EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT)
STATUTORY RULES 1990
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE
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 the last preceding sub-section may be exercised - … (b) by prohibiting the exportation of goods to a specified place; or (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 import 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 amend the Regulations to impose trade sanctions against Iraq and Kuwait following the Government’s announcement on 6 August of its acceptance of the United Nations Security Council’s Resolution calling upon member states to immediately implement sanction measures against both countries.
The exportation from Australia of;
any goods to Iraq or Kuwait, or
any goods to a country other than Iraq or Kuwait which are of Iraqi or Kuwaiti origin, or
any goods which the Minister certifies that he or she has reasonable grounds for believing are of Iraqi or Kuwaiti origin, or which the Minister certifies that he or she has reasonable grounds for believing that the ultimate destination of the goods is Iraq or Kuwait,
will be prohibited unless the permission in writing of the Minister or an authorised person to export the goods has been granted and is produced to a Collector of the Australian Customs Service.
The prohibition regime allows exceptions via Ministerial permission (which is the standard export and import control regime), which will accommodate the special case situations for trade with both countries; eg. the humanitarian exemption noted in the United nations Resolution, for instance.
(S.R./SO)
Overview
The Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1990, issued under the authority of the Minister of State for Industry, Technology and Commerce, were enacted to address the need for Australia to implement United Nations Security Council sanctions against Iraq and Kuwait in response to their actions. These regulations amend the Customs (Prohibited Exports) Regulations to prohibit the exportation of goods to Iraq or Kuwait, or to any other country from Australia if the goods are of Iraqi or Kuwaiti origin, or if the Minister certifies that the goods are of Iraqi or Kuwaiti origin or that their ultimate destination is Iraq or Kuwait. The regulations were introduced to align Australia’s trade practices with the international sanctions aimed at pressuring Iraq and Kuwait, while also allowing for exceptions via Ministerial permission to accommodate special cases such as humanitarian needs.
Scope and Application
The Customs (Prohibited Exports) Regulations, as amended by the Statutory Rules, apply to all goods that are to be exported from Australia to Iraq or Kuwait, or to any other country from Australia if those goods are of Iraqi or Kuwaiti origin. The Regulations also cover goods that the Minister certifies to be of Iraqi or Kuwaiti origin or destined for Iraq or Kuwait. This prohibition applies unless written permission to export these goods has been granted by the Minister or an authorised person, which must then be presented to a Collector of the Australian Customs Service. The Regulations thus extend the application of the Customs Act 1901 to enforce trade sanctions against Iraq and Kuwait, in line with the United Nations Security Council’s Resolution. The Regulations provide for exceptions through Ministerial permission, allowing for special cases such as humanitarian exemptions. The scope of the Act is national, applying across all states and territories within Australia, and its implementation is overseen by the Australian Customs Service.
Key Provisions
The primary sections of the Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1990 (Sections 1 and 2) specify that the exportation of goods from Australia to Iraq and Kuwait is prohibited, except where the Minister or an authorised person has granted written permission. This prohibition extends to goods of Iraqi or Kuwaiti origin, or goods that the Minister has reasonable grounds to believe are of Iraqi or Kuwaiti origin, or that are destined for Iraq or Kuwait. Section 2A allows for the inclusion of conditions or restrictions on the exportation of these goods, including the requirement for a licence or approval to import such goods. The Regulations provide a framework for controlling the exportation of these specified goods by prohibiting their export unless certain conditions are met.
The obligations imposed by the Regulations on parties or entities governed by them are significant. Exporters must ensure that they do not export the specified goods to Iraq or Kuwait, or any other country if the goods are of Iraqi or Kuwaiti origin, unless they have obtained written permission from the Minister or an authorised person. This permission must be presented to a Collector of the Australian Customs Service. Additionally, the Minister has the authority to certify goods as being of Iraqi or Kuwaiti origin or as destined for Iraq or Kuwait, further enforcing the prohibition. These obligations necessitate thorough due diligence and compliance measures to avoid inadvertently contravening the Regulations.
Failure to comply with the provisions of the Regulations can result in serious consequences. The Regulations do not explicitly outline the penalties for breach, but under the Customs Act 1901 (Section 133), any contravention of the Act or the Regulations can lead to criminal charges. This can include fines of up to $22,000 for individuals and up to $220,000 for corporations, as well as potential imprisonment for up to five years for individuals and seven years for corporations. Additionally, the Minister has the authority to seize any goods that are subject to the prohibition, further emphasising the seriousness of non-compliance with these regulations.