Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT) 1995 NO. 90

STATUTORY RULES 1995 No. 90

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 - ... (a) by prohibiting the exportation of goods absolutely; ...(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 specified person.

Pursuant to section 112 of the Act, regulation 13B of the Regulations prohibits the exportation from Australia of the military goods specified in Schedule 13 unless a permission or licence has been obtained from or granted by the Minister for Defence or an authorised person.

Also pursuant to section 112 of the Act, regulation 13E of the Regulations prohibits the exportation from Australia of goods specified in the strategic goods list (as defined in subregulation 13E(1)) unless a permission or licence has been obtained from or granted by the Minister for Defence or an authorised person.

The regulations exempt a defined number of visiting foreign defence forces from the export prohibitions in regulations 13B and 13E. The amendments to the Regulations give effect to a request by the Government to exempt visiting foreign defence forces from certain export controls regarding their defence equipment when such forces arrive in and subsequently depart Australia in respect of defence activities such as combined exercises and training.

The list of countries which benefit from the exemptions are those 14 "favoured" nations with whom Australia has joint Defence Force agreements and which previously were permitted to import defence goods under a licence regime. One of the countries which benefits from the exemptions is Singapore, which previously exported, via an export licence, defence goods which it regularly brings to Australia for joint defence exercises.

The regulations exempt the goods in Schedule 13 to the Regulations and goods specified in the strategic goods list (subregulation 13E(1) refers) from regulations 13B and 13E where the owner of such goods is one of the defence forces listed at subregulation 2.2 and that defence force has imported the goods, or a member of the defence force to whom the goods were issued imported the goods, and the goods are to be exported by that defence force or the member to whom the goods were issued. "Owner" is defined under section 4 of the Customs Act 1901.

Subregulation 2.1 omits "subregulation (3) or (3A)" from subregulation 13B(2) and substitutes "subregulation (3), (3A) or (3B)" which has the effect that the goods in Schedule 13 to the Regulations, incorporating a broad range of military goods, are not prohibited exports provided that the conditions in new subregulation 13B(3B), below, are satisfied.

Subregulation 2.2 inserts new subregulation 13B(3B), the effect of which is to exempt from the reach of the prohibited exports controls the military weaponry which would normally be subject to the controls, where such goods are imported by the defence forces of certain overseas countries.

New paragraph 13B(3B)(a) provides that to satisfy subregulation 13(3B) and therefore be exempt from the prohibited export controls, a defence force of a country listed under paragraph (a) must be the owner of the specified goods.

New paragraph 13B(3B)(h) provides that to satisfy subregulation 13B(3B) and therefore be exempt from the prohibited export controls, the military goods to be exported by the visiting defence force that owns those goods must first have been imported into Australia by that defence force or by a member of that defence force to whom the goods were issued. This ensures that defence related goods purchased in Australia by the visiting defence force or its members are still subject to the export controls.

New paragraph 13B(3B)(c) provides that to satisfy subregulation 13B(3B) and therefore be exempt from the prohibited export controls, the military goods are to be exported by the defence force that owns the goods or by a member of that defence force to whom the goods were issued.

Subregulation 3.1 adds to the end of subregulation 13E(2) new paragraph (c) so that the goods specified in the strategic goods list, which is a document published by the Minister for Defence entitled "Australian Controls on the Export of Technology with Civil and Military Applications" and which is dated November 1994, are not prohibited exports provided that the conditions in new paragraph (c), below, are satisfied.

New subparagraph 13E(2)(c)(i) provides that the goods in the strategic goods list are not prohibited exports where the owner of such goods is the defence force of one of the listed "favoured" nations, and provided that subparagraphs (ii) and (iii), below, are complied with.

New subparagraph 13E(2)(c)(ii) imposes the condition that the goods in the strategic goods list must have been imported into Australia by the defence force which owns the goods, or by a member of that defence force to whom the goods were issued.

New subparagraph 13E(2)(c)(iii) requires that the goods in the strategic goods list must be exported by the defence force which owns the goods, or by a member of that defence force to whom the goods were issued.

The regulations commenced on gazettal.

Authority: Section 112 of the Customs Act 1901