House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Hon. Peter Dutton MP)

Notes on individual clauses

Clause 1 - Short title

1. Clause 1 provides that the short title by which this Act may be cited is the Customs and Other Legislation Amendment Act 2016.

Clause 2 - Commencement

2. Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

3. Table item 1 provides that sections 1 to 3 and anything in this Act not elsewhere covered by this table commencing on the day this Act receives the Royal Assent.

4. Table item 2 provides that Schedule 1 commences on the 28th day after this Act receives the Royal Assent.

5. Table item 3 provides that Schedule 2 commences on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

6. Table item 4 provides that Schedules 3 to 9 commence the day after this Act receives the Royal Assent.

7. The note after subclause 2(1) states that this table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

8. Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3 - Schedules

9. This clause is the formal enabling provision for the Schedules to the Bill, providing that each Act specified in a Schedule is amended or repealed in accordance with the applicable terms of the Schedule. This Bill amends the Customs Act, the Commerce (Trade Descriptions) Act and the Maritime Powers Act.

10. The clause also provides that other items of a Schedule have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation.

Schedule 1 - Amendments concerning prohibited exports

Customs Act 1901

11. The purpose of Schedule 1 of the Bill is to amend section 112 of the Customs Act to provide that the regulations the Governor-General may make prohibiting the exportation of goods from Australia may include the revocation of a licence or permission to export goods if the Defence Minister is satisfied that the exportation of the goods would prejudice the security, defence or international relations of Australia.

Item 1 - At the end of subparagraphs 112(2A)(b)(i) and (ii)

12. This is a consequential amendment to item 3 below.

Item 2 - At the end of paragraph 112(2A)(b)

13. This item adds new subparagraph (v) at the end of paragraph 112(2A)(b) of the Customs Act.

14. Section 112 of the Customs Act permits the Governor-General to prohibit the exportation of goods by regulation. That power may be exercised by prohibiting the exportation of goods unless certain conditions or restrictions are complied with. Those regulations, which are the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) may make provision for, and in relation to, matters concerning licences or permissions to export goods.

15. Section 112 of the Customs Act does not currently permit the Governor-General to make regulations providing that a licence or permission may be revoked in circumstances where the Defence Minister is satisfied that the exportation of the goods would prejudice Australia's security, defence or international relations.

16. The limited scope of this revocation power means that the Defence Minister cannot revoke a permit in circumstances where he or she is satisfied that the exportation of goods would prejudice the security, defence or international relations of Australia.

17. The effect of new subparagraph 112(2A)(b)(v) is that the regulations prohibiting the exportation of goods from Australia, in relation to a licence or permission granted as prescribed by the regulations, may include the revocation of a licence or permission to export goods if the Defence Minister is satisfied that the exportation of the goods would prejudice the security, defence, or international relations of Australia.

18. This amendment aligns with Australia's participation in the international export regimes of which Australia is a member, and will support Australia's counter proliferation activities by providing the Defence Minister with the power to revoke permits quickly where he or she is satisfied that the security, defence or international relations of Australia would be prejudiced. This new revocation power will allow regulation 13E of the PE Regulations to be aligned with the revocation powers in other export control legislation, specifically, the Defence Trade Controls Act 2012.

Item 3 - Subsections 112(2AB) to (2AD)

19. This item repeals subsections 112(2AB) to (2AD) of the Customs Act.

20. The effect of these provisions is that if the Defence Minister informs the holder of a licence or permission to export goods that the exportation of specified goods to a specified place is contrary to the national interest, the permission to export those goods is taken to be withdrawn.

21. As a consequence of new subparagraph 112(2A)(b)(v), these provisions are no longer required.

Item 4 - Application provision

22. This provision provides that the regulations made for the purposes of new subparagraph 112(2A)(b)(v) of the Customs Act apply in relation to a licence or permission that is granted on or after commencement of the provision, and a licence or permission that was granted before that commencement and was in force immediately before that commencement.

23.