Statutory Rules
1978 No. 259
REGULATIONS UNDER THE BANKING ACT 1959*
WHEREAS the Banking (Foreign Exchange) Regulations made under the Banking Act 1945 were, by virtue of section 29 of the Banking (Transitional Provisions) Act 1959 and an instrument under that section published in the Gazette on 14 January 1960, continued in force notwithstanding the repeal made by the Banking Act 1959 and were amended as provided by that section:
AND WHEREAS those Regulations as so continued in force and amended were again continued in force by virtue of section 4 of the Banking Act 1974 notwithstanding the repeal of section 39 of the Banking Act 1959 by the Banking Act 1974:
AND WHEREAS, by section 4 of the Banking Act 1974, those Regulations as continued in force by that section may be amended or repealed by regulations under section 39 of the Banking Act 1959:
AND WHEREAS, by section 39 of the Banking Act 1959, it is provided that, where the Governor-General considers it expedient to do so for purposes related to—
(a) foreign exchange or the foreign exchange resources of Australia;
(b) the protection of the currency or the protection of the public credit or revenue of Australia; or
(c) foreign investment in Australia, Australian investment outside Australia, foreign ownership or control of property in Australia or of Australian properly outside Australia or Australian ownership or control of property outside Australia or of foreign property in Australia,
he may make regulations, not inconsistent with that Act, in accordance with that section:
AND WHEREAS I, the Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council,
* Notified in the Commonwealth of Australia Gazette on 20 December 1978.
14969/78 Cat. No. Recommended retail price 30c 10/31.10.1978
consider it expedient, for purposes related to the matters specified in paragraphs 39 (1) (a), (b) and (c) of the Banking Act 1959, to make the following Regulations:
NOW THEREFORE I, the Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Banking Act 1959.
Dated this fourth day of December 1978.
ZELMAN COWEN
Governor-General
By His Excellency’s Command,
Treasurer
AMENDMENTS OF THE BANKING (FOREIGN EXCHANGE) REGULATIONS*
Application
1. (1) Subject to sub-regulation (2), Part III of the Banking (Foreign Exchange) Regulations as amended by these Regulations applies to and in relation to the export of goods on or after the date of commencement of these Regulations.
(2) Notwithstanding the amendment effected by regulation 3—
(a) Part iii of the Banking (Foreign Exchange) Regulations as in force immediately before the date of commencement of these Regulations continues to apply to and in relation to the export of goods before that date where payment of an amount equal to the value of the goods at the time of export in the place to which they were exported has not been received before that date in accordance with an approval given under regulation 23 of those Regulations as so in force; and
(b) an approval given before that date under regulation 23 of those Regulations as so in force continues in force as if given under regulation 16 of the Banking (Foreign) Exchange) Regulations as amended by these Regulations.
Interpretation
2. Regulation 4 of the Banking (Foreign Exchange) Regulations is amended by inserting in sub-regulation (1), after the definition of “agent of the Bank”, the following definition:
“ ‘ goods’ includes gold;”.
* Statutory Rules 1946 No. 191 as amended by Statutory Rules 1947 Nos. 65 and 102: 1948 Nos. 39 and 165; 1950 No. 46; 1952 Nos. 15 and 80; 1953 No. 21; 1954 No. 96: 1960 No. 8; 1965 No. 168; 1967 No. 70; 1970 No. 130; 1973 Nos. 72 and 197; 1974 Nos. 56, 97 and 265; and 1975 Nos. 222 and 223.
3. Part III of the Banking (Foreign Exchange) Regulations is repealed and the following Part substituted:
“ PART III—CONTROL OF PROCEEDS OF EXPORTS
Part not to apply in external Territories
“ 14. This Part does not apply within an external Territory.
Interpretation
“ 15. (1) In this Part, unless the contrary intention appears—
‘ export value ’ means—
(a) in relation to exported goods other than goods referred to in paragraph (b)—the fair market value of the goods, less any amount payable (not being an amount payable to the owner) in respect of freight, insurance or other costs of exporting the goods or of landing them overseas, being the fair market value of the same or similar goods in the principal markets in the country to which they are exported as at the date of the contract of sale having regard to all the circumstances of the sale or, if there is no contract of sale, as at the time of export; and
(b) in relation to goods exported for the purposes of sale by an Australian resident—the fair market value of the goods, less the costs of landing and selling the goods overseas that are to be met from the proceeds of sale, being the fair market value of the same or similar goods in the principal markets in the country to which they are exported as at the time of sale;
‘ owner ’, in relation to goods, means the person who is entitled to the proceeds of sale of those goods, and includes a person who has power to sell, or procure the sale of, foreign currency received from the sale of those goods;
‘ shipping documents ’ means documents relating to the delivery, carriage or receipt of goods, including a bill of lading, shipping receipt, consignment note or way-bill.
“ (2) Subject to sub-regulation (1), expressions used in this Part, being expressions that are used in the Customs Act 1901, shall, unless the contrary intention appears, have the same respective meanings as in that Act.
“ (3) For the purposes of this Part—
(a) where a body corporate that is not a resident has a place of business in Australia, the body corporate shall be deemed to be a resident in relation to the affairs of the body corporate conducted by it, including any business carried on, transactions entered into and acts and things done by the body corporate at or through that place of business; and
(b) where a body corporate that is a resident has a place of business outside Australia, the body corporate shall be deemed not to be a resident in relation to the affairs of the body corporate conducted by it at or through that place of business, including any business carried on, transactions entered into and acts and things done by the body corporate at or through that place of business.
