Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT) 1991 NO. 288

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 288

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 Statutory Rules amend the Regulations to:

i)       extend the export controls contained in Schedule 8 to the Regulations to cover certain narcotic and psychotropic substances and substances which can be used in their illicit manufacture;

ii)       amend Regulation 8 to provide for review by the Administrative Appeals Tribunal (AAT) of certain decisions made under that regulation, and to provide a facility for the Secretary of the Department of Health, Housing and Community Services or an authorised person to impose conditions or requirements in permissions for the exportation of goods granted under the regulation;

iii)       amend Regulations 10, 10A, 10B and 10E to allow the Secretary of the Department of Health, Housing and Community Services to authorise other officers to exercise certain of the numerous administrative functions vested in the Secretary; and

iv)       amend Schedule 6 to omit export controls over "pancreas glands of cattle and pigs and alcoholic extracts from pancreas glands of the those animals" and to modify the export control over human blood, organs and body fluids.

Background

i)       Amendments to Schedule 8

On 16 April 1991 Government decided that certain amendments be made to the Regulations to aid in the regulation of international trade in certain narcotic substances and psychotropic substances, together with substances which can be used in their illicit manufacture.

The Government decided that export controls be introduced for certain substances used in the illicit manufacture of drugs and which are in Table 1 of the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

•       This will enable Australia to meet the obligations required of parties by Article 12 of the Convention, and thus allow it to ratify the Convention. Australia became a signatory to the Convention in February 1991. Proposed Regulation 12 adds to Part 3 of new Schedule 8 export controls over 5 substances which can be used in the illicit manufacture of narcotic drugs and psychotropic substances.

The Government also decided that export controls be introduced for certain narcotic drugs and psychotropic substances not currently subject to such controls.

•       This will enable Australia to meet the obligations required of parties under the Convention on Narcotic Drugs 1961 and the Convention on Psychotropic Substances 1971. Proposed Regulation 12 adds to Parts 1,2 and 4 respectively of new Schedule 8 export controls over 42 narcotic drugs and 6 psychotropic substances.

ii) Amendments to Regulation 8

The proposed Regulations omit Regulation 8 and substitute a new Regulation 8 which:

•       provides for independent review by the Administrative Appeals Tribunal (AAT) of certain decisions made under that regulation (new subregulation 8(8)). Those decisions are:

i)       a decision by the Secretary of the Department of Health, Housing and Community Services or an authorised person not to grant a permission to export goods contained in Schedule 6 to the Regulations;

ii)       a decision by the Secretary of the Department of Health, Housing and Community Services or an authorised person to grant a permission specifying conditions or requirements; and

iii)       a decision by the Secretary of the Department of Health, Housing and Community Services or an authorised person to revoke a permission;

-       the provision of independent review by the AAT is made upon the recommendation of the Administrative Review Council and the Attorney-General's Department.

•       provides a facility for the Secretary of the Department of Health, Housing and Community Services or an authorised person to impose conditions or requirements on permissions to export goods specified in Schedule 6 (new subregulation 8(5)); and

•       provides a power for the Secretary of the Department of Health, Housing and Community Services or an authorised person to revoke a permission where that permission is subject to a condition or requirement to be complied with by a person, and the person fails to comply. This power to revoke is independent of whether or not the person is charged with an offence under subsection 112(2B) of the Act (new subregulation 8(7)).

These changes are explained in greater detail in the Attachment.

iii)       Amendments to Regulations 10, 10A, 10B and 10E

The proposed Regulations amend the above regulations to enable the Secretary of the Department of Health, Housing and Community Services to authorise other officers to exercise certain of the numerous functions vested in the Secretary under the above regulations. The proposed Regulations also provide for independent review by the Administrative Appeals Tribunal (AAT) for the following decisions:

a)       a decision by the Secretary or an authorised person to refuse to grant a permission to export certain drugs under subregulation 10(1)(new paragraph 10F(1)(a));

b)       a decision by the Secretary or an authorised person to refuse to grant a licence to export certain drugs under subregulation 10A(2)(new paragraph 10F(1)(b)); and

c)       a decision by the Secretary or an authorised person to revoke a license under subregulation 10A(4) (new paragraph 10F(1)(c)).

iv)       Amendments to Schedule 6

On 31 May 1990 the Government decided amongst other things, to amend Schedule 6 to the Regulations to:

a)       omit Item 2 which refers to "pancreas glands of cattle and pigs and alcoholic extracts from pancreas glands of those animals".

•       the inclusion of this item was originally intended to protect supplies of pancreas gland needed to prepare insulin products by the Commonwealth Serum Laboratories (CSL). Insulin is now increasingly prepared by biotechnology rather than by extracts from animal tissue and therefore the provision is no longer required. This deletion is acceptable to the CSL; and

b)       combine and modify Item 3 (Human blood) and Item 5 (A human organ or human tissue, including the placenta, of a kind that is suitable as a source from which to derive a constituent of human blood for therapeutic use or for the preparation of a substance for therapeutic use) to avoid the unnecessary inconvenience of controlling material exported for pathological testing for individual patients, when the intention of the controls was to regulate the export of human material intended for the manufacture of products for commercial purposes.

