EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 315
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3)
Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3)
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.
Sections 50 and 112 of the Act provides, in part, that the Governor-General may, by regulation, prohibit the importation or exportation, respectively, of goods into or from Australia and that the powers may be exercised by prohibiting the importation or exportation of goods absolutely, or by prohibiting the importation or exportation of goods unless specified conditions or restrictions are complied with.
The Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) and the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) control the importation or exportation of goods specified in the various regulations and Schedules.
Regulation 4ZA of the PI Regulations and regulation 13CR of the PE Regulations restrict the importation and exportation of certain goods to and from Eritrea. These regulations were enacted to implement Australia’s obligations to impose sanctions against Eritrea under United Nations Security Council (UNSC) Resolution 1907 of 2009.
Regulation 13CH of the PE Regulations restricts the exportation of paramilitary equipment to Sierra Leone. This regulation was enacted to implement Australia’s obligations to impose sanctions against Sierra Leone under UNSC Resolutions 1132 of 1997 and 1171 of 1998, and prohibits the unauthorised export to Sierra Leone of arms or related materiel.
The amending Regulations:
- limit the class of persons who can be authorised by the Minister for Foreign Affairs to issue an export or import permit in relation to certain goods going to or coming from Eritrea, to SES employees of the Department of Foreign Affairs and Trade only; and
- give effect to the termination of the sanctions against Sierra Leone under UNSC Resolution 1940 of 2010 by repealing regulation 13CH of the PE Regulations.
Both regulation 13CR of the PE Regulations and regulation 4ZA of the PI Regulations permit an authorised person to issue an export or import permit in relation to certain goods going to, or coming from Eritrea. An “authorised person” was defined as an “employee of the Department of Foreign Affairs and Trade who is authorised by the Minister for Foreign Affairs to be an authorised person for the purpose of the Regulations.”
The Senate Standing Committee on Regulations and Ordinances raised concerns about the wide ambit of this authorisation power. In response to these concerns, the PE Regulations and the PI Regulations have been amended to limit the range of officials who can be authorised to act as an “authorised person” from any employee of the Department of Foreign Affairs and Trade to SES employees of the Department of Foreign Affairs and Trade only.
The UNSC recently adopted Resolution 1940 of 2010 which terminated the sanctions imposed against Sierra Leone under Resolutions 1132 of 1997 and 1171 of 1998. The amending Regulations give effect to resolution 1940 of 2010 by repealing regulation 13CH of the PE Regulations.
The amending Regulations also omit all other references to regulation 13CH in the PE Regulations, and make technical amendments to existing provisions, as a consequence of the repeal of regulation 13CH.
No consultation was undertaken specifically in relation to the amending Regulations as they implement Australia’s international obligations under the United Nations Security Council Resolutions.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
1014352A
Overview
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3) and the Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) were enacted to address specific international sanctions imposed by the United Nations Security Council (UNSC). These regulations amend the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958, respectively, to align with Australia's obligations under relevant UNSC resolutions. The Customs Act 1901 provides the legal foundation for these regulations, empowering the Governor-General to make regulations regarding the import and export of goods. The policy objective behind these amendments is to ensure compliance with international sanctions by restricting the issuance of permits for certain goods to and from Eritrea and Sierra Leone, while also refining the authorisation process to limit the class of officials who can issue such permits. These amendments are intended to reinforce Australia’s commitment to global security and compliance with UNSC resolutions.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3) and the Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) are subordinate instruments made under the Customs Act 1901. These regulations amend existing provisions to align with Australia’s international obligations under United Nations Security Council Resolutions. Specifically, they address the importation and exportation of goods to and from Eritrea and Sierra Leone. The regulations modify the scope of individuals authorised by the Minister for Foreign Affairs to issue export or import permits for goods concerning Eritrea, restricting this authority to Senior Executive Service (SES) employees of the Department of Foreign Affairs and Trade. This change responds to concerns raised about the broad authorisation power previously granted to any employee of the Department. Additionally, the regulations reflect the termination of sanctions against Sierra Leone by repealing the restriction on the export of paramilitary equipment to that country, in accordance with UNSC Resolution 1940 of 2010. These amendments ensure that Australia’s legislative framework remains consistent with current international mandates and reflect the evolving geopolitical landscape.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2010 (No. 3) and the Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) are pivotal in updating the regulatory framework under the Customs Act 1901 to align with Australia's international obligations, particularly those set by United Nations Security Council resolutions. These regulations focus on amending existing restrictions on the importation and exportation of goods to and from Eritrea and Sierra Leone. Specifically, Regulation 4ZA of the Customs (Prohibited Imports) Regulations 1956 and Regulation 13CR of the Customs (Prohibited Exports) Regulations 1958 have been modified to narrow the scope of authorised personnel who can issue permits for goods related to Eritrea, restricting this authority to SES employees of the Department of Foreign Affairs and Trade (subsection 270(1)). Additionally, the Customs (Prohibited Exports) Amendment Regulations 2010 (No. 3) repeal Regulation 13CH of the Customs (Prohibited Exports) Regulations 1958, which previously restricted the export of paramilitary equipment to Sierra Leone, reflecting the termination of sanctions against Sierra Leone under UNSC Resolution 1940 of 2010.
The obligations imposed by these regulations on the parties involved are significant. For the Department of Foreign Affairs and Trade, the primary obligation is to ensure that only SES employees are authorised to issue export or import permits concerning the specified goods to or from Eritrea. This limitation aims to tighten control and accountability over the issuance of permits, thereby reinforcing the compliance with international sanctions. Moreover, the amendments require that all permit applications related to the restricted goods are meticulously reviewed to ensure they meet the stringent criteria set by the regulations. For importers and exporters, the regulations necessitate obtaining the appropriate permits before engaging in the specified trade activities, thereby ensuring that they adhere to the sanctions and prohibitions established by the United Nations Security Council.
Failure to comply with these regulations can result in severe legal consequences. Importers and exporters found in breach of the prohibitions may face criminal charges and penalties. For instance, under Section 283 of the Customs Act 1901, an individual can be fined up to 10,000 penalty units or imprisoned for up to five years, or both, for contravening the import or export restrictions. These penalties underscore the seriousness with which the Australian government treats the enforcement of international sanctions. Additionally, civil penalties may apply, including fines and the confiscation of the prohibited goods. These regulatory measures are designed to deter unauthorised trade activities that could undermine Australia's adherence to international obligations and sanctions regimes.