EXPLANATORY STATEMENT
Select Legislative Instrument 2016 No.
Issued by the Authority of the Minister for Immigration and Border Protection
Customs Act 1901
Customs Legislation Amendment (Signal Jammers and Other Matters) Regulation 2016
The Customs Act 1901 (the Customs Act) relates to customs functions and provides, amongst other things, for the importation and exportation of goods, to and from Australia.
Subsection 270(1) of the Customs Act provides, in part, that the Governor‑General may make regulations, not inconsistent with that Act, prescribing all matters which by that Act are required or permitted to be prescribed, or as may be necessary or convenient to be prescribed for giving effect to that Act.
In addition, section 50 of the Customs Act enables the Governor‑General to prohibit, by regulations, the importation of goods into Australia.
The purpose of the Customs Legislation Amendment (Signal Jammers and Other Matters) Regulation 2016 (the Amendment Regulation) is to amend the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) to prohibit the importation of devices known as “signal jamming devices” into Australia. These devices are prohibited for use in Australia by operation of section 190 of the Radiocommunications Act 1992 (the Radiocommunications Act).
Signal jammers can prevent or disrupt mobile phone and satellite navigation services, which have the potential to adversely affect the public on a large scale
The prohibited device must be a device that:
- is designed to have an adverse effect on radiocommunications; or
- would be likely substantially to:
- interfere with radiocommunications; or
- disrupt or disturb radiocommunications in any other way; or
- is a radiocommunications transmitter, or a radiocommunications receiver, that would be reasonably likely to have an adverse effect on the health or safety of persons:
- who operate the device; or
- work on the device; or
- use services supplied by means of the device; or
- are reasonably likely to be affected by the operation of the device.
The Amendment Regulation will prohibit the importation into Australia of devices that are prohibited by operation of section 190 of the Radiocommunications Act, unless permitted by a determination under subsection 27(2) of that Act for the purposes of section 189 of that Act. In effect, this will enable the Department to prosecute a person who imports the relevant devices in contravention of the prohibition, and to seize the devices at the border without a warrant. This prohibition will complement the domestic ban on the use of these devices.
The Amendment Regulation also amends the Prohibited Imports Regulations and the Customs Regulation 2015 to repeal redundant provisions and correct a typographical error. Details of the Amendment Regulation are set out in Attachment A.
A Statement of Compatibility with Human Rights (the Statement) has been prepared and completed for the Amendment Regulation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s overall assessment of the Amendment Regulation is that it is compatible with human rights. A copy of the Statement is at Attachment B.
The Department of Immigration and Border Protection has consulted with the Australian Communications and Media Authority (the ACMA) and with the Office of Best Practice Regulation (the OBPR). In particular, discussions were held with the ACMA to ensure that the amendments made by Amendment Regulation will complement the domestic prohibition on the use of relevant devices.
In relation to consultation with the OBPR, that office has assessed the measures made by the Amendment Regulation to have a minor regulatory impact, and as result a Regulation Impact Statement is not required. On this basis, no additional consultation was undertaken.
The Amendment Regulation is to commence on the day after it is registered on the Federal Register of Legislation.
OPC60744 ‑ A
ATTACHMENT A
Details of the Customs Legislation Amendment (Signal Jammers and Other Matters) Regulation 2016
Section 1 – Name
This section provides that the title of the Regulation is the Customs Legislation Amendment (Signal Jammers and Other Matters) Regulation 2016 (the Amendment Regulation).
Section 2 – Commencement
This section sets out, in a table, the date on which the Amendment Regulation will commence, and provides that, each provision of that Regulation as specified in column 1 of the table is to commence, or is taken to have commenced, in accordance with column 2 of that table, and that any other statement in column 2 is to have effect according to its terms. The Amendment Regulation commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Amendment Regulation is made under the Customs Act 1901 (the Act).
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
The purpose of this section is to provide for how amendments in this Amendment Regulation will operate.
Schedule 1 – Amendments
Customs (Prohibited Imports) Regulations 1956
Item 1 – Subregulation 3C(1)
Item 1 omits and substitutes the reference to “subregulations 4(3) and” in subregulation 3C(1) of the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) with “subregulation”.
Regulation 4 of the Prohibited Imports Regulations concerns goods that are prohibited unless conditions or restrictions are complied with. In particular, subregulation 4(2) provides that the importation into Australia of the goods specified in the second column of Schedule 3 is prohibited unless the conditions, restrictions or requirements specified in the third column of that Schedule opposite to the description of the goods are complied with.
