EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 46
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Exports) Amendment Regulations 2011 (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.
The purpose of the amending Regulations is to introduce export controls on tributyltin (TBT) compounds under the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations). TBT compounds are subject to the Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention). The Rotterdam Convention obliges Parties to control the export of chemicals and pesticides specified in Annex III to the Rotterdam Convention.
Regulation 4A of and Schedule 2 to the PE Regulations implement export controls in line with Australia's obligations under the Rotterdam Convention. The export controls under the Rotterdam Convention are also implemented under the Agricultural and Veterinary Chemicals (Administration) Regulations 1995 (the Agvet Regulations).
Regulation 4A of and Schedule 2 to the PE Regulations and Parts 2 and 3 of Schedule 1 to the Agvet Administration Regulations apply in respect of the same chemicals. The PE Regulations require that export permission must be granted under the Agvet Regulations, and must be produced to a Collector under regulation 4A of the PE Regulations. If an export permission is not produced, the chemicals will be prohibited exports and will be subject to the Customs and Border Protection enforcement regime at the border.
The Australian Government ratified the Rotterdam Convention in 2004. In October 2008, at the fourth Conference of the Rotterdam Convention, the Parties agreed to include TBT compounds in Annex III of the Rotterdam Convention with effect from 1 June 2010. In order to implement this change, the TBT compounds need to be added to Schedule 2 to the PE Regulations, which sets out the chemicals listed in Annex III to the Rotterdam Convention.
Accordingly, the amending Regulations amend Schedule 2 to the Principal Regulations by adding TBT compounds to the list of chemicals.
As the amendments implement Australia’s international obligations under the Rotterdam Convention, consultation was undertaken with the Department of Sustainability, Environment, Water, Population and Communities (DSEWPC), the Department of Agriculture Fisheries and Forestry (DAFF) and the Australian Pesticides and Veterinary Medicines Authority (APVMA).
Exporters of TBT compounds have been made aware of the new requirements through consultations undertaken by DSEWPC, DAFF and APVMA.
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. 2) were enacted to address the need for Australia to align its export controls with the obligations under the Rotterdam Convention. This legislative instrument was introduced by the Minister for Home Affairs to modify the Customs (Prohibited Exports) Regulations 1958 in order to implement export restrictions on tributyltin (TBT) compounds. This change was necessitated by the inclusion of TBT compounds in Annex III of the Rotterdam Convention, effective from 1 June 2010. The objective of these regulations is to ensure that Australian exporters comply with international standards for hazardous chemicals and pesticides, thereby maintaining Australia's commitment to environmental protection and public health. The enacting body is the Governor-General, who exercises the power to make these regulations under the authority conferred by the Customs Act 1901. The regulations were developed through consultation with relevant departments and authorities to ensure comprehensive implementation of the new export controls.
Scope and Application
The Customs (Prohibited Exports) Amendment Regulations 2011 (No. 2) applies to the exportation of tributyltin (TBT) compounds from Australia, aligning with Australia's commitments under the Rotterdam Convention. This Act targets exporters who handle TBT compounds, ensuring that they comply with the regulations governing the export of hazardous chemicals. The geographic reach of this Act is national, as it is enforced by the Commonwealth through the Customs and Border Protection regime at the border. The Act does not specify exclusions or exemptions, but rather mandates compliance with the stipulated conditions for the export of TBT compounds. Any further specification or modification of the application of these regulations may be introduced through subordinate instruments, allowing for a flexible approach to managing the export of hazardous chemicals in line with international obligations and domestic policy.
Key Provisions
The Customs (Prohibited Exports) Amendment Regulations 2011 (No. 2) primarily focus on introducing export controls on tributyltin (TBT) compounds to comply with Australia's obligations under the Rotterdam Convention. The regulations amend Schedule 2 of the Customs (Prohibited Exports) Regulations 1958 (PE Regulations) by adding TBT compounds to the list of chemicals, which is aligned with Annex III of the Rotterdam Convention. This change is effective from 1 June 2010, as agreed by the Parties during the fourth Conference of the Rotterdam Convention in October 2008. The inclusion of TBT compounds in the PE Regulations ensures that Australia adheres to international standards for the export of hazardous chemicals and pesticides.
Entities and individuals involved in exporting TBT compounds must comply with the new regulations by obtaining export permission under the Agricultural and Veterinary Chemicals (Administration) Regulations 1995 (Agvet Regulations) and presenting this permission to a Collector of Customs under regulation 4A of the PE Regulations. Failure to provide the required export permission will result in the chemicals being classified as prohibited exports, subjecting them to the Customs and Border Protection enforcement regime at the border. The regulations emphasise the necessity of adhering to these procedures to avoid any legal repercussions or disruptions in the export process.
The Customs (Prohibited Exports) Amendment Regulations 2011 (No. 2) impose specific obligations on exporters of TBT compounds, requiring them to secure export permission and present it to the relevant authorities. This requirement is crucial for ensuring that exports comply with both domestic and international regulations. The regulations necessitate coordination between various government departments, including the Department of Sustainability, Environment, Water, Population and Communities (DSEWPC), the Department of Agriculture Fisheries and Forestry (DAFF), and the Australian Pesticides and Veterinary Medicines Authority (APVMA), to effectively implement and enforce the export controls. Exporters have been informed of these new requirements through consultations undertaken by these departments, ensuring awareness and compliance with the regulations.
Failure to comply with the provisions of the Customs (Prohibited Exports) Amendment Regulations 2011 (No. 2) can lead to significant legal consequences. The primary penalty for breaching these regulations is the classification of the prohibited exports at the border, which can result in the detention or seizure of the goods. This enforcement action is part of the Customs and Border Protection regime and underscores the seriousness of non-compliance. Although the exact penalties are not specified in the explanatory statement, the implications of such breaches highlight the importance of adhering to the stipulated export controls and permissions to avoid legal and operational challenges.