EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 17
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2011 (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.
The amending Regulations amend the Customs Regulations 1926 (the Principal Regulations) to support a recent United Nations Security Council decision against the Libyan Arab Jamahiriya (Libya) under United Nations Security Council Resolution 1970 (2011) which was adopted on 26 February 2011 (the Resolution).
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 Libya apply.
The amending Regulations prescribe as UN-sanctioned goods those goods to which:
a) new regulation 4ZB of the PI Regulations applies; and
b) new regulation 13CS 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, Libya.
New regulation 4ZB of the PI Regulations and new regulation 13CS of the PE Regulations give effect to the arms embargo against Libya imposed under United Nations Security Council Resolution 1970 (2011) which was adopted on 26 February 2011 (the Resolution). New regulation 4ZB of the PI Regulations prohibits the importation into Australia from Libya of arms or related matériel. New regulation 13CS 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 Libya.
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 2011 (No. 1) were enacted to address the problem of ensuring compliance with a United Nations Security Council decision against the Libyan Arab Jamahiriya under United Nations Security Council Resolution 1970 (2011). This legislative instrument was issued by the Minister for Home Affairs under the authority of Section 270 of the Customs Act 1901. The policy objective of these amending regulations was to update the Customs Regulations 1926 to include certain goods as United Nations sanctioned goods, specifically in response to the arms embargo on Libya. The regulations prescribe these goods in accordance with new provisions in the Customs (Prohibited Imports) Regulations 1956 and Customs (Prohibited Exports) Regulations 1958 that relate to Libya, thus aligning Australia's customs laws with international obligations. The regulations came into effect on the day after their registration on the Federal Register of Legislative Instruments.
Scope and Application
The Customs Amendment Regulations 2011 (No. 1) serve to implement Australia’s commitment to United Nations Security Council Resolution 1970 (2011) concerning Libya by amending the Customs Regulations 1926. This legislative instrument applies to the importation and exportation of goods that are subject to trade sanctions under United Nations Security Council resolutions, specifically identifying certain goods related to the arms embargo against Libya as United Nations-sanctioned goods. The Regulations are applicable to any person or entity engaged in the importation or exportation of these goods within Australia’s jurisdiction. The geographic scope of these Regulations is national, with the provisions extending to all activities occurring within Australia’s borders, affecting both individuals and corporate entities involved in the specified trade activities. The Regulations do not specify any exclusions, exemptions, or thresholds, and their application is straightforward without additional subordinate instruments extending or restricting their reach. These Regulations are designed to align with Australia’s international obligations by enforcing the embargo against Libya in accordance with the United Nations’ directives.
Key Provisions
The Customs Amendment Regulations 2011 (No. 1) introduce specific amendments to the Customs Regulations 1926, focusing on designating certain goods as United Nations (UN)-sanctioned goods in response to the United Nations Security Council Resolution 1970 (2011) concerning Libya. According to Section 233BABAA of the Customs Act 1901, these regulations are empowered to prescribe goods as UN-sanctioned goods under specific conditions, particularly where such goods are subject to trade sanctions under UNSC resolutions. The primary sections involved are Sections 233BABAB and 233BABAC, which criminalise the importation and exportation of UN-sanctioned goods.
The obligations imposed by these amendments primarily focus on the designation and enforcement of trade sanctions. For instance, the new regulations 4ZB in the Customs (Prohibited Imports) Regulations 1956 and 13CS in the Customs (Prohibited Exports) Regulations 1958, which are now incorporated into the Principal Regulations, explicitly prohibit the importation of arms and related matériel from Libya and the exportation of such items to Libya, respectively. Additionally, regulation 13E of the PE Regulations further restricts the exportation of certain arms and related matériel to Libya, even if these goods are listed in the defence and strategic goods list. These provisions ensure that Australia adheres to the international obligations laid out in the UNSC resolution, effectively implementing the arms embargo against Libya.
Failure to comply with these regulations can lead to serious consequences. The importation or exportation of UN-sanctioned goods, as now defined, is a criminal offence under Sections 233BABAB and 233BABAC of the Customs Act 1901. These sections impose strict penalties for violations, which can include significant fines and imprisonment. Specifically, the maximum penalty for importing or exporting UN-sanctioned goods can be up to 10,000 penalty units or imprisonment for up to 10 years, or both, depending on the severity and intent of the violation. Additionally, the regulations also empower customs officers to seize and detain goods that are suspected of being UN-sanctioned, thereby reinforcing the enforcement mechanisms against such activities.