CUSTOMS (PROHIBITED EXPORTS) AMENDMENT (PHORATE) REGULATIONS 2020 (F2020L00902) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED EXPORTS) AMENDMENT (PHORATE) REGULATIONS 2020 (F2020L00902)

EXPLANATORY STATEMENT

Issued by the authority of the Assistant Minister for Customs, Community Safety and Multicultural Affairs

Customs Act 1901

Customs (Prohibited Exports) Amendment (Phorate) Regulations 2020

The Customs Act 1901 (the Customs Act) concerns customs related functions and is the legislative authority that sets out the customs requirements for the importation, and exportation, of goods to and from Australia.

Subsection 270(1) of the Customs Act provides, in part, that the Governor-General may make regulations not inconsistent with the Act prescribing all matters, which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act.

Section 112 of the Customs Act provides, in part, that the Governor-General may, by regulation, prohibit the exportation of goods from Australia and that the power may be exercised by prohibiting the exportation of goods absolutely or by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.

The purpose of the Customs (Prohibited Exports) Amendment (Phorate) Regulations 2020 (the Regulations) is to amend the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations) to add phorate to the list of chemicals the exportation of which is prohibited unless permission is granted under regulation 4A.

Under regulation 4A of the Principal Regulations, the exportation from Australia of a chemical mentioned in Schedule 2, or a mixture or preparation of a chemical mentioned in Schedule 2, is prohibited unless, relevantly, a permission to export the chemical has been granted in writing by the Minister for Agriculture, Drought and Emergency Management (the Minister), under the Agricultural and Veterinary Chemicals (Administration) Regulations 1995.

The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Convention) applies to banned or severely restricted chemicals and severely hazardous pesticides and provides a cooperative framework for ensuring parties have information about substances to address risk and take informed decisions on chemical imports. Australia ratified the Convention on 20 May 2004.

In April-May 2019, the ninth Conference of the Parties to the Convention agreed by consensus to list two additional chemicals, phorate and Hexabromocyclododecane, in Annex III of the Convention. Phorate is an organochlorine chemical used as an active ingredient within the manufacture of certain insecticides. Hexabromocyclododecane is an industrial chemical.

Annex III chemicals are subject to the Convention's Prior Informed Consent (PIC) Procedure, which provides for information exchange regarding their import and export. It does not require chemicals to be banned or phased out and does not alter domestic regulatory decisions on the chemicals.

Pursuant to Article 11 of the Convention, Australia is obliged to ensure Australian exports comply with the import decisions of other parties by 16 June 2020 within six months after such decisions are conveyed by the Convention Secretariat. In this case, the decisions were conveyed in PIC Circular L (50) - December 2019.

The minor treaty action for Australia to give effect to the listings of the two new chemicals in Annex III was endorsed by the Joint Standing Committee on Treaties on 2 December 2019.

The Regulations amend Schedule 2 to the Principal Regulations to add phorate to the list of chemicals the exportation of which is prohibited unless permission is granted under regulation 4A. These amendments ensure Australia is meeting its obligations under the Convention.

Amendments to implement the listing of hexabromocyclododecane will be managed by the Department of Agriculture, Water and the Environment and the Department of Health. As Hexabromocyclododecane is an industrial chemical, its inclusion in Annex III will be regulated through amendments to the Industrial Chemicals (General) Rules 2019.

The Regulations were developed in consultation with the Department of Agriculture, Water and the Environment (DAWE). DAWE is the Commonwealth Department with lead responsibility. In the lead up to the listing of phorate under Annex III to the Rotterdam Convention, the then Department of the Environment and Energy and the then Department of Agriculture and Water Resources consulted across Federal, State and Territory governments and a wide range of industry stakeholders in November 2018. Stakeholders highlighted phorate as important but did not object to the listing (noting that access to the chemical is not being restricted).

Details of the Regulations are set out in Attachment A.

A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commence on the day after registration.

Authority: Subsection 270(1) of the Customs Act 1901.

OPC64618 - A

ATTACHMENT A

Details of the Customs (Prohibited Exports) Amendment (Phorate) Regulations 2020

Section 1 - Name of Regulation

This section specifies the name of the Regulations as the Customs (Prohibited Exports) Amendment (Phorate) Regulations 2020 (the Regulations).

Section 2 - Commencement

This section provides that the Regulations commence the day after they are registered on the Federal Register of Legislation.

Section 3 - Authority

This section sets out that the Regulations are made under the Customs Act 1901.

Section 4 - Schedules

This section is a machinery clause that enables the Schedule to amend the Customs (Prohibited Exports) Regulations 1958 (the Principal Regulations). The Regulations contain one schedule.

Schedule 1 - Amendments

Customs (Prohibited Exports) Regulations 1958

Item 1 - Schedule 2 (after table item 4A)

This item adds phorate to the list of chemicals in the table in Schedule 2 to the Principal Regulations. This item also specifies 67A as the item number for that chemical and 298-02-2 as the CAS registry number for that chemical.

The CAS registry numbers are unique numerical identifiers assigned by the Chemical Abstracts Service (a division of the American Chemical Society) to every chemical substance described in open scientific literature (which currently includes all substances described from 1957 to the present).

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Customs (Prohibited Exports) Amendment (Phorate) Regulations 2020

These Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

These Regulations amend Schedule 2 to the Customs (Prohibited Exports) Regulations 1958 to add one new chemical, phorate, to the list of chemicals the exportation of which is prohibited unless permission is granted under regulation 4A.

The purpose of this amendment is to ensure Australia is meeting its obligations under the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention) with regard to phorate.

The objectives of the Rotterdam Convention are:

* to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm; and

* to contribute to the environmentally sound use of those hazardous chemicals, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties.

Chemicals included in the prior informed consent (PIC) procedure under the Rotterdam Convention include those that have been banned or severely restricted by national regulatory actions in two or more Parties in two different regions. For each chemical included in Annex III of the Rotterdam Convention and subject to the PIC procedure, Parties are requested to make an informed decision whether they consent or not to the future import of the chemical.

In 2019, phorate was included in the PIC procedure as a pesticide. Pursuant to Article 11 of the Rotterdam Convention, Australia is obliged to ensure Australian exports comply with the import decisions of other parties by 16 June 2020.

Under regulation 4A of the Customs (Prohibited Exports) Regulations 1958 the exportation from Australia of a chemical mentioned in Schedule 2 of those Regulations, which includes phorate as a result of this amendment, or a mixture or preparation of a chemical mentioned in Schedule 2, is prohibited unless, relevantly, a permission to export the chemical has been granted in writing by the Minister for Agriculture, Drought and Emergency Management (the Minister), under the Agricultural and Veterinary Chemicals (Administration) Regulations 1995. Permission to export is only granted if the exporter meets the requirements of the importing country. The exporter is obliged to present their permission to the importing country. This ensures Australia meets its obligations under the Rotterdam Convention through the PIC Procedure.

Human rights implications

While this amendment does not affect the human rights of persons in Australia, it contributes to global efforts to regulate the use of, and trade in, hazardous chemicals which may pose a risk to human health. As such, this amendment may more broadly promote the right to life in Article 6(1) of the International Covenant on Civil and Political Rights and the right to health in Article 12 of the International Covenant on Social, Cultural and Economic Rights.

Conclusion

The amendment made by these Regulations is compatible with human rights.

Hon Jason Wood

Assistant Minister for Customs, Community Safety and Multicultural Affairs