EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 199
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2009 (No. 4)
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.
Regulation 4C of the Principal Regulations prohibits the importation of amphibole asbestos and goods containing amphibole asbestos, and chrysotile and goods containing chrysotile, subject to certain exceptions. The term 'amphibole asbestos' is defined in regulation 2 of the Principal Regulations to mean asbestos in a form other than chrysotile. The term 'asbestos' is defined in regulation 2 to mean any of the following fibrous forms of mineral silicates belonging to the serpentine or amphibole groups of rock-forming minerals: actinolite asbestos, amosite (brown asbestos), anthophyllite asbestos, chrysotile (white asbestos), crocidolite (blue asbestos) or tremolite asbestos.
The amending Regulations amend the import control which applies to ships and resources installations which contain amphibole asbestos and chrysotile. Ships and resources installations contracted or sold to undertake work in Australian waters are taken to be imported goods under the Act and are subject to regulation 4C.
On 15 June 2006, regulation 4C of the Principal Regulations was amended to remove the exception which permitted the importation of goods which contain chrysotile where the chrysotile is incorporated into goods in a way that does not constitute a risk to users until the chrysotile is disturbed ("in-situ" asbestos).
The removal of the exception, in combination with the original regulation 4C, created an unintended consequence for imported ships and resources installations which contain in-situ asbestos. Ships and resources installations which contain in-situ asbestos could only be imported once appropriate permissions have been obtained. For goods containing chrysotile asbestos such permissions was only able to be given for very limited uses (for example, for research and analysis purposes). The restriction on the importation of ships and resources installations which contain in-situ asbestos has had significant implications for Australian industry, particularly in offshore gas and oil exploitation.
The amending Regulations remove the import control for ships and resources installations containing in-situ asbestos (whether amphibole asbestos or chrysotile), where the ship or resources installation is at least 150 gross tonnage (as shown by the International Tonnage Certificate (1969) for the ship or resources installation), and where the in-situ asbestos was fixed or installed before 1 January 2005.
The amending Regulations do not alter industry’s obligations and responsibilities in respect of providing a safe workplace on ships and resources installations or the obligations and responsibilities under relevant Commonwealth, state and/or territory occupational health and safety (OH&S) legislation.
The import control continues to prohibit the importation of ships or resources installations where the in-situ asbestos is fixed or installed after 1 January 2005.
The in-situ asbestos import control was implemented in July 2006 at the request of the Workplace Relations Ministers' Council (WRMC) comprising federal, State and Territory Ministers responsible for workplace relations, occupational health and safety and workers compensation in their respective jurisdictions. In August 2008, the WRMC was advised of the unintended consequences of the import control. The WRMC did not object to the proposal to amend the import control to address these unintended consequences on the basis that this would not facilitate the operation of non-compliant ships in Australia.
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 2009 (No. 4) were enacted to address unintended consequences arising from the importation restrictions on ships and resources installations containing in-situ asbestos. This legislation amends the Customs (Prohibited Imports) Regulations 1956, controlled under Section 50 of the Customs Act 1901, which allows the Governor-General to prohibit the importation of goods into Australia. Specifically, the regulations modify the control over the importation of ships and resources installations containing in-situ asbestos, permitting the importation of such installations if they are at least 150 gross tonnage, and the asbestos was fixed or installed before 1 January 2005. The aim of this amendment is to mitigate the significant industry implications, particularly in offshore gas and oil exploitation, while maintaining existing obligations and responsibilities under occupational health and safety legislation. The policy objective is to ensure the safe operation of non-compliant ships and resources installations in Australian waters without compromising workplace safety standards.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 4) amends the Customs (Prohibited Imports) Regulations 1956, which control the importation of goods specified in various regulations and schedules, including the prohibition of amphibole asbestos and chrysotile asbestos. These regulations apply to any person or entity seeking to import goods into Australia, with a particular focus on ships and resources installations contracted or sold to undertake work in Australian waters. These installations are deemed as imported goods under the Customs Act 1901. The amendments specifically address the unintended consequences of previous regulations that restricted the importation of ships and resources installations containing in-situ asbestos, impacting industries such as offshore gas and oil exploitation. The amendment removes the import control for ships and resources installations containing in-situ asbestos, provided the installation is at least 150 gross tonnage and the asbestos was fixed or installed before 1 January 2005. However, the importation of such ships or installations remains prohibited if the in-situ asbestos was fixed or installed after this date. The Regulations do not affect industry obligations concerning workplace safety or obligations under occupational health and safety legislation. The changes are intended to address the unintended consequences identified by the Workplace Relations Ministers' Council, which supports the amendment on the condition that it does not facilitate the operation of non-compliant ships in Australia.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 4) make changes to the Customs (Prohibited Imports) Regulations 1956 (Principal Regulations) to adjust the import control for ships and resources installations containing in-situ asbestos. Specifically, regulation 4C of the Principal Regulations is amended to remove the import prohibition for ships and resources installations that contain in-situ asbestos, provided they are at least 150 gross tonnage and the asbestos was fixed or installed before 1 January 2005 (regulation 3). This is a significant change from the original regulation 4C, which, combined with its 2006 amendment, had unintentionally restricted the importation of such ships and resources installations. The change aims to address the negative impact on Australian industry, particularly in the offshore gas and oil sector, caused by these restrictions.
The Regulations impose certain obligations on entities involved in the importation of ships and resources installations. They must ensure that any in-situ asbestos in the ship or installation was fixed or installed before 1 January 2005 and that the ship or installation meets the minimum gross tonnage requirement of 150 gross tonnage (regulation 4). Additionally, the Regulations do not alter any existing obligations or responsibilities related to providing a safe workplace or compliance with occupational health and safety laws. These obligations remain governed by relevant Commonwealth, state, and territory legislation.
Breaching the provisions of these Regulations could lead to significant legal consequences. Although the Regulations themselves do not explicitly state penalties, contraventions of the Customs Act 1901 (Act) may result in penalties as outlined in the Act. For instance, knowingly importing prohibited goods can lead to criminal charges, with potential penalties including substantial fines and imprisonment (section 226 of the Act). Civil penalties may also apply, and the importation of prohibited goods can lead to the seizure and forfeiture of the goods (section 228 of the Act). The exact penalties depend on the specific circumstances and the value of the goods involved.