EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 276
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulation 2012 (No. 9)
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.
The purpose of the Amending Regulation is to amend the Customs Regulations 1926 (the Principal Regulations) to prescribe the methods by which a notice prohibiting the exportation of goods under new section 112BA of the Act is to be given, and the time at which such a notice is taken to have been received.
New section 112BA of the Act was inserted into the Act by the Customs Amendment (Military End-Use) Act 2012 (the MEU Act). The MEU Act received the Royal Assent on 13 November 2012 and commenced on 14 November 2012. New section 112BA contains a new power whereby the Minister for Defence may give a notice to a person prohibiting the exportation of goods from Australia. This power may be exercised if the Minister for Defence suspects that if particular goods were exported by a person to a particular place or particular person, the goods would or may be for a military end-use that would prejudice the security, defence or international relations of Australia.
The notice comes into force at the time the person to whom it is given receives the notice. It is an offence to export goods in contravention of the notice. If a person seeks to export goods in contravention of a notice, the goods can be seized without a warrant by officers of Customs at the border.
This power is intended to reinforce Australia’s export controls, by providing authority for intervention at the border of goods not otherwise regulated, but nonetheless potentially being exported for a military end-use contrary to Australia’s national interest. This power may not be exercised in relation to goods whose exportation is prohibited under the Customs (Prohibited Exports) Regulations 1958.
Under new section 112BB of the Act, also inserted by the MEU Act, the notice must be given by one of the methods prescribed in the regulations. The person to whom the notice is given is also taken to have received the notice at the time that is prescribed by the regulations.
The Amending Regulation inserts new regulation 96B in the Principal Regulations. Regulation 96B prescribes the methods by which a notice can be given. The Amending Regulation provides that the notice may be given personally, may be posted by registered mail, or may be sent by fax, email or other electronic means.
New regulation 96B also prescribes the time at which a person is taken to have received a notice. This time depends on the method by which the notice is given. For example, a notice that is given personally is taken to be received at the time at which it is given to the person.
No consultation was undertaken in relation to the Amending Regulation as it is minor and machinery in nature.
The Amending Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
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Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs Amendment Regulation 2012 (No. 9)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
The Regulation amends the Customs Regulations 1926 (the Principal Regulations) to prescribe the methods by which a notice prohibiting the exportation of goods under new section 112BA of the Customs Act 1901 (the Act) is to be given, and the time at which such a notice is taken to have been received.
New section 112BA of the Act was inserted into the Act by the Customs Amendment (Military End-Use) Act 2012 (the MEU Act). The MEU Act received the Royal Assent on 13 November 2012 and commenced on 14 November 2012. New section 112BA contains a new power whereby the Minister for Defence may give a notice to a person prohibiting the exportation of goods from Australia. This power may be exercised if the Minister for Defence suspects that if particular goods were exported by a person to a particular place or particular person, the goods would or may be for a military end-use that would prejudice the security, defence or international relations of Australia.
The Regulation commences on the day after it is registered.
Human Rights implications
This legislative instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
This legislative instrument does not raise any human rights issues.
Minister for Home Affairs