Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT (ELECTROMAGNETIC WEAPONS) REGULATIONS 2022 (F2022L00113)

EXPLANATORY STATEMENT

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

Customs Act 1901

Customs (Prohibited Imports) Amendment (Electromagnetic Weapons) Regulations 2022

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 (Electromagnetic Weapons) Regulations 2022 (the Amendment Regulations) is to amend the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) to prohibit the importation of electromagnetic weapons except where the importation is for official purposes or where importation is in the national interest. The Amendment Regulations allow government agencies to assess these weapons and ensure the control of these weapons is reasonable and proportionate to their risk of harm in the community.

Electromagnetic weapons can use electromagnetic force to propel a projectile in two ways:

i.                    a coil gun (also known as a gauss gun), which uses one or more coils arranged along a barrel to exert electromagnetic force to discharge a projectile; and

ii.                  a railgun, which is a linear motor device that uses a pair of parallel conductors (rails) along which a sliding armature is accelerated by the electromagnetic effects of current that flows down both rails.

Electromagnetic weapons can be hand-held, fire silently, use improvised ammunition, and are capable of firing a projectile with enough kinetic energy to wound and possibly kill. Allowing the importation of these weapons into Australia without first establishing an appropriate importation framework would pose a threat to the wider community. Current customs law does not uniformly control electromagnetic weapons. Small calibre electromagnetic guns are not 'prohibited imports' as they do not fall within the relevant definition of 'firearms' under regulation 4F and are not 'weapons' regulated under regulation 4H of the PI Regulations. By contrast, electromagnetic weapons specifically designed or adapted for warfare (e.g. large calibre electromagnetic weapons such as cannons) are prohibited imports under table item 1 of Part 2 of Schedule 13 to the PI Regulations.

The Amendment Regulations include electromagnetic weapons and parts of electromagnetic weapons in the import controls for weapons under regulation 4H. This is achieved by inserting two new table items at the end of Part 2 of Schedule 13 to the PI Regulations. Schedule 13 lists non-firearm weapons prohibited from importation under regulation 4H unless a permission has been granted by the Minister or an authorised person. There are a broad range of prohibited weapons, including large calibre armaments, military attack vehicles, body armour, laser pointers, anti-personnel sprays, martial arts weaponry.

The Amendment Regulations confine imports of electromagnetic weapons and their parts to government end users, companies purchasing under a contract or tenders for government end users, or where import is in the national interest. This prevents general public access to importation of these weapons. Under the Amendment Regulations imports are subject to the 'official purposes test' or the 'national interest test' set out in Part 1 of Schedule 13 to the PI Regulations. The new prohibition does not affect the existing import control on electromagnetic weapons designed or adapted for warfare.

Details of the Amendment Regulations are set out in 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 Department of Home Affairs (the Department) conducted public consultations that commenced on 3 November 2021 and closed on 10 November 2021. Ten submissions were made, seven of which supported the introduction of import controls on electromagnetic weapons. Supporters of the proposed amendments included Commonwealth, State and Territory Law Enforcement. The remaining submissions were from the firearms community which generally opposed the proposed amendments, questioning the threat of electromagnetic weapons and expressing concern that the controls would prevent these weapons from being imported by the industry. Following consultation, it was considered necessary to impose the new import controls due to the risk these weapons pose to community safety.

The Department also consulted with the Australian Federal Police, Australian Border Force, Australian Criminal Intelligence Commission and the Department of Defence. The amendments were endorsed by the Firearms and Weapons Policy Working Group, which consists of policy and law enforcement agencies from the Commonwealth, states and territories, and New Zealand.

The Office of Best Practice Regulation (OBPR) has been consulted in relation to the amendments and has advised that the amendments are likely to have no more than minor regulatory impacts on business, individuals and organisations, and a Regulation Impact Statement will not be required. The OBPR reference number is OBPR21-01206.

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

The Amendment Regulations commence on 10 February 2022.

ATTACHMENT A

Details of the Customs (Prohibited Imports) Amendment (Electromagnetic Weapons) Regulations 2022

Section 1 - Name of the Amendment Regulations

This section provides that the title of the Regulations is the Customs (Prohibited Imports) Amendment (Electromagnetic Weapons) Regulations 2022 (the Amendment Regulations).

Section 2 - Commencement

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

Table item 1 provides for the whole of the instrument to commence on 10 February 2022.

Section 3 - Authority

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

This section sets out the formal enabling provision for the Schedules 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 the Amendment Regulations has effect according to its terms.

