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.
Overview
The Customs (Prohibited Imports) Regulations (Amendment) 1990 were enacted by the Commonwealth of Australia to refine the regulatory framework surrounding the importation of goods that are likely to be offensive, specifically those that promote, incite, or instruct in matters of crime or violence. This amendment responds to the need to align the regulations with other censorship legislation, including the Australian Capital Territory Classification of Publications Ordinance 1983, and to bring them in line with current administrative law practices. The amendments aim to better define prohibited materials and to establish clear criteria for decision-making by the Attorney-General when considering permissions to import such materials. Additionally, the amendment introduces a formal process for review by the Administrative Appeals Tribunal of decisions made by the Attorney-General, while also allowing for exceptions based on public interest considerations. This legislative change was authorised by the Attorney-General and is intended to ensure that the regulatory framework is both coherent and just, providing a balance between censorship and the freedom of information.
Scope and Application
The Customs (Prohibited Imports) Regulations (Amendment) 1990 pertains to the importation of goods that may be offensive and falls under the purview of Commonwealth censorship functions, excluding films for public exhibition. The amendment aims to refine the definition of prohibited materials, aligning with changes in other censorship legislation. It further introduces criteria for the Attorney-General to consider when deciding whether to permit the importation of prohibited publications, adhering to contemporary administrative law practices by specifying criteria for the decision-maker. Additionally, the amendment allows for review by the Administrative Appeals Tribunal of decisions made by the Attorney-General regarding the refusal of permission to import prohibited publications or the allowance of importation subject to conditions, with exceptions where the Attorney-General certifies it is in the public interest for a decision not to be reviewable. The amendments apply nationally, as they are part of Commonwealth regulations, and are detailed in the Attachment.
Key Provisions
The Customs (Prohibited Imports) Regulations (Amendment) 1990 introduces significant changes to the existing framework governing the importation of goods deemed offensive under Australian law. Regulation 4A, which pertains to goods that are likely to be offensive, is notably amended in three main ways. Firstly, Regulation (a) modifies the test for prohibition by replacing the phrase "promote or incite terrorism" with "promote, incite or instruct in matters of crime or violence". This change aligns with recent amendments in other censorship legislation, such as the Australian Capital Territory Classification of Publications Ordinance 1983, and aims to better define what constitutes a prohibited import. Secondly, Regulation (b) introduces criteria that the Attorney-General must consider when deciding whether to grant permission to import such prohibited publications. These criteria include the purposes of importation, the nature of the activities of the applicant, the applicant's reputation, the applicant's ability to meet conditions, and any other relevant matters. This addition adheres to current administrative law practices by ensuring transparency and consistency in decision-making. Thirdly, Regulation (c) introduces provisions for review by the Administrative Appeals Tribunal (AAT) of decisions made by the Attorney-General. It allows for the review of decisions to refuse permission to import or to grant permission subject to conditions, with some exceptions.
The amendment imposes several obligations on the parties it governs. The Attorney-General, or his delegate, is required to consider the specified criteria when making decisions under Regulation 4A(2). Furthermore, the Attorney-General has the authority to certify that it is in the public interest for a decision not to be reviewed by the AAT, as outlined in Regulation 4A(5). If such a certificate is issued, it must include a statement of the grounds for the issuance and be tabled in both Houses of Parliament within 15 days, as per Regulations 4A(7) and 4A(9). Additionally, the decision maker must inform the applicant in writing within 30 days if permission is refused or granted subject to conditions, and provide details on the right to review by the AAT and the right to a statement of reasons, as stipulated in Regulations 4A(10) and 4A(11).
The Customs (Prohibited Imports) Regulations (Amendment) 1990 also sets out specific consequences for non-compliance. Regulation 4A(12) clarifies that a contravention of the requirement to inform an applicant of their right to review does not affect the validity of the decision. However, the potential for civil or criminal penalties is not explicitly detailed in the provided text. Typically, breaches of regulatory provisions may lead to penalties as prescribed by the primary legislation or relevant Acts, but such specifics are not outlined within this amendment.