Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) 1996 NO. 324

EXPLANATORY STATEMENT

STATUTORY RULES 1996 No. 324

Issued by the Authority of the Minister for Small Business and Consumer Affairs

Customs Act 1901

Customs (Prohibited Imports) Regulations (Amendment)

Section 50 of the Customs Act 1901 (the Act) 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 subsection 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 or a specified person.

On 5 June 1996, Statutory Rules 1996 No. 91 introduced the new structure of controls on the importation of firearms, firearm parts, firearm accessories, firearm magazines and ammunition. The new structure consolidated the import controls under regulation 4F and Schedule 6 of the Regulations. Regulation 4F provides that the importation of a firearm is prohibited unless the firearm is a firearm to which an item in Part 2 of Schedule 6 applies and the importation is in accordance with the requirements set out in that Part.

These requirements fall into 4 broad categories or "tests": (1) the official purposes test; (2) the specified purposes test; (3) the specified persons test. and (4) the Police authorisation test (items 1 to 4 of Part 1 of Schedule 6 refer). The proposed amendments to the Regulations are in relation to the official purposes test and the specified purposes test.

The Official Purposes Test

Previously, the official purposes test provided that the Attorney-General must not have given written permission for the importation of an article under the test unless he was satisfied that:

(a) the article was for the purposes of the government of the Commonwealth, a State or a Territory; and

(b) the relevant government was to retain ownership of the article.

Recent legal advice from the Attorney-General's Department indicated that, while it may not have been necessary for the relevant government to have ownership of an article at the time of its importation, the government must have obtained ownership of the article and must have retained this ownership. It was recognised, however, that this requirement placed unintended restrictions on the importation of articles for official purposes. For example, firearms may need to be imported for the purposes of demonstration to, or testing by, a relevant government agency without the intention that that government agency obtain ownership at that stage, Under the previous wording of the official purposes test, however, the importation of firearms for this legitimate and common official purpose was not permissible.

The regulations have amended the official purposes test to more clearly specify the circumstances under which firearms, firearm parts, firearm accessories, firearm magazines and ammunition may be imported for official purposes. In the circumstances where a relevant government will not become the owner of the article, clear requirements for the re-exportation by the importer of the article exist.

Specified purposes test

Two tightly defined circumstances for this importation of firearms, firearm parts, firearm accessories, firearm magazines and ammunition have also been added to the specified purposes test. These are:

(i) the importation of such articles which are owned by foreign governments for the purposes of repair; and

(ii) the importation of ammunition for the purpose of fulfilling a contract of supply to a person outside Australia.

Both these circumstance are subject to strict requirements for both the importation and the re-exportation of such articles.

An amendment has also been made to the safety testing requirements in Part 3 of Schedule 6 to the Regulations in response to comments made by the Senate Standing Committee on Regulations and Ordinances in relation to Statutory Rules 1996 No. 91. The Committee's concern related to the uncertainty as to the height from which a firearm is to be dropped as part of its safety testing and the proposed amendment has removed this uncertainty.

The amendments are explained in greater detail in the Attachment.

The amendments commenced on gazettal.

ATTACHMENT

Regulation 1 - Amendment

Proposed regulation 1 provides that the Customs (Prohibited Imports) Regulations (hereinafter referred to as the PI Regulations) are amended as set out in the proposed Regulations.

Regulation 2 - Regulation 4F (Importation of firearms, firearm accessories, firearm parts, firearm magazines and ammunition)

Regulation 2 amends subregulation 4F(3) by omitting "item 2 of' and substituting Items 2 and 3 of'.

Subregulation 4F(3) previously provided that the importation of a firearm, firearm accessories, firearm parts, firearm magazines or ammunition was subject to the conditions (if any) set out in item 2 of Part 3 of Schedule 6, that relate to the importation. Item 2 contains conditions that relate to the importation under the specified purposes test.

As a consequence of the clarification of the official purposes test, the importation under this test is also subject to conditions. These conditions are set out in new item 3 of Part 3 of Schedule 6. (subregulation 4.6 refers). Subregulation 4F(3) now contains a cross-reference to the new item 3.

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

Regulation 3.1 amends Schedule 3 of the Regulations by omitting the heading "PART 1 - SPECIFICATION OF GOODS". This is a technical amendment which is consequential upon the omission of Part 2 of Schedule 3 by subregulation 3.2.

Proposed subregulation 3.2 amends Schedule 3 of the Regulations by omitting Part 2 of the Schedule. Part 2 contained the safety requirements which used to apply to the importation of firearms when firearms were included in Part 1 of Schedule 3. Firearms and their safety requirements are now set out in Schedule 6 to the Regulations and, as a consequence, Part 2 of Schedule 3 has been omitted.

