Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Tony Burke MP)NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the Bill, when enacted, will be the Customs Amendment (Expedited Seizure and Disposal of Engineered Stone) Act 2024 (the Amendment Act).
Clause 2 Commencement
2. Clause 2 sets out the day on which the amendments contained in the Bill commence, which is the day after the Amendment Act receives the Royal Assent.
Clause 3 Schedules
3. Clause 3 enables the Schedules to the Bill, when enacted, to amend or repeal provisions of the legislation specified in the Schedule in accordance with the applicable items. This clause also provides that any other item in a Schedule to the Act has effect according to its term. Schedule 1 amends the Customs Act.
SCHEDULE 1—Amendments
Customs Act 1901
Item 1 Subsection 183UA(1)
4. This item inserts a new defined term engineered stone in subsection 183UA(1) of Subdivision A of Division 1 of Part XII of the Customs Act. Section 183UA establishes definitions in the Customs Act for the purposes of Division 1 of Part XII, which deals with the powers of officers. From 1 January 2025, engineered stone benchtops, panels and slabs imported without permission are prohibited imports for the purposes of the Customs Act.
5. This new defined term provides that in Division 1 of Part XII of the Customs Act, engineered stone has the same meaning as in proposed regulation 5M of the Customs (Prohibited Imports) Regulations 1956 (the Prohibited Import Regulations). This regulation would in turn provide that the term engineered stone in the Prohibited Import Regulations has the same meaning as in the Work Health and Safety Regulations 2011 (Cth) (the WHS Regulations (Cth)).
6. Regulation 529A of the WHS Regulations (Cth) provides for the meaning of "processing" in relation to crystalline silica substances and related terms, including "crystalline silica substance (CSS)" (at subregulation 529A(2)) and "engineered stone" (at subregulation 529A(4)). Under regulation 529A, engineered stone is an artificial product that contains 1% or more crystalline silica (determined as a weight/weight (w/w) concentration), is created by combining natural stone materials with other chemical constituents (such as water, resins or pigments) and becomes hardened. However, paragraph 529A(4)(b) currently provides that 'engineered stone' does not include concrete and cement products, bricks, pavers and other similar blocks, ceramic wall and floor tiles, grout, mortar and render, plasterboard porcelain products, sintered stone and roof tiles.
7. The purpose of the new defined term engineered stone in subsection 183UA(1) of the Customs Act is to ensure alignment between any engineered stone products banned under both the WHS Regulations (Cth) and the proposed amendments of the Prohibited Import Regulations. The new defined term in subsection 183UA(1) operates to support new subsection 206(2C) of the Customs Act, inserted by item 2 of this Schedule. It ensures that prohibited engineered stone products covered by the proposed amendments of the Prohibited Import Regulations are able to be seized and disposed of in accordance with section 206 of the Customs Act (as amended).
8. The definition of engineered stone in the Customs Act relies upon the definition in subordinate legislation, rather than primary legislation, to allow for greater responsiveness over time in the event of novel and unanticipated forms of engineered stone as well as emerging developments in the industry. It also operates to ensure consistency in the approach to the domestic ban, the import prohibition and the amended seizure and disposal powers. As the definition is provided for in regulations, it is also important to note that any future amendments of the defined term (by way of amending regulations) would also be subject to parliamentary scrutiny and disallowance.
Item 2 After subsection 206(2B)
9. Subdivision G of Division 1 of Part XII of the Customs Act provides, among other things, for the statutory framework and powers for the treatment of goods that have been seized as forfeited goods. The Customs Act generally requires seized prohibited imports to be stored in an approved place for a minimum period of 30 days before those goods can be disposed of. It also requires that a seizure notice be served on the owner of the goods, or if the owner cannot be identified, on the person in whose possession or under whose control the goods were at the time of seizure. The owner or person in possession may make a claim for the return of seized goods. If no claim is made within 30 days after the day the seizure is served, the goods are taken to be condemned as forfeited to the Crown.
10. Section 206 of the Customs Act allows the Comptroller-General of Customs to cause certain seized goods to be dealt in a manner he or she considers appropriate, including immediate destruction of the goods – including dangerous goods, vaping goods and prohibited psychoactive substances, tobacco products and prohibited serious drug alternatives.
