EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 255
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2009 (No. 5)
Section 270 of the Customs Act 1901 (the Customs 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.
The Customs Act gives certain law enforcement powers to the commanders of Commonwealth aircrafts including the ability to request another pilot to land his or her aircraft and to commence or take over the chase of a ship or aircraft. The term 'Commonwealth aircraft' is defined in section 4 of the Customs Act to mean "an aircraft that is in the service of the Commonwealth and displaying the prescribed ensign or prescribed insignia".
Regulation 1C of the Customs Regulations 1926 (the Principal Regulations) prescribes for the purposes of the definition of 'Commonwealth aircraft' in section 4, the ensign and insignia that an aircraft must display in order to be a 'Commonwealth aircraft' for the purposes of the Customs Act. Separate insignia are prescribed for an aircraft in the service of Customs and for an aircraft in the service of the Australian Defence Force (ADF).
Paragraph 1C(d) of the Principal Regulations prescribed the insignia for aircraft in the service of the ADF as: "a disc that displays, within a blue rim the inner diameter of which is two-thirds of the diameter of the disc, a red silhouette of a kangaroo on a white background".
As the colour scheme prescribed in paragraph 1C(d) is not displayed on all ADF aircraft (some ADF aircraft have the insignia in black and grey for operational reasons), the amending Regulations update the insignia prescribed for aircraft in the service of the ADF.
The amending Regulations prescribe, as the insignia for an aircraft in the service of the ADF, the Australian Air Force roundel (displayed in any colour or combination of colours) which forms part of the flag that is appointed under section 5 of the Flags Act 1953 (Flags Act). Section 5 of the Flags Act permits the Governor-General, by Proclamation, to appoint other flags and ensigns of Australia that he or she thinks fit.
No consultation was undertaken specifically in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
0922303A
Overview
The Customs Amendment Regulations 2009 (No. 5) were introduced to address a gap in the Customs Act 1901 by updating the insignia prescribed for aircraft in the service of the Australian Defence Force. These regulations were enacted by the Minister for Home Affairs, as authorised by section 270 of the Customs Act, which allows the Governor-General to make regulations necessary or convenient to give effect to the Act. The Customs Act grants specific law enforcement powers to the commanders of Commonwealth aircraft, and these regulations ensure that the definition of a Commonwealth aircraft is accurately reflected across all ADF aircraft, regardless of operational colour schemes. The policy objective of these amendments is to ensure consistency and clarity in the identification of Commonwealth aircraft under the Customs Act, thereby facilitating the enforcement of customs-related laws more effectively.
The Customs Amendment Regulations 2009 (No. 5) update the insignia for ADF aircraft by prescribing the Australian Air Force roundel, which can be displayed in any colour or combination of colours, aligning with the flag appointed under the Flags Act 1953. These changes were not subject to specific consultation as they are considered minor and do not substantially alter existing arrangements. The regulations came into effect on the day after they were registered on the Federal Register of Legislative Instruments, ensuring that all ADF aircraft meet the updated criteria for Commonwealth aircraft status under the Customs Act.
Scope and Application
The Customs Amendment Regulations 2009 (No. 5) pertain to the Customs Act 1901, specifically modifying the insignia prescribed for aircraft in the service of the Australian Defence Force (ADF) to align with the Australian Air Force roundel. These regulations apply to any aircraft in the service of the ADF that are designated as Commonwealth aircraft under the Customs Act. The amendment ensures that the insignia displayed on ADF aircraft complies with the updated regulations, which allow the use of the Australian Air Force roundel in any colour or combination of colours as part of the national flag. The scope of the amendment is confined to the insignia prescribed for ADF aircraft and does not alter the existing framework for Commonwealth aircraft in the service of Customs. The changes are intended to ensure consistency with the insignia prescribed under the Flags Act 1953. The regulations do not require consultation as they are considered minor adjustments without substantial impact on existing arrangements. They will come into effect on the day following their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Customs Amendment Regulations 2009 (No. 5) amend the Customs Regulations 1926 to update the insignia prescribed for aircraft in the service of the Australian Defence Force (ADF) for the purposes of the Customs Act 1901. Under the Customs Act, certain law enforcement powers are vested in the commanders of Commonwealth aircraft, and these powers include the ability to request another pilot to land their aircraft and to commence or take over the chase of a ship or aircraft (section 270). The term 'Commonwealth aircraft' is defined in section 4 of the Customs Act to mean "an aircraft that is in the service of the Commonwealth and displaying the prescribed ensign or prescribed insignia." Regulation 1C of the Principal Regulations prescribes the ensign and insignia that an aircraft must display in order to be recognised as a Commonwealth aircraft.
The amending Regulations update the insignia prescribed for aircraft in the service of the ADF in Regulation 1C. Specifically, they replace the previous requirement of a specific colour scheme with the Australian Air Force roundel, which can be displayed in any colour or combination of colours. This roundel is part of the flag appointed under section 5 of the Flags Act 1953, which allows the Governor-General to appoint other flags and ensigns of Australia by Proclamation.
The Regulations impose specific requirements on ADF aircraft, mandating that they display the Australian Air Force roundel to be recognised as Commonwealth aircraft for the purposes of the Customs Act. This ensures consistency and compliance with the legal definition of Commonwealth aircraft. These updated insignia requirements are necessary to reflect the current operational standards of ADF aircraft, where the insignia might be displayed in various colours for operational reasons.
The Customs Amendment Regulations 2009 (No. 5) do not explicitly outline specific offences, penalties, or consequences for non-compliance. However, given the legal framework of the Customs Act, any failure to comply with the requirements to display the appropriate insignia on Commonwealth aircraft could potentially lead to enforcement actions under the Act. Such actions could include the detention of goods or aircraft, fines, or other administrative penalties as deemed necessary by the relevant authorities to ensure compliance with customs regulations.