EXPLANATORY STATEMENT
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Export Control Act 1982
Prescribed Goods (General) Amendment Orders 2004 (No. 4)
Subsection 25(1) of the Export Control Act 1982 (“the Act”) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act or necessary or convenient to be prescribed for the carrying out or giving effect to the Act.
Paragraph 25(2)(g) of the Act provides that the Governor-General may make regulations empowering the Minister to make orders, not inconsistent with the regulations, with respect to any matter for or in relation to which provision may be made by the regulations.
Regulation 3 of the Export Control (Orders) Regulations 1982 provides that the Minister may, by instrument in writing, make orders, not inconsistent with regulations made under the Act, with respect to any matter for or in relation to which provision may be made by regulations under the Act.
Subsection 14(1) of the Act provides that a person shall not, in contravention of the regulations: (a) manufacture, have in his or her possession, apply, alter or interfere with an official mark; (b) manufacture, have in his or her possession or apply a mark resembling, or apparently intended to resemble or pass for, an official mark; or (c) manufacture, or have in his or her possession an official marking device.
Section 3 of the Act provides that official mark means any stamp, seal, label or mark that is declared by the regulations to be an official mark.
Order 87 of the Prescribed Goods (General) Orders 1985 declares marks to be official marks for the purposes of section 3 of the Act.
The Prescribed Goods (General) Amendment Orders 2004 (No. 4) (“the Amendment Orders”) amend order 87 of the Prescribed Goods (General) Orders 1985 by declaring a mark of the design set out in Schedule 1 to the Amendment Orders to be an official mark for the purposes of the definition in section 3 of the Act.
A Regulation Impact Statement was not required for this amendment.
Details of the amendment are set out below:
Order 1 provides that the Amendment Orders are named the Prescribed Goods (General) Amendment Orders 2004 (No. 4).
Order 2 provides that the Amendment Orders commence 1 December 2004.
Order 3 provides that Schedule 1 to the Amendment Orders amends the Prescribed Goods (General) Orders 1985.
Schedule 1
Item 1 amends order 87 of the Prescribed Goods (General) Orders 1985. Order 87 declares marks to be official marks for the purposes of section 3 of the Act. Item 1 amends order 87 by inserting two additional paragraphs, paragraphs (u) and (v), relating to a new mark and a stamp that applies the new mark for the purposes of the definition of official mark in section 3 of the Act. The new mark is set out in the new Schedule 12A to the Prescribed Goods (General) Orders 1985 and applies to a stamp that applies the mark of the same design.
Item 2 inserts a new schedule, Schedule 12A, after Schedule 12 of the Prescribed Goods (General) Orders 1985. The new Schedule 12A sets out the official mark specified in paragraph 87(u). Item 1 of the new Schedule 12A contains a pictorial representation of the official mark. Items 2 and 3 describe the size and lettering of the mark.
Overview
The Export Control Act 1982, enacted by the Australian Parliament, was introduced to regulate the export of goods, services, technology, and other items from Australia that may have implications for national security, foreign policy, or international obligations. This legislation is crucial for maintaining control over exports that could potentially be used for purposes contrary to Australia's interests. The Act allows the Governor-General to make regulations and empowers the Minister to issue orders to ensure that these regulations are effectively implemented and enforced. The primary policy objective of the Act is to safeguard Australia's strategic interests by controlling the outflow of sensitive and potentially harmful goods and technologies.
The Prescribed Goods (General) Amendment Orders 2004 (No. 4) amend the Prescribed Goods (General) Orders 1985 by declaring a specific new mark and the stamp that applies this mark as official marks under the Export Control Act 1982. These Amendment Orders, which came into effect on 1 December 2004, update the list of controlled marks to enhance the regulatory framework's effectiveness. By incorporating these new marks into the official list, the Amendment Orders aim to strengthen the enforcement mechanisms and ensure compliance with export control regulations.
Scope and Application
The Export Control Act 1982 and the accompanying regulations and orders govern the export of prescribed goods from Australia, ensuring compliance with national security and international obligations. The Act applies to persons and entities engaged in the export of goods, particularly those listed as prescribed goods, which include items of strategic importance or those subject to international trade controls. The geographic reach of the Act is national, impacting all states and territories within Australia. The Act's application extends through subordinate instruments, such as the Export Control (Orders) Regulations 1982, which allow for the creation of detailed rules and the specification of official marks, thereby enhancing the enforcement capabilities of the legislation. The Prescribed Goods (General) Amendment Orders 2004 (No. 4) further refine the scope by updating the list of official marks, ensuring that the regulatory framework remains current with evolving security concerns and trade practices.
Key Provisions
The main operative sections of the Prescribed Goods (General) Amendment Orders 2004 (No. 4) are Order 1, which names the Amendment Orders, Order 2, which specifies the commencement date of the Amendment Orders, and Item 1 of Schedule 1, which amends Order 87 of the Prescribed Goods (General) Orders 1985 by inserting two new paragraphs, (u) and (v), to declare new marks as official marks for the purposes of the Act. Order 87 originally declared certain marks as official marks, and the Amendment Orders add two additional marks to this list. These new marks are detailed in the newly inserted Schedule 12A, which provides a pictorial representation of the mark and specifies its size and lettering.
The Amendment Orders impose several obligations and requirements on the parties or entities they govern. Firstly, they mandate that the newly declared marks in paragraphs (u) and (v) of Order 87 are to be treated as official marks under the Act. This means that these marks must not be manufactured, possessed, or applied without proper authorisation, as per section 14(1)(a) of the Export Control Act 1982. Furthermore, any device used to apply these official marks must be kept secure and not misused, in accordance with section 14(1)(c). Entities involved in the production, possession, or application of these marks must ensure compliance with the regulations to avoid any contravention of the Act.
Failure to comply with the provisions of the Amendment Orders can result in significant legal consequences. Under section 14(1) of the Export Control Act 1982, a person who contravenes the regulations may be subject to penalties. Specifically, section 14(1) states that it is an offence for a person to manufacture, possess, or apply an official mark without authorisation, among other prohibited activities. The penalties for such offences can include substantial fines and, in severe cases, imprisonment. The exact penalties depend on the nature and severity of the breach, but they are designed to enforce compliance and deter non-compliance with the regulations.
Additionally, the Amendment Orders underscore the importance of adhering to the regulatory framework established by the Export Control Act 1982. By explicitly declaring new marks as official marks, the Amendment Orders aim to enhance the control and oversight of export activities. This ensures that the export of goods bearing these marks is properly regulated, thereby supporting the broader objectives of the Act, which include protecting national security and maintaining international compliance. The addition of these new marks to the list of official marks highlights the evolving nature of export controls and the need for continuous updates to the regulatory framework to address emerging issues.