EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 42
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Legislation Amendment Regulation 2013 (No. 2)
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 (Prohibited Exports) Regulations 1958 (the Exports Regulations) and the Customs (Prohibited Imports) Regulations 1956 (the Imports Regulations) to extend the export controls on goods that are the subject of the Autonomous Sanctions Regulations 2011 (Sanctions Regulations) and to introduce new import controls on goods that are also the subject of new controls under the Sanctions Regulations. These amendments do not widen the class of goods that are covered by the Sanctions Regulations. They merely allow the enforcement regime under the Act to apply in relation to such goods that cross the Australian border.
The Sanctions Regulations are made under the Autonomous Sanctions Act 2011 (Sanctions Act). The Sanctions Act allows Australia to unilaterally implement punitive measures as a matter of foreign policy in situations of international concern. These measures are to be distinguished from giving effect to Australia’s international obligations under United Nations Security Council decisions.
Amendments to the Exports Regulations
Subregulations 4(2) and (3) of the Sanctions Regulations provide that the supply, sale or transfer of goods that are export sanctioned goods in relation to particular countries is a sanctioned supply. Under regulation 12 of the Sanctions Regulations, there is a prohibition against making a sanctioned supply that is not an authorised supply under regulation 18 of the Sanctions Regulations.
Under regulation 11 of the Exports Regulations, the exportation of export sanctioned goods to which subregulations 4(2) and 4(3) of the Sanctions Regulations apply is prohibited. Goods whose exportation is prohibited under the Exports Regulations are prohibited exports. This means officers of Customs can seize such goods without a warrant when they are in a Customs place. There are also offences in the Act that apply to the exportation of prohibited exports.
Regulation 4 of the Sanctions Regulations was amended in August 2012 by the Autonomous Sanctions Amendment Regulation 2012 (No. 1). This Regulation introduced a new category of goods in subregulation 4(4), being gold, precious metals and diamonds that are to be transferred to the government of Iran or Syria or any public body, corporation or agency of these governments. There is a prohibition against the supply of these goods in these circumstances that is not an authorised supply.
The amending Regulation amends regulation 11 of the Exports Regulations to complement the new controls on the goods referred to in subregulation 4(4) of the Sanctions Regulations, in the same way that regulation 11 of the Exports Regulations complements the controls on export sanctioned goods in subregulations 4(2) and 4(3) of the Sanctions Regulations. The amendments to the Exports Regulations prohibit the exportation from Australia of export sanctioned goods covered by new subregulation 4(4) of the Sanctions Regulation where the exportation is not authorised under regulation 18 of the Sanctions Regulations.
Amendments to the Imports Regulations
The August 2012 amendments to the Sanctions Regulations also introduced new controls on the importation of certain goods in certain circumstances. New subregulation 4A(1) of the Sanctions Regulations provides that the importation of goods that are import sanctioned goods in relation to Iran or Syria is a sanctioned import. New subregulation 4A(4) also provides that the importation of gold, precious metals and diamonds from the government of Iran or Syria or any public body, corporation or agency of these governments is a sanctioned import. Under new regulation 12A of the Sanctions Regulations, there is a prohibition against making a sanctioned import that is not an authorised import under regulation 18 of the Sanctions Regulations.
The amending Regulation introduces new regulation 4XA in the Import Regulations to complement the import controls on the goods referred to in new regulation 4A of the Sanctions Regulations. New regulation 4XA prohibits the importation into Australia (where the importation is not authorised under regulation 18 of the Sanctions Regulations) of:
(a) import sanctioned goods covered by new subregulation 4A(1) of the Sanctions
Regulations; and
(b) goods to which new subregulation 4A(4) of the Sanctions Regulations apply.
Goods whose importation is prohibited under the Imports Regulations are prohibited imports. This means officers of Customs can seize such goods without a warrant when they are in a Customs place. There are also offences in the Act that apply to the importation of prohibited imports.
No consultation was undertaken in relation to the amending Regulation. However, industry consultation was undertaken in relation to the Sanctions Regulations.
The amending Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs Legislation Amendment Regulation 2013 (No. 2)
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 (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958 to extend the export controls on goods that are the subject of the Autonomous Sanctions Regulations 2011 (Sanctions Regulations) and to introduce new import controls on goods that are also the subject of new controls under the Sanctions Regulations. The Sanctions Regulations are made under the Autonomous Sanctions Act 2011 (Sanctions Act). The Sanctions Act allows Australia to unilaterally implement punitive measures as a matter of foreign policy in situations of international concern. These measures are to be distinguished from giving effect to Australia’s international obligations under United Nations Security Council decisions.
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