EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 225
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Legislation Amendment Regulation 2012 (No. 1)
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 or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to Customs.
The purpose of the Regulation is to amend the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) to streamline the process for applying for permission to import goods which depict Commonwealth national symbols.
Subregulation 4(1) of the Principal Regulations provides that the import of goods specified in Schedule 2 is prohibited unless the Minister or an authorised person has granted permission. Schedule 2 includes goods depicting a representation of the Arms, a flag or seal of the Commonwealth or of a State or Territory of the Commonwealth or a representation which so nearly represents the Arms, a flag or seal of the Commonwealth or of a State or Territory it is likely to deceive.
Currently, importers of goods depicting representations of national symbols are required, by legislation, to seek importation approval through a two-step process.
The first step requires the importer to obtain approval for the design of the national symbol from the Awards and National Symbols Branch of the Department of the Prime Minister and Cabinet (PM&C). The second step requires the importer to obtain permission from the Minister for Home Affairs, or an authorised person, to import the goods. The Australian Customs and Border Protection Service (Customs and Border Protection) is responsible for processing the import requests.
The original intended purpose of the two-step process was to act as a quality control measure to ensure that representations of Australia’s national symbols are realistic, of suitable quality and do not breach any other laws. This objective is currently achieved through the PM&C design approval process.
The Regulation streamlines the approvals process by requiring importers to obtain only PM&C approval of the design of Commonwealth Arms, or a flag or seal of the Commonwealth that will be applied to a good. Importation will be lawful where design approval has been obtained from PM&C and an importer will not be required to obtain a separate approval from the Minister for Home Affairs or an authorised person. PM&C approval is provided by the Secretary or a person authorised by the Secretary.
To facilitate this change, the Regulation moves the prohibition on the importation of goods depicting the Arms, a flag or a seal of the Commonwealth or a representation which so nearly represents the Arms, a flag or seal of the Commonwealth that it is likely to deceive, from Schedule 2 to Schedule 3 to the Principal Regulation. Schedule 3 contains goods which cannot be imported unless specified conditions, restrictions or requirements are complied with.
The goods moved to Schedule 3 will be subject to the condition that PM&C approval of the design will be required for any importation of a good to which, or to the coverings of which, there is applied a representation of the Commonwealth Symbol, or a representation so nearly resembling the Commonwealth Symbol as to be likely to deceive. Permission from the Minister or an authorised person will no longer be required.
If goods bearing a national symbol are detected at the border and PM&C approval has not been obtained, Customs and Border Protection will still have the power to detain and seize the goods and prevent their importation.
The Regulation also makes a minor consequential amendment to the Customs Regulations 1926 to ensure that post-importation permission can continue to be given to goods bearing national symbols.
As the Regulation is of a minor or machinery nature, no consultation was undertaken in relation to the Regulation.
The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
120810A
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs Legislation Amendment Regulation 2012 (No. 1)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
The Regulation amends the Customs (Prohibited Imports) Regulations 1956 and the Customs Regulations 1926 to streamline the process for applying for permission to import goods which depict Commonwealth national symbols. The current two-step process which requires permission from both the Department of Prime Minister and Cabinet (PM&C) and, the Minister for Home Affairs or an authorised person will be streamlined to require permission only from PM&C.
The Regulation commences on the day after it is registered.
Human Rights implications
This legislative instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
This legislative instrument does not raise any human rights issues.
Minister for Home Affairs