Customs (Prohibited Exports) Regulations (Amendment) 1994 No. 172
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 172
Issued by the authority of the Minister for Small Business, Customs and Construction
Customs Act 1901
Customs (Prohibited Exports) Regulations (Amendment)
Section 112 of the Customs Act 1901 (the Act) provides in part that:
"(1) The Governor-General may, by regulation, prohibit the exportation of goods from Australia.
"(2) The power conferred by subsection (1) may be exercised - (c) by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.
"(2A) Without limiting the generality of paragraph (2)(c), the regulations - ...(a) may provide that the exportation of the goods is prohibited unless a licence, permission, consent or approval to export 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 Exports) Regulations (the Regulations) control the exportation of the goods specified in the various regulations or the Schedules to the Regulations, by prohibiting exportation absolutely, or making exportation subject to the permission of a Minister or a specified person.
These Regulations amend the Regulations to:
(a) impose increased sanctions against Libya in accordance with United Nations Security Council (UNSC) Resolution 833 of 11 November 1993;
(b) impose sanctions against Haiti in accordance with UNSC Resolution 917 of 6 May 1994; and
(c) impose sanctions against Angola in accordance with UNSC Resolution 864 of 15 September 1993.
Increased sanctions against Libya
Regulation 13CB of the Regulations provides that exportation to Libya of the goods listed in Schedule 14A is prohibited unless the written permission of the Minister for Foreign Affairs or an authorised person is presented to a Collector. The goods listed in Schedule 14A include paramilitary equipment such as riot sticks, handcuffs, leg irons and whips, as well as aircraft and aircraft components in accordance with UNSC Resolution No. 748 of 31 March 1992.
Further to Australia's obligation as a member of the United Nations to give effect to UNSC Resolution 883 of 11 November 1993, the Government has imposed increased trade sanctions against Libya. .
UNSC Resolution 883 provides for the imposition of further sanctions against Libya in an effort to ensure Libya's compliance with Resolution 731 (which called on Libya to cease supporting terrorism and to surrender two of its nationals suspected of being responsible for the bombing of a passenger aircraft).
Regulation 5 gives effect to the Resolution by omitting Schedule 14A and replacing it with a new three part Schedule which incorporates the current fist of goods in Part 1 and, in accordance with UNSC Resolution 883, now includes a list of goods related to crude oil refining and exportation in Part 2 and materials related to Libyan civilian and military airfields in Part 3.
Sanctions against Haiti
The Regulations implement UNSC Resolution 917 of 6 May 1994 to impose wide ranging trade sanctions on Haiti in order to increase international pressure on the Haitian de facto authorities with a view to achieving a comprehensive and peaceful settlement of the crisis in Haiti.
Operative paragraph 7 of the Resolution provides for the prohibition of the sale or supply of all commodities or products to any person or any body in Haiti. There are narrow exceptions to the blanket prohibition which allow only the supply of goods for essential humanitarian needs, medical supplies, foodstuffs and certain petroleum products. Regulation 3 gives effect to the Resolution by inserting a new regulation 13CF into the Regulations which prohibits the exportation of all goods the immediate or final destination of which is Haiti without the permission of the Minister for Foreign Affairs or an authorised person.
Subregulation 13CE 20 provides that in deciding whether to give a permission, Australia's relations with other countries and obligations under international law must be taken into account.
Sanctions against Angola
The Regulations implement UNSC Resolution 864 of 15 September 1993 to prohibit the supply of certain materials to the territory of Angola other than through named entry points provided by the Government of Angola to the Secretary-General to the United Nations with the intention of preventing the supply of those materials to UNITA (the National Union for the Total Independence of Angola) rebels.
The particular goods the subject of the Resolution are arms related material and petroleum and petroleum products. The exportation of arms and related materials is already covered by regulation 13B of the Regulations which is administered by the Department of Defence. These Regulations impose controls on the supply of petroleum and petroleum products to Angola by inserting a new regulation 13CE into the Regulations which provides that the exportation of those goods to Angola is prohibited unless the permission of the Minister for Foreign Affairs or an authorised person is presented to the Collector.
