Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2008 (NO. 6) (SLI NO 255 OF 2008)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 255

 

Issued by the Authority of the Minister for Home Affairs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 2008 (No. 6)

 

Subsection 270(1) of the Customs Act (1901) (the Act) relevantly provides 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 or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to Customs.

Section 50 of the Act relevantly provides 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 in specified circumstances or unless specified conditions or restrictions are complied with. Further, subsection 50(3) of the Act relevantly provides that the regulations 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 made under the Act.

 

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

 

The purpose of the Customs (Prohibited Imports) Amendment Regulations 2008 (No. ) (the amending regulations) was to amend the Principal Regulations to provide that:

(a)    importers must hold a licence or authorisation that is relevant to the purpose of their importation in accordance with the law of the State or Territory in which the article is to be used – previously the only requirement was for the importer to have a licence to possess the firearm. The amendment achieves greater harmonisation and consistency in licensing requirements across Commonwealth and State and Territory jurisdictions, and supports licensing requirements at the States and Territories level;

(b)   an article may be imported under the official purposes test for exhibition at a museum by the government of the Commonwealth, a State or a Territory, and be owned by any person. The amendment allows for articles or collections owned by a foreign government or individual to be displayed in a museum by an Australian government;

(c)    manual firearms that are substantially the same in appearance as a fully automatic firearm be subject to the same regulatory controls as fully automatic firearms. Almost all States and Territories have legislation that effectively restricts access to manual firearms which resemble fully automatic firearms. The amendment is designed to achieve greater harmonisation between Commonwealth, State and Territory legislation and provide greater certainty on the controls of firearms; and

(d)   the phrase ‘fully automatic firearms’ be included as a new category in item 15 to ensure clarification that magazines for fully automatic firearms are also covered by item 15 of Part 2 of Schedule 6 to the Principal Regulations. The amendment clarifies that they are subject to higher import controls.

In developing the amending Regulations, consultation was undertaken across Commonwealth, State and Territory agencies involved in firearms management. In addition to this, a consultation paper was sent out to industry stakeholders, including the 18 members of the Sporting Shooters and Firearms Advisory Council (an Australian Government consultative forum) and a range of firearms importers active in the past two years, inviting submissions in relation to the amending Regulations. A large number of submissions were received and considered in the development of the amending Regulations.

The amending Regulations were designed to maintain a balance between the interests of those who have a genuine need to have access to and use firearms and the interests of the broader community to live in a safe and secure environment.

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.


 

Attachment A

 

NOTES ON CLAUSES

Clause 1: Name of Regulations

This clause is a formal provision specifying the name of the Customs (Prohibited Imports) Amendment Regulations 2008 (No. 6).

Clause 2: Commencement

This clause is a statement that the Regulations will commence on the day after they are registered.

Clause 3: Amendment of Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations)

This clause provides that each regulation that is specified in Schedule 1 is amended or repealed as set out in that Schedule.

 

Clause 4: Transitional

 

This clause provides that the proposed amendments made by Schedule 1 apply in relation to a request for a permission, made on or after the date on which these Regulations commence, to import a firearm, a firearm accessory, a firearm part, a firearm magazine, ammunition, a component of ammunition or a replica mentioned in

regulation 4F of the Customs (Prohibited Imports) Regulations 1956.

 

Schedule 1 – Amendments

 

Item 1

 

This item is a consequential amendment to Item 2 and amended Schedule 6, Part 1, paragraph 1.2 (b) of the Principal Regulations to allow for new paragraph (c).

 

Item 2

 

This item amended Schedule 6 of Part 1, paragraph 1.2 of the Principal Regulations to include a new paragraph (c) stipulating that the Attorney-General must not give written permission for the importation of an article under the official purposes test unless satisfied that the importer holds a relevant licence or authorisation to possess the article for the importer’s intended use in accordance with the law of the State or Territory in which the article is to be used. The new provision requires that an importer be able to demonstrate that they are appropriately licensed or authorised by the relevant State or Territory for their intended use of the article. For example, if the importer is importing the article with the intention of selling the article to government, then the importer must hold a licence that permits the sale, or not be required to hold a licence for the sale – meaning they are otherwise authorised. An authorisation is considered to exist in circumstances where the law of the relevant State or Territory does not require the importer to have a licence for the importer’s intended use. Essentially the importer needs to meet any relevant licensing or authorisation required by the relevant State or Territory for what they intend to do with the articles.

