Customs (Prohibited Exports) Regulations (Amendment) 1997 No. 382
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 382
Issued by the Authority of the Minister for Customs and Consumer Affairs
Customs Act 1901
Customs (Prohibited Exports) Regulations (Amendment)
Section 112 of the Customs Act 1901 ("the Act") provides in part that:
"(1) The Governor-General may, by regulation, prohibit the exportation of goods from Australia.
(2) The power conferred by subsection (1) may be exercised - ... (c) by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.
(2A) Without limiting the generality of paragraph (2)(c), the regulations - ... (a) may provide that the exportation of the goods is prohibited unless a licence, permission, consent or approval to export the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations;
The Customs (Prohibited Exports) Regulations ("the Regulations") control the exportation of the goods specified in the Regulations or the Schedules to the Regulations, by prohibiting exportation absolutely, or making exportation subject to the permission of a Minister or an authorised person.
The purpose of these Regulations is to:
(a) impose sanctions against Uniao Nacional Para A Independencia Total De Angola ("UNITA") in accordance with United Nations Security Council ("UNSC") Resolutions 1127 of 28 August 1997 and 1135 of 29 October 1997; and
(b) impose sanctions against Sierra Leone in accordance with UNSC Resolution 1132 of 8 October 1997.
Sanctions against UNIT
Existing regulation 13CE of the Regulations provides that the exportation of petroleum and petroleum products to Angola is prohibited unless the written permission of the Minister for Foreign Affairs or an authorised officer of the Department of Foreign Affairs and Trade is produced to a Collector at or before the time of exportation. Regulation 13CE was made in accordance with UNSC 864 of 15 September 1993 in order to prohibit the sale or supply to UNITA of petroleum and petroleum products. UNITA is a rebel force currently engaged in armed conflict with the Government of Angola.
These amendments to the Regulations impose increased sanctions on UNITA in accordance with Australia's obligation as A member of the United Nations to give effect to UNSC Resolutions 1127 of 28 August 1997 and 1135 of 29 October 1997. UNSC Resolutions 1127 and 1135 prohibit "the supply of or making available in any form, any aircraft or aircraft components to the territory of Angola other than through named points of entry".
Regulation 2.1 inserts 2 new subregulations into regulation 13CE to give effect to UNSC Resolutions 1127 and 1135 by prohibiting the exportation to Angola of aircraft, or aircraft components, that are not listed in Part 1 of the defence and strategic goods list mentioned in regulation 13E unless the written permission of an authorised person is produced to a Collector at or before the time of exportation. As the defence export controls under existing regulation 13E can be utilised to control the exportation of military aircraft to Angola, this amendment will "cover the field" by extending the export controls to all other aircraft not already covered by regulation 13E.
Sanctions against Sierra Leo
These amendments to the Regulations to impose increased sanctions on Sierra Leone in accordance with Australia's obligation as a member of the United Nations to give effect to UNSC Resolution 1132 of 8 October 1997. UNSC Resolution 1132 requires Australia to, among other things, prevent the sale or supply to Sierra Leone of petroleum and petroleum products and arms and related materials of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts ...".
Regulation 3.1 inserts new regulation 13CH to give effect to UNSC Resolution 1132 by:
(i) prohibiting the exportation of petroleum or a petroleum product to Sierra Leone unless the written permission of an authorised person is produced to a Collector at or before the time of exportation (subregulation 13CH(1) refers); and
(ii) prohibiting absolutely the exportation of paramilitary equipment and spare parts for such equipment to Sierra Leone (subregulation 13CH(3) refers).
The defence export controls already in place under existing regulation 13E can be utilised to give effect to that part of UNSC Resolution 1132 that relates to arms, weapons, ammunition, military vehicles and equipment and spare parts.
The Regulations are explained in detail in the Attachment.
The Regulations commenced gazettal.
ATTACHMENT
Regulations 1 - Amendment
Subregulation 1.1 provides for the Customs (Prohibited Exports) Regulations to be amended as set out in these Regulations.
Regulation 2 - Regulation 13CE (exportation of certain goods to Angola)
Subregulation 2.1 amends regulation 13CE by inserting 2 new subregulations. to control the exportation to Angola of aircraft other than military aircraft, in accordance with Australia's obligation as a member of the United Nations to give effect to UNSC Resolutions 1127 of 28 August 1997 and 1135 of 29 October 1997. (The defence exports controls in existing regulation 13E can be utilised to control the exportation of military aircraft to Angola.)
New subregulation 13CE(4A) prohibits the exportation of aircraft and aircraft components of a kind not listed in Part 1 of the defence and strategic goods list mentioned in existing regulation 13E, the immediate or final destination of which is, or is intended to be, Angola unless the permission of an authorised person is produced to a Collector at or before the time of exportation.
* Regulation 13E and the defence and strategic goods fist set out Australia's current defence exports controls.
* An "authorised person" is defined in existing subregulation 13CE(5) as the Minister for Foreign Affairs or an officer of the Department of Foreign Affairs authorised in writing by the Minister for the purposes of this regulation.
New subregulation 13CE(4B) requires an authorised person, when deciding whether to give permission under subregulation (4B), to take into account:
* whether the proposed point of entry into Angola is one nominated in accordance with UNSC Resolution 1127;
* Australia's relations with other countries; and
* Australia's obligations under International law.
Regulation 3 - New Regulation 13CH
Subregulation 3.1 inserts new regulation 13CH into the Regulations to control the exportation of certain goods to Sierra Leone in accordance with Australia's obligation as a member of the United Nations to give effect to UNSC Resolution 1132 of 8 October 1997.
New subregulation 13CH(1) prohibits the exportation of petroleum and petroleum products, the immediate or final destination of which is, or is intended to be, Sierra Leone, unless the written permission of an authorised person is produced to a Collector at or before the time of exportation.
* Technical definitions for "petroleum" and "petroleum product" are set out in new subregulation 13CH(5).
* An "authorised person" is defined in new subregulation 13CH(5) as the Minister for Foreign Affairs or an officer of the Department of Foreign Affairs authorised in writing by the Minister for the purposes of this regulation.
New subregulation 13CH(2) requires an authorised person, when deciding whether to give permission under subregulation (4B), to take into account:
* the terms of UNSC Resolution 1132;
* Australia's relations with other countries; and
* Australia's obligations under International law.
New subregulation 13CH(3) provides that the prohibition in subregulation (1) does not apply to a supply of petroleum or petroleum product, the importation of which into Sierra Leone is authorised by the Committee of the UNSC established under paragraph 10 of UNSC Resolution 1132. That Committee may authorise importations of petroleum or petroleum products into Sierra Leone upon application of the democratically-elected Government of Sierra Leone or upon application by other government or United Nations Agencies for specified purposes.
New subregulation 13CHF(4) provides for an absolute prohibition on the exportation of paramilitary equipment (and spare parts) the immediate or final destination of which is or is intended to be, Sierra Leone.
* "Paramilitary equipment" is defined in new subregulation 13CH(5) and includes such items as batons, clubs, riot sticks, handcuffs, whips and body armour.
Regulation 4 - Regulation 13H (Certain applications to be referred)
Subregulations 4.1, 4.2 and 4.3 effect technical amendments to existing regulation 13H of the Regulations consequential to the insertion of the new permission granting powers in new subregulations 13CE(4A) and 13CH(1). The effect of these amendments is that if, when considering an application under one of the relevant provisions, an authorised officer who is an officer of the Department of Foreign Affairs and Trade is of the opinion that a permission should not be granted, that application must be referred to the Minister for Foreign Affairs for final decision.