Customs (Prohibited Imports) Regulations (Amendment) 1996 No. 68
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 68
Issued by the Authority of the Minister for Small Business and Consumer Affairs
Customs Act 1901
Customs (Prohibited Imports) Regulations (Amendment)
Section 50 of the Customs Act 1901 (the Act) provides in part that:
"(1) The Governor-General may, by regulation, prohibit the importation of goods into Australia.
(2) The power conferred by the last preceding subsection may be exercised - (c) by prohibiting the importation of goods unless specified conditions or restricts are complied with.
(3) Without limiting the generality of paragraph (2)(c), the regulations - ...(a) may provide that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations; and ..."
The Customs (Prohibited Imports) Regulations (the Regulations) control the importation of the goods specified in the various regulations or the Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a specified person.
Background
Subregulations 4QA(1) and (2) of the Regulations prohibits the importation of all goods from, or originating h the Republic of Iraq without the permission of the Minister for Foreign Affairs or an authorised person.
Subregulation 4QA(3) of the Regulations provides that the relevant permission may specify the conditions or requirements to which the importation is subject, the quantity of goods that may be imported and the circumstances in which goods may be imported.
Subregulation 4QA(4) of the Regulations provides that:
"The Minister may revoke or modify a permission granted under subregulation (2) if the Minister is satisfied on reasonable grounds that:
(a) a condition or requirement of the permission has not been complied with; or
(b) permitting, or continuing to permit, the importation of goods in accordance with the permission would infringe the international obligations of Australia."
Subregulation 4QA(4) of the Regulations is in identical terms to subregulation 13CA(4) of the Customs (Prohibited Exports) Regulations (which relates to permissions to export goods to Iraq). The Attorney-Generals Department has advised that subregulation 13CA(4) of the Customs (Prohibited Exports) Regulations indicates the only circumstances in which a permission may be revoked or modified. As a consequence of the limited interpretation that has been given to the relevant subregulations difficulties have occurred in relation to imports from Iraq. This restrictive interpretation would not allow the Minister to modify a permission at the request of an importer who is not able to comply with the conditions of a permission, even if the Minister was disposed to agree to the request to modify and the modification is within the scope of the Security Council's sanctions against Iraq.
Regulation 2 amends paragraph 4QA(4)(a) to expand the circumstances when a permission may be revoked or modified to provide that it may be revoked or modified when "a condition or requirement of the permission has not been complied with or, unless modified, is unlikely to be complied with."
The Regulations commenced on gazettal.
Overview
The Customs (Prohibited Imports) Regulations (Amendment) 1996 No. 68, issued under the authority of the Minister for Small Business and Consumer Affairs, amends the Customs (Prohibited Imports) Regulations 1993. This legislative change was introduced to address the limitations in the regulatory framework governing the importation of goods from Iraq, specifically those outlined in subregulations 4QA(1) to 4QA(4) of the existing Regulations. These regulations, as initially drafted, strictly limited the circumstances under which a Minister could modify or revoke permission for the importation of goods from Iraq, thereby causing practical difficulties for importers attempting to navigate these conditions. By broadening the scope of permissible modifications to include situations where compliance with the conditions is unlikely, the amendment seeks to align the regulatory approach more closely with international sanctions and to provide greater flexibility in managing import permissions.
Scope and Application
The Customs (Prohibited Imports) Regulations (Amendment) 1996 No. 68 amends the Customs (Prohibited Imports) Regulations to expand the circumstances under which the Minister for Foreign Affairs or an authorised person may revoke or modify a permission for the importation of goods from the Republic of Iraq. These regulations apply to all persons and entities seeking to import goods from Iraq into Australia, and they are subject to the overarching framework provided by the Customs Act 1901. The geographic and jurisdictional reach of these regulations is national, applying across Australia, and they extend to the importation of any goods originating from Iraq. The primary exclusion under these regulations pertains to the conditions under which the import permissions can be revoked or modified, as clarified in the amendment to subregulation 4QA(4). While the amendment expands the circumstances under which the Minister can revoke or modify a permission, it remains confined to the prohibitions set forth in the Customs Act and the Regulations, ensuring compliance with Australia’s international obligations.
Key Provisions
The Customs (Prohibited Imports) Regulations (Amendment) 1996 No. 68 modifies the Customs (Prohibited Imports) Regulations by amending subregulation 4QA(4). The key provision is that it now allows the Minister for Foreign Affairs to revoke or modify a permission to import goods from Iraq if a condition or requirement of the permission has not been complied with or, unless modified, is unlikely to be complied with (subregulation 4QA(4)(a)). This amendment expands the circumstances under which a permission may be revoked or modified, providing greater flexibility in managing imports from Iraq in line with international obligations and sanctions.
These Regulations impose several obligations on parties involved in the importation of goods from Iraq. Importers must seek permission from the Minister for Foreign Affairs or an authorised person before importing goods from Iraq (subregulation 4QA(1)). The permission may include specific conditions or requirements, such as the quantity of goods that can be imported and the circumstances under which the goods may be imported (subregulation 4QA(3)). Importers must ensure they comply with all conditions and requirements stipulated in the permission. Additionally, the Minister has the authority to revoke or modify the permission if the conditions are not met or are unlikely to be met, or if permitting the importation would infringe on Australia's international obligations (subregulation 4QA(4)).
The Act and Regulations do not explicitly detail specific offences or penalties for breaches. However, general provisions under the Customs Act 1901 may apply, including potential fines and imprisonment for contravening customs regulations. The severity of penalties would depend on the nature and extent of the breach, with the maximum penalties potentially including significant fines and imprisonment terms as prescribed under the Customs Act and other relevant legislation. It is important for importers to fully comply with the conditions of their permissions to avoid any legal repercussions.