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CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT) 1994 NO. 143EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 143
Issued by the authority of the Minister for Small Business, Customs and Construction
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 Regulations) control the exportation of the goods specified in the various regulations or the Schedules to the Regulations, by prohibiting exportation absolutely, or making exportation subject to the permission of a Minister or a specified person.
Regulation 11 of the Regulations prohibits the exportation from Australia of goods listed in Schedule 9 to the Regulations unless an approval in writing to the exportation of the goods issued by the Minister for Primary Industries and Energy or an authorised person is produced to the Collector. The Schedule fists primarily goods which have been identified by the 'Zangger Committee' (a Committee essentially of signatories to the Nuclear Non-Proliferation Treaty) as goods which incorporate nuclear-specific materials and technologies whose exportation should trigger safeguards, but also includes a number of nuclear dual-use items (that is, goods with uses other than purely nuclearspecific).
Schedule 9 is the vehicle by which Australia gives effect to all its international commitments to export control of nuclear-specific items, including as a member of the Nuclear Suppliers Group (NSG) (a forum of 27 countries who adhere to the Nuclear Suppliers Guidelines, which aim to restrict the export of nuclear-specific and dual-use items in order to prevent the proliferation of nuclear technology) and as a member of COCOM (the Coordinating Committee for Multilateral Export Controls).
Australia's obligations under the Nuclear Non-Proliferation Treaty, to which it acceded on 23 January 1973, include an undertaking not to provide source or fissionable material or material especially designed or prepared for the processing of, use or production of special fissionable material to another state except subject to such safeguards under an Agreement with the International Atomic Energy Agency (LAEA) (Article 111.2 refers). These goods are identified by the so-called 'Zangger Trigger List', and regulation 11 and Schedule 9 of the Regulations provide for the regime by which Australia meets its obligations under Article III.2. The NSG produces a similar Trigger List as well as a separate fist of controllable nuclear dual-use items.
Part of Australia's role in the ongoing work of the Zangger Committee is the constant monitoring of the need for revision or further clarification of the list in response to technological change and other developments. To make amendments and clarifications to the fist, members consult, then exchange notes and send identical letters to the DirectorGeneral of the IAEA. A similar role is performed by Australia in the NSG.
Throughout 1991 the Zangger Committee and the NSG cooperated to harmonise their Trigger Lists of nuclear-specific items. Australia, as a member of both groups, has had input into the harmonisation process and notified the Director-General of the IAEA on 1 June 1992 of its intention to act in accordance with the revised guidelines and resultant harmonised Trigger List as produced by the NSG.
These Regulations omit the existing Schedule 9 and replace it with a new Schedule which reflects the new harmonised Trigger List as agreed to by Australia. The amendment also removes nuclear dual-use items (that is, goods with uses other than purely nuclearspecific) from Schedule 9, as these goods are now controlled by regulation 13E of the Regulations which is administered by the Minister for Defence in conjunction with other defence related dual-use goods.
New Schedule 9 is divided into 11 parts covering different categories of nuclear-specific materials. These divisions are intended to make the Schedule more 'userfriendly' so that exporters can readily identify whether their goods are subject to the restriction. A brief description of the goods covered by each part in the Schedule is set out in the Attachment.
The Regulations would commence on gazettal.
PROPOSED NEW SCHEDULE 9 TO THE CUSTOMS (PROHIBITED EXPORTS) REGULATIONS
PART 1 - INTERPRETATION
This part sets out definitions for the terms 'criticality', 'high strength to density ratio materials' and "UF6-resistant materials'. Criticality is a commonly used term relating to the maintenance of a selfsustaining nuclear chain reaction and is defined accordingly. The other definitions are based on those used in the NSG Trigger List.
PART 2 - SOURCE MATERIAL AND SPECIAL FISSIONABLE MATERIAL
Source material is capable of being used to produce special fissionable material so as to produce a nuclear chain reaction, whether for civil or military purposes. The items under this part, consistent with those under Item 1 of Annex A of the NSG Trigger List, exclude from the control such materials where they are used in medicinals or in very small amounts in sensing instruments.
PART 3 - NUCLEAR REACTORS AND RELATED EQUIPMENT
This part covers nuclear reactors and the major components that are especially designed or prepared for the construction of such reactors as specified in Item 1 of Annex B of the NSG Trigger List and the COCOM Atomic Energy List.
PART 4 - NON-NUCLEAR MATERIAL FOR REACTORS
Deuterium and deuterium materials, including heavy water, and nuclear grade graphite as specified in Item 2 of Annex B of the NSG Trigger List. These items are essential non-nuclear materials used in nuclear reactors.
PART 5 - PLANTS FOR THE REPROCESSING OF IRRADIATED NUCLEAR FUEL ELEMENTS AND RELATED EQUIPMENT
Reprocessing irradiated nuclear fuel separates plutonium and uranium from intensely radioactive fission products and other transuranic elements. The items listed in this part of the Schedule comprise the essential components of this process as specified in Item 4 of Annex B of the NSG Trigger List.
PART 6 - PLANT AND EQUIPMENT FOR THE FABRICATION OF REACTOR FUEL ELEMENTS
As the fabrication of fuel elements is an integral to the operation of a nuclear reactor, plant and equipment used for this purpose are listed under this part in accordance with Item 5 of Annex B of the NSG Trigger List.
PART 7 - PLANT AND EQUIPMENT FOR THE SEPARATION OF ISOTOPES OF URANIUM
The detail of the items under this part reflects the importance of avoiding the exportation of technology associated with the separation and enrichment of isotopes of uranium as specified in Item 5 of Annex B of the NSG Trigger List.
PART 8 - PLANT AND EQUIPMENT FOR THE PRODUCTION OF HEAVY WATER, DEUTERIUM AND DEUTERIUM COMPOUNDS
Deuterium and deuterium compounds are controllable under Part 4 of the Schedule. Under this part, plant and equipment to produce these materials by the water-hydrogen sulphide exchange process and ammonia-hydrogen exchange process are also controllable as specified in Item 6 of Annex B of the NSG Trigger List.
PART 9 - SOFTWARE
This part controls the exportation of especially designed or modified software relevant to any of the items of the Schedule as required by the Atomic Energy List of COCOM.
PART 10 -POWER GENERATING OR PROPULSION EQUIPMENT
This part controls the exportation of power generating or propulsion equipment for use in military, space marine or mobile nuclear reactors as required by the Atomic Energy List of COCOM.
PART 11 - INFORMATION
This part controls the exportation of documents that contain any unlawful information relevant to any of the items of the Schedule, as well as models or any other thing from which such information could be obtained as required by the Atomic Energy List of COCOM.