EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 281

 

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2006 (No. 3)

 

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 powers 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 Principal Regulations) control the exportation of specified goods for the purposes of the Act.

The purpose of the Regulations is to amend the Principal Regulations to implement sanctions against the Democratic People’s Republic of Korea (DPRK) imposed by United Nations Security Council Resolution 1718 which was adopted on 14 October 2006 (the Resolution).

The Resolution provides, in part, that all Member States shall prevent the direct or indirect supply, sale or transfer to the DPRK, through their territories or by their nationals of: (a) specified military equipment and spare parts for such goods; (b) specified goods which could contribute to DPRK’s nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes; and (c) luxury goods.

The Regulations insert new regulation 13CO into the Principal Regulations to prohibit the exportation of:

a)         arms and related matériel (other than goods listed in the defence and strategic goods list mentioned in regulation 13E of the Principal Regulations);

b)        goods capable of use in the development, production, or stockpiling of nuclear, biological or chemical weapons, or the development or production of missiles capable of delivering such weapons; and

c)         goods included on the luxury goods list;

the immediate or final destination of which is, or is intended to be, the DPRK unless the written permission of the Foreign Minister or an authorised person is shown to a Collector at or before the time of exportation.

The Foreign Minister can authorise an officer of the Department of Foreign Affairs and Trade to be an authorised person for the purposes of the Regulations.

The Foreign Minister or an authorised person can also include conditions and other requirements in a permission and the Foreign Minister can revoke or modify a permission in certain circumstances.

The Foreign Minister or an authorised person, in deciding whether to grant a permission to export must take into account Australia's relations with other countries and Australia's obligations under international law.

The exportation of most military goods and dual use goods from Australia is already controlled under regulation 13E of the Principal Regulations. Therefore, it is only necessary to include in new regulation 13CO those goods which are not covered by regulation 13E, such as paramilitary equipment, but which are covered by the terms of the Resolution.

The goods that constitute “luxury goods” for the purposes of new regulation are those goods in the “luxury goods list”. This list will be determined by the Foreign Minister under regulation 17 of the Charter of the United Nations (Sanctions - Democratic People’s Republic of Korea) Regulations 2006.

No consultation was undertaken specifically in relation to either of the amendments as they implement Australia’s international obligations under the Resolution.

The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

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