EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 15
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2010 (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.
The purpose of the amending Regulations is to amend the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) to implement an arms embargo against Eritrea imposed by United Nations Security Council Resolution 1907 (2009), which was adopted on 23 December 2009 (the Resolution).
Paragraph 5 of the Resolution provides, in part, that all Member States shall prevent the sale or supply to Eritrea 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. This includes the sale and supply from territories of a Member State or by their nationals, or using their flag vessels or aircraft.
The amending Regulations insert new regulation 13CR into the PE Regulations to prohibit the exportation of arms and related matériel (other than goods listed in the defence and strategic goods list made under regulation 13E of the PE Regulations) whose immediate or final destination is, or is intended to be, Eritrea unless the written permission of the Minister for Foreign Affairs (the Minister) or an authorised person is shown to a Collector of Customs at or before the time of exportation.
The Minister can authorise an employee of the Department of Foreign Affairs and Trade to be an authorised person for the purposes of the amending Regulations.
The Minister or an authorised person can also include conditions and other requirements in a permission. The Minister can revoke or modify a permission in certain circumstances.
In deciding whether to grant a permission to export, the Minister or an authorised person must take into account Australia's relations with other countries and Australia's obligations under international law.
The exportation of military goods and dual use goods from Australia is controlled under regulation 13E of the PE Regulations. Therefore, it is only necessary to include in amending new regulation 13CR those goods that are not covered by regulation 13E, such as paramilitary equipment, but which are covered by the terms of the Resolution.
The remaining elements of the prohibitions in paragraph 5 of the Resolution are implemented under the Charter of the United Nations (Sanctions - Eritrea) Regulations 2010.
No consultation was undertaken specifically in relation to the amending Regulations 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 2010 (No. 1) were introduced to implement United Nations Security Council Resolution 1907 (2009), which imposed an arms embargo on Eritrea. Enacted by the Minister for Home Affairs, the Regulations amend the Customs (Prohibited Exports) Regulations 1958 to prohibit the exportation of arms and related matériel to Eritrea unless specific written permission is granted by the Minister for Foreign Affairs or an authorised person. This legislative action ensures compliance with Australia's international obligations and maintains the integrity of its foreign policy by aligning with the sanctions set forth by the United Nations. The Regulations specifically target goods not already controlled under existing regulations, such as paramilitary equipment, ensuring comprehensive coverage of the embargo as specified in the Resolution. The Regulations took effect on the day after their registration on the Federal Register of Legislative Instruments.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2010 (No. 1) applies to the exportation of arms and related matériel from Australia to Eritrea, extending to all entities and individuals who seek to export such goods. The scope of these regulations is specific to goods that are not already regulated under the defence and strategic goods list, such as paramilitary equipment, and includes goods originating within Australia or those exported by Australian nationals or using Australian flag vessels or aircraft. The geographic reach of these regulations is national, aligning with Australia’s obligations under the United Nations Security Council Resolution 1907 (2009). These regulations provide the legal framework for prohibiting the exportation of specified goods unless written permission is obtained from the Minister for Foreign Affairs or an authorised person, who may impose conditions on such permission. The implementation of these regulations ensures compliance with Australia's international obligations and supports the global arms embargo against Eritrea.
Key Provisions
The main operative sections of the Customs (Prohibited Exports) Amendment Regulations 2010 (No. 1) focus on implementing an arms embargo against Eritrea, as mandated by United Nations Security Council Resolution 1907 (2009). Regulation 13CR, newly inserted into the Customs (Prohibited Exports) Regulations 1958, specifically prohibits the export of arms and related matériel (excluding those listed in the defence and strategic goods list under regulation 13E) to Eritrea unless written permission from the Minister for Foreign Affairs or an authorised person is presented to a Collector of Customs before the exportation (s. 2). This permission can include conditions and can be revoked or modified under certain circumstances (s. 3).
These regulations impose clear obligations on entities and individuals involved in the export of arms and related matériel to Eritrea. Specifically, any exporter intending to send such goods to Eritrea must obtain written permission from the Minister or an authorised person before the exportation takes place (s. 2). The Minister or an authorised person must consider Australia's international relations and obligations when deciding whether to grant such permission (s. 4). Additionally, the Minister can delegate the authority to authorise such permissions to an employee of the Department of Foreign Affairs and Trade (s. 5).
Violation of these regulations can lead to significant legal consequences. The export of prohibited goods without the requisite permission is strictly forbidden, and non-compliance can result in both civil and criminal penalties. While the precise penalties are not explicitly stated in the amending Regulations, the underlying Customs Act 1901 generally provides for hefty fines and potential imprisonment for breaches of export regulations. In this context, the severity of penalties would likely reflect the gravity of circumventing an international arms embargo, potentially resulting in severe financial and custodial sanctions.