CUSTOMS (PROHIBITED IMPORTS) AMENDMENT (WEAPONS) REGULATIONS 2019 (F2019L01047) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT (WEAPONS) REGULATIONS 2019 (F2019L01047)

EXPLANATORY STATEMENT

Issued by the Assistant Minister for Customs, Community Safety and Multicultural Affairs, Parliamentary Secretary to the Minister for Home Affairs

Customs Act 1901

Customs (Prohibited Imports) Amendment (Weapons) Regulations 2019

The Customs Act 1901 (the Customs Act) concerns customs related functions and is the legislative authority that sets out the customs requirements for the importation, and exportation, of goods to and from Australia.

Subsection 270(1) of the Customs 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.

Section 50 of the Customs 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 Customs (Prohibited Imports) Amendment (Weapons) Regulations 2019 (the Amendment Regulations) is to amend the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) to bolster the non-firearms weapons import provisions. For example, the Amendment Regulations would introduce a new import prohibition on flamethrowers and similar devices not designed or adapted for warfare or like purposes, and would also introduce a new import prohibition on karambits (small curved knives that resemble claws) and similar devices. The amendments are necessary to ensure that the community remains protected from new and emerging weapons technologies and to improve the administrative efficiency of the Prohibited Imports Regulations.

Details of the amendments contained in the Amendment Regulations are at Attachment A. A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment B.

The Amendment Regulations also remove obsolete permit exemptions for firearms and weapons in support of United Nations led missions in Timor-Leste (referred to as East Timor in the Prohibited Imports Regulations). The removal of these obsolete provisions is the only measure in the Amendment Regulations that apply to both firearms and weapons.

The Amendment Regulations would extend the ability for State and Territory police weapons registries to grant permission for some items to be imported. State and Territory police were consulted in the development of these proposed Amendment Regulations and agreed in principle with them.

The Amendment Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Amendment Regulations commence the day after the instrument is registered.

OPC63955 - A

ATTACHMENT A

Details of the Customs (Prohibited Imports) Amendment (Weapons) Regulations 2019

Section 1 - Name of Regulation

1. This section provides that the title of the Regulations is the Customs (Prohibited Imports) Amendment (Weapons) Regulations 2019 (the Amendment Regulations).

Section 2 - Commencement

2. This section sets out, in a table, the date on which each of the provisions contained in the Amendment Regulations commence.

3. Table item 1 provides for the whole of the instrument to commence the day after the instrument is registered.

Section 3 - Authority

4. This section sets out the authority under which the Amendment Regulations are to be made, which is the Customs Act 1901 (the Customs Act).

Section 4 - Schedules

5. This section is the formal enabling provision for the Schedule to the Amendment Regulations, and provides that, each instrument that is specified in a Schedule to the Amendment Regulations, is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this instrument has effect according to its terms.

6. The instrument to be amended is the Customs (Prohibited Imports) Regulations 1956.

Schedule 1 - Amendments

Customs (Prohibited Imports) Regulations 1956

Item 1 Subparagraph 3A(a)(xiv)

1. This item makes a minor typographical amendment to subparagraph 3A(a)(xiv) of the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) to omit "Tonga;" and substitute "Tonga; and".

2. This amendment is consequential to the amendments made by item 2.

Item 2 Subparagraphs 3A(a)(xv) and (xvi)

3. This item repeals subparagraphs 3A(a)(xv) and (xvi) of the Prohibited Imports Regulations. This amendment is consequential to items 4 and 5.

4. The purpose of this amendment together with items 3-5 is to remove obsolete import permit exemptions for firearms and weapons in support of United Nations led missions in Timor-Leste (referred to as East Timor in the Prohibited Items Regulations).

5. Currently, regulations 4F and 4H of the Prohibited Import Regulations exempts from import requirements certain firearms and non-firearms weapons where they are being transported via Australia to East Timor for the purposes of United Nations led missions. The last United Nations mission in East Timor concluded in 2005 and Australian Defence Force operations concluded in 2013. As such the existing exemptions in relation to East Timor are no longer required.

6. Similar exemptions for the export of firearms and weapons to East Timor were repealed in 2018 from the Customs (Prohibited Exports) Regulations 1958 by the Customs (Prohibited Exports) Amendment (Defence and Strategic Goods) Regulations 2018.

Item 3 Regulation 3B

7. This item repeals regulation 3B of the Prohibited Imports Regulations.

8. This amendment is consequential to item 2.

Item 4 Subregulation 4F(2A)

9. This item repeals subregulation 4F(2A) of the Prohibited Imports Regulations. This subregulation contains the import permit exemptions for firearms in support of United Nations led missions in Timor-Leste

Item 5 Paragraph 4H(2)(b)

10. This item repeals paragraph 4H(2)(b) of the Prohibited Imports Regulations. This subregulation contains the import permit exemptions for non-firearms weapons in support of United Nations led missions in Timor-Leste.

