EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 103
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2008 (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.
Section 50 of the Act provides, in part, that the Governor-General may, by regulation, prohibit the importation of goods into Australia. This 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 various regulations and Schedules.
The purpose of the amending Regulations is to allow, where the use is for certain State Agencies or for supply to the United Nations or the government of a country other than Australia, the importation into Australia of anti-personnel sprays (for example, Oleoresin Capsicum spray), chemicals used in the manufacture of anti-personnel sprays, and grenades or canisters designed for use with anti-personnel sprays or anti-personnel chemicals.
Subregulation 4(2) of the Principal Regulations prohibits the importation into Australia of goods specified in Schedule 3 to the Principal Regulations, subject to certain exceptions. Anti-personnel sprays and chemicals for use in the manufacture of anti-personnel sprays are specified in item 1 of Schedule 3 to the Principal Regulations (item 1 goods). Grenades or canisters, designed for use with anti-personnel sprays or anti-personnel chemicals, are specified in item 1A of Schedule 3 to the Principal Regulations (item 1A goods).
Item 1 and 1A goods could only be imported when written consent was produced to a Collector, and the goods were imported into Australia for use by the Commonwealth government (including for the use of the Australian Federal Police) or a State or Territory police force or correctional institution.
While certain State agencies are authorised by the relevant State governments to possess and use anti-personnel sprays and associated grenades or canisters, importers have been prohibited from importing item 1 or 1A goods for supply to these agencies; agencies could only access domestically-produced sprays, grenades or canisters. Similarly, importers have been prohibited from importing item 1 or 1A goods for supply to the United Nations or foreign governments.
The amending Regulations repeal and substitute items 1 and 1A of Schedule 3 to the Principal Regulations to additionally allow item 1 and 1A goods to be imported when:
a. the written consent of the Minister, the Commissioner of the Australian Federal Police or the commissioner (however designated) of the police force of a State or Territory is produced to a Collector, and the goods are imported for the use of: the Office of the New South Wales Sheriff; the Department of Primary Industries of Victoria; the Department of Sustainability and Environment of Victoria; the Office of Police Integrity of Victoria; or the Department of Primary Industries and Resources of South Australia; or
b. the goods are imported as part of a contract to which a person in Australia is a party, the person made the contract with the intention of supplying the goods to the United Nations or the government of a country other than Australia in a manner that does not contravene Australia's international obligations, and the contract is in force when the goods are imported.
Consultation was undertaken with the Police Ministers of all the States and Territories. No further 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.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
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Overview
The Customs (Prohibited Imports) Amendment Regulations 2008 (No. 4) were introduced to amend the Customs (Prohibited Imports) Regulations 1956 under the Customs Act 1901. The objective of these Regulations is to address a gap in the existing legal framework by allowing the importation of anti-personnel sprays, chemicals used in their manufacture, and associated grenades or canisters, under specific conditions. This change was necessitated to enable certain State agencies, as well as the United Nations or foreign governments, to access these items which were previously only available domestically or not at all through importation. The Regulations were enacted by the Minister for Home Affairs and aim to ensure that the importation of these items complies with Australia's international obligations while providing necessary access to authorised entities.
The Customs (Prohibited Imports) Amendment Regulations 2008 (No. 4) modify the Principal Regulations by adding new exceptions to the prohibition on importing item 1 and 1A goods. These exceptions allow the importation of specified goods when written consent is provided by the relevant authorities and the goods are intended for authorised State agencies or for supply to the United Nations or foreign governments, provided such actions do not contravene Australia's international obligations. The Regulations were developed following consultations with Police Ministers of all the States and Territories, and they came into effect on the day after their registration on the Federal Register of Legislative Instruments.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2008 (No. 4) amends the Customs (Prohibited Imports) Regulations 1956 to modify the importation restrictions on anti-personnel sprays, chemicals used in their manufacture, and related grenade or canisters. This amendment applies to the importation of these goods into Australia, allowing specified state agencies and entities, such as the United Nations or foreign governments, to import these items under certain conditions. Specifically, the importation of these goods is permitted if the importer provides written consent from the relevant authority and the goods are intended for use by authorised state agencies or for supply to international entities in compliance with Australia's international obligations. The amendment extends the existing regulatory framework by expanding the list of authorised entities eligible to import these items, while maintaining the overarching prohibition unless specific conditions are met. The scope of the amendment is confined to altering the exceptions to the prohibition, and it does not otherwise affect the existing regulatory structure governing other aspects of importation under the Customs Act 1901.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2008 (No. 4) primarily modify the existing Customs (Prohibited Imports) Regulations 1956, concerning the importation of specific anti-personnel sprays, chemicals used in their manufacture, and related grenades or canisters. Under the Customs Act 1901, the Governor-General has the authority to make regulations regarding the importation of goods, and these amending Regulations update the list of prohibited items to allow certain exceptions. Specifically, the amendments permit the importation of anti-personnel sprays, chemicals for their manufacture, and associated grenades or canisters, provided certain conditions are met (regulation 4(2)).
These conditions include the need for written consent from the Minister, the Commissioner of the Australian Federal Police, or the commissioner of a State or Territory police force, if the goods are intended for use by specified State agencies such as the Office of the New South Wales Sheriff, the Department of Primary Industries of Victoria, the Department of Sustainability and Environment of Victoria, the Office of Police Integrity of Victoria, or the Department of Primary Industries and Resources of South Australia. Additionally, the Regulations allow for the importation of these items if they are part of a contract for supply to the United Nations or a foreign government, as long as the contract complies with Australia's international obligations.
The Regulations impose obligations on importers to ensure that any importation of the specified items complies with the conditions outlined above. Importers must present the requisite written consent to a Collector upon importation and ensure that the goods are intended for the permitted uses. Failure to comply with these requirements can lead to the seizure of the goods and potential legal consequences.
In terms of penalties, breaches of the Customs Act 1901, including non-compliance with these Regulations, can result in civil and criminal penalties. Civil penalties may include fines, with the maximum penalty for a corporation potentially reaching up to 10,000 penalty units (as of the most recent updates, where 1 penalty unit is equal to AUD 220). Criminal penalties can include imprisonment, with the maximum penalty varying depending on the specific offence and the severity of the breach. The precise penalties are determined by the court based on the nature and circumstances of the offence.