EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 292
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2007 (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.
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 Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) control the exportation of the goods specified.
The purpose of the Regulations is to clarify the export restrictions on source materials, and to include an additional exemption from these export restrictions. ‘Source materials’ is a term used in the context of safeguards to mean any material from which special fissionable material may be produced, including natural uranium, depleted uranium and thorium.
Regulation 9 of the Principal Regulations prohibits the exportation from Australia of goods specified in Schedule 7 without the permission of the Minister for Industry, Tourism and Resources or an authorised person. Nuclear materials, including source materials, are specified in Schedule 7. In particular, paragraphs (a) to (d) of item 1 specify the source materials that are subject to the export controls in regulation 9, and paragraphs (e) and (f) of item 1 specify the exemptions from the export controls.
Paragraphs (a) to (c) of item 1 specify uranium and thorium. Paragraph (d) specifies “any of the materials mentioned in paragraphs (a), (b) and (c) in the form or metal, alloy, chemical compound, ore or concentrate, including monazite”. At the time that paragraph (d) was originally inserted into item 1, monazite was specifically referred to as it was an ore or concentrate of uranium or thorium of particular interest. While any ore or concentrate of uranium or thorium is covered by paragraph (d), new paragraph (d) includes specific references to two additional ores and concentrates, being tantalum concentrates and tantalum glass, that are of particular interest, in order to provide greater clarity to the exporters of these ores or concentrates.
The Regulations repeal and substitute item 1 of Schedule 7 and new paragraph (d) includes specific references to tantalum concentrates and tantalum glass.
The Regulations also insert a new exemption from regulation 9 into item 1 of Schedule 7. Controlling the exportation of ores and concentrates below a certain, very low, concentration is not necessarily of concern as the likelihood of uranium and/or thorium being extracted during processing in other countries is very low. The Regulations insert a new exemption from item 1 in Schedule 7 in order to simplify the export controls.
New item 1 of Schedule 7 includes in the list of exemptions from item 1 new paragraph (g) which refers to any ore or concentrate containing less than 0.05% by weight of a material mentioned in paragraph (a), (b) or (c) of item 1, or any combination of those materials.
However, new paragraph (g) also includes a power whereby the Minister for Industry, Tourism and Resources can exclude ores and concentrates from this exemption by listing the excluded ores and concentrates in a list or document. The list or document is a legislative instrument for the purposes of the Legislative Instruments Act 2003. It is possible that, in the future, the exportation of certain ores and concentrates with these low concentrations may need to be controlled. Ores and concentrates that are excluded by the Minister from the exemption in new paragraph (g) would become subject to the export controls in regulation 9.
No consultation was undertaken specifically in relation to the Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
The 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. 3), enacted to amend the Customs Act 1901, were introduced to address the need for greater clarity and specificity in the export restrictions on certain materials, particularly source materials that can be used to produce special fissionable material. These materials include natural uranium, depleted uranium, thorium, and specific ores and concentrates such as monazite, tantalum concentrates, and tantalum glass. The regulations clarify and expand the scope of export controls to include these additional materials, thereby ensuring that the exportation of these substances is adequately regulated. The regulations were issued under the authority of the Minister for Justice and Customs, and their purpose is to refine the existing export restrictions to better align with current safeguards and to address potential ambiguities in the original regulations. These amendments aim to provide a more streamlined and precise legal framework for controlling the export of these sensitive materials.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2007 (No. 3) apply to the exportation of goods from Australia, specifically focusing on the export controls of source materials which include nuclear materials such as uranium, depleted uranium, thorium, tantalum concentrates, and tantalum glass. These regulations are made under the authority of the Customs Act 1901 and are applicable across the Commonwealth of Australia. They target entities and individuals involved in the exportation of these specified materials, ensuring compliance with the conditions and restrictions set forth by the Minister for Industry, Tourism and Resources or an authorised person. The regulations provide clarity on export restrictions and include an additional exemption for ores and concentrates containing less than 0.05% by weight of the specified materials, although the Minister retains the power to exclude certain ores and concentrates from this exemption. This legislation does not require specific consultation as it is considered minor and does not substantially alter existing arrangements. The regulations commence on the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The main operative sections of the Customs (Prohibited Exports) Amendment Regulations 2007 (No. 3) involve amending the existing schedule that specifies the goods subject to export restrictions under the Customs Act 1901. Regulation 9, which currently prohibits the export of goods listed in Schedule 7 without permission, is amended to clarify the types of source materials that are subject to export controls. Specifically, the amendments focus on expanding the list of specified materials in item 1 of Schedule 7 to include additional ores and concentrates, such as tantalum concentrates and tantalum glass, while also introducing an exemption for ores and concentrates containing very low concentrations of the specified materials. This amendment aims to provide greater clarity and simplify the export controls by detailing the materials subject to regulation more precisely and by allowing for minor adjustments in the future through the creation of a list or document.
The obligations imposed by these Regulations are primarily on entities or individuals seeking to export the specified goods from Australia. They must ensure that any export of the listed materials complies with the detailed conditions set out in the amended Schedule 7. This includes obtaining necessary permissions from the Minister for Industry, Tourism and Resources or an authorised person before exporting materials that fall under the export restrictions. Additionally, exporters must be aware of any future exclusions made by the Minister, which could subject previously exempt materials to export controls. The Regulations also mandate that any changes to the list of excluded materials will be documented as a legislative instrument under the Legislative Instruments Act 2003, thereby maintaining transparency and accountability in the regulatory process.
In terms of penalties and consequences for breaches, the Customs Act 1901 provides the overarching framework, though specific penalties are not detailed within these Regulations. Generally, unauthorised export of goods that are subject to export restrictions can lead to serious legal repercussions. Under the Customs Act, penalties for non-compliance can include fines and imprisonment. The exact penalties would depend on the severity and intent of the breach, as well as other relevant factors considered by the court. Exporters found guilty of violating the export restrictions may face significant fines and potential imprisonment, highlighting the seriousness with which the Australian government treats the unauthorised export of controlled materials.