Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Tony Burke MP)GENERAL OUTLINE
The purpose of the Customs Amendment (Expedited Seizure and Disposal of Engineered Stone) Bill 2024 (the Bill) is to amend the Customs Act 1901 (the Customs Act) to allow for the expedited seizure and disposal of prohibited engineered stone benchtops, panels and slabs.
The Government is taking action to strengthen the legislative framework under the Customs Act in relation to engineered stone in order to safeguard workers from the health risks associated with silicosis, and to support the world-first domestic ban on the supply, manufacture, processing and installation of engineered stone products in Australia that started on 1 July 2024. The manufacture of engineered stone produces respirable crystalline silica, which when inhaled, can cause fatal lung disease and other chronic illnesses including silicosis.
Amendments to the Model Work Health and Safety Regulations (Model WHS Regulations) to prohibit the supply, manufacture, processing and installation of engineered stone benchtops, panels and slabs came into effect on 1 July 2024 – with the ban implemented in the laws of all States and Territories and mirrored in the Work Health and Safety Regulations 2011 (Cth). To support this domestic 'use prohibition', on 18 September 2024 the Government announced a ban on the importation of engineered stone, to be implemented from 1 January 2025 by proposed amendments of the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Import Regulations). Under the Prohibited Import Regulations, engineered stone benchtops, panels and slabs imported without a valid permit or exemption would be classed as prohibited import, meaning they can be seized at the border without a warrant. Most engineered stone products are imported into Australia; the importation ban will provide an extra layer of deterrence at the border.
To support the proposed amendments of the Prohibited Import Regulations, this Bill contains amendments of the Customs Act that will enhance existing seizure and disposal powers and support the Australian Border Force (ABF) to effectively administer and manage engineered stone goods at the border once the prohibition commences. The Customs Act currently requires seized prohibited imports to be stored for a minimum of 30 days before they can be disposed of. Due to the high volume of engineered stone products being received at the border, managing, storing and transporting these products under the existing prohibited imports framework is likely to cause a significant increase in work, and hinder the implementation of the import ban as well as other border operations.
The amendments in the Bill will empower the Comptroller-General of Customs to cause engineered stone products seized as prohibited imports on and from 1 January 2025 to be dealt with in a manner the Comptroller-General considers appropriate, including the immediate destruction of the goods. Similar provisions already exist for other prohibited imports, including tobacco products, vapes, dangerous goods, perishable goods and illicit drugs seized under section 206 of the Customs Act. Allowing for the expedited seizure and timely disposal of seized engineered stone goods will support the operational effectiveness of the import ban, enabling ABF officers to effectively manage these goods at the border.
FINANCIAL IMPACT STATEMENT
The financial impact of the measures in the Bill is set out in the following table.
| 2024-25 $'m | 2025-26 $'m | 2026-27 $'m | 2027-28 $'m | TOTAL $'m | |
| Departmental Expense (Home Affairs) | +20.0 | +12.1 | 0.0 | 0.0 | +32.1 |
| Change to Home Affairs Resourcing | +20.0 | +12.1 | 0.0 | 0.0 | +32.1 |
| Receipts (Home Affairs)* | .. | .. | .. | .. | .. |
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill 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.
A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A .
IMPACT ANALYSIS
The Department of Employment and Workplace Relations (DEWR) has previously certified Regulation Impact Statements prepared by Safe Work Australia (SWA), along with additional supplementary analysis, as an Impact Analysis Equivalent for the decision to ban the importation of engineered stone. A summary of the findings of the Decision Regulation Impact Statements is below, and the full statements can be viewed at
https://oia.pmc.gov.au/published-impact-analyses-and-reports/import-ban-on-engineered-stone
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DEWR considers the two independent processes led by SWA – the Decision Regulation Impact Statement: Managing the risks of respirable crystalline silica at work (Silica Decision RIS), and the Decision Regulation Impact Statement: Prohibition on the use of engineered stone (Prohibition Decision RIS) – can be relied upon to satisfy impact analysis requirements.