•       It is considered appropriate to combine Item 3 and 5 because both items deal with material obtained directly from the human body. All of the above changes are as follows:

Regulation 1 provides that the Customs (Prohibited Exports) Regulations are amended as set out in the proposed regulations;

Regulation 2 amends two definitions in Regulation 2 of the Regulations.

•       subregulation 2.1 amends the definition of "licensed exporter" in subregulation 2(1) of the Regulations by removing the reference to "of these Regulations".

•       subregulation 2.2 inserts a definition in subregulation 2(1) of "the Act" meaning the Customs Act 1901.

Regulation 3 amends subregulation 2A(2) of the Regulations by substituting "the Act" for "the Customs Act 1901".

Regulation 4 effects a technical drafting change to subregulation 5(1) by replacing "the Third Schedule" with "Schedule 3".

Regulation 5 omits Regulation 8 and substitutes it with a new Regulation 8 (Exportation of goods specified in Schedule 6)

•       The new regulation 8 enables the Secretary of the Department of Health, Housing and Community Service to grant permissions to export goods specified in Schedule 6 and to specify certain conditions or requirements that must be complied with by the holder of the permission. It also provides for independent review by the AAT for certain decisions made under the new Regulation 8.

New subregulation 8(1) defines an authorised person for the purposes of this regulation as being a person authorised in writing by the Secretary of the Department of Health, Housing and Community Services.

New subreaulation 8(2) prohibits the exportation from Australia of goods referred to in Schedule 6 unless a permission to export the goods has been granted, and the permission is produced to the Collector.

New subregulation 8(3) enables the Secretary of the Department of Health, Housing and Community Services or an authorised person to grant to an applicant a permission to export goods specified in Schedule 6.

New subregulation 8(4) specifies how an application must be made for a permission to export goods specified in Schedule 6; it must be in writing and it must be lodged with the Secretary of the Department of Health, Housing and Community Services.

New subregulation 8(5) enables the Secretary or an authorised person to attach conditions or requirements to a permission and it also provides that notice of the grant of a permission by the Secretary or an authorised person must be in writing.

New subregulation 8(6) ensures that an applicant is notified in writing if the Secretary or an authorised person refuses to grant their application for a permission.

New subregulation 8(7) empowers the Secretary or an authorised person to revoke a permission if the permission is subject to certain conditions or requirements and the holder fails to comply with the condition or requirements, irrespective of whether the holder is charged under subsection 112(92B) of the Customs Act 1901. It also empowers the Secretary or an authorised person to revoke a permission if the holder of the permission is convicted under subsection 112(2B) of the Customs Act 1901 for failing to comply with a condition or a requirement.

•       notice of the revocation must be given in writing to the holder of the premium.

New subregulation 8(8) provides for independent review by the Administrative Appeals Tribunal (AAT) of certain decisions made by the Secretary of the Department of Health, Housing and Community Services or an authorised person. Those decisions are:

i)       a decision not to grant a permission;

ii)       a decision to grant a permission specifying a condition or a requirement

•       it is considered appropriate to have AAT review for such decisions as it would be possible for the decision-maker to effectively deny a permission by attaching very onerous conditions which must be complied with by the holder of the permission; and

iii)       a decision to revoke a permission.

New subregulation 8(9) provides that if the Secretary or an authorised person has made a decision that can be reviewed by the AAT under new subreaulation 8(8), then notice to the effect that the decision is reviewable by the AAT, and that the decision maker's reasons for the decision are obtainable from the decision maker, shall be given to the person who applied for the permission, or whose permission was revoked.

New subregulation 8(10) is a standard provision to ensure that failure to comply with the notice requirements under new subregulation 8(9) does not affect the validity of the actual decision.

Regulations 6, 7, 8 and 9 amend Regulations 10, 10A, 10B and 10E to:

i)       reflect the change in name of the Department of Health, Housing and Community Services from the Department of Community Services and Health; and

ii)       authorise other officers to exercise certain of the numerous functions vested in the Secretary.

Regulation 6 makes a number of minor amendments to Regulation 10 (Exportation of certain drugs) as follows:

Subreaulation 6.1 reflects the change in name of the Department of Health, Housing and Community Services and also enables an authorised person to permit a licensed exporter to export a drug controlled by this regulation.

Subregulation 6.2 reflects the change in name of the Department of Health, Housing and Community Services and also enables an authorised person to extend the 3 month period in which a drug controlled by this regulation must be exported.

Subregulation 6.3 reflects the change in name of the Department of Health, Housing and Community Services and also reflects the role of an authorised person under paragraph 10(1)(b) and subparagraph 10(1)(b)(i).

Subreaulation 6.4 ensures that if a licensed exporter is refused a permission to export a drug controlled by this regulation then they must be notified in writing.

Subregulation 6.5 effects a minor technical amendment to subregulation 10(2) to remove references to "through the Post Office" replacing it with" by post".

