Chemical weapons, chemicals and their precursors
- Document symbol
- G/LIC/N/3/AUS/16
- Original language
- English
- Published on
- 27/11/2023
Outline of Systems
Q1. Give a brief description of each licensing system as a whole and, with respect to each, reply to the following questions as relevant, placing all of the material with respect to a given system in sequence together, and using cross references as appropriate when elements which have already been described are also present in another system.
The importation into Australia of prescribed goods containing a chemical compound, or a chemical compound belonging to a group of compounds, mentioned in Part 2 or 3 of Schedule 11 of the Customs (Prohibited Imports) Regulations 1956 (PI Regulations), from a country that is not a State Party to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention), is prohibited under Regulation 5J of the PI Regulations.
The importation of prescribed goods containing a chemical compound, or a chemical compound belonging to a group of compounds, mentioned in Part 2 or 3 of Schedule 11 of the PI Regulations from a country that is a State Party to the Chemical Weapons Convention or mentioned in Part 4 of Schedule 11 of the PI Regulations, is prohibited unless:
- the Minister for Foreign Affairs or an authorised person has given permission in writing to import the goods. The Minister for Foreign Affairs has authorised the positions of Director General and Assistant Secretary of Australian Safeguards and Non-Proliferation Office (ASNO) to grant permits; and
- the permission is produced to the Australian Border Force (ABF).
These prohibitions do not apply to chemicals listed in Part 3 (except Items 1, 2 or 3) or Part 4 of Schedule 11 where they are in concentrations of less than 10% by weight of the goods, and there are no other Part 2, 3 or 4 chemical compounds in the goods. Such goods may be imported from both State Parties and non-State Parties without requiring a permit.
Purposes and Coverage of Licensing
Q2. Identify each licensing system maintained and state what products, appropriately grouped, are covered.
Chemical compounds as mentioned in Part 2 or 3 of Schedule 11 of the PI Regulations from a country that is a State Party to the Chemical Weapons Convention and all Part 4 chemicals are regulated by a permit system. A permit must be granted by the Minister for Foreign Affairs or an authorised person and produced to the ABF.
Q3. The system applies to goods originating in and coming from which countries?
The regulations apply to the importation of goods from all countries.
Q4. Is the licensing intended to restrict the quantity or value of imports, and if not, what are its purposes? Have alternative methods of accomplishing the purposes been considered and if so which? Why have they not been adopted?
The PI Regulations are not intended to restrict the quantity or value of imports. Australia is a Party to the Chemical Weapons Convention (CWC), and amongst other things, this treaty requires State Parties to declare trade in CWC-Scheduled chemicals, and to impose trade restrictions on transfers of the more toxic chemicals listed in Part 2 and 3 to non-State Parties. Since implementing the treaty in 1997, Australia has regulated the Part 2 chemicals through use of permits. In 2000, the permit system was extended to apply to Part 3 and 4 chemicals in response to stricter CWC provisions relating to Part 3 transfers.
Q5. Cite the law, regulation and/or administrative order under which the licensing is maintained. Is the licensing statutorily required? Does the legislation leave designation of products to be subjected to licensing to administrative discretion? Is it possible for the government (or the executive branch) to abolish the system without legislative approval?
The control on importation of the specified goods is a statutory requirement under Regulation 5J of the PI Regulations made under the Customs Act 1901 (Customs Act) but could also be relevant to the Chemical Weapons (Prohibition) Act 1994. This restriction does not apply to goods that contain a chemical compound listed in Part 3 (except Items 1, 2 or 3) or Part 4 of Schedule 11 of the PI Regulations that is less than 10% by weight of the total and contain no other listed chemicals. The system cannot be abolished without legislative approval.
Procedures
Q6. For products under restriction as to the quantity or value of imports (whether applicable globally or to a limited number of countries or whether established bilaterally or unilaterally):
Q6.I. Is information published, and where, concerning allocation of quotas and formalities of filing applications for licences? If not, how is it brought to the attention of possible importers? Of governments and export promotion bodies of exporting countries and their trade representatives? Is the overall amount published? The amount allocated to goods from each country? The maximum amount allocated to each importer? How to request any exceptions or derogations from the licensing requirement?
Q6.II. How is the size of the quotas determined: on a yearly, six-monthly or quarterly basis? Are there cases where the size of quota is determined on a yearly basis but licences are issued for imports on a six-monthly or quarterly basis? In the latter case, is it necessary for importers to apply for fresh licence on a six-monthly or quarterly basis?
