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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2001 (NO. 1) 2001 NO. 171

STATUTORY RULES 2001 No. 171

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2001 (No. 1)

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 - (a) by prohibiting the exportation of goods absolutely; ... or (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 by making exportation subject to the permission of a Minister or an authorised person.

The purpose of the amending Regulations is to amend the Regulations to impose sanctions against the Taliban in accordance with United National Security Council (UNSC) Resolution 1333 (2000) by prohibiting the exportation of arms and related materiel and the chemical acetic anhydride to Afghanistan.

UNSC Resolution 1333 (2000) in part provides that all States shall prevent the direct or indirect supply, sale and transfer, to the territory of Afghanistan under Taliban control, of arms and related materiel. Further, that resolution provides that those same States shall prevent the sale, supply or transfer from their territories, of the chemical acetic anhydride to any person in the territory of Afghanistan under Taliban control.

Item 3 of Schedule 1 to the amending Regulations inserts new regulation 13CI into the Regulations. New regulation 13CI prohibits the exportation of arms or related materiel the immediate or final destination of which is, or is intended to be, Afghanistan unless the written permission of the Minister for Foreign Affairs or an authorised person is produced to a Collector at or before the time of exportation. When deciding whether to give a permission the Minister or authorised person must take into account Australia's relations with other countries and Australia's obligations under international law (new subregulation 13CI(5) refers). The Minister can revoke or modify a permission in certain circumstances (new subregulation l3CI(4) refers).

Item 1 of Schedule 1 to the amending Regulations inserts into regulation 2 of the Regulations a definition of 'paramilitary equipment' for the purpose of the Regulations. Arms and related materiel includes paramilitary equipment.

Item 2 of Schedule 1 to the amending Regulations repeals the definition of 'paramilitary equipment' contained in subregulation 13CH(1) of the Regulations. Since that definition is the same as the one contained in item 1 of Schedule 1 to the amending Regulations the definition in subregulation 13CH(1) is unnecessary.

Item 3 of Schedule 1 to the amending Regulations prohibits absolutely the exportation of acetic anhydride the immediate or final destination of which is, or is intended to be, Afghanistan.

Details of the amending Regulations are set out in the Attachment.

The amending Regulations commenced on gazettal.

ATTACHMENT

CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2001 (No. 1)

Regulation 1 - Name of regulations

Regulation 1 provides that the amending Regulations are named the "Customs (Prohibited Exports) Amendment Regulations 2001 (No. 1)".

Regulation 2 - Commencement

Regulation 2 provides that the amending Regulations are to 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 - Regulation 2, after definition of licensed exporter

Item 1 inserts into regulation 2 of the Regulations a definition of 'paramilitary equipment'. Regulation 2 of the Regulations defines certain terms for the purposes of the Regulations.

Item 2 - Subregulation 13CH(1), definition of paramilitary equipment

Item 2 omits from subregulation 13CH(1) of the Regulations the definition of 'paramilitary equipment' as the same term will be defined for the whole of the Regulations (see item 1 above).

Item 3 - After regulation 13CH

Item 3 inserts new regulations 13CI and 13CJ into the Regulations.

New subregulation 13CI(1) defines the term's 'arms and related materiel' and 'authorised person'.

'Arms and related material' includes weapons, ammunition, military vehicles and equipment, paramilitary equipment (as defined in regulation 2 of the Regulations) and spare parts for the first three of these (paramilitary equipment already includes parts and accessories).

'Authorised person' means an officer of the Department of Foreign Affairs and Trade authorised in writing by the Foreign Minister to give permission under new regulation 13CI. The term 'Foreign Minister' is defined in regulation 2 of the Regulations to mean the Minister for Foreign Affairs. Whilst the Foreign Minister or an authorised person may give permissions; under new subregulation 13CI(2) only that Minister can revoke or modify those permissions.

New subregulation 13CI(2) provides that the exportation of arms or related materiel the immediate or final destination of which is, or is intended to be, Afghanistan is prohibited unless the written permission of the Foreign Minister or an authorised person is produced to a Collector at or before the time of exportation.

New subregulation 13CI(2) does not apply to arms or related material that are listed in the defence and strategic goods list. That is because the exportation of those goods is regulated by regulation 13E of the Regulations.

New subregulation 13CI(3) provides that a permission may specify, in relation to the exportation of goods that it permits:

•       conditions or requirements, including times for compliance, to which the exportation is subject;

•       the quantity of goods that may be exported; and

•       the circumstances in which the goods may be exported.

New subregulation 13CI(4) provides that the Foreign Minister may revoke or modify a permission if satisfied on reasonable grounds that:

•       a condition or requirement of the permission has not been complied with, or is unlikely to be complied with unless modified; or

•       permitting, or continuing to permit, the exportation of goods in, accordance with the permission would breach Australia's international obligations or otherwise damage Australia's international relations.

New subregulation 13CI(5) sets out what the Foreign Minister or authorised person must take into account when deciding whether the give permission under new subregulation 13CI(2). They must take into account Australia's relations with other countries and Australia's obligations under international law.

New regulation 13CJ prohibits absolutely the exportation of acetic anhydride the immediate or final destination of which is, or intended to be, Afghanistan.