Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 392
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 392
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) provides in part that:
"(1) The Governor-General may, by regulation, prohibit the exportation of goods from Australia.
2) The power conferred by subsection (1) 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 specified person.
At present regulation 13B prohibits the exportation from Australia of goods identified in Schedule 13 to the Regulations unless the Minister for Defence or an authorised person grants a permission or licence to enable such an exportation to take place. Subregulation 13B(1) of the Regulations defines an authorised person as an employee of the Department of Defence authorised in writing by the Minister for Defence.
The above definition of authorised person was inserted by Statutory Rules 1994, No.32. It replaced the previous definition which did not Emit who the Minister for Defence could authorise for the purposes of regulation 13B. The new definition, however, has caused some administrative difficulties as officers of Customs who were authorised to grant permissions can no longer do so.
Subregulation 2.1 overcomes the above administrative difficulties by omitting subregulation 13B(1) and substituting new subregulation 13B(l).
New subregulation 13B(1) defines an authorised person as an officer or employee of the Department of Defence; or an Officer of Customs authorised in writing by the Minister for Defence.
Overview
The Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 392 was enacted to address administrative difficulties arising from the previous definition of an authorised person under regulation 13B of the Customs (Prohibited Exports) Regulations. The Customs Act 1901 provides for the prohibition of the exportation of goods from Australia and the Regulations control the exportation of specified goods. Regulation 13B previously prohibited the export of goods listed in Schedule 13 unless permission or a licence was granted by the Minister for Defence or an authorised person. The amendment was made to rectify an issue where the definition of an authorised person, inserted by Statutory Rules 1994, No. 32, caused difficulties by excluding certain officers of Customs who were previously able to grant permissions. The amendment was issued by the Authority of the Minister for Small Business, Customs and Construction, aiming to ensure smooth administrative processes for the enforcement of export prohibitions.
Scope and Application
The Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 392 amends the Customs (Prohibited Exports) Regulations to address administrative difficulties arising from the previous definition of an authorised person under regulation 13B. The Act applies to the exportation of goods from Australia and the enforcement of export controls as prescribed by the Regulations. It applies to any person or entity seeking to export goods specified in the Regulations or Schedules, particularly those identified in Schedule 13. The Regulations are made under the authority of the Customs Act 1901, which empowers the Governor-General to prohibit the exportation of goods from Australia and to impose conditions or restrictions on such exports. The amendment extends to all persons or entities involved in the exportation of goods that are subject to the prohibitions or conditions set out in the Regulations, including those who need to obtain a licence or permission from the Minister for Defence or an authorised person. The jurisdictional reach of this legislation is national, as it applies to all exports from Australia. There are no stated exclusions or exemptions in the text provided, but the scope of the Act is limited to the specific goods and conditions outlined in the Regulations and Schedules. The application of the Act can be further extended or restricted through subordinate instruments, such as additional regulations or guidelines issued by the Minister for Defence or the Minister responsible for Customs.
Key Provisions
The Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 392 modifies the Customs (Prohibited Exports) Regulations under the Customs Act 1901. Section 112 of the Customs Act 1901 allows the Governor-General to prohibit the exportation of goods from Australia through regulations. These regulations can either absolutely prohibit the export of certain goods or require a licence, permission, consent, or approval for such exports. The Regulations primarily focus on controlling the exportation of goods listed in various regulations or schedules, either by an absolute prohibition or by making exportation subject to ministerial or specified person permission.
The key operative sections of the amendment are found in subregulation 13B(1) of the Regulations. Currently, regulation 13B prohibits the export of goods listed in Schedule 13 unless permission or a licence is granted by the Minister for Defence or an authorised person. The amendment redefines an authorised person to include officers or employees of the Department of Defence and officers of Customs authorised in writing by the Minister for Defence. This change aims to resolve administrative difficulties caused by the previous definition, which did not specify who could be authorised by the Minister for Defence, leading to confusion and inefficiencies in the customs clearance process.
Under the amended Regulations, the obligations on parties or entities seeking to export goods listed in Schedule 13 are now clearer. Exporters must obtain a licence or permission from either the Minister for Defence or an authorised person, as defined by the new subregulation 13B(1). This includes ensuring that the person granting the permission or licence is appropriately authorised in writing by the Minister for Defence. This clarity is intended to streamline the process and ensure that the correct officials are involved in granting permissions, thereby maintaining the integrity and security of the export control measures.
The Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 392 also outlines the consequences for breaches of the Regulations. While the specific offences and penalties are not detailed in the explanatory statement, the Customs Act 1901 generally provides for both civil and criminal penalties for breaches of customs regulations. Civil penalties may include fines, while criminal penalties can include imprisonment. The maximum penalties would depend on the specific breach and the provisions of the Customs Act 1901. It is essential for exporters to comply with the Regulations to avoid these potential penalties and ensure smooth operations.