Subregulation 6.6 effects another minor technical amendment to subregulation 10(2) to reflect the change in name of the Department of Health, Housing and Community Services, and also empowers an authorised person to give a permission to allow a licensed importer to export a drug controlled under this regulation through the post.

Subreaulation 6.7 effects a minor technical amendment to paragraph 10(3)(a) to reflect the change in name of the Department of Health, Housing and Community Services.

Subregulation 6.8 effects a minor technical amendment to subregulation 10(4) to reflect the change in numbering of the parts of Schedule 8 from Roman numerals to Arabic numerals.

Subregulation 6.9 adds the definition of "authorised person" as being a person authorised by the Secretary of the Department of Health, Housing and Community Services to be an authorised person for the purposes of regulation 10, 10A, 10B, 10E and 10F.

Regulation 7 amends Regulation 10A (Licensed Exports) as follows:

Subregulation 7.1 effects a minor technical amendment to subregulation 10A(1) to reflect the change in name of the Department of Health, Housing and Community Services.

Subregulation 7.2 effects minor technical amendments to subregulation 10A(2) and 10A(4) to reflect the change in name of the Department of Health, Housing and Community Services and also empowers an authorised person to grant an application for a licence (under subregulation 10A(2)) or to revoke a licence granted under this regulation (subregulation 10A(4)).

Subregulation 7.3 adds new subregulations 10A(5) and 10A(6) to ensure that written notice be given by the Secretary or an authorised person if an application for a license is refused (new subregulation 10A(5)) or a licence is revoked (new subregulation 10A(6)).

Regulation 8 amends Regulation 10B (Conditions of licenses under regulation 10A) as follows:

Subreaulation 8.1 effects a minor technical amendment to paragraph 10B(1)(b) to reflect the change in name of the Department of Health, Housing and Community Services and also empowers an authorised person to approve of the destruction of the exporter's books of records.

Subregulation 8.2 effects a minor technical amendment to paragraph 10B(1)(c) to reflect the change in name of the Department of Health, Housing and Community Services.

Subregulation 8.3 effects a similar minor technical amendment to paragraph 10B(1)(d) to reflect the change in name of the Department of Health, Housing and Community Services.

Subregulation 8.4 effects a similar minor technical amendment to paragraph 10B(1)(e) to reflect the change in name of the Department of Health, Housing and Community Services.

Subregulation 8.5 omits the definition of "authorised officer" as all references to "authorised officers" have been replaced by "authorised persons" and this has been defined in subregulation 10(5) (proposed subregulation 6.9 refers).

Regulation 9 amends Regulation 10E (Exercise of powers by Secretary, Comptroller or authorised person) to reflect the change in name of the Department of Health, Housing and Community Services and also to reflect the functions that the authorised person can perform under Regulations 10, 10A and 10B.

Regulation 10 inserts a new Regulation 10F to provide for independent review by the AAT of certain decision made by the Secretary or an authorised person under Regulations 10 and 10A.

New Subregulation 10F(l) provides that the following decisions are reviewable by the AAT:

•       a decision not to grant a permission to a licensed exporter to export a drug specified in Schedule 8 (paragraph 10(1)(b));

•       a decision not to grant a licence to an applicant (paragraph 10A(2); and

•       a decision to revoke a licence granted under subregulation 10A(4).

New subregulation 10F(2) provides that if the Secretary or an authorised person has made a decision that can be reviewed by the AAT under new subregulation 10F(1), then notice to that effect shall be given similar to new subreuglation 8(9).

New subregulation 10F(3) is a standard provision to ensure failure to comply with the notice requirements under new subregulation 10F(2) does not affect the validity of the actual decision.

Regulation 11 omits Schedule 6 to the Regulation and substitutes it with a new Schedule 6 which removes export controls over "pancreas glands of cattle and pigs and alcoholic extracts from pancreas glands of those animals", and combines and modifies the export controls over human blood, human organs and human tissues to avoid the necessary inconvenience of controlling material exported for pathological testing for individual patients, when the intention of the controls was to regulate the export of human material intended for the manufacture of products for commercial purposes.

Regulation 12 omits Schedule 8 and substitutes it with the new Schedule 8 which includes export controls over substances previously specified in Schedule 8 and adds the new controls over 53 Substances as follows:

•       export controls over 42 narcotic drugs specified in the Single Convention on Narcotic Drugs 1961 (added to Part 1 of the new Schedule 8);

. .       the new Schedule 8 retains the 4-part format of the present Schedule 8. The original distinction was based on the classification of the prohibited substance into either primary narcotic drugs (Part 1), hallucinogens and main amphetamines (Part 2), other amphetamines (Part 3), or barbiturates and sedatives (Part 4). As new controls are added, the particular substance is added to the Part which the new substance is most similar to.

•       export controls over 6 psychotropic substances specified in the Convention on Psychotropic Substances 1971 (4 of the substances added to Part 2 of the new Schedule 8) and 2 of the substances added to Part 4 of the new Schedule 8); and

•       export controls over 5 substances which can be used in the illicit manufacture of narcotic drugs and psychotropic substances. These substances are specified in Table 1 of the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (added to Part 3 of the new Schedule 8).


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