EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 18
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2011 (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 the Libyan Arab Jamahiriya imposed by United Nations Security Council Resolution 1970 (2011), which was adopted on 26 February 2011 (the Resolution).
Paragraph 9 of the Resolution provides, in part, that all Member States shall prevent the sale or supply to the Libyan Arab Jamahiriya 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 13CS 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, the Libyan Arab Jamahiriya 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 a SES employee, or an acting SES 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 13CS 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 9 of the Resolution are implemented under the Charter of the United Nations (Sanctions - Libyan Arab Jamahiriya) Regulations 2011.
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 2011 (No. 1) were enacted to align Australian customs regulations with the international obligations established by United Nations Security Council Resolution 1970 (2011). This legislative amendment was introduced in response to the need to enforce an arms embargo against the Libyan Arab Jamahiriya, as mandated by the Resolution. The Regulations, issued under the authority of the Minister for Home Affairs, aim to prohibit the exportation of specified arms and related matériel to Libya, unless authorised by the Minister for Foreign Affairs or an authorised person. The policy objective of these Regulations is to ensure compliance with Australia's international commitments and to prevent the supply of military goods that could be used in conflict within Libya. The Regulations are effective from the day they are registered on the Federal Register of Legislative Instruments.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2011 (No. 1) apply to any person or entity seeking to export arms and related matériel from Australia, specifically targeting exports intended for the Libyan Arab Jamahiriya. This includes weapons, ammunition, military and paramilitary equipment, and their spare parts, unless exempted by the regulation. The application extends across the entire Commonwealth of Australia, and the provisions are enforceable by the Australian Customs and Border Protection Service. Notably, these regulations are in line with international obligations stemming from the United Nations Security Council Resolution 1970 (2011), which mandates an arms embargo against Libya. The regulations also incorporate conditions that may be imposed by the Minister for Foreign Affairs or an authorised person, thereby providing flexibility in enforcement while ensuring compliance with international commitments and Australia's diplomatic relations.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2011 (No. 1) (the amending Regulations) primarily introduce a new regulation, 13CS, into the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations). Regulation 13CS (subsection 270(1)) prohibits the exportation of arms and related materiel to the Libyan Arab Jamahiriya unless written permission is obtained from the Minister for Foreign Affairs or an authorised person. This prohibition applies to goods not listed under regulation 13E of the PE Regulations, which already covers the export of military and dual-use goods. The intent behind these provisions is to enforce a United Nations Security Council Resolution 1970 (2011) arms embargo against Libya.
These Regulations impose specific obligations on exporters of arms and related materiel to Libya. To export such goods, an exporter must obtain written permission from the Minister for Foreign Affairs or an authorised person. The Minister may delegate this authority to a SES employee or an acting SES employee of the Department of Foreign Affairs and Trade. The Minister or the authorised person has the discretion to include conditions and requirements in the permission. The permission can also be revoked or modified under certain circumstances. In granting permission, the Minister or the authorised person must consider Australia's international relations and obligations under international law.
Failure to comply with the provisions of the amending Regulations can lead to significant legal consequences. The unauthorised exportation of prohibited goods in violation of these Regulations may result in civil or criminal penalties. However, the specific penalties are not detailed in the amending Regulations. The overarching legal framework, including the Customs Act 1901, provides for potential fines and imprisonment for breaches of customs regulations. The precise penalties would depend on the nature and severity of the breach, as well as any applicable provisions within the broader legislative context.
The amending Regulations are designed to ensure that Australia adheres to its international obligations under the United Nations Security Council Resolution 1970 (2011). By implementing these measures, Australia aims to contribute to global efforts to enforce the arms embargo against the Libyan Arab Jamahiriya. The Regulations came into effect on the day after they were registered on the Federal Register of Legislative Instruments, ensuring that the prohibitions and requirements are immediately enforceable.