EXPLANATORY STATEMENT
SELECT LEGISLATIVE INSTRUMENT NO. 13, 2015
Issued by the Authority of the Minister for Immigration and Border Protection
Customs Act 1901
Customs (Prohibited Exports) Amendment (Chemicals) Regulation 2015
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 or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to Customs.
In particular, section 112 of the Act allows the Governor-General to make regulations which prohibit the exportation of goods from Australia.
Regulation 4A of the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) prohibits the exportation of chemicals mentioned in Schedule 2 of those regulations unless written permission has been granted:
- under the Agricultural and Veterinary Chemicals (Administration) Regulations 1995 for chemicals which are an active constituent or chemical product as defined in the Agricultural and Veterinary Chemicals Code Act 1994; or
- in any other case by the Minister for Agriculture or an authorised officer of the Department of Agriculture, and
the permission is produced to a Collector of Customs.
This Regulation adds a pesticide chemical, azinphos‑methyl (Chemical Abstracts Service (CAS) Registry Number 86-50-0), to Schedule 2 of the Principal Regulations to regulate its exportation from Australia under regulation 4A.
In 2013, azinphos‑methyl (CAS Registry Number 86-50-0), was added to Annex III of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention).
The Rotterdam Convention (to which Australia is a party) is an international treaty promoting shared responsibility and cooperative efforts in the international trade of certain hazardous chemicals. Annex III chemicals are subject to the Convention’s Prior Informed Consent Procedure, which provides for information exchange regarding the import and export of those chemicals. It aims to ensure that countries do not export listed chemicals to other countries that have not provided their consent to receive them. It does not require chemicals to be banned or phased out and does not alter domestic regulatory decisions on the chemicals.
To ensure Australia meets its obligations under the Rotterdam Convention, this Regulation adds azinphos‑methyl (CAS Registry Number 86-50-0) to Schedule 2 of the Principal Regulations to regulate its exportation from Australia.
The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.
No formal consultation was undertaken in relation to the Regulation as it is minor or machinery in nature and does not substantially alter existing arrangements.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
OPC60991-C
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs (Prohibited Exports) Amendment (Chemicals) Regulation 2015
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 adds a pesticide chemical, azinphos‑methyl (Chemical Abstracts Service (CAS) Registry Number 86-50-0), to Schedule 2 of the Customs (Prohibited Exports) Regulations 1958. This will regulate its exportation from Australia under regulation 4A and ensure that Australia meets its obligations under the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
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 Immigration and Border Protection
Overview
The Customs (Prohibited Exports) Amendment (Chemicals) Regulation 2015 was enacted to address the need for Australia to comply with its international obligations under the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. This amendment, made under the authority of the Customs Act 1901, ensures that Australia meets its commitments by regulating the exportation of hazardous chemicals, specifically the pesticide azinphos-methyl, which was added to Annex III of the Rotterdam Convention in 2013. The regulation aims to prevent the export of listed chemicals to countries that have not provided their consent to receive them, thereby facilitating informed decision-making in international trade. The amendment was issued by the Minister for Immigration and Border Protection and does not substantially alter existing arrangements or engage with human rights issues as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011.
Scope and Application
The Customs (Prohibited Exports) Amendment (Chemicals) Regulation 2015 pertains to the regulation of the exportation of specific chemicals from Australia, particularly azinphos-methyl, which is identified by its Chemical Abstracts Service (CAS) Registry Number 86-50-0. This regulation applies to any person or entity seeking to export the specified chemical from Australia, ensuring that they comply with the requirements set out under the Customs Act 1901. The amendment adds azinphos-methyl to Schedule 2 of the Customs (Prohibited Exports) Regulations 1958, thereby prohibiting its export unless written permission is obtained from the Minister for Agriculture or an authorised officer of the Department of Agriculture. This regulatory measure aligns Australia with its commitments under the Rotterdam Convention, which aims to facilitate information exchange about the export and import of hazardous chemicals and pesticides. The regulation has a national jurisdictional reach and applies throughout Australia, ensuring compliance with international obligations while regulating the export of potentially harmful substances. There are no exclusions or exemptions specified in the regulation, and its implementation does not substantially alter existing arrangements.
Key Provisions
The Customs (Prohibited Exports) Amendment (Chemicals) Regulation 2015 introduces significant changes to the Customs (Prohibited Exports) Regulations 1958 by adding a specific chemical, azinphos-methyl (CAS Registry Number 86-50-0), to Schedule 2. This addition means that the exportation of azinphos-methyl from Australia is now subject to regulation under regulation 4A of the Principal Regulations (section 112 of the Customs Act 1901). Essentially, this requires any person seeking to export azinphos-methyl to obtain written permission from the Minister for Agriculture or an authorised officer of the Department of Agriculture. This permission must then be presented to a Collector of Customs as part of the export process.
The primary obligations imposed by this Regulation on the parties involved revolve around ensuring compliance with the new export restrictions. Exporters must secure the necessary written permission before attempting to export azinphos-methyl. Failure to comply with this requirement could lead to the seizure of the goods by Customs officials and subsequent legal action. Additionally, the Minister for Agriculture or an authorised officer has the authority to enforce these regulations and may take action against non-compliance.
Should a person or entity breach these provisions, they could face significant consequences. While the explanatory statement does not detail specific offences or penalties, breaches of the Customs Act 1901 and its subsidiary regulations can generally lead to both civil and criminal penalties. Civil penalties might include fines, while criminal penalties could result in imprisonment, depending on the severity and intent of the breach. The exact penalties would be determined in the context of the court proceedings, but they can be substantial given the regulatory framework's intent to control hazardous chemical exports.
The inclusion of azinphos-methyl in Schedule 2 aligns Australia with its international obligations under the Rotterdam Convention. This convention aims to ensure that countries do not export listed chemicals to other countries that have not provided their consent to receive them. By implementing this regulation, Australia demonstrates its commitment to the shared responsibility and cooperative efforts in the international trade of hazardous chemicals. This regulation, while minor and machinery in nature, ensures that Australia continues to meet its international obligations and contributes to global efforts to manage the risks associated with hazardous chemical exports.