Under this amendment, the licence does not need to specifically mention the activity concerned, but rather the activity simply needs to be permitted under the licence or authorisation that applies to the importer.

 

 

The amendment provides for greater harmonisation of Commonwealth, State and Territory provisions, and also supports the licensing requirements of the States and Territories by making them part of the import process.

 

Item 3

 

This item amended Schedule 6 of Part 1, paragraph 1.4, table, Item 2, column 2, paragraph (c) of the Principal Regulations to include new paragraph (d).

 

New paragraph (d) provides that an article exhibited at a museum by the government of the Commonwealth, a State or a Territory may be owned by any person in accordance with the conditions of the official purposes test. The effect of the amendment is to allow museums such as the Australian War Memorial to temporarily import articles for exhibition that are owned by a foreign government or individuals.

Items 4 through 6, Item 8 through 11, Item 21 and Items 23 through 29

These items have the effect that importers must hold a licence or authorisation that is relevant to the purpose of their importation in accordance with the law of the State or Territory in which the article is to be used. For this amendment, the licence does not need to specifically mention the activity concerned, but rather the activity simply needs to be permitted under the licence or authorisation that apply to the importer.

 

The amendment provides for greater harmonisation of Commonwealth, State and Territory provisions, and supports the licensing requirements of the States and Territories by making them part of the import process.

 

Item 7

 

This item is a technical amendment that corrects a reference.

 

Item 12

 

This item is a consequential amendment to item 13 and amended Schedule 6 of Part 2, Item 1, column 2 of the Principal Regulations.

 

Item 13

 

This item amended Schedule 6, Part 2, Item 1, column 2 of the Principal Regulations to include new paragraph (b). The previous paragraphs (a) and (b) are now numbered as subparagraphs (i) and (ii).

 

New paragraph (b) provides that any firearm listed in Schedule 6 of Part 2, Item 1, column 2 of the Principal Regulations that is substantially the same in appearance as a fully automatic firearm cannot be included under Schedule 6 of Part 2, Item 1, column 2 of the Principal Regulations. The amendment ensured that firearms normally classified as Item 1 that are substantially the same in appearance as a fully automatic firearm, regardless of their manner of operation, design or colour, are classified under Schedule 6 of Part 2, item 12 of the Principal Regulations. Therefore, importation of these firearms requires compliance with the official purposes test, the specified purposes test, or the returned goods test. A decision that a firearm is substantially the same in appearance as a fully automatic firearm requires comparison between the particular firearm that is to be imported and a fully automatic firearm in existence. Substantially the same in appearance allows for some differing characteristics. For example the colour, the existence of magazines, stock covers and sight rails may not necessarily be determinative.

 

In almost all States and Territories these firearms are more tightly controlled than a Category A or Category B firearm. Therefore, the amendment provides greater harmonisation and consistency of firearms regulations across both Commonwealth and State and Territory jurisdictions.

 

Item 14

 

This item is a consequential amendment to Item 15.

 

Item 15

 

This item amended Schedule 6 of Part 2, item 2, column 2 of the Principal Regulations to include new paragraph (b). The previous paragraphs (a) and (b) are now numbered as subparagraphs (i) and (ii).

 

New paragraph (b) provides that any firearm listed in Schedule 6 of Part 2, item 2, column 2 of the Principal Regulations that is substantially the same in appearance as a fully automatic firearm cannot be included under Schedule 6 of Part 2, Item 1, column 2 of the Principal Regulations. The proposed amendment ensures that firearms normally classified as Item 2 that are substantially the same in appearance as a fully automatic firearm, regardless of their manner of operation, design or colour, are classified under Schedule 6 of Part 2, Item 12 of the Principal Regulations. Therefore, importation of these firearms requires compliance with the official purposes test, the specified purposes test, or the returned goods test. A decision that a firearm is substantially the same in appearance as a fully automatic firearm requires comparison between the particular firearm that is to be imported and a fully automatic firearm in existence. Substantially the same in appearance allows for some differing characteristics. For example the colour, the existence of magazines, stock covers and sight rails may not necessarily be determinative.

 

In almost all States and Territories these firearms are more tightly controlled than a Category A or Category B firearm. Therefore, the amendment provides greater harmonisation and consistency of firearms regulations across both Commonwealth and State and Territory jurisdictions.