The Prohibition Decision RIS provides analysis of the impacts of options under the model work health and safety (WHS) laws to prohibit the use of engineered stone. It builds on the evidence and analysis considered and set out in the Silica Decision RIS noting both documents are intended to be read together. Both these assessments have been prepared in accordance with the Regulatory Impact Analysis Guide for Ministers' Meeting and National Standard Setting Bodies and been assessed by the Office of Impact Analysis (OIA) as meeting the requirements set out in the Guide.
Additional analysis has been undertaken on the impacts associated with a further option to include border measures, such as a customs ban, to complement the prohibition on the use of engineered stone. This option seeks to address the same problem outlined in SWA's Prohibition Decision RIS, relating to the rise in the number of silicosis cases in workers in recent years, which are significantly over-represented by engineered stone workers. The two independent SWA processes did not scope the impacts on implementing complementary border measures as these assessments were limited to options for addressing the problem through the model WHS laws.
Complementary border measures, such as a customs ban, would not have significant additional impacts on businesses, workers or the economy because implementation would complement the domestic WHS prohibition on the use of engineered stone. The impacts on business, workers and consumers all flow from these WHS reforms. This is because a use prohibition on engineered stone would also have the effect of prohibiting the import of products under WHS laws. These laws provide that importers have a duty of care to ensure, so far as is reasonably practicable, that a product which will be used at a workplace is without risks to the health and safety of persons who would work with it. An importer would breach the duty of care importing a product which has been determined too unsafe to use in the way it is intended to be (i.e., fabricated).
Complementary measures at the border, such as a customs ban, will support the efforts of state and territory WHS regulators by providing an additional layer of enforcement and deterrence given engineered stone in Australia is predominantly supplied from overseas. In isolation, border measures like a customs ban would not address the problems associated with non-compliance when working with engineered stone. A customs ban was put in place by the Commonwealth in 2003 when asbestos was prohibited in Australia (Australia's asbestos prohibition is implemented through both WHS laws and a customs ban). A customs ban for engineered stone may be more targeted because asbestos is inherently dangerous to humans, whereas engineered stone does not pose a risk when not being processed.
Overview of the Decision Regulation Impact Statement: Managing the risks of respirable crystalline silica at work
On 28 February 2023, SWA released the Silica Decision RIS which provides an analysis of the impacts of options, under the model WHS laws, to manage the risks of respirable crystalline silica (RCS) to improve the protection of the health and safety of workers.
The Silica Decision RIS was informed by an extensive consultation process, including a Consultation Regulation Impact Statement (CRIS) where SWA sought public comment on five regulatory and non-regulatory options to reduce workplace exposures to RCS in Australia. Submissions were received from governments, peak bodies, unions, employer or industry representatives, commercial enterprises, lawyers, insurance groups, academics, and individuals. As part of the feedback on the CRIS, unions, peak health bodies, and professional organisations called for a prohibition on the use of engineered stone. As a result of this feedback, an additional option to undertake further analysis and consultation on the impacts of the prohibition of use of engineered stone was included in the Silica Decision RIS.
On 28 February 2023, WHS Ministers considered the Silica Decision RIS and agreed to a nationally coordinated approach addressing this issue, including national awareness and behaviour change initiatives and implementing stronger regulation of high-risk RCS processes. WHS Ministers also agreed that SWA undertake further analysis and consultation on a prohibition of the use of engineered stone under the model WHS laws. The decisions of WHS Ministers were announced through a communique available on DEWR's website.
Overview of the Decision Regulation Impact Statement: Prohibition on the use of engineered stone
On 16 August 2023, SWA circulated an embargoed copy of the Prohibition Decision RIS to WHS Ministers. Intended to be considered together with the Silica Decision RIS, the Prohibition Decision RIS examines the impacts of implementing a prohibition on the use of engineered stone through the model WHS laws, which would have the effect of a domestic ban on these products.
The Prohibition Decision RIS was also informed by extensive consultation based on three implementation options. These include:
| Option 1 | Prohibition on the use of all engineered stone |
| Option 2 | Prohibition on the use of all engineered stone containing 40% or more crystalline silica |
| Option 3 | As for Option 2, with an accompanying licensing scheme for PCBUs working with engineered stone containing less than 40% crystalline silica. |
How each of the seven Impact Analysis elements were addressed by the two independent SWA processes is outlined in the supplementary analysis, with additional detail relating to the impacts associated with complementary border measures, modelled on a customs ban on engineered stone.