Customs (Prohibited Exports) Amendment Regulations 2003 (No. 2) (Cth)

Customs (Prohibited Exports) Amendment Regulations 2003 (No. 2)1
Statutory Rules 2003 No. 442

I, PETER JOHN HOLLINGWORTH, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Customs Act 1901.
Dated 27 March 2003
PETER HOLLINGWORTH
Governor-General
By His Excellency’s Command
CHRISTOPHER MARTIN ELLISON
Minister for Justice and Customs

1Name of Regulations

These Regulations are the Customs (Prohibited Exports) Amendment Regulations 2003 (No. 2).

2Commencement

These Regulations commence on gazettal.
3Amendment of Customs (Prohibited Exports) Regulations 1958
Schedule 1 amends the Customs (Prohibited Exports) Regulations 1958.

Schedule 1Amendment

(regulation 3)

[1]Regulation 7

substitute

7Exportation of human embryos

(1)
In this regulation:
accredited ART centre has the meaning given by section 8 of the Research Involving Human Embryos Act 2002.
prospective mother has the meaning given by subregulation (2).
relevant agreement and relevant woman have the meaning given by subregulation (3).
spouse has the meaning given by section 7 of the Research Involving Human Embryos Act 2002.
storage centre, in relation to a human embryo, means the accredited ART centre at which the embryo is being stored.
valuable consideration, in relation to a relevant agreement, includes any inducement, or discount or priority in the provision of a service, to be provided to the relevant woman or to another person, but does not include the payment of reasonable expenses incurred by the relevant woman in connection with fulfilling the agreement.
(2)
A woman is the prospective mother in relation to a human embryo if:
(a)
the embryo was created for her (whether or not she provided the egg from which the embryo was created); or
(b)
the embryo was created for another woman who donated the embryo to her; or
(c)
the embryo was created for another woman who has died, and the embryo was donated to her consistently with an advance directive signed by the other woman.
(3)
For this regulation, a relevant agreement in relation to a human embryo is an agreement that:
(a)
was made between:
(i)
one of:
(A)
if the prospective mother has a spouse — the prospective mother and her spouse; and
(B)
if the prospective mother has no spouse — the prospective mother; and
(C)
if the prospective mother died before the making of the agreement — the person who was the spouse of the prospective mother at the time that the embryo was created or donated; and
(ii)
another woman (the relevant woman in relation to the embryo); and
(b)
is to the effect that the embryo will, if necessary to achieve her pregnancy, be implanted in the relevant woman, and that a child resulting from the pregnancy will be adopted and brought up by:
(i)
the prospective mother and her spouse, if any; or
(ii)
if the prospective mother died before the making of the agreement — the person who was the spouse of the prospective mother at the time that the embryo was created or donated.
(4)
The exportation from Australia of a human embryo is prohibited unless:
(a)
permission to export the embryo has been granted under this regulation and is in force; and
(b)
the permission is produced to the Collector.
(5)
An application for permission to export a human embryo whose prospective mother is alive:
(a)
must be in writing; and
(b)
must be lodged with the Minister; and
(c)
may be made only by the prospective mother; and
(d)
must be accompanied by a statement from each of the following persons, to the effect that the embryo is being exported for the purpose of implantation in the prospective mother or a relevant woman, if necessary to achieve her pregnancy:
(i)
the prospective mother;
(ii)
the spouse, if any, of the prospective mother;
(iii)
the director of the storage centre;
(iv)
the medical practitioner in the country to which the embryo is being exported who will be responsible for the storage of the embryo; and
(e)
must be accompanied by a copy of the relevant agreement, if any.
(6)
An application for permission to export a human embryo whose prospective mother has died:
(a)
must be in writing; and
(b)
must be lodged with the Minister; and
(c)
may be made only by the person who was the spouse of the prospective mother at the time that the embryo was created or donated; and
(d)
must be accompanied by:
(i)
a statement from the director of the storage centre that the prospective mother signed an advance directive as to what should happen to the embryo in the event of her death, and that the proposed exportation is consistent with the directive; and
(ii)
a copy of the advance directive; and
(iii)
a statement from the director of the storage centre that the embryo:
(A)
was created at an accredited ART centre for implantation in the prospective mother; or
(B)
was created at an accredited ART centre and was donated to the prospective mother; and
(e)
must be accompanied by a statement from each of the following persons, to the effect that the embryo is being exported for the purpose of implantation in a relevant woman, if necessary to achieve her pregnancy:
(i)
the spouse mentioned in paragraph (c);
(ii)
the director of the storage centre;
(iii)
the medical practitioner in the country to which the embryo is being exported who will be responsible for the storage of the embryo; and
(f)
must be accompanied by a copy of the relevant agreement.
(7)
An application for permission to export a human embryo that is made in relation to a prospective mother to whom paragraph (2) (b) applies must also be accompanied by a statement from the prospective mother (for an application made under subregulation (5)) or the spouse mentioned in paragraph (6) (c) (for an application made under subregulation (6)) setting out the circumstances of the donation of the embryo.
(8)
An application for permission to export a human embryo that is made in relation to a prospective mother to whom paragraph (2) (c) applies must also be accompanied by:
(a)
a statement from the director of the storage centre that the woman for whom the embryo was created signed an advance directive as to what should happen to the embryo in the event of her death, and that the embryo was donated to the prospective mother consistently with the directive; and
(b)
a copy of the advance directive mentioned in paragraph (2) (c).
(9)
The Minister may require a statement for paragraph (5) (d), or (6) (d) or (e) to be in the form of a statutory declaration, or another document with a similar effect under the law of the country in which it is made.
(10)
Subject to this regulation, the Minister may grant a permission if the Minister is satisfied that the embryo will, if necessary to achieve her pregnancy, be implanted in the prospective mother.
(11)
Subject to this regulation, the Minister may grant a permission if the Minister is satisfied that:
(a)
the embryo will, if necessary to achieve the pregnancy of a relevant woman under a relevant agreement, be implanted in the relevant woman; and
(b)
either:
(i)
the agreement was made, or negotiations for the agreement were entered into, before 27 March 2003; or
(ii)
the agreement does not provide for any valuable consideration; and
(c)
if the prospective mother has died at the time of the application — the application and the agreement are consistent with the advance directive mentioned in subparagraph (6) (d) (ii).
(12)
Notice of the grant of a permission:
(a)
must be in writing; and
(b)
may specify a condition or requirement that must be complied with by the person to whom the permission is granted.
(13)
If the Minister refuses to grant an application for a permission, he or she must notify the applicant in writing accordingly.
(14)
The Minister may revoke a permission by notice in writing to the holder of the permission, if:
(a)
the holder fails to comply with a condition or requirement specified in the permission, whether or not the holder is charged under subsection 112 (2B) of the Act with failure to comply with the condition or requirement; or
(b)
the holder of the permission is convicted under that subsection for failure to comply with the condition or requirement.
(15)
The Minister must, as soon as practicable after 30 June and 31 December in a year, lay before each House of the Parliament a report setting out information about permissions granted under this regulation in the previous 6 months, being information of a statistical character that does not permit the identification of individuals.
(16)
This regulation ceases to have effect at the end of the day 12 months after it commences.

