Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2004 (NO. 5) 2004 NO. 245

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 Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) control the importation of specified goods for the purposes of the Act.

Australia has ratified the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) and the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention). Both Conventions will enter into force for Australia on 18 August 2004.

As part of meeting Australia's obligations under the Rotterdam and Stockholm Conventions, it is proposed to amend the Agricultural and Veterinary Chemicals (Administration) Regulations (the Agvet Administration Regulations) to, among other things, introduce:

(a)       import and export controls on chemicals that are subject to the Stockholm Convention (the Stockholm chemicals); and

(b)       export controls on chemicals that are subject to the Rotterdam Convention (the Rotterdam chemicals),

where the chemicals are imported or exported as 'active constituents' or 'chemical products' as defined in the Agricultural and Veterinary Chemicals Code (Agvet products). The amendments to the Agvet Administration Regulations were made under separate Regulations.

The purpose of the amending Regulations is to put in place import controls under the Act on the Stockholm chemicals whether or not the chemicals are Agvet products. The Customs (Prohibited Exports) Regulations 1958 has been amended to put in place associated export controls on the Rotterdam and Stockholm chemicals. These controls support the new controls under the amended Agvet Administration Regulations.

Previous subregulation 5I (2) of the PI Regulations prohibited the importation of organochlorine chemicals listed in previous Schedule 9 to the PI Regulations unless permission in writing to do so has been given by the Minister for Agriculture, Fisheries and Forestry (the Minister) or an officer of the Department of Agriculture, Fisheries and Forestry (DAFF) authorised by the Minister (an authorised officer). Some of the organochlorine chemicals listed in previous Schedule 9 are Stockholm chemicals.

The amending Regulations amended regulation 5I and Schedule 9 to:

(a)       add two organochlorine chemicals that are Stockholm chemicals to Schedule 9;

(b)       apply the previous permission-based import control in regulation 5I to the organochlorine chemicals listed in Schedule 9 that are not Stockholm chemicals;

(c)       add a new permission-based import control in regulation 5I that applies to the Stockholm chemicals listed in Schedule 9; and

(d)       add new provisions to, and amend previous provisions in, regulation 5I relating to:

•       applications for a permission;

•       the imposition of conditions on a permission;

•       the revocation of a permission in certain circumstances; and

•       referral to the Minister of applications for a permission that an authorised officer has determined should be rejected,

that apply to all permissions granted under regulation 5I.

Details of the amending Regulations are in the Attachment.

The amending Regulations commence on 18 August 2004, the date the Stockholm Convention enters into force for Australia.

0407433A

ATTACHMENT

DETAILS OF THE CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2004 (NO. 5)

Regulation 1 - Name of Regulations

Regulation 1 provides that the amending Regulations are the Customs (Prohibited Imports) Amendment Regulations 2004 (No. 5).

Regulation 2 - Commencement

Regulation 2 provides that the amending Regulations commence on 18 August 2004.

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 - Paragraph 5I (2) (a)

Item 1 inserts the words 'items 2, 3, 10 and 11 of after the words 'specified in' in paragraph 5I (2) (a). The effect of this amendment is that the prohibition on importation set out in subregulation 5I (2) only applies to the organochlorine chemicals mentioned in items 2, 3, 10 and 11 of Schedule 9 to the PI Regulations. These chemicals are not subject to the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade or the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention).

Item 2 - After subregulation 5I (2)

Item 2 inserts new subregulations 5I (2A), 5I (2B) and 5I (2C).

