EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 249
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2005 (No. 4)
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 other business relating to Customs.
Section 50 of the Act provides in part that the Governor-General may, by regulation, prohibit the importation of goods into Australia and that the power may be exercised by prohibiting the importation of goods absolutely or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.
The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of the goods specified in the various regulations and the Schedules to the Principal Regulations, by prohibiting importation absolutely, or by making importation subject to a permission or licence.
Schedule 2 to the Principal Regulations specifies goods the importation of which is prohibited unless the permission in writing of the Minister or an authorised person to import the goods has been granted.
The purpose of the amending Regulations is to substitute item substitute item 29A of Schedule 2 to the Principal Regulations, which previously restricted the importation of protective jackets and vests, body armour, and other articles of apparel, that are designed to resist the penetration of a projectile discharged from a firearm.
The previous item 29A was inserted into Schedule 2 in March 2002 in accordance with the uniform prohibited weapons list developed pursuant to resolutions of the Australasian Police Ministers’ Council (APMC) in 1998. In October 2002, the Australian Customs Service (Customs) seized a “body armour, fragmentation protective vest” which, in their view, fell within the terms of item 29A. The importer was prosecuted under paragraph 233(1)(b) of the Act for importing a prohibited import. In a decision handed down by the County Court of Victoria on
13 May 2004, R v Younan - appeal number AP-404068, it was held that the vest was designed for protection against non-deforming fragments emitted from explosive devices and not designed to resist penetration of a projectile discharged from a firearm and hence it did not fall within the terms of item 29A.
The amending Regulations substitute a broader item 29A. New item 29A covers certain anti-ballistic articles able to be worn, either independently or as part of something else, that are designed or adapted to protect the human body from the effects of a weapon. Such articles include body armour, protective jackets, protective vests, protective suits, anti-ballistic articles or any other similar articles. Anti-ballistic articles used for eye or hearing protection are excluded from the restrictions.
As well as covering articles that are designed to protect against non-deforming fragments emitted from explosive devices, new item 29A ensures that parts of these articles are restricted, for example anti-ballistic plates designed to fit in protective jackets.
No consultation was undertaken in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements. Prior to the May 2004 Court case, and in line with the framework agreed through the Australasian Police Ministers’ Council, Customs applied the regulation to control all body armour, protective jackets, protective vests and the like, on importation into Australia, irrespective of their specific anti-ballistic properties.
The amending Regulations commence on the day after they are registered.
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Overview
The Customs (Prohibited Imports) Amendment Regulations 2005 (No. 4) were enacted to address a gap identified in the Customs (Prohibited Imports) Regulations 1956, specifically concerning the importation of protective apparel designed to resist penetration from projectiles discharged from firearms. This amendment was introduced by the Minister for Justice and Customs under the authority granted by the Customs Act 1901. The policy objective of the amendment is to ensure that protective apparel imported into Australia meet the necessary standards for resisting ballistic threats, thereby aligning with national security interests and international standards set by the Australasian Police Ministers’ Council. The regulation was necessary following a court case where it was determined that certain protective vests did not fall under the existing prohibitions, despite being designed to protect against non-deforming fragments from explosive devices. The new regulations provide a broader scope to cover such items effectively.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2005 (No. 4) pertains to the importation of specific goods into Australia under the Customs Act 1901. These regulations are concerned with controlling the importation of anti-ballistic articles designed to protect the human body from the effects of a weapon, including body armour, protective jackets, protective vests, and protective suits. The regulations apply to any person or entity attempting to import these goods into Australia and are designed to ensure compliance with the prohibitions set out in the Customs Act. The geographic reach of these regulations is national, as they apply throughout Australia. The amendments exclude anti-ballistic articles used for eye or hearing protection from the restrictions, and the regulations extend to cover parts of these articles such as anti-ballistic plates designed for use in protective jackets. The regulations are implemented to ensure that the importation of such goods is subject to the necessary permissions or licences, as specified by the Customs Act and the Principal Regulations. The application of these regulations can be further detailed or modified through subordinate instruments, but the primary focus remains on controlling the importation of protective apparel designed to withstand ballistic threats.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2005 (No. 4) under the Customs Act 1901 (the Act) specifically amend Schedule 2 of the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) (section 2). The main operative section of these amending regulations is section 3, which substitutes the existing item 29A in Schedule 2. This amendment broadens the scope of items that are subject to import restrictions, ensuring that any anti-ballistic articles designed to protect the human body from the effects of a weapon, including body armour, protective jackets, and protective vests, are now explicitly covered. Articles intended for eye or hearing protection are excluded from these restrictions (section 3). This new item 29A ensures that not only the main articles but also their components, such as anti-ballistic plates designed for use in protective jackets, are subject to the prohibition unless specific permission is granted in writing by the Minister or an authorised person (Schedule 2, item 29A).
The obligations imposed by these regulations on parties or entities are primarily centred on compliance with the import restrictions. Importers must ensure that any anti-ballistic articles they wish to bring into Australia either comply with the specified conditions or obtain the necessary written permission from the Minister or an authorised person before importation. This requirement extends to all components of these articles that are designed or adapted to offer ballistic protection, thereby broadening the scope of compliance beyond just the main protective items to include their integral parts. Failure to comply with these requirements can result in legal consequences, as the regulations are strictly enforced to maintain the security and safety standards set by the Act (section 50).
The Act provides for significant consequences in the event of a breach of the import restrictions outlined in the regulations. Importing goods that are subject to these restrictions without the requisite permission constitutes an offence under the Customs Act 1901 (subsection 270(1)). Specifically, subsection 233(1)(b) of the Act makes it an offence to import prohibited goods, and those found guilty can face severe penalties. The maximum penalty for contravening these regulations can include substantial fines and, in some cases, imprisonment, reflecting the seriousness with which the Act treats breaches of these import restrictions (subsection 233(2)). These stringent penalties underscore the importance of adhering to the regulations to avoid facing serious legal repercussions.