The instrument amended is the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations).

Schedule 1 - Amendments

Customs (Prohibited Imports) Regulations 1956

Item [1] - Part 2 of Schedule 13 (at the end of the table)

The purpose of the Amendment Regulations is to introduce new import restrictions for electromagnetic weapons and their parts under section 4H of the PI Regulations. This new prohibition operates in addition to the existing import control in table item 1 for electromagnetic weapons (which applies, among other things, to electromagnetic weapons being large calibre armaments designed for warfare, such as cannons).

Under the amendments, the Minister administering the PI Regulations may only grant permission to import electromagnetic weapons or parts of electromagnetic weapons where the importer meets the 'official purposes test' or the 'national interest test' in items 1 and 10 respectively in Part 1 in Schedule 13 to the PI Regulations. An authorised person may also give written permission for the official purposes test only.

Key elements of the new import prohibition are explained below.

Electromagnetic weapons or similar devices

This amendment applies to weapons or similar devices that use electromagnetic force (distinct from compressed gas or an explosive charge used by firearms) to propel a projectile. Such weapons can be hand-held, fire silently, and use improvised ammunition. The phrase 'or similar devices' ensures that variations on these weapons are also captured by the import prohibition set out in the amendment to table item 48.

To the extent that electromagnetic weapons are covered by item 1 of Part 2 of Schedule 13 to the PI Regulations (weapons designed or adapted for warfare) - e.g. large calibre electromagnetic weapons, the importation of those weapons continues to be regulated by the import tests available in item 1.

Designed or adapted to propel or launch a substance or other thing by electromagnetic force

The purpose of this element is to ensure that the versatile range of substances or things that are propelled from an electromagnetic weapon and cause the damage to property or bodily harm are adequately covered by the new import control. What may be covered as a substance or other thing is wide in nature to encapsulate the varieties of ammunition (including improvised ammunition) that could be launched from an electromagnetic weapon. For example, this could include ferromagnetic or conductible objects such as steel rods or a thing that is capable of being accelerated by electromagnetic force.

Capable of causing: (i) damage to property or (ii) bodily harm

The 'capable of causing damage to property or bodily harm' element is similar to the existing import restriction on crossbows in item 10 of Part 2 of Schedule 13 to the PI Regulations.

This ensures that the new import prohibition for electromagnetic weapons and parts is appropriately targeted to weapons that may cause damage or harm, which pose a risk to community safety. This also ensures that the new prohibition is not linked to any particular kind or design of electromagnetic weapon, and can capture emerging designs of these weapons. Once new kinds of electromagnetic weapons become commercially available, there is a foreseeable risk of these weapons entering the Australian market and causing harm.

Due to recent technological developments, coil guns are now being advertised as a lethal weapon that can produce a projectile muzzle velocity between 40 and 80 meters per second (similar to that of some low-powered air rifles). When using the recommended ammunition, such a weapon is capable of producing 85 joules of kinetic energy. These, and other kinds of electromagnetic weapons, pose an unacceptable risk to community safety.

Parts for electromagnetic weapons or similar devices

New item 49 prohibits the importation of parts designed for electromagnetic weapons. This includes (but is not limited to) the barrel/coil combination used in coil guns and the parallel conductors used in railguns. These parts are fundamentally different to existing firearm barrels, and do not appear to serve any purpose other than allowing ferromagnetic/ conducting material to be propelled from these weapons. Item 49 replicates the regulatory approach to parts for other kinds of weapons, such as flamethrowers in item 47 of Part 2 of Schedule 13 (see also items 4, 11, 13, etc. that take a similar approach).

Item [2] - Item 2 of Part 4 of Schedule 13

This amendment corrects a spelling error to the word 'Minister' in item 2 of Part 4 of Schedule 13.

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 (Electromagnetic Weapons) Regulations 2022

The Customs (Prohibited Imports) Amendment (Electromagnetic Weapons) Regulations 2022 (the Amendment Regulations) is 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.

Overview

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 Amendment Regulations is a legislative instrument for the purposes of the Legislation Act 2003. The Amendment Regulations commence on 10 February 2022.

The purpose of the Amendment Regulations is to amend the Customs (Prohibited Imports) Regulations 1956 to introduce a new import prohibition on electromagnetic weapons and similar devices not designed or adapted for warfare or like purposes. Where importation is permitted, importation must comply with either the official purpose test, or the national interest test.

The amendments are necessary to ensure that the community remains protected from new and emerging weapons technologies.

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