EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 314
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3)
Customs (Prohibited Exports) Amendment Regulations 2010 (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.
Sections 50 and 112 of the Act provides, in part, that the Governor-General may, by regulation, prohibit the importation or exportation, respectively, of goods into or from Australia and that the powers may be exercised by prohibiting the importation or exportation of goods absolutely, or by prohibiting the importation or exportation of goods unless specified conditions or restrictions are complied with.
The Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) and the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) control the importation or exportation of goods specified in the various regulations and Schedules.
Regulation 4ZA of the PI Regulations and regulation 13CR of the PE Regulations restrict the importation and exportation of certain goods to and from Eritrea. These regulations were enacted to implement Australia’s obligations to impose sanctions against Eritrea under United Nations Security Council (UNSC) Resolution 1907 of 2009.
Regulation 13CH of the PE Regulations restricts the exportation of paramilitary equipment to Sierra Leone. This regulation was enacted to implement Australia’s obligations to impose sanctions against Sierra Leone under UNSC Resolutions 1132 of 1997 and 1171 of 1998, and prohibits the unauthorised export to Sierra Leone of arms or related materiel.
The amending Regulations:
- limit the class of persons who can be authorised by the Minister for Foreign Affairs to issue an export or import permit in relation to certain goods going to or coming from Eritrea, to SES employees of the Department of Foreign Affairs and Trade only; and
- give effect to the termination of the sanctions against Sierra Leone under UNSC Resolution 1940 of 2010 by repealing regulation 13CH of the PE Regulations.
Both regulation 13CR of the PE Regulations and regulation 4ZA of the PI Regulations permit an authorised person to issue an export or import permit in relation to certain goods going to, or coming from Eritrea. An “authorised person” was defined as an “employee of the Department of Foreign Affairs and Trade who is authorised by the Minister for Foreign Affairs to be an authorised person for the purpose of the Regulations.”
The Senate Standing Committee on Regulations and Ordinances raised concerns about the wide ambit of this authorisation power. In response to these concerns, the PE Regulations and the PI Regulations have been amended to limit the range of officials who can be authorised to act as an “authorised person” from any employee of the Department of Foreign Affairs and Trade to SES employees of the Department of Foreign Affairs and Trade only.
The UNSC recently adopted Resolution 1940 of 2010 which terminated the sanctions imposed against Sierra Leone under Resolutions 1132 of 1997 and 1171 of 1998. The amending Regulations give effect to resolution 1940 of 2010 by repealing regulation 13CH of the PE Regulations.
The amending Regulations also omit all other references to regulation 13CH in the PE Regulations, and make technical amendments to existing provisions, as a consequence of the repeal of regulation 13CH.
No consultation was undertaken specifically in relation to the amending Regulations as they implement Australia’s international obligations under the United Nations Security Council Resolutions.
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 Imports) Amendment Regulations 2010 (No. 3) and Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) were introduced to address specific concerns and to align the Australian legislative framework with recent developments in international sanctions under the auspices of the United Nations Security Council. Enacted under the authority of the Minister for Home Affairs, these Regulations amend the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958 respectively, to narrow the scope of authorisation for issuing import and export permits for certain goods relating to Eritrea, while also addressing the cessation of sanctions against Sierra Leone. The primary policy objective of these Regulations is to refine the control over the issuance of permits, ensuring that only specific, senior-level officials within the Department of Foreign Affairs and Trade can authorise such transactions for goods to or from Eritrea, thereby addressing concerns raised by the Senate Standing Committee on Regulations and Ordinances about the previous broad authorisation power. Additionally, these Regulations repeal restrictions on the export of paramilitary equipment to Sierra Leone in line with the termination of sanctions against Sierra Leone under UNSC Resolution 1940 of 2010. These amendments reflect Australia's commitment to international obligations and aim to enhance the precision and efficacy of its regulatory measures under the Customs Act 1901.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3) and Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) are legislative instruments that operate under the authority of the Customs Act 1901, with the purpose of modifying existing regulations to align with Australia's commitments to United Nations Security Council Resolutions. These regulations specifically affect the import and export of goods to and from Eritrea and Sierra Leone, reflecting changes in international sanctions policies. The scope of these amendments applies to any person or entity involved in the import or export of goods as specified in the amended regulations, with a particular focus on SES employees of the Department of Foreign Affairs and Trade who are authorised to issue export or import permits for goods related to Eritrea. The changes are designed to narrow the eligibility criteria for authorisation, ensuring that only specific, qualified personnel within the department can act on behalf of the Minister for Foreign Affairs. These regulations have a national reach, governing activities across all states and territories of Australia, and are effective immediately upon registration on the Federal Register of Legislative Instruments. The amendments do not introduce new exclusions or thresholds but refine the application of existing regulatory provisions, thereby extending or restricting the scope of the application as per the new authorisation criteria.
Key Provisions
The key provisions of these amending Regulations (Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) and Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3)) include amendments to the Customs (Prohibited Exports) Regulations 1958 and Customs (Prohibited Imports) Regulations 1956 respectively, which control the import and export of goods specified in these regulations and their schedules. Regulation 4ZA of the PI Regulations and regulation 13CR of the PE Regulations are particularly relevant as they pertain to goods being imported or exported to and from Eritrea. These regulations were enacted to implement Australia’s obligations under United Nations Security Council Resolution 1907 of 2009, which imposed sanctions against Eritrea. Regulation 13CH of the PE Regulations, which restricted the exportation of paramilitary equipment to Sierra Leone, has been repealed to reflect the termination of sanctions against Sierra Leone under UNSC Resolution 1940 of 2010.
The Regulations impose specific obligations on the parties and entities they govern. Most notably, they limit the class of persons who can be authorised by the Minister for Foreign Affairs to issue export or import permits for goods going to or coming from Eritrea. Only SES employees of the Department of Foreign Affairs and Trade are now authorised to issue these permits. This amendment was made in response to concerns raised by the Senate Standing Committee on Regulations and Ordinances regarding the wide ambit of the previous authorisation power. The Regulations also reflect the termination of sanctions against Sierra Leone by repealing regulation 13CH of the PE Regulations and removing all references to it in the Regulations. These changes are intended to ensure that Australian regulatory practices align with current international obligations.
The Regulations do not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches, as these would generally be governed by the overarching Customs Act 1901. However, unauthorised importation or exportation of goods in contravention of these Regulations could potentially lead to enforcement actions under the Customs Act. For instance, the importation or exportation of prohibited goods could result in seizure of the goods, fines, and possibly imprisonment, depending on the severity of the breach. The maximum penalties for offences under the Customs Act can include substantial fines and imprisonment terms, reflecting the seriousness with which the Act treats breaches of its provisions.
In summary, the Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) and Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3) make significant changes to align Australia’s import and export regulations with recent United Nations Security Council resolutions. They restrict the authorisation of export and import permits for goods to and from Eritrea to SES employees of the Department of Foreign Affairs and Trade, and repeal sanctions against Sierra Leone by removing regulation 13CH from the PE Regulations. These amendments ensure that Australian regulatory practices are in line with current international obligations and address previous concerns about the broad scope of authorisation powers.