Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2003 (NO. 5) 2003 NO. 308

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 or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any other business relating to the Customs.

Section 112 of the Act provide in part that the Governor-General may, by regulation, prohibit the exportation of goods from Australia and that the power may be exercised by prohibiting the exportation of goods absolutely or by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.

The purpose of the amending Regulations is to provide an exemption for goods imported by foreign air security officers (ASOs) from the export restrictions on firearms, and certain other weapons and defence goods that these ASOs may require for their duties.

The Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) control the exportation of the goods specified in the various regulations and the Schedules to the PE Regulations, by prohibiting exportation absolutely, or by making exportation subject to a permission or licence.

Subregulation 13E(2) of the PE Regulations restricts the exportation of goods referred to in the defence and strategic goods list as published and amended by the Minister for Defence from time to time. Previous paragraph 13E(2)(e) provided an exemption from this restriction for goods exported by 'sky marshals' if they met the specified criteria.

This exemption was put in place before the Sydney 2000 Olympics to facilitate the entry of sky marshals employed to protect an aircraft or as personal bodyguards for one or more passengers or crew on board an aircraft.

In November 2001, in response to worldwide concerns in relation to air terrorism, the Minister for Justice and Customs announced that the Government would introduce armed security officers on selected flights provided by Australian carriers. Since then, Australia has been negotiating with several countries to develop bilateral arrangements in relation to an air security officer program.

A fundamental part of these arrangements would be to exempt the weapons and defence goods that ASOs may require in carrying out their duties from any import and export controls.

The amending Regulations substituted the previous exemption in paragraph 13E(2)(e) of the PE Regulations relating to sky marshals with the new exemption relating to foreign ASOs.

Details of the amending Regulations are in Attachment A.

The amending Regulations commenced on gazettal

0311200A

ATTACHMENT A

CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2003 (No. 5)

Regulation 1 - Name of Regulations

Regulation 1 provides that the Regulations are the Customs (Prohibited Exports) Amendment Regulations 2003 (No. 5).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 - Amendment of Customs (Prohibited Exports) Regulations 1958

Regulation 3 provides that Schedule 1 amends the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations).

SCHEDULE 1 - AMENDMENTS

Item 1 - Subregulation 13E(1), definition of airline

Item 1 deletes the definition of 'airline'. This term was previous used in the criteria relating to 'sky marshals' as sky marshals may have been employed by an airline. Since 'air security officers' (ASOs) are only employed by foreign governments and not by airlines, this term is not relevant to the current criteria relating to ASOs.

Item 2 - Subregulation 13E(1), definition of air security officer

Item 2 defines 'air security officer' as 'a person who is employed and trained by a foreign government to travel on an aircraft to provide security for the aircraft and its passengers and crew, but does not include a person who is employed to provide exclusive personal protection for 1 or more specific people travelling on the aircraft (for example, personal bodyguards)'.

Item 3 - Subregulation 13E(1), definition of sky marshal

Item 3 deletes the definition of 'sky marshal'. The differences between an ASO and a sky marshal are that:

(a)       a sky marshal may be employed or engaged by a foreign government, an agency of a foreign government as well as an airline, whereas an ASO must be trained and employed by a foreign government;

(b)       a sky marshal may be employed to protect specific passengers or crew on an aircraft, whereas an ASO would be employed to protect the aircraft and all of its passengers and crew.

Item 4 - Paragraph 13E(2)(e)

Subregulation 13E(2) restricts the exportation of goods specified in the defence and strategic goods list (DSGL), which is formulated, published and amended from time to time by the Minister for Defence. Previous paragraph 13E(2)(e) set out criteria for goods that, if met, exempted the goods from the export restrictions in relation to goods specified in the DSGL.

Item 4 substituted the criteria in previous paragraph 13E(2)(e) with the following criteria:

(i)       the goods were last imported into Australia on an aircraft by an air security officer while carrying out his or her duties; and

(ii)       there is an arrangement between the foreign government employing the air security officer and the Government of Australia providing for the importation of the goods into Australia on aircraft by air security officers; and

(iii)       immediately after the goods were imported, the air security officer surrendered the goods to an authorised officer for secure storage until the goods were to be exported in accordance with paragraph (iv); and

(iv)       within 3 months after the goods were imported into Australia, they are exported from Australia.

The new criteria in current paragraph 13E(2)(e) are expressed in similar terms to the previous criteria, except that they apply to ASOs rather than 'sky marshals'.

Item 5 - Subregulation 13E(2AA)

Item 5 deletes previous subregulation 13E(2AA). This subregulation defined the phrase 'foreign country represented by the sky marshal' used in previous paragraph 13E(2)(e). This phrase is not used in current paragraph 13E(2)(e).