Commonwealth Numbered Regulations - Explanatory Statements

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Issued by the Authority of the Minister for Small Business, Construction and Customs

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 Pro-Export Regulations) control the exportation of the goods specified in the various regulations or the schedules to the regulations, by prohibiting exportation absolutely, or by making exportation subject to the permission of a specified person or Minister of State.

The Regulations amend the Pro-Export Regulations to give effect to Australia's obligations as a signatory to ' the Nuclear NonProliferation Treaty by including the clarification of the description of "heavy water production equipment" in item 25 of Schedule 9 to the Regulations.

Regulation 11 of the Pro-Export Regulations prohibits the exportation from Australia of goods specified in Schedule 9 of the Regulations unless an approval in writing to the exportation of the goods issued by the Minister of State for Primary Industries and Energy or by an authorised person is produced to a Collector of Customs. Schedule 9 lists goods which have been identified by the 'Zangger Committee' (a Committee essentially of signatories to -Proliferation Treaty) as goods which incorporate

the Nuclear Non nuclear-specific materials and technologies whose exportation should trigger safeguards. Item 25 of the Schedule identifies:

"(1)       Plants for the production of heavy water, deuterium or compounds containing deuterium"; and

"(2)       Equipment and materials suitable for plants referred to in subitem (1)";

as goods to which the control in regulation 11 applies.

Australia acceded to the Treaty on the Non-Proliferation of Nuclear Weapons on 23 January 1973. Australia's obligations under the Treaty include, under Article 111.2, an undertaking not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to another state except subject to safeguards under an Agreement with the International Atomic Energy Agency (IAEA). These goods are by the so-called 'Trigger List', and regulation 11 and Schedule 9 of the Pro-Export Regulations provide for the regime by which Australia meets its obligations under Article III.2.

Part of Australia's role in the on-going work of the Zangger Committee is the constant monitoring of the need for revision or further clarification of the 'Trigger List' in response to technological change and other developments. To make amendments and clarifications to the list, members consult, then exchange notes and send identical letters to the Director-General of the IAEA. At its October 1991 meeting the Committee considered a proposal to clarify the description of "heavy water production equipment" and on 21 January 1992 the Secretary of the Committee advised that Governments should exchange notes signifying their acceptance of the agreed text of the clarification and write to the Director-General of the IAEA expressing the same view by 2 March 1992.

The Government decided that Australia should indicate its acceptance of the clarification by participating in the exchange of diplomatic notes in Vienna on 2 March 1992. The exchange of notes took place on that date and Australia was then obliged to embody the clarification in its domestic legislative controls.

The Regulations amend item 25 of Schedule 9 to the Pro-Export Regulations to include the descriptions of equipment for the production of heavy water agreed to by the Zangger Committee on 2 March 1992. In the Introductory Note to the clarification the Committee noted that although heavy water can be produced by a variety of processes, only two processes, namely the water - hydrogen sulphide exchange process and the ammonia - hydrogen exchange process, have proven to be commercially viable.

Regulation 2.1 amends item 25 of Schedule 9 to the Pro-Export Regulations to include the clarification of equipment for heavy water production plants which are now to be controlled exports. The amendment identifies equipment of certain specifications which are specially designed or prepared for production of heavy water using either of the two commercially viable processes. The Regulations amend the Pro-Export Regulations as follows.

1.       Amendment

Regulation 1.1       is a formal machinery provision which provides that the Customs (Prohibited Exports) Regulations are amended as set out in these Regulations.

2.       Schedule 9 (Goods the exportation of which is prohibited unless the approval of the Minister or an authorised person referred to in regulation 11 is produced to the Collector)

Regulation 2.1       amends Schedule 9 to omit item 25 and substitute a new item 25 which includes specific descriptions of equipment specially designed or prepared for use in plants for the production of heavy water using the water - hydrogen sulphide exchange process or the ammonia - hydrogen exchange process. In general terms the types of equipment included in the list are:

(a)       Water - hydrogen sulphide exchange towers;

(b)       Blowers and compressors;

(c)       Ammonia - hydrogen exchange towers;

(d)       Tower internals and stage pumps;

(e)       Ammonia crackers;

(f)       Catalytic burners; and

(g)       Infrared absorption analysers.

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