Explanatory Statement
Statutory Rules 1984 No. 316
Customs (Prohibited Exports) Regulations (Amendment)
Issued by Authority of the Minister of State for Industry and Commerce
Earlier this year, the Government agreed to the establishment of the National Film and Sound Archive within the Department of Home Affairs and Environment. The principal function of the Archive is to be the preservation of moving images and recorded sound which forms part of Australia’s 20th century cultural heritage.
To assist the Archive in its objectives, the exportation from Australia of works embodying moving images and/or recorded sound, made within Australia or its territories more than forty years previously, is prohibited by the attached regulations unless the permission of the Minister for Home Affairs and Environment is first obtained.
The regulations effect this export control by:
(a) Regulation 1 which amends Regulation 13A of the Customs (Prohibited Exports) Regulations by adding a new sub-regulation (1B) which
• defines movies (cinematograph films) and sound recordings in the same way as those terms are defined in the Copyright Act 1968; and
• ensures that the export control is to apply to a film or sound recording that was made in Australia, or in a place that was at that time, or has subsequently become, an External Territory of Australia.
(b) Regulation 2, which amends the Twelfth Schedule to the Customs (Prohibited Exports) Regulations by adding a new item to the list of those goods which are prohibited exports, unless the approval of the Minister for Home Affairs and Environment (or an authorized person) to the exportation of the goods is produced to the Collector. The new item relates to:
• a copy of a cinematograph film or sound recording, made in Australia or its territories more than 40 years ago, and which at some time was published in Australia or elsewhere.
Overview
The Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1984 No. 316, issued by the authority of the Minister of State for Industry and Commerce, was enacted to address the need for the preservation of Australia's 20th-century cultural heritage, specifically moving images and recorded sound. This regulation came into effect following the establishment of the National Film and Sound Archive within the Department of Home Affairs and Environment. The policy objective of these regulations is to prevent the export of such cultural heritage materials from Australia without appropriate authorisation, thereby ensuring their preservation within the country. The regulations achieve this by amending existing customs laws to include a prohibition on the export of films and sound recordings made more than forty years ago, unless permission is granted by the Minister for Home Affairs and Environment.
Scope and Application
The Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1984 No. 316, issued under the authority of the Minister of State for Industry and Commerce, introduce an export control mechanism to support the preservation efforts of the National Film and Sound Archive within the Department of Home Affairs and Environment. This regulation aims to prohibit the exportation of works embodying moving images and recorded sound made in Australia or its territories over forty years ago, unless expressly permitted by the Minister for Home Affairs and Environment. The scope of this regulation encompasses cinematograph films and sound recordings as defined under the Copyright Act 1968, ensuring that the export control applies to works made in Australia or its territories, which at any time were or have since become External Territories of Australia. This control is facilitated by amending Regulation 13A to include a new sub-regulation defining the scope and ensuring applicability to the specified works, and by adding a new item to the Twelfth Schedule of the Customs (Prohibited Exports) Regulations that lists these goods as prohibited exports unless the requisite approval is obtained.
Key Provisions
The key provisions of the Customs (Prohibited Exports) Regulations (Amendment) Statutory Rules 1984 No. 316 involve significant amendments designed to support the preservation objectives of the National Film and Sound Archive. Regulation 1 (1B) introduces a new sub-regulation that redefines "movies" and "sound recordings" as per the definitions provided in the Copyright Act 1968 (section 10(1)). This sub-regulation extends the scope of the export control to include films or sound recordings made in Australia or its territories over forty years ago, regardless of whether those territories were external at the time of creation (section 1(1B)). Regulation 2 adds a new item to the Twelfth Schedule of the Customs (Prohibited Exports) Regulations, prohibiting the export of a copy of a cinematograph film or sound recording produced in Australia or its territories more than forty years ago if it was ever published in Australia or elsewhere, unless authorised by the Minister for Home Affairs and Environment (section 2).
The obligations imposed by these regulations on parties or entities primarily revolve around ensuring compliance with the new export restrictions. Any person or entity intending to export films or sound recordings made over forty years ago must first obtain permission from the Minister for Home Affairs and Environment. This requirement necessitates that any export application includes sufficient evidence that the item falls under the new regulations, including proof of the age and origin of the film or sound recording (section 2). Additionally, the Minister or authorised person must be provided with any necessary documentation to verify the approval for exportation, ensuring that only authorised exports proceed (section 2).
Breach of these regulations can lead to significant consequences. The primary offences relate to the unauthorised export of restricted items, which can be subject to penalties under the Customs Act 1901. Under section 167 of the Customs Act, an offence can result in a fine not exceeding 10,000 penalty units or imprisonment for up to five years, or both, for individuals. For corporations, the maximum penalty is 50,000 penalty units under section 168. Furthermore, the regulations might also attract penalties under other relevant legislation if the breach involves copyright infringement, which can include civil remedies such as damages or an account of profits under the Copyright Act 1968 (section 115(2)). These stringent penalties underscore the importance of adhering to the regulations to prevent the unauthorised export of culturally significant materials.