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CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT) 1992 NO. 103EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 103
Issued by the Authority of the Minister for Small Business, Construction and Customs
Customs Act 1901
Customs (Prohibited Exports) Regulations (Amendment)
Section 112 of the Customs Act 1901 (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 subsection (1) may be exercised: - ...(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 (the Pro-Export 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 specified person or Minister of State.
The Regulations amend the Pro-Export Regulations to:
a) impose sanctions on Libya in accordance with United Nations Security Council (UNSC) Resolution 748 of 31 March 1992; and
b) remove export controls on iron ore as announced in the Prime Minister's Economic Statement of 26 February 1992.
Sanctions against Libya
Further to Australia's obligation as a Member of the United Nations to give effect to UNSC Resolution 749 of 31 March 1992, the Government has imposed limited trade sanctions on Libya with effect from 16 April 1992.
The Regulations amend the Pro-Export Regulations to give effect to UNSC Resolution 748 to impose sanctions on Libya for its involvement in international terrorism And in particular for failing to hand over two Libyans suspected of involvement in the Lockerbie and UTA plane disasters.
In particular, regulation 2 inserts a new regulation 13CB into the Pro-Export Regulations which prohibits the exportation to Libya of goods listed in new Schedule 14A unless the written permission of the Minister for Foreign Affairs and Trade or an authorised person is first produced to a Collector. Those goods include paramilitary equipment such as riot sticks, clubs, batons, body armour, handcuffs, leg irons and whips, as well as aircraft and aircraft components to which the Defence export controls in regulation 13B do not apply.
The exportation of other military goods and aircraft included in the Resolution is already controlled by the Defence export controls in regulation 13B and the COCOM (Co-ordinating Committee of Multi-lateral Strategic Export Controls) dual use technology controls in regulation 13E.
New subregulation 13CB(2) provides that in deciding whether to give a permission Australia's relations with other countries and its obligations under international law must be taken into account.
Removal of iron ore export controls
Regulation 9 of the Pro-Export Regulations provides that the exportation of goods specified in Schedule 7 is prohibited unless a permission in writing to export the goods has been granted by the Minister for Primary Industries and Energy or an authorised person and the permission is produced to a Collector. Item 5 of Schedule 7 describes ,iron ore, beneficiated iron ore, iron ore concentrates and agglomerates" as goods for which such a permission must be obtained.
The Prime Minister announced in his Economic Statement of 26 February that the application of export controls to iron ore would be removed. Regulation 4 omits item 5 from Schedule 7 to the Regulations to give effect to the Prime Minister's announcement.
The Regulations amend the Pro-Export Regulations as follows:
Regulation 1.1 is a formal machinery provision which provides that the Customs (Prohibited Exports) Regulations are amended as set out in these Regulations.
2. New Regulation 13CB
Regulation 2.1 inserts a new regulation 13CA to control the exportation of goods to Libya as follows:
New subregulation 13CB(1) prohibits the exportation of goods of a kind specified in new Schedule 14A and the immediate or final destination of which is, or is intended to be Libya, unless the written permission of the Minister for Foreign Affairs and Trade, or an authorised person is produced to a Collector.
New subregulation 13CB(2) provides that in exercising the discretion under subregulation 13CB(1) Australia's relations with other countries and its obligations under international law must be taken into account.
New subregulation 13CB(3) provides that a permission may be subject to conditions, including the quantity of goods that may be exported, the circumstances in which the goods may be exported, and the period of effect of the permission.
New subregulation 13CB(4) defines 'authorised person' and 'Libya' for the purposes of this regulation. In particular, 'authorised person' is defined to mean an officer of the Department of Foreign Affairs and Trade authorised in writing by the Minister for Foreign Affairs and Trade for the purposes of this regulation.
3. Regulation 13H (Certain applications to be referred)
This regulation amends regulation 13H so as to require that applications for permission under the new regulation 13CB which are proposed to be refused by an authorised person must be referred to the Minister.
This provision takes into account comments made by the Senate Standing Committee on Regulations and Ordinances in 1987 in relation to the Pro-Export Regulations. The Committee opined that where decisions involving "high Government policy,, are made by public servants, and those decisions are not the subject of independent merits review, it was undesirable to permit such persons to exercise such powers without the facility of at least having their decision reviewed by the Minister as the representative of the Government.
4. (Schedule 7)
Regulation 4.1 omits item 5 of Schedule 7 to the Regulations to give effect to the announcement in the Prime Minister's 26 February 1992 Economic Statement that export controls on iron ore would be removed.
5. New Schedule 14A
Regulation 5.1 inserts after Schedule 14 a new Schedule 14A which specifies the goods to be the subject of the sanctions regime against Libya provided for in new regulation 13CB.