EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 4
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2007 (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 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.
Paragraph 112(2A)(aa) of the Act further provides that the regulations may identify the goods to which the regulations relate by reference to their inclusion in a list or other document:
• formulated by a Minister and published in the Gazette or otherwise; or
• as amended by the Minister and in force from time to time.
The purpose of the amending Regulations is to amend the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) to implement sanctions against Iran imposed by United Nations Security Council Resolution 1737 (2006) which was adopted on 23 December 2006 (the Resolution).
The Resolution provides, in part, that all Member States shall prevent the supply, sale or transfer to, or for the benefit of, Iran of all items which could contribute to Iran’s nuclear enrichment-related, reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems. These items include particular items listed in Security Council documents S/2006/814 and S/2006/815, which relate to nuclear programmes and ballistic missile programmes, respectively.
The sanctions also extend to items determined as necessary by the Security Council or the Committee of the Security Council established under the Resolution, which could contribute to nuclear enrichment-related, reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems.
The exportation of all items listed in Security Council documents S/2006/814 and S/2006/815 is already controlled under regulation 13E of the Principal Regulations. Therefore, amendments to the Principal Regulations only need to cover additional goods that are determined by the Security Council or the Committee of the Security Council under the Resolution.
These goods, if any, will be identified by the Department of Foreign Affairs and Trade and included in a list determined by the Foreign Minister under regulation 18 of the Charter of the United Nations (Sanctions – Iran) Regulations 2007.
The amending Regulations inserts new regulation 13CQ into the Principal Regulations to prohibit the exportation of such listed goods the immediate or final destination of which is, or is intended to be, Iran 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 may authorise an officer of the Department of Foreign Affairs and Trade to be an authorised person for the purposes of the proposed 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.
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 2007 (No. 1) were enacted by the Australian government to align with the international sanctions imposed by the United Nations Security Council Resolution 1737 (2006) on Iran. The Act was issued by the Minister for Justice and Customs, pursuant to the Customs Act 1901, and aims to prohibit the exportation of goods that could contribute to Iran's nuclear enrichment, reprocessing, heavy water-related activities, or the development of nuclear weapon delivery systems. These amendments were necessary to implement Australia’s obligations under the United Nations Security Council Resolution and were made without specific consultation as they directly implement these international sanctions. The regulations came into effect on the day after they were registered on the Federal Register of Legislative Instruments.
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 1) introduced a new regulation, 13CQ, to the Customs (Prohibited Exports) Regulations 1958, prohibiting the export of specified goods to Iran unless permission is granted by the Foreign Minister or an authorised person. The Foreign Minister may delegate the authority to grant such permissions to an officer of the Department of Foreign Affairs and Trade. Permissions may be subject to conditions and can be revoked or modified under certain circumstances. The decision to grant a permission takes into account Australia's international relations and obligations.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 1) applies to any person or entity intending to export goods from Australia to Iran, particularly focusing on goods that could contribute to Iran's nuclear enrichment-related, reprocessing, heavy water-related activities, or the development of nuclear weapon delivery systems. These regulations are extensions of the Customs Act 1901 and aim to enforce sanctions imposed by United Nations Security Council Resolution 1737. This Act operates under the Commonwealth jurisdiction and impacts various industries involved in the export of specified goods. The regulations specifically target the export of items that are listed in Security Council documents S/2006/814 and S/2006/815, which pertain to nuclear and ballistic missile programmes, respectively. Any exports of these items to Iran are prohibited unless written permission is obtained from the Foreign Minister or an authorised person. The Foreign Minister or an authorised person has the discretion to impose conditions and can revoke or modify permissions under certain circumstances. Notably, these regulations do not require consultation specifically for the amendments as they align with Australia's international obligations under the United Nations Security Council Resolution.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 1) amend the Customs (Prohibited Exports) Regulations 1958 to implement specific sanctions against Iran. These sanctions are in line with United Nations Security Council Resolution 1737 (2006), which was adopted to prevent the supply, sale, or transfer to Iran of items that could contribute to its nuclear enrichment-related, reprocessing, heavy water-related activities, or the development of nuclear weapon delivery systems. Regulation 13CQ, newly inserted into the Principal Regulations, prohibits the exportation of goods listed in documents S/2006/814 and S/2006/815, which pertain to nuclear and ballistic missile programmes, if their destination is, or is intended to be, Iran. This prohibition applies unless written permission is obtained from the Foreign Minister or an authorised person. This permission can include specific conditions and requirements, and it can be revoked or modified under certain circumstances.
Entities and individuals must comply with the new regulation by ensuring that any exports to Iran of goods listed in the UN documents or any additional goods specified in the list determined by the Foreign Minister are subject to the required permissions. This includes submitting necessary documentation to a Collector before the exportation takes place. The Foreign Minister or an authorised person must consider Australia’s international relationships and obligations when deciding whether to grant such permissions. Given the sensitive nature of these exports, thorough due diligence is required to avoid any inadvertent breaches of the regulations.
Failure to comply with the new regulation can result in significant legal consequences. The Act provides for both civil and criminal penalties for breaches. Civil penalties may include fines, and in severe cases, criminal penalties can apply. Under the Customs Act 1901, an individual can face a fine of up to 10,000 penalty units or imprisonment for up to five years, or both, for a contravention of the Act. Companies may also face penalties, including fines up to 50,000 penalty units. The severity of the penalty depends on the nature and extent of the breach, with maximum penalties reflecting the seriousness of the violation. The Act underscores the importance of adherence to these regulations to avoid severe repercussions.