Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 242
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 242
Issued by the Authority of the Minister for Small Business, Customs and Construction
Customs Act 1901
Customs (Prohibited Exports) Regulations (Amendment)
Section 112 of the Customs Act 1901 (the Act) providing in part that:
"(1) The Governor-General may, by regulation, prohibit the exportation of goods from Australia.
(2) The power conferred by subsection (1) maybe exercised -..(c) by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.
(2A) Without limiting the generality of subparagraph (2)(c), the regulations -...(a) may provide that the exportation of 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; ......
The Customs (Prohibited Exports) Regulations (the Regulations) control the exportation of 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 Minister or a specified person.
Regulation 13C of the Regulations prohibits the exportation of goods from Australia to the Republic of South Africa as specified in Schedule 14 of the Regulations unless an approval in writing to the exportation of the goods issued by the Minister for Foreign Affairs and Trade or an authorised person is produced to a Collector of Customs.
On 25 May 1994 the United Nations Security Council, by Resolution 919, decided to lift the arms embargo against South Africa, imposed by Resolutions 418 (1977), 558 (1984) and 591 (1986). The Australian High Commission in London also advised the Department of Foreign Affairs and Trade that Commonwealth Secretary-General Anyaoku considered that the trigger for the lifting of the Commonwealth arms embargoes had been met by the election of a non-racial democratic Government of National Unity in South Africa.
Regulation 13C and Schedule 14 of the Customs (Prohibited Exports) Regulations give effect to Australia's obligation as a member of the United Nations to control the exportation of arms (amongst other goods) to South Africa. In order to implement the lifting of the arms embargo, the regulations omit regulation 13C and Schedule 14 (regulations 2 and 3 refer).
The proposed Regulations would commence on gazettal.
The minute recommends that Regulations be made in the form prepared.
Authority: Section 112 of the Customs Act 1901
Overview
The Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 242 was enacted to amend the Customs (Prohibited Exports) Regulations under the Customs Act 1901. This amendment was introduced in response to the lifting of the arms embargo against South Africa by the United Nations Security Council Resolution 919 on 25 May 1994, which followed the election of a non-racial democratic Government of National Unity in South Africa. This change necessitated an update to the existing regulations to align with the new international obligations and commitments. The amendment, issued by the Authority of the Minister for Small Business, Customs and Construction, removes the prohibition on the exportation of goods to South Africa, as previously stipulated in Regulation 13C and Schedule 14, thereby facilitating the lifting of the arms embargo and reflecting Australia’s compliance with the UN resolutions. The proposed changes were to take effect upon gazettal, ensuring timely adherence to the new international directives.
Scope and Application
The Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 242 amends the Customs (Prohibited Exports) Regulations under the authority of Section 112 of the Customs Act 1901, which empowers the Governor-General to prohibit the exportation of goods from Australia through regulation. These regulations apply to the exportation of goods from Australia to specified destinations, in this case, the Republic of South Africa, and are designed to enforce Australia's obligations as a member of the United Nations. The regulations prohibit the export of goods unless a licence, permission, consent, or approval has been granted as prescribed. Specifically, Regulation 13C of the original Regulations, which required written approval from the Minister for Foreign Affairs and Trade or an authorised person for the export of goods to South Africa, is omitted to reflect the lifting of the United Nations arms embargo against South Africa, as confirmed by Resolution 919. This amendment ensures that Australia's regulations align with international obligations and the new political landscape in South Africa, effectively updating the export control mechanisms in response to significant geopolitical changes.
Key Provisions
The Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 242 amends the Customs (Prohibited Exports) Regulations under Section 112 of the Customs Act 1901. Specifically, the Amendment omits Regulation 13C and Schedule 14 of the existing Regulations, which previously prohibited the exportation of goods to the Republic of South Africa unless approved in writing by the Minister for Foreign Affairs and Trade or an authorised person. This amendment was made in response to the lifting of the arms embargo against South Africa by the United Nations Security Council Resolution 919 on 25 May 1994. The resolution decided to lift the embargo imposed by previous resolutions 418 (1977), 558 (1984) and 591 (1986), and the Australian High Commission in London advised that the Commonwealth arms embargoes had been met due to the election of a non-racial democratic Government of National Unity in South Africa.
These Regulations impose obligations on parties involved in the exportation of goods to South Africa. They require that any person or entity wishing to export goods to South Africa must now comply with the general export controls under the Customs Act and any other applicable Australian legislation. However, the specific requirement for written approval from the Minister for Foreign Affairs and Trade or an authorised person, as previously stipulated in Regulation 13C, is no longer applicable following the amendment. This change streamlines the export process by removing a specific regulatory barrier, while still maintaining oversight through broader customs and trade regulations.
Breach of the Customs Act 1901 or the Customs (Prohibited Exports) Regulations can lead to various civil and criminal penalties. Under Section 201 of the Customs Act, a person who contravenes the Act or the Regulations may be subject to a penalty of up to 10,000 penalty units, which currently equates to AUD 1,100,000. In more serious cases, an individual offender may face imprisonment for up to five years. Corporate entities may face higher penalties, with the maximum fine increasing to 50,000 penalty units or 10% of the corporation's turnover, whichever is greater. Additionally, the Act provides for the confiscation of goods involved in the breach and the imposition of other civil penalties as deemed appropriate by the courts. These stringent measures underscore the importance of compliance with Australian customs and export regulations.