Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) 1998 NO. 228

STATUTORY RULES 1998 NO. 228

Issued by the Authority of the Minister for Customs and Consumer Affairs

Customs Act 1901

Customs (Prohibited imports) Regulations (Amendment)

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 axe 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 die Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a specified person.

Background

During 1996 all Australian governments agreed on a national scheme to control the circulation of firearms in Australia. A review of the new consolidated structure of import controls on firearms has identified the need for certain amendments to be made. In addition, particular problems have arisen in relation to the controls on articles that "resemble in appearance" real firearms. These have been addressed by means of a revised and separate definition of the term "replica", with various consequential changes having been made throughout the Regulations. These changes am in accordance with the original intention of the Government.

The Regulations, including those giving effect to other minor changes to the Commonweal's firearm control provisions, are explained in greater detail in tile Attachment

The Regulations commenced operation on gazettal.

ATTACHMENT

Regulation 1 - Commencement

Regulation 1 provides for the Regulations to commence on gazettal.

Regulation 2 - Amendment

Regulation 2 provides that the Customs (Prohibited Imports) Regulations ("the Regulations") are amended as set out in the Regulations.

Regulation 3 - Regulation 2 (Interpretation)

Regulation 3 amended the Interpretation provision of the Regulations by providing that the definitions of "component of ammunition" and "replica" have the same meaning as in subregulation 4F(4). For case of reference, the definition of these terms is located in the same regulation as the prohibition against the importation of firearms (regulation 4 refers).

Regulation 4 - Regulation 4F (Importation of firearms, firearm accessories, firearm parts, firearm magazines, ammunition, components of ammunition and replicas)

Regulation 4 contains the amendments to regulation 4F. In particular, subregulation 4.1 provides for the inclusion of a reference to "a component of ammunition" in subregulations 4F(1), (2) and (3). This is a consequential change necessary due to the inclusion of the new definition of the term "component of ammunition" in subregulation 4F(4) (subregulation 4.2 refers).

Subregulation 4.2 provided for the previous subregulation 4F(4) to be omitted and a new subregulation substituted. Tile new subregulation. 4F(4) introduced the following changes:

i)       a now definition of "component of ammunition" has been included which

details those parts that are to be controlled under the Regulations:

ii)       the definition of firearm has been redrafted. The terms of the previous

paragraph (a) remain, however, these words are no longer set our in a separate

paragraph. The terms of the previous paragraph (b) have been removed, as a

revised separate control now exists for "replicas" (discussed further below).

The terms of the previous paragraph (c), which set out those devices that are

not to be covered by these Regulations, are reproduced in separate paragraphs,

and in addition, two new items have been added to the list These are new

subparagraphs (xi) and (xii) dealing with, respectively, a sidewall core gun

designed for geological purposes, mining purposes, or both and an expandable

easing perforation gun designed for geological purposes, mining purposes, or

both. The nature of these items is that they cannot be used for any purpose

other than for which they were designed. Accordingly, they should riot he

subject to the provisions contained in the Regulations;

iii)       the definitions of "firearm accessory" and "firearm magazine" are unchanged.

The definition of the term "firearm part" has been amended in accordance with

a new drafting style. The words "any of the following items" have been added

before the individual paragraphs are set out., and the word "and" no longer appears

between each of the paragraphs. No change to the meaning or effect of this

definition is intended by these drafting changes; and

iv)       a new definition of replica is included. Previously, the term "replica" did not

appear in the Regulations. Instead, paragraph (b) of the definition of firearm

provided for "an article that resembles in appearance a device referred to in

paragraph (a)" of the definition of firearm to be included in the firearms

controls, whether or not the article is capable of performing all of the functions

of the device". The purpose of the inclusion of this control was to extend the

definition of firearm to cover the situation where the object imported

resembled a firearm, but may not necessarily function like a firearm. The

extended definition introduced by Statutory Rules 1996 No. 91 was designed

to result in the articles being subject to the same controls as the firearms they

am intended to resemble. However, several potential problems were identified

with die controls as they related to "replicas". The first involved legal advice

which cast doubt about whether "replicas" would always fall to the same item

in Schedule 6 as the real firearms that they resemble. The second matter

related to the actual scope of the controls on "replicas". The previous form of

words used in paragraph (b) of the definition of firearm was very broad.

Moreover, it had come to light that certain items may have been inadvertently

included in the controls. For example, it was never Commonwealth policy

that toy guns, jewellery and the like, that may look like a real firearm should

he a prohibited import.

The new definition of "replica" is intended to tighten the definition to ensure that only copies or reproductions are caught, by applying the ordinary dictionary meaning of the term "replica".

