Commonwealth Numbered Regulations - Explanatory Statements

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Select Legislative Instrument 2009 No. 40


Issued by the Authority of the Minister for Home Affairs

Customs Act 1901

Customs (Prohibited Imports) Amendment Regulations 2009 (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 or as may be necessary or convenient to be prescribed for giving effect to the Act.

Section 50 of the Act provides that the Governor-General may, by regulation, prohibit the importation of goods into Australia. This power may be exercised by prohibiting the importation of goods absolutely, or by prohibiting the importation of goods unless specified conditions or restrictions are met.

The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of the goods specified in various regulations and Schedules.

The purpose of the amending Regulations is to amend the Principal Regulations to enable the Director General of the Australian Safeguards and Non-Proliferation Office (ASNO) to permit the importation of certain restricted chemicals.

Regulation 5J of the Principal Regulations prohibits the importation into Australia of goods containing chemical compounds, which can be used in chemical weapons, and which are listed in Schedule 11 to the Principal Regulations. Under subregulations 5J(2A) and (2AA), the written permission of the Minister for Foreign Affairs or an authorised person is required before goods mentioned in Parts 2, 3 or 4 of Schedule 11 can be imported.

Under subregulation 5J(1), an authorised person is an officer or employee of the Department of Foreign Affairs and Trade (the Department) authorised in writing by the Minister for Foreign Affairs (the Minister) to give permission for the purposes of regulation 5J.

Regulation 5J is administered by ASNO within the Department. ASNO is headed by the Director General, who is a statutory office holder under section 42 of the Nuclear Non-Proliferation (Safeguards) Act 1987.

The Minister has been unable to authorise the Director General of ASNO under subregulation 5J(1) to give permissions, as the position is occupied by a statutory office holder, whereas the definition of "authorised person" has only extended to officers or employees of the Department.

The amending Regulations amend subregulation 5J(1) so that the definition of "authorised person" also includes a person holding a statutory office established under legislation for which the Minister is responsible. The amending Regulations enable the Minister to authorise the Director General position, which is the most senior position in ASNO, to give permissions for the purposes of regulation 5J.

The amending Regulations also amend the definition of "authorised person" so that the definition refers to an APS employee or an SES employee of the Department, instead of an officer or employee of the Department. This amendment ensures that the terminology used in the definition is consistent with the terminology used in the Public Service Act 1999 and the Acts Interpretation Act 1901.

The amending Regulations also amend subregulation 5J(2B) of the Principal Regulations to correct a minor typographical error. In that subregulation, the reference to "Non-proliferation" is changed to "Non-Proliferation".

No consultation was undertaken specifically in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.

The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.




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