Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) 1997 NO.93

STATUTORY RULES 1997 No. 93

Issued by the Authority of the Minister for Small Business and Consumer Affairs

Customs Act 1901

Customs (Prohibited Imports) Regulations (Amendment)

Section 270 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 to be prescribed for giving effect to the Act.

Section 50 of the Customs Act 1901 (the Act) provides in part that:

"(1)       The Governor-General may, by regulation, prohibit the importation of goods into Australia.

"(2)       The power conferred by the last preceding subsection may be exercised - (c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

"(3)        Without limiting the generality of paragraph (2)(c), the regulations - ..(a) 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; and..."

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

Subregulation 4(1) provides that the importation of goods specified in Schedule 2 to the Regulations is prohibited unless the permission in writing of the Minister or an authorised person to import the goods has been granted. Subregulation 4(2) provides that the importation of goods specified in the second column of Schedule 3 is prohibited unless the conditions, restrictions or requirements specified in the third column of that Schedule are complied with.

A review of the consumer protection provisions of the Regulations, as well as the Commerce (Imports) Regulations, was recently undertaken.

The aim of the review was to identify any superfluous legal requirements relating to the importation of goods into Australia in the Regulations. First, some Commonwealth controls on importation are superfluous as there is relevant State and Territory legislation which sufficiently controls the goods domestically. In such cases, the Commonwealth control has been removed. Secondly, other Commonwealth controls on importation are superfluous where there are no comparable domestic controls. Such Commonwealth controls have also been removed so as not to constitute a barrier to trade. Thirdly, cases were identified where the Commonwealth controls were put in

place decades ago, and the relevant circumstances have changed, so that the particular controls are no longer needed.

All of the identified superfluous controls were contained in regulation 4 and Schedules 2 and 3 to the Regulations. For example, item 1 of Schedule 2 previously prohibited the importation of apparel, yams and textile fabrics of man made fibres which contain tris phosphate. Tris phosphate is a fire retardant and the technology for this type of retardant has been overtaken by more suitable retardants which can also be manufactured more cheaply. Tris phosphate has not been manufactured internationally for a considerable period of time and it was considered that, under these circumstances, this prohibition was no longer considered necessary.

Also item 33 of Schedule 2 previously prohibited the importation of erasers that are shaped to look like children's dummies and may therefore pose an ingestion hazard. As there is no similar ban applying to domestically produced erasers, the import control has to been removed so as not to constitute a barrier to trade.

The Regulations have removed these and other superfluous controls on the importation

of goods into Australia.

The amendments are explained in greater detail in the Attachment.

These Regulations commenced on gazettal.

ATTACHMENT

Regulation 1 - Amendment

Regulation 1 provides that the Customs (Prohibited Imports) Regulations (hereinafter referred to as the Regulations) are amended as set out in the proposed Regulations.

Regulation 2 - Regulation 4 (Goods the importation of which is prohibited unless conditions or restrictions are complied with)

Regulation 2 amended subregulation 4(2) of the Regulations by omitting the reference to "Part 1 of' in respect of Schedule 3 to the Regulations. This is a technical amendment only as Schedule 3 is no longer divided into Parts. This division was removed by Statutory Rules 1996 No. 324 and regulation 2 is a consequence of that amendment.

Regulation 3 - Regulation 5 (Importation of drugs)

Regulation 3 amended paragraphs 9(b) and (e) of regulation 5 of the Regulations by omitting the reference to "Comptroller" and substituting "CEO".

The Customs, Excise and Bounty Legislation Amendment Act 1995 (Act No. 85 of 1995) ("the CEBLA Act") provided in subsection 18(1) that a reference in a law of the Commonwealth to the Comptroller-General of Customs, the Comptroller-General or the Comptroller is taken on and after 1 July 1995 to be a reference to the Chief Executive Officer of Customs.

Following on from that transitional provision, all references in the Regulations to the Comptroller have been replaced with a reference to the CEO (which is defined in section 4 of the Customs Act 1901 as meaning "the Chief Executive Officer of Customs"). There were two such references in the Regulations in paragraph 5(9)(b) and 5(9)(e).

Regulation 4 - Regulation W (Importation of goods containing certain chemical compounds

Regulation 4 amended the definition of "prescribed goods" in subregulation 5(1) by omitting the words "of a type" in paragraph (b) of that definition and substituting "belonging to a group of compounds". This is a technical amendment only.

"Prescribed goods" were previously defined in regulation 5J as either a chemical compound mentioned in column 2 of Schedule 11 or a chemical compound of a type mentioned in column 2 (emphasis). However, Schedule 11 refers to a group of compounds and not types. It was proposed to make the wording of the definition of "prescribed goods" and Schedule 11 consistent, Therefore, the reference to a chemical compound of a type mentioned in Schedule 11 has been replaced by a reference to a chemical compound belonging to a group of compounds mentioned in Schedule 11.

