EXPLANATORY STATEMENT
CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 NO. 146
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.”.
The Customs (Prohibited Exports) Regulations (the Regulations), impose restrictions on goods specified in Schedules to the Regulations, by prohibiting exportation absolutely, or subject to the permission of a specified Minister of State.
Regulation 13E prohibits the exportation of goods specified in Gazette No. P6 of 23 March 1989 (“COCOM” goods, ie. “dual-use” technology goods; military and civilian), without a permission or licence granted by the Minister for Defence.
The latest revision of the Gazette, No. P11 of Friday 2 March 1990 contains all the changes resulting from decisions taken by the Co-ordinating Committee for Multilateral Export Controls (“COCOM”) Committee during the 12 months up to February 1990. (A summary of the major features of the revision appears in the Attachment to this Statement).
As a member of COCOM it is now appropriate that Australia pass legislation in terms which will prohibit, without permission, the exportation of the revised list of goods.
This Statutory Rule amends subregulation 13E(2) to substitute a reference to the revised Gazette, and thereby make that revised list subject to the export controls contained in the regulations.
(S.R. 92/90)
Summary of Changes
The proposed Gazette No. P11 dated Friday 2 March 1990 differs from its predecessor No. P6 dated 23 March 1989 in three significant areas of technology and relaxes controls in a number of other less significant technologies. The three significant changes are:
a. The decontrol of personal computers up to a Processing Data Rate of 69 million bits per second vice the previous limit of 6.5 million bits per second. The effect of this decontrol is to recognise the free market availability of these personal computers which are in common usage in the domestic and small business sectors.
This decontrol should remove a significant administrative load from Australian exporters.
b. The removal of the following Items:
Item Description
1133 (Valves, cocks and regulators made of Titanium alloy);
1142 (certain fluorocarbon tubing);
1352 (nozzles, dies and extruder barrels for the processing of certain fluorocarbon material);
1649 (Niobium based alloys);
1658 (Molybdenum alloys);
1670 (Tantalum and its alloys);
1671 (Titanium alloys); and
1674 (Vanadium and its alloys).
The decontrol of these goods is not likely to impact greatly on Australian business and is more an indicator or their greater world wide availability.
c. The addition of new Item 1302 (specially designed nozzles for the handling of pyrolitically derived materials). This technology is highly specialised and affects the more sophisticated aerospace industry.
The control is unlikely to impact significantly on Australian industry.
Overview
The Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1990 were enacted to address the need for Australia to align its export control regulations with the latest decisions of the Co-ordinating Committee for Multilateral Export Controls (COCOM). These rules were issued under the authority of the Minister of State for Small Business and Customs in accordance with section 112 of the Customs Act 1901, which empowers the Governor-General to prohibit the exportation of goods from Australia, either absolutely or subject to specified conditions and restrictions. This amendment specifically updates Regulation 13E to reflect the changes in the COCOM list, ensuring that Australia's export controls remain consistent with international agreements and effectively regulate the export of dual-use technology goods.
The amendments to the Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1990 were designed to address discrepancies between the previous list of controlled goods and the updated list issued by COCOM. These changes include the decontrol of certain high-performance personal computers to reflect their widespread availability, the removal of specific items such as various alloy materials which have become more globally accessible, and the introduction of controls on specially designed nozzles for handling pyrolitically derived materials, which are relevant to the advanced aerospace industry. The overarching policy objective of these amendments is to ensure that Australia's export regulations are both responsive to technological advancements and supportive of international export control efforts.
Scope and Application
The Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1990, issued under the authority of the Minister of State for Small Business and Customs, amend the existing regulations to align with the latest list of controlled goods published by the Co-ordinating Committee for Multilateral Export Controls (COCOM). These regulations apply to all persons and entities within Australia, including individuals, corporations, and government bodies, who seek to export specified goods from the country. The geographic reach of these regulations is national, encompassing all states and territories within Australia. They pertain specifically to the exportation of dual-use technology goods, military equipment, and other items listed in the amended Gazette No. P11 of 2 March 1990, replacing the previous list in Gazette No. P6 of 23 March 1989. The regulations impose an absolute prohibition on the exportation of these goods unless permission or a licence is granted by the Minister for Defence. Notably, the amendments relax controls on certain technologies, such as personal computers, and impose stricter controls on specialised aerospace technologies, reflecting the updated decisions of the COCOM. The application of these regulations may be further extended or restricted through subordinate instruments, ensuring that the legislative framework remains responsive to international developments and national security considerations.
Key Provisions
The Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1990 No. 146 (the Amendment) updates the list of prohibited exports in line with recent decisions from the Co-ordinating Committee for Multilateral Export Controls (COCOM) (Regulation 13E(2)). The Amendment substitutes the previous Gazette No. P6 of 23 March 1989 with Gazette No. P11 of 2 March 1990, incorporating changes in export controls for certain technologies and materials. Specifically, Regulation 13E now prohibits the export of the updated list of goods without a licence from the Minister for Defence.
The Amendment imposes obligations on parties seeking to export the specified goods, requiring them to obtain a licence from the relevant Minister. Exporters must ensure that their activities comply with the updated list of controlled items, and failure to do so may result in significant legal consequences. The Regulations ensure that Australian exports align with international export control standards, reflecting Australia’s commitment to multilateral agreements.
Under the Customs Act 1901, failure to comply with the Regulations may lead to severe penalties. Section 178 of the Act provides that any person who contravenes the Regulations may be liable to a penalty. For corporations, the maximum penalty can reach up to $210,000 for a single offence, and up to $1,050,000 for continuing offences. Individual offenders may face penalties of up to $21,000 for a single offence, and up to $105,000 for continuing offences. Additionally, criminal prosecution may lead to imprisonment, with maximum terms varying based on the severity and frequency of the breach. These stringent penalties underscore the importance of strict compliance with the export controls outlined in the Regulations.