EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 NO. 125
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS
Section 112 of the Customs Act 1901 provides in part that:
“(1) The Governor-General may, by regulation, prohibit the exportation of goods from Australia.
(2) The power conferred by sub-section (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; and ...”
The Customs (Prohibited Exports) Regulations (“the Regulations”) control the exportation of the goods specified in the various Regulations or the Schedules to the Regulations, by prohibiting exportation absolutely, or making exportation subject to the permission of a specified person or Minister of State.
The Statutory Rules contain several amendments to the Regulations which:
i) provide a review by the Minister in cases where an authorised person has refused to grant a permission to export goods referred to in Regulation 9 or Regulation 11, to give effect to commentary by the Senate Standing Committee on Regulations and Ordinances concerning the need to restrict authorised person’s powers in these situations; and
ii) modernise certain parts of the Regulations, consistent with current drafting style.
Background
i) Amendment to the Regulations to take account of comments by the Senate Standing Committee on Regulations and Ordinances in relation to powers exercised by an authorised person under the Customs (Prohibited Exports) Regulations generally
This amendment has been inserted to take account of the comments made by the Senate Standing Committee on Regulations and Ordinances in 1987 in relation to the Customs (Prohibited Exports) Regulations generally. The Committee opined that where decisions involving “high Government” policy are made by public servants (for example, decisions relating to the refusal to grant export permissions on industry policy, national security, or national health grounds), it was undesirable to permit such persons to exercise such powers without the facility of having their decision reviewed by the Minister.
• The criticism of the Committee is well taken; over the last two years, both the Customs (Prohibited Imports) and (Prohibited Exports) Regulations have been progressively amended to provide such a review facility. The proposed amendments to regulations 9 and 11 continue that process.
ii) Modernisation of the Regulations consistent with current drafting style
Several minor technical amendments have been made, the intention of which is to modernise the Regulations consistent with current drafting style.
Detail of the amendments are as follows:
Regulation 1: is a machinery provision which defines the Customs (Prohibited Exports) Regulations as the “Principal Regulations” for the purposes of these Statutory Rules.
Regulation 2: is a minor technical amendment, the purpose of which is to “modernise” the Principal Regulations consistent with current drafting style, by substituting the reference to the “Third Schedule” in Regulation 5 of the Principal Regulations with a reference to “Schedule 3.”
Regulation 3: is a minor technical amendment as above but with respect to Schedule 6, as mentioned in Regulation 8 of the Principal Regulations
Regulation 4: is a minor technical amendment to alter the spelling of “authorized” in Regulation 11 of the Principal Regulations.
Regulation 5: is a minor technical amendment similar to Regulation 2, but with respect to Schedule 10, as mentioned in Regulation 12 of the Principal Regulations.
Regulation 6: amends Regulation 13H of the Principal Regulations to restrict the powers that an authorised person may exercise under Regulations 8 and 11 of the Principal Regulations. By doing this, it extends the scope of Regulation 13H to cover permissions granted under subregulation 9(3) and approvals granted under subregulation 13D(2) and licences issued or permissions granted under Regulation 13B and subregulation 13E(2).
Regulation 6(a) of the Statutory Rules amends Regulation 13H of the Principal Regulations to provide that where an authorised person has formed an opinion that a permission should not be granted under subregulation 9(3) or 13D(2), or an approval should not be granted under Regulation 11, or a licence or permission should not be issued or granted under Regulation 13B or subregulation 13E(2), then that authorised person shall refer the matter to the relevant Minister (new subregulation 13H(1)). New subregulation 13H(2) of the Principal Regulations provides that on the matter being referred to the Minister, he or she must then grant or issue, or refuse to grant or issue the licence, approval or permission. New subregulation 13H(3) provides that the power of the relevant Minister or an authorised person to attach conditions or requirements to any permissions or licences is not affected by this Regulation.
Regulation 6(b) of the Statutory Rules defines “relevant Minister” for the purposes of a permission under subregulation 9(3) or an approval under Regulation 11, as being the Minister of State for Primary Industries and Energy.
Regulation 7: is a minor technical amendment repealing Regulation 15 as it is considered unnecessary to refer to the superseded Statutory Rules concerned.
Regulation 8: is a minor technical drafting amendment, omitting “The Schedules” from the Schedules to the Principal Regulations
Regulation 9: is a minor technical amendment, the purpose of which is to “modernise” the Principal Regulations consistent with current drafting style, by substituting the title Third Schedule with Schedule 3.
Regulation 10: is a minor technical amendment with the same purpose as Regulation 9, in respect of Schedule 6.
Regulation 11: is a minor technical amendment with the same purpose as Regulation 9, in respect of Schedule 7.
Regulation 12: is a minor technical amendment with the same purpose as Regulation 9, in respect of Schedule 8.
Regulation 13: is a minor technical amendment with the same purpose as Regulation 9, in respect of Schedule 10.
Regulation 14: provides for further minor technical amendments as set out in the Schedule to the proposed Statutory Rules; the purpose of each is the “modernise” the Principal Regulations consistent with current drafting style.