EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 281
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2006 (No. 3)
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 Regulations is to amend the Principal Regulations to implement sanctions against the Democratic People’s Republic of Korea (DPRK) imposed by United Nations Security Council Resolution 1718 which was adopted on 14 October 2006 (the Resolution).
The Resolution provides, in part, that all Member States shall prevent the direct or indirect supply, sale or transfer to the DPRK, through their territories or by their nationals of: (a) specified military equipment and spare parts for such goods; (b) specified goods which could contribute to DPRK’s nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes; and (c) luxury goods.
The Regulations insert new regulation 13CO into the Principal Regulations to prohibit the exportation of:
a) arms and related matériel (other than goods listed in the defence and strategic goods list mentioned in regulation 13E of the Principal Regulations);
b) goods capable of use in the development, production, or stockpiling of nuclear, biological or chemical weapons, or the development or production of missiles capable of delivering such weapons; and
c) goods included on the luxury goods list;
the immediate or final destination of which is, or is intended to be, the DPRK unless the written permission of the Foreign Minister or an authorised person is shown to a Collector at or before the time of exportation.
The Foreign Minister can authorise an officer of the Department of Foreign Affairs and Trade to be an authorised person for the purposes of the Regulations.
The Foreign Minister or an authorised person can also include conditions and other requirements in a permission and the Foreign Minister can revoke or modify a permission in certain circumstances.
The Foreign Minister or an authorised person, in deciding whether to grant a permission to export must take into account Australia's relations with other countries and Australia's obligations under international law.
The exportation of most military goods and dual use goods from Australia is already controlled under regulation 13E of the Principal Regulations. Therefore, it is only necessary to include in new regulation 13CO those goods which are not covered by regulation 13E, such as paramilitary equipment, but which are covered by the terms of the Resolution.
The goods that constitute “luxury goods” for the purposes of new regulation are those goods in the “luxury goods list”. This list will be determined by the Foreign Minister under regulation 17 of the Charter of the United Nations (Sanctions - Democratic People’s Republic of Korea) Regulations 2006.
No consultation was undertaken specifically in relation to either of the amendments as they implement Australia’s international obligations under the Resolution.
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. 3) were enacted to address the need for Australia to implement United Nations Security Council Resolution 1718, which imposes sanctions on the Democratic People’s Republic of Korea (DPRK). This resolution aims to prevent the supply, sale, or transfer of specified military equipment, goods related to weapons of mass destruction, and luxury goods to the DPRK. The Regulations were issued by the Minister for Justice and Customs under the authority granted by the Customs Act 1901. They amend the Customs (Prohibited Exports) Regulations 1958 by introducing new regulation 13CO, which prohibits the export of certain arms, goods related to weapons of mass destruction, and luxury goods to the DPRK unless permission is granted by the Foreign Minister or an authorised person. This amendment ensures that Australia adheres to its international obligations and maintains its diplomatic relations with other countries while enforcing the sanctions outlined in the Resolution.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2006 (No. 3) apply to the exportation of specific goods from Australia to the Democratic People’s Republic of Korea (DPRK), as implemented through United Nations Security Council Resolution 1718. These Regulations are an amendment to the Customs (Prohibited Exports) Regulations 1958, and are designed to ensure compliance with international sanctions against the DPRK. The application of the Regulations encompasses individuals and entities exporting goods that are subject to prohibition, such as arms and related matériel, goods that could contribute to nuclear, biological, or chemical weapons programmes, and luxury goods. The scope of the Regulations is national, given that they are issued under the authority of the Commonwealth of Australia and are aimed at enforcing international obligations. The Regulations do not apply to goods listed in regulation 13E of the Principal Regulations, which already cover most military goods and dual use goods. The Regulations are enforced by requiring written permission from the Foreign Minister or an authorised person for exports to the DPRK, and these permissions can include conditions and be subject to revocation or modification. The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2006 (No. 3) introduce new regulation 13CO into the Customs (Prohibited Exports) Regulations 1958. This regulation is specifically designed to implement sanctions against the Democratic People’s Republic of Korea (DPRK) as outlined in United Nations Security Council Resolution 1718. Regulation 13CO (paragraph 3) prohibits the exportation of certain goods from Australia to the DPRK unless written permission is obtained from the Foreign Minister or an authorised person. These prohibited goods include arms and related matériel (excluding those listed in regulation 13E), goods capable of use in the development, production, or stockpiling of nuclear, biological, or chemical weapons, and goods listed as luxury items. This permission must be shown to a Collector at or before the time of exportation.
The obligations imposed by these Regulations on exporters and relevant authorities are significant. Exporters must ensure they have obtained the necessary written permission from the Foreign Minister or an authorised person before attempting to export any of the specified goods to the DPRK (regulation 13CO(4)). The Foreign Minister or an authorised person has the discretion to grant permission, including attaching conditions and requirements to it, and to revoke or modify this permission under certain circumstances (regulation 13CO(5)-(6)). Additionally, when deciding whether to grant permission, the Foreign Minister or an authorised person must consider Australia’s international relations and obligations under international law (regulation 13CO(7)).
Failure to comply with these Regulations can result in significant penalties. For instance, exporting the prohibited goods without the required permission is an offence under section 112 of the Customs Act 1901. Such offences can be prosecuted either as summary offences or as indictable offences, depending on the circumstances. For summary offences, the maximum penalty includes fines up to the penalty units currently in force under the Commonwealth Penalties (Prohibited Imports) Regulations 1997. For indictable offences, the maximum penalty can extend to imprisonment for five years, reflecting the seriousness with which the Act treats breaches of these export prohibitions.