Item 6 After paragraph 2.2(c) of Part 1 of Schedule 13

11. The importation into Australia of weapons and weapon parts is prohibited under regulation 4H and Schedule 13 of the Prohibited Imports Regulations. Importers must obtain written permission from the Minister or an authorised person to import weapons or weapons parts into Australia.

12. For regulation 4H of the Prohibited Imports Regulations, Schedule 13 sets out the weapons or parts of weapons which are prohibited from import into Australia unless the importation is in accordance with specified requirements and a permission to import has been granted in writing by the Minister or an authorised person.

13. Part 1 of Schedule 13 sets out the criteria, known as import "tests", that must be met for the Minister or an authorised person to give written permission for an importer to bring weapons and weapon parts into Australia.

14. Part 2 of Schedule 13 lists in a table the weapons and weapons parts that are prohibited from importation into Australia and the import tests that an importer must meet to fulfil the requirements to obtain permission to import these goods. Importers only need to satisfy one of the import tests listed for the goods they are seeking to import into to Australia to receive a permission to import.

15. Item 2 of Part 1 of Schedule 13 sets out the 'Specified purposes test'. This test includes specific requirements that an importer of certain weapons and weapon parts must meet prior to a written permission being given by the Minister or an authorised person for the importation of the goods. Currently this import test is available for all weapons and weapon parts listed in Part 2 of Schedule 13 which are imported for the following specified purposes:

* use in connection with the production of a film by licensed film armourers

* supply of large calibre ammunition and components from outside Australia

* repairs, modifications or testing

* manufacture and assembly

* a defence or police sanctioned activity

* research or development.

16. This item inserts an additional purpose under the 'Specified purposes test' in relation to flamethrowers or similar devices, and parts for both such goods. This addition is consequential to item 25 which inserts two new table items in Part 2 of Schedule 13 in relation to flamethrowers (other than those designed or adapted for warfare) and similar devices and their parts.

17. The "Specified purposes test" is listed in the column headed "Requirements" for both of these new table items - table item 46 and table item 47.

18. The amendment to the "Specified purposes test" at item 2 of Part 1 of Schedule 13 inserts the following new purpose:

(d) the good is a flamethrower, or similar device, of a kind mentioned in item 46 of Part 2 of this Schedule, or a part mentioned in item 47 of that Part, to be imported in the following circumstances:

(i) either:

(A) for use in an entertainment production or performance approved by the State or Territory in which the good is to be used; or

(B) for the purpose of fire prevention or fire control activities approved by the State or Territory in which the good is to be used;

(ii) if the importer is required to hold a licence or authorisation to possess the good in the State or Territory in which the good is to be used--the importer holds a licence or authorisation of that kind; or

19. The purpose of this insertion is to set out the specific requirements that an importer of the goods listed at new table items 46 and 47 must meet prior to a written permission under the "specified purpose test" being given by the Minister or an authorised person for the importation of the goods.

Item 7 Part 2 of Schedule 13 (table item 1, column headed "Weapons and weapon parts")

20. This item makes a minor typographical amendment by omitting "Flame throwers" and substituting "Flamethrowers".

Item 8 Part 2 of Schedule 13 (table item 1, column headed "Weapons and weapon parts ")

21. This item omits the words "Gases or liquids" from the phrase in table item 1 of Part 2 of Schedule 13: "Gases or liquids designed for the purpose of killing or incapacitating persons, and devices or apparatus designed or adapted for use with those goods" and substitutes the words: "Gases, liquids, powders, gels or other substances."

22. The purpose of this amendment is to expand the scope of the list of goods in table item 1 to ensure that substances including powders that are designed to kill or incapacitate people are prohibited from import into Australia where they are not elsewhere specified in the Prohibited Imports Regulations.

23. The importation of goods included in table item 1 must comply with one of the import tests listed in the column headed "Requirements". For table item 1 this list includes the "official purposes test".

24. Item 1 of Part 1 of Schedule 13 sets out the requirements of the "official purposes test". Under this test the Minister or an authorised person may give written permission for the importation of a good only if they are satisfied that the good is to be imported for the purposes of:

* the government of the Commonwealth, a state or a territory; or

* export under a contract to a government of a foreign country, in compliance with the Act (including any regulations or other instruments made under the Act.

Specified ownership arrangements for the good must also be met and the importer must hold any required licenses or authorisations to hold the good in the state or territory in which the good is to be used.

