Commonwealth Numbered Regulations - Explanatory Statements

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Select Legislative Instrument 2010 No. 15


Issued by the Authority of the Minister for Home Affairs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2010 (No. 1)

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 for giving effect to the Act.

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 purpose of the amending Regulations is to amend the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) to implement an arms embargo against Eritrea imposed by United Nations Security Council Resolution 1907 (2009), which was adopted on 23 December 2009 (the Resolution).

Paragraph 5 of the Resolution provides, in part, that all Member States shall prevent the sale or supply to Eritrea of arms and related matériel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories. This includes the sale and supply from territories of a Member State or by their nationals, or using their flag vessels or aircraft.

The amending Regulations insert new regulation 13CR into the PE Regulations to prohibit the exportation of arms and related matériel (other than goods listed in the defence and strategic goods list made under regulation 13E of the PE Regulations) whose immediate or final destination is, or is intended to be, Eritrea unless the written permission of the Minister for Foreign Affairs (the Minister) or an authorised person is shown to a Collector of Customs at or before the time of exportation.

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

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

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

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

The remaining elements of the prohibitions in paragraph 5 of the Resolution are implemented under the Charter of the United Nations (Sanctions - Eritrea) Regulations 2010.

No consultation was undertaken specifically in relation to the amending Regulations 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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