Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) 1998 NO. 4

STATUTORY RULES 1999 NO. 4

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 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.

Regulation 4B of the Regulations prohibits the importation of fish or parts of fish into Australia unless the importer produces to the Collector the permission, in writing, of the "Minister of State for Primary Industries and Energy".

The regulations amended the Regulations to align the provisions of regulation 4B with the Fisheries Management Act 1991 and to transfer the responsibility for giving the written permission to import fish under regulation 4B from the "Minister of State for Primary Industries and Energy" to the Minister for Resources and Energy.

Regulation 2.1 omitted subregulation 4B(1) and substituted it with new subregulation 4B(1) which defines "fish" to include "all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles." This new definition is identical to the definition of "fish" in subsection 4(1) of the Fisheries Management Act 1991.

Regulation 2.2 omitted "territorial limits of Australia" from paragraph 4B(2)(a) and substitutes it with "outer limits of the Australian fishing zone within the meaning of the Fisheries Management Act 1991".

The control under regulation 4B currently applies to fish taken in waters beyond the territorial limits of Australia, which is 12 nautical miles seaward of the baseline. However, under the Fisheries Management Act 1991, the Australian fishing zone extends to the outer limits of the 'exclusive economic zone'. The 'exclusive economic zone' is defined in the Fisheries Management Act 1991 to mean the "exclusive economic zone within the meaning of the Seas and Submerged Lands Act 1973 adjacent to the coast of Australia or the coast of an external Territory" (which is "200 nautical miles from the baselines from which the breath of the territorial sea is measured" under the Seas and Submerged Lands Act 1973).

The above provisions have the unintended effect of requiring the Australian fishing industry to obtain permission from the Minister under regulation 4B for fish caught within the Australian fishing zone. The amendment remedied this anomaly by making the terms of subregulation 4B(2) consistent with the definition of "Australian fishing zone" in subsection 4(1) of the Fisheries Management Act 1991,

Regulation 2.3 amended subregulation 4B(3) to transfer the responsibility for giving the written permission to import fish under regulation 4B from the Minister of State for Primary Industries and Energy to the Minister for Resources and Energy in accordance with current administrative arrangements.

The Regulations commenced on gazettal.