Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 1999 (NO. 2) 1999 NO. 164

EXPLANATORY STATEMENT

STATUTORY RULES 1999 NO. 164

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 1999 (No. 2)

Section 112 of the Customs Act 1901 provides in part that:

"(1)       The Governor-General may, by regulation, prohibit the exportation of goods from Australia.

(2)       The power conferred by subsection (1) may be exercised: - (c) by prohibiting the exportation of goods unless specified conditions or restrictions

are complied with.

(2A)       Without limiting the generality of paragraph (2)(c), the regulations - ... (a) may provide that the exportation of the goods is prohibited unless a licence, permission, consent or approval to export the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations

The Customs (Prohibited Exports) Regulations 1958 ("the Regulations") control the exportation of the goods specified in the Regulations or the Schedules to the Regulations, by prohibiting exportation absolutely, or making exportation subject to the permission of a Minister or an authorised person.

Purpose

The purpose of the Regulations is to:

(a)       impose sanctions against Uniao Nacional para a Independencia Total de

Angola ("UNITA") in accordance with United Nations Security Council

("UNSC") Resolution 1173 (1998); and

(b)       relax sanctions against Sierra Leone in accordance with UNSC Resolution

1171 (1998).

Background

Sanctions against UNITA

UNITA is a rebel force currently engaged in armed conflict with the Government of Angola.

Currently the exportation of petroleum, petroleum products, aircraft and aircraft components to Angola is prohibited unless the written permission of the Minister for Foreign Affairs or an authorised officer of the Department of Foreign Affairs and

Trade is produced to a Collector at or before the time of exportation (regulation 13CE refers).

The latest UNSC Resolution prohibits "the sale or supply of equipment used in mining or mining services" and "motorized vehicles or watercraft or spare parts for such vehicles, or ground or waterborne transportation services" to persons or entities in areas of Angola to which State administration has not been extended.

The Committee established by UNSC Resolution 864 (1993) may authorise exemptions to these measures for verified medical and humanitarian purposes.

These Regulations implement the prohibitions contained in the UNSC Resolution

(new regulation 13CF).

Sanctions against Sierra Leone

Currently the exportation of paramilitary equipment and spare parts for such equipment to Sierra Leone is prohibited (regulation 13CH refers).

The latest UNSC Resolution prevents the sale or supply of arms and related material of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, to Sierra Leone other than to the Government of Sierra Leone through named points of entry.

The proposed Regulations implement the prohibitions contained in the UNSC Resolution (new regulation 13CH).

The defence export controls already in place under existing regulation 13E can be utilised to give effect to that part of the UNSC Resolution that relates to arms, weapons, ammunition, military vehicles and equipment and spare parts.

The Regulations are explained in detail in the Attachment.

The Regulations commence on gazettal.

ATTACHMENT

Regulation 1 - Name of regulations

Regulation 1 provides that the regulations are named the "Customs (Prohibited Exports) Amendment Regulations 1999 (No. 2)".

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 Regulations").

Schedule 1 - Amendments

Item 1 of Schedule 1 - Regulation 2, after the definition of American Society of Mechanical Engineers 8 Standards

Item 1 inserts a definition of "Foreign Minister" into Regulation 2 of the Regulations. For the purposes of the Regulations "Foreign Minister" means the Minister for Foreign Affairs.

Item 2 of Schedule 1 - After regulation 13CE

Item 2 inserts new regulation 13CF into the Regulations.

New regulation 13CF provides for the introduction of controls on goods contained in new Schedule 14AA of the Regulations (other than goods listed in the defence and strategic goods list mentioned in regulation 13E) that are intended to be exported to Angola. Exportation of those goods will be prohibited unless a permission in writing to export the goods given by the Minister for Foreign Affairs or an authorised person is produced to a Collector at or before the time of exportation (new subregulation 13CF(2)).

Part 1 of new Schedule 14AA contains a list of equipment used in mining or mining services and Part 2 of that new Schedule contains a list of motorised vehicles, watercraft and spare parts (see item 7 of Schedule 1).

It is possible that goods contained in the Schedule are also listed in the defence and strategic goods list. In such circumstances the exporter will need a licence or permission under regulation 13E of the Regulations to export the goods.

Officers of the Department of Foreign Affairs and Trade can be authorised by the Minister for Foreign Affairs to give permissions under this new regulation (new subregulation 13CF(1)).

The UNSC Resolution provides that those goods can be exported to areas in Angola to which State Administration has been extended.

Further the committee established by Resolution 864 (1993) of the Security Council of the United Nations ("the committee") (see new subregulation 13CF(1)) can authorise the export of those goods for verified medical and humanitarian purposes.

Hence when deciding whether to give a permission the Minister or authorised person must take into account:

*       the area in Angola to which the goods are to be delivered (new paragraph 13CF(4)(a); and

*       whether the committee has authorised an exemption to the prohibition (new paragraph 13CF(4)(b)).

The Minister for Foreign Affairs or an authorised person must also taken into account Australia's relations with other countries and Australia's obligations under international law (new paragraphs 13CF(4)(c) and (d)).

A permission may specify conditions including the quantity of goods that may be exported, the circumstances in which the goods may be exported and the period of effect of the permission (new subregulation 13CF(3)).

Item 3 of Schedule 1 - Regulation 13CH

Item 3 replaces regulation 13CH of the Regulations.

New regulation 13CH provides for the introduction of controls on paramilitary equipment and spare parts for paramilitary equipment that are intended to be exported to Sierra Leone. Exportation of those goods will be prohibited unless a permission in writing to export the goods given by the Minister for Foreign Affairs or an authorised person is produced to a Collector at or before the time of exportation (new subregulation 13CH(2)).

The definition of paramilitary equipment is the same as is used elsewhere in the Regulations (new subregulation 13CH(1)).

Officers of the Department of Foreign Affairs and Trade can be authorised by the Minister for Foreign Affairs to give permissions under this new regulation (new subregulation 13CH(1)).

Pursuant to the latest UNSC Resolution those goods can be exported to Sierra Leone if:

*       the goods are imported into Sierra Leone through a point of entry nominated by the Government of Sierra Leone;

*       if the goods are being imported into Sierra Leone by the Government of Sierra Leone; or

*       the goods are going to be used by the Military Observer Group of the Economic Community of West African States, or the United Nations.

Hence when deciding whether to give a permission the Minister for Foreign Affairs or an authorised person must take into account those three circumstances (new paragraphs 13CH(3)(a), (b) and (c)).

The Minister for Foreign Affairs or an authorised person must also taken into account Australia's relations with other countries and Australia's obligations under international law (new paragraphs 13CH(3)(d) and (e)).

A permission may specify conditions including the quantity of goods that may be exported, the circumstances in which the goods may be exported and the period of effect of the prohibition (new subregulation 13C1-1(4)).

Item 4 - Paragraph 13H(1)(a)

Item 5 - Paragraph DH(3)(a)

Item 6 - Paragraph 13H(4)(b)

Items 4, 5 and 6 amend regulation 13H of the Regulations, so that only the Minister for Foreign Affairs may refuse to grant a permission to export mining and transport equipment to Angola or paramilitary equipment to Sierra Leone.

Item 7 - After Schedule 14A

Item 7 inserts new Schedule 14AA into the Regulations. New Schedule 14AA lists those goods that can not be exported to Angola without the written permission of the Minister for Foreign Affairs or an authorised person (see item 2 of Schedule 1).

Part 1 of new Schedule 14AA contains a list of equipment used in mining or mining services.

Part 2 of new Schedule 14AA contains a list of motorised vehicles, watercraft and spare parts.


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