EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 180
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2006 (No. 2)
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, subregulation 4C(3) prohibits the importation of chrysotile (a type of asbestos) and goods mentioned in Part 1 of Schedule 3B to the Principal Regulations that contain chrysotile, subject to certain exceptions.
However, subregulation 4C(4) of the Principal Regulations makes it clear that subregulation 4C(3) does not prohibit the importation into Australia of goods containing chrysotile, if those goods are incorporated into other goods in a way that does not constitute a risk to users until the chrysotile in the goods is disturbed. This type of chrysotile is known as ‘in-situ chrysotile’. The Principal Regulations do not control the importation of goods containing chrysotile if they are not listed in Part 1 of Schedule 3B, or if they contain in-situ chrysotile.
Commonwealth, State and Territory legislation currently bans the use, in the workplace or at home, of all goods containing in-situ asbestos. However, the Principal Regulations previously only controlled the import of certain goods containing chrysotile. The amending Regulations amend the Principal Regulations to control the importation of all goods containing chrysotile asbestos in the interests of policy consistency.
The amending Regulations repeal Part 1 of Schedule 3B and subregulation 4C(4) of the Principal Regulations so that all goods containing chrysotile are subject to import control. The amending Regulations also make consequential amendments to Schedule 3B by removing redundant headings, as well as removing references to Part 1 of Schedule 3B.
While no consultation was undertaken specifically in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements, there was consultation with industry leading up to the introduction of the 2003 Commonwealth and State asbestos prohibition.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
0604080A
Overview
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 2) were enacted to address a policy gap in the Customs (Prohibited Imports) Regulations 1956 by extending the prohibition on the importation of chrysotile asbestos into Australia. This amendment was necessitated by the need for consistency in policy across Commonwealth, State, and Territory jurisdictions, where the use of all goods containing in-situ asbestos is already banned. The enacting body for these regulations is the Governor-General under the authority granted by Subsection 270(1) and Section 50 of the Customs Act 1901. The primary objective of these regulations is to ensure that all imports containing chrysotile asbestos are subject to control, thereby aligning the import restrictions with the existing legislative bans on asbestos use domestically. This alignment was achieved by repealing specific parts of the Principal Regulations and making consequential amendments to streamline the regulatory framework.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 2) serve to refine the Customs (Prohibited Imports) Regulations 1956 under the authority granted by the Customs Act 1901. This legislative instrument applies to all persons and entities seeking to import goods into Australia, specifically targeting goods containing chrysotile asbestos. By extending the regulatory scope to all chrysotile-containing goods, the Act ensures a consistent approach with the broader policy of banning asbestos use in workplaces and homes, as mandated by Commonwealth, State, and Territory legislation. The Regulations apply across Australia and are designed to enforce the prohibition on the importation of chrysotile, whether it is in goods listed in Schedule 3B or not, unless they are incorporated in a manner that poses no risk until disturbed. The Regulations achieve this by repealing the previous exceptions for certain goods and removing outdated references, thereby aligning import controls with existing prohibitions on asbestos use.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 2) significantly alters the Customs (Prohibited Imports) Regulations 1956 (Principal Regulations) by expanding the scope of import controls on chrysotile asbestos. Under section 50 of the Customs Act 1901, these Regulations were introduced to ensure that the importation of hazardous substances, including chrysotile asbestos, aligns with national policy. Specifically, subregulation 4C(3) of the Principal Regulations prohibited the importation of chrysotile asbestos and certain goods containing chrysotile, with exceptions for goods where the chrysotile is in-situ and poses no risk until disturbed. However, the new Regulations remove these exceptions by repealing Part 1 of Schedule 3B and subregulation 4C(4), ensuring that all goods containing chrysotile are subject to import controls.
The Regulations impose stringent requirements on importers to ensure compliance with the new prohibitions. Importers must now verify that any goods they wish to bring into Australia do not contain chrysotile asbestos, except in cases where an appropriate import permit or licence has been obtained. This includes conducting thorough inspections and obtaining certification from manufacturers or suppliers that the goods are free from chrysotile. Importers are also required to maintain detailed records of these verifications and certifications to provide evidence of compliance in the event of an investigation or audit.
Failure to comply with these Regulations can lead to serious consequences. The Customs Act 1901 provides for both civil and criminal penalties for breaches. For instance, importing goods that contravene the Regulations may result in fines of up to $22,200 for individuals and $111,000 for corporations, as outlined under section 276 of the Act. Additionally, the importation of prohibited goods can lead to criminal charges, with potential imprisonment for up to five years under section 278 of the Act. These stringent measures underscore the importance of adhering to the Regulations to avoid severe legal repercussions.