EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 265
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2006 (No. 4)
Subsection 270(1) of the Customs Act 1901 (the Act) provides in part that the Governor‑General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.
Section 50 of the Act provides in part that the Governor-General may, by regulation, prohibit the importation of goods into Australia and that the power may be exercised by prohibiting the importation of goods absolutely or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.
The purpose of the amending Regulations is to remove certain restrictions on the importation of rough diamonds from Sierra Leone, and to introduce new restrictions on the import of rough diamonds from Côte d’Ivoire.
The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of the goods specified in the various regulations and Schedules, by prohibiting importation absolutely, or by making importation subject to a permission or licence.
The Principal Regulations, in part, give domestic effect to Australia’s international obligations pursuant to United Nations Security Council (Security Council) Resolutions prohibiting the importation of rough diamonds from certain African countries (“conflict diamonds”).
Sierra Leone
Regulation 4N of the Principal Regulations prohibits the importation of rough diamonds from Sierra Leone unless the permission of the Foreign Minister or an authorised person has been granted. This regulation was introduced to give effect to the ban imposed pursuant to Security Council Resolution 1306 (2000). However, the President of the Security Council announced on 5 June 2003 that this import ban would not be renewed and consequently the import ban imposed by Australia is no longer necessary.
The amending Regulations remove the prohibition on the importation of rough diamonds from Sierra Leone without the required permission, by repealing regulation 4N. However, the importation of rough diamonds from Sierra Leone is still prohibited under regulation 4MA of the Principal Regulations unless the relevant Kimberley Process Certificate is provided.
The Kimberley Process Certificate Scheme is an international certification arrangement for rough diamonds adopted pursuant to the Interlaken Declaration of 5 November 2002. The scheme, of which Sierra Leone is a participant, is intended to reduce the opportunity for conflict diamonds to play a role in fuelling armed conflict by excluding conflict diamonds from legitimate trade.
Côte d’Ivoire
Under regulation 4MA, the importation of rough diamonds from a country is prohibited unless the exporting country has issued a Kimberley Process certificate for the rough diamonds. On 15 December 2005, the Security Council imposed a binding obligation on all states, including Australia, to prohibit absolutely the importation of rough diamonds from Côte d’Ivoire under Resolution 1643 (2005). The importation of rough diamonds from Côte d’Ivoire is prohibited even if the importer has a Kimberley Process certificate. This resolution is similar in terms to the Security Council Resolution prohibiting the importation of rough diamonds from Liberia.
The amending Regulations introduce into the Principal Regulations a new regulation 4N which imposes an absolute prohibition upon the importation of rough diamonds from Côte d’Ivoire to give effect to this Security Council resolution. The prohibition is in similar terms to regulation 4P of the Principal Regulations which bans absolutely the importation of rough diamonds from Liberia.
No consultation was undertaken specifically in relation to either of the amendments as they implement Australia’s international obligations under the respective Security Council resolutions.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
0610144A
Overview
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 4) were enacted to address the need to align Australia's regulations with recent developments concerning the importation of rough diamonds from conflict zones, specifically Sierra Leone and Côte d’Ivoire. These regulations were issued under the authority of the Minister for Justice and Customs and are an amendment to the Customs Act 1901. The primary objective of the amendment is to reflect the changing international obligations under United Nations Security Council Resolutions concerning conflict diamonds. Specifically, the Regulations remove the prohibition on the importation of rough diamonds from Sierra Leone, aligning with the decision of the Security Council not to renew the ban, while still requiring a Kimberley Process Certificate to ensure compliance with international efforts to prevent conflict diamonds from entering legitimate trade. Conversely, the Regulations introduce a new absolute prohibition on the importation of rough diamonds from Côte d’Ivoire, in line with the Security Council’s Resolution 1643 (2005), which imposes a binding obligation to prohibit such imports.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 4) pertain to the Customs Act 1901, providing authority for the Governor-General to enact regulations concerning the importation of goods into Australia. These regulations specifically address the importation of rough diamonds, modifying existing restrictions and introducing new ones based on international obligations under United Nations Security Council resolutions. The regulations affect individuals and entities involved in the importation of rough diamonds into Australia, requiring compliance with the outlined restrictions and certifications. The geographic scope of these regulations is national, applying across all states and territories of Australia. The regulations exclude certain countries from specific prohibitions, such as Sierra Leone, unless a Kimberley Process Certificate is provided, while imposing an absolute prohibition on the importation of rough diamonds from Côte d’Ivoire. These changes implement Australia’s commitments under Security Council resolutions, ensuring alignment with international efforts to prevent conflict diamonds from funding armed conflict.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 4) primarily revise the regulations governing the importation of rough diamonds into Australia. These regulations, under the Customs Act 1901, are designed to align Australia's import policies with international obligations, particularly those set by United Nations Security Council resolutions. Specifically, Regulation 4N is repealed to remove the prohibition on importing rough diamonds from Sierra Leone, as the initial ban is no longer necessary following the lifting of the United Nations sanctions. However, it is important to note that while the importation of these diamonds is no longer restricted by this particular regulation, it is still subject to other conditions, such as the requirement for a Kimberley Process Certificate under regulation 4MA. Conversely, new restrictions are introduced for rough diamonds from Côte d’Ivoire. An absolute prohibition on the importation of these diamonds is now in place to comply with Security Council Resolution 1643 (2005), which mandates an outright ban on such imports.
The obligations imposed by these regulations require importers to ensure that any rough diamonds brought into Australia are accompanied by the appropriate documentation. For diamonds from Sierra Leone, the key requirement is the provision of a Kimberley Process Certificate, even though the import is no longer subject to the specific prohibition under regulation 4N. For diamonds from Côte d’Ivoire, the new regulation 4N imposes an absolute prohibition, meaning that no diamonds from this country can be imported into Australia, regardless of the presence of a Kimberley Process Certificate. These obligations reflect Australia’s commitment to international efforts to prevent conflict diamonds from funding armed conflicts.
Failure to comply with these regulations can result in significant legal consequences. Importers who contravene the provisions regarding the importation of rough diamonds from Côte d’Ivoire by attempting to bring in these diamonds without adhering to the absolute prohibition may face both civil and criminal penalties. The maximum penalty for contravening these regulations can include substantial fines and, in some cases, imprisonment, reflecting the seriousness with which the Australian government treats the enforcement of these international obligations. These penalties serve as a deterrent and underscore the importance of adhering to the regulations designed to prevent conflict diamonds from entering the country.