EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 No. 324
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS
Section 50 of the Customs Act 1901 (the Act) provides in part that:
1) The Governor-General may, by regulation, prohibit the importation of goods from Australia.
2) The power conferred by the last preceding sub-section may be exercised - … (b) by prohibiting the importation of goods to a specified place; or (c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.
2A) 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; and …”
The Customs (Prohibited Imports) Regulations (the Regulations) control the importation of goods specified in the various Regulations or the Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister of State or a specified person.
The proposed Statutory Rules contain several amendments to the Regulations which:
i) amend the Second Schedule to prohibit the importation of various goods previously prohibited under a Ministerial Instrument prepared under Item 18 of the Second Schedule;
ii) enable an authorised person to give permission to import goods under Regulation 4, and provide a review by the Minister where an authorised person has refused to grant a permission to import goods covered by that regulation; and
iii) repeal regulation 4N.
Background
i) Amendment to the Regulations to Prohibit the Importation of Goods previously prohibited under Item 18 of the Second Schedule
The amendments propose the addition of new items to the Second Schedule of the Regulations to prohibit the importation of certain goods unless the permission of the Minister, or an authorised 2. person has been obtained. The specific goods were previously controlled by a Ministerial Instrument prepared under Item 18 of the Second Schedule which prohibited:
“Goods which, in the opinion of the Minister, are of a dangerous character and a menace to the community”.
On 14 September 1990 the Full Court of the Federal Court of Australia unanimously held (in its decision in Robert Alfred Turnery and Barry Owen Jones v Ronald Owen, No. G12 of 1990) that Item 18 was invalid, as it was an unauthorised delegation to the Minister of the Governor-General’s power to prohibit the importation of goods. The Court held such a delegation was not permitted by the empowering sections in the Customs Act 1901.
As a result of the Court’s decision dangerous goods which were previously prohibited under Item 18 have lost their status as prohibited imports, and therefore can no longer be controlled or seized at the Customs barrier.
The details of the proposed new Items, and the reasons for control of such goods are specified in the Attachment hereto.
ii) Amendment to allow an authorised person to permit the importation of goods, and review by the Minister where the authorised person has refused to grant a permission
This amendment has been inserted to enable a person authorised by the Minister to grant a permission to import certain goods, consistent with other recent amendments to other Schedules in the Customs (Prohibited Imports) Regulations.
The denial of an import permission is not independently reviewable by the Administrative Appeals Tribunal, as it is considered because of the dangerous nature of the goods, any independent review of such a decision can be justifiably denied on “high government” policy grounds (public health and safety). Such a denial of a permission however must be made by the Minister responsible, consistent with all recent Customs (Prohibited Imports) and (Prohibited Exports) Regulations and undertakings to the Senate Standing Committee for Regulations and Ordinances. Thus, where an authorised person forms an opinion that a permission should not be granted, the authorised person must refer that application to the Minister, who is responsible for the final decision.
iii) Repeal of Regulation 4N
Regulation 4N which was inserted as a result of the Airlines Agreement Act 1981, prohibits the importation of an aircraft, airframe or aircraft engine unless a permission in writing has been granted by the Secretary to the Department of Transport and Communications.
The Airlines Agreement Act 1981 was recently repealed by the Airlines Agreement (Termination1 Act 1990 (Act No. 73 of 1990), which received Royal Assent on 24 September 1990. The latter Ac effects a deregulation of the domestic aviation industry on and from 31 October 1990. As a consequence of that deregulation the Secretary to the Department of Transport and Communications requested the repeal of regulation 4N of the Regulations.
All of the above proposed changes are explained in detail in the attachment hereto.
S.R. /90
ATTACHMENT
Regulation 1: is a machinery provision which states that the Customs (Prohibited Imports) Regulations (the Principal Regulations) are amended as set out in these Statutory Rules.
Regulation 2: amends Regulation 4 of the Principal Regulations as follows :
Regulation 2.1: is a minor technical amendment to rename the “Second Schedule” to “Schedule 2”;
Regulation 2.2: amends Regulation 4 to enable an authorized person to grant permission to import prohibited goods similar to other recent control regimes in the Customs (Prohibited Imports) and (Prohibited Exports) Regulations;
Regulation 2.3: inserts new subregulations 4(1AA) and 4(LAB) which provide a review by the Minister where the authorized person, defined in new subregulation 4(1AC), has refused to grant a permission.
