Customs (Prohibited Exports) Regulations (Amendment) 1996 No. 69
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 69
Issued by the Authority of the Minister for Small Business and Consumer Affairs
Customs Act 1901
Customs (Prohibited Exports) Regulations (Amendment)
Section 112 of the Customs Act 1901 (the Act) 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 subsection 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 Minister or a specified person.
Background
Subregulations 13CA(1) and (2) of the Regulations prohibit the exportation of all goods the immediate or final destination of which is, or is intended to be, the Republic of Iraq without the permission of the Minister for Foreign Affairs or an authorised person.
Subregulation 13CA(3) of the Regulations provides that the relevant permission may specify the conditions or requirements to which the exportation is subject, the quantity of goods that may be exported and the circumstances in which goods may be exported.
Subregulation 13CA(4) of the Regulations provides that:
"The Minister may revoke or modify a permission granted under subregulation (2) if the Minister is satisfied on reasonable grounds that:
(a) a condition or requirement of the permission has not been complied with; or
(b) permitting, or continuing to permit, the exportation of goods in accordance with the permission would infringe the international obligations of Australia".
The Attorney-General's Department has advised that subregulation 13CA(4) of the Regulations indicates the only circumstances in which a permission may be revoked or modified. As a consequence of the limited interpretation that has been given to the relevant subregulations difficulties have occurred in relation to exports to Iraq. This restrictive interpretation would not allow the Minister to modify a permission at the request of an exporter who is not able to comply with the conditions of a permission, even if the Minister was disposed to agree to the request to modify and the modification is within the scope of the Security Council's sanctions against Iraq.
Regulation 2 amends paragraph 13CA(4)(a) to expand the circumstances when a permission may be revoked or modified to provide that it may be revoked or modified when "a condition or requirement of the permission has not been complied with or, unless modified, is unlikely to be complied with."
The Regulations commenced on gazettal.
Overview
The Customs (Prohibited Exports) Regulations (Amendment) 1996 No. 69, issued under the authority of the Minister for Small Business and Consumer Affairs, amends the Customs (Prohibited Exports) Regulations to address specific issues related to the interpretation of the regulatory framework governing the exportation of goods to the Republic of Iraq. The Customs Act 1901 empowers the Governor-General to prohibit the exportation of goods from Australia, and the regulations further define circumstances under which such prohibitions may be subject to specified conditions or require ministerial permission. This amendment aims to resolve difficulties encountered due to the restrictive interpretation of existing provisions, particularly those concerning the revocation or modification of permissions granted for exports to Iraq. By broadening the circumstances under which a permission may be revoked or modified, the Regulations now allow for greater flexibility in managing export permissions, ensuring they align with Australia’s international obligations and the specific requirements of the Security Council’s sanctions against Iraq.
Scope and Application
The Customs (Prohibited Exports) Regulations (Amendment) 1996 No. 69 applies to the exportation of goods from Australia to the Republic of Iraq, specifically targeting entities and individuals intending to export goods to this destination. It governs the conditions under which exports may proceed, necessitating permissions from the Minister for Foreign Affairs or an authorised person. The regulations mandate that any export to Iraq must comply with specified conditions or restrictions, and the permission to export may be subject to further stipulations such as the quantity of goods, specific circumstances, and conditions outlined by the Minister. The amendment introduced by the Customs (Prohibited Exports) Regulations (Amendment) 1996 No. 69 allows for the revocation or modification of export permissions not only when conditions are not met but also when compliance with the conditions appears unlikely, aligning with international obligations and providing flexibility in managing sanctions against Iraq. These regulations are part of the overarching framework of the Customs Act 1901 and extend to the national jurisdiction of Australia.
Key Provisions
The Customs (Prohibited Exports) Regulations (Amendment) 1996 No. 69 modifies the existing regulations regarding the export of goods to certain countries, particularly focusing on Iraq. Under section 112 of the Customs Act 1901, the Governor-General is empowered to prohibit the export of goods from Australia, and these powers can be exercised through regulations, including prohibiting export unless specific conditions are met (subsections (2) and (2A)). The Regulations themselves specify which goods are subject to these restrictions and under what conditions, if any, they can be exported.
These regulations impose several obligations on parties wishing to export goods to Iraq. Firstly, subregulations 13CA(1) and (2) of the Regulations prohibit the export of any goods to Iraq without the permission of the Minister for Foreign Affairs or an authorised person. Subregulation 13CA(3) further stipulates that any permission granted can include specific conditions, limitations on quantity, and circumstances under which the goods may be exported. Additionally, subregulation 13CA(4) originally allowed the Minister to revoke or modify permissions only if a condition or requirement of the permission had not been complied with, leading to difficulties in practical application.
The amendment introduced by Regulation 2 seeks to address these difficulties by broadening the circumstances under which a permission may be revoked or modified. Specifically, subregulation 13CA(4)(a) is amended to allow for the revocation or modification of a permission if a condition or requirement of the permission has not been complied with or is unlikely to be complied with, unless the permission is modified. This change aims to provide more flexibility to the Minister in managing export permissions, ensuring they align with Australia's international obligations and the practical needs of exporters.
Breaches of these regulations can result in significant consequences. Although the specific offences and penalties are not detailed in the explanatory statement, it is implied that unauthorised exports or non-compliance with the conditions of a granted permission could lead to both civil and criminal penalties. Under the Customs Act 1901, unauthorised exportation of prohibited goods can be subject to substantial fines and, in severe cases, imprisonment. The precise penalties would depend on the nature and extent of the breach, but the regulations underscore the seriousness with which unauthorised exports are treated under Australian law.