EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO. 388
Issued by the Authority of the Minister of State for Primary Industries and Energy
CUSTOMS ACT 1901
CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT)
Section 112 of the Customs Act 1901 provides that the Governor-General may, by regulation, prohibit the exportation of goods from Australia, unless specified conditions or restrictions are complied with. The regulations may provide that the exportation of the goods is prohibited unless a licence, permission, consent or approval to export the goods has been granted as prescribed by the regulations.
Regulation 11 of the Customs (Prohibited Exports) Regulations (the Regulations) prohibits the exportation from Australia of goods specified in the Ninth Schedule of the Regulations unless an approval in writing to the exportation of the goods issued by the Minister of State for Primary Industries and Energy or by an authorized person is produced to the Collector of Customs.
The proposed regulation will amend the Regulations by omitting from subregulations 11(1) and 11(2) “Ninth Schedule” and substituting “Schedule 9”, and will repeal the Ninth Schedule of the Regulations and substitute Schedule 9.
Schedule 9 revises the Ninth Schedule to incorporate changes flowing principally from Australia’s international nuclear non-proliferation commitments, including as a participating nation in COCOM (Co-ordinating Committee).
Australia became a member of COCOM in early 1989. Our participation requires that our system of export controls gives coverage to goods listed in the COCOM International Atomic Energy List. The exercise of export controls on such goods is of strategic importance in limiting the proliferation of nuclear technology having military application.
As a means of implementing its commitments under the Treaty on the Non-Proliferation of Nuclear Weapons, Australia exercises export controls on equipment and materials included in the so-called Zangger Trigger List. Nations adhering to these controls have concluded a clarification exercise relating to the enrichment or separation of isotopes of uranium by gaseous diffusion. Revisions incorporated in Schedule 9 reflect the results of the clarification exercise.
Schedule 9 contains revisions which will assist the free flow of Australia’s export trade in certain technical equipment, consistent with our non-proliferation and COCOM commitments.
The description of fissionable materials in Item 10 of Schedule 9 has been tightened, and now excludes coverage of subgram quantities of plutonium-238 as contained in radioactive sources. Plutonium-238 is not a fissionable isotope of plutonium, and in small quantities is not of proliferation concern. Radioactive sources containing plutonium-238 are regularly exported by an Australian company as part of programmable mineral analysis equipment.
The provisions of Schedule 9 also include revisions to bring up-to-date the use of scientific terms and units, and to improve the clarity of descriptions.
Overview
The Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1989 No. 388, issued by the Authority of the Minister of State for Primary Industries and Energy, amend the Customs (Prohibited Exports) Regulations under the Customs Act 1901. These regulations were enacted to address the need for Australia to align its export control mechanisms with its international commitments, particularly concerning nuclear non-proliferation and participation in the Coordinating Committee for Multilateral Export Controls (COCOM). The primary objective of the amendment is to revise the export prohibitions to ensure that they reflect Australia’s obligations and strategic interests in preventing the proliferation of nuclear technology. This includes updating the descriptions of controlled items to improve clarity and to exclude certain non-proliferation-sensitive materials, such as subgram quantities of plutonium-238 contained in radioactive sources, which are not of strategic concern.
The amendment replaces the Ninth Schedule of the Regulations with Schedule 9, which incorporates changes stemming from Australia's international nuclear non-proliferation commitments, including its role in COCOM. By updating the descriptions and terms used, the regulations aim to facilitate the free flow of legitimate trade in technical equipment while maintaining stringent controls on items that could contribute to nuclear proliferation. This revision process underscores Australia’s dedication to adhering to global non-proliferation standards and ensuring that its export control measures are both effective and aligned with contemporary scientific understanding.
Scope and Application
The Customs (Prohibited Exports) Regulations (Amendment) targets the exportation of goods from Australia that are specified in Schedule 9 of the amended regulations. These regulations apply to all persons and entities involved in the exportation of the listed goods, whether for commercial, industrial, or other purposes. The scope of the regulations is broad, encompassing various industries and sectors that might deal with the export of the specified goods. The amendments are designed to align Australia’s export control measures with its international commitments, particularly those related to nuclear non-proliferation, such as adherence to the COCOM list and the Zangger Trigger List. The regulations are applicable across the Commonwealth of Australia, ensuring a unified approach to the export controls of sensitive goods. Notably, the regulations exclude subgram quantities of plutonium-238 as contained in radioactive sources, recognising that such small quantities are not of significant proliferation concern. The application of these regulations can be further detailed or refined through subordinate instruments issued under the authority of the relevant Minister.
Key Provisions
The Customs (Prohibited Exports) Regulations Amendment (Statutory Rules 1996 No. 351) involves several key changes to the existing regulations concerning the export of goods from Australia. Primarily, the amendment updates the nomenclature of the schedules by replacing "Ninth Schedule" with "Schedule 9" in subregulations 11(1) and 11(2), and it replaces the former Ninth Schedule with a new Schedule 9. This change reflects an alignment with Australia’s international commitments, particularly those related to nuclear non-proliferation under COCOM (Coordinating Committee for Multilateral Export Controls). Schedule 9 revises the list of prohibited export items to ensure they align with the latest international standards and Australia’s obligations under the Treaty on the Non-Proliferation of Nuclear Weapons.
The amendment imposes specific obligations on entities and individuals seeking to export goods listed in Schedule 9. These entities must now obtain written approval from the Minister of State for Primary Industries and Energy or an authorized person before exporting the specified goods. This requirement is designed to ensure compliance with Australia's export control policies and international non-proliferation commitments. The approval process likely includes rigorous checks to verify that the export does not contravene any national or international regulations aimed at preventing the spread of sensitive nuclear technology.
Failure to comply with the provisions of Schedule 9 can lead to significant legal consequences. The Customs Act 1901, under which these regulations operate, stipulates penalties for unauthorized export activities. Specifically, any person who exports goods without the required approval may face civil or criminal penalties. The exact penalties are not specified in the explanatory statement, but under the general provisions of the Customs Act, severe breaches can result in substantial fines and potential imprisonment. It is therefore critical for exporters to ensure they adhere strictly to the updated regulations to avoid facing these severe repercussions.