EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 186
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2009 (No. 3)
Section 270 of the Customs Act 1901 (the Customs Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Customs Act prescribing all matters necessary or convenient to give effect to the Customs Act.
The amending Regulations, which amend the Customs Regulations 1926 (the Principal Regulations), are consequential to amendments to the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) and the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations), which prohibit, without permission, the importation and exportation of viable materials derived from human embryo clones. The new import and export controls for viable material derived from human embryo clones is contained, respectively, in new regulation 5L of the PI Regulations and regulation 8A of the PE Regulations.
Section 233BAB of the Customs Act provides that it is an offence to import or export a tier 2 good which is prohibited absolutely or that requires an import or export approval if that approval has not been obtained. Part 2 of Schedule 1AA to the Principal Regulations lists the goods that are tier 2 goods. Item 13 in Part 2 of Schedule 1AA lists viable material derived from human embryo clones.
The amending Regulations substitute item 13 with a new item 13. New item 13 lists viable material derived from human embryo clones to which new regulation 5L of the PI Regulations and 8A of the PE Regulations applies. The amendment merely updates the reference in item 13 to the provisions in the PI Regulations and PE Regulations under which the importation and exportation of this viable material is controlled.
The amending Regulations also repeal item 12 of Part 2 of Schedule 1AA to the Principal Regulations. Item 12 of Part 2 lists human embryos as a tier 2 good if regulation 7 of the PI Regulations was in effect. As regulation 7 of the PI Regulations was repealed on 12 June 2007 by Schedule 4 to the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006, item 12 is redundant and therefore has been removed from Part 2 of Schedule 1AA.
With the repeal of item 12 of Part 2 of Schedule 1AA the term 'human embryo' is no longer used in the Principal Regulations. The amending Regulations omit the definition of 'human embryo' from subregulation 1A(1) of the Principal Regulations. The amending Regulations also update the definition for the term 'human embryo clone' in subregulation 1A(1) to reflect that the title to the Prohibition of Human Cloning Act 2002 was changed to the Prohibition of Human Cloning for Reproduction Act 2002 on 12 June 2007.
As the amending Regulations are consequential to amendments that insert new regulation 5L into the PI Regulations and regulation 8A into the PE Regulations and are of a minor and machinery nature, no consultation was undertaking in relation to the amending Regulations.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
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Overview
The Customs Amendment Regulations 2009 (No. 3) were enacted to update the Customs Regulations 1926 in response to legislative changes regarding human cloning. This select legislative instrument was issued under the authority of the Minister for Home Affairs and is consequential to amendments to the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958. These amendments introduced stricter controls on the importation and exportation of viable materials derived from human embryo clones, aligning with the legislative prohibitions set out in the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006. The primary objective of these regulations is to ensure that the importation and exportation of such materials are tightly regulated, reflecting the current legal framework and thereby facilitating compliance with national and international standards.
Scope and Application
The Customs Amendment Regulations 2009 (No. 3) pertain to the Customs Act 1901, extending its regulatory scope to address the import and export controls for viable materials derived from human embryo clones. These Regulations, consequential to amendments in the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958, ensure that the import and export of such materials are strictly controlled and require appropriate permissions. The Regulations apply to individuals and entities involved in the import or export of these materials, thereby impacting industries that might handle or transport these substances. Jurisdictionally, these Regulations are enforced under the Commonwealth, ensuring a uniform approach across Australia. The Regulations also include updates to the Principal Regulations to reflect legislative changes such as the repeal of certain provisions related to human embryos, thereby removing redundant references and aligning terminology with current laws. Notably, these Regulations do not extend to other prohibited imports or exports not specifically mentioned in the new regulations and are limited to the scope of the amendments they reference.
Key Provisions
The Customs Amendment Regulations 2009 (No. 3) amend the Customs Regulations 1926 to align with recent legislative changes concerning the prohibition of importing and exporting viable materials derived from human embryo clones (section 270 of the Customs Act 1901). Regulation 5L of the Customs (Prohibited Imports) Regulations 1956 and regulation 8A of the Customs (Prohibited Exports) Regulations 1958 establish the new import and export controls for these materials. The Customs Amendment Regulations also update item 13 in Part 2 of Schedule 1AA of the Customs Regulations 1926 to reflect these new regulatory provisions. Furthermore, item 12 of Part 2 of Schedule 1AA, which previously listed human embryos as a tier 2 good, has been repealed due to the termination of regulation 7 of the Customs (Prohibited Imports) Regulations 1956 on 12 June 2007.
The obligations imposed by these Regulations require that any importation or exportation of viable materials derived from human embryo clones must comply with the specified regulatory controls. These obligations necessitate obtaining the necessary approvals for such activities as stipulated in regulation 5L of the Customs (Prohibited Imports) Regulations 1956 and regulation 8A of the Customs (Prohibited Exports) Regulations 1958. Failure to comply with these controls can lead to serious consequences, including legal penalties.
Section 233BAB of the Customs Act 1901 establishes that importing or exporting a tier 2 good, such as viable materials derived from human embryo clones, without the appropriate approval constitutes an offence. The penalties for contravening these provisions are significant. For an individual, the maximum penalty is imprisonment for a term of up to 10 years or a fine of up to 10,000 penalty units, or both. For a body corporate, the maximum penalty is a fine of up to 50,000 penalty units. These stringent penalties underscore the importance of adhering to the regulatory framework governing the importation and exportation of these materials.