New subregulation 13CE(3) provides that in deciding whether to grant a permission the port in Angola at which the petroleum or petroleum product is to be unloaded, Australia's relations with other countries and Australia's obligations under international law must be taken into account.
The Regulations are explained in greater detail in the Attachment.
The Regulations commence on gazettal.
ATTACHMENT
1. Amendment
Subregulation 1.1 - is a machinery provision which provides that the Customs (Prohibited Exports) Regulations are amended as set out in these Regulations.
2. Regulation 2 (Interpretation)
Subregulation 2.1 - inserts 3 new definition into subregulation 2(1) of the Regulations. The defined terms refer to published American Standards which are used to describe certain goods related to crude oil refining and exportation which are proposed to be subject to export controls under the proposed amendment to Schedule MA
3. New regulations 13CE and 13CF
Subregulation 3.1 - inserts new regulations 13CE and 13CF into the Regulations to prohibit the exportation of certain goods to Angola and Haiti respectively.
Exportation of certain goods to Angola
New regulation 13CE - provides that the exportation of petroleum and petroleum products the immediate or final destination of which is Angola is prohibited unless the Permission of an authorised person is produced to a Collector (new subregulations 13CE(1) and (2) refer).
Subregulation 13CE(3) - requires the authorised person to take into account the port in Angola at which the goods are to be unloaded, Australia's relations with other countries and Australia's obligations under international law when deciding whether to grant a permission.
Subregulation 13CE(4) - provides that the permission may be expressed to be subject to conditions, including the quantity of goods that may be exported, the circumstances of exportation and the period of effect of the permission.
Subregulation 13CE(5) - sets out definitions of 'authorised person', 'petroleum' and 'petroleum product' for the purposed of the Regulation. In particular, 'authorised person' is defined to mean the Minister for Foreign Affairs or an officer of the Department of Foreign Affairs and Trade authorised in writing by the Minister.
Exportation of certain goods to Haiti
Subregulation 13CF(1) - provides that the exportation of all goods the immediate or final destination of which is Haiti is prohibited unless the permission of an authorised person is presented to a Collector.
Subregulation 13CF(2) - requires the authorised person to take into account Australia's relations with other countries and Australia's obligations under international law when deciding whether to grant a permission.
Subregulation 13CF(3) - provides that the permission may be expressed to be subject to conditions, including the quantity of goods that may be exported, the circumstances of exportation and the period of effect of the permission.
Subregulation 13CF(4) - defines 'authorised person' to mean the Minister for Foreign Affairs or an officer of the Department of Foreign Affairs and Trade authorised in writing by the Minister.
4. Regulation 13H (Certain applications to be referred)
Subregulation 4.1 - amends paragraphs 13H(1)(a),(3)(a) and (4)(b) to insert cross references to the new provisions requiring permissions; to export goods to Angola and Haiti. Regulation 13H requires that in circumstances where a permission may be granted by either a Minister or an authorised person, if that power is exercised by an authorised person and that person decides that a permission should not be granted, the application for the permission should be referred to be decided personally by the relevant Minister.
Subregulation 4.2 inserts a new subregulation (5) into regulation 13H to provide that if the under the relevant regulation the 'authorised person' making the initial decision not to grant a permission is in fact the relevant Minister then the requirements of this regulation do not apply.
5. Schedule 14A (Goods the exportation of which to Libya is prohibited)
Subregulation 5.1 - omits Schedule 14A to the Regulations and replaces it with a new three part Schedule which incorporates the current fist of goods in Part 1 and, in accordance with UNSC Resolution 883, now includes a fist of goods related to crude oil refining and exportation in Part 2 and materials related to Libyan civilian and military airfields in Part 3.