11. Item 2 of the Schedule to the Bill amends section 206 of the Customs Act to insert new subsection 206(2C), which will allow for the disposal of engineered stone consistent with the treatment of other seized goods. Specifically, new subsection 206(2C) provides that, if:
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- goods are seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3), or 203CB(2); and
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- the Comptroller-General of Customs is satisfied that the goods are engineered stone that is a prohibited import;
the Comptroller-General of Customs may cause the goods to be dealt with in such manner as the Comptroller-General considers appropriate (including the destruction of the goods).
12. The manner in which seized engineered stone can be dealt with may include the immediate disposal of the goods, providing streamlined administrative processing and reduced storage time for seized engineered stone goods.
13. The purpose of this amendment is to empower the Comptroller-General of Customs to cause engineered stone seized as a prohibited import to be dealt with in a manner the Comptroller-General considers appropriate, including by permitting the immediate destruction of the goods. This amendment, and the other related amendments in the Schedule to the Bill, are necessary to ensure the continued efficiency of border operations following the proposed prescription of engineered stone.
Item 3 Subsection 206(3)
14. Subsection 206(3) of the Customs Act requires that, as soon as practicable, but not later than 7 days after the goods referred to in subsection (1), (1A), (2),(2A) or (2B) have been dealt with, the Comptroller-General of Customs must give or publish a notice in accordance with subsection 206(5).
15. This item amends subsection 206(3) of the Customs Act to substitute the words "(2A) or (2B)" with "(2A), (2B) or (2C)." This amendment is consequential to amendments made by item 2, to insert reference to new subsection 206(2C) alongside existing provisions covered by the notice requirement in subsection 206(3).
16. The purpose of this amendment is to extend the notice requirement under subsection 206(3) of the Customs Act to engineered stone products that are prohibited imports and subsequently covered by new subsection 206(2C) of the Act. The effect of this amendment is to ensure that the owner of an engineered stone product dealt with under subsection 206(2C) is adequately notified of dealings with their goods as well as related matters, including their right to recover the market value of the product. This amendment ensures consistency with the notice requirements for other goods covered by section 206.
Item 4 Paragraph 206(5)(c)
17. Subsection 206(5) of the Customs Act provides that the notice must:
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- identify the goods; and
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- state that the goods have been seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) and give the reason for the seizure; and
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- state that the goods have been dealt with under subsection (1), (1A), (2) or (2A) and specify the manner in which they have been so dealt with and the reason for doing so; and
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- set out the terms of subsection (6).
18. This item amends paragraph 206(5)(c) of the Customs Act to substitute the words "(2A) or (2B)" with "(2A), (2B) or (2C)." This amendment is consequential to amendments made by item 2.
19. This purpose of this item is to ensure that the notice requirements under paragraph 206(5)(c) extend to notices provided or published in relation to engineered stone products dealt with in accordance with new subsection 206(2C)
Item 5 Subsections 206(6) and (7)
20. This item contains an amendment of both subsections 206(6) and (7) of the Customs Act.
21. Subsection 206(6) of the Customs Act provides that, if goods are dealt with in accordance with subsection 206(1), (1A), (2) or (2A), the owner of the goods may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the goods at the time they were so dealt with.
22. This item amends subsection 206(6) of the Customs Act to substitute the words "(2A) or (2B)" with "(2A), (2B) or (2C)." This amendment is consequential to the amendments made by item 2.
23. The purpose and effect of this amendment is to extend the right to recover the market value of seized goods to engineered stone products that have been dealt with under new subsection 206(2C).
24. Subsection 206(7) of the Customs Act specifies the circumstances in which a person's right to recover the market value of seized goods that have been dealt with under section 206 is enlivened.
25. This item amends section 206 of the Customs Act to substitute the words "(2A) or (2B)" with "(2A), (2B) or (2C)." This amendment is consequential to the amendments made by item 2.
26. The purpose and effect of this clause is to permit the owners of engineered stone goods destroyed under subsection 206(2C) the right to recover the market value of the goods, if they can establish that the circumstances required to engage the seizure and disposal of the goods did not exist.