EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 282
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2006 (No. 5)
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 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 purpose of the Regulations is to amend the Principal Regulations to implement sanctions against the Democratic People’s Republic of Korea (DPRK) imposed by United Nations Security Council Resolution 1718 which was adopted on 14 October 2006 (the Resolution).
The Resolution provides, in part, that all Member States shall prevent the procurement by their nationals of specified military equipment and spare parts for such goods, as well as specified goods which could contribute to DPRK’s nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes.
The Regulations insert new regulation 4Y into the Principal Regulations to prohibit the importation from the DPRK of:
a) battle tanks;
b) armoured combat vehicles;
c) large calibre artillery systems;
d) combat and military aircraft;
e) attack helicopters;
f) warships;
g) missiles and missile systems;
h) matériel related to any of the goods mentioned in paragraphs (a) to (g), including parts; and
i) goods capable of use in the development, production, or stockpiling of nuclear, biological or chemical weapons, or the development or production of missiles capable of delivering such weapons:
unless the written permission of the Foreign Minister or an authorised person is produced to a Collector at or before the time of importation.
The Foreign Minister can authorise an officer of the Department of Foreign Affairs and Trade to be an authorised person for the purposes of the Regulations.
The Foreign Minister or an authorised person, in deciding whether to grant a permission to import, must take into account Australia's relations with other countries and Australia's obligations under international law.
The Foreign Minister or an authorised person can also include conditions and other requirements in a permission and the Foreign Minister can revoke or modify a permission in certain circumstances.
No consultation was undertaken specifically in relation to either of the amendments as they implement Australia’s international obligations under the Resolution.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
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Overview
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 5) were enacted to align Australia's customs regulations with United Nations Security Council Resolution 1718, which imposes sanctions on the Democratic People’s Republic of Korea (DPRK) to prevent the procurement of military equipment and goods that could contribute to DPRK’s weapons of mass destruction programs. Authorised by the Customs Act 1901, these regulations were issued by the Minister for Justice and Customs to prohibit the importation of specified military goods from the DPRK, unless approved by the Foreign Minister or an authorised person. This legislative action was taken to uphold Australia's international obligations and to reflect its commitment to global security, ensuring that the importation of such goods adheres to stringent conditions and authorisation requirements.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 5) applies to the importation of goods from the Democratic People’s Republic of Korea into Australia, specifically targeting the prohibition of military equipment and goods that could contribute to weapons of mass destruction programs. These regulations are an extension of the Customs Act 1901 and the Customs (Prohibited Imports) Regulations 1956, providing a framework to enforce United Nations Security Council Resolution 1718. The regulations prohibit the importation of specific military hardware and materials unless permission is granted by the Foreign Minister or an authorised person. The scope of the legislation is national, applying across all jurisdictions in Australia, with the aim of ensuring compliance with international sanctions against the DPRK. The regulations do not specify any exclusions, but they allow for the issuance of permissions subject to conditions and requirements, which can be revoked or modified by the Foreign Minister under certain circumstances. The implementation of these regulations ensures that Australia adheres to its international obligations, as outlined in the Resolution.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2006 (No. 5) (the Regulations) introduce new regulation 4Y into the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) to implement sanctions against the Democratic People's Republic of Korea (DPRK) imposed by United Nations Security Council Resolution 1718. This regulation prohibits the importation of specified military equipment and goods from the DPRK unless certain conditions are met. Specifically, the importation of battle tanks, armoured combat vehicles, large calibre artillery systems, combat and military aircraft, attack helicopters, warships, missiles and missile systems, and matériel related to these items, including parts, is prohibited unless written permission from the Foreign Minister or an authorised person is presented at the time of importation (regulation 4Y(1)(a)–(h)). Furthermore, the importation of goods capable of use in the development, production, or stockpiling of nuclear, biological or chemical weapons, or the development or production of missiles capable of delivering such weapons, is also prohibited unless such permission is obtained (regulation 4Y(1)(i)).
Under the Regulations, the Foreign Minister or an authorised person has the discretion to grant permission for the importation of the specified items, taking into account Australia's relations with other countries and Australia's obligations under international law (regulation 4Y(2)). This permission can include conditions and other requirements deemed necessary by the Foreign Minister or an authorised person. Additionally, the Foreign Minister has the authority to revoke or modify a permission if certain circumstances arise (regulation 4Y(3)). The Regulations also allow the Foreign Minister to delegate the authority to be an authorised person to an officer of the Department of Foreign Affairs and Trade (regulation 4Y(4)).
Failure to comply with the prohibitions set out in regulation 4Y may result in civil and criminal consequences. Importers who attempt to bring the specified items into Australia without the required permission may face fines and imprisonment. The maximum penalty for contravening the regulations is a fine of 500 penalty units or imprisonment for five years, or both (subsection 283(1) of the Customs Act 1901). These penalties reflect the serious nature of the prohibited imports and the importance of adhering to international sanctions aimed at preventing the proliferation of weapons of mass destruction.