EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 289
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2006 (No. 4)
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 for giving effect to the Act.
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 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 purpose of the amending Regulations is to amend the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) to implement an arms embargo against Lebanon imposed by United Nations Security Council Resolution 1701 (2006), which was adopted on 11 August 2006 (the Resolution).
The Resolution provides, in part, that all Member States shall prevent:
(a) the direct or indirect supply, sale or transfer to Lebanon, through their territories or by their nationals of arms and related matériel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories; and
(b) the provision to any entity or individual in Lebanon of any technical training or assistance related to the provision, manufacture, maintenance or use of such arms and related matériel.
This prohibition does not apply to arms and related matériel authorised by the Government of Lebanon or by the United Nations Interim Force in Lebanon.
The amending Regulations insert new regulation 13CP into the Principal Regulations to prohibit the exportation of arms and related matériel (other than goods listed in the defence and strategic goods list mentioned in regulation 13E of the Principal Regulations) the immediate or final destination of which is, or is intended to be, Lebanon unless the written permission of the Foreign Minister or an authorised person is shown to a Collector of Customs at or before the time of exportation.
The Foreign Minister may authorise an employee of the Department of Foreign Affairs and Trade to be an authorised person for the purposes of the amending Regulations.
The Foreign Minister or an authorised person may also include conditions and other requirements in a permission and the Foreign Minister may 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 13CP those goods which are not covered by regulation 13E, such as paramilitary equipment, but which are covered by the terms of the Resolution.
The prohibition against the provision of technical training or assistance in relation to arms and related matériel is implemented under the Charter of the United Nations (Sanctions - Lebanon) Regulations 2006.
No consultation was undertaken specifically in relation to 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. 4) were introduced to align Australian legislation with the requirements of United Nations Security Council Resolution 1701 (2006), which established an arms embargo against Lebanon. Enacted under the authority of the Minister for Justice and Customs and pursuant to subsection 270(1) of the Customs Act 1901, these regulations aim to ensure Australia's compliance with international obligations by prohibiting the export of specified arms and related matériel to Lebanon, unless authorised by the Foreign Minister or an authorised person. This legislative action seeks to prevent the direct or indirect supply, sale, or transfer of military goods to Lebanon, reinforcing the commitment to international peace and security as outlined in the Resolution. The regulations do not apply to arms and related matériel authorised by the Government of Lebanon or by the United Nations Interim Force in Lebanon.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2006 (No. 4) amend the Customs (Prohibited Exports) Regulations 1958 to implement an arms embargo against Lebanon, as mandated by United Nations Security Council Resolution 1701 (2006). These regulations apply to all persons and entities exporting goods from Australia, particularly focusing on arms and related materiel intended for Lebanon. The geographic scope of these regulations is national, with their application extending to all exports from Australia regardless of the exporter's location within the country. Notably, these regulations exclude goods already regulated under the defence and strategic goods list specified in regulation 13E of the Principal Regulations. The Regulations provide for the prohibition of exports unless written permission is obtained from the Foreign Minister or an authorised person, which may include specific conditions and requirements. The Foreign Minister retains the authority to revoke or modify such permissions, and in making decisions, must consider Australia's international relations and obligations. The Regulations also allow for subordinate instruments to further detail and enforce the embargo, thereby extending and restricting the application as necessary.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2006 (No. 4) (the amending Regulations) introduce significant changes to the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) to enforce an arms embargo against Lebanon, as mandated by United Nations Security Council Resolution 1701 (2006). Specifically, regulation 13CP is introduced to prohibit the exportation of arms and related matériel to Lebanon unless a written permission is obtained from the Foreign Minister or an authorised person. This permission must be shown to a Collector of Customs at or before the time of exportation. Regulation 13CP applies to goods that are not covered under regulation 13E of the Principal Regulations, such as paramilitary equipment, but are included in the embargo terms.
The obligations imposed by the amending Regulations on parties or entities governed by these provisions are substantial. Exporters of arms and related matériel must ensure they obtain the necessary written permission from the Foreign Minister or an authorised person before attempting to export these goods to Lebanon. The Foreign Minister or an authorised person, when granting permission, may include conditions and requirements, and has the authority to revoke or modify such permissions under certain circumstances. Additionally, the Foreign Minister or an authorised person must consider Australia's international relations and obligations under international law when deciding whether to grant permission.
Failure to comply with the provisions of the amending Regulations can lead to significant legal consequences. While the amending Regulations themselves do not explicitly state the penalties for non-compliance, the Customs Act 1901 provides a framework for enforcement. Under section 270 of the Act, any person who contravenes the regulations may be subject to fines and/or imprisonment. The maximum penalties for contravening regulations under the Customs Act can include fines of up to 10,000 penalty units and/or imprisonment for up to 10 years, depending on the severity of the offence. Furthermore, the unauthorised exportation of controlled goods can also result in civil penalties and seizure of the goods by the Australian Customs and Border Protection Service.