The new definition also clarifies the position that if the article is capable of discharging shot. bullets or other projectiles by means of an explosive charge or a compressed gas, it will not fall within the definition of replica. It will fall to the definition of firearm.

Regulation 5 - Schedule 6 (Requirements for the importation of firearms, firearm accessories, firearm parts, firearm magazines, ammunition, components of ammunition and replicas)

Subregulation 5.1 amended item 1 of Part 1 of Schedule 6 ("the Schedule") to the Regulations by, in effect, including a reference to "a component of ammunition" due to the new controls introduced for these articles.

Subregulation 5.2 amended item 1 of Part 1 by adding a new paragraph (c) at the end of subitem 1.3 to cover an article that has been given or donated to the government of the Commonwealth, a State or Territory.

Subregulation 5.3 amended item of Part 1 by adding a new item in the table to cover articles that have been given or donated to the government of the Commonwealth, a State or a Territory. These articles must have been given or donated to the government before importation. The government must own the article at the time of importationFinally, the government must retain ownership.

Subregulation 3A amended item 2 of Part 1 by, in effect, including a reference to "a component of ammunition", due to the new controls introduced for these articles.

Subregulation 5.5 amended item 2 of Part 1 by omitting the previous paragraph 2.2(a) and substituting a new paragraph (a) that extends the definition of film. This wilt for instance, allow written permission to be given for the importation of an article to be used in the production of a television series.

Subregulation 5.6 added a note at the end of subitem 2.2 that gives some examples of a film that may now be the subject of a permission.

Subregulations 5.7, 5.8, 5.9 and 5.10 amend items 2 and 3 of Part 1 by, in effect, including a reference to "a component of ammunition", due to the new controls introduced for these articles.

Subregulation 5.11 amended item 4 of Part 1 by omitting the previous paragraph (a) and substituting a new paragraph (a) which allows a that is extended to cover the position where a State or Territory does not require a licence or authorisation to possess the article. This amendment is designed to address the situation that has arisen whereby certain firearm parts and ammunition could not be imported as they were not required to be licensed by the relevant State or Territory Poke and so the relevant authority was not able to give a statement to the effect that the importer held a licence or authorisation

The amendment now permits an authorised police officer to state in an approved form, made for the purposes of the police authorisation test, that in the relevant State or Territory the importer is not required to hold, a licence or authorisation to possess the article proposed to he imported.

Subregulation 5.12 amended the heading to Part 2 by, in effect, including a reference to -a component of ammunition", as these items are now controlled. In addition, a reference is included to the new defined term "replica".

Subregulation 5.13 similarly amended the heading to column 2 of Part 2 by, in effect, including a reference to "a component of ammunition", as these items are now controlled. In addition, a reference is included to the new defined term

Subregulation 5.14 amended item 1 of Part 2 by omitting the words ", other than a soft air rifle', and subregulation 5.15 inserted the words "Soft air rifle". as these articles are now controlled under item 1. Previously, soft air rifles and soft air handguns were excluded from items 1 and 9, respectively, of Part 2 of the Schedule, and so they fell to item 12 to be controlled. The effect of this was that the controls on these articles was stricter than those placed on other more dangerous articles. These amendments have the effect of treating these articles in the same way as air rifles and air handguns (see further subregulation 5.25).

Subregulation 5.16 amended the terms of column 3 of item 1 of Part 2. Separate provision is mode for "firearms, other than a soft air rifle" and for "soft air rifle" to allow for the different appropriate requirements to be imposed.

In each case, the requirement for such firearms to bear a unique serial number has been removed if the firearm was manufactured before 1 January 1900. Firearms manufactured before this date will not have been manufactured with a unique serial number and this number will have to be added in order for importation of the firearm not to be prohibited. Such firearms were previously exempt from the requirement to undergo safety testing under Part 3 of Schedule 6, due to their age. The requirement to have a unique serial number on firearms manufactured prior to 1 January 1900 was not included in the National Firearms Agreement and it is not a requirement of State or Territory Police. This requirement was therefore removed.

Subregulation 5.17 inserted a new item 1A in Part 2 of the Schedule to cover replicas of a firearm which fall to item 1 of Part 2 of the Schedule.

Subregulation 5.18 amended item 2 of Part 2 by adding two new firearms m the item These are repeating bolt action shot guns and lever action shot guns. The inclusion of these types of firearms is consistent with the other types listed.

Subregulation 5.19 amended item 2 of Part 2 to remove the requirement for firearms that were manufactured before 1 January 1900 to bear a unique serial number, for the reasons set out in proposed subregulation 5.16 above.

Subregulation 5.20 inserted a new item 2A in Part 2 to cover replicas of a firearm which fall to item 2 of Part 2 of the Schedule.

