EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 44
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2006 (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 for giving effect to the Act.
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.
In particular, regulation 4U of the Principal Regulations prohibits the importation of goods listed in Schedule 12 to the Principal Regulations, unless permission in writing is given by the relevant Minister to import the goods. Schedule 12 sets out the goods which are subject to a permanent ban imposed under the Trade Practices Act 1974 (the TP Act). Similarly, regulation 4S of the Principal Regulations prohibits the importation of certain lighters, unless permission in writing is given by the relevant Minister to import the goods.
The purpose of the amending Regulations is to prohibit the importation of certain jelly confectionery products and to clarify the definition of ‘Minister’ in regulations 4S and 4U.
The amending Regulations amend Schedule 12 to the Principal Regulations to prohibit the importation of a jelly confectionery product, including a product marketed using the expression “mini cup”, containing the ingredient ‘konjac’ (otherwise known as glucomannan, conjac, konnyaku, konjonac, taro powder and yam flour) and having a height or width of less than or equal to 45 mm.
The supply of these particular goods are subject to a permanent ban under the TP Act imposed on 13 April 2004. The ban followed an earlier declaration published on 7 August 2002 under the TP Act, declaring these goods to be unsafe goods which will or may injure a person.
The goods are banned under the TP Act because they pose an unacceptable risk to public health. The shape and consistency of the jellies containing the konjac can plug the throat when swallowed whole, effectively cutting off the air supply. The products have been associated with fifteen deaths around the world, including in Australia.
There have been extensive consultations with suppliers before the introduction of the ban under the TP Act. Accordingly, further consultation was not considered necessary for these amendments to the Regulations as they will support the domestic ban.
The amending Regulations also amend the definition of ‘Minister’ contained in subregulations 4S(5) and 4U(4) of the Principal Regulations. ‘Minister’ is defined as the Minister administering Part V of the TP Act. However, under the current Administrative Arrangement Orders, there are two Ministers administering Part V - the Minister for Industry, Tourism and Resources (administering Division 1AA of Part V) and the Treasurer (administering the remainder). Thus, it is possible that a person could apply to either Minister for permission.
The amending Regulations make it clear that it is the Treasurer (or the Parliamentary Secretary to the Treasurer and the Assistant Treasurer) who must give the permission to import the goods, by limiting the definitions to the Minister who administers Division 1A of Part V of the TP Act.
No consultation was undertaken in relation to the amendment to subregulations 4S(5) and 4U(4) 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.
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