A critical control is provided by the requirement that before the Minister can permit the importation of such firearms, he must be satisfied that the importer is licensed or authorised to possess the firearms in the State or Territory in which the film is to be produced (this control is similar to that provided for in respect of handguns by paragraph 2(1)(b) of the definition of 'exempt firearms', as amended by regulation 2.1 above). If the importer is not licensed or authorised to possess the firearms in the relevant State or Territory, the Minister may not permit their importation.

New subregulation 4D(2) provides that where permission to import a firearm under subregulation 4D(1) has been given by the Minister, the importer must:

a)       export the firearm within 6 months from the date of importation or such other period as is specified in the permission; and

b)       comply with any other conditions or requirements specified in the permission.

The 6 months time limit will ensure that any firearms imported under these provisions will only remain in Australia for the period in which the film is being produced, and will not enter the general circulation of the national stock of firearms. The conditions or requirements which will be specified in the permission will cover matters such as adequate and secure storage of the firearms, use of the firearms and accounting and reporting requirements.

Should the firearms not be re-exported, or another condition or requirement specified in the permission be breached, the importer will be liable to penalties for any such breach, and the firearms may be seized as forfeited goods under section 229 of the Customs Act 1901.

Regulation 4QA (Importation of Goods from Iraq etc.)

Regulation 4: omits the present regulation 4QA and substitutes a New Regulation 4QA which amends the Iraq imports sanctions legislation enacted on 8 August 1990 to enable more flexibility in the administration of this sanctions regime. The new regime is as follows:

Paragraph 4QA(1)(a) prohibits the importation of goods from Iraq by prohibiting the importation from Iraq of goods of any description, unless the permission of the Minister for Foreign Affairs and Trade is obtained.

New Paragraph 4QA(1)(b) prohibits the importation of goods from any country that are of Iraqi origin unless the permission of the Minister for Foreign Affairs and Trade is obtained.

New Subregulation 4QA(2) provides that the Minister may grant a permission for an importation which is otherwise prohibited under this new regulation if the Minister is satisfied that permitting the importation will not infringe the international obligations of Australia.

       This new subregulation provides for a more flexible prohibition than the present one by effectively dispensing with the requirement to name the particular United Nations Security Council Resoultions concerning sanctions measures against Iraq.

Subregulation 4QA(3) provides that the permission granted by the Minister of State for Foreign Affairs and Trade to import goods may specify conditions or requirements in relation to the importation which the holder of the permission to must comply with, the quantity of goods that may be imported and the circumstances in which goods may be imported.

Paragraph 4QA(4)(a), provides that if the Minister is satisfied that a condition or requirement of the permission has not been complied with the Minister may revoke or modify the permit.

Paragraph 4QA(4)(b) provides that if the Minister is satisfied that to allow the importation of certain goods would infringe the international obligations of Australia, the Minister may revoke or modify the permit.

Proposed new subregulation 4QA(5) provides that the Minister may authorise another person or persons to exercise his or her powers under new regulation 4QA.

Proposed new subregulation 4QA(6) provides that where an authorised person has refused to grant a permission to allow the importation, that person must refer the application to the Minister who may then grant or refuse to grant the application (new subregulation 4QA(7))

This method of the Minister reviewing the decision of an authorised person is considered appropriate in this case as any decisions in respect of the trade sanctions are properly ones of "high Government policy". As such it is considered inappropriate to have independent review of this Ministerial decision by a body such as the Administrative Appeals Tribunal.

Proposed new subregulation 4QA(7) provides that the Minister must decide whether or not to grant an application which is referred to him or her under new subregulation 4QA(6).

Schedule 2 (Goods the importation of which is prohibited unless the permission in writing of the Minister or an authorised person has been granted)

Regulation 5: amends Schedule 2 as follows:

Subregulation 5.1 removes any references to 'gun' from Item 21 because the importation of firearms is controlled by the exhaustive firearms provisions in the regulation.

Subregulation 5.2 amends Item 26 to ensure the existing control over devices designed to modify a firearm to give it a rapid fire capability cannot be circumvented by specifying that there is no requirement that the ammunition need be exhausted.

Schedule 3 (Goods the importation which is prohibited unless specified conditions, restrictions or requirements are complied with

Regulation 6: amends Schedule 3 as follows:

Subregulation 6.1 effects a minor technical amendment by adding the word 'refers' to paragraph (b) of Item 5. The word 'refers' was inadvertently ommitted by SR460 of 1990.

Subregulation 6.2 provides that competition target firearms and firearms imported for use in films pursuant to new regulation 4D are exempt from the safety requirements contained in Part 2 of Schedule 3.

Under the present regime all exempt firearms, other than certain specified exemptions are required to satisfy the safety requirements prescribed in Part 2 of Schedule 3. The safety testing requires, inter alia, that firearms possess standard safety features (eg. trigger guards) and not discharge when dropped from a certain height or struck with a rubber hammer.

While most 'standard' firearms would satisfy these tests, and are properly prohibited should they fail, it has become apparent that many special purpose competition target firearms would fail for not being equipped with standard safety features, or would be destroyed or damaged by the testing process.

Firearms for use in films imported pursuant to regulation 4D are exempt from the safety testing requirements as their use will be strictly controlled so that they will not be available to the general public, and they will in fact be re-exported.

subregulation 6.3 omits "filled milk" from Schedule 3 for reasons as outlined in the outline to this Attachment.


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