EXPLANATORY STATEMENT
STATUTORY RULES 1987 NO. 115
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE
The United States and a number of other (mainly NATO) countries, concerned at the implications of access to militarily sensitive dual-use technology, operate through a Co-ordinating Committee for Multilateral Export Controls (“COCOM”) to restrict access to such technology to “eastern-block” countries.
Although not a member of COCOM, Australia has for some years voluntarily adhered to the COCOM objectives by restricting access to dual-use technology to the prescribed eastern-block countries; such a policy generally ensures access by Australia to the United States’ and NATO’s dual-use technology. However, notwithstanding this informal support, the absence of legislative basis for this policy tends to operate to the disadvantage of Australian firms purchasing or tendering on the US market for goods embodying that technology. In December 1985 Cabinet agreed to continue to adhere to the COCOM guidelines for the control of exports, and charged the Minister for Defence with responsibility for devising arrangements for, and administration of, these controls.
The Minister for Defence has established the administrative arrangements for implementing the controls within the Department of Defence.
In addition, in relation to cryptographic equipment, Cabinet also decided that the existing controls be extended to cover all such equipment, and not just equipment of that kind which is designed or adapted for warlike purposes.
The proposed Statutory Rule embodies the established policy in the Customs (Prohibited Exports) Regulations (“the Regulations”) to prohibit the exportation of prescribed goods unless a permission is first obtained, by inserting new regulations 13E and 13F and Schedule 15, which refer to a comprehensive list of the dual-purpose technology published by the Minister for Defence in a Periodic Gazette No. P1 dated 6 January 1987; and also extends the existing coverage of cryptographic equipment in Schedule 13 in accordance with the Cabinet decision.
The amendments provide as follows:
Regulation 1 of the Statutory Rule is a formal machinery provision, to refer to the Customs (Prohibited Exports) Regulations as the “Principal Regulations”.
Regulation 2 of the Statutory Rule inserts new regulations 13E and 13F into the Principal Regulations.
Subregulations 13E(1) and 13E(2) empower the Minister for Defence or an authorized person to grant permission to export to countries specified in Column 2 of the new Schedule 15 (as to which see regulation 4 of the Statutory Rule), goods specified in Gazette No. P1 dated 6 January 1987.
Subregulation 13E(3) provides that a permission shall be granted subject to compliance by the holder of the permission at the time the goods are exported with the following conditions:
a. that the goods are exported within 6 months of the granting of the permission, or such longer period as is specified in the permission - paragraph 13E(3)(a);
b. that the goods are exported to a person specified in the permission, to a country specified in the permission - paragraph 13E(3)(b);
c. that the holder will, if required, provide undertakings or obtain undertakings from a consignee, relating to the re-export or disposal of the goods - paragraph 13E(3)(c);
d. that the holder will, if required, specify the procedures to be followed to verify that undertakings given by a consignee have been complied with - paragraph 13E(3)(d);
d. that the holder will, if required, provide evidence that undertakings given by a consignee have been complied with - paragraph 13E(3)(e);
Subregulations 13E(4), 13E(5) and 13E(6) provide that, with the consent of the Minister for Defence or an authorized person, a permission may be surrendered in exchange for a permission to export goods of the kind to which the surrendered permission relates, and that the permission so granted may be varied or modified from the surrendered permission as the case requires.
Subregulation 13E(7) provides that the Minister for Defence or an authorized person may revoke a permission where the holder has failed to comply with a condition specified in the permission.
Regulation 13F provides that the Minister or an authorized person may, by notice published in the Gazette, declare that a permission shall cease to have force from a day specified in the notice.
Regulation 4 of the Statutory Rule inserts new Schedule 15 into the Regulations, to provide a list of countries in respect of which a permission is required to export those goods specified in Gazette No. P1 dated 6 January 1987. The countries are:
Afghanistan;
Albania;
Bulgaria;
Czechoslovakia;
Democratic People’s Republic of Korea;
German Democratic Republic;
Hungary;
Mongolian People’s Republic;
People’s Republic of China;
Poland;
Romania;
Union of the Soviet Socialist Republics;
Vietnam;
Amendments relating to cryptographic equipment
• Regulation 13B of the Regulations provides that goods specified in Schedule 13 to the Regulations shall not be exported without the permission of the Minister of State for Defence.
Regulation 3 of the Statutory Rule extends Schedule 13 to the Regulations to prevent the export of any cryptographic equipment without the consent of the Minister for Defence, regardless of whether such equipment is designed or adapted for warlike purposes.