Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 1999 (NO. 3) 1999 NO. 200

STATUTORY RULES 1999 NO. 200

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 1999 (No. 3)

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

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

(2)       The power conferred by the last preceding subsection 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; and..."

The Customs (Prohibited Exports) Regulations 1958 ("the Regulations") control the exportation of the goods specified in the various 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

These regulations introduce controls on the exportation of counterfeit credit, debit and charge cards (item 1 of Schedule 1).

Background

Some estimates place the amount of annual domestic credit card and international fraud involving Australian credit cards in the hundreds of millions of dollars. There is also evidence that counterfeit cards are being manufactured overseas and brought into Australia to perpetrate fraud on Australian financial institutions. There are concerns that the Sydney 2000 Olympic Games may create an environment for the escalation of this fraud.

The criminal law dealing with possession and use of counterfeit cards is the responsibility of the States and Territories. However, through these regulations, the Australian Government has introduced tighter Commonwealth controls to permit the seizure and forfeiture of counterfeit credit cards if detected at the Customs barrier.

The regulations provide that the exportation of counterfeit credit, debit and charge cards is prohibited unless a permission in writing to export the card has been given by the Minister and the permission is produced to a Collector.

The regulations are explained in greater detail in the Attachment.

The regulations commenced on gazettal.

ATTACHMENT

Regulation 1 - Name of regulations

Regulation 1 provides for the regulations to be named the Customs (Prohibited Exports) Amendment Regulations 1999 (No. 3)

Regulation 2 - Commencement

Regulation 2 provides that these regulations commenced on gazettal.

Regulation 3 - Amendment of Customs (Prohibited Exports) Regulations 1958

Regulation 3 provides that the Regulations are amended as set out in Schedule 1.

Schedule 1 - Amendment

Item 1 of Schedule 1 - New regulation 13D - Exportation of counterfeit credit, debit and charge cards

Item 1 of Schedule 1 inserts a new regulation 13D into the Regulations.

It provides for the introduction of controls on the exportation of counterfeit credit, debit and charge cards. Exportation of such cards is prohibited unless a permission in writing to export the card has been given by the Minister and the permission is produced to a Collector (subregulation 13D(1)).

A permission may specify conditions or requirements to be complied with by the holder of the permission. and when this must occur (subregulation 13D(2)).

If the holder of a permission does not comply with a condition or requirement, the Minister may revoke the permission (subregulation 13D(3)).

In this new regulation, the term "Minister" is defined to mean the Minister administering the Australian Federal Police Act 1979. The Australian Federal Police is the relevant agency with policy responsibility for the new controls.

The export controls are intended to apply to any credit, debit and charge cards that can be used to obtain credit or money, goods, services, or any other thing of value or any other property.

The ordinary meaning of the term "counterfeit" is intended to apply to these controls. 'This means that any non-genuine credit. debit and charge cards that are, for instance, made to imitate, and pass for genuine cards are intended to be subject to the new export controls. Examples of the situations that are intended to be covered include where a card has a name and number that do not match the issuing authority's records, and where more than one card has the same number embossed on it.

The new export controls are not absolute prohibitions, as there may be limited circumstances where the exportation of such cards is desirable. For example, it is possible that law enforcement agencies, financial institutions or credit providers (such as the credit card companies) may seek to examine such cards to enable them to improve mechanisms to avoid counterfeiting. However, only the Minister will be able to give such a permission (paragraph 13D(1)(a)).