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This Act is the Export Control Act 2020.
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.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 6 March 2020 |
2. Sections 3 to 432 | A single time (in the Australian Capital Territory) to be fixed by Proclamation. However, if the provisions do not commence before 3 am (by legal time in the Australian Capital Territory) on 28 March 2021, they commence at that time. | 3 am (A.C.T.) 28 March 2021 |
This table relates only to the provisions of this Act as originally enacted.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.
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.
The objects of this Act are the following:
to ensure that goods that are exported:
meet relevant importing country requirements to enable and maintain overseas market access for goods exported from Australia; and
comply with government or industry standards or requirements relating to the goods; and
are traceable and, if necessary, can be recalled;
to ensure the integrity of goods that are exported;
to ensure that trade descriptions for goods that are exported are accurate;
to give effect to Australia’s rights and obligations relating to goods that are exported under any international agreements to which Australia is a party.
This Act creates a framework for regulating the export of goods, including agricultural products and food, from Australian territory.
This Act includes provisions about the application of this Act and the relationship of this Act with State and Territory laws.
Certain goods are prohibited from being exported from Australian territory, either absolutely or by sea.
The Minister may, by legislative instrument (a temporary prohibition determination), determine:
that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, is prohibited absolutely for a specified period of up to 6 months; or
that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, to a specified place is prohibited for a specified period of up to 6 months.
The Minister may make a temporary prohibition determination only if the Minister is satisfied that the determination is necessary:
to protect human, animal or plant life or health; or
to secure compliance with an Australian law (other than this Act).
The rules may prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless prescribed conditions are complied with. Conditions may be prescribed for the purpose of ensuring that importing country requirements are met or government or industry standards or requirements are complied with, or to give effect to Australia’s international obligations. The rules may require, for example:
export operations in relation to prescribed goods to be carried out at an accredited property or a registered establishment, or in accordance with an approved arrangement or an export licence; or
a person to hold an approved arrangement or an export licence covering prescribed goods; or
a trade description or an official mark to be applied to certain goods; or
a notice of intention to export a consignment of prescribed goods to be given; or
a government certificate or an export permit to be in force for certain goods.
The Secretary may grant an exemption from one or more provisions of this Act in relation to prescribed goods that are to be exported in certain circumstances.
A government certificate may be issued in relation to prescribed goods and non‑prescribed goods that are to be, or that have been, exported.
The rules may make provision for and in relation to the establishment and administration of a system, or systems, of tariff rate quotas for the export of certain goods.
Authorised officers (including third party authorised officers) and other persons may exercise certain powers, including the following:
conducting audits of export operations and audits in relation to the performance of functions and the exercise of powers under this Act;
carrying out assessments of goods;
giving directions;
carrying out approved export programs for the purpose of ensuring the health and welfare of certain live animals.
A range of compliance and enforcement powers are provided, including by applying the Regulatory Powers (Standard Provisions) Act 2014.
Certain decisions under this Act may be reviewed internally and by the Administrative Review Tribunal.
The use and disclosure of information is regulated.
Fees may be charged, on a cost‑recovery basis, in relation to activities carried out by, or on behalf of, the Commonwealth in the performance of functions or the exercise of powers under this Act.
The Secretary may make rules for the purposes of this Act. The rules are a disallowable legislative instrument.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be:
prosecuted for an offence; or
subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or
given an infringement notice under Part 5 of the Regulatory Powers Act.
General
Subject to subsections (2) to (4), this Act applies in Australia, and in the exclusive economic zone adjacent to Australia, and on or in the continental shelf adjacent to Australia, in relation to:
all persons or bodies (including foreign persons or bodies); and
all aircraft (including foreign aircraft); and
all vessels (including foreign vessels).
A reference to Australia includes a reference to the coastal sea of Australia. See section 15B of the Acts Interpretation Act 1901.
Limited application in the exclusive economic zone
This Act applies in an area that is, or is part of, the exclusive economic zone adjacent to Australia in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of goods that have been taken in that area.
However, subsection (2) does not prevent the exercise of powers under this Act in the contiguous zone of Australia (including the external Territories) in relation to a foreign person or body, a foreign aircraft or a foreign vessel:
to investigate a contravention of this Act that occurred in Australia; or
to prevent a contravention of this Act occurring in Australia.
Limited application on or in the continental shelf
This Act applies in an area that:
is on or in the continental shelf adjacent to Australia; and
is not within the exclusive economic zone adjacent to Australia;
in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of natural resources that have been harvested on the continental shelf in that area.
For natural resources, see section 12.
This section has effect subject to section 10.
This Act applies in an area covered by subsection (2) in relation to the following:
Australian nationals;
Australian residents;
the Commonwealth;
Commonwealth bodies;
Australian aircraft;
Australian vessels;
members of crews of Australian aircraft and Australian vessels (including persons in charge of Australian aircraft or Australian vessels).