Q6.III. Are licences allotted for certain goods partly or only to domestic producers of like goods? What steps are taken to ensure that licences allocated are actually used for imports? Are unused allocations added to quotas for a succeeding period? Are the names of importers to whom licences have been allocated made known to governments and export promotion bodies of exporting countries upon request? If not, for what reason? (Indicate products to which replies relate.)
Q6.IV. From the time of announcing the opening of quotas, as indicated in I above, what is the period of time allowed for the submission of applications for licences?
Q6.V. What are the minimum and maximum lengths of time for processing applications?
Q6.VI. How much time remains, at a minimum, between the granting of licences and the date of opening of the period of importation?
Q6.VII. Is consideration of licence applications effected by a single administrative organ? Or must the application be passed on to other organs for visa, note or approval? If so, which? Does the importer have to approach more than one administrative organ?
Q6.VIII. If the demand for licences cannot be fully satisfied, on what basis is the allocation to applicants made? First come, first served? Past performance? Is there a maximum amount to be allocated per applicant and, if so, on what basis is it determined? What provision is made for new importers? Are applications examined simultaneously or on receipt?
Q6.IX. In the case of bilateral quotas or export restraint arrangements where export permits are issued by exporting countries, are import licences also required? If so, are licences issued automatically?
Q6.X. In cases where imports are allowed on the basis of export permits only, how is the importing country informed of the effect given by the exporting countries to the understanding between the two countries?
Q6.XI. Are there products for which licences are issued on condition that goods should be exported and not sold in the domestic market?
Q7. Where there is no quantitative limit on importation of a product or on imports from a particular country:
Q7.a. How far in advance of importation must application for a licence be made? Can licences be obtained within a shorter time-limit or for goods arriving at the port without a licence (for example, owing to inadvertency)?
Application should be made in advance of arrival of the goods. There are two types of permits: permits for chemicals in Part 2 of Schedule 11 of the PI Regulations (Schedule 1 of the CWC) and permits for chemicals in Part 3 and Part 4 of Schedule 11 of the PI Regulations (Schedules 2 and 3 of the CWC) . Chemicals from Part 2 require 37 days' notice for importation which cannot be varied due to concomitant international reporting requirements. However, the 37-day advance notification requirement is waived for imports of saxitoxin in quantities of 5mg or less for medical/diagnostic purposes provided that the goods contain no other chemical listed in Part 2 of Schedule 11 of the PI Regulations. Permits for chemicals listed in Part 3 and Part 4 of Schedule 11 require 7 days' notice, which can be reduced if necessary.
Q7.b. Can a licence be granted immediately on request?
Permits cannot be issued immediately for chemicals under Part 2 except in the saxitoxin case described in paragraph 7(a). Part 3 and 4 chemical permits can be issued immediately where practical. There is also allowance for post-import permits to be issued immediately upon request under subdivision GC of the Customs Act where importation occurred inadvertently without a permit.
Q7.c. Are there any limitations as to the period of the year during which application for licence and/or importation may be made? If so, explain.
Permits may be issued at any period of the year.
Q7.d. Is consideration of licence applications effected by a single administrative organ? Or must the application be passed on to other organs for visa, note or approval? If so, which? Does the importer have to approach more than one administrative organ?
Permit applications are considered by a single administrative organ, namely ASNO as the permit issuing authority. However, ASNO consults with the ABF prior to issuing an import permit to check whether there are any adverse findings for that company in relation to previous imports. Permits are issued by the Minister for Foreign Affairs or authorised persons (i.e., the Director General and an Assistant Secretary of ASNO). Please note that ASNO then provides the ABF with the details of import permit holders for Part 3 and 4 chemicals, including the company name, all chemicals listed on their import permit, and the tariff classification code used by the importer.
Q8. Under what circumstances may an application for a licence be refused other than failure to meet the ordinary criteria? Are the reasons for any refusal given to the applicant? Have applicants a right of appeal in the event of refusal to issue a licence and, if so, to what bodies and under what procedures?
Application for permission to import can be refused on the discretion of the Minister for Foreign Affairs. There is no right of appeal on the merits of the decision. However, an appeal may be made on the decision-making process itself under the Administrative Decisions (Judicial Review) Act 1977.
Eligibility of Importers to Apply for Licence
Q9. Are all persons, firms and institutions eligible to apply for licences: (If not, is there a system of registration of persons or firms permitted to engage in importation? What persons or firms are eligible? Is there a registration fee? Is there a published list of authorized importers?) a) under restrictive licensing systems? b) under non-restrictive systems?
