Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2002 (NO. 1) 2002 NO. 29

EXPLANATORY STATEMENT

STATUTORY RULES 2002 No. 29

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2002 (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 or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to Customs.

Section 112 of the Act provides in part that the Governor-General may, by regulation, prohibit the exportation of goods from Australia and that power may be exercised by prohibiting the exportation of goods absolutely or by prohibiting the exportation of goods unless specified conditions or restrictions are complied with. The regulations 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 specified goods 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:

       move the definition of 'arms and related matériel' so that it applies to the whole of the Regulations (items 1 and 2 refer);

       impose sanctions against Liberia in accordance with United National Security Council (UNSC) Resolution 1343 (2001) by prohibiting the exportation of arms and related matériel to Liberia (item 3 refers); and

       insert into Schedule 8 of the Regulations the drug zolpidem (item 4 refers).

UNSC Resolution 1343 (2001) in part provides that all States shall take the necessary measures to prevent the sale or supply to Liberia, from their territories, of arms and related matériel of all types.

Item 3 inserts new regulation 13CK into the Regulations. Regulation 13CK prohibits the exportation of arms or related matériel the immediate or final destination of which is, or is intended to be, Liberia 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 13CK(5) refers). The Minister can revoke or modify a permission in certain circumstances (new subregualtion 13CK(4) refers).

Item 2 repeals the definition of 'arms and related matériel' contained in subregulation 13CI(1) of the Regulations (regulation 13C1 refers to the exportation of arms and related matériel to Afghanistan) and item 1 inserts into regulation 2 of the Regulations that same definition for the purposes of the whole of the Regulations.

Item 4 inserts zolpidem into Schedule 8 to the Regulations. In March 2001 the United Nations Commission for Narcotic Drugs decided that zolpidem (a psychotropic substance) should be included in Schedule IV of the 1971 United Nations Convention on Psychotropic Substances. The inclusion of zolpidern in Schedule 8 to the Regulations will ensure that Australia meets its international obligations under this Convention.

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

The amending Regulations commenced on gazettal.

ATTACHMENT

Customs (Prohibited Exports) Amendment Regulations 2002 (No. 1)

Regulation 1 - Name of regulations

Regulation 1 provides that the amending Regulations are named the "Customs (Prohibited Exports) Amendment Regulations 2002 (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 American Society or Mechanical Engineers 8 Standards

Item 1 inserts into regulation 2 of the Regulations a definition of 'arms and related matériel'. Regulation 2 of the Regulations defines certain terms for the purposes of the Regulations.

Item 2 - Subregulation 13C1(1), definition of arms and related matériel

Item 2 omits from subregulation 13CI(1) of the Regulations the definition of 'arms and related matériel' as it is proposed that the same term will be defined for the whole of the Regulations (see item 1 above). The definition has not been changed.

Item 3 - After regulation 13CJ

Item 3 inserts new regulation 13CK into the Regulations.

New subregulation 13CK(1) defines the term 'authorised person' to mean 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 13CK(2) only that Minister can revoke or modify those permissions.

New subregulation 13CK(2) provides that the exportation of arms or related matériel the immediate or final destination of which is, or is intended to be, Liberia 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 13CK(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 13CK(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 13CK(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 13CK(5) sets out what the Foreign Minister or authorised person must take into account when deciding whether to give them permission under new subregulation 13CK(2). They must take into account Australia's relations with other countries and Australia's obligations under international law.

Item 4 - Schedule 8, Part 4, after item 41

Item 4 inserts zolpidem into Part 4 of Schedule 8 to the Regulations. The exportation of the drugs listed in Schedule 8 is prohibited unless certain conditions are met. Zolpidem will only be able to be exported from Australia if:

       the exporter is a licensed exporter;

       there is a permission for the exporter to export the zolpidem to a specified country;

       the zolpidem is exported in accordance with the requirements of the permission;

       the zolpidern is consigned to the country to which the permission relates; and

       the exporter, if so requested by the Collector, produces to the Collector the permission.


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