EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 16
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2010 (No. 1)
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 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.
Sections 233BABAB and 233BABAC of the Act contain criminal offences in relation to the importation and exportation of United Nations sanctioned goods (UN-sanctioned goods). UN-sanctioned goods are goods that are subject to trade sanctions under United Nations Security Council (UNSC) Resolutions.
Section 233BABAA of the 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 UNSC decision in relation to action with respect to threats to peace, breaches to the peace and acts of aggression in so far as that decision requires the application of measures not involving the use of armed force.
Regulation 179AAA and Schedule 1AB to the Customs Regulations 1926 (the Principal Regulations) currently prescribe UN-sanctioned goods for the purposes of section 233BABAA.
The purpose of the amending Regulations is to prescribe as UN-sanctioned goods certain goods to which new provisions in the PI Regulations and PE Regulations relating to Eritrea apply.
The amending Regulations prescribe as UN-sanctioned goods those goods to which:
a) new regulation 4ZA of the PI Regulations applies; and
b) new regulation 13CR of the PE Regulations applies; and
c) regulation 13E of the PE Regulations applies if the immediate or final destination is, or intended to be, Eritrea.
New regulation 4ZA of the PI Regulations and new regulation 13CR of the PE Regulations give effect to the arms embargo against Eritrea imposed under United Nations Security Council Resolution 1907 (2009) which was adopted on 23 December 2009 (the Resolution). New regulation 4ZA of the PI Regulations prohibits the importation into Australia from Eritrea of arms or related matériel. New regulation 13CR of the PE Regulations prohibits the exportation from Australia of arms and related matériel (other than goods listed in the defence and strategic goods list mentioned in regulation 13E of the PE Regulations) the immediate or final destination of which is, or is intended to be, Eritrea.
No consultation was undertaken specifically in relation to the amending Regulations as they implement Australia’s international obligations under the Resolution.
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 2010 (No. 1), issued under the authority of the Minister for Home Affairs, were enacted to address the need for updating the Customs Regulations 1926 to incorporate new provisions pertaining to the import and export of United Nations (UN) sanctioned goods, specifically those related to Eritrea. This legislative instrument was necessary to align Australia's domestic laws with its obligations under United Nations Security Council Resolution 1907 (2009), which imposed an arms embargo on Eritrea. The primary policy objective of these regulations is to ensure that Australia's customs laws effectively enforce the international sanctions set by the UN, particularly the prohibition on the trade of arms and related materials to and from Eritrea.
The Customs Amendment Regulations 2010 (No. 1) were introduced to ensure consistency with the Customs Act 1901 and to implement the new provisions in the Customs (Prohibited Imports) Regulations 1956 and Customs (Prohibited Exports) Regulations 1958 concerning Eritrea. These regulations prescribe specific goods as UN-sanctioned goods, thereby making the import and export of these goods, particularly arms and related materials, illegal if they are subject to the embargo. By doing so, the regulations aim to uphold international peace and security by preventing the flow of prohibited goods to and from Eritrea, in accordance with the UN's measures to address threats to peace and acts of aggression.
Scope and Application
The Customs Amendment Regulations 2010 (No. 1) are a legislative instrument issued under the authority of the Minister for Home Affairs, amending the Customs Regulations 1926. The Regulations are specifically designed to align Australian customs laws with international obligations under United Nations Security Council Resolution 1907 (2009) by prescribing certain goods as United Nations-sanctioned goods. This applies to all entities and individuals engaged in the import or export of goods within Australia. The geographic scope of these Regulations is national, impacting all territories within Australia. The Regulations are necessary to implement the arms embargo against Eritrea, prohibiting the importation of arms or related matériel from Eritrea and the exportation of such items to Eritrea, except as permitted under specific defence and strategic goods provisions. These amendments extend the application of the Customs Act 1901 to ensure compliance with UNSC resolutions, thereby enforcing trade sanctions aimed at maintaining international peace and security. The Regulations are subject to exclusions based on specific listings under the defence and strategic goods lists, and they do not apply to goods not specified in the new regulations 4ZA and 13CR or where the destination is not Eritrea.
Key Provisions
The Customs Amendment Regulations 2010 (No. 1) (the amending Regulations) primarily address the identification and regulation of United Nations sanctioned goods, specifically those related to Eritrea. Under section 233BABAA(3) of the Customs Act 1901, the regulations mandate that goods can only be classified as UN-sanctioned if they meet certain criteria. Firstly, the importation or exportation of the item must be prohibited by either the Customs (Prohibited Imports) Regulations 1956 or the Customs (Prohibited Exports) Regulations 1958. Secondly, the prohibition must be in effect to give effect to a United Nations Security Council decision concerning threats to peace, breaches of peace, and acts of aggression, as far as that decision mandates measures not involving the use of armed force. The amending Regulations update the list of UN-sanctioned goods to include specific items subject to new provisions in the PI and PE Regulations relating to Eritrea.
The amending Regulations impose obligations on parties and entities to ensure compliance with the new classifications of UN-sanctioned goods. Specifically, any person involved in the importation or exportation of goods from or to Eritrea must verify that these goods do not fall under the newly designated categories. This includes adhering to new regulation 4ZA of the PI Regulations, which prohibits the importation of arms and related matériel from Eritrea into Australia, and new regulation 13CR of the PE Regulations, which prohibits the exportation of arms and related matériel from Australia to Eritrea, except for those listed in the defence and strategic goods list. Additionally, regulation 13E of the PE Regulations applies to goods destined for Eritrea, reinforcing the embargo on certain military items.
Failure to comply with the provisions of the amending Regulations can result in significant legal consequences. Under sections 233BABAB and 233BABAC of the Customs Act 1901, there are criminal offences associated with the importation and exportation of UN-sanctioned goods. A person who commits an offence under these sections is liable to a penalty. Specifically, for a corporation, the penalty can be up to 500 penalty units, and for an individual, the penalty can be up to 100 penalty units. The courts have the authority to impose these penalties, and in addition to fines, there may be other civil or criminal consequences depending on the severity and intent behind the breach. Compliance with these regulations is crucial to avoid such penalties and to uphold Australia's international obligations under relevant United Nations Security Council resolutions.