EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 275
Subject - Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2010 (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 matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or 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 and that the power may be exercised by prohibiting the importation of goods in specified circumstances or unless specified conditions or restrictions are complied with. Subsection 50(3) of the Act states that the regulations may prohibit the importation of the goods unless a licence, permission, consent or approval to import them has been granted.
The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of the goods specified therein, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a specified person.
The purpose of the amending Regulations was to amend the Principal Regulations to improve their technical operation by improving consistency with State and Territory firearms control legislation and removing ambiguity around the import permit scheme.
The amending Regulations:
- replaced all instances of the word ‘replica’ with ‘imitation’ (for consistency with State and Territory legislation);
- clarified the discretionary nature of the power to grant import permission such that the Attorney-General may, but is not obliged to, give permission to import where specified conditions are met;
- gave certainty to shooters who take their firearms overseas for legitimate reasons that they can obtain permission to re-import them upon their return to Australia if they meet an established criteria;
- prescribed the form by which to apply for import permission; and
- retitled the ‘Police Authorisation test’ to the ‘Police Certification test’ to clarify that police do not ‘authorise’ an importation, but rather certify that certain conditions have been met by the applicant.
Details of the amendments are set out in the Attachment.
The Act specified no conditions that needed to be satisfied before the power to make the amending Regulations was exercised.
Public consultation was not necessary as the amending Regulations were of a minor or machinery nature and did not alter any substantive rules relating to the import permit scheme.
The amending Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The amending Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Authority: Section 270 of the Customs Act 1901
ATTACHMENT
Details of the Customs (Prohibited Imports) Amendment Regulations 2010 (No. 2)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Customs (Prohibited Imports) Amendment Regulations 2010 (No. 2)
Regulation 2 – Commencement
This regulation provides for the Regulations to commence the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 – Amendment of Customs (Prohibited Imports) Regulations 1956
This regulation provides that the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) are amended as set out in the Schedule.
Schedule – Amendments
Item [1] and [2] – subregulation 2 (1) after definition of HFC
Subregulation 2 (1) of the Principal Regulations provides a list of definitions of terms used therein. Items [1] and [2] replace the definition of the term ‘replica’ contained at subregulation 2(1) with a definition of ‘imitation’ (contained at subregulation 4F (4)). The use of the term ‘imitation’ instead of ‘replica’ is to maintain consistency with State and Territory legislation.
Item [3] [4] and [5] – Regulation 4F and heading, subregulations 4F (1), (2), (2B) and (3)
Regulation 4F controls the import of firearms, firearm parts and replicas into Australia via an import permit scheme. Items [3] to [5] replace all instances of the word ‘replica’ within Regulation 4F (and its heading) with the word ‘imitation’ in order to maintain consistency with State and Territory legislation.
Item [6] – Schedule 6, heading
Schedule 6 of the Principal Regulations sets out the specific requirements to import firearms, firearm accessories and replicas under Regulation 4F. Item [6] amends the heading at Schedule 6 to omit the word ‘replica’ and replace it with the word ‘imitation’ in order to maintain consistency with State and Territory legislation.
Item [7] and Item [8] – Schedule 6, Part 1, subitems 1.2, 2.2 and 3.2
Schedule 6, Part 1, subitems 1.2, 2.2 and 3.2 of the Principal Regulations state that the Attorney General must not give written permission to import an item unless certain conditions are met. This power to grant import permission is discretionary, however the previous wording of the provision may have created an expectation that permission must be granted where the specified conditions are met. For avoidance of doubt, Items [7] and [8] clarify the discretionary nature of the power to grant import permission such that the Attorney-General may, but is not obliged to, give permission to import where specified conditions are met.
Item [9] – Schedule 6, Part 1, item 4, heading
Schedule 6, Part 1, item 4, of the Principal Regulations sets out the requirements of the Police Authorisation test for the importation of certain articles. Item [9] retitles the test to ‘Police certification test’ to more accurately reflect the role of State and Territory Police forces under the import permit scheme.
Item [10] - Schedule 6, Part 1, subitem 4.1
Schedule 6, Part 1, subitem 4.1 of the Principal Regulations sets out the types of articles which may be imported under the Police Authorisation test, including replica firearms. Item [10] amends subitem 4.1 to reflect the new name of the test (Police Certification) and replace the word ‘replica’ with ‘imitation’ for consistency with State and Territory legislation.
Item [11] - Schedule 6, Part 1, subitem 5.2
Schedule 6, Part 1, subitem 5.2 of the Principal Regulations provides that the Attorney‑General must not grant permission to import an item under the ‘Sports shooter test’ unless the importer is a certified sports shooter.