This subsection covers an area that:
is outside the outer limits of the exclusive economic zone adjacent to Australia and is not on or in the continental shelf adjacent to Australia; and
is not an external Territory, or the exclusive economic zone adjacent to an external Territory, or on or in the continental shelf adjacent to an external Territory.
Subject to subsection (2), this Act does not extend to the external Territories.
The rules may extend this Act, or any provisions of this Act:
to an external Territory that is prescribed by the rules; or
to any of the following areas that are prescribed by the rules:
the whole or a part of the exclusive economic zone adjacent to an external Territory;
the whole or a part of the area that is on or in the continental shelf adjacent to an external Territory and is not within the exclusive economic zone adjacent to that Territory; or
to an area outside the Australian fishing zone in relation to which the Fisheries Management Act 1991 applies under regulations made for the purposes of section 8 of that Act.
The rules may extend this Act, or any provisions of this Act, to an area adjacent to an external Territory under subparagraph (2)(b)(i) or (ii) whether or not this Act extends to that external Territory.
The reference to this Act includes a reference to instruments made under this Act (see the definition of this Act in section 12).
A provision of this Act that extends to an external Territory is taken to have effect in, and in relation to, the coastal sea of the Territory as if that coastal sea were part of the Territory (see subsection 15B(3) of the Acts Interpretation Act 1901).
General
If a provision of this Act extends to an external Territory or an area adjacent to an external Territory under subsection 8(2), then subject to subsections (2) to (5), the provision applies in the external Territory or the adjacent area in relation to:
all persons or bodies (including foreign persons or bodies); and
all aircraft (including foreign aircraft); and
all vessels (including foreign vessels).
Limited application in the contiguous zone
If a provision of this Act extends to an external Territory under paragraph 8(2)(a), nothing in this Act prevents the exercise of powers under this Act in the contiguous zone adjacent to the external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, a foreign aircraft or a foreign vessel:
to investigate a contravention of this Act that occurred in that Territory; or
to prevent a contravention of this Act occurring in that Territory.
Limited application in the exclusive economic zone
If a provision of this Act extends to an area adjacent to an external Territory under subparagraph 8(2)(b)(i), the provision applies in that area in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of goods that have been taken in that area.
However, subsection (3) does not prevent the exercise of powers under this Act in the contiguous zone adjacent to the external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, a foreign aircraft or a foreign vessel for a purpose referred to in paragraph (2)(a) or (b).
Limited application on or in the continental shelf
If a provision of this Act extends to an area under subparagraph 8(2)(b)(ii), the provision applies in relation to a foreign person or body, a foreign aircraft or a foreign vessel only in relation to the export of natural resources that have been harvested on the continental shelf in that area.
For natural resources, see section 12.
This section has effect subject to section 10.
This Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign aircraft or foreign vessels, in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following:
the territorial sea of Australia (including the external Territories);
the exclusive economic zone of Australia (including the external Territories);
waters above the continental shelf of Australia (including the external Territories).
This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:
the law makes an act or omission:
an offence; or
subject to a civil penalty; and
that (or any similar) act or omission is also:
an offence against a provision of this Act; or
subject to a civil penalty under this Act.
Subsection (2) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:
provides for a penalty that differs from the penalty provided in this Act;
provides for fault elements that differ from the fault elements applicable to the offence or civil penalty provision created by this Act;
provides for defences or exceptions that differ from the defences or exceptions applicable to the offence or civil penalty provision created by this Act.
Associate of a person (the first person) includes each of the following:
a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of:
the first person; or
any corporation of which the first person is an officer or employee or in which the first person holds shares;
a spouse, de facto partner, child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of the first person;
a child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of a spouse or de facto partner of the first person;
any other person not mentioned in paragraph (a), (b) or (c) who is or was:
directly or indirectly concerned in; or
in a position to control or influence the conduct of;
a business or undertaking of:
the first person; or
a corporation of which the first person is an officer or employee, or in which the first person holds shares;
a corporation:
of which the first person, or any of the other persons mentioned in paragraphs (a), (b), (c) and (d), is an officer or employee; or
in which the first person, or any of those other persons, holds shares;
if the first person is a body corporate—another body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first person.
Without limiting who is a child of another person for the purposes of this Act, a person is the child of another person if the person is:
a stepchild or adopted child of the other person; or
a child of the other person within the meaning of the Family Law Act 1975.
Without limiting who is a stepchild of another person for the purposes of this Act, a child of a de facto partner of the other person is the stepchild of the other person if the child would be the other person’s stepchild except that the other person is not legally married to the partner.
Without limiting who is a parent of another person for the purposes of this Act, a person is the parent of another person if the other person is a child of the person because of the definition of child in subsection (2).
For the purposes of this Act, if one person is the child of another person because of the definition of child in subsection (2), relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.