EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 21
Issued by the Authority of the Minister for Foreign Affairs for the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2008 (No. 2)
Section 270 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 by which the Act is required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act.
The Regulations amend the Customs Regulations 1926 (the Principal Regulations) to implement amendments to the Act made by the International Trade Integrity Act 2007 (the Integrity Act).
On 24 September 2007, the Integrity Act received Royal Assent. Schedule 1 to the Integrity Act will commence on 24 March 2008 and amends the Act to introduce new criminal offences for importing or exporting goods that are the subject of sanctions imposed by the United Nations (UN-sanctioned goods) without permission and to introduce a new criminal offence for providing information that is false or misleading in an application for a permission to import or export UN-sanctioned goods.
New section 233BABAA of the Act, which will be inserted into the Act by the Integrity Act, provides that the regulations may prescribe goods as UN-sanctioned goods.
Subsection 233BABAA(3) of the Act provides that the regulations must not specify a good as a UN-sanctioned good unless the good meets certain requirements. Firstly, the importation or exportation of the item must be prohibited by the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) or the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations). Secondly, the regulation prohibiting the importation or exportation must give effect to a decision of the Security Council made under Chapter VII of the Charter of the United Nations that Article 25 of the Charter requires Australia to carry out, in so far as that decision requires Australia to apply measures not involving the use of armed force.
The Regulations prescribe the goods which are UN-sanctioned goods. New regulation 179AAA provides that goods specified in column 2 of an item in Parts 1 and 2 of Schedule 1AB to the Principal Regulations are UN-sanctioned goods. New Schedule 1AB lists the categories of goods which are UN-sanctioned goods.
New Part 1 of Schedule 1AB to the Principal Regulations lists as UN-sanctioned goods those goods to which regulations 4N, 4Y and 4Z of the PI Regulations apply. These regulations, which give effect to decisions of the Security Council made under Chapter VII of the Charter of the United Nations, apply respectively to rough diamonds from Cote d'Ivoire, certain goods from the Democratic People's Republic of Korea and certain goods from Iran.
New Part 2 of Schedule 1AB to the Principal Regulations lists as UN-sanctioned goods those goods to which regulations 13CG, 13CH, 13CI, 13CJ, 13CK, 13CL, 13CM, 13CN, 13CO, 13CP, 13CQ and 13E of the PE Regulations apply. For goods covered by regulation 13E of the PE Regulations, only goods which are for, or are intended for, the immediate or final destination of Afghanistan, Cote d'Ivoire, Democratic People's Republic of Korea, Democratic Republic of Congo, Iran, Iraq, Lebanon, Liberia, Rwanda, Sierra Leone, Somalia or Sudan are UN-sanctioned goods.
Regulations 13CG, 13CH, 13CI, 13CJ, 13CK, 13CL, 13CM, 13CN, 13CO, 13CP, 13CQ and 13E of the PE Regulations give effect to decisions of the Security Council made under Chapter VII of the United Nations and apply to the exportation of:
— paramilitary equipment to Sierra Leone (regulation 13CH);
— arms or related materiel to Afghanistan, Liberia, Democratic Republic of the Congo, Sudan, Cote d'Ivoire, Democratic People's Republic of Korea and Lebanon (regulations 13CI, 13CK, 13CL, 13CM, 13CN, 13CO and 13CP respectively);
— acetic anhydride to Afghanistan (regulation 13CJ);
— certain goods to Iran and Rwanda (regulations 13CQ and 13CG respectively); and
— goods listed on the defence and strategic goods list (regulation 13E).
The effect of the Regulations is that the new criminal offence of importing or exporting UN-sanctioned goods, inserted into the Act by the Integrity Act, will apply to the importation or exportation of the above goods unless those goods were imported or exported into or from Australia in accordance with the requirements in the PI or PE Regulations. Where the PI or PE Regulations allow for the importation or exportation of those goods with the permission of the Minister for Foreign Affairs or an authorised person, the providing of false or misleading information in the application for the permission will be a criminal offence. This new criminal offence has been inserted into the Act by the Integrity Act.
Interdepartmental and public consultation were undertaken during the preparation of the Regulations. The Department of Foreign Affairs and Trade conducted briefing sessions on the Integrity Act, including the consequential amendments required for each of the regulations made under the Act, in each State and Territory capital between September and November 2007. The Department of Foreign Affairs and Trade has given industry-specific briefings to peak industry bodies assessed as most likely to be affected (the Australian Bankers Association, the Customs National Consultative Group and the Association of Minerals and Petroleum Lawyers). The Department of Foreign Affairs and Trade has also posted notices on the Department's website and on the business.gov.au consultation site inviting interested parties to provide written comments on the revised regulatory regime.
The Regulations commence on the commencement of Schedule 1 to the Integrity Act.
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