EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 317
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2010 (No. 5)
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.
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 specified goods for the purposes of the Act, by prohibiting importation absolutely, or by making importation subject to a permission or licence.
The purpose of the amending Regulations is to amend the Principal Regulations in relation to the imports controls on anti-personnel sprays and chemicals for use in the manufacture of anti-personnel sprays, and their grenades and canisters (anti-personnel goods).
Subregulation 4(2) of the Principal Regulations prohibits the importation into Australia of goods specified in Schedule 3 to the PI 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 PI Regulations. Grenades or canisters, designed for use with anti-personnel sprays or anti-personnel chemicals, are specified in item 1A of Schedule 3 to the PI Regulations.
In July 2008, the import controls on anti-personnel goods were amended to allow the importation of such goods for supply to the United Nations or the government of another country. Items 1 and 1A require a contract for the supply to the United Nations or the other government to be in force at the time the goods are imported into Australia. This requirement has placed an unintended restriction on importers because, in most instances in which imported anti-personnel goods are supplied to the United Nations or other government, a contract for this supply will not be in place at the time of the importation of the goods.
The amending Regulations remove the requirement that there be a contract for such supply in force at the time the goods are imported. An importer, however, is still required to produce to Customs and Border Protection, documentary evidence (other than in the form of a contract), to verify that the goods are being imported for supply to the United Nations or the government of another country. This is consistent with the current requirement for anti-personnel goods being imported for the other specified purposes/end users.
The importation of anti-personnel goods under items 1 and 1A of Schedule is also subject to the requirement that the importer must obtain 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 and produce the consent to a Collector. However, this requirement does not extend to importation of anti-personnel goods for supply to the United Nations or the government of another country. In order to ensure consistency in the application of the import controls on anti-personnel goods, the amending Regulations extend the requirement to have and produce the written consent of the above-mentioned persons to anti-personnel goods imported for supply to the United Nations or the government of another country.
Items 1 and 1A also allow the importation of anti-personnel goods for the use of a number of State and Territory agencies, including police forces and correctional institutions. These agencies are authorised by the relevant State and Territory governments to possess and use anti-personnel goods. The amending Regulations add the Police Integrity Commission of New South Wales to the list of State and Territory agencies for whose use anti-personnel goods can be imported.
As the requirements for the importation of anti-personnel sprays and chemicals for use in the manufacture of anti-personnel sprays specified in item 1 and their grenades or canisters specified in item 1A are identical, the amending Regulations combine these two items into a single new item 1 in Schedule 3 to the PI Regulations.
Those businesses affected by the original import controls made in July 2008 were consulted in relation to the preparation of the amending Regulations.
The amending Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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 2010 (No. 5) were enacted to address an unintended restriction on the importation of anti-personnel goods into Australia. The original regulations, introduced in July 2008, required that a contract for the supply of such goods to the United Nations or the government of another country must be in force at the time of importation. This requirement was found to be impractical as contracts often do not exist at the time of importation. The 2010 amendment modifies these controls by removing the contract requirement for such imports while still requiring documentary evidence to verify the intended end user. Furthermore, the amendment ensures consistency in import controls by extending the need for written consent from specified authorities to all anti-personnel goods imported for supply to the United Nations or another government. Additionally, the regulation adds the Police Integrity Commission of New South Wales to the list of authorised State and Territory agencies for which anti-personnel goods can be imported. The amendment was prepared in consultation with businesses affected by the original import controls and is a legislative instrument under the Legislative Instruments Act 2003.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 5) amends the Customs (Prohibited Imports) Regulations 1956 to alter the import controls on anti-personnel sprays, chemicals for the manufacture of such sprays, and their associated grenades and canisters. These amendments apply to all persons and entities involved in the importation of these goods into Australia. The amendments remove the requirement for a contract to be in force at the time of importation when supplying these goods to the United Nations or another government, but importers must still provide documentary evidence of the intended end use. The regulations also extend the requirement for written consent from relevant authorities to all anti-personnel goods, including those for supply to the United Nations or another government. Additionally, the regulations update the list of authorised State and Territory agencies that can import these goods for their use, adding the Police Integrity Commission of New South Wales. The amendments apply across Australia and are subject to the overarching provisions of the Customs Act 1901, which grants the Governor-General the authority to make regulations governing the importation of goods. The Regulations commence on the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 5) amend the Customs (Prohibited Imports) Regulations 1956, particularly in relation to the import controls on anti-personnel sprays and chemicals used in their manufacture, as well as their grenades and canisters (referred to as anti-personnel goods). Section 50 of the Customs Act 1901 allows for the prohibition of importing goods into Australia, either absolutely or under certain conditions. Subregulation 4(2) of the Principal Regulations initially prohibited the importation of anti-personnel sprays and chemicals, as well as grenades and canisters, unless specific conditions were met. The amendment removes the requirement for a contract to be in place at the time of importation when supplying the United Nations or another government, instead requiring documentary evidence that the goods are for these purposes. This amendment also extends the requirement to obtain written consent from specified authorities to all anti-personnel goods, ensuring consistency in the application of import controls.
The Regulations impose several obligations on parties importing anti-personnel goods. Importers must ensure that they have documentary evidence to verify the end use of the goods, especially when supplying to the United Nations or another government. Furthermore, they must obtain written consent from the Minister, the Commissioner of the Australian Federal Police, or the commissioner of a State or Territory police force before importing anti-personnel goods. This requirement applies to all anti-personnel goods, including those for the use of specified State and Territory agencies, such as police forces and correctional institutions, as well as the newly added Police Integrity Commission of New South Wales.
Failure to comply with the Regulations can result in significant legal consequences. Under the Customs Act 1901, importing goods that are prohibited or subject to restrictions without the necessary consent or documentary evidence can lead to criminal charges. The maximum penalties for these offences include fines and imprisonment. Specifically, under section 270(1) of the Act, penalties can reach up to $22,200 and/or imprisonment for two years for individuals, and $111,000 and/or imprisonment for five years for corporations. Additionally, non-compliance can also result in the confiscation of the prohibited goods and potential civil liabilities.