EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 183
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2009 (No. 2)
Section 270 of the Customs Act 1901 (the Customs Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Customs Act prescribing all matters necessary or convenient to be prescribed for giving effect to the Customs Act.
Section 50 of the Customs Act provides, in part, that the Governor-General may, by regulation, prohibit the importation of goods into Australia. These powers 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 PI Regulations) control the importation of the goods specified in the various regulations and Schedules.
The purpose of the amending Regulations is to amend regulation 4Y of the PI Regulations to implement the extension of the sanctions against the Democratic People’s Republic of Korea (DPRK), in accordance with United Nations Security Council Resolution 1874, which was adopted on 12 June 2009 (Resolution 1874).
The original sanctions against the DPRK were imposed by the United Nations Security Council Resolution 1718, which was adopted on 14 October 2006 (the original Resolution). Amongst other things, the original Resolution required all Member States to prevent the procurement by their nationals of specified military equipment and spare parts for such goods, from the DPRK. The original Resolution was implemented in regulation 4Y of the PI Regulations, which previously applied to battle tanks, armoured combat vehicles, large calibre artillery systems, combat and military aircraft, attack helicopters, warships, and missiles and missile systems only.
As a result of the conduct of a nuclear test by the DPRK on 25 May 2009, the United Nations Security Council adopted Resolution 1874. Resolution 1874 extends the sanctions under the original Resolution to a wider class of military equipment. Member States are now required to prevent the procurement by their nationals of all arms and related matériel from the DPRK.
The amending Regulations give effect to the extension of the sanction by repealing the references to the specific military equipment in subregulation 4Y(2) of the Principal Regulations, and substituting a reference to "arms and related matériel". This means that the importation into Australia of all arms and related matériel from the DPRK is prohibited, unless the written permission of the Minister for Foreign Affairs (or an authorised person) is produced to a Collector (who is an officer of Customs), at or before the time of importation.
The Regulations also insert new definitions of "arms or related matériel" and "paramilitary equipment" into subregulation 4Y(1).
No consultation was undertaken specifically in relation to the amendments as they implement Australia’s international obligations under the Resolution 1874.
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. 2) were enacted to address the need for Australia to implement the extended sanctions against the Democratic People’s Republic of Korea (DPRK) imposed by the United Nations Security Council Resolution 1874. These regulations were issued under the authority of the Minister for Home Affairs and aim to ensure compliance with Australia's international obligations. The primary objective of these amendments is to extend the prohibition on the importation of military equipment from the DPRK to include all arms and related matériel, in response to the DPRK's nuclear test conducted on 25 May 2009. By updating the existing Customs (Prohibited Imports) Regulations 1956, the new regulations prohibit the importation of any arms and related matériel from the DPRK into Australia unless specific written permission is obtained from the Minister for Foreign Affairs or an authorised person.
The regulations were enacted by the Governor-General and took effect on the day after their registration on the Federal Register of Legislative Instruments. This legislative action underscores Australia's commitment to upholding international sanctions and preventing the proliferation of military equipment from the DPRK, aligning with the broader objectives set forth by the United Nations Security Council.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 2) applies to individuals and entities involved in the importation of goods into Australia, specifically targeting the import of arms and related matériel from the Democratic People’s Republic of Korea (DPRK). This legislative instrument, which amends the Customs (Prohibited Imports) Regulations 1956, extends Australia’s compliance with United Nations Security Council Resolution 1874, adopted in response to the DPRK's nuclear test on 25 May 2009. The Regulations prohibit the importation of all arms and related matériel from the DPRK unless written permission from the Minister for Foreign Affairs is presented at the time of importation. These prohibitions apply across Australia, in alignment with the nation’s international commitments. The Regulations also include new definitions for terms such as "arms or related matériel" and "paramilitary equipment". This amendment broadens the scope of previously restricted items, enforcing stricter controls on military equipment imports from the DPRK. The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 2) primarily amend regulation 4Y of the Customs (Prohibited Imports) Regulations 1956 (PI Regulations) to implement the United Nations Security Council Resolution 1874. This resolution extends sanctions against the Democratic People's Republic of Korea (DPRK) to include a broader range of military equipment and related materiel. The amendments to regulation 4Y are detailed in subregulation 4Y(2), which now prohibit the importation of arms and related materiel from the DPRK into Australia unless specific written permission from the Minister for Foreign Affairs or an authorised person is presented to a Collector of Customs at the time of importation. These changes are significant as they broaden the scope of the previously limited categories of prohibited military equipment to include all arms and related materiel, in line with the extended sanctions.
The obligations imposed by these regulations require anyone attempting to import arms and related materiel from the DPRK into Australia to obtain the necessary written permission from the Minister for Foreign Affairs or an authorised person. This permission must be presented to a Collector of Customs at the time of importation. The regulations also require the Collector of Customs to verify the authorisation and ensure compliance with the prohibition on importing such goods from the DPRK. Failure to comply with these requirements can result in the goods being seized and detained by Customs, and may lead to further legal action or penalties.
Breaching these regulations can have serious consequences. Under section 136 of the Customs Act 1901, any person who contravenes a regulation made under the Act is liable to a penalty. The maximum penalty for contravening these regulations is significant, as outlined in section 283 of the Customs Act, which prescribes a penalty of up to 10,000 penalty units for individuals and 50,000 penalty units for bodies corporate, depending on the seriousness of the offence. Additionally, the importation of prohibited goods can result in civil or criminal proceedings being taken against the offender, further reinforcing the importance of compliance with these regulations.