Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2000 (NO. 7) 2000 NO. 234

Statutory Rules 2000 No. 234

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 2000 (No. 7)

Section 270 of the Customs Act 1901 (the Act) provides in part that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.

Section 50 of the Act 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 subsection may be exercised (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; and..."

The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of the 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 or an authorised person.

During 1996 all Australian governments agreed on a national scheme to control the circulation of firearms in Australia. When the National Firearms Agreement was settled by the Australasian Police Ministers' Council in May 1996, handgun possession and use in Australia was considered to be sufficiently well regulated. However, crime involving handguns has now been highlighted as an emerging problem.

The purpose of these Regulations is to introduce stronger import controls on handguns. In particular, the Regulations ensure that handguns are released into the community on an "as needs" basis and once a legitimate end-user has been established (see Item 14 of the Attachment). They permit the importation of only a small number of handguns for dealer stock for the purposes of testing and demonstration (see Item 9 of the Attachment). The Regulations do, however, accommodate an exemption for persons competing in the Olympic Games and Paralympic Games (see Item 5 of the Attachment).

The Regulations also provide that firearms dealers may hold a limited number of Category C firearms (these include self-loading rimfire rifles, self-loading shotguns and pump action repeating shotguns) as stock for testing and demonstration purposes (see Item 8 of the Attachment).

The Regulations allow the Attorney-General to give written permission for the importation of certain firearms where the Attorney-General is satisfied that the government of another country owns the firearm and is to be used by a person appointed as a special constable under the Police (Special Provisions) Act 1901 (NSW) (see Item 3 of the Attachment). They also exempt the government of the Commonwealth, a State or a Territory from the new requirements of the police authorisation test for the importation of handguns (see Item 5 of the Attachment).

Details of the Regulations are set out in the Attachment.

The Regulations commence on 18 August 2000.

ATTACHMENT

DETAILS OF THE CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2000 (No. 7)

Regulation 1 - Name of Regulations

The name of these Regulations is the Customs (Prohibited Imports) Amendment Regulations 2000 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that these Regulations commence on 18 August 2000.

Regulation 3 - Amendment of Customs (Prohibited Imports) Regulations 1956

Regulation 3 provides that Schedule 1 to these Regulations amends the Customs (Prohibited Imports) Regulations 1956.

Schedule 1 - Amendments

Part 1 - Amendments of Schedule 6, Part 1

Item 1

Item 1 omits subitem 1.5. Subitem 1.5 is no longer needed because it is a transitional provision which provides that if an article has been imported before the commencement of certain importation requirements the importer of the article may produce written permission to import the article within 14 days after the article has been imported. The importation requirements have now commenced.

Item 2

Item 2 makes a minor amendment to subparagraph 2.2(e)(ii) to allow the insertion of paragraph 2.2(f).

Item 3

Item 3 inserts paragraph 2.2(f) as part of the specified purposes test for the importation of articles listed in subitem 2.1 of the Principal Regulations. Paragraph 2.2(f) allows the Attorney-General to give written permission for the importation of an article where the Attorney-General is satisfied that the article is owned by the government of a country other than Australia and the article is to be used by a person who is appointed as a special constable under the Police (Special Provisions) Act 1901 of New South Wales.

Item 4

Item 4 omits subitems 2.3 and 3.3. Subitems 2.3 and 3.3 are no longer needed because they are transitional provisions which provide that if an article has been imported before the commencement of certain importation requirements the importer of the article may produce written permission to import the article within 14 days after the article has been imported. The importation requirements have now commenced.

Item 5

Item 5 re-writes the police authorisation test to clarify the existing test in relation to noncategory H articles, applies that test to the importation of category H articles to which new subitems 4.2 and 4.3 apply, and outlines the test for the importation of category H articles. (The Regulations insert a definition of category H articles: see Item 18 of this Attachment.)

Item 5 provides that, in order to comply with the police authorisation test for importation of category H articles (except a category H article to which subitem 4.2 or 4.3 applies), the importer must be given a statement in an approved form by a relevant police officer to the effect that the importer holds a licence or authorisation according to the law of the relevant State or Territory to possess the article, or that a licence or authorisation to possess the article is not required under the law of the relevant State or Territory. The importer must also be given a certificate in an approved form by a relevant police officer certifying that the importer is a certified sports shooter, a certified international sports shooter, is certified for business or occupational purposes, or is a certified collector, for the article. The importer of a category H article must produce the statement and the certificate to a Collector at or before importation.

Item 5 substitutes a new provision for existing subitem 4.2. Subitem 4.2 applies to a category H article if the importer of the article is the government of the Commonwealth, a State or a Territory. (The existing subitem 4.2 is a transitional provision that is no longer required.)