Regulation 5 - Schedule 2 (Goods the importation of which is prohibited unless the permission in writing of the Minister or an authorised person has been granted)

Regulation 5 amended Schedule 2 to the Regulations by omitting items 1, 11, 30A, 32, 33, 35 and 37.

Item 1 previously prohibited the importation of apparel, yams and textile fabrics of man made fibres which contain tris phosphate because research showed that tris phosphate can cause cancer. However, tris phosphate has not been manufactured internationally for a considerable period of time and Australia is one of the last countries to remove such a control. Tris phosphate is a fire retardant and the technology for this type of retardant has been overtaken by more suitable retardants which can also be manufactured more cheaply. It is not considered that production will recommence once the prohibition is lifted.

Item 11 previously prohibited the importation of fireworks. This prohibition was introduced in 1938. As the sale of fireworks is controlled under State and Territory dangerous goods legislation, it was considered that there was no need for the control on their importation to be maintained.

Item 30 previously prohibited the importation of certain poisonous seeds and goods made from, or containing these seeds because the seeds can cause fatal poisoning. The initial ban on these goods made under the Trade Practices Act 1974 ("the Trade Practices Act") lapsed in 1985. The import controls were originally put in place to back-up the Trade Practices Act. As the Trade Practices Act controls are no longer in force, as well as the fact that the seeds are found domestically and that there is no evidence of actual injury arising from either local or imported seeds, it was considered that the import control was unnecessary. As with the importation of any seeds, these will continue to be referred to the Australian Quarantine and Inspection Service for its scrutiny.

Item 31 previously prohibited the importation of snake bite kits or first aid kits that include instructions which recommend treatment for snake bite by cutting or excising the bitten area or the use of arterial tourniquets because these methods of treatment are considered dangerous. The initial ban on these goods was made under the Trade Practices Act and lapsed in 1981. The import controls were originally put in place to back-up the Trade Practices Act. The import ban was no longer considered relevant as international practice for the treatment of snake bites has changed and it is generally accepted that the treatment previously reflected in the Regulations was no longer an acceptable method. It was therefore considered that it was highly unlikely that any kits recommending this treatment would continue to be manufactured or imported. The importation of snake bite kits will continue to be controlled under the Therapeutic Goods Act 1989 and require approval to be imported.

Item 32 previously prohibited the importation of specimens of certain venomous reptiles from which the fangs, ducts and venom glands had not been removed. This control was introduced in response to concerns that people who use the specimens could accidentally be injected with the venom. A similar ban introduced under the Trade Practices Act had lapsed and there had been no evidence of injury arising from either local or imported reptile specimens. It as therefore considered that this control was no now unnecessary. Such specimens will continue to be subject to the controls of the Australian Nature Conservation Authority and the Australian Quarantine and Inspection Service.

Item 33 previously prohibited the importation of erasers that are shaped to look like children's dummies as they may have posed an ingestion hazard. As there is no similar ban applying to domestically produced erasers, the import control was removed so as not to constitute a barrier to trade.

Item 35 previously prohibited the importation of metal drink dispensers or containers that cause contamination of dispensed or contained beverages, in excess of specified levels because drink stored in them would exceed recommended levels of metal contamination. A similar ban under the Trade Practices Act lapsed in 1980. The import controls were originally put in place to back-up the Trade Practices Act. As the Trade Practices Act controls are no longer in force, it was considered that this import control was unnecessary.

Item 37 previously prohibited the importation of protective helmets for motor-vehicle users not complying with certain Australian Standards. As there is a mandatory standard in respect of these helmets under section 65C of the Trade Practices Act at the domestic retail level, it was considered that there as no need for the control on their importation to be maintained.

Regulation 6 - Schedule 3 (Goods the importation of which is prohibited unless specified conditions, restrictions or requirements are complied with)

This item amended Schedule 3 to the Regulations by omitting items 12. 19 and 20.

Item 12 previously provided that insulated electric conductors in the form of cable or flexible cord could only be imported into Australia if they were clearly labelled with product safety information such as the working voltage of the cord, the type of g insulation in the cord and the name of the manufacturer of the cord. This ban was introduced in 1936, when the manufacture of such goods was still in the early stages of development. As there is State and Territory legislation which applies to the sale of electrical goods, this import control was no longer considered to be necessary.

Item 19 previously provided that organic compounds of lead for use in internal combustion engines would only be imported into Australia if stored in suitable and clearly labelled containers. This control Was introduced in 1936 in response to the danger associated with inhaling or handling the product. There are no similar requirements in the domestic market and, as the practice of mixing petrol products at the point of sale no longer occurs, this import control was no longer necessary.

Item 20 previously provided that petroleum and shale products which have a flash point of less than 23 degrees Celsius would only be imported into Australia if stored in suitable and clearly labelled containers. "Flash point" means the temperature at which petroleum and shale products give off an inflammable vapour. The control was introduced in 1956 in response to the danger associated with handling products that have a low flash point. As no similar requirements exist in the domestic market, this import control was no longer necessary.