Customs (Prohibited Imports) Regulations 1956

The Regulations affect importers and customs brokers, manufacturers and retailers downstream of importation, owners and crews of ships and aircraft, individual travellers carrying medication or personal-use items, defence force personnel of listed overseas countries, air security officers, government agencies undertaking research or analysis, and end users of products such as therapeutic goods, vaping goods, firearms, kava and engineered stone. They also affect the Minister administering the Customs Act 1901, the Comptroller-General of Customs, the Foreign Minister and Foreign Secretary in relation to chemical weapons and sanctions, the Work Health and Safety Minister in relation to asbestos and engineered stone, the Minister administering the Therapeutic Goods Act 1989 in relation to drugs, vaping goods and certain substances, and authorised persons appointed under the various permission regimes.

The base obligation is that goods listed in or covered by the Regulations may only be imported in accordance with the relevant permission, licence, condition or test. Several regimes also require that the permission, or a copy, be produced to the Collector at or before importation (for example, regulation 4AA(1)(b) for plastic explosives, regulation 4BA(2)(b) for toothfish, regulation 4DA(1)(a) for tobacco products, regulation 5A(1)(b) for vaping goods, regulation 5F(1)(b) for kava food products, regulation 5G(1)(b) for certain substances, regulation 5L(2)(b) for human embryo clone material).

The drugs regime in regulation 5 is two-stage: a person must hold both a licence to import drugs (regulation 5(1)(a)(i)) and a permission to import a particular drug (regulation 5(1)(a)(ii)), and may import the drug only within the period and quantity specified in the permission (regulation 5(1)(c) and (d)).

The vaping goods regime in regulation 5A is layered. The base prohibition applies unless the importer holds both a licence and a permission, the permission is produced to the Collector, and the importation is "by means other than post" (regulation 5A(1)(c)). The Secretary or an authorised officer may revoke a licence or permission for breach of a condition (regulation 5A(11) and (18)). The 2023 transitional rule in regulation 18 provides that the prohibition applies to disposable vapes from 1 January 2024 and to other vaping goods from 1 March 2024.

The firearms regime in regulation 4F prohibits importation of firearms, firearm accessories, firearm parts, firearm magazines, ammunition, components of ammunition or imitations unless the article is one to which an item in Part 2 of Schedule 6 applies, the importation is in accordance with the requirements set out in column 3 of that item, and (where applied) the importation passes the public safety test for firearms under regulation 4FA. Subregulation 4F(1AA) preserves importation that fails the public safety test if it complies with the public interest test in item 8A or the national interest test in item 8B of Part 1 of Schedule 6.

The decision-makers are dispersed by subject. The Minister or an authorised person grants Schedule 2 permissions (regulation 4(1) and (1AB)). The responsible Minister administering Part 2 of the Classification (Publications, Films and Computer Games) Act 1995 grants permissions for objectionable goods (regulation 4A(2)), and may certify under regulation 4A(5) that a particular permission decision is to be non-reviewable in the public interest. The Work Health and Safety Minister, or a person authorised by that Minister, grants asbestos permissions (regulation 4C(2)) and engineered stone permissions (regulation 5M(2)(a) and (5)). The Commissioner of Taxation grants tobacco permissions under regulation 4D(1)(b). The Secretary administering the Therapeutic Goods Act 1989, an authorised officer or an authorised person grants drug, vaping, kava and certain substance permissions (regulations 5, 5A, 5F, 5G, 5H). The Foreign Minister or an authorised person grants chemical weapons compound permissions (regulation 5J(2A)(a)) with applications received by the Australian Safeguards and Non-Proliferation Office at least 30 days before the proposed importation date for Part 2 Schedule 11 goods (regulation 5J(2B)).

The Foreign Secretary may delegate functions and powers under the Regulations to an SES employee, or acting SES employee, in the Foreign Department (regulation 7(1)) and may give directions in writing under regulation 7(3).

Penalties for contravention sit in subsection 50(4) of the Customs Act 1901. The Regulations frequently flag this in revocation provisions. For example, regulation 4AA(5) confirms that a permission to import plastic explosives may be revoked "whether or not the holder of the permission is charged with an offence under subsection 50(4) of the Act of engaging in conduct that contravenes the condition or requirement"; equivalent language appears at regulation 4BA(6), regulation 4DA(7), regulation 5(17) and (18), regulation 5A(11) and (18), regulation 5F(7), regulation 5G(5), regulation 5H(4), regulation 5I(6), regulation 5J(5) and regulation 5L(4) and (5).

Other Commonwealth importation offences operate alongside the Regulations: section 233BAB of the Customs Act 1901 (importation of tier 2 goods), section 307.11 of the Criminal Code (importation of border-controlled precursors and other prohibited imports). Regulation 6 confirms that the Regulations are in addition to, and do not derogate from, the operation of any other law of the Commonwealth relating to the importation of goods into Australia.

