Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


CUSTOMS (PROHIBITED IMPORTS) AMENDMENT (OZONE-DEPLETING SUBSTANCES AND SYNTHETIC GREENHOUSE GASES) REGULATION 2014 (SLI NO 174 OF 2014)

EXPLANATORY STATEMENT

 

SELECT LEGISLATIVE INSTRUMENT NO. 174, 2014

 

Issued by the Authority of the Minister for Immigration and Border Protection

 

Customs Act 1901

 

Customs (Prohibited Imports) Amendment (Ozone-Depleting Substances and Synthetic Greenhouse Gases) Regulation 2014

 

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 for giving effect to the Act.

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

The purpose of the Customs (Prohibited Imports) Amendment (Ozone-Depleting Substances and Synthetic Greenhouse Gases) Regulation 2014 (the Regulation) is to amend Regulation 5K of the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) to align the import controls on Ozone-Depleting Substances (ODS) equipment and Synthetic Greenhouse Gas (SGG) equipment with those set out in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM Act).

Australia is a party to the Montreal Protocol on Substances that Deplete the Ozone Layer which is an international treaty for the prevention of illegal trade in ozone-depleting substances and products that contain ozone-depleting substances.  As a result, the OPSGGM Act provides specific controls on the manufacture, import, export and distribution of ozone-depleting substances. 

 

Currently subsection 13(6A) of the OPSGGM Act imposes a ban on the importation of ODS or SGG equipment unless:

a)      a person holds an ODS/SGG equipment licence; or

b)      the following conditions are satisfied:

*         the equipment is kept by the person, or by a member of the person's household, wholly or principally for private or domestic use; and

*         the equipment is prescribed by the regulations or specified in a legislative instrument made by the Minister; and

*         the conditions (if any) prescribed by the regulations or specified in a legislative instrument for a person to qualify for the exemption.

To support the administration and enforcement of controls set out in the OPSGGM Act, subregulation 5K(1) of the Principal Regulations prohibits, amongst other things, the importation of ODS or SGG equipment unless one of the exceptions in Regulation 5K applies.  The main exception is where the importer has a licence granted under section 16 of OPSGGM Act to import the equipment (subregulation 5K(2) refers).

 

In October 2014, a new paragraph 13(6A)(c) was inserted into the OPSGGM Act to exempt low volume importers of ODS and SGG equipment from the requirement to hold a licence under the OPSGGM Act.  Similar to paragraph 13(6A)(b) of the OPSGGM Act, new paragraph 13(6A)(c) requires the following conditions to be satisfied before the exemption will apply:

*        the total number of ODS equipment and SGG equipment imported by the person in a period prescribed by the regulations, or specified in a legislative instrument made by the Minister, is no more than the number prescribed by the regulations or specified in a legislative instrument made by the Minister; and

*        the person, the equipment, and the importation, meet the conditions (if any) prescribed by the regulations or specified in a legislative instrument made by the Minister.

As a result of the recent amendment to OPSGGM Act, the Regulation amends Regulation 5K of the Principal Regulations to align the ODS and SGG equipment import controls with those in the OPSGGM Act.

 

Specifically, the Regulation amends subregulation 5K(6) to remove an obsolete reference to paragraph 68(1)(d) of the Act and prohibit the importation of ODS or SGG equipment unless the conditions in paragraph 13(6A)(b) or (c) of the OPSGGM Act are satisfied. 

 

The Regulation also amends subregulation 5K(7) of the Principal Regulations to align the definitions of 'ODS equipment' and 'SGG equipment' with those in the OPSGGM Act.

 

Currently subregulation 5K(6) prohibits the importation of ODS or SGG equipment unless it is ODS or SGG equipment to which paragraph 68(1)(d) of the Act applies.  However, reference to this provision is now obsolete as it was originally inserted into the Principal Regulations in 2004 to provide an exception to the prohibition of importing 'pre-charged equipment' that was a personal or household effect of a passenger, or a member of the crew, of a ship or aircraft.  At the time, this exception was consistent with that provided in the OPSGGM Act.

 

On 10 July 2011 the Government released a Clean Energy Future Plan which, in part, replaced the concept of 'pre-charged equipment' with 'ODS equipment' and 'SGG equipment' and imposed a carbon charge on equipment containing synthetic greenhouse gases.  

 

To ensure consistency with the Government's Clean Energy Future Plan, on 1 July 2012 subsection 13(6A) of the OPSGGM Act was repealed and substituted.  In effect, the amendments:

*         replaced the definition of, and references to, 'pre-charged equipment' with definitions of, and references to, 'ODS equipment' and 'SGG equipment';

*         removed the exception to the prohibition on importing 'pre-charged equipment' covered by paragraph 68(1)(d) of the Act (as this was now obsolete); and

*         introduced new exceptions from the import ban on ODS or SGG equipment (current paragraphs 13(6A)(a) and (b)).

On 1 July 2012 the terminology in Regulation 5K of the Principal Regulations was also updated, however not all of the new exceptions to the import ban in subsection 13(6A) of the OPSGGM Act were replicated.  In addition, the definitions of 'ODS equipment' and 'SGG equipment' in the Principal Regulations are slightly different to those contained in the OPSGGM Act.

 

To rectify this oversight the Regulation amends Regulation 5K of the Principal Regulations to:

*         remove the reference to paragraph 68(1)(d) of the Act which is now obsolete;

*         prohibit the importation of ODS or SGG equipment unless the conditions in paragraph 13(6A)(b) or (c) of the OPSGGM Act are satisfied; and

*         align the definitions of 'ODS equipment' and 'SGG equipment' with those in the OPSGGM Act.

The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.

The Regulation is minor or machinery in nature and does not substantially alter existing arrangements.  Therefore no formal consultation was undertaken in relation to the amendments.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

OPC60657-A


Statement of Compatibility with Human Rights

 

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

 

Customs (Prohibited Imports) Amendment (Ozone-Depleting Substances and Synthetic Greenhouse Gases) Regulation 2014

 

 

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

The Regulation amends Regulation 5K of the Customs (Prohibited Imports) Regulations 1956 to align the import controls on Ozone-Depleting Substances (ODS) equipment and Synthetic Greenhouse Gas (SGG) equipment with those set out in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM Act).    

The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.

 

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 Immigration and Border Protection

 


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback