EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 223

 

Issued by the Authority of the Minister for Home Affairs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2010 (No. 2)

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 for giving effect to the Act.

Section 112 of the Act provides, in part, that the Governor‑General may, by regulation, prohibit the exportation of goods from Australia and that the power may be exercised by prohibiting the exportation of goods absolutely or by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.

The purpose of the amending Regulations is to amend the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) to implement additional sanctions against Iran imposed by United Nations Security Council (UNSC) Resolution 1929, which was adopted on 9 June 2010 (resolution 1929).

Regulation 13CQ of the PE Regulations implemented earlier sanctions against Iran imposed by the UNSC resolution 1737 (23 December 2006). Resolution 1737 provided, in part, that all Member States shall prevent the supply, sale or transfer to, or for the benefit of, Iran of all items which could contribute to Iran’s nuclear enrichment-related, reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems and ballistic missile programmes.

Subregulation 13CQ(2) previously prohibited the exportation of listed goods the immediate or final destination or final destination of which is, or is intended to be, Iran unless written permission has been granted by the Minister for Foreign Affairs (the Minister) or an authorised person. ‘Listed goods’ was defined in subregulation 5(1) of the PE Regulations as goods determined by the Minister under subregulation 5(2) of the Charter of the United Nations (Sanctions – Iran) Regulations 2008 (the Iran Regulations).

Resolution 1929 has extended the original sanctions to further restrict Iran’s capacity to develop its programs of proliferation concern.

Amendments to the Iran Regulations to implement the additional sanctions against Iran are the subject of a separate Minute.

The amending Regulations extend the coverage of regulation 13CQ to include goods the subject of these additional sanctions. Proposed new subregulation 13CQ(1) re-define ‘listed goods’ as:

a)                  export sanctioned goods mentioned in subregulation 5(1) of the Iran Regulations; and

b)                  goods specified in a prohibition notice issued under regulation 5A of the Iran Regulations.

The export sanctioned goods mentioned in proposed subregulation 5(1) of the Iran Regulations include:

a)                  goods mentioned in INFCIRC/254/Rev.9/Part 1, INFCIRC/254/Rev.7/Part 2 and UNSC document S/2010/263;

b)                  goods that have been determined by the Security Council or the Committee for paragraph 3(d) of Resolution 1737 or paragraph 8 of Resolution 1929;

c)                  arms and related materiel described in the annex to the United Nations General Assembly Resolution A/RES/46/36 L dated 6 December 1991 (for the purpose of the United Nations Register of Conventional Arms); and

d)                  goods specified in a determination under subregulation 5(2) of the Iran Regulations, and key components, or a subassembly, of such goods; and

e)                  goods that are, or are capable of being, key components, or a subassembly, of goods specified in a determination under subregulation 5(2).

Under regulation 5A of the Iran Regulations, the Minister may specify goods in certain circumstances. Goods may be specified if the goods are not export sanctioned goods and Minister is nevertheless satisfied on reasonable grounds that goods could, if sold, supplied or transferred to Iran, contribute to Iran's enrichment-related, reprocessing or heavy water-related activities or the development of nuclear weapon delivery systems or the pursuit of activities related to other topics about which the International Atomic Energy Agency has expressed concern or identified as outstanding.

The amending Regulations also insert new subregulation 13CQ(2AA) into the PE Regulations. New subregulation 13CQ(2AA) prohibits the exportation without the permission of the Minister or an authorised person of all goods by an Australian national, corporation or person or entity subject to Australian jurisdiction in the course of unauthorised business with a ‘specified entity’. Such entities are specified by the Minister under regulation 17E of the Iran Regulations, where the Minister has reasonable grounds to believe that unauthorised business with an entity may contribute to Iran’s proliferation-sensitive nuclear activities, the development of nuclear weapon delivery systems or to violations of the United Nations sanctions against Iran. Such an entity can only be specified if it is incorporated in Iran or subject to Iranian jurisdiction.

New subregulation 13CQ(6) limits the persons who can be authorised by the Minister as ‘authorised persons’ under regulation 13CQ to Senior Executive Service employees of the Department of Foreign Affairs and Trade.

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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