The Regulations layer a number of fixed periods over the permission process. Under regulation 5(1)(c), a drug must be imported within the period specified in the permission, and the Secretary or an authorised person may extend that period under regulation 5(15). Under regulation 5J(2AB), a permission for goods containing certain Chemical Weapons Convention compounds may be given for more than one shipment but cannot remain in force for more than one year from the day given. Under regulation 5HA(2), a person whose interests are affected by an initial decision may request the Minister to reconsider the decision within 90 days; if no notice is received within 60 days of the request, the Minister is taken to have confirmed the original decision. The Minister must, before 31 December 2016, complete the review of items 2B, 4, 7, 9B, 10, 13, 15, 16, 16A and 17 of Part 2 of Schedule 6 (regulation 4F(3A)).

Specific commencement rules sit in the transitional regulations 8 to 23, each of which records that amendments made by a particular instrument apply only to importations or applications made on or after that instrument's commencement, with carve-outs for permissions already in force.

The Regulations cross-reference an unusually large set of other Commonwealth and State laws. Examples drawn from the operative regulations include the Customs Act 1901 (defined as "the Act"), the Work Health and Safety Act 2011 and Work Health and Safety Regulations 2011 (asbestos and engineered stone definitions), the Food Standards Australia New Zealand Act 1991 (Australia New Zealand Food Standards Code), the Therapeutic Goods Act 1989 and Therapeutic Goods Regulations 1990 (vaping goods, kava, certain substances), the Industrial Chemicals (General) Rules 2019 and Agricultural and Veterinary Chemicals (Administration) Regulations 1995 (mercury and organochlorine chemicals), the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (asbestos exemption), the Charter of the United Nations Act 1945 (Foreign Minister's role), the Criminal Code (terrorist act, violent extremist material, prohibited symbols, plastic explosive definitions), the Classification (Publications, Films and Computer Games) Act 1995 (RC computer games), the Customs Tariff Act 1995 (tobacco heading 2401, item 15 Schedule 4 passenger and crew tobacco), the Excise Act 1901 (dealer and manufacturer licences), the Taxation Administration Act 1953 Part IVC (objection rights against tobacco permission decisions), the Defence Trade Controls Act 2012 (Article 3(1) and 3(3) US Defence Articles), the Sport Integrity Australia Act 2020 (athlete and support person definitions), the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (regulation 5K), the Prohibition of Human Cloning for Reproduction Act 2002 (regulation 5L), the Asbestos and Silica Safety and Eradication Agency Act 2013 (regulation 5M), the Safety, Rehabilitation and Compensation Act 1988 (Comcare), the Fisheries Management Act 1991 (regulation 4B), the A New Tax System (Australian Business Number) Act 1999 (ABN definitions), the Acts Interpretation Act 1901 (delegation rules) and the Administrative Review Tribunal Act 2024 (review of Ministerial reconsideration decisions and other reviewable decisions).

The Regulations are part of a paired regime with the Customs (Prohibited Exports) Regulations 1958: several regulations refer to a permission under regulation 13E of those Export Regulations as a precondition for, or evidence relevant to, an importation permission (see for example regulation 3D(b), regulation 3E(2)(c)(i)).

The first trap is that the Regulations rarely contain the offence: liability sits in subsection 50(4) of the Customs Act 1901, and Customs prosecutors and the Director of Public Prosecutions can charge under that section irrespective of any administrative revocation. Several revocation provisions explicitly say so.

The second trap is timing. Many regimes require the permission, or a copy, to be produced to the Collector at or before importation. Late production after goods have been entered creates real exposure, and the regulations typically do not provide a retrospective cure.

The third trap is the schedule-by-schedule structure: a single product can be caught by more than one schedule, and the obligations stack rather than substituting. For example, vaping goods may also be drugs caught by Schedule 4, in which case regulation 5(1) operates alongside regulation 5A(1) and the importer must satisfy both regimes (subject to the targeted exception in regulation 5A(3)). Engineered stone falling within asbestos provisions may need both an asbestos permission under regulation 4C and an engineered stone permission under regulation 5M.

A pharmaceutical company importing a Schedule 4 drug for clinical research must hold both a drug import licence and a drug import permission from the Secretary administering the Therapeutic Goods Act 1989 (regulation 5(1)(a)), produce the permission to the Collector (regulation 5(1)(b)), and import the drug within the period and to the quantity specified, taking advantage of regulation 5(15) if a Collector certificate has reduced the available quantity from earlier shipments.

A firearm dealer wishing to import a sporting rifle must identify an item in Part 2 of Schedule 6 that applies to the article, comply with the requirements in column 3, and confirm the importation either passes the public safety test for firearms in regulation 4FA or qualifies for the public interest or national interest tests in items 8A or 8B of Part 1 of Schedule 6 (regulation 4F(1AA)).

A research lab seeking to import asbestos for analysis must obtain a written permission from the Work Health and Safety Minister or an authorised person under regulation 4C(2), or rely on a State or Territory authority confirmation under paragraph 4C(1)(ba) that the proposed use is research, analysis or display in accordance with the law of the State or Territory relating to work health and safety.