Customs (Prohibited Exports) Regulations (Amendment)

Overview

The Customs (Prohibited Exports) Regulations (Amendment) 1997 No. 381 were enacted by the Minister for Small Business and Consumer Affairs and issued under the authority of the Customs Act 1901. This amendment was introduced to address the need for tighter controls on the exportation of goods that are considered objectionable, aligning with the Government's decision to prohibit the export of refused classification materials as recommended by the Committee of Ministers on the Portrayal of Violence in July 1996. The primary objective of these amendments is to implement export controls on certain goods that are similar to the import controls already in place. This involves prohibiting the exportation of objectionable goods unless a written permission to export is granted by the Attorney-General or an authorised person, ensuring that such exports comply with community standards and do not promote harmful content.

Scope and Application

The Customs (Prohibited Exports) Regulations (Amendment) 1997 No. 381, pursuant to section 112 of the Customs Act 1901, introduces amendments that apply to the exportation of goods from Australia. Specifically, these amendments aim to align Australian export controls with the import controls by prohibiting the export of certain objectionable goods, unless a written permission is obtained from the Attorney-General or an authorised person. The goods in question include those that deal with themes such as sex, drug misuse, crime, violence, or those that are unsuitable for minors, as well as materials that promote or incite criminal activity or drug misuse. The amendment introduces a new regulation 3 that mandates the granting of permissions by the Attorney-General or the Director or Deputy Director of the Classification Board, with provisions for conditions, review, and the issuance of statements of reasons for decisions made. The Regulations extend to the entire Commonwealth of Australia and apply to all individuals and entities involved in the exportation of the specified goods.

Key Provisions

The Customs (Prohibited Exports) Regulations (Amendment) 1997 No. 381 introduces new provisions under the Customs Act 1901 to control the export of objectionable goods, similar to the import controls on those goods. Specifically, the amendment introduces new regulation 3 (subregulation 3(3)) to prohibit the exportation of objectionable goods unless a written permission to export has been granted by the Attorney-General or an authorised person. An authorised person, as defined in subregulation 3(3), can only be the Director or Deputy Director of the Classification Board established by section 45 of the Classification (Publications, Films and Computer Games) Act 1995. The goods to which these controls apply are those that describe, depict or deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a way that offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that the goods should not be exported (subregulation 3(2)(a)), depict a person who is, or who looks like, a child under 16 in a way that is likely to cause offence to a reasonable adult (subregulation 3(2)(b)), are unsuitable for a person under 18 to see or play in relation to a computer game (subregulation 3(2)(c)), promote, incite or instruct in matters of crime or violence (subregulation 3(2)(d)), or promote or incite the misuse of a drug specified in Schedule 4 to the Customs (Prohibited Imports) Regulations (subregulation 3(2)(e)). The amendment imposes obligations on the parties or entities it governs. Firstly, the Attorney-General or an authorised person must have regard to certain matters when deciding whether to grant a permission to export objectionable goods (subregulation 3(5)). Secondly, a permission may be granted subject to conditions, noncompliance with which may result in the revocation of the permission (subregulation 3(6) and 3(7)). Thirdly, a decision in relation to a permission may be reviewed by the Administrative Appeals Tribunal (subregulation 3(8)), unless the Attorney-General grants a conclusive certificate excluding that review mechanism (subregulations 3(9) to 3(12)). Fourthly, the Attorney-General or an authorised person must provide a statement of reasons for decisions made under proposed new regulation 3, such as refusing a permission, revoking a permission, or granting a permission subject to conditions (subregulations 3(14) and 3(15)). However, a failure to provide a statement of reasons in relation to a decision does not affect the validity of that decision (subregulation 3(16)). The amendment does not specify any offences, penalties, or civil/criminal consequences for breach. However, the Customs Act 1901 provides for offences and penalties for breach of the Act or the Regulations. For example, section 174 of the Act provides that a person who contravenes the Act or the Regulations is guilty of an offence and liable to a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 12 months, or both. Section 175 of the Act provides that a person who contravenes a condition of a licence is guilty of an offence and liable to a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 6 months, or both. Section 176 of the Act provides that a person who is convicted of an offence against the Act or the Regulations is liable to pay compensation to any person who suffers loss or damage as a result of the offence.