EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT)
STATUTORY RULES 1989 NO. 60
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SCIENCE, CUSTOMS AND SMALL BUSINESS
Section 50 of the Customs Act 1901 provides in part that “(1) The Governor-General may, by regulation, prohibit the importation of goods into Australia, (2) The power conferred by the last preceding sub-section may be exercised - (a) by prohibiting the importation of goods absolutely; ... (c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with. (3) Without limiting the generality of paragraph (2)(c), the regulations - (a) may provide that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations.”
These Statutory Rules: i) repeal the absolute prohibition on the importation of imitation brandy on the basis that these goods are adequately controlled under the Spirits Act 1906: ii) repeal the now obsolete control on the importation of goods packed in a bag or sack which exceed ninety-one kilogrammes in weight; and iii) transfer the control on the importation of radioactive substances from item 23 of the Third Schedule to new regulation 4R of the Customs (Prohibited Imports) Regulations.
Details of the Statutory Rules are as follows:
Regulation 1: is a machinery provision which provides that the Customs (Prohibited Imports) Regulations are the “Principal Regulations” for the purposes of these Statutory Rules.
Regulation 2: provides for the insertion of a new regulation 4R in the Customs (Prohibited Imports) Regulations. Regulation 4R now controls the importation of radioactive substances in place of the previous control under item 23 of the Third Schedule (regulation 5 of these Statutory Rules effects the repeal of item 23).
Under the previous system, the permission in writing of the Secretary to the Department of Community Services and Health or the Executive Director of the Australian Nuclear Science and Technology Organisation was required before radioactive material and substances, and articles containing radioactive material or substances, could be imported.
The difficulty with this system was that neither the Secretary nor the Executive Director had the power to delegate his or her power to grant permissions to other persons. It was administratively inconvenient for this to continue. However, as it is not desirable to have merit review by the Administrative Appeals Tribunal of decisions refusing to grant a permission to import radioactive substances, on the high government policy grounds that matters of public safety and Commonwealth/State relations are involved, it was necessary to transfer the power to refuse permissions to those Ministers who are responsible for the operation of the Department of Community Services and Health and the Australian Nuclear Science and Technology Organisation. This approach is in line with other recent Customs Prohibited Imports and Exports Regulations (see for example, Regulations 4C and 51 of the Customs (Prohibited Imports) Regulations and Regulations 6 and 13H of the Customs (Prohibited Exports) Regulations.
The Ministers responsible for the Australian Nuclear Science and Technology Organisation are the Minister for Science, Customs and Small Business and the Minister for Industry, Technology and Commerce, who are simply referred to as “the Minister” in the Customs (Prohibited Imports) Regulations as they are the Ministers of State responsible for the Regulations as a whole.
• New subregulation 4R(1) provides definitions of the term Authorised officer’ and ‘radioactive substance’ where these appear in regulation 4R.
• New subregulation 4R(2) provides that the importation into Australia of a radioactive substance (as defined in subregulation 4R(1)) is prohibited unless the written permission of the Minister, the Minister for Community Services and Health or an authorised officer (which under subregulation 4R(1) means an officer appointed as such by any of those Ministers) has been granted, and the permission is produced to a Collector.
• New subregulation 4R(3) provides that where an authorised officer has formed an opinion that the permission under subregulation 4R(2) should not be granted the application must be referred to one of the Ministers referred to in subregulation 4R(2). This is to ensure that authorised officers ie. public servants are not given the power to refuse permissions, and follows the recent precedents restricting the power of authorised officers to positive grants of permission noted in the introductory remarks on regulation 2. Under subregulation 4R(4) the relevant Ministers may then grant or refuse to grant the permission.
• New subregulation 4R(5) ensures that permissions granted under subregulation 4R(2) or 4R(4) may be granted subject to conditions or requirements. This again is a standard provision (see for example subregulation 4(1A) of the Customs (Prohibited Imports) Regulations). New subregulation 4R (6) provides for the mechanism whereby permissions may be revoked if the person holding the permission fails to comply with any conditions etc.
imposed under subregulation 4R(5). This is pursuant to the head of power in subparagraph 50(3)(b)(iv) of the Customs Act 1901.
Regulation 3: effects a technical drafting amendment to subregulation 51(6) of the Customs (Prohibited Imports) Regulations (which was originally inserted by Statutory Rules 1987 No. 320) to ensure that permissions granted by the Minister of State for Primary Industries and Energy under both subregulations 51(2) and 51(4) may be revoked for a failure to comply with a condition or requirement.
Regulation 4: provides that the First Schedule to the Customs (Prohibited Imports) Regulations is amended by omitting item 20. The control under item 20 prohibited absolutely the importation of imitation brandy (a term which is defined for the purposes of the item). This provision was introduced in 1911 to protect the Australian brandy industry.
However, in addition to this control, the Spirits Act 1906 prescribes a range of controls over brandy. Section 9 for instance, states that in relation to trade and commerce with other countries and among the States, no person shall describe any spirits as brandy, as whisky, or as rum unless the spirits are brandy, whisky or rum. Further, no person shall describe as brandy any spirit not distilled wholly from wine produced from grapes or products derived solely from grapes or from both grapes and such products. Section 10 provides that no spirit described as brandy shall be delivered for human consumption until the Collector is satisfied by the production of an official certificate given in the country of origin that the spirit is distilled wholly from grapes or products derived solely from grapes or from both grapes and such products. Finally, Section 11 provides that imported brandy, whisky or rum shall not be delivered from the control of the Customs unless the Collector of Customs is satisfied that the brandy, whisky or rum, as the case may be, has been matured by storage in wood for a period of not less than two years.
Given these provisions in the Spirits Act 1906, it is considered there is adequate protection afforded to the local brandy industry without the need to continue the import control in the Customs (Prohibited Imports) Regulations.
Regulation 5: provides that the Second Schedule to the Customs (Prohibited Imports) Regulation is amended by omitting item 14. The control under item 14 prohibited absolutely the importation of goods packed in a bag or sack being goods which exceed ninety-one kilogrammes in weight.
This prohibition was originally introduced to protect labourers who were required to carry such sacks on their backs. However, industrial conditions have now changed, and the types of goods which were previously bagged are now shipped in bulk. Additionally, technological advances have resulted in the development of handling aids which have eliminated the need for
the manual lifting of cargo. (The repeal of the corresponding control in the Customs (Prohibited Exports) Regulations has also been effected).
Regulation 6: provides that the Third Schedule to the Customs (Prohibited Imports) Regulations is amended by omitting item 23. This amendment is consequent upon the introduction of the new regulation 4R (see Regulation 2) which will now control the importation of radioactive substances.