EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 14
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2010 (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 complied with.
The Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) control the importation of the goods specified in various regulations and Schedules.
The purpose of the amending Regulations is to amend the PI Regulations to implement sanctions against Eritrea imposed by United Nations Security Council Resolution 1907 (2009), which was adopted on 23 December 2009 (the Resolution).
Paragraph 6 of the Resolution provides, in part, that all Member States should prevent the procurement of arms or related matériel from Eritrea by their nationals, or using their flag vessels or aircraft, whether or not the goods originate in the territory of Eritrea.
The amending Regulations insert new regulation 4ZA into the PI Regulations to prohibit the importation from Eritrea of arms or related matériel, unless the written permission of the Minister for Foreign Affairs (the Minister) or an authorised person is produced to a Collector at or before the time of importation.
The Minister can authorise an employee of the Department of Foreign Affairs and Trade to be an authorised person for the purposes of the amending Regulations.
The 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 Minister or an authorised person can also include conditions and other requirements in a permission and the Minister can revoke or modify a permission in certain circumstances.
The remaining elements of the prohibitions in paragraph 6 of the Resolution are implemented under the Charter of the United Nations (Sanctions - Eritrea) Regulations 2010.
No consultation was undertaken specifically in relation to the amending Regulations 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 2010 (No. 1) were introduced to implement sanctions against Eritrea as stipulated by United Nations Security Council Resolution 1907 (2009). This legislation was enacted by the Minister for Home Affairs and amends the Customs (Prohibited Imports) Regulations 1956. The primary objective of these amendments is to align Australian customs regulations with the international sanctions imposed on Eritrea, specifically prohibiting the importation of arms and related matériel unless authorised by the Minister for Foreign Affairs or an authorised person. These amendments reflect Australia’s commitment to international law and its relations with other countries. The Regulations do not require specific consultation as they directly implement Australia’s obligations under the United Nations resolution, and they come into effect upon registration on the Federal Register of Legislative Instruments.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 1) apply to the importation of arms or related matériel from Eritrea into Australia, aligning with the requirements of United Nations Security Council Resolution 1907 (2009). This regulation targets any person or entity attempting to import such items without the necessary written permission from the Minister for Foreign Affairs or an authorised individual. The scope of the legislation is national, operating within the framework of Australia's obligations under international law and specifically in response to the sanctions against Eritrea. The Regulations extend the application of the Customs Act 1901 to include these specific items and the stringent conditions governing their importation. There are no stated exclusions or exemptions within the Regulations themselves, although the Minister for Foreign Affairs retains the discretion to grant permissions subject to certain conditions. The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments, ensuring a prompt implementation of Australia’s international commitments.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 1) introduce a new regulation, 4ZA, to the Customs (Prohibited Imports) Regulations 1956 (PI Regulations). This new regulation, as stated in section 1 of the amending Regulations, specifically targets the prohibition of importing arms or related matériel from Eritrea. Unless written permission from the Minister for Foreign Affairs or an authorised person is presented to a Collector at or before the time of importation, such imports are strictly forbidden (reg. 4ZA). This aligns with the provisions of the United Nations Security Council Resolution 1907 (2009), which mandates that member states prevent the procurement of arms or related matériel from Eritrea.
The obligations imposed by these regulations are primarily on importers and those who may seek to import goods from Eritrea. Importers must ensure that they have obtained the necessary written permission from the Minister or an authorised person before attempting to import any arms or related matériel from Eritrea. The Minister, in turn, has the responsibility to consider Australia's international relations and obligations when deciding whether to grant such permissions. The Minister can delegate the authority to make these decisions to an employee of the Department of Foreign Affairs and Trade. Furthermore, the Minister or an authorised person can attach conditions or other requirements to the permission and has the power to revoke or modify the permission under certain circumstances (reg. 4ZA).
Non-compliance with the provisions of the Customs (Prohibited Imports) Amendment Regulations 2010 (No. 1) can lead to significant legal consequences. While the amending Regulations themselves do not explicitly state the penalties for breach, the Customs Act 1901 provides a framework for enforcement. Under the Act, contravening the provisions of regulations made under it can result in criminal charges. The maximum penalty for contravening a regulation under the Customs Act can be a fine of up to 10,000 penalty units or imprisonment for up to five years, or both, depending on the seriousness of the offence (s. 270(1)). Additionally, civil penalties may also apply, which can further include fines and other sanctions as stipulated in the Act.