Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2003 (NO. 9) 2003 NO. 309

Subsection 270(1) 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 or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any other business relating to the Customs.

Section 50 of the Act provides in part that the Governor-General may, by regulation, prohibit the importation of goods into Australia and that the power may be exercised by prohibiting the importation of goods absolutely or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

The purpose of the amending Regulations is to provide an exemption for goods imported by foreign air security officers (ASOs) from the import restrictions on firearms, and certain other weapons and defence goods that these ASOs may require for their duties.

The Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) control the importation of the goods specified in the various regulations and the Schedules to the PI Regulations, by prohibiting importation absolutely, or by making importation or exportation subject to a permission or licence.

Subregulations 4(1) and 4(2) of the PI Regulations restrict the importation of goods specified in Schedules 2 and 3 to the PI Regulations respectively. Subregulation 4F(1) of the PI Regulations restricts the importation of firearms and certain related goods.

Previous subregulations 3C(1), 4(1AAC), 4(3) and 4F(2B) of the PI Regulations together provided an exemption for goods imported by 'sky marshals' from the restrictions on the importation of specified weapons and defence goods listed in Schedules 2 and 3, as well as firearms and certain related goods, if they met specified criteria.

These exemptions were put in place before the Sydney 2000 Olympics to facilitate the entry of sky marshals employed to protect an aircraft or as personal bodyguards for one or more passengers or crew on board an aircraft.

In November 2001, in response to worldwide concerns in relation to air terrorism, the Minister for Justice and Customs announced that the Government would introduce armed security officers on selected flights provided by Australian carriers. Since then, Australia has been negotiating with several countries to develop bilateral arrangements in relation to an air security officer program.

A fundamental part of these arrangements would be to exempt the weapons and defence goods that ASOs may require in carrying out their duties from any import and export controls.

The amending Regulations substituted the previous exemptions in the PI Regulations relating to sky marshals with the current exemptions relating to foreign ASOs. They also specified different weapons and defence goods listed in Schedules 2 and 3 to the PI Regulations as subject to the new exemptions for foreign ASOs.

Details of the amending Regulations are in Attachment A.

The amending Regulations commenced on gazettal.

0311208A

ATTACHMENT A

CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2003 (No. 9)

Regulation 1 - Name of Regulations

Regulation 1 provides that the Regulations are the Customs (Prohibited Imports) Amendment Regulations 2003 (No. 9).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on gazettal.

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

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

SCHEDULE 1 - AMENDMENTS

Item 1 - Regulation 3C

Item 1 substitutes a new regulation 3C.

Subregulation 4(1) of the PI Regulations prohibits the importation without permission of goods specified in Schedule 2 to the PI Regulations. Under subregulation 4(1AAC), this prohibition does not apply to certain goods in Schedule 2 if they also meet the criteria set out in subregulation 3C(1). These goods are various weapons and defence goods.

Subregulation 4(2) prohibits the importation of goods specified in Schedule 3 to the PI Regulations unless the conditions, restrictions or requirements specified in that Schedule in relation to those goods are complied with. Under subregulation 4(3), this prohibition would not apply to goods that are specified in item 1 in Schedule 3 if they also meet the criteria set out in subregulation 3C(1). The goods specified in Schedule 3 consists of a variety of restricted goods, including anti-personnel sprays, tobacco leaf and non-refillable containers containing hydrofluorocarbons designed for use in the maintenance of refrigerative units.

Subregulation 4F(1) of the PI Regulations prohibits the importation of firearms and certain related goods unless the good is an article to which an item in Part 2 of Schedule 6 applies and the importation is in accordance with the requirements set out in column 3 of the item. Subregulation 4F(2B) provides that this prohibition does not apply to firearms and certain related goods if they meet the criteria set out in subregulation 3C(1).

The criteria for goods mentioned in subregulations 4(1AAC), 4(3) and 4F(2B) and set out in previous subregulation 3C(1) related to sky marshals.

New subregulation 3C(1) provides that the criteria for goods mentioned in subregulations 4(1AAC), 4(3) and 4F(2B) are that:

(a)       the goods are imported into Australia on an aircraft by an air security officer while carrying out his or her duties; and

(b)       there is an arrangement between the foreign government employing the air security officer and the Government of Australia providing for the importation of the goods into Australia on aircraft by air security officers; and

(c)       immediately after the goods are imported, the air security officer surrenders the goods to an authorised officer for secure storage until the goods are exported in accordance with paragraph (d); and

(d)       within 3 months after the goods were imported into Australia, they are exported from Australia.

New subregulation 3C(2) defines:

(a)       'air security officer' as 'a person who is employed and trained by a foreign government to travel on an aircraft to provide security for the aircraft and its passengers and crew, but does not include a person who is employed to provide exclusive personal protection for 1 or more specific people travelling on the aircraft (for example, personal bodyguards)'; and

(b)       'authorised officer' to be 'an officer authorised in writing by the CEO to be an authorised officer for this regulation'.

The differences between an air security officer (ASO) and a sky marshal are that:

(a)       a sky marshal may be employed or engaged by a foreign government, an agency of a foreign government as well as an airline, whereas an ASO must be trained and employed by a foreign government;

(b)       a sky marshal may be employed to protect specific passengers or crew on an aircraft, whereas an ASO would be employed to protect the aircraft and all of its passengers and crew.

Item 2 - Paragraph 4(1AAC)(a)

Item 2 removes item 8 and adds items 35, 36, 37, 38, 42 and 47 to the list of specified items in Schedule 2 to the PI regulations that are exempt from the prohibition in regulation 4(1) provided the criteria in subregulation 3C(1) is met. These items are different types of knives and hand-held weapons.

Item 3 - Paragraph 4(3)(a)

Item 3 adds item 1A to the list of specified items in Schedule 3 to the PI regulations that are exempt from the prohibition in regulation 4(2) provided the criteria in subregulation 3C(1) is met. Item lA relates to grenades and canisters designed for use with anti-personnel sprays or chemicals.