All persons, firms and institutions are eligible to apply for permission to import, however the chemicals from Parts 2 and 3 can only be imported from a country which is a State Party to the CWC (as at https://www.opcw.org/about-opcw/member-states). In addition, all of the prescribed chemical imports can only be used for purposes not prohibited by the CWC, as provided for under the Chemical Weapons (Prohibition) Act 1994.
Documentational and Other Requirements for Application for Licence
Q10. What information is required in applications? Submit a sample form. What documents is the importer required to supply with the application?
For permission to import, applications must be made in writing to the relevant Minister or authorised person.
Permits for chemicals in Part 2 of Schedule 11 of the PI Regulations (i.e. Schedule 1 of the CWC).
The permit is valid for a single shipment of the specified chemical. The following details must be included in the application:
- importer's name, address, Australian Business Number (ABN) and other contact details;
- supplier's name and address;
- country of export (this can only be another State Party) – the goods must be shipped directly; transhipment through another country is not allowed;
- name of chemical, CAS number, quantity (gross and net) and percentage by weight, proposed use, tariff classification code and other descriptors of the chemical;
- date of export from supplying country and expected import date;
- end user's name, address and other contact details; and
- a description of security measures that will be taken to prevent unauthorised access to the chemical.
Permits for chemicals in Part 3 and Part 4 of Schedule 11 of the PI Regulations (i.e., Schedules 2 & 3 of the CWC).
The permit is valid for multiple shipments of multiple chemicals over a specified time, usually one year. The following details must be included in the application:
- importer's name, address and other contact details;
- importer's ABN;
- names of chemicals, CAS numbers, tariff classification codes and percentage by weight of the chemicals the importer is proposing to import;
- exporting country;
- a description of security measures that will be taken to prevent unauthorised access to the chemical.
When required, ASNO can issue bespoke import permits covering Schedule 1, 2 and 3 chemicals to allow for the import of unknown samples from, or on behalf of, the Organisation for the Prohibition of Chemical Weapons.
ASNO's secure online portal (available for existing import permit holders since 1 January 2015) allows for electronic reporting and renewal of import permits.
Companies that are importing chemicals for the first time must submit a completed import permit application form (available at http://www.dfat.gov.au\asno).
Further information, including permit application and reporting forms, is also available at: http://www.dfat.gov.au\asno.
Q11. What documents are required upon actual importation?
Written permission of the Minister for Foreign Affairs or ASNO (i.e. the import permit) is required by the ABF at the time of import. Where Part 2 chemicals are imported, the importer must also notify ASNO of the actual arrival date within 30 days of shipment arrival in Australia.
Q12. Is there any licensing fee or administrative charge? If so, what is the amount of the fee or charge?
No
Q13. Is there any deposit or advance payment requirement associated with the issue of licences? If so, state the amount or rate, whether it is refundable, the period of retention and the purpose of the requirement.
Conditions of Licensing
Q14. What is the period of validity of a licence? Can the validity of a licence be extended? How?
Permits for chemicals in Part 2 of Schedule 11 of the PI Regulations apply to one consignment only and are valid for up to twelve months. A new application is required for each import.
Permits for chemicals in Part 3 and 4 of Schedule 11 of the PI Regulations may be for multiple importations and are valid for up to twelve months. Permits may be reissued on an annual basis on request, provided all permit conditions are met, including reporting annually to ASNO on actual quantities of chemicals imported. Permits may also be varied at any time.
Bespoke import permits for samples sent from, or on behalf of, the Organisation for the Prohibition of Chemical Weapons apply to one consignment only and are valid for up to twelve months. A new application is required for each import.
Q15. Is there any penalty for the non-utilization of a licence or a portion of a licence?
No.
Q16. Are licences transferable between importers? If so, are any limitations or conditions attached to such transfer?
No.
Q17. Are any other conditions attached to the issue of a licence? a) for products subject to quantitative restriction? b) for products not subject to quantitative restriction?
A permission granted under Regulation 5J of the PI Regulations may specify conditions or requirements to be complied with by the holder of the permission. Permit requirements for chemicals in Parts 3 and 4 of Schedule 11 include the annual reporting of chemical shipments covered by the permit for the previous calendar year. If the holder of any permission fails to comply with a condition or requirement the Minister may revoke the permission.
Other Procedural Requirements
Q18. Are there any other administrative procedures, apart from import licensing and similar administrative procedures, required prior to importation?
For Part 2 and 3 chemicals, the recipient facility will require an operational permit under the Chemical Weapons (Prohibition) Act 1994 if certain activity thresholds for those chemicals are exceeded. However, the requirements for operational permits as specified under this Act are not linked to the timing of imports.