COMMONWEALTH OF AUSTRALIA
CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) 1990
No. 39
EXPLANATORY STATEMENT
The Customs (Prohibited Imports) Regulations govern the importation of a wide range of goods. Regulation 4A, which applies to goods that are likely to be offensive, provides authority for Commonwealth censorship functions other than censorship of films for public exhibition.
The amendment to the Customs (Prohibited Imports) Regulations has three purposes. The first purpose is to better define materials that will be deemed prohibited imports. This amendment reflects similar amendments in other censorship legislation.
Secondly, the amendment introduces criteria by which the Attorney-General is to consider decisions on whether or not to grant a permission to import prohibited publications. The amendment is in line with current administrative law practice by specifying criteria to be addressed by the decision maker at first instance and on review.
Thirdly, the amendment introduces provisions, in accordance with recommendations by the Administrative Review Council, to allow for review by the Administrative Appeals Tribunal (AAT) of a decision by the Attorney-General to refuse permission to import a prohibited publication or to allow importation subject to conditions. Provision is made for the Attorney-General to issue a certificate, stating that it is in the public interest that a decision should not be reviewable by the AAT.
Details of the proposed Regulations are set out in the Attachment.
No. of 1990
AUTHORISED BY THE
ATTORNEY-GENERAL
ATTACHMENT
Details of the Customs (Prohibited Imports) Regulations (Amendment) 1990.
Regulation (a) amends Subregulation 4A(1A)(a)(iv) of the Principal Regulations by omitting “promote or incite terrorism” as the test of prohibition and replacing it with “promote, incite or instruct in matters of crime or violence”. The amendment is necessary to reflect a similar amendment recently made to the Australian Capital Territory Classification of Publications Ordinance 1983, the legislation which gives effect to the Commonwealth censorship policy.
Regulation (b) inserts into the Principal Regulations Subregulation 4A(2AA) which specifies criteria for the Attorney-General, or his delegate, to consider when making a decision under subregulation (2). Subregulation (2) allows the Attorney-General, or his delegate, to grant a permission to import prohibited publications. Subregulation (2AA) directs the decision maker to have regard to the purposes of importation, the nature of the activities of the applicant, the reputation of the applicant, the ability of the applicant to meet conditions and any other relevant matters.
Regulation (c) adds to Regulation 4A of the Principal Regulations the following provisions which allow, with some exceptions, for the review of decisions under subregulation (2);
Subregulation (4) allows applications to the AAT for review of a decision to refuse permission and allows applications to the AAT, by the original applicant for permission, for review of a decision to grant permission subject to conditions.
Subregulation (5) gives the Attorney-General power to certify that in his or her opinion it is in the public interest that a particular decision under subregulation (2) should not be reviewed by the AAT.
Subregulation (6) provides that a copy of the certificate is to be given to the original applicant for permission.
Subregulation (7) provides that a certificate under subregulation (5) must include a statement of the grounds on which the certificate is issued.
Subregulation (8) provides that while a certificate is in force subregulation (4) will not apply to the permission or refusal.
Subregulation (9) obliges the Attorney-General to table in both Houses of Parliament a copy of any certificate within 15 days of issue.
Subregulation (10) obliges the maker of a decision under subregulation (2) to inform the applicant in writing within 30 days of the decision if it is to refuse permission or to grant permission subject to conditions.
Subregulation (11) provides that a notice of decision issued under subregulation (10) must advise the applicant of the right of review by the AAT and consequential right to a statement of reasons for the decision.
Subregulation (12) provides that a contravention of subregulation (11) doesn’t affect the validity of a decision.