Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT) 1992 NO. 61

STATUTORY RULES 1992 No. 61

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 give effect to a number of policy changes to the controls on the exportation of defence and related goods, including:

i)       the transfer of some non dangerous accessories and parts from Part 1A to Part 1B of Schedule 13 to the Pro-Export Regulations; and

ii)       the extension of the licensing system provided for in subregulation 13B(3) to parts and accessories falling to item 8 in Part 1B of Schedule 13.

Background

i)       transfer of items from Part 1A to Part 1B of Schedule 13

Regulation 13B and Schedule 13 of the Customs Pro-Export Regulations provide the control regime for the exportation of defence-related goods from Australia.

Subregulation 13B(2) prohibited the exportation of those goods listed in Parts IA, IB and II of Schedule 13 without the written permission of the Minister for Defence or an authorised person being presented to a Collector of Customs:

•       Part IA essentially deals with weaponry which is designed or has been adapted for military purposes;

•       Part IB essentially deals with parts or enhancements for goods in Part IA; and

•       Part II deals with military cryptographic and related electronic equipment and software:

-       different administrative procedures are applied by the Department of Defence in assessing applications for permission to export goods falling to the three parts.

Subregulation 13B(2) prohibited the exportation of goods listed in Part III of Schedule 13 without a written permission or a licence to export those goods (granted by the Minister for Defence or an authorised person) being presented to a Collector:

•       Part III deals with non-military weapons and ammunition and parts for such weapons.

Following a review of the controls on the exportation of defence and related goods, on 19 December 1991 the Government decided on a number of policy changes to the controls, including several amendments to the Regulations.

The review revealed that Part 1A of Schedule 13 encompassed a range of goods which are no longer considered to be dangerous military weaponry. For example, item 3 covered accessories for small arms such as slings and telescopic sights for rifles; and item 17 included non-lethal parts for vessels and aircraft falling to item 13 such as fire fighting and air-conditioning equipment.

To remedy these anomalies the Regulations transfer from Part IA to Part IB of Schedule 13:

•       accessories (other than bayonets) for firearms below 20mm calibre (regulations 3.2 and 3.11); and

•       parts and accessories for vessels and aircraft, other than those incorporating guns, missiles or bomb launchers (regulations 3.5 and 3.10).

To avoid confusion in the interpretation of items 8 and 14 of Part IA, which are intended to regulate the exportation of goods used "to control" the operation of goods covered by items 7 and 13 respectively (eg. guidance control equipment for missiles), regulations 3.3 and 3.4 substitute the word "control" for the word "functioning" in items 8 and 14.

ii) extension of the licensing_system

Regulation 13B only allowed a licensing system for goods specified in Part III of Schedule 13 (subregulation 13B(3)). The exportation of all other Schedule 13 goods was regulated by individual export permissions (subregulation 13B(2)). The Government's revised policy includes the limited extension of the licensing system to parts and accessories specified in item 8 of Part 1B of Schedule 13.

Regulations 2.1 and 2.2 amend subregulations 13B(2) and (3) to extend the licensing system to goods specified in item 8 of Part 1B.

The Regulations also effect a number of minor technical amendments to regulation 13B and Schedule 13 to change the numbering of each of the parts to Arabic rather than Roman numerals, in line with current drafting practice.

The Regulations amend the Pro-Export Regulations as follows.

1.       Amendment

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.       Regulation 13B (Export of goods specified in Schedule 13)

Regulation 2.1       amends subregulation 13B(2) to change the numbering from Roman to Arabic numerals in the reference to the parts of Schedule 13 consistent with current drafting practice, and excepts goods specified in item 8 of Part 1B of Schedule 13 from the permission regime provided for in that subregulation.

Regulation 2.2        amends subregulation 13B(3) to effect the numbering change from Roman to Arabic numerals and extends the licensing system provided for in that subregulation to goods specified in, or included in a class of goods specified in item 8 of Part 1B of Schedule 13 (i.e. parts and accessories designed or adapted for use in or with goods in Part 1B).

3.       Schedule 13 Goods the exportation of which is prohibited unless a permission or licence to export the goods has been granted under regulation 13B by the Minister referred to in that regulation or an authorised person)

Regulation 3.1       omits the Roman numeral heading to Part 1A and substitutes the Arabic form.

Regulation 3.2        removes the reference to "accessories" from item 3 of Part 1A, and replaces it with a reference to bayonets only:

-       other accessories designed or adapted for use with firearms now appear in new item 11 of Part 1B (regulation 3.11 refers).

Regulation 3.3       amends item 8 of Part 1A to substitute the word "control" for the word "functioning" for the reasons outlined in the Background discussion of the Explanatory Memorandum.

Regulation 3.4       amends item 14 of Part 1A in the same way and for the same reasons as outlined for the amendment to item 8 in regulation 3.3 above.

Regulation 3.5       amends item 17 of Part 1A to remove the references to parts and accessories for goods referred to in items 13 and 14 and to insert a new item 18 which refers to goods that are fitted with any goods referred to in item 4:

-       the references to parts and accessories for those goods now appear in item 8 of Part 1B and are subject to the extended licensing system provided for in subregulation 13B (regulation 2.2 refers).

-       new item 18 is intended to cover goods which were previously covered by the reference in item 17 to parts and accessories for goods referred to in items 13 and 14, but are still considered to be dangerous (e.g. an aircraft wing fitted with a rocket launcher).

Regulation 3.6        omits the Roman numeral heading to Part 1B and substitutes the Arabic form.

Regulations 3.7, 3.8 and 3.9       amend items 1, 2 and 4 of Part 1B respectively to change the references to Part 1A to the Arabic form.

Regulation 3.10        amends item 8 of Part 1B to include parts and accessories designed or adapted for use with goods referred to in items 13 and 14 of Part 1A.

Regulation 3.11       adds at the end of Part 1B new item 11 which covers accessories, other than bayonets (see regulation 3.2), designed or adapted for use in or with firearms referred to in item 1 of Part 1A.

Regulation 3.12 and 3.13       omit the Roman numeral headings to Parts 2 and 3 respectively and replace them with the Arabic form.

Regulation 3.14        amends item 1 of Part 3 to change the reference to Part 1A to the Arabic form.

Regulation 3.15       amends items 3, 4 and 5 of Part 3 to change the references to Part 1A to the Arabic form.