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CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT) 1991 NO. 118

STATUTORY RULES 1991 No. 118

CUSTOMS ACT 1901

CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT)

ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS

Section 112 of the Customs Act 1901 provides in part that:

"1)       The Governor-General may, by regulation, prohibit the exportation of goods from Australia.

2)       The power conferred by sub-section (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 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 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 specified person or Minister of State.

The Regulations contain several amendments to the Regulations which:

i)       amend the Iraq exports sanction legislation enacted on 8 August 1990 to enable more flexibility in the administration of this sanctions regime; and

ii)       replace the Gazette Notice published by the Minister of State for Defence referred to in regulation 13E with a document published by the Minister of State for Defence.

Background

i)       Amendment of the Iraq exports sanctions legislation

Regulation 13CA of the Customs (Prohibited Exports) Regulation was introduced on 8 August 1990 (Statutory Rules 1990 No. 264 refers) to implement trade sanctions against Iraq and Kuwait in accordance with UN Security Council Resolution 6.61.

On 27 February 1991, regulation 13CA was amended (Statutory Rules 1991 No. 24 refers) to effectively enable goods to be exported from Australia to Iraq or Kuwait via third countries, where the exportation would not be inconsistent with UN Security Council Resolutions Nos. 661 and 666 (which generally permit trade for humanitarian purposes, or for the rehabilitation or the reconstruction of Kuwait). Regulation 13CA was further amended on 30 April 1991 (Statutory Rules 1991 No. 77 refers) to remove sanctions measures over exports to Kuwait. The sanctions measures over exports to Iraq are, at present, in the form of regulation 13CA as amended by Statutory Rules 1991 No. 24.

On 2 April 1991, the United Nations Security Council adopted Resolution No. 687 which permitted certain commercial sales of food to Iraq as "... materials and supplies for essential civilian needs ..." (paragraph 20). To enable such commercial sales, the proposed regulations replace the existing sanctions formula in regulation 13CA with a more flexible formula which enables the Minister to take into account Australia's international obligations (including UN Security Council Resolutions) when considering whether a permission should be granted to allow the exportation of goods to Iraq.

ii)       Replacement of Gazette Notice with document published by the Minister of State for Defence in Regulation 13E

At present, regulation 13E prohibits the exportation of goods specified in the notice published by the Minister of State for Defence in Gazette No. P11 dated 2 March 1990 unless a licence or permission for the exportation is granted by the Minister of State for Defence and the licence or permission is produced to a Collector.

The purpose of this prohibition is to control the exportation of dual use technologies and systems (ie. civilian and defence) so that such equipment is not exported to countries or places which could conflict with Australia's security interests, and gives effect to Australia's obligations as a member country of COCOM (the Coordinating Committee for Multilateral Export Controls).

Given the difficulty in amending the list of goods prohibited (ie. if requires the printing of another Gazette) and the frequency of amendments, it was considered subregulation 13E(1) should be amended to refer to "the document published by the Minister of State for Defence entitled "Australian military Controls on the Export of Technology with Civil and Military Applications" dated May 1991" instead of "the notice published by the Minister of State for Defence in Gazette No. P11 dated 2 March 1990".

Regulation 3.1 effects this amendment.

Details of the amendments are as follows:

Regulation 1 - Amendment:

provides that the Customs (Prohibited Exports) Regulations are amended as set out in these Regulations.

subregulation 2 - Regulation 13CA (Export of goods to Iraq)

subregulation 2.1 substitutes the present regulation 13CA and replaces it with new regulation 13CA.

new paragraph 13CA (1) (a) prohibits the exportation of goods to Iraq by prohibiting the exportation of goods if the immediate or final destination of the goods is, or is intended to be, Iraq, unless the permission of the Minister of State for Foreign Affairs and Trade is obtained.

•       this prohibition will cover situations where goods are exported to a third country, the ultimate intended destination of which is Iraq, in an attempt to circumvent the prohibition.

new paragraph 13CA(1)(b) prohibits the exportation of goods from Australia that are of Iraqi origin by prohibiting the exportation of goods that originated, either wholly or in part, in Iraq unless the permission of the Minister for Foreign Affairs and Trade is obtained.

new subregulation 13CA(2) provides that the Minister may grant a permission for an exportation which is otherwise prohibited under this new regulation if the Minister is satisfied that permitting the exportation will not infringe the international obligations of Australia.

•       this new subregulation provides for a more flexible prohibition than the present one. By omitting any reference to specific resolutions of the United Nations Security Council, this prohibition will be flexible enough to cope without any further amendment, with further resolutions of the UNSC.

new subregulation 13CA(3) provides that the permission granted by the Minister of State for Foreign Affairs and Trade to export goods may specify conditions or requirements in relation to the exportation which the holder of the permission to must comply with, the quantity of goods that may be exported and the circumstances in which goods may be exported.

new Paragraph 13CA(4)(a) provides that if the Minister is satisfied that a condition or requirement of the permission has not been complied with them the Minister may revoke or modify the permit.

new paragraph 13CA(4)(b) provides that if the Minister is satisfied that to allow the exportation of certain goods would infringe the international obligations of Australian, then the Minister may revoke or modify the permit.

new subregulation 13CA(5) provide that the Minister may authorise another person or persons to exercise his or her powers under new regulation 13CA.

•       If a person so authorised by the Minister refuses to grant or permission under new subregulation 13CA(2), then under paragraph 13H(1)(a), the authorised person must refer the application to the Minister who may then grant or refuse to grant the permission.

-       the method of the Minister reviewing the decision of an authorised person is considered appropriate in this case because the decision to allow the trade sanction to be overruled is one of "high Government policy" and is therefore inappropriate to have Independent review by the Administrative Appeals Tribunal.

Regulation 3 - Regulation 13E

Subregulation 3.1 amends subregulation 13E(2) by replacing "the notice published by the Minister of State for Defence in Gazette No. P11 dated 2 March 1990" with "the document published by the Minister of State for Defence entitled "Australian Controls in the Export of Technology with Civil and Military Application" dated May 1991" which overcomes the difficulty of having to print another Gazette every time the list is altered.

(S.R. 91R235)