Relevantly, subregulation 4(3) excludes the operation of subregulation 4(2) to goods specified in previous item 1 of Schedule 3 to the Prohibited Imports Regulations, if the following are met (see subregulation 3C(1)):
- the goods are imported into Australia on an aircraft by an air security officer while carrying out his or her duties; and
- there is an arrangement between the foreign government employing the air security officer and the Government of Australia providing for the importation of the goods into Australia on aircraft by air security officers; and
- immediately after the goods are imported, the air security officer surrenders the goods to an authorised officer for secure storage until the goods are exported, which is to be within 3 months after those goods were imported into Australia.
Previous item 1 of Schedule 3, which referred to antipersonnel sprays, etc., was repealed by the Customs (Prohibited Imports) Amendment (Firearms and Other Weapons) Regulation 2015 (the Firearms Amendment Regulation) and reinserted as table item 45 of Part 2 of Schedule 13 to the Prohibited Imports Regulations.
It was intended that the relevant goods under the new table item will remain prohibited unless criteria in subregulation 3C(1) of the Prohibited Regulations are met, but not through subregulation 4(3) of those Regulations. As such, the reference to subregulation 4(3) in subregulation 3C(1) is redundant and should be omitted.
The purpose of this item is to omit the redundant reference.
Item 2 – Subregulation 4(3)
Item 2 repeals subregulation 4(3) of the Prohibited Imports Regulations.
As noted above, this subregulation referred to goods specified in previous item 1 of Schedule 3 to the Prohibited Imports Regulations, which was repealed and reinserted as table item 45 of Schedule 13 to those Regulations. It was intended, as part of this change, that relevant goods will be prohibited unless they satisfy the requirement under paragraph 4H(2)(c) of the Prohibited Imports Regulations.
In effect, the inclusion of table item 45 in paragraph 4H(2)(c) would have retained the exclusion to the prohibition on the goods insofar as those goods meet the criteria under subregulation 3C(1) of the Prohibited Imports Regulations. This was inadvertently missed by the Firearms Amendment Regulation and is provided for below in item 4.
As a result, and subsequent to the amendments made by item 4 below, the requirement in subregulation 4(3) of the Prohibited Imports Regulations is redundant and should be repealed.
The purpose of this item is to repeal the redundant requirement.
Item 3 – Subparagraph 4H(2)(c)(i)
Item 3 omits the reference to “16,” in subparagraph 4H (2)(c)(i) of the Prohibited Imports Regulations.
Subparagraph 4H(2)(c)(i) of the Prohibited Imports Regulation enables goods specified in the table items mentioned in that paragraph, including previous table item 16, to be temporarily imported into Australia, if the criteria set out in subregulation 3C(1) are met.
Previous item 16 of Part 2 of Schedule 13 to the Prohibited Imports Regulations was repealed by the Firearms Amendment Regulation and as a result, the reference to that item is redundant and should be omitted.
The purpose of this item is to omit the redundant reference.
Item 4 – Subparagraph 4H(2)(c)(i)
Item 4 omits and substitutes the reference to “or 42” in subparagraph 4H(2)(c)(i) of the Prohibited Imports Regulations with “42 or 45”.
As noted above, it was intended that the importation of goods specified under table item 45, which are those goods previously specified in item 1 of Schedule 3 to the Prohibited Imports Regulations, continue to be subject to the requirement under subregulation 3C(1) of those Regulations.
The purpose of this item is to give effect to the policy intention.
Item 5 – Schedule 3 (at the end of the table)
This item adds a new item 11 into the table in Schedule 3 of the Prohibited Imports Regulations.
New table item 11 provides that, where devices whose operation or supply, or whose possession for the purpose of operation or supply, is prohibited by a declaration under section 190 of the Radiocommunications Act 1992 (the Radiocommunications Act), those devices must not be imported unless they are imported by a person whose acts or omissions relating to the devices are exempt from section 189 of that Act under a determination made under subsection 27(2) of that Act.
The prohibited device must be a device that:
- is designed to have an adverse effect on radiocommunications; or
- would be likely substantially to:
- interfere with radiocommunications; or
- disrupt or disturb radiocommunications in any other way; or
- is a radiocommunications transmitter, or a radiocommunications receiver, that would be reasonably likely to have an adverse effect on the health or safety of persons who:
- operate the device; or
- work on the device; or
- use services supplied by means of the device; or
- are reasonably likely to be affected by the operation of the device.
