Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) REGULATIONS (AMENDMENT) 1996 NO. 325

STATUTORY RULES 1996 No. 325

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

Customs Act 1901

Customs (Prohibited Imports) Regulations (Amendment)

Section 270 of the Customs Act 1901 ("the Act") provides in part that the GovernorGeneral may make regulations not inconsistent with the Act prescribing all matters which by the Act are required to be prescribed for giving effect to the Act.

Section 50 of the Act provides in part that:

"(1) The Governor-General may, by regulation, prohibit the importation of goods into Australia.

"(2) The power conferred by the last preceding subsection may be exercised - (a) by prohibiting the importation of goods absolutely; ....or (c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

"(3)       Without limiting the generality of paragraph (2)(c), the regulations -...(a) may provide that the importation 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 Imports) Regulations ("the Regulations") control the importation of the goods specified in the various regulations or the Schedules to the Regulations, by prohibiting importation absolutely, or making importation subject to the permission of a Minister or a specified person.

These Regulations insert a new regulation 5J and Schedule 11 in order to implement new arrangements for the control of the importation of certain toxic and precursor chemicals in accordance with the Chemical Weapons Convention ("CWC"), which enters into force on 29 April 1997.

Background

As part of its policies for promoting international security, Australia supports measures banning the development, production, stockpiling or use of chemical weapons, As noted above, the CWC, which is the key multilateral instrument in this area, will enter into force on 29 April 1997. Australia has ratified the CWC, and as part of Australia's preparations for the entry into force of the CWC, certain new arrangements in the control of certain chemicals are now required which involve amendment of the Regulations.

Details of the changes are set out in the Attachment.

The majority of these Regulations will commence on 1 January 1997, with the exception of regulation 4, which will commence on 29 April 1997.

ATTACHMENT

Regulation 1 - Commencement

Subregulation 1.1 provides that new regulation 4 commences on 29 April 1997. New regulation 4 will amend the controls applying to the chemicals to take account of the stricter requirements which will have to be met from the date that the Chemical Weapons Convention ("CWC") actually enters into force. New subregulation 4.1 will amend new regulation M by inserting a definition of "Chemical Weapons Convention" in subregulation 5J(1). New subregulation 4.2 will:

i) omit new subregulation 5J(2) and substitute a new subregulation 5J(2) which provides that importations of prescribed goods (this term is defined in new subregulation 5J(1)) from a country that is not a State Party to the CWC is prohibited absolutely;

ii) insert a new subregulation 5J(2A) which provides that importations of prescribed goods from a country that is a State Party to the Convention are still prohibited unless a permission has been given; and

iii) insert a new subregulation 5J(2B) which provides that at least 37 days notice of a proposed importation of the prescribed goods is now required.

As the MC does not enter into force until 29 April 1997 these particular provisions are not required to operate until that time.

Subregulation 1.2 provides that the remainder of these regulations are to commence on 1 January 1997. As the CWC requires State Parties to the Convention to provide details of individual imports of the prescribed chemicals for the whole of the year in which the Convention enters into force, it is necessary for the majority of the controls to start on 1 January 1997 in order to comply with this obligation.

Regulation 2 - Amendment

Subregulation 2 provides that the Customs (Prohibited Imports) Regulations ("the Regulations") are amended as set out in the Regulations.

Regulation 3 - New Regulation 5J

Regulation 3 provides for a new regulation 5J to be inserted into the Regulations. This new regulation, together with new Schedule 11 (regulation 5 refers), sets out the details of the controls on the chemicals specified in Schedule 11.

New regulation 5J is headed "Importation of goods containing certain chemical compounds".

New subregulation 5J(1) provides for the insertion of three new definitions which are used for the purposes of regulation 5J and Schedule 11. These definitions are as follows:

i) "authorised person" is defined to mean an officer or employee of the Department of Foreign Affairs and Trade authorised in writing by the Minister for Foreign Affairs to give permission to import prescribed goods into Australia for the purposes of regulation 5J. If an authorised person dealing with an application for a permission believes that the permission should not be given, then the application must be referred to the Minister for Foreign Affairs who may give, or refuse to give, the permission (see further subregulation 5J(3)),

ii) "CAS number", in relation to a chemical compound, is defined to mean the Chemical Abstracts Service number, which is the registry number assigned to the compound by the Chemical Abstracts Service, Columbus, Ohio, United States of America and published by that Service in the journal Chemical Abstracts.

These numbers appear in column 3 of Schedule 11 and are advisory only. They have been included to provide potential importers with a practical means of assisting in the identification of the prescribed chemicals; and

iii) "prescribed goods" is defined to mean goods containing any of the following chemical compounds, a chemical compound specified in column 2 of an item in Part 2 of Schedule 11 and a chemical compound of a type mentioned in column 2 of an item in Part 2 of Schedule 11.

