EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 355
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2009 (No. 9)
Section 270 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.
Section 233BAA of the Act provides in part that the regulations may provide that specified goods constitute tier 1 goods. It is an offence under section 233BAA to import or export such goods. These offences are punishable by a fine not exceeding 1000 penalty units or imprisonment for up to five years, or both. Goods cannot be listed as tier 1 goods unless their importation or exportation is prohibited under the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) or the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) respectively. Part 1 of Schedule 1AA to the Customs Regulations 1926 (the Principal Regulations) currently lists those goods that are tier 1 goods for the purposes of section 233BAA.
The purpose of the amending Regulations is to amend the Principal Regulations to prescribe commercial quantities of objectionable goods (for example, material containing excessive sexual violence, or that promotes or incites crime or violence), and objectionable goods imported for particular purposes, as tier 1 goods. This allows the imposition of a term of imprisonment of up to five years.
The importation of objectionable goods is prohibited by regulation 4A of the PI Regulations and the exportation of objectionable goods is prohibited by regulation 3 of the PE Regulations. The criteria for determining objectionable goods are consistent with the RC (Refused Classification) criteria in the National Classification Code and the Classification (Publications, Films and Computer Games) Act 1995.
A commercial quantity of objectionable goods is defined in the amending Regulations as 25 or more objectionable goods. Individuals importing small quantities of objectionable material for personal use are subject to the pre-existing maximum penalty of 1000 penalty units but are not liable for imprisonment. This quantity also takes into account those Commonwealth, state and territory classification offences where the quantities are used as prima facie evidence of intent to sell, in offences for supplying, and in offences for a commercial quantity. These offences variously apply to specific quantities of publications, films or computer games, ranging from three to 50.
The amending Regulations also prescribe the particular purposes. These purposes concern actions with a commercial end. Listing objectionable goods imported for commercial purposes as tier 1 goods removes the opportunity for commercial adult industry operators to avoid the proposed import control relating to 25 or more objectionable goods by importing smaller quantities of such goods. For example, an adult industry operator that imported one objectionable good to sell it, or display it in public, could still be liable for up to five years imprisonment.
Consultation on the amending Regulations was undertaken with the Attorney‑General's Department and the Australian Customs and Border Protection Service. No further consultation was necessary as the amending Regulations impose no increased compliance costs for legitimate business. The amending Regulations have no to low regulatory impacts on business and individuals.
The amending Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Overview
The Customs Amendment Regulations 2009 (No. 9), issued under the authority of the Minister for Home Affairs, were enacted to address the need for stricter regulation of the importation and exportation of objectionable goods, particularly those that contain excessive sexual violence or promote or incite crime or violence. The Customs Act 1901 allows the Governor-General to make regulations that prescribe all matters required or permitted by the Act, and section 233BAA of the Act provides that the regulations may designate specified goods as tier 1 goods, with associated penalties for importing or exporting these goods. The Regulations amend the Customs Regulations 1926 to include commercial quantities of objectionable goods, and objectionable goods imported for specific commercial purposes, as tier 1 goods. This amendment allows for the imposition of imprisonment for up to five years in addition to fines for the import or export of such goods, aligning the penalties with the stringent criteria for objectionable goods outlined in the National Classification Code and the Classification (Publications, Films and Computer Games) Act 1995. The Regulations also define a commercial quantity of objectionable goods as 25 or more items, thereby targeting commercial activities while maintaining a maximum penalty of 1000 penalty units for individuals importing smaller quantities for personal use. The policy objective is to effectively control the distribution of objectionable goods and deter commercial activities involving such materials.
Scope and Application
The Customs Amendment Regulations 2009 (No. 9) apply to the importation and exportation of specified goods that are classified as tier 1 goods under section 233BAA of the Customs Act 1901. These regulations extend to the entire Commonwealth of Australia, impacting individuals and entities involved in the importation or exportation of such goods. The Act applies to commercial quantities of objectionable goods, which are defined as 25 or more such goods, and goods imported for specific commercial purposes. The regulations do not apply to individuals importing small quantities of objectionable goods for personal use, who are subject to the existing penalty of 1000 penalty units but not imprisonment. The scope of these regulations is further supported by the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958, which prohibit the importation and exportation of objectionable goods respectively. The criteria for determining objectionable goods align with the RC criteria in the National Classification Code and the Classification (Publications, Films and Computer Games) Act 1995. The Regulations were developed in consultation with relevant authorities and aim to prevent commercial operators from circumventing import controls by importing smaller quantities of objectionable goods. The regulations are a legislative instrument under the Legislative Instruments Act 2003 and will come into effect upon registration on the Federal Register of Legislative Instruments.
Key Provisions
The Customs Amendment Regulations 2009 (No. 9) amend the Customs Regulations 1926 to classify certain objectionable goods as tier 1 goods under section 233BAA of the Customs Act 1901 (the Act). Section 233BAA prohibits the importation or exportation of these tier 1 goods, making such actions a criminal offence. These regulations specifically target commercial quantities of objectionable goods, such as those containing excessive sexual violence or promoting crime or violence, and goods imported for commercial purposes. This classification aligns with the criteria in the National Classification Code and the Classification (Publications, Films and Computer Games) Act 1995.
The Regulations impose obligations on parties and entities involved in the import and export of these goods. They require that commercial quantities of objectionable goods, defined as 25 or more items, be classified as tier 1 goods. This classification is necessary for the enforcement of the prohibitions under the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958. Additionally, goods imported for particular commercial purposes are also classified as tier 1 goods, thereby preventing circumvention of the import controls by operators in the adult industry. These obligations are designed to ensure compliance with the Act and to provide a clear framework for enforcement.
Violations of the provisions outlined in these Regulations can result in severe penalties. Importing or exporting tier 1 goods, as defined by the Regulations, is an offence punishable by a fine not exceeding 1000 penalty units, imprisonment for up to five years, or both. This maximum penalty applies to both the importation and exportation of these goods, reflecting the serious nature of the prohibited activities. Individuals importing small quantities of objectionable material for personal use are subject to the pre-existing maximum penalty of 1000 penalty units but are not liable for imprisonment. These penalties underscore the legislative intent to stringently control the movement of objectionable goods.