EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 40
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2009 (No. 1)
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 or as may be necessary or convenient to be prescribed for giving effect to the Act.
Section 50 of the Act provides that the Governor-General may, by regulation, prohibit the importation of goods into Australia. This power may be exercised by prohibiting the importation of goods absolutely, or by prohibiting the importation of goods unless specified conditions or restrictions are met.
The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of the goods specified in various regulations and Schedules.
The purpose of the amending Regulations is to amend the Principal Regulations to enable the Director General of the Australian Safeguards and Non-Proliferation Office (ASNO) to permit the importation of certain restricted chemicals.
Regulation 5J of the Principal Regulations prohibits the importation into Australia of goods containing chemical compounds, which can be used in chemical weapons, and which are listed in Schedule 11 to the Principal Regulations. Under subregulations 5J(2A) and (2AA), the written permission of the Minister for Foreign Affairs or an authorised person is required before goods mentioned in Parts 2, 3 or 4 of Schedule 11 can be imported.
Under subregulation 5J(1), an authorised person is an officer or employee of the Department of Foreign Affairs and Trade (the Department) authorised in writing by the Minister for Foreign Affairs (the Minister) to give permission for the purposes of regulation 5J.
Regulation 5J is administered by ASNO within the Department. ASNO is headed by the Director General, who is a statutory office holder under section 42 of the Nuclear Non-Proliferation (Safeguards) Act 1987.
The Minister has been unable to authorise the Director General of ASNO under subregulation 5J(1) to give permissions, as the position is occupied by a statutory office holder, whereas the definition of "authorised person" has only extended to officers or employees of the Department.
The amending Regulations amend subregulation 5J(1) so that the definition of "authorised person" also includes a person holding a statutory office established under legislation for which the Minister is responsible. The amending Regulations enable the Minister to authorise the Director General position, which is the most senior position in ASNO, to give permissions for the purposes of regulation 5J.
The amending Regulations also amend the definition of "authorised person" so that the definition refers to an APS employee or an SES employee of the Department, instead of an officer or employee of the Department. This amendment ensures that the terminology used in the definition is consistent with the terminology used in the Public Service Act 1999 and the Acts Interpretation Act 1901.
The amending Regulations also amend subregulation 5J(2B) of the Principal Regulations to correct a minor typographical error. In that subregulation, the reference to "Non-proliferation" is changed to "Non-Proliferation".
No consultation was undertaken specifically in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
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 2009 (No. 1) were enacted to address a specific administrative gap within the Customs (Prohibited Imports) Regulations 1956, particularly concerning the importation of certain restricted chemicals. The Customs Act 1901 provides the legislative foundation, empowering the Governor-General to make regulations necessary for the Act's implementation, including the prohibition of certain imports. The primary objective of these amending regulations is to enable the Director General of the Australian Safeguards and Non-Proliferation Office (ASNO) to permit the importation of restricted chemicals that could potentially be used in chemical weapons. This change was necessitated by the fact that the Director General, as a statutory office holder, was not previously authorised under the existing regulations to grant such permissions, despite being the most senior position within ASNO. The amendments rectify this oversight by expanding the definition of "authorised person" to include statutory office holders and ensuring consistency with terminology used in other relevant acts.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 1) amend the Customs (Prohibited Imports) Regulations 1956 to allow for the importation of certain restricted chemicals by enabling the Director General of the Australian Safeguards and Non-Proliferation Office (ASNO) to grant the necessary permissions. This amendment is necessary because the existing regulations only allowed for officers or employees of the Department of Foreign Affairs and Trade to authorise the importation of such chemicals, whereas the Director General is a statutory office holder under the Nuclear Non-Proliferation (Safeguards) Act 1987. The regulations also correct a minor typographical error in subregulation 5J(2B) of the Principal Regulations. These regulations apply to the importation of goods into Australia and are relevant to entities or individuals seeking to import goods containing chemical compounds listed in Schedule 11 of the Principal Regulations, which can be used in chemical weapons. The regulations are administered by ASNO within the Department of Foreign Affairs and Trade and are applicable nationally across Australia. No consultation was undertaken specifically in relation to these amending regulations as they are considered to be of a minor or machinery nature and do not substantially alter existing arrangements.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 1) primarily amend the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) to allow the Director General of the Australian Safeguards and Non-Proliferation Office (ASNO) to authorise the importation of certain restricted chemicals. Regulation 5J of the Principal Regulations prohibits the importation of goods containing chemical compounds that can be used in chemical weapons, which are listed in Schedule 11 (sections 5J(1) and 5J(2A)). The amendment modifies subregulation 5J(1) to include the Director General of ASNO, who holds a statutory office under the Nuclear Non-Proliferation (Safeguards) Act 1987, within the definition of "authorised person" (section 5J(1)). This change enables the Minister for Foreign Affairs to authorise the Director General to give permissions for the purposes of regulation 5J. Additionally, the amendment updates the definition of "authorised person" to refer to an Australian Public Service (APS) employee or a Senior Executive Service (SES) employee of the Department of Foreign Affairs and Trade (Department) (section 5J(1)). This ensures consistency with terminology used in the Public Service Act 1999 and the Acts Interpretation Act 1901. The amendment also corrects a typographical error in subregulation 5J(2B), changing "Non-proliferation" to "Non-Proliferation" (section 5J(2B)).
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 1) impose obligations on various parties to ensure compliance with the prohibitions on the importation of restricted chemicals. The Minister for Foreign Affairs is required to authorise the Director General of ASNO as an "authorised person" under the amended subregulation 5J(1). This authorisation allows the Director General to give permissions for the importation of restricted chemicals as specified in Schedule 11 of the Principal Regulations. Additionally, the Director General, once authorised, must ensure that any permissions granted comply with the conditions set out in the Principal Regulations and any relevant legislation. The Department of Foreign Affairs and Trade, under whose purview ASNO operates, is responsible for administering the amendment and ensuring that the necessary authorisations are in place. The Director General and other authorised personnel must also adhere to the updated definition of "authorised person" in subregulation 5J(1) to maintain consistency with other legislative frameworks.
Failure to comply with the provisions of the Customs (Prohibited Imports) Amendment Regulations 2009 (No. 1) may result in civil and criminal consequences. Importing goods containing restricted chemicals without the required permissions constitutes an offence under the Customs Act 1901. A person who contravenes these regulations may be liable to a penalty of up to $22,200 for an individual or $111,000 for a body corporate, as per the maximum penalties stipulated in the Act. Additionally, unauthorised importation of these goods may result in the seizure and forfeiture of the goods by the Australian Border Force. The Minister for Foreign Affairs and the Director General of ASNO are tasked with enforcing these regulations to prevent the illegal importation of prohibited items, thereby upholding Australia's international obligations and domestic security.