EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 234
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2007 (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 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.
Subregulation 5(2) of the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) prohibits the exportation from Australia of goods specified in Schedule 3 unless an approval to export the goods is obtained from the Minister for Agriculture, Fisheries and Forestry (the Minister) or an authorised officer. ‘Wheat’ is specified for the purposes of subregulation 5(2) in item 31 of Schedule 3 to the Principal Regulations.
Subregulation 5(4) of the Principal Regulations provides that subregulation 5(2) does not apply to the export of wheat by the company that is ‘nominated company B’ within the meaning of the Wheat Marketing Act 1989 (the Wheat Marketing Act). The note under subregulation 5(4) provides that the ‘nominated company B’ is AWB (International) Ltd.
The purpose of the Regulations is to amend the export controls on wheat in the Principal Regulations as a result of amendments made to the Wheat Marketing Act by the Wheat Marketing Amendment Act 2007 (Wheat Marketing Amendment Act). The Regulations remove the prohibition under the Principal Regulations on the exportation of wheat in bags or containers and replace the ‘nominated company B’ with the ‘designated company’.
Schedule 1 to the Regulations substitutes item 31 of the table in Schedule 3 to the Principal Regulations with a new item 31 which specifies ‘wheat (other than wheat in bags or containers)’. The Regulations have the effect that only wheat exported in bulk is prohibited under the Principal Regulations from being exported without the approval of the Minister or an authorised officer. Wheat exported in bags or containers is regulated by new Part 6 of the Wheat Marketing Act which was inserted by the Wheat Marketing Amendment Act.
Schedule 2 to the Regulations substitutes references to ‘nominated company B’ with ‘designated company’ in subregulation 5(4) of the Principal Regulations and removes the note after subregulation 5(4). The amendments made to the Wheat Marketing Act by the Wheat Marketing Amendment Act give the Minister the power to designate a company as the holder of the single desk export privilege under the Wheat Marketing Act. This company is known as the ‘designated company’. The Regulations reflect the change in terminology made in the Wheat Marketing Act from ‘nominated company B’ to ‘designated company’.
No consultation was undertaken specifically in relation to the Regulations as the Regulations were required as a result of amendments made to the Wheat Marketing Act.
Regulations 1 to 3 of the Regulations and Schedule 1 to the Regulations commence on the commencement of Schedule 4 to the Wheat Marketing Amendment Act, which is due to commence on the 60th day after the day on which that Act received Royal Assent. As Royal Assent was received on 28 June 2007, regulations 1 to 3 of the Regulations and Schedule 1 to the Regulations commence on 27 August 2007. Schedule 2 to the Regulations commence on 1 March 2008. These commencement dates coincide with the commencement dates of the relevant schedules to the Wheat Marketing Amendment Act.
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Overview
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 2) were enacted to align the Customs Act 1901 with amendments made to the Wheat Marketing Act 1989 by the Wheat Marketing Amendment Act 2007. These regulations were introduced by the Australian Parliament and address the need to update export controls on wheat in response to legislative changes. The primary objective of these regulations is to reflect the changes in terminology and export controls regarding wheat, ensuring that the Customs Act is consistent with the updated Wheat Marketing Act. This includes modifying the prohibition on exporting wheat in bags or containers and updating references to the "nominated company B" to "designated company" in the Customs (Prohibited Exports) Regulations 1958.
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 2) remove the prohibition on exporting wheat in bags or containers and instead, subject such exports to the new regulations under the Wheat Marketing Act. Additionally, they replace references to the "nominated company B" with "designated company" to reflect the legislative change allowing the Minister to designate a company as the holder of the single desk export privilege. The regulations were necessitated by the amendments to the Wheat Marketing Act and were not subject to specific consultation due to their direct correlation with those amendments. The commencement dates for these regulations align with the commencement dates of the relevant schedules to the Wheat Marketing Amendment Act, ensuring a seamless transition in compliance with the new legislative framework.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 2) amend the export controls on wheat as specified in the Principal Regulations, under the Customs Act 1901, to reflect legislative changes in the Wheat Marketing Act. The Act applies to entities and individuals involved in the export of wheat from Australia, specifically targeting the export of wheat in bulk. The Regulations remove the prohibition on the exportation of wheat in bags or containers, aligning with the new provisions in the Wheat Marketing Act. The geographical scope of these Regulations is nationwide, given the federal nature of the Customs Act. There are no specific exclusions or exemptions outlined in the Regulations; however, they do refer to the designated company which holds the single desk export privilege under the Wheat Marketing Act. These Regulations extend the application of the Act through the subordinate instrument mechanism, ensuring that the legislative changes in the Wheat Marketing Act are effectively integrated into the export control framework.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 2) primarily amend the export controls on wheat as a result of legislative changes in the Wheat Marketing Act 1989. Section 1 of the Regulations introduces the amendments, with Section 2 detailing the changes to the export prohibition of wheat. Specifically, the Regulations modify subregulation 5(2) of the Principal Regulations by removing the prohibition on the exportation of wheat in bags or containers (Schedule 1, item 31). Instead, such exports are now regulated by the Wheat Marketing Act, specifically under Part 6, which was inserted by the Wheat Marketing Amendment Act 2007.
The Regulations also update the terminology from 'nominated company B' to 'designated company' in subregulation 5(4) of the Principal Regulations (Schedule 2). This change reflects the amendments made to the Wheat Marketing Act, which now allow the Minister to designate a company as the holder of the single desk export privilege. This 'designated company' is now responsible for the export of wheat, replacing the previous role of AWB (International) Ltd as 'nominated company B'. The Regulations ensure that the Customs Act aligns with these legislative changes.
The Regulations impose specific obligations on parties involved in the export of wheat. Exporters must now comply with the new provisions under the Wheat Marketing Act for wheat exported in bags or containers. For bulk wheat exports, exporters must obtain approval from the Minister or an authorised officer as per subregulation 5(2) of the Principal Regulations. Furthermore, the Regulations mandate that the designated company adheres to the new regulatory framework for wheat exports as established by the Wheat Marketing Amendment Act.
Breaches of the Regulations may lead to civil and criminal consequences. For example, unauthorised exportation of wheat in bags or containers could result in penalties under the Wheat Marketing Act, including fines and imprisonment. The maximum penalties for such breaches are specified in the Wheat Marketing Amendment Act and can vary depending on the nature and severity of the offence. Similarly, failure to comply with the approval requirements for bulk wheat exports under the Customs Act could result in penalties, including fines and potential prosecution. Compliance with these Regulations is crucial to avoid these consequences.