Regulation 3: omits Regulation 4N, relating to controls on aircraft, airframe or aircraft engine, from the Regulations in anticipation of deregulation of the aviation industry.
Regulation 4: amends the Second Schedule to become Schedule 2 and inserts new items into Part 1 of Schedule 2.
Regulation 4.1: is a technical drafting amendment effecting the change of name of the Schedule.
Regulation 4.2: removes existing Items 2, 7 and 8 for which control is no longer needed, and in respect of which no importations or seizures have ever occurred. The new Items which are inserted into Part 1 of Schedule 2, and the rationale for control of those goods are as follows:
Item 1: apparel and textiles containing tris (2,3 -dibromopropyl)
tris is a potent carcinogen which may be absorbed through the skin or ingested if a textile is sucked or chewed;
Item 2: toys coated with toxic materials
toys which contain excessive levels of toxic metals present a health hazard, particularly to children who are apt to place such objects in the mouth;
Item 3: cosmetics containing excessive levels of lead
cosmetics containing excessive levels of lead are unsafe and a health hazard;
Item 4: fish and fish products containing excessive
and 5 levels of mercury
such products are unsafe and present a health hazard;
Item 6: money boxes containing excessive levels of lead
such goods are unsafe and present a health hazard;
Item 7: pencils or paint brushes coated with toxic materials
such goods which contain excessive levels of toxic metals are unsafe and present a health hazard; and
Item 8: appliances or equipment designed or adopted for warfare
these goods have no legitimate civilian use, and the prohibition is imposed to limit their availability to the defence forces.
Regulation 4.3: amends Item 10 (dog collars) to include collars designed to puncture or bruise an animal’s skin.
Regulation 4.4: inserts new Items 12, 13 and 14 which prohibit hand held devices designed to administer electric or acoustic shocks, or to discharge a gas or liquid. Such devices can cause great injury to victims and have no legitimate civilian use.
Regulation 4.5: omits existing and inserts a control on blowpipe darts tipped with poison, which have no legitimate use and could cause fatal injury.
Regulation 4.6: removes existing Item 20 (opium pipes) as that prohibition is considered to be ineffective given the ready availability of bongs etc, and inserts in its place the following new items:
Item 20: gloves incorporating protrusions designed to puncture or bruise the skin
such goods are dangerous and have no legitimate use;
Item 21: concealed guns, knives or blades such goods are offensive weapons and have no legitimate use;
Item 22: hunting slings, catapults or sling shots
such goods are dangerous and are capable of propelling missiles at high speed causing serious injury;
Item 23: shuriken throwing irons or star knives
the prohibition was introduced to limit the availability of such dangerous weapons to martial arts clubs which could demonstrate a legitimate use as the basis for a permission for importation;
Item 24: unsafe firearms
the importation of firearms which do not meet safety tests prescribed in new Part 2 of Schedule 2 (inserted by Regulation 4.8) is prohibited as such unsafe firearms require strict control;
Item 25: weapons of machine gun construction
such goods are manifestly dangerous and access to them should be as restricted as possible;
Item 26: devices designed to modify firearms to enable them to fire continuously
these goods have no legitimate civilian use or application and cause risks to public safety;
Regulation 4.7: inserts the following new Items :
Item 31: snake bite first aid kits which recommend treatment for bites by excision or tourniquet
the treatment of bites by these methods is considered to be highly dangerous, and the prohibition is sought at the request of Commonwealth and State Health Authorities;
Item 32: wildlife specimens with venom glands, fangs, ducts etc. intact
such specimens retain the potency of the venom and are dangerous;
Item 33: erasers which do not meet Australian standards
and 34
such goods present health risks to users, especially as they are apt to be placed in the mouth;
Item 35: drink dispensers which contaminate the beverage
such dispensers contaminate the liquid with excessive and dangerous levels of toxic contaminants;
Item 36: vehicle windscreens, windows or internal partitions which fail to meet safety standards
such goods which do not comply with safety standards are unsafe; and
Item 37: motor vehicle helmets, including motor cycle helmets, which fail to meet safety standards
such goods are unsafe as they do not provide the protection required by the user, and in some cases could increase the risk of injury.
Regulation 4.8: inserts new Part 2 which details the safety requirements for firearms, such minimum safety standards, which have been developed in consultation with the Australian Federal Police, are necessary for the safety of users of such firearms, as well as the wider community.