25. It is intended that under the "official purposes test" state and territory Governments, and dealers which supply crowd control goods to these governments, will be able to apply for permission to import powders that can incapacitate people for the purpose of crowd control.

Item 9 Part 2 of Schedule 13 (cell at table item 9, column headed "Weapons and weapon parts")

26. This item repeals the cell at table item 9 of Part 2 of Schedule 13 and substitutes "Nunchakus or similar devices".

27. The purpose of this amendment is to broaden the import prohibition for nunchakus to ensure that variations of this weapon are also brought within the scope of the prohibition.

28. There are a range of variations of nunchakus which can vary in size and design and which are identified with unique names. Under the current wording of table item 9 these goods may not be prohibited from import into Australia which poses an unacceptable risk to community safety. This amendment to table item 9 is necessary to ensure that these goods cannot be imported lawfully without permission.

Items 10, 11, 15, 16, 17, 20, 22 and 24 Part 2 of Schedule 13 (table item 10, column headed "Weapons and weapon parts"); Part 2 of Schedule 13 (table item 11, column headed "Weapons and weapon parts"); Part 2 of Schedule 13 (table item 29, column headed "Weapons and weapon parts"); Part 2 of Schedule 13 (table item 30, column headed "Weapons and weapon parts"); Part 2 of Schedule 13 (table item 31, column headed "Weapons and weapon parts"); Part 2 of Schedule 13 (table item 42, column headed "Weapons and weapon parts"); Part 2 of Schedule 13 (table item 43, column headed "Weapons and weapon parts"); Part 2 of Schedule 13 (table item 44, column headed "Weapons and weapon parts")

29. These items broaden the import prohibition for the following weapons and weapon parts to ensure that variations of these goods are also brought within the scope of the prohibition. This is achieved by inserting the words "or similar devices" into the column headed "Weapons and weapons parts" for each table item:

* crossbows as described in table item 10;

* parts for crossbows as described in table item 11;

* throwing blades, throwing knives or throwing axes as described in table item 29;

* knives, blades or spikes as described in table item 30;

* hand or foot claws as described in table item 31;

* extendable or telescopic batons as described in table item 42;

* parts of extendable or telescopic batons described in table item 43; and

* hand-held goods, commonly known as laser-pointers as described in table item 44.

30. Under the current wording used in the import prohibitions for these weapons and weapon parts, variations of these goods may not be prohibited from import into Australia. This poses an unacceptable risk to community safety. These amendments are necessary to ensure that these goods cannot be imported into Australia without permission.

Item 12 Part 2 of Schedule 13 (cell at table item 21, column headed "Weapons and weapon parts")

31. This item repeals the cell at table item 21 in the column headed "Weapons and weapons parts" in Part 2 of Schedule 13 and substitutes:

Hunting slings, catapults, sling shots or similar devices designed for use with, or a component part of which is:

(a) a brace that:

(i) fits or rests upon the forearm or upon another part of the body of the user; and

(ii) supports the wrist or forearm against the tensions of any material used to propel a projectile; or

(b) a tensioning, locking or triggering device, or similar component, designed or adapted to assist in propelling a projectile.

32. Under existing wording of the cell in table item 21 of Part 2 of Schedule 13 only hunting slings, catapults or sling shots with an arm brace component are controlled on import. The amendment introduces an additional import prohibition in relation to these weapons where they are designed for use with, or a component part of which is a tensioning, locking or triggering device or similar component, designed or adapted to assist in propelling a projectile.

33. The purpose of this insertion is to ensure that the import prohibition for these weapons captures emerging designs of these goods which pose a risk to community safety.

34. For example, there are emerging technologies that meet or exceed the force produced by arm brace slingshots such as the pistol grip slingshot which can fire a projectile at a very high velocity. This weapon would not be prohibited from import into Australia under the existing wording in table item 21.

35. The amended wording also inserts the phrase "or similar devices" after "sling shots". The purpose of this addition is to ensure that variations of these weapons are also captured by the import prohibition set out in the table item.

Item 13 Part 2 of Schedule 13 (table item 22, column headed "Weapons and weapon parts")

36. This item omits the words "or sling shots" and substitute ", sling shots or similar devices".

37. This amendment is consequential to item 12.

Item 14 Part 2 of Schedule 13 (after table item 28)

38. This item inserts new table item 28A, after table item 28 in Part 2 of Schedule 13, to introduce a new import prohibition for karambits or similar devices.

39. Karambits are hand-held curved knives that resemble a claw and are used mostly in combat or martial arts disciplines. These knives have little utility beyond that of a weapon and are already controlled in some states and territories.

