Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2004 (NO. 4) 2004 NO. 244

Subsection 270(1) 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 the Act or for the conduct of any other business relating to the 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 the 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 Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) control the exportation of specified goods for the purposes of the Act.

Australia has ratified the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure far Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) and the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention). Both Conventions will enter into force for Australia on 18 August 2004.

As part of meeting Australia's obligations under the Rotterdam and Stockholm Conventions, the Agricultural and Veterinary Chemicals (Administration) Regulations (the Agvet Administration Regulations) have been amended to, among other things, introduce:

(a)       import and export controls on chemicals that are subject to the Stockholm Convention (the Stockholm chemicals); and

(b)       export controls on chemicals that are subject to the Rotterdam Convention (the Rotterdam chemicals),

where the chemicals are imported or exported as 'active constituents' or 'chemical products' as defined in the Agricultural and Veterinary Chemicals Code (Agvet products). The amendments to the Agvet Administration Regulations were made under separate Regulations.

The purpose of the amending Regulations is to put in place export controls under the Act on the Stockholm and Rotterdam chemicals whether or not the chemicals are Agvet products. The Customs (Prohibited Imports) Regulations 1956 have been amended to put in place associated import controls on the Stockholm chemicals. These controls support the new controls under the amended Agvet Administration Regulations.

The PE Regulations did not previously control the exportation of the Stockholm or Rotterdam chemicals. The amending Regulations add new regulation 4A to the PE Regulations to prohibit the exportation of the Stockholm and Rotterdam chemicals mentioned in new Schedule 2 unless the Minister or an authorised officer has given permission in writing to do so.

The amending Regulations also introduce other provisions in new regulation 4A with respect to:

•       applications for a permission under the new regulation;

•       the imposition of conditions on such a permission;

•       the revocation of such a permission in certain circumstances; and

•       referrals to the Minister of applications for a permission that an authorised officer has determined should be rejected.

Details of the amending Regulations are in the Attachment.

The amending Regulations commence on 18 August 2004, the date the Rotterdam and Stockholm Conventions enter into force for Australia.

0407433B

ATTACHMENT

DETAILS OF THE CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2004 (NO. 4)

Regulation 1 - Name of Regulations

Regulation 1 provides that the Regulations are the Customs (Prohibited Exports) Amendment Regulations 2004 (No. 4).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on 18 August 2004.

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

Regulation 3 provides that Schedule 1 amends the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations).

SCHEDULE 1 - AMENDMENTS

Item 1 - After regulation 4

Item 1 inserts new regulation 4A.

New subregulation 4A (1) prohibits the exportation of a chemical mentioned in new Schedule 2, or a mixture or preparation containing a chemical mentioned in new Schedule 2, unless:

(a)       if the chemical is an active constituent or a chemical product as defined in the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994:

(i)       a permission to export the chemical has been granted in writing under the Agricultural and Veterinary (Administration) Regulations 1995 (the amended Agvet Administration Regulations); and

(ii)       the permission is produced to a Collector; or

(b)       in any other case:

(i)       the Minister or an authorised officer has granted a permission in writing to export the goods; and

(ii)       the permission is produced to a Collector.

'Collector' is defined in subsection 8 (1) of the Customs Act 1901 to mean the Chief Executive Officer of Customs, the Regional Director of Customs for a State or Territory, or any Customs officer doing duty in the matter in relation to which the expression is used.

New Schedule 2 sets out chemicals that are subject to the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) or the Stockholm Convention on Persistent Organic Pollutants (the Stockholm Convention).

Paragraph 4A (1) (a) reflects the prohibition that is in the amended Agvet Administration Regulations with respect to the exportation of chemicals that are subject to the Rotterdam and Stockholm Conventions and are active constituents or chemical products as defined in the Agricultural and Veterinary Chemicals Code. This allows Customs to enforce that prohibition at the border.

Paragraph 4A (1) (b) enables the exportation of chemicals subject to the Rotterdam and Stockholm Conventions which is not otherwise controlled under the amended Agvet Administration Regulations to be controlled. This ensures that Australia fully meets its obligations to control the exportation of these chemicals from Australia under the Rotterdam and Stockholm Conventions.

Subregulation 4A (2) provides that an application for a permission under paragraph 4A (1) (b) must be in writing and lodged with an authorised officer.

Subregulation 4A (3) allows an authorised officer to ask an applicant for a permission under paragraph 4A (1) (b) to give to the authorised officer any information that the authorised officer or the Minister reasonably requires in order to decide whether the permission should be granted.

Subregulation 4A (4) provides that, on an application for a permission under paragraph 4A (1) (b), if an authorised officer forms an opinion that the permission should not be granted, that officer must refer the application to the Minister, and the Minister may grant, or refuse to grant, the permission. This is similar to the Ministerial referral provision in subregulation 51(3) of the Customs (Prohibited Imports) Regulations 1956.

Subregulation 4A (5) enables a permission granted under paragraph 4A (1) (b) by an authorised officer or the Minister, or under paragraph 4A (4) (b) by the Minister, to specify:

(a)       conditions or requirements to be complied with by the holder of the permission; and

(b)       when the holder of the permission must comply with the conditions or requirements, whether before or after the exportation of the chemical to which the permission relates.

Subregulation 4A (6) allows the Minister to revoke a permission by writing if the holder of the permission granted under paragraph 4A (1) (b) or 4A (4) (b) does not comply with a condition or requirement of the permission.

Subregulation 4A (7), for regulation 4A, defines:

(a)       'authorised officer' to mean an officer of DAFF who is authorised in writing for the purposes of proposed regulation 4A by the Minister; and

(b)       'Minister' to mean the Minister for Agriculture, Fisheries and Forestry.

Item 2 - After Schedule 1

Item 2 inserts new Schedule 2 to the PE Regulations, which sets out the chemicals that are subject to the Rotterdam and Stockholm Conventions, and the unique Chemical Abstract Services (CAS) Registry Number(s) associated with each chemical. The CAS Registry is the largest and most current database of chemical substance information in the world and the CAS Registry Number is a unique numerical identifier assigned to each chemical in the CAS Registry.