Subregulation 5J(2) provides that the importation into Australia of "prescribed goods" (as defined in subregulation 5J(1) and set out above) is prohibited unless the Minister for Foreign Affairs or an authorised person (as defined in subregulation 5J(1) and set out above) has given permission in writing to import the goods and the permission is produced to the Collector.

Subregulation 5J(3) provides that if an authorised person dealing with an application for a permission believes that the permission should not be given, then the application must be referred to the Minister for Foreign Affairs who may give, or refuse to give, the permission. As matters of high government policy are involved it is not considered appropriate to provide merits review of decisions to refuse permissions. So, in accordance with previously accepted practice in the Regulations, only the Minister himself may refuse a permission. Similarly, in the case of a revocation of a permission (subregulation 5J(5) refers) it is only the Minister himself who may revoke a permission if it is subject to a condition or requirement and the holder fails to comply with the condition or requirement.

Subregulation 5J(4) provides the power to include conditions or requirements to be complied with by the holder of the permission, and to set a time at or before which any condition or requirement must be complied with by that holder, in any permission granted for the importation of prescribed goods.

Subregulation 5J(5) provides the Minister for Foreign Affairs with the power to revoke a permission if it is subject to a condition or requirement and the holder fads to comply with the condition or requirement. As matters of high government policy are involved it is not considered appropriate to provide merits review of decisions to revoke permissions. So, in accordance with the previously accepted practice in the Regulations, only the Minister himself may revoke a permission. (Similar to the case of a refusal to grant a permission (subregulation 5J(3) refers).

The statement that revocation may occur in the circumstances set out in subregulation 5J(5) whether or not the person (namely, the holder of the permission) is charged with an offence against subsection 50(4) of the Act in respect of the failure to comply with the condition or requirement, merely restates the position under the law, as the power to revoke is based on failure to comply, not on any action which might follow.

Regulation 4 - Regulation 5J (Importation of goods containing certain chemical compounds)

Subregulation 4 amends the controls applying to the prescribed chemicals to take account of the stricter requirements which will have to be met from the date that the CWC actually enters into force.

Subregulation 4.1 amends new regulation M by inserting a definition of "Chemical Weapons Convention" in subregulation 5J(1), as follows: "Chemical Weapons Convention" means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction opened for signature in Pads on 13 January 1993.

Subregulation 4.2 will:

i) omit new subregulation 51(2) and substitute a new subregulation 5J(2) which provides that importations of prescribed goods (this term is defined in new subregulation 5J(1) from a country. that is not a State Party to the CWC is prohibited absolutely, A country that is not a State Party to the CWC is a country that has not ratified the CWC;

ii) insert a new subregulation 5J(2A) which provides that importations of prescribed goods from a country that is a State Party to the Convention are still prohibited unless a permission has been given; and

iii) insert a new subregulation 5J(2B) which provides that at least 37 days notice of a proposed importation of the prescribed goods is now required. Subregulation 5J(2B) provides that the Minister for Foreign Affairs or an authorised person must not give a permission to import prescribed goods unless an application for the permission is received at the Chemical Weapons Convention Office at least 37 days before the day when it is proposed to import goods. Under the CWC, Australia is obliged to notify the Organization for the Prohibition of Chemical Weapons of any proposed shipment of prescribed chemicals. This notice must take place at least 30 days prior to the proposed shipment from the country of origin. In addition, the Chemical Weapons Convention Office requires an extra seven days to process applications. Accordingly, a minimum notification period of 37 days has been set to give effect to Australia's obligations.

As the CWC does not enter into force until 29 April 1997 these particular provisions are not required to operate until that time. Subregulation 1.2 refers).

The combined effect of regulations 3 and 4 is that from 1 January 1997 the prescribed goods will require a permission to be imported, then from 29 April 1997 prescribed goods will not be able to conic in at all from non-State Party countries, but the position in relation to State Party country importations will remain the same, with the exception of the minimum notification period which must be complied with.

Regulation 5 - New Schedule 11

Subregulation 5.1 inserts a new Schedule 11 into the Regulations. This Schedule sets out the chemicals which are subject to the controls under new regulation 5J.

Part 1 of the Schedule contains interpretation provisions.

Part 2 of the Schedule sets out, in Column 2, the name of the chemical compound or group of compounds which are controlled and, for ease of reference, the CAS number of a chemical compound is set out in Column 3.

The chemicals set out in this Schedule are the most proliferation sensitive of the toxic and precursor chemicals of those covered by the WC and have very limited legitimate uses.