Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATION 2012 (NO. 2) (SLI NO 196 OF 2012)

EXPLANATORY STATEMENT

Select Legislative Instrument 2012 No. 196

Issued by the Authority of the Minister for Home Affairs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulation 2012 (No. 2)

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 business relating to Customs.

The purpose of the Regulation is to amend the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) to make technical amendments to correct two drafting errors, facilitate the importation of certain non-firearms weapons and non-firearms weapon parts in certain circumstances and clarify three definitions concerning firearms.

Schedule 13 of the Principal Regulations regulates the importation of certain         non-firearms weapons and their parts. Part 2 of Schedule 13 contains a list of non-firearms weapons and weapon parts and the requirements which must be met in order for the weapons and weapon parts to be imported. These requirements are a number of statutory tests contained in Part 1 of Schedule 13. These statutory tests were introduced in late 2011.

Body armour and extendable or telescopic batons may be imported by legitimate end users under the 'specified person test' at item 3 of Part 1 of Schedule 13 to the Principal Regulations; however, none of the statutory tests in Schedule 13 that apply to the importation of body armour and extendable or telescopic batons allow the importation by appropriately licensed importers who import these items for the purposes of distributing to, or supplying, legitimate end users. This was an unintended consequence of the statutory tests.

The Regulation amends the specified person test to allow the importation of body armour, extendable or telescopic batons and parts for extendable or telescopic batons for sale to certain licensed end users. These amendments are similar to those at paragraph 3.2(c) of the specified person test which allows laser pointers to be imported for sale by an importer.

The Regulation requires the Minister or authorised person to be satisfied the importer of the goods for sale holds a licence or authorisation to possess or sell goods where required by the State or Territory in which the importer lives and, that the importer  only sell the goods to a person with a licence or authorisation to possess the goods where required by the State or Territory in which the person will possess the goods. This will help ensure the goods will only be available to legitimate end users. The specified persons test will also be amended to allow those end users who are currently able to import extendable or telescopic batons to also import parts for extendable or telescopic batons. Although extendable or telescopic batons are able to be imported under the specified persons test, parts for extendable or telescopic batons are not. This was also an unintended consequence of the statutory tests.

The 'dealer test' contained in item 4 of Part 1of Schedule 13 allows importation of certain non-firearms weapons and their parts for the purposes of demonstrating or testing those goods. Currently, this provision limits the number of goods which can be imported for these purposes to either one of a particular model or a total of five goods.

Since the statutory tests were introduced in late 2011, the Australian Customs and Border Protection Service has become aware of a number of instances where dealers can demonstrate a legitimate need to import more than five goods, including more than one of a particular model, for demonstration and testing purposes. For example, businesses that supply a large array of armaments to the Australian Defence Force may need to import more than five goods or one of each model to demonstrate a range of weapons or explosives.

To facilitate this, the Regulation removes the restrictions of having no more than five goods, and only one of a particular model. Limitations on the number of items may still be applied administratively to ensure that legitimate requirements of the importer are not exceeded. Where the importer states that the good is to be imported for the purpose of demonstrating or testing the good, the dealer test requires the Minister or authorised person to be satisfied the good is to be used for the purpose of demonstration or testing. This requirement will remain unchanged.

Regulation 4F of the Principal Regulations prohibits the importation of firearms, firearm accessories, firearm parts, firearm magazines, ammunition, components of ammunition and imitations unless one of the exceptions in that Regulation applies. Subregulation 4F(4) contains definitions for the purposes of regulation 4F.

The Regulation also amends the definitions of 'firearm accessory,' 'firearm magazine' and 'firearm part' contained in subregulation 4F(4) to clarify that these definitions apply whether or not the accessory, magazine or part is complete, damaged, temporarily or permanently inoperable, or unfinished.

As the Regulation is of a minor or machinery nature, no consultation was undertaken in relation to the Regulation.

The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.         

Statement of Compatibility with Human Rights

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

Customs (Prohibited Imports) Amendment Regulation 2012 (No. 2)

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Regulation

This Regulation amends the Customs (Prohibited Imports) Regulations 1956 to make technical amendments to correct two drafting errors, facilitate the importation of certain non-firearms weapons and non-firearms weapon parts in certain circumstances and clarify three definitions concerning firearms.

The Regulation commences on the day after it is registered.

Human Rights implications

This legislative instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Conclusion

This legislative instrument does not raise any human rights issues.

Minister for Home Affairs

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