Item 5 inserts subitem 4.3. Subitem 4.3 applies to a category H article if the importer of the article holds a licence or authorisation under the law of a State or Territory to possess the article and the article is to be used by the importer to compete in the Sydney 2000 Olympic Games (or an associated event) or the Sydney 2000 Paralympic Games (or an associated event).

Item 5 also inserts a new transitional provision as subitem 4.4. Subitem 4.4 provides that, despite paragraph 4.1 (d) (which requires an importer to produce to a Collector at or before importation a statement and a certificate in the approved form), if the importer places an order for, or imports, a category H article before 2 September 2000, the importer may produce the statement mentioned in paragraph 4.1 (a) and the certificate mentioned in paragraph 4.1 (c) for that article before the end of 28 days after the date of importation.

Item 6

Item 6 omits subitems 5.3 and 5A.3. Subitems 5.3 and 5A.3 are no longer needed because they are transitional provisions which provide that if an article has been imported before the commencement of certain importation requirements the importer may produce written permission to import the article within 14 days after the article has been imported. The importation requirements have now commenced.

Item 7

Item 7 substitutes a new heading "Dealer test - category C article" to differentiate between it and the dealer test relating to category H articles. (Category C articles are defined in Schedule 6, Part 4, Item 3 of the Principal Regulations.)

Item 8

Item 8 replaces subitems 6.2 and 6.3 with one subitem. New subitem 6.2 provides that the Attorney-General must not give written permission for the importation of a category C article unless the Attorney-General is satisfied that the importer is a licensed firearm dealer. If the importation of the article is stated by the importer to be for demonstration or testing purposes, the Attorney-General must also be satisfied that the article is to be used by the importer for the purpose of demonstrating its uses or for inspection, testing or evaluation purposes, and that the importation of the article will not result in the importer having in Australia (excluding any category C article imported in compliance with a test other than the dealer test) more than one of a particular model of category C article that has been imported for demonstration or testing purposes, or more than a total of 5 category C articles that have been imported for demonstration or testing purposes. If the importation of the article is stated by the importer to be for demonstration or testing purposes and the importer has previously imported any other category C article for demonstration or testing purposes, the relevant police officer must be satisfied that the importer continues to own and possess any previously imported article, or that article has been destroyed by a member of a State or Territory police force or a member of the Australian Federal Police, or exported.

Item 6.3 was a transitional provision that is no longer required.

Item 9

Item 9 inserts a dealer test relating to category H articles. Subitem 7.1 provides that the importation of a category H article complies with the dealer test if the importer produces to a Collector, at or before importation, the written permission of a relevant police officer for the importation of the article. Subitem 7.2 provides that the relevant police officer must not give written permission for the importation of the article unless the relevant police officer is satisfied that the importer is a licensed firearm dealer. If the importation of the article is stated by the importer to be for demonstration or testing purposes, the relevant police officer must also be satisfied that the article is to be used by the importer for the purpose of demonstrating its uses or for inspection, testing or evaluation purposes, and that the importation will not result in the importer having in Australia (excluding any category H article imported in compliance with a test other than the dealer test) more than one of a particular model of a category H article that has been imported for demonstration or testing purposes, or more than a total of 10 category H articles that have been imported for demonstration or testing purposes. If the importation of the article is stated by the importer to be for demonstration or testing purposes and the importer has previously imported any other category H article for demonstration or testing purposes, the relevant police officer must be satisfied that the importer continues to own and possess any previously imported article, or that article must have been destroyed by a member of a State or Territory police force or a member of the Australian Federal Police, or exported.

Item 9 also inserts a new transitional provision, subitem 7.3. Subitem 7.3 provides that, despite subitem 7. 1, if the importer places an order for, or imports, the article before 2 September 2000, the importer may produce the written permission mentioned in subitem 7.1 before the end of 28 days after the date of importation.

Part 2 - Amendments of Schedule 6, Part 2

Item 10

Item 10 amends Item 9, column 2 to include complete but disassembled or unassembled handguns or soft air handguns (unless they have fully automatic firing capabilities, or resemble in appearance sub-machine guns, machine pistols or handguns that have fully automatic firing capabilities).

Item 11

Item 11 makes a minor amendment to Item 9, column 3, subparagraph (a)(iv) to allow the insertion of the dealer test in that column.

Item 12

Item 12 inserts the dealer test in Item 9, column 3 as one of the tests which the importation of a handgun may comply with.

Item 13

Item 13 inserts the dealer test in Item 9, column 3 as one of the tests which the importation of a soft air handgun may comply with.