Subregulation 5.21 amended item 3 of Part 2 to remove the requirement for firearms that were manufactured before 1 January 1900 to bear a unique serial number, for the reasons set out in proposed subregulation 5.16 above.

Subregulation 5.22 inserted a new item 3A in Part 2 of the Schedule to cover replicas of a firearm which fall to item 3 of Part 2 of the Schedule.

Subregulation 5.23 amended item 6 of Part 2 to remove the requirement for firearms that were manufactured before 1 January 1900 to beat a unique serial number, for the reasons set out in proposed subregulation 5.16 above.

Subregulation 5.24 inserted a new item 6A in Part 2 of the Schedule to cover replicas of a firearm which fall to item 6 of Part 2 of the Schedule.

Subregulation 5.25 inserted a new column 2 in item 9 of Part 2 of the Schedule and subregulation 5.26 substituted a new column 3 in item 9. As discussed above for subregulations 5.14 and 5.15, the exclusion of soft air handguns from item 9 meant that these articles fell to item 12 to be controlled. The effect of this was that the controls on these articles was stricter than those placed on other more dangerous articles. This amendment has the effect of treating these articles in the same way as handguns, which is consistent with Commonwealth policy.

Subregulation 5.27 inserted a new item 9A. in Part 2 of the Schedule to cover replicas of a firearm which fall to item 9 of Part 2 of the Schedule.

Subregulation 5.28 amended item 10 of Part 2 by omitting the term "handgun" and substituting the term "firearm". As the description of firearms in items 1, 2, 3 and 6 of Part 2 are preceded by the words "Any of the following firearms ..." whereas the description of the goods in item 9 of Part 2 was not preceded by these words, but simply referred to "Handgun, other than a handgun...", this amendment was made for reasons of consistency and to avoid any confusion. It is not an amendment that alters the position at law relating to the control of these items.

Subregulation 5.29 amended item 11 of Part 2 by omitting the term "handgun" and substituting the term "firearm". This change was made for reasons of consistency only and was not intended to alter the position at law of the controls relating to these items.

Subregulation 5.30 amended item 12 of Part 2 by, in effect, amending the requirement in column 3 that the firearm must bear a unique serial number to restrict this requirement to only those firearms manufactured on or after 1 January 1900, for the reasons discussed in subregulation 5.16 above.

Subregulation 5.31 inserted a new item 12A in Part 2 of the Schedule to cover replicas of a firearm not being a firearm to which item 1, 2, 3, 6 or 9 applies.

Subregulation 5.32 amended items 15, 16 and 17 of Part 2 by adding a new paragraph (c) at the end of column 3 in each item. The purpose of this amendment was to allow film armourers to import firearms magazines. It also means that the same controls, time limits and export requirements apply to firearms magazines as apply to firearms imported by film armourers.

Subregulations 5.33 and 5,34 amended items 19 and 20, respectively, of Part 2 by adding the words "for a firearm to which item 1, 2, 3, 6, 9 or 12 applies". The purpose of this amendment was to clarify that these items only apply to ammunition which is for the firearms referred to in the other items of Part 2. It is not intended to apply to ammunition for large scale military weapons.

Subregulation 535 added three new items (items 21, 22 and 23 respectively) at the end of Part 2. These items introduce new controls on components of ammunition. Such controls are considered necessary to avoid the potential for persons to separately import parts of, or for, ammunition referred to in items 19 and 20 of Part 2 of the Schedule and assemble the ammunition in Australia.

Item 21 provides for the control of certain projectiles. The importation of these projectiles must comply with the official purposes test.

Item 22 provides for the control of components of ammunition which are designed to defeat soft body amour or opaque or glazed bullet resistant material. The importation of these components must comply with the official purposes test.

Item 23 provides for the control of other components of ammunition. The importation of these components must comply with at least one of the tests set out in column 3.

Subregulation 5.36 included a reference to "components of ammunition" and "replicas" in the heading to Part 3, as these articles are now controlled.

Subregulation 5.37 omitted subitem 1.2 and substituted a new subitem 1.2 that excludes replicas from the safety requirements.

Subregulations 5.38 and 5.39 amended item 1 of Part 4 by deleting references to "member of a club affiliated" and substituting references to "registered shooter". This corrects a technical misdescription included in Statutory Rules 1998 No. 58.

Subregulation 5.40 amended item 1A.1 of Part 4 by omitting the existing paragraph 1A.1(b) and substituting a new paragraph 1A.1(b) which lists the competition events to be covered by the Regulations in relation to a certified international sports shooter. This corrects a technical misdescription included in Statutory Rules 1998 No. 59.