This power to grant import permission is discretionary, however the previous wording of the provision may have created an expectation that permission must be granted where the specified conditions are met. For avoidance of doubt, Item [11] amends the subitem to clarify the discretionary nature of the power to grant import permission under the ‘Sports shooter test’ such that the Attorney-General may, but is not obliged to, give permission to import where specified conditions are met.
Item [12] - Schedule 6, Part 1, subitem 5A.2
Schedule 6, Part 1, subitem 5A.2 of the Principal Regulations provides that the Attorney‑General must not grant permission to import an item under the ‘International sports shooter test’ unless the importer is a certified international sports shooter. This power to grant import permission is discretionary, however the previous wording of the provision may have created an expectation that permission must be granted where the specified conditions are met. For avoidance of doubt, Item [12] amends the subitem to clarify the discretionary nature of the power to grant import permission to import an item under the ‘International sports shooter test’ such that the Attorney-General may, but is not obliged to, give permission to import where specified conditions are met.
Item [13] – Schedule 6, Part 1, subitem 6.2
Schedule 6, Part 1, subitem 5A.2 of the Principal Regulations provides that the Attorney‑General must not grant permission to import an item under the ‘Dealer test’ unless satisfied as to the criteria contained as sub subitems (a) and (b). This power to grant import permission is discretionary, however the previous wording of the provision may have created an expectation that permission must be granted where the specified conditions are met. For avoidance of doubt, Item [13] amends the subitem to clarify the discretionary nature of the power to grant import permission to import an item under the ‘Dealer test’ such that the Attorney-General may, but is not obliged to, give permission to import where specified conditions are met.
Item [14] – Schedule 6, Part 1, subitems 8.2 and 8.3
Schedule 6, part 1, subitems 8.2 and 8.3 of the Principal Regulations provide that the Attorney‑General must not grant permission to import an item under the ‘Returned goods test’ unless the criteria at sub subitems (a) to (d) are satisfied. This power to grant import permission is discretionary, however the previous wording of the provision may have created an expectation that permission must be granted where the specified conditions are met. For avoidance of doubt, Item [14] amends the subitem to clarify the discretionary nature of the power to grant import permission to import an item under the ‘Returned goods test’ such that the Attorney-General may, but is not obliged to, give permission to import where specified conditions are met.
Item [14] also modifies the structure of subitem 2 by condensing the mandatory criteria formerly contained at sub subitems (a) to (d) into a new sub subitem (a).
Item [14] further adds a new sub subitem (b) that allows licence holders to be granted a permit to re-import items prior to exporting them. This provides certainty for shooters wishing to take a firearm out of the country that they will be allowed to bring it back upon their return, by enabling them to apply for permission to import prior to departure, subject to the criteria under sub subitem (b).
Item [15] – Schedule 6, Part 1, after item 8
This item amends the Principal Regulations to add a new item 9 that enables the Secretary of the Attorney-General’s Department to prescribe forms to be used in an application for import permission under the Principal Regulations.
Item [16] – Schedule 6, Part 2, heading
Part 2 of Schedule 6 of the Principal Regulations outlines which requirements (and in particular which ‘test’) must be satisfied to import a given article. Item [16] amends the Part 2 heading to omit the word ‘replicas’ and replace it with ‘imitations’ to provide consistency with State and territory legislation.
Item [17] – Schedule 6, Part 2, column 2, heading
This item substitutes the word ‘replica’ for the word ‘imitation’ in the heading of column 2.
Item [18] [10] [20] [21] [22] [23] – Schedule 6, Part 2
Items [18] to [23] amend each column of each item under Part 2 to replace all instances of the word ‘replica’ with ‘imitation’ (in column 2), and each occurrence of ‘police authorisation test’ with ‘police certification test’. This provides consistency with State and Territory legislation and more accurately reflects the role of State and Territory Police forces under the import permit scheme.
Item [24] – Schedule 6, Part 3, heading
Schedule 6, Part 3 of the Principal Regulations provides conditions related to the import of firearms and replica firearms. Item [24] amends the Part 3 heading to replace the word ‘replicas’ with the word ‘imitations’ to provide consistency with State and Territory legislation.
Item [25] – Schedule 6, Part 3, paragraph 1.2 (b)
Schedule 6, Part 3, paragraph 1.2 provides that safety testing requirements do not apply to certain items imported under Part 3. Item [25] amends paragraph 1.2 (b) to replace the word ‘replica’ with the word ‘imitation’ to provide consistency with State and Territory legislation.
Item [26] – Further amendments, Police Authorisation test
Item [26] amends Schedule 6, Part 2 in eleven places to replace all instances of ‘Police authorisation test’ with ‘Police certification test’ to more accurately reflect the role of State and Territory Police forces under the import permit scheme.