 

Item 16

 

This item amended Schedule 6 of Part 2, Item 9, column 2, paragraph (b) of the Principal Regulations to replace the words ‘resembles in appearance a sub-machine gun, a machine pistol or a handgun that has a fully automatic firing capability’ with ‘is substantially the same in appearance as a sub-machine gun, a machine pistol or a handgun that has a fully automatic firing capability’. This amendment ensures that handguns or soft air handguns that are substantially the same in appearance as a sub‑machine gun, a machine pistol or a handgun that has a fully automatic firing capability, do not fall to Item 9 of Part 2 of Schedule 6 of the Principal Regulations. Rather, such firearms, regardless of their manner of operation, design or colour, are classified under Item 12 of Part 2 of Schedule 6 of the Principal Regulations. Therefore, the importation of these firearms requires compliance with the official purposes test, the specified purposes test, or the returned goods test. By replacing the phrase ‘resembles in appearance’ with ‘is substantially the same in appearance as’ the amendment ensures consistency in phrasing within Schedule 6 of the Principal Regulations.

 

Item 17

 

This item amends Schedule 6 of Part 2, Item 9A, column 2, of the Principal Regulations to replace the words ‘resembles in appearance a sub-machine gun, a machine pistol or a handgun that has a fully automatic firing capability’ with ‘is substantially the same in appearance as a sub-machine gun, a machine pistol or a handgun that has a fully automatic firing capability’. This amendment ensures that replicas that are substantially the same in appearance as a sub-machine gun, a machine pistol or a handgun that has a fully automatic firing capability, do not fall to Item 9A of Part 2 of Schedule 6 of the Principal Regulations. Rather, such firearms, regardless of their manner of operation, design or colour, will be classified under Item 12 of Part 2 of Schedule 6 of the Principal Regulations. Therefore the importation of these firearms requires compliance with the official purposes test, the specified purposes test, or the returned goods test. By replacing the phrase ‘resembles in appearance’ with ‘is substantially the same in appearance as’ the amendment ensures consistency in phrasing within Schedule 6 of the Principal Regulations.

Item 18

 

This item amended Schedule 6 of Part 2, Item 12, column 2 of the Principal Regulations to provide that a firearm, not being a firearm to which Items 1, 2, 3, 6, 9 or 14A applies, falls to Item 12. The effect of this amendment is to include firearms that do not fall under Item 14A of Part 2 of Schedule 6 to be included in Item 12 and therefore, the importation of these firearms must comply with the official purposes test, the specified purposes test, or the returned goods test. The Principal Regulations were silent as to how firearms that are excluded from Item 14A were to be classified. The amendment clarified the classification of these articles.

 

Item 19

 

This item amended Schedule 6 of Part 2, Item 14A, column 2, paragraph (b) of the Principal Regulations to substitute it to provide the exception of firearms that are substantially the same in appearance as fully automatic firearms. This ensures that the paintball markers listed in Column 2 in Item 14A of Part 2 of Schedule 6 of the Principal Regulations, regardless of their colour, that are substantially the same in appearance as fully automatic firearms be classified under Item 12 of Part 2 of Schedule 6 of the Principal Regulations. Therefore the importation of these paintball markers requires compliance with the official purposes test, the specified purposes test, or the returned goods test. By replacing the phrase ‘resembles in appearance’ with ‘is substantially the same in appearance as’ the amendment ensures consistency in phrasing within Schedule 6 of the Principal Regulations. The phrase ‘fully automatic firearms’ also encapsulates the previous words of ‘a sub-machine gun, an assault rifle, a machine gun, a machine pistol or a handgun that has a fully automatic firing capability’.

 

Item 20

This Item amended Schedule 6 of Part 2, Item 15, column 2 of the Principal Regulations to include magazines for fully automatic firearms. The proposed amendment results in Item 15 of the Principal Regulations capturing detachable magazines having a capacity of more than five rounds for self-loading centre fire rifles, self-loading shotguns, pump-action shotguns, and fully automatic firearms. This amendment includes the phrase ‘fully automatic firearms’ as a new category in Item 15 to ensure that magazines for fully automatic firearms are subject to the more appropriate tests of Item 15.

This Item corrects a previous drafting error.

 

Item 22

 

This Item amended Schedule 6 of Part 3, Item 3 of the Principal Regulations to include sub item 3.5 - articles imported for temporary exhibit at a museum. Sub item 3.5 articulates the conditions that must be met when an article is imported, for the purposes of exhibition, under the official purposes test.

 


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