Notes

1. These Regulations amend Statutory Rules 1958 No. 5, as amended by 1959 No. 5; 1961 Nos. 16 and 112; 1963 Nos. 129 and 130; 1964 No. 144; 1965 No. 136; 1966 Nos. 70 and 75; 1967 Nos. 42, 59 and 123; 1968 Nos. 46, 83, 101, 153, 160 and 162; 1969 Nos. 11, 21, 22 and 219; 1970 Nos. 34, 68, 89, 106 and 121; 1972 No. 210; 1973 Nos. 4, 7, 39, 74, 102, 138, 218 and 248; 1974 Nos. 46, 157, 178 and 250; 1975 Nos. 19, 44, 45, 173 and 224; 1976 Nos. 169 and 233; 1977 No. 89; 1978 Nos. 14, 58, 59 and 277; 1979 Nos. 160 and 237; 1980 Nos. 21, 61, 72, 76, 82, 99, 110, 212, 273, 358, 381 and 383; 1981 Nos. 49, 72, 86, 149, 225, 251 and 324; 1982 Nos. 169, 171 and 310; 1983 No. 272; 1984 Nos. 35, 63, 191, 262, 263 and 316; 1985 Nos. 1, 68, 138 and 378; 1986 Nos. 76, 89, 177, 178, 328, 364, 365, 366 and 388; 1987 Nos. 97, 115, 156, 176, 301, 317, 318 and 319; 1988 Nos. 65, 178, 195 and 361; 1989 Nos. 57, 59, 196, 264 and 388; 1990 Nos. 125, 146, 190, 264, 333 and 438; 1991 Nos. 24, 77, 118, 288 and 413; 1992 Nos. 61, 83, 103, 155, 412 and 414; 1993 Nos. 68, 212, 258 and 322; 1994 Nos. 32, 143, 172, 242, 313, 379, 392 and 417; 1995 Nos. 71 and 90; 1996 Nos. 32, 47, 48, 49, 50 (Statutory Rules 1996 Nos. 47, 48, 49 and 50 were disallowed by the Senate on 23 May 1996), 69, 225, 281 and 282; 1997 Nos. 30, 31, 32, 33, 380, 381, 382 and 383; 1998 No. 211; 1999 Nos. 9, 164, 200, 216, 248, 274 and 331; 2000 Nos. 211 and 212; 2001 No. 171; 2002 Nos. 29, 139, 204, 205 and 330; 2003 No. 17.
2. Notified in the Commonwealth of Australia Gazette