Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2000 (NO. 2) 2000 NO. 212

STATUTORY RULES 2000 No. 212

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2000 (No. 2)

Section 270 of the Customs Act 1901 (the Act) provides in part that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.

Section 112 of 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 (PE 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.

The purpose of the Regulations is to amend the PE Regulations to:

* permit the exportation of certain prohibited goods which have been lawfully imported by sky marshals.

During the Olympic Games, it is possible that foreign countries may wish to deploy "sky marshals" on flights to Australia. A "sky marshal" is a person who provides protection to the passengers and crew of an aircraft generally or to particular passengers such as heads of State or other dignitaries against a variety of security threats, including terrorism. These duties may require the sky marshal to be armed with a variety of weapons, including firearms, knives and anti-personnel sprays. Sky marshals will also usually wear protective clothing.

The importation of these goods into Australia is prohibited. The Customs (Prohibited Imports) Regulations 1956 have been amended to permit the limited importation of certain prohibited goods (principally firearms and a number of other weapons) by sky marshals in the course of their duties. These amendments require that the goods are surrendered to Customs for safe-keeping. The exportation of such goods is also restricted. To enable these goods to be lawfully exported by sky marshals when departing Australia, amendments were required to the PE Regulations.

The regulations commenced on gazettal.

The regulations are explained in greater detail in the attachment.

Authority: Sections 112 and 270 of the Customs Act 1901

ATTACHMENT

Customs (Prohibited Exports) Amendment Regulations 2000 (No. 2)

Regulation 1 - Name of regulations

Regulation 1 provides for the regulations to be named the Customs (Prohibited Exports) Amendment Regulations 2000 (No. 2).

Regulation 2 - Commencement

Regulation 2 provides for the regulations to commence on gazettal.

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

Regulation 3 provides for the Regulations to be amended as set out in Schedule 1.

Schedule 1 - Amendments

Item 1 - Subregulation 13E(1), before definition of authorised person

Item 2 - Subregulation 13E(1), after definition of defence and strategic goods list

Items 1 and 2 inserts three new definitions into regulation 13E.

The first defines "airline" to mean a person who carries on a commercial air transport enterprise that involves offering or operating scheduled or chartered services.

"Authorised officer" is defined to mean an officer of Customs authorised in writing by the CEO to be an authorised officer for the purposes of this regulation.

Finally, "sky marshal" is defined to mean a person who travels on an aircraft to provide security for its passengers or crew and is employed or engaged by:

*       the Government of a foreign country; or

*       an agency of the Government of a foreign country; or

*       an airline.

Item 3 - Subparagraph 13E(2)(d)(iv)

Item 3 of Schedule 1 amends subparagraph 13E(2)(d)(iv) by omitting the word "list." and inserting the words "list; or" to indicate that a new sub-paragraph is being added.

Item 4 - After paragraph 13E(2)(d)

Item 4 inserts a new paragraph in subregulation 13E(2). Subregulation 13E(2) provides that the exportation from Australia of goods specified in the defence and strategic goods list is prohibited unless one of the exceptions in paragraphs (a) - (c) is satisfied. This item adds a new exception to the prohibition on exportation. The defence and strategic goods list is a list formulated and published by the Minister for Defence Industry, Science and Personnel under paragraph 112(2A)(aa) of the Act. Many of the goods which may be imported by sky marshals are specified on the defence and strategic goods list and therefore, their exportation is prohibited.

The exception applies generally to goods specified in the defence and strategic goods list and requires that the following conditions are satisfied for the exportation of the goods:

*       the goods were last imported into Australia by a sky marshal in the course of his or her duties;

*       there is an agreement in force between the relevant foreign Government and Australia regarding such importations;

*       immediately after the goods were imported, they were surrendered to an authorised officer; and

*       the goods are exported from Australia by a sky marshal representing that foreign country within 3 months from the date of importation.

This last criterion ensures that the goods may be exported by any of the foreign country's sky marshals and not necessarily by the particular sky marshal who imported the goods.

Item 5 - After subregulation 13E(2)

Item 5 inserts new subregulation 13E(2AA). New subregulation (2AA) sets out when a sky marshal is to be taken to represent a foreign country. A sky marshal represents a foreign country if..

*       he or she is employed or engaged by the Government of the foreign country or an agency of that Government to carry out the duties of a sky marshal; or

*       he or she is employed or engaged by an 1 airline, the aircraft is registered under the law of the country.