Commonwealth Numbered Regulations - Explanatory Statements
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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT (TABLET PRESS AND ENCAPSULATOR ADMINISTRATION) REGULATIONS 2023 (F2023L00823)
EXPLANATORY STATEMENT
Issued by the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment (Tablet Press and Encapsulator Administration) Regulations 2023
Legislative Authority
The Customs Act 1901 (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 that the Governor-General may make regulations not inconsistent with the Customs Act prescribing all matters, which by the Customs Act are required or permitted to be prescribed, or as may be necessary or convenient to be prescribed, for giving effect to the Customs Act.
Section 50 of the Customs Act provides 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, in specified circumstances, from a specified place, or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.
Background
The Customs (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations), made under the Customs Act, control the importation of certain goods by prohibiting importation absolutely, or by making importation subject to a permission or licence.
Regulation 4G of the Prohibited Imports Regulations prohibits the importation into Australia of tablet presses and encapsulators unless the Minister or an authorised person has granted permission, in writing, to import these goods. That regulation also sets out the process for the making of an application for permission to import the goods, and specifies the persons who may be authorised as authorised persons.
Purpose and effect
The purpose of the Customs (Prohibited Imports) Amendment (Tablet Press and Encapsulator Administration) Regulations 2023 (Amendment Regulations) is to amend regulation 4G of the Prohibited Imports Regulations to broaden the class of person that may be authorised as an authorised person for the performance of functions and exercise of powers under that regulation, and remove the requirement that the application form for permission to import tablet presses and encapsulators be approved by the Secretary of the Department. Tablet presses are equipment that can be used to compact or mould powdered or granular solids or semi-solid material into coherent solid tablets. Encapsulators are equipment that can be used to produce coherent solid capsules by completely enveloping powdered or granular solids, semi-solid material, liquids or gases.
The Amendment Regulations has the effect of improving the efficiency of the decision making processes and increase the number of departmental employees available to consider the growing number of permit applications and streamline the administrative processes.
Australian Border Force (ABF) statistics show import permit applications have risen significantly since 2019. In the last three financial years (2019/20, 2020/21 and 2021/22) the ABF granted 32, 83, and 120 permits respectively.
As the number and availability of Senior Executive Service officers is constrained, the Department's ability to consider applications in a timely and effective manner is adversely impacted by the increasing number of permit applications which has the potential to have an adverse impact on an applicant's business.
Authorising Executive officers within the Customs Division will ensure a sufficient number of individuals with the requisite expertise and experience to exercise permit-related functions and powers will be available to consider the increasing volume of applications.
These officers are already responsible for providing policy advice and regulatory administration for customs and trade issues across all goods. They also consult with law enforcement agencies on matters relevant to the grant or refusal of import permits. The authorisation of these officers aligns with the delegations to deal with applications in the Prohibited Imports Regulations such as tobacco products and weapons.
It is common practice across the Prohibited Imports Regulations to allow authorisation of APS employees in the regulation. The delegation of power is common as an administrative necessity due to the volume of decision making and to maintain the orderly management of Department business. The general form for delegation used for powers and functions administered by the Department is to delegate to officers of a specific classification. This supports efficiency in decision-making processes.
The existing approach for prohibited import decision making is to delegate to Executive Level 2 officers in the Customs Division of the ABF, as these officers possess the appropriate qualifications, attributes and expertise.
Consultation
The ABF published a public discussion paper on 6 June 2022, as part of the review of the introduction of the encapsulator import control in May 2020. It can be accessed at: https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/tablet-press-encapsulator. The discussion paper considered the scope of administrative powers, including authorisation safeguards.
The ABF consulted with the Australian Federal Police, State and Territory Police Forces, Australian Criminal Intelligence Commission, the Department of Health and importers. Five submissions were received, all from State and Territory Law Enforcement, who did not object to APS employees within the Department exercising permit-related powers under regulation 4G of the Prohibited Imports Regulations.
Details and operations
The Amendment Regulations are a disallowable legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).
The Amendment Regulations commence on the day after they are registered on the Federal Register of Legislation.
Details of the Amendment Regulations are set out in the Attachment A.
Other
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 Prohibited Imports Regulations are made for the purposes of section 50 of the Customs Act. The Prohibited Imports Regulations are not subject to sunsetting by operation of table item 21 in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015.
Section 48A of the Legislation Act repeals Amendment Regulation once the amendments contained within that Regulation is spent; that is, once the amendments are made to the Prohibited Imports Regulation. As such, the Amendment Regulation is not subject to sunsetting.
ATTACHMENT A
Details of the Customs (Prohibited Imports) Amendment (Tablet Press and Encapsulator Administration) Regulations 2023
Section 1 - Name
This section provides that the title of the Regulations is the Customs (Prohibited Imports) Amendment (Tablet Press and Encapsulator Administration) Regulations 2023 (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 Amendment Regulations to commence on the day after those Regulations are registered on the Federal Register of Legislation.
Section 3 - Authority
This section provides that the Amendment Regulations are made under the Customs Act 1901.
Section 4 - Schedules
This section is the enabling provision for Schedule 1 to the Amendment Regulations and operates such that each instrument that is specified in the Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Amendment Regulations to have effect according to its terms.
Schedule 1 of the Amendment Regulations amended the Customs (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations).
Schedule 1-Amendments
Part 1-Main amendments
Customs (Prohibited Imports) Regulations 1956
Item 1 Paragraph 4G(2)(a)
This item repeals paragraph 4G(2)(a) of the Prohibited Imports Regulations and has the effect of removing the requirement that an application for permission to import a tablet press or encapsulator be made on the form approved by the Secretary to the Department of Home Affairs.
