EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 195
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2006 (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.
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 the goods specified in the various regulations and the Schedules to the Principal Regulations, by prohibiting exportation absolutely, or by making exportation subject to a permission or licence.
The purpose of the amending Regulations is to extend the current controls on the exportation of human embryos for a further year by amending the sunset clause in subregulation 7(16) of the Principal Regulations.
On 27 February 2003, the Australian Government tabled amendments to regulation 7 of the Principal Regulations which placed an absolute ban on the export of human embryos from Australia. The prohibition gave effect to commitments made by the Government during the parliamentary debate on the Prohibition of Human Cloning Act 2002 (the Human Cloning Act). The ban was to be in force for 12 months in order to allow a review of whether it is practical to allow the export of human embryos in a manner that is consistent with the Research Involving Human Embryos Act 2002 (the Research Act).
On 27 March 2003, recognising concerns raised by couples seeking to export IVF embryos for the purposes of continuing their treatment overseas or in accordance with surrogacy arrangements, the Australian Government replaced the absolute prohibition in regulation 7 with an arrangement to allow the Minister for Justice and Customs to grant permission for the export of human embryos from Australia in certain circumstances. The arrangements were to remain in place for 12 months. This period was designed to allow the prohibition to be further considered within the context of a review of the Human Cloning Act and the Research Act.
Regulation 7 was further amended on 10 March 2004 to extend the sunset period for the existing controls to 31 July 2006, to better coincide with the expected completion of the review of the Human Cloning Act and the Research Act.
The Legislation Review of Australia’s Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002 (the Lockhart Review) concluded on 19 December 2005 with the tabling of its reports in both houses of Parliament.
The amending Regulations amend subregulation 7(16) so that regulation 7 ceases to have effect at the end of 31 July 2007. This allows the Australian Government further time to consider the Lockhart Review recommendations.
No consultation was undertaken in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
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Overview
The Customs (Prohibited Exports) Amendment Regulations 2006 (No. 2) were introduced by the Australian Government to extend the controls on the exportation of human embryos from Australia. Enacted under the authority of the Minister for Justice and Customs, these regulations amend the Customs (Prohibited Exports) Regulations 1958 to adjust the sunset clause in subregulation 7(16), thereby maintaining the existing prohibition on the export of human embryos until 31 July 2007. This extension was introduced to allow further consideration of the Lockhart Review's recommendations, which examined Australia's Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002. The amendments are designed to provide a continued framework for managing the export of human embryos while the government deliberates on the review's findings.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2006 (No. 2) amends the existing controls on the exportation of human embryos from Australia, extending the current prohibition by a further year. This amendment applies to all individuals and entities involved in the export of human embryos from Australia, ensuring that the stringent regulations designed to uphold national bioethical standards and align with legislative commitments under the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002 remain in place. The scope of the Act is national, extending across all states and territories of Australia, thereby enforcing a uniform regulatory environment for the export of human embryos. The amendment extends the sunset clause in subregulation 7(16) of the Principal Regulations, meaning the controls will remain in effect until 31 July 2007, providing additional time for the government to review and consider the recommendations of the Lockhart Review. There are no stated exclusions or exemptions within these Regulations, and they do not alter the fundamental nature of the existing prohibition or the conditions under which an export might be permitted.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2006 (No. 2) amends the Customs (Prohibited Exports) Regulations 1958 to extend the prohibition on the export of human embryos from Australia. The primary change introduced by these Regulations is an extension of the sunset clause in subregulation 7(16) of the Principal Regulations, thereby extending the prohibition on the export of human embryos until 31 July 2007 (section 3). This amendment ensures that the prohibition remains in effect for an additional year, allowing the Australian Government more time to consider the recommendations of the Lockhart Review, which reviewed the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002.
The Regulations impose specific obligations on parties or entities involved in the export of human embryos. Under regulation 7, the export of human embryos is absolutely prohibited, except under specific circumstances where the Minister for Justice and Customs has granted permission (subregulation 7(15)). This requirement ensures that any export of human embryos must comply with the regulatory framework established by these Regulations and any applicable conditions or restrictions imposed by the Minister (subregulation 7(16)). Additionally, these Regulations require that any application for permission to export human embryos must be submitted to the Minister, who may impose conditions or restrictions as deemed necessary (subregulation 7(15)).
Breach of the prohibition on the export of human embryos, as outlined in the Regulations, may result in civil or criminal penalties. Under the Customs Act 1901, any person who contravenes a regulation made under the Act is liable to a penalty not exceeding 10,000 penalty units, which is a significant deterrent against non-compliance (section 276). Furthermore, under section 279 of the Customs Act 1901, any person who knowingly or recklessly makes a false statement in a document required by the Act or a regulation made under the Act is liable to a penalty of up to 10,000 penalty units or imprisonment for five years, or both. These provisions underscore the seriousness with which the Australian Government treats compliance with the export prohibition on human embryos.