EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 226
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2008 (No. 5)
Section 270 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 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 repeal the control on the importation of dog collars that are designed to administer an electric shock ("electric dog collars"). The control on the importation of electric dog collars was originally introduced in 1980 at the request of the then Department of Primary Industries and Energy. The lack of sophistication of the devices available at the time resulted in concerns over their usage and for animal welfare.
Domestically produced electric dog collars are freely available for sale in several Australian States and the Northern Territory. The National Consultative Committee on Animal Welfare (NCCAW) is the peak advisory body established to provide advice on animal welfare issues. At their August 2008 meeting, NCCAW supported the removal of the prohibition on the importation of electric dog collars.
Subregulation 4(1) of the Principal Regulations provides that the importation into Australia of goods specified in Schedule 2 to the Principal Regulations is prohibited unless the permission in writing of the Minister or an authorised person to import the goods has been granted. Item 10 of Schedule 2 specifies for subregulation 4(1) “dog collars incorporating:
(a) apparatus designed to cause an electric shock (electric dog collars); or
(b) protrusions designed to puncture or bruise an animal’s skin.”
The amending Regulations repeal the control on the importation of electric dog collars as set out in subitem 10(a) of Schedule 2. The control on the importation of dog collars incorporating protrusions designed to puncture or bruise an animal’s skin has been retained.
The fact that electric dog collars are available for sale in several States and the Northern Territory also raises concerns that the control on their importation does not comply with Australia's international obligations under Articles III and XI of the General Agreement on Tariffs and Trade (GATT). Article III is designed to prevent discrimination between the treatment of foreign and domestically produced goods, and Article XI prohibits the use of import restrictions or prohibitions, other than duties, taxes and charges.
Controlling the importation of electric dog collars while they are freely available for domestic sale may be inconsistent with these Articles, especially as this import control also does not fall within any of the exceptions set out in Article XX of GATT.
Consultation was undertaken with NCCAW, a non-statutory body established by the Australian Government in 1989. One of its terms of reference is to assess and advise the Federal Government on the national implications of welfare issues affecting animals. Membership of NCCAW includes representatives of the Royal Society for the Prevention of Cruelty to Animals, Animals Australia, the Australian Veterinary Association, the National Farmers Federation, State Government, the Department of Agriculture, Fisheries and Forestry and the Horse Industry.
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. 5) were enacted to amend existing regulations concerning the importation of goods into Australia under the Customs Act 1901. The primary focus of this legislation was to address the outdated prohibition on the importation of electric dog collars, which had been in place since 1980 due to concerns about the devices' sophistication and potential animal welfare issues. Given that electric dog collars are now available for sale in several Australian states and territories, the regulation was deemed inconsistent with Australia's international trade obligations under the General Agreement on Tariffs and Trade (GATT), particularly Articles III and XI, which aim to prevent discriminatory treatment of imported goods and prohibit import restrictions, respectively. The policy objective, as outlined in the explanatory statement, is to align Australia’s import control measures with its international commitments while considering animal welfare advice from the National Consultative Committee on Animal Welfare.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2008 (No. 5) under the Customs Act 1901 repeal the prohibition on the importation of electric dog collars into Australia. This amendment applies to individuals and entities attempting to import such devices, aligning the import regulations with domestic availability and addressing concerns over compliance with Australia's international trade obligations. These obligations include Articles III and XI of the General Agreement on Tariffs and Trade (GATT), which aim to prevent discrimination between foreign and domestic goods and prohibit import restrictions beyond duties, taxes, and charges. The regulations specifically target subitem 10(a) of Schedule 2 of the Principal Regulations, which previously prohibited the importation of dog collars incorporating apparatus designed to cause an electric shock, while retaining the prohibition on collars with protrusions intended to cause injury. The changes follow advice from the National Consultative Committee on Animal Welfare, which recommended the removal of the import ban on electric dog collars, reflecting advancements in technology and improved animal welfare standards.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2008 (No. 5) make significant changes to the importation controls of certain goods into Australia, specifically targeting electric dog collars. Under section 50 of the Customs Act 1901, these Regulations amend the existing Customs (Prohibited Imports) Regulations 1956 to repeal the prohibition on the importation of electric dog collars, effective from the date they are registered on the Federal Register of Legislative Instruments. These collars, which were originally prohibited in 1980 due to concerns over animal welfare and the sophistication of the devices available at the time, will no longer be subject to importation restrictions. This change aligns with the current availability of such collars for sale in several Australian states and territories.
The Regulations impose certain obligations on individuals and entities involved in the importation of goods into Australia. Importers must now ensure that any electric dog collars being imported do not fall under the category of prohibited goods. This change in regulation requires importers to be aware of the specific items that remain prohibited under the Regulations, such as dog collars with protrusions designed to cause injury to animals. Importers must also ensure compliance with any conditions or restrictions that may still apply to the importation of other specified goods. This includes obtaining written permission from the Minister or an authorised person where necessary, as outlined in subregulation 4(1) of the Principal Regulations.
Failure to comply with the provisions of the Customs Act 1901 and the Customs (Prohibited Imports) Regulations can lead to various civil and criminal consequences. Importers who contravene the importation prohibitions may face penalties under section 267 of the Act, which includes fines and imprisonment. Specifically, for each offence involving the importation of prohibited goods, an individual can be fined up to 10,000 penalty units or imprisoned for up to five years, or both. Corporations may face higher fines, up to 50,000 penalty units. These penalties underscore the importance of adhering to the Regulations and ensuring compliance to avoid severe legal repercussions.