40. The importation of karambits and similar bladed weapons will be required to comply with at least one of the following import tests to be listed in the "Requirements" column of the new table item:

(a) the official purposes test;

(b) the specified purposes test;

(d) the returned goods test;

(e) the public interest test;

(f) the national interest test.

Items 18, 19, 21, 23 and 25 Part 2 of Schedule 13 (table items 39 and 40, column headed "Requirements", after paragraph (d));
Part 2 of Schedule 13 (table item 41, column headed "Requirements", after paragraph (e));
Part 2 of Schedule 13 (table item 42, column headed "Requirements", after paragraph (e));
Part 2 of Schedule 13 (table item 43, column headed "Requirements", after paragraph (e));
Part 2 of Schedule 13 (table item 44, column headed "Requirements", after paragraph (e));

41. These items add the "police certification test" to the list of import tests that at least one of which must be complied with for a permission to be granted for the importation of:

* maces or similar goods as described in table item 39, and flails or similar goods as described in table item 40;

* body armour, or any similar goods, as described in table item 41;

* extendable or telescopic batons or similar devices, as described in table item 42;

* parts for extendable or telescopic batons or similar devices, as described in table item 42; and

* hand-held goods, commonly known as laser-pointers or similar devices as described in table item 44.

42. For weapons and weapon parts subject to the police certification test importers are required to obtain the relevant form signed by the police weapons registry in their State or Territory. This completed and signed form notifies the Australian Border Force that:

* an applicant holds a license or authorisation under state or territory law to possess the goods; or

* a licence or authorisation to possess the goods is not required under state or territory law.

43. Where residents do not require a licence or authorisation to possess the weapons listed on the form, a police certification confirming this may be issued for all residents of the relevant State or Territory for certain weapons. Australian Border Force officers may require evidence that the importer is a resident of the state or territory that issued this certification.

44. The amendments allow state and territory police to issue an import certification where an importer is either licensed, or is not required to be licenced, to possess these weapons in their jurisdiction. Currently the Department of Home Affairs often issues import permits for these goods on the basis that the importer is already licensed to possess the goods in their state or territory. These changes will reduce the duplication of administration which occurs under the existing arrangements.

45. Together these items will also ensure greater consistency across the import tests available for similar types of prohibited weapons and weapon parts.

Item 26 Part 2 of Schedule 13 (at the end of the table)

46. This item inserts two new table items, table item 46 and table item 47, at the end of the table in Part 2 of Schedule 13:

Flamethrowers or similar devices (other than those to which item 1 applies), including hand-held or portable flamethrowers or flame projectors

The importation must comply with at least one of the following tests:

(a) the official purposes test;

(b) the specified purposes test;

(d) the national interest test

Parts for flamethrowers or similar devices to which item 46 applies.

The importation must comply with at least one of the following tests:

(a) the official purposes test;

(b) the specified purposes test;

(d) the national interest test

47. The purpose of this amendment is to introduce new import prohibitions for flamethrowers or similar devices (other than those specifically designed or adapted for warfare), including hand-held or portable flamethrowers or flame projectors and their parts. This new prohibition is in addition to the existing import control at table item 1 for flamethrowers specifically designed or adapted for warfare or like purposes and is not intended to impact upon this control.

48. The goods listed in these new table items pose an unacceptable risk to the safety of the Australian community as they can be used as weapons. The amendments introduced by this item will ensure tighter control of these goods at the border, while allowing importers to apply to import these goods into Australia for legitimate uses.

ATTACHMENT B

Statement of Compatibility with Human Rights

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

Customs (Prohibited Imports) Amendment (Weapons) Regulations 2019

The Customs (Prohibited Imports) Amendment (Weapons) Regulations 2019 (the Amendment Regulations) are compatible with 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.

The Customs (Prohibited Imports) Amendment (Weapons) Regulations 2019 (the Amendment Regulations) is a legislative instrument for the purposes of the Legislation Act 2003.

The Amendment Regulations commence the day after the instrument is registered.

Overview

The purpose of the Amendment Regulations is to amend the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) to bolster the non-firearms weapons import provisions. For example, the Amendment Regulations would introduce a new import prohibition on flamethrowers and similar devices not designed or adapted for warfare or like purposes, and would also introduce a new import prohibition on karambits and similar devices. The amendments are necessary to ensure that the community remains protected from new and emerging weapons technologies and to improve the administrative efficiency of the Prohibited Imports Regulations.

Human rights implications

The Amendment Regulations do 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

The Amendment Regulations are compatible with human rights, as the Amendment Regulations do not raise any human rights issues.

Jason Wood, Assistant Minister for Customs, Community Safety and Multicultural Affairs, Parliamentary Secretary to the Minister for Home Affairs