Customs (Prohibited Exports) Amendment Regulations 2004 (No. 2) 2004 No. 107
EXPLANATORY STATEMENT
STATUTORY RULES 2004 NO. 107
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2004 (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 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.
Sections 112 of the Act provides in part that the Governor-General may, by regulation, prohibit the exportation of goods into Australia and that the power 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 PE Regulations) control the exportation of specified goods for the purposes of the Act.
The purpose of the amending Regulations is to introduce new export restrictions on synthetic greenhouse gases and certain air-conditioning and refrigeration equipment and to clarify existing restrictions on ozone depleting gases.
Existing subregulations 13F(1) and 13F(3) of the PE Regulations prohibit the exportation of ozone depleting substances mentioned in Schedule 10 to the PE Regulations unless a licence to export the goods has been granted under the Ozone Protection Act 1989 (the OP Act) and the licence is produced to a Collector.
The OP Act was amended by the Ozone Protection and Synthetic Greenhouse Gas Legislation Amendment Act 2003 (the Amendment Act) and renamed the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the OPSGGM Act).
The existing restrictions in the PE Regulations on ozone depleting substances complement restrictions on the exportation of ozone depleting substances imposed by the former OP Act. This Act controlled the exportation of ozone depleting substances but did not provide for these prohibitions to be enforced at the customs border. Ozone depleting substances were therefore included in the PE Regulations to make them prohibited exports.
The renamed OPSGGM Act contains the same controls on the exportation of ozone depleting substances as the former OP Act, with some minor amendments, and has also introduced new restrictions on such substances.
The amending Regulations amend the PE Regulations to reflect the new and amended export restrictions in the OPSGGM Act.
The amending Regulations insert new substances, consisting of a range of synthetic greenhouse gases and an ozone depleting substance, into Schedule 15 to the PE Regulations. They also substitute new regulation 13F for existing regulation 13F of the PE Regulations.
New regulation 13F prohibits the exportation without a licence of a substance mentioned in Schedule 10 to the PE Regulations and sets out new exceptions to the export restrictions. New regulation 13F also prohibits the exportation of hydrobromofluorocarbons mentioned in Schedule 15 absolutely.
Details of the amending Regulations are in Attachment A.
The amending Regulations commenced on the date of their notification in the Gazette.
0401409B
ATTACHMENT A
DETAILS OF THE CUSTOMS (PROHIBITED EXPORTS) AMENDMENT REGULATIONS 2004 (No. 2)
Regulation 1 - Name of Regulations
Regulation 1 provides that the Regulations are the Customs (Prohibited Exports) Amendment Regulations 2004 (No. 2).
Regulation 2 - Commencement
Regulation 2 provides that the Regulations commence on the date of their notification in the Gazette.
Regulation 3 - Amendment of Customs (Prohibited Exports) Regulations 1958
Regulation 3 provides that Schedule 1 amends the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations).
SCHEDULE 1 - AMENDMENTS
Item 1 - Definition of CFC
Item 1 defines CFC (chlorofluorocarbon) to mean a substance mentioned in Part 1 of Schedule 15, whether existing alone or in a mixture. This term is used in new regulation 13F.
Item 2 - Definitions of HBFC, HCFC and HFC
Item 2 defines HBFC (hydrobromofluorocarbon), HCFC (hydrochlorofluorocarbon) and HFC (hydrofluorocarbon) to mean a substance mentioned in Part 6, Part 5 and Part 9 of Schedule 15 respectively, whether existing alone or in a mixture. These terms are used in new regulation 13F.
Item 3 - Definition of PFC
Item 3 defines PFC (perfluorocarbon) to mean a substance mentioned in Part 10 of Schedule 15, whether existing alone or in a mixture. This term is used in new regulation 13F.
Item 4 - Definition of SGG
Item 4 defines SGG (synthetic greenhouse gas) to mean a HFC or a PFC. This term is used in new regulation 13F and is defined in the same manner as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the OPSGGM Act).
Item 5 - Regulation 13F
Item 5 substitutes new regulation 13F.
New subregulation 13F(1) prohibits the exportation of a substance to which regulation 13F applies unless a licence to export that substance granted under the OPSGGM Act, or a copy of that licence, is produced to the Collector. Exportations to external Territories are specifically excluded as these are not subject to the restrictions in the OPSGGM Act.
New subregulation 13F(2) specifies that this regulation applies to a substance mentioned in column 2 of an item in Schedule 15.
In accordance with section 9 of the OPSGGM Act, new subregulation 13F(3) makes it clear that subregulation 13F(1) does not apply to the exportation of a substance mentioned in column 2 of an item in Schedule 15 that is:
(a) contained in goods that will use the substance in the operation of the goods; or
(b) present in goods because the substance was used in the manufacturing process for the goods.
New subregulation 13F(4) provides an exception to the prohibition with respect to a CFC, HCFC, or SGG on a board a ship or aircraft that is used exclusively to service or maintain air-conditioning or refrigeration equipment during international journeys. This exception mirrors section 12B of the OPSGGM Act.
New subregulation 13F(5) prohibits the exportation of a HBFC absolutely. This prohibition is consistent with subregulation 13(2) of the OPSGGM Act. Exportations to external Territories are specifically excluded as these are not subject to the restrictions in the OPSGGM Act.
Item 6 - Schedule 15, Parts 1 to 7, column headings
Item 6 inserts column numbers into the columns in existing Parts 1 to 7 of Schedule 15.
Item 7 - Schedule 15
Item 7 inserts new Parts 8, 9 and 10 into Schedule 15. Part 8 lists a single substance, bromochloromethane, which is an ozone-depleting substance. Part 9 sets out a range of HFCs and Part 10 sets out a range of PFCs.