Customs (Prohibited Exports) Amendment Regulations 2004 (No. 1) 2004 No. 32
EXPLANATORY STATEMENT
STATUTORY RULES 2004 NO. 32
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2004 (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 other business relating to the Customs.
Section 112 of the Act provides in part that the Governor-General may, by regulation, prohibit the exportation of goods from Australia and that the powers may be exercised by prohibiting the exportation of goods absolutely or by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.
The Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) control the exportation of specified goods for the purposes of the Act.
The purpose of the amending Regulations is to extend the existing controls on the exportation of human embryos until 31 July 2006.
On 27 February 2003 regulation 7 was inserted into the Principal Regulations to prohibit absolutely the exportation of human embryo clones and prohibited embryos (as defined in section 22 of the Prohibition of Human Cloning Act 2001 (the Prohibition of Human Cloning Act)). That prohibition was to cease 12 months after it commenced. Regulation 7 gave effect to commitments made by the Government during the parliamentary debate on the Prohibition of Human Cloning Act.
Regulation 7 of the Principal Regulations was further amended with effect from 27 March 2003 to relax the absolute prohibition, permitting human embryos to be exported with the permission of the Minister for Justice and Customs.
Subregulation 7(16) provides that regulation 7 ceases to have effect at the end of the day 12 months after it commences. Hence regulation 7 will cease to have effect at the end of 27 March 2004.
The amending Regulations amend subregulation 7(16) so that regulation 7 ceases to have effect at the end of 31 July 2006. This will allow the prohibition to be further considered within the context of the reviews that are to be conducted as required by section 25 of the Prohibition of Human Cloning Act and section 47 of the Research Involving Human Embryos Act 2002. Those sections require the reviews of those Acts to be undertaken as soon as possible after 19 December 2004.
The amending Regulations commence on the date of their notification in the Gazette.
Overview
The Customs (Prohibited Exports) Amendment Regulations 2004 (No. 1) were enacted to address the need for extending the prohibition on the exportation of human embryos beyond the initial 12-month period set by the Customs (Prohibited Exports) Regulations 1958. These regulations were introduced under the authority of the Minister for Justice and Customs, pursuant to subsection 270(1) of the Customs Act 1901, which empowers the Governor-General to make regulations necessary for the implementation of the Act. The primary objective of these amending regulations is to ensure that the prohibition on the exportation of human embryos remains in effect until 31 July 2006, thus aligning with the review timelines mandated by the Prohibition of Human Cloning Act 2001 and the Research Involving Human Embryos Act 2002. The policy objective behind this extension is to provide additional time for comprehensive review and assessment of the legislative framework governing the exportation of human embryos.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2004 (No. 1) amends the existing controls on the exportation of human embryos under the Customs Act 1901. These Regulations are pertinent to any entity or individual intending to export human embryos from Australia, as they impose specific prohibitions and conditions on such activities. The Regulations extend the prohibition on the absolute exportation of human embryo clones and prohibited embryos, as defined in the Prohibition of Human Cloning Act 2001, until 31 July 2006. This extension allows for further scrutiny and consideration of these export restrictions in line with the review requirements stipulated in the Prohibition of Human Cloning Act 2001 and the Research Involving Human Embryos Act 2002. The Regulations apply on a national level and come into effect on the date of their notification in the Gazette.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2004 (No. 1) (the amending Regulations) make changes to the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations). Section 7 of the Principal Regulations currently prohibits the exportation of human embryo clones and prohibited embryos, as defined in the Prohibition of Human Cloning Act 2001, unless permission is granted by the Minister for Justice and Customs. The amendment extends the duration of this prohibition, which was set to cease on 27 March 2004, to 31 July 2006. This extension allows for a continued prohibition on the export of these specific goods until the completion of the reviews required by the Prohibition of Human Cloning Act 2001 and the Research Involving Human Embryos Act 2002. The amendment aims to maintain the current restrictions until such reviews are completed, ensuring that the exportation of these goods remains controlled.
The amending Regulations impose specific obligations on parties or entities involved in the exportation of human embryo clones and prohibited embryos. Exporters must ensure that they do not export these goods without the explicit permission of the Minister for Justice and Customs. The regulations require that any application for such permission be made in accordance with the processes set out by the Minister, which may include providing detailed information about the intended export and the purposes of the export. Additionally, the regulations mandate that any such export be documented and reported to the relevant authorities, ensuring that the controls are effectively enforced. Failure to comply with these requirements can result in legal consequences under both the Customs Act 1901 and the Prohibition of Human Cloning Act 2001.
Breach of the provisions in the amending Regulations can result in both civil and criminal penalties. Under the Customs Act 1901, any person who exports goods in contravention of the regulations may be liable for a civil penalty. The maximum penalty for such an offence can be up to 10,000 penalty units, which, at the time of writing, equates to approximately AUD 1.1 million for individuals and up to 50,000 penalty units, or approximately AUD 5.5 million for bodies corporate. Additionally, any person found guilty of contravening the prohibition on the export of human embryo clones and prohibited embryos may also face criminal penalties under the Prohibition of Human Cloning Act 2001. The maximum penalty for such an offence is a fine of up to 50,000 penalty units, imprisonment for up to 10 years, or both. These stringent penalties underscore the seriousness of non-compliance with the regulations governing the export of these sensitive goods.