EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 19
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2011 (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 the Libyan Arab Jamahiriya imposed by United Nations Security Council Resolution 1970 (2011), which was adopted on 26 February 2011 (the Resolution).
Paragraph 10 of the Resolution provides, in part, that all Member States should prevent the procurement of arms or related matériel from the Libyan Arab Jamahiriya by their nationals, or using their flag vessels or aircraft, whether or not the goods originate in the territory of the Libyan Arab Jamahiriya.
The amending Regulations insert new regulation 4ZB into the PI Regulations to prohibit the importation from the Libyan Arab Jamahiriya 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 a SES employee, or an acting SES 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 10 of the Resolution are implemented under the Charter of the United Nations (Sanctions - Libyan Arab Jamahiriya) Regulations 2011.
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 2011 (No. 1) were enacted to address the need for implementing United Nations Security Council Resolution 1970 (2011) concerning sanctions against the Libyan Arab Jamahiriya. This resolution was adopted on 26 February 2011 and includes provisions to prevent the procurement of arms and related matériel from Libya by nationals or using vessels or aircraft registered in Australia. These regulations were issued under the authority of the Minister for Home Affairs and aim to align Australian customs law with international obligations by prohibiting the importation of specified goods from Libya unless permission is obtained from the Minister for Foreign Affairs or an authorised person. The policy objective is to ensure Australia's compliance with the UN sanctions while allowing for discretionary permissions to be granted, taking into account Australia's diplomatic relations and international legal commitments. The Regulations do not require specific consultation as they directly implement the international sanctions resolution and are designed to be effective immediately upon registration on the Federal Register of Legislative Instruments.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2011 (No. 1) apply to the importation of arms and related matériel from the Libyan Arab Jamahiriya into Australia, imposing a prohibition unless specific written permission is obtained from the Minister for Foreign Affairs or an authorised person. This amendment extends the scope of the Customs (Prohibited Imports) Regulations 1956 to incorporate sanctions against Libya as mandated by United Nations Security Council Resolution 1970 (2011). The application of these Regulations is national, covering all individuals and entities attempting to import the specified goods into Australia. The Regulations are designed to ensure compliance with Australia's international obligations and its relations with other countries, as well as its commitments under international law. Authorised persons may be designated by the Minister and can include conditions and requirements in permissions, which can be revoked or modified under certain circumstances. The Regulations do not include any specific exclusions or thresholds but are part of a broader legislative framework that may be further extended or restricted through subordinate instruments.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2011 (No. 1) introduce a significant change to the Customs (Prohibited Imports) Regulations 1956 by adding regulation 4ZB, which pertains to the prohibition of certain imports from the Libyan Arab Jamahiriya. Specifically, regulation 4ZB, inserted by this amending regulation, prohibits the importation of arms or related matériel from Libya unless written permission is obtained from the Minister for Foreign Affairs or an authorised person, as defined by the Regulations. This permission requirement applies to all individuals or entities seeking to import such goods into Australia. The permission can only be granted by the Minister or an authorised person and must be presented to a Collector at or before the time of importation (Regulation 4ZB(2)).
The Regulations impose several obligations on those seeking to import arms or related matériel from Libya. Firstly, they must obtain written permission from the Minister or an authorised person before importation. The Minister or an authorised person is mandated to consider Australia's international relations and obligations when deciding whether to grant such permission. Furthermore, any permission granted can include specific conditions and requirements, and the Minister retains the authority to revoke or modify the permission under certain circumstances (Regulation 4ZB(3) and (4)). This ensures that the import of these goods remains tightly controlled and aligned with Australia's foreign policy and international commitments.
Failure to comply with the provisions of regulation 4ZB may lead to significant legal consequences. Importing arms or related matériel from Libya without the requisite permission constitutes an offence under the Customs Act 1901. Such an offence can result in civil penalties, including fines, and potentially criminal penalties if the breach is severe or deliberate. The specific penalties for contravening the Customs Act can vary but may include substantial fines and, in some cases, imprisonment, depending on the nature and severity of the breach. The Act also allows for the seizure and forfeiture of the imported goods, further enforcing the prohibition on unauthorised imports (Section 167 of the Customs Act 1901).