Subregulation 5I (2A) prohibits the importation of:

(a)       goods, being organochlorine chemicals specified in items 1, 4, 5, 6, 7, 8, 9, 12 and 13 of Schedule 9;

(b)       goods, being any chemical or compound that may be derived from an organochlorine chemical so specified and from which such a chemical may be regenerated; and

(c)       goods, being any isomer of an organochlorine chemical so specified, or any substance derived from such an isomer and from which such an isomer may be regenerated,

unless:

(d)       if the chemical is an active constituent or a chemical product as defined in the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994:

(i)       a permission to import the chemical has been granted in writing under the Agricultural and Veterinary (Administration) Regulations 1995 (the amended Agvet Administration Regulations); and

(ii)       the permission is produced to a Collector; or

(e)       in any other case:

(i)       the Minister for Agriculture, Fisheries and Forestry (the Minister) or an authorised officer (defined in existing subregulation 5I (1) as an officer of the Department of Agriculture, Fisheries and Forestry (DAFF) authorised in writing by the Minister for the purposes of regulation 5I) has granted a permission in writing to import the goods; and

(ii)       the permission is produced to a Collector.

'Collector' is defined in subsection 8 (1) of the Customs Act 1901 to mean the Chief Executive Officer of Customs, the Regional Director of Customs for a State or Territory, or any Customs officer doing duty in the matter in relation to which the expression is used.

Paragraph 5I (2A) (d) reflects the prohibition that is in the amended Agvet Administration Regulations on the importation of organochlorine chemicals that are subject to the Stockholm Convention and are active constituents or chemical products as defined in the Agricultural and Veterinary Chemicals Code. This enables Customs to enforce that prohibition at the border.

Paragraph 5I (2A) (e) regulates the importation of the organochlorine chemicals subject to the Stockholm Convention which is not otherwise controlled under the amended Agvet Administration Regulations. This ensures that Australia fully meets its obligations to control the importation of these chemicals into Australia under the Stockholm Convention.

Subregulation 5I (2B) provides that an application for a permission under paragraph 5I (2) (d) or new paragraph 5I (2A) (e) must be in writing and lodged with an authorised officer.

Subregulation 5I (2C) allows an authorised officer to ask an applicant for a permission under paragraph 5I (2) (d) or new paragraph 5I (2A) (e) to give to the authorised officer any information that the authorised officer or the Minister reasonably requires in order to decide whether the permission should be granted.

Item 3 - Subregulation 5I (3)

Item 3 substitutes the words 'subregulation (2)' with 'subregulation (2) or (2A)' in subregulation 5I (3). The effect of this amendment is that the Ministerial review provision in subregulation 5I (3) applies if an authorised officer forms an opinion not to grant a permission under subregulation 5I (2) or new subregulation 5I (2A).

Item 4 - Subregulation 5I (5)

Item 4 substitutes the words 'subregulation (2)' with 'subregulation (2), (2A)' in subregulation 5I (5). The effect of this amendment is that the power to specify conditions in a permission in subregulation 5I (5) applies with respect to permissions granted under subregulation 5I (2) or 5I (4), or new subregulation 5I (2A).

Item 5 - Paragraph 5I (6) (a)

Item 5 substitutes the words 'subregulation (2)' with 'subregulation (2), (2A)' in paragraph 5I (6) (a). The effect of this amendment is that the power to revoke permissions under subregulation 5I (6) for a failure to comply with a condition applies in respect of permissions granted under subregulation 5I (2) or 5I (4), or new subregulation 5I (2A).

Item 6 - Schedule 9

Item 6 substitutes a new Schedule 9. New Schedule 9 has a new title in a style that is consistent with current Schedules 3, 7A and 8 to the PI Regulations. New Schedule 9 also contains two additional chemicals, mirex (item 12) and toxaphene (item 13), that are subject to the Stockholm Convention. Further, the third column of the new Schedule 9 sets out the Chemical Abstract Services (CAS) Registry Number(s) of the chemicals listed in the second column, instead of their International Union of Pure and Applied Chemistry (IUPAC) names.

The CAS Registry is the largest and most current database of chemical substance information in the world and the CAS Registry Number is a unique numerical identifier assigned to each chemical in the CAS Registry. The IUPAC name of a chemical is the name derived for that chemical using standard rules developed by IUPAC. The CAS Registry Number is considered a more reliable and user-friendly unique identifier of the listed chemicals than the IUPAC name.