The purpose of this amendment is to complement the amendments made by item 2 of the Amendment Regulations, which amends application requirements to require an applicant for permission to import the goods to lodge a written application with the Minister for Home Affairs (Minister) or a person authorised by the Minister.
Item 2 Paragraph 4G(2)(b)
This item amends paragraph 4G(2)(b) of the Prohibited Imports Regulations to omit "the application" and substitute with "a written application", and as such, requires an applicant for permission to import a tablet press or encapsulator to, as part of application requirements, lodge a written application with the Minister of Home Affairs or an authorised person.
As a result of this amendment, an application for a permission to import a tablet press or encapsulator must be in writing and lodged with the Minister or a person authorised by the Minister, and the person lodging the application must give the Minister or a person authorised by the Minister any information the Minister or the authorised person reasonably requires for the purpose of making a decision on the application.
The requirement that an application be in writing and be accompanied with any information reasonably required is consistent with application for permission under the Prohibited Imports Regulations to import other goods, such as tobacco products and weapons.
Items 3 and 4
These items amend regulation 4G of the Prohibited Imports Regulations to broaden the class of persons that may be authorised by the Minister to perform the functions and exercise the powers under that regulation, i.e., to consider and decide application for permission to import a tablet press or encapsulator and to request information from applicants, as may be necessary.
Item 3 repeals and substitutes the definition of "authorised person". Under the new definition, authorised person means a person who is authorised by the Minister under new subregulation 4G(8) to be an authorised person.
Item 4 provides that, for the purposes of the definition of authorised person in subregulation 4G(7), the Minister may, in writing, authorise the following to be an authorised person for the purposes of this regulation:
(a) an SES employee, or an acting SES employee, in the Department;
(b) an APS employee in the Department.
In effect, the class of persons that may be authorised by the Minister to perform the functions or exercise the powers under regulation 4G of the Prohibited Imports Regulations is broadened to include Australian Public Service employees in the Department.
It is appropriate for the Minister to be able to authorise an APS employee in the Department as an authorised person due to the increasing volume of import applications that are being lodged.
Decisions in relation to granting, revoking or refusing a permission will need to be made on a regular basis. Delegation to an APS level employee is necessary to ensure applications can be assessed in a timely manner and reduce the potential adverse impact delays may have on an applicant's business.
Officers of Customs at the classification of Executive Level 2 are intended to be authorised as authorised persons for the purposes of deciding applications for permissions to import a tablet press and/or encapsulator as such officers currently have the appropriate qualifications, attributes and expertise.
Officers of Customs at lower classifications are intended to process applications and identify where additional information is required from an applicant, which will then enable the Executive Level 2 officer to make a decision.
Part 2-Application and transitional provisions
Customs (Prohibited Imports) Regulations 1956
Item 5 After regulation 14
This item amends the Prohibited Imports Regulations to insert new regulation 15 after regulation 14 of those Regulations.
New regulation 15 applies such that the repeal and substitution of the definition of "authorised person" in subregulation 4G(7) made by Part 1 of Schedule 1 to the Amendment Regulations does not affect an authorisation in force immediately before the commencement of that Part.
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 (Tablet Press and Encapsulator Administration) Regulations 2023
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
Tablet presses are equipment that can be used to compact or mould powdered or granular solids or semi-solid material into coherent solid tablets. Encapsulators are equipment that can be used to produce coherent solid capsules by completely enveloping powdered or granular solids, semi-solid material, liquids or gases. Both types of equipment can produce large numbers of pills (for example, some equipment can produce 70,000 capsules per hour).
Tablet presses and encapsulators are used for legitimate purposes in the pharmaceutical, confectionary and industrial manufacturing sectors. However, they are also highly sought after by criminal organisations for use in the domestic manufacture of drugs including MDMA (ecstasy). Ensuring the effective administration of the import prohibition of this equipment will assist in controlling the manufacture and supply of illicit drugs in Australia.
Regulation 4G of the Customs (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations) prohibits the importation into Australia of tablet presses and encapsulators unless the Minister for Home Affairs (the Minister) or an authorised person has granted permission, in writing, to import these goods. That regulation also sets out the process for the making of an application for permission to import the goods, and defines the class of persons who may be authorised by the Minister as an authorised person to consider and/or administer applications for the purposes of that regulation.
The Customs (Prohibited Imports) Amendment (Tablet Press and Encapsulator Administration) Regulations 2023 (Legislative Instrument) amends regulation 4G of the Prohibited Imports Regulations to broaden the class of persons who may be authorised as an authorised person for the performance of functions and exercise of powers under that regulation, and remove the requirement that the application form for permission to import tablet presses and encapsulators be approved by the Secretary to the Department of Home Affairs (the Department). The amendments will have the effect of improving the efficiency of the decision making processes and increase the number of departmental employees available to consider the growing number of permit applications and streamline the administrative processes.
The prohibition on the importation of tablet presses and encapsulators is balanced against the ability to obtain permission to import the equipment for legitimate purposes. The outcome of these amendments is to ensure that the importation of tablet presses and encapsulators continues to be appropriately and effectively administered by the Department as the number of permit applications increase. The amendments will facilitate lawful importation of tablet presses and encapsulators with permission from the Minister or authorised person, with the unlawful importation of such equipment remaining an offence.
Human rights implications
The amendments contained in the Legislative Instrument do not engage any of the applicable human rights or freedoms.
Conclusion
The Legislative Instrument is compatible with human rights as the amendments contained within do not raise any human rights issues.
The Hon. Clare O'Neil MP
Minister for Home Affairs