Part 3 - Amendments of Schedule 6, Part 3

Item 14

item 14 changes the heading to Item 4 to refer to category C articles, re-writes the conditions governing the importation of category C articles to clarify the existing test, and adds the ability to store the articles with a person authorised by a Collector. It also adds the condition that the importer must not use a category C article except for the purpose of demonstrating its uses or for inspection, testing or evaluation purposes and must retain ownership and possession of the article until it is destroyed or exported, if its importation is stated by the importer to be for demonstration or testing purposes.

Item 14 also inserts a new item relating to the dealer test for category H articles. The importation of a category H article, in accordance with the dealer test, is subject to the condition that the importer must comply with the conditions mentioned in subitem 5.2 or, if the importation of the article is for demonstration or testing purposes, the conditions mentioned in subitem. 5.3.

Subitem 5.2 provides that the importer must not sell the article except to a certified buyer, a certified sports shooter, a person who is certified for business or occupational purposes, a certified collector, or a person who is certified by a relevant police officer as a person that the relevant police officer is satisfied is not required under the law of the relevant State or Territory to hold a licence or authorisation to possess the article. The importer must also store the article with a Collector, or a person authorised by a Collector, until the article has been sold to one of those persons. The importer must also store the article with a Collector, or a person authorised by a Collector, until the importer declares to a Collector, in an approved form, that the article has been sold to one of those persons, and the importer produces to a Collector satisfactory evidence that the sale has happened and the buyer is such a person.

Subitem 5.3 provides that the importer must not use the article except for the purpose of demonstrating its uses or for inspection, testing or evaluation purposes and the importer must retain ownership and possession of it until it is destroyed or exported.

Part 4 - Amendments of Schedule 6, Part 4

Item 15

Item 15 inserts subitem 1.2. Subitem 1.2 provides that a person is a certified sports shooter for a category H article if a relevant police officer is satisfied that the person meets State and Territory requirements to possess the article for the purpose of taking part in sports or target shooting permitted in that State or Territory and certifies in an approved form that the person is a certified sports shooter for a category H article.

Item 16

Item 16 inserts subitem 1A.2. Subitem 1A.2 provides that a person is a certified international sports shooter for a category H article if a relevant police officer is satisfied that the person intends to use the article in Australia for sports or target shooting. He or she must also be satisfied that the person is not an Australian citizen or is not the holder of a permanent visa under the Migration Act 1958, and that the person is the holder of a licence or authorisation to possess the article in accordance with the law of the State or Territory where the person intends to use the article. The relevant police officer must also certify in an approved form that the person is a certified international sports shooter for a category H article.

Item 16 also inserts item 1B. Subitem 1B.1 defines the term relevant police officer. It is defined as, for a State, the Commissioner or Chief Commissioner of the police force of the State; for the Northern Territory, the Commissioner of Police of the police force of the Northern Territory; and for a Territory other than the Northern Territory, the Chief Police Officer of the Australian Capital Territory.

Item 17

Item 17 omits subitem 2.2, thereby omitting the definition of the term relevant police officer as linked to references in Schedule 6, Part 1.

Item 18

Item 18 inserts an explanation of the meaning of the term category H article. A category H article is a firearm mentioned in item 9 of Part 2. Item 9 of Part 2, as amended by the proposed Regulations, will mention handguns or soft air handguns, including complete but disassembled or unassembled handguns or soft air handguns (unless they have fully automatic firing capabilities, or resemble in appearance submachine guns, machine pistols or handguns that have fully automatic firing capabilities).

Item 19

Item 19 inserts a definition of the term certified buyer in relation to category H articles. A person is a certified buyer for a category H article if the Secretary of the Attorney-General's Department is satisfied that the person intends to buy the article from a licensed firearm dealer, the article is for the purposes of the government of the Commonwealth, and the government will retain ownership of the article after buying it, and certifies that the person is a certified buyer for the category H article. A person may also be a certified buyer for a category H article if a relevant police officer is satisfied that the person intends to buy the article from a licensed firearm dealer, the article is for the purposes of the government of the relevant State or Territory, and the government will retain ownership of the article after buying it, and certifies in an approved form that the person is a certified buyer for the category H article.

Item 20

Item 20 amends subitem 5.1 to include category H articles in the meaning of licensed firearm dealer.

Item 21

Item 21 inserts a definition of the term certified for business or occupational purposes. A person is certified for business or occupational purposes for a category H article if a relevant police officer is satisfied that the person meets State and Territory requirements to possess the article for business or occupational purposes (other than for the purposes of being a firearm collector or firearm dealer), and certifies in an approved form that the person is a person certified for business or occupational purposes for the category H article.

Item 21 also inserts a definition of the term certified collector. A person is a certified collector for a category H article if a relevant police officer is satisfied that the person is a licensed collector, in accordance with the law of the relevant State or Territory, and certifies in an approved form that the person is a certified collector for the category H article.