EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 173
Subject - Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2011 (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. The 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 therein, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a delegate.
Schedule 6 of the Principal Regulations sets out the requirements for the importation of firearms, firearm accessories, firearm parts, firearms magazines, ammunition, components of ammunition and imitations.
The purpose of the amending Regulation was to amend the Principal Regulations by adding a new limb to the ‘Specified purposes test’. This new limb will enable the Minister or a delegate to grant permission to foreign law enforcement agencies invited to participate in a ‘law enforcement sanctioned activity’ by the government of the Commonwealth, a State or a Territory to import firearms for use in that specified ‘law enforcement sanctioned activity’ if certain criteria are met.
This new limb mirrors the ‘defence sanctioned activity test’ currently found in the Regulations. The intention was to provide the same conditions to invited ‘law enforcement agencies’ as to invited defence forces recognising that there is now greater interaction between law enforcement agencies, for example, in undertaking joint training exercises on Australian soil, and to assist with providing security at large events under Australian operational control.
To be eligible to import Schedule 6 articles under the ‘law enforcement sanctioned activity test’, law enforcement agencies must be invited by the government of the Commonwealth, a State or a Territory. To be a ‘law enforcement sanctioned activity’ the event must be approved by the Commissioner or Deputy Commissioner of the Australian Federal Police or the State or Territory Police or the Secretary or Deputy Secretary of the Commonwealth Attorney-General’s Department.
It is not intended that a ‘law enforcement sanctioned activity’ be approved by a Secretary or a Deputy Secretary of a State or Territory Attorney-General’s Department. The Commonwealth Attorney-General has specifically been included as he / she is the most appropriate person for considering invitations for the purposes of National Counter Terrorism Committee (NCTC) training.
Law enforcement agencies are intentionally not defined so as to allow the flexibility to recognise entities who may not be a ‘law enforcement agency’ as per Australian definitions, but who may be a law enforcement agency in their country.
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 machinery in nature, removing ambiguity around the current legal position of the Commonwealth Government to authorise importation of controlled firearms for the purposes of law enforcement sanctioned training or performing of operational duties.
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
Overview
The Customs (Prohibited Imports) Amendment Regulations 2011 (No. 2) were enacted to address a gap in the Customs Act 1901 by providing a clear legal framework for foreign law enforcement agencies to import firearms into Australia for participation in law enforcement sanctioned activities. This legislation was introduced by the Parliament of Australia to align the importation regulations for law enforcement agencies with those for defence forces, recognising the increasing collaboration between these entities. The Customs Act 1901, as amended, empowers the Governor-General to make regulations that are necessary for carrying out or giving effect to the Act, including the prohibition of certain imports and the specification of conditions under which such imports may occur. The primary policy objective behind these amendments is to facilitate the smooth conduct of joint training exercises and operational security at large events, all while ensuring that the importation of firearms adheres to stringent regulatory controls.
The Customs (Prohibited Imports) Amendment Regulations 2011 (No. 2) introduced a new limb to the 'Specified purposes test' within the Customs (Prohibited Imports) Regulations 1956. This addition allows the Minister or a delegate to grant permission for foreign law enforcement agencies, invited by the government of the Commonwealth, a State or a Territory, to import firearms if certain criteria are met. This change mirrors the existing 'defence sanctioned activity test', providing consistency in the regulatory approach. The amendments aim to remove ambiguity and clarify the legal position of the Commonwealth Government in authorising the importation of controlled firearms for sanctioned law enforcement activities, thereby enhancing operational efficiency and security.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2011 (No. 2) pertains to the importation of firearms, firearm accessories, firearm parts, firearms magazines, ammunition, components of ammunition, and imitations, as controlled under the Customs Act 1901. These regulations specifically extend to the importation of such items into Australia, aiming to provide clear guidelines and conditions for the importation of these controlled items by foreign law enforcement agencies. This Act applies to foreign law enforcement agencies that are invited by the government of the Commonwealth, a State or a Territory to participate in approved 'law enforcement sanctioned activities', allowing them to import firearms for use in these specified activities, subject to certain criteria. The geographic reach of these regulations is national, applying uniformly across Australia. Notably, the Act does not apply to activities approved by the Secretary or Deputy Secretary of a State or Territory Attorney-General’s Department, with the exception of the Commonwealth Attorney-General, who is deemed appropriate for considering invitations for the purposes of National Counter Terrorism Committee (NCTC) training. The amending Regulations are designed to mirror the existing 'defence sanctioned activity test', providing flexibility and recognising entities that may not be classified as law enforcement agencies under Australian definitions but are recognised as such in their respective countries. The Regulations came into effect on the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2011 (No. 2) (F2011L01992) introduce significant changes to the importation of controlled firearms and related items under the Customs Act 1901. The Regulations amend the Customs (Prohibited Imports) Regulations 1956 by adding a new provision to the 'Specified purposes test'. This addition allows the Minister or a delegate to permit foreign law enforcement agencies, invited by the government of the Commonwealth, a State, or a Territory, to import firearms for use in a 'law enforcement sanctioned activity', provided certain criteria are met. This new provision mirrors the existing 'defence sanctioned activity test' (Section 50 of the Customs Act 1901).
The new limb of the 'Specified purposes test' introduces a mechanism that facilitates the importation of firearms and related items for use in law enforcement sanctioned activities. This includes activities such as joint training exercises on Australian soil and security operations at large events under Australian control. To be eligible for importing these items, the law enforcement agencies must be formally invited by the relevant government authority and the activity must be approved by either the Commissioner or Deputy Commissioner of the Australian Federal Police, a State or Territory Police, or the Secretary or Deputy Secretary of the Commonwealth Attorney-General’s Department. Notably, the Secretary or Deputy Secretary of a State or Territory Attorney-General’s Department is not included in the approval process, except in cases involving the National Counter Terrorism Committee (NCTC) training.
The Regulations impose certain obligations on the parties involved. Specifically, the foreign law enforcement agencies must obtain permission from the Minister or a delegate to import firearms and related items. The inviting government authority must ensure that the proposed law enforcement sanctioned activity is approved by an appropriate official, as outlined in the Regulations. The criteria for such approval include the nature of the activity and the legitimacy of the invitation, ensuring that the imported items are used for lawful purposes only.
Failure to comply with the provisions of the Regulations can lead to serious consequences. Importing controlled items without the necessary permission or under false pretences can result in criminal charges. The Act does not specify particular penalties for breaches of these Regulations, but given their nature, they likely fall under the general penalties for contravening customs regulations, which can include fines and imprisonment. The severity of penalties would depend on the specific circumstances of the breach and the discretion of the court.