Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT) 1996 NO. 69

STATUTORY RULES 1996 No. 69

Issued by the Authority of the Minister for Small Business and Consumer Affairs

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 the last preceding subsection 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.

Background

Subregulations 13CA(1) and (2) of the Regulations prohibit the exportation of all goods the immediate or final destination of which is, or is intended to be, the Republic of Iraq without the permission of the Minister for Foreign Affairs or an authorised person.

Subregulation 13CA(3) of the Regulations provides that the relevant permission may specify the conditions or requirements to which the exportation is subject, the quantity of goods that may be exported and the circumstances in which goods may be exported.

Subregulation 13CA(4) of the Regulations provides that:

"The Minister may revoke or modify a permission granted under subregulation (2) if the Minister is satisfied on reasonable grounds that:

(a)       a condition or requirement of the permission has not been complied with; or

(b)       permitting, or continuing to permit, the exportation of goods in accordance with the permission would infringe the international obligations of Australia".

The Attorney-General's Department has advised that subregulation 13CA(4) of the Regulations indicates the only circumstances in which a permission may be revoked or modified. As a consequence of the limited interpretation that has been given to the relevant subregulations difficulties have occurred in relation to exports to Iraq. This restrictive interpretation would not allow the Minister to modify a permission at the request of an exporter who is not able to comply with the conditions of a permission, even if the Minister was disposed to agree to the request to modify and the modification is within the scope of the Security Council's sanctions against Iraq.

Regulation 2 amends paragraph 13CA(4)(a) to expand the circumstances when a permission may be revoked or modified to provide that it may be revoked or modified when "a condition or requirement of the permission has not been complied with or, unless modified, is unlikely to be complied with."

The Regulations commenced on gazettal.