Regulation 4 - Schedule 6 (Requirements for the importation of firearms, firearm accessories, firearm parts, firearm magazines and ammunition)

Subregulation 4.1 omits paragraph 1.2(b) of Part 1 of Schedule 6 and substitutes a new paragraph (b).

Item 1 of Part 1 of Schedule 6 sets out the requirements of the official purposes test. Previously paragraph 1.2(b) required the Attorney-General (the AG) to be satisfied the relevant government will retain ownership of the article being imported, As referred to before, this requirement became too restrictive and did not allow the importation of articles for official purposes where the relevant government was not to be acquiring ownership.

Subregulation 4.1 omits paragraph 1.2(b) and replaces it with the requirement that the AG be satisfied that "the ownership arrangements for the article are, or will be, in accordance with subitem 1.5".

New subitem 1.5 is to be inserted by subregulation 1.4 and sets out the ownership arrangements for articles imported under the more specific circumstances of the official purposes test. The new ownership arrangements provide that the owner of the imported article does not need to be the relevant government in each circumstance.

Subregulation 4.2 inserts new subitem 1.3 into Part 1 of Schedule 6 of the Regulations. New subitem 1.3 is the focus of the new official purposes test as it sets out specific examples of circumstances in which the importation of an article is for the purpose of the government of the Commonwealth, a State or a Territory. These circumstances are as follows:

(a) an article to be supplied to the government under a contract in force when the article is to be imported (emphasis added). In respect of such contracts, it may not always be the case that the relevant government is the owner of the article at the time of importation. This specific example is included to take account of such situations;

(b) an article to be shown to the government to demonstrate its uses;

(c) an article that the government proposes to inspect, test or evaluate; and

(d) an article that the government proposes to use for training.

While all of these examples are legitimately for official purposes, they will encompass those circumstances where the relevant government is not the owner of the articles at the time of importation or does not intend to acquire the ownership under these circumstances.

Subregulation 4.3 inserts new subitem 1.4 into Part 1 of Schedule 6 of the Regulations. New subitem 1.4 sets out the ownership arrangements, in table form, for the purposes of new paragraph 1.2(b) referred to above.

The ownership arrangements are as follows:

(a) In the circumstance where an article is to be supplied to the government of the Commonwealth, a State or Territory under a contract, the relevant government must either:

(i) own the article at the time of importation and must retain ownership; or

(ii) as referred to above, where contractual arrangements may be such that the government may not be the owner of the goods at this time, the government must intend to acquire ownership of the article after importation in a period that the AG considers appropriate and must retain ownership. This period will be specified in the AGs permission (item 1 of the table refers).

The ownership arrangements are subject to the requirements set out in new item 3 of Part 3 of Schedule 6 which is inserted by subregulation 4.6;

(b) In the circumstance where the article is to be either:

(i) shown to a government of the Commonwealth, a State or a Territory to demonstrate its uses; or

(ii) inspected, tested or evaluated by such a government; or

(iii) used for training by such a government;

the article may be owned by any person. While this person may actually include a government, the intention of this requirement is that a government need not necessarily own the article. As referred to above, this is meant to cover the circumstances where articles are for official purposes but where the government does not intend to acquire the ownership of the article at that time.

The ownership arrangements under this item are also subject to the requirements set out in new item 3 of Part 3 of Schedule 6; and

(c) If the article is any other article, the government must own the article at the time of importation and must retain ownership. The effect of this ownership requirement is that if an article is being imported for any official purpose in circumstances other than the above specified examples, the government must be the owner of the article at the time of importation.

This means that the specified examples are the only circumstances where persons other than a government itself can import firearms, firearm accessories, firearm parts, firearm magazines and ammunition for, official purposes.

Subregulation 4.3 amends the specified purposes test in Part 1 of Schedule by omitting and substituting subitem 2.2 of that test. The purpose of this amendment is to insert two new circumstances in which articles may be imported under this test.

New paragraphs 2.2(a) and (b) re-iterate the existing circumstances in which articles may be imported under this test, being articles for use in connection with the production of a film and in the development of mountings for a laser target designator.

New paragraph 2.2(c) sets out the first new circumstance under this test which applies in relation to importation of ammunition only, as follows:

(i) the ammunition is to be imported as part of a contract to which a person in Australia is a party;

(ii) the person made the contract with the intention of supplying the ammunition to a person outside Australia in a manner that will not contravene Australia's international obligations. For example, the exportation of the ammunition must not contravene any sanctions to which Australia is a party;

(iii) the contract will be in force when the ammunition is to be imported (emphasis added); and

(iv) the Minister for Defence Industry, Science and Personnel, or a person authorised for regulation 13E of the Customs (Prohibited Exports) Regulations, has stated, in writing, that a licence or permission to export the ammunition will be granted under that regulation.