Signal jammers can prevent or disrupt mobile phone and satellite navigation services, which have the potential to adversely affect the public on a large scale, and as a result, the operation, supply or possession of these devices is prohibited by declaration made under section 190 of the Radiocommunications Act.
The purpose of this item is to prohibit the importation of devices mentioned in a declaration made under section 190 of the Radiocommunications Act into Australia, unless such importation is permitted by a determination under subsection 27(2) of that Act for the purpose of section 189 of that Act.
In effect, this would enable the Department to prosecute a person who imports the relevant devices in contravention of the prohibition, and to seize the devices at the border without a warrant. This prohibition would complement the domestic ban on the use of these devices.
Item 6 – Paragraph 1.2(c) of Part 1 of Schedule 13
Item 6 omits and substitutes the reference to “import” in paragraph 1.2(c) of Part 1 of Schedule 13 of the Prohibited Imports Regulations with “importer”.
Paragraph 1.2 of Part 1 of Schedule 13 of the Prohibited Imports Regulation relates to the Minister or an authorised person giving written permission for the importation of certain weapons and weapon parts as a requirement for the purpose of the official purposes test. In particular, paragraph 1.2(c) provides that “if the importer is required to hold a licence or authorisation to possess the good in the State or Territory in which the good is to be used – the import holds a licence or authorisation of that kind.”
The purpose of this item is to correct a typographical error in respect of the person who is to hold a licence or authorisation for the purpose of satisfying a requirement under the relevant test.
Customs Regulation 2015
Item 7 – Subclause 3(1) of Schedule 7 (table item 2)
Item 7 repeals table item 2 of the table under subclause 3(1) of Part 2 of Schedule 7 to the Customs Regulation 2015 (the Customs Regulation).
As noted in table item 1 above, previous item 1 of Schedule 3 to the Prohibited Imports Regulations was repealed by the Firearms Amendment Regulation and reinserted as table item 45 of Part 2 of Schedule 13 to those Regulations.
In addition, table item 1 of the table under subclause 3(1) of Schedule 7 to the Customs Regulation provides for all goods specified in under Part 2 of Schedule 13 of the Prohibited Imports Regulations.
As a result, table item 2 of the table under subclause 3(1) of Part 2 of Schedule 7 is redundant.
The purpose of this item is to remove the redundant table item.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Customs Legislation Amendment (Signal Jammers and Other Matters) Regulation 2016
The Legislative Instrument, titled the Customs Legislation Amendment (Signal Jammers and Other Matters) Regulation 2016 (the Amendment Regulation), is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
The purpose of the Amendment Regulation is to amend the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) to prohibit the importation of devices known as “signal jammer” into Australia, of which their use in Australia are prohibited by operation of section 190 of the Radiocommunications Act 1992 (the Radiocommunications Act).
The prohibited device must be a device that:
- is designed to have an adverse effect on radiocommunications; or
- would be likely substantially to:
- interfere with radiocommunications; or
- disrupt or disturb radiocommunications in any other way; or
- is a radiocommunications transmitter, or a radiocommunications receiver, that would be reasonably likely to have an adverse effect on the health or safety of persons who:
- operate the device; or
- work on the device; or
- use services supplied by means of the device; or
- are reasonably likely to be affected by the operation of the device.
Signal jammers can prevent or disrupt mobile phone and satellite navigation services, which have the potential to adversely affect the public on a large scale, and as a result, the operation, supply or possession of these devices is prohibited by declaration made under section 190 of the Radiocommunications Act.
The Amendment Regulation will prohibit the importation into Australia of devices that are prohibited by operation of section 190 of the Radiocommunications Act, unless permitted by a determination under subsection 27(2) of that Act for the purpose of section 189 of that Act.
In effect, this will enable the Department to prosecute a person who imports the relevant devices in contravention of the prohibition, and to seize the devices at the border without a warrant. This prohibition will complement the domestic ban on the use of these devices.
The Amendment Regulation will also amend the Prohibited Imports Regulations and the Customs Regulation 2015 to repeal redundant provisions and correct a typographical error.
The Amendment Regulation will commence on the day after it is registered on the Federal Register of Legislation.
Human rights implications
The Amendment Regulation does not engage any of the applicable rights or freedoms.
Conclusion
The Amendment Regulation is compatible with human rights as it does not raise any human rights issues.
The Hon. Peter Dutton MP, Minister for Immigration and Border Protection