EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 119
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulation 2012 (No. 1)
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.
The purpose of the Regulation is to amend Schedule 15 to the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) to ensure the Principal Regulations are consistent with the Government’s Clean Energy Future Plan.
Australia is a party to the Montreal Protocol on Substances that Deplete the Ozone Layer which is an international treaty for the prevention of illegal trade in
ozone-depleting substances and products that contain ozone-depleting substances. As a result, the Ozone Protection Act 1989 provides for the prohibition of the manufacture, import and export of ozone-depleting substances. This Act was amended in 2003, to become the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM Act).
To support the administration and enforcement of controls set out in the OPSGGM Act, regulation 13F of the Principal Regulations prohibits the export of certain ozone-depleting substances and synthetic greenhouse gases unless one of the exceptions in that regulation applies. The main exception is where the exporter has a licence to export such goods granted under section 16 of the OPSGGM Act. The prohibition in 13F relates to substances listed in Schedule 15 of the Principal Regulations.
On 10 July 2011, the Government released the Clean Energy Future Plan, including an equivalent Carbon Pricing Mechanism. As part of this, an equivalent carbon price will be imposed on synthetic greenhouse gases using the existing controls under the OPSGGM Act and the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995.
The Regulation adds the synthetic gas sulfur hexafluoride (SF6) to Schedule 15 to the Principal Regulations to ensure its export is regulated. In effect, this will mean that a person will not be able to export sulfur hexafluoride without a licence under the OPSGGM Act. This will ensure consistency with the Government’s Clean Energy Future Plan.
This Regulation forms part of the Clean Energy Future Plan. Industry consultation in relation to the Clean Energy Future Plan was conducted by the Department of Sustainability, Environment, Water, Populations and Communities.
The Regulation commences on 1 July 2012, the same date that the Clean Energy Future Plan commences.
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs (Prohibited Exports) Amendment Regulation 2012 (No. 1)
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
This Regulation amends the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) to allow regulation of the export of sulfur hexafluoride consistent with the Government’s Clean Energy Future Plan.
The Regulation commences on 1 July 2012.
Human Rights implicationns
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
Overview
The Customs (Prohibited Exports) Amendment Regulation 2012 (No. 1) was introduced to align the Customs (Prohibited Exports) Regulations 1958 with Australia's Clean Energy Future Plan, particularly in relation to the regulation of synthetic greenhouse gases. This amendment was enacted by the Minister for Home Affairs and is part of Australia's commitment to the Montreal Protocol on Substances that Deplete the Ozone Layer, and more specifically, the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. The primary objective of this regulation is to ensure that the export of synthetic gases such as sulfur hexafluoride is subject to the necessary licensing requirements, thereby supporting the administration and enforcement of Australia's carbon pricing mechanism as outlined in the Clean Energy Future Plan. The regulation took effect on 1 July 2012 and does not impact human rights as recognised in international instruments.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulation 2012 (No. 1) amends the Customs (Prohibited Exports) Regulations 1958 to align with Australia's commitment under the Montreal Protocol and the Clean Energy Future Plan. It applies to all individuals and entities involved in the export of sulfur hexafluoride, a synthetic greenhouse gas, and is designed to ensure that such exports are regulated in accordance with the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. The regulation extends to all of Australia and is effective from 1 July 2012. It applies to any person or entity exporting sulfur hexafluoride without a valid licence under the Ozone Protection and Synthetic Greenhouse Gas Management Act, which is necessary to ensure compliance with the Clean Energy Future Plan. The regulation does not specify any exclusions or exemptions, but the scope of its application may be further defined through subordinate instruments as necessary.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulation 2012 (No. 1) (the Regulation) amends Schedule 15 of the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) (sections 3 and 4). The primary change is the addition of the synthetic gas sulfur hexafluoride (SF6) to Schedule 15 (section 3). This amendment ensures that the export of sulfur hexafluoride is regulated in alignment with the Clean Energy Future Plan (section 1). By incorporating SF6 into the list of prohibited exports, the Regulation mandates that any person seeking to export this substance must hold a licence under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM Act) (regulation 13F of the Principal Regulations).
Entities and individuals subject to the Regulation must ensure compliance with the amended requirements concerning the export of sulfur hexafluoride. This involves obtaining the necessary licence under the OPSGGM Act before engaging in any export activities involving SF6 (regulation 13F). Failure to comply with these regulations could result in significant legal and financial repercussions. The addition of SF6 to Schedule 15 means that any attempt to export this substance without the requisite licence is prohibited and can lead to enforcement actions by the Customs Department.
The Regulation also stipulates potential penalties and consequences for non-compliance. Offences involving the unauthorised export of sulfur hexafluoride may result in civil and criminal penalties. The specific penalties are detailed in the OPSGGM Act and the Customs Act 1901. Under the OPSGGM Act, individuals or entities found guilty of contravening the export prohibitions may face substantial fines and, in severe cases, imprisonment. The exact penalties depend on the nature and extent of the breach but can include fines of up to $1.1 million for corporations and up to $220,000 for individuals, along with potential imprisonment terms. These stringent measures underscore the importance of adhering to the regulatory requirements governing the export of ozone-depleting substances and synthetic greenhouse gases.