Under regulation 13E of the Customs (Prohibited Exports) Regulations, the exportation of defence related goods, including ammunition, is prohibited unless a licence or permission to export the goods is given by the Minister for Defence Industry, Science and Personnel or an authorised person. It would not be desirable to allow the importation of ammunition under this new circumstance unless the ammunition was also able to be exported at the appropriate time. Therefore, the assurance that the exportation will be allowed is to be sought prior to the importation of the ammunition.

As this circumstance has been inserted into the specified purposes test, articles imported under this test are subject to the conditions set out in item 2 of Part 3 of Schedule 6. Item 2 places a time limit within which articles imported under this test must be re-exported and also provides that the importer must comply with any condition or requirement specified in the permission given under this test.

The time limit specified in this item has been amended by subregulation 4.5 below.

New paragraph 2.2(d) sets out the second new circumstance under the specified purposes test, which applies to firearms, firearm accessories, firearm parts, firearm magazines and ammunition as follows:

(i) the article is owned by the government of a country other than Australia,

(ii) the article is to be imported for repairs in a State or territory under a contract in force when the article is to be imported (emphasis added);

(iii) the importer holds a licence or authorisation in accordance with the law of the State or Territory to possess an article of that kind; and

(iv) the Minister for Defence Industry, Science and Personnel, or a person authorised for regulation 13E of the Customs (Prohibited Exports) Regulations, has stated, in writing, that a licence or permission to export the article after the repairs will be granted under that regulation.

As referred to above under regulation 13E of the Customs (Prohibited Exports) Regulations, the exportation of defence related goods is prohibited unless a licence or permission to export the goods is given by the Minister for Defence Industry, Science and Personnel or an authorised person. Similar to ammunition, it would not be desirable to allow the importation of an article under this new circumstance unless the article was also able to be exported at the completion of its repairs. Therefore, the assurance that the exportation will be allowed is to be sought prior to the importation of the ammunition.

As this circumstance has been inserted into the specified purposes test, articles imported under this test are also subject to the conditions set out in item 2 of Part 3 of Schedule 6 (as amended).

Subregulation 4.4 amends Part 3 of Schedule 6, which sets out the conditions relating to the importation of firearms, firearm accessories, firearm parts, firearm magazines and ammunition. Item 1 of Part 3 sets out the safety testing requirements for firearms and subregulation 4.4 amends paragraph 1.6(a).

This amendment is in response to comments made by the Senate Standing Committee on Regulations and Ordinances (the Committee) in relation to Statutory Rules 1996 No. 91. Paragraph 1.6(a) contained a safety test which, inter alia, required a firearm to be dropped from the height of not more than 45 centimetres onto a rubber mat. The Committee noted that the previous wording of paragraph 1.6(a) could be satisfied by dropping a firearm from a height of one centimetre.

The amendment to paragraph 1.6(a) now requires that the firearms be dropped from height of at least 35 centimetres and not more the 45 centimetres.

Subregulation 4.5 amends Part 2 of Schedule 6, which sets out the conditions to which the importation of articles in accordance with the specified purposes test is subject. Previously, under paragraph 2. 1 (a) of this test, the importer had to export the article within 6 months of its importation or, within any longer period specified in the permission given by the AG, In many circumstances, however, the AG may wish to specify a period that is shorter than the present 6 months.

Therefore, the previous wording of paragraph 2. 1 (a) has been replaced with the requirement that the importer "export the article in the period, after importation, mentioned in the Attorney-General's permission". This will allow the AG to specify the period for export having regard to the circumstances of each importation under the specified purposes test.

Subregulation 4.6 inserts new item 3 into Part 3 of Schedule 6. New item 3 sets out conditions to which the importation of articles in accordance with the specified examples under the official purposes test is to be subject.

New subitem 3.1 applies to an article which is to be supplied to the government of the Commonwealth, a State or a Territory under a contract. Under the circumstances, the importation is subject to the following conditions:

(a) if the government does not acquire ownership of the article in the period after importation mentioned in the AGs permission, the importer must export the article as soon as practicable.

For example, the relevant government may have grounds under the contract of supply to reject to goods. In this circumstance, the importer will then be required to export the goods as soon as practicable; and

(b) the importer must comply with any condition or requirement, in relation to the article, in the AGs permission.

New subitems 3.2, 3.3 and 3,4 apply to articles imported under the remaining specific examples. Subitem 3.2 applies to articles imported for demonstration purposes, subitem 3.3 applies to articles imported for inspection, testing and evaluation purposes and subsection 3.4 applies to articles imported for training purposes. These three circumstances are all subject to the following conditions:

(a) that the importer must export the article in the period, after importation, mentioned in the AG's permission, unless the article has been destroyed.

For example, ammunition that may be imported for demonstration or training purposes will be used and destroyed and, therefore, will not be capable of being re-exported; and

(b) the importer must comply with any condition or requirement, in relation to the article, in the AG's permission.


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