Customs (Prohibited Exports) Regulations (Amendment) 1992 No. 412
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 412
Issued by the Authority of the Minister for Small Business, Construction and Customs
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 Pro-export 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 of State or a specified person.
The Regulations amend the Pro-Export Regulations to:
i) amend the list of goods the exportation of which is prohibited due to Australia's obligations as a member country of the Coordinating Committee for Multilateral Export Controls (COCOM); and
ii) provide the facility, in conjunction with section 112 of the Act, for the fist of goods to be amended from time to time.
As specified above, section 112 of the Act provides the head of power for the GovernorGeneral to prohibit, by regulation, the exportation of goods from Australia. Under this head of power, regulation 13E of the Pro-export Regulations prohibits the exportation of goods that are specified in the document published by the Minister of State for Defence entitled "Australian Controls on the Export of Technology with Civil and Military Applications" dated October 1991 unless a licence or permission has been granted and is produced to a Collector.
This prohibition gives effect to Australia's Obligations as a member country of COCOM. The list of goods subject to this export prohibition is altered regularly as a result of frequent COCOM deliberations and recommendations. To accord appropriate timeliness to the alterations, it was considered appropriate to amend section 112 of the Act to enable the Minister for Defence to amend the list of goods from time to time.
Section 112 of the Act now provides that the regulations may identify the goods to which the regulations relate by reference to their inclusion in a list or document formulated and published by a Minister, or by reference to their inclusion in that list as amended by the Minister. Where the Minister makes an amendment to the list of goods, the amendment is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. To enable the Minister to exercise this power of amendment, as well as updating the list of prohibited goods, regulation 13E is amended as follows:
Regulation 1 provides that the Pro-export Regulations are amended by the Regulations.
Regulation 2 amends regulation 13E of the Pro-export Regulations to:
(a) update the list of goods published by the Minister for Defence, the exportation of which is prohibited under Australia's obligations under COCOM, from October 1991 to September 1992; and
(b) provide the Minister for Defence the facility, in conjunction with section 112 of the Act, to amend the list of goods from time to time without reference to Executive Council.
The Regulations commence on Gazettal.
Overview
The Customs (Prohibited Exports) Regulations (Amendment) 1992 No. 412 was enacted by the authority of the Minister for Small Business, Construction and Customs to address the need for timely updates to the list of goods subject to export prohibitions under Australia's obligations as a member of the Coordinating Committee for Multilateral Export Controls (COCOM). This amendment arises from section 112 of the Customs Act 1901, which empowers the Governor-General to prohibit the exportation of goods from Australia by regulation. The objective of this legislative amendment is to streamline the process by which the list of prohibited goods can be updated, reflecting the dynamic nature of international export control obligations and ensuring that Australia remains compliant with COCOM standards. This amendment facilitates the Minister for Defence to modify the list of goods subject to export prohibitions without the need for Executive Council approval, thereby enhancing the efficiency and responsiveness of Australia's export control measures.
Scope and Application
The Customs (Prohibited Exports) Regulations (Amendment) 1992 No. 412 applies to any person or entity involved in the export of goods from Australia that are subject to the prohibitions set out in the regulations. The Act and its regulations particularly pertain to goods that are on the list compiled by the Minister of State for Defence in accordance with Australia's obligations as a member of the Coordinating Committee for Multilateral Export Controls (COCOM). These regulations ensure that the export of specified goods is either absolutely prohibited or made subject to the grant of a licence or permission by a Minister of State or a specified person. The geographic scope of the Act is national, applying across Australia and affecting all exports of the specified goods. The Act does not explicitly state any exclusions or exemptions, meaning that the prohibitions apply broadly unless otherwise specified in the regulations. The Act allows for the amendment of the list of prohibited goods by subordinate instruments, providing flexibility to respond to changes in international obligations and recommendations from COCOM. This amendment power is exercised by the Minister for Defence, who can update the list of prohibited goods from time to time without needing to refer to the Executive Council, ensuring that the regulations can be timely updated to reflect current obligations and recommendations.
Key Provisions
The Customs (Prohibited Exports) Regulations (Amendment) 1992 No. 412 amends the Customs (Prohibited Exports) Regulations to update and modify the list of goods subject to export prohibition. Under section 112 of the Customs Act 1901 (the Act), the Governor-General is empowered to prohibit the exportation of goods from Australia by regulation. Regulation 13E of the Pro-export Regulations, as amended by this instrument, specifically prohibits the exportation of goods listed in the document titled "Australian Controls on the Export of Technology with Civil and Military Applications" unless a licence or permission has been granted. The amendments, pursuant to section 112, update the list of goods published by the Minister for Defence from October 1991 to September 1992 and provide the Minister with the authority to amend this list periodically, in line with Australia's obligations as a member of the Coordinating Committee for Multilateral Export Controls (COCOM).
The Regulations impose obligations on entities and individuals who seek to export goods that are subject to prohibition. Specifically, those involved in the export of the listed goods must obtain the requisite licence or permission as prescribed by the regulations. Failure to comply with the regulations can result in the export being deemed illegal, and potential consequences may include the seizure of the goods and legal action against the exporter. The Regulations require that any amendment to the list of prohibited goods be published by the Minister for Defence and that such amendments are subject to disallowance under section 46A of the Acts Interpretation Act 1901.
The Customs (Prohibited Exports) Regulations (Amendment) 1992 No. 412 also outlines the penalties and consequences for breach of the Act and Regulations. The Act provides for civil and criminal penalties for non-compliance. Civil penalties may include fines and the seizure of goods, while criminal penalties could lead to imprisonment, reflecting the severity of the offence. The exact penalties are not specified in the text but are typically determined based on the nature and extent of the breach. Additionally, any amendments to the list of prohibited goods by the Minister are subject to disallowance, ensuring a level of scrutiny and accountability in the amendment process.