Exportation of goods prohibited unless approved payment received
“ 16. (1) A person shall not export goods unless—
(a) payment of an amount equal to the export value of the goods has been or is to be received in Australia—
(i) in such currency;
(ii) in such manner; and
(iii) within such period, before or after the date of exportation of the goods,
as the Bank for the time being has approved; or
(b) the authority of the Bank for the export has been obtained.
“ (2) Approvals under paragraph (1) (a) shall be notified in the Gazette.
“ (3) The owner exporting goods in accordance with the provisions of paragraph (1) (a) shall make such arrangements as are necessary to ensure that those provisions are complied with.
Foreign currency to be sold to bank in Australia
“ 17. Where foreign currency representing the proceeds of sale of goods that have been or are to be exported is received, the owner of the goods shall, unless otherwise authorized by the Bank, as soon as is reasonably practicable, sell that foreign currency, or procure the sale of that foreign currency, to a bank in Australia for Australian currency at a rate of exchange fixed or authorized by the Bank and in force for the time being.
Fulfilment of arrangements
“ 18. A person who, for any of the purposes of this Part, has made any arrangements in relation to the receipt of the proceeds of sale of goods that have been or are to be exported—
(a) shall take reasonable steps to ensure that the arrangements are fulfilled; and
(b) shall not, without the authority of the Bank, cancel or alter the arrangements.
Exporters to give information
“ 19. (1) A person shall not export goods, other than goods to which section 114a of the Customs Act 1901 applies, unless he has given to the Bank notice in writing stating—
(a) the name and address of the exporter of the goods;
(b) where the owner of the goods at the time of export will be a person other than the exporter, the name and address of that person;
(c) the name and address of the person (if any) to whom the goods are to be consigned;
(d) the bank in Australia by which, and the branch of that bank at which, any currency representing the proceeds of sale of the goods has been or is to be received;
(e) the currency and manner in which the proceeds of sale of the goods have been or are to be received and, where payment has not been received, the period within which payment is to be received;
(f) the amount shown in a Customs entry in relation to the goods as the invoice value of the goods;
(g) whether the invoice value slated for the purpose of paragraph (f) is the f.o.b. value or the c.i.f. value and, if the value is neither an f.o.b. value nor a c.i.f. value, the basis on which the value is calculated;
(h) the mode of transport to be used in the exportation of the goods and, if the goods are to be transported by sea, the name of the ship to be used;
(i) the port, airport, or post office at which the goods are to be loaded or posted, as the case may be;
(j) the date on which the goods are expected to leave Australia;
(k) the port or airport at which the goods are to be discharged or, in the case of goods to be exported through the post, the country of destination of the goods;
(l) the number and kind of packages of the goods; and
(m) the quantity and description of the goods.
“ (2) Notice for the purpose of sub-regulation (1) shall be given—
(a) where the goods consist of a ship or aircraft that is to be exported otherwise than in another ship or aircraft—before the ship or aircraft leaves the place of exportation;
(b) in the case of goods that are to be exported through the post—before the goods are posted; and
(c) in any other case—before the goods are taken on board the ship or aircraft in which they are to be exported.
“ (3) A person who exports goods to which section 114a of the Customs Act 1901 applies shall, within 7 days after the expiration of a period approved by the Collector in respect of that person for the purposes of that section, give to the Bank notice in writing setting out such information as is, for the time being, prescribed by regulations in force for the purposes of that section in respect of goods to which that section applies that were exported by the person during that period.
“ (4) It is a sufficient compliance with a requirement of this regulation that a notice be given to the Bank if the notice is given to the Collector.
Bank may require further particulars
“ 20. (1) Where a person has given notice for the purpose of sub-regulation (1) or (3) of regulation 19 in relation to goods, a person who is a prescribed person in relation to the goods shall, on request in writing by the Bank—
(a) give to the Bank such further particulars in writing as are within his knowledge and are specified in the request in relation to—
(i) the payment of the proceeds of sale of the goods or any arrangements made in relation to the receipt of the proceeds of sale of the goods;
(ii) the manner in which, under any such arrangements, the amount that is or is to be paid for the goods is or is to be ascertained; and
(iii) the bank and branch of the bank in Australia at which any currency representing the proceeds of sale of the goods has been or is to be received or sold; and
(b) produce to the Bank such books and documents in his custody or control relating to a matter referred to in paragraph (a) as are specified in the request.
“ (2) Books or documents produced in accordance with a request under sub-regulation (1) may be retained by the Bank for so long as is reasonably necessary for the making of copies of, or extracts from, the books or documents.
“ (3) The Bank may make, or cause to be made, and may retain, copies of, or extracts from, any books or documents produced in accordance with a request under sub-regulation (1).
“ (4) A person is not excused from giving particulars or producing a book or document on request by the Bank under this regulation on the ground that the giving of the particulars or the production of the book or document might tend to incriminate him or make him liable to a penalty, but particulars given, or a book or document produced, by him are not admissible in evidence against him except in proceedings for an offence arising out of the falsity of particulars given by him.
“ (5) In this regulation, ‘ prescribed person ’, in relation to goods, means—
(a) the person shown as the exporter or owner of the goods in a notice given under the sub-regulation (1) or (3) of regulation 19;
(b) a person who has in his custody or under his control the shipping documents relating to the goods; or
(c) any person who has received or is to receive an amount equal to or forming part of the proceeds of sale of the goods.
Provision where goods under-valued
“ 21. (1) Where—
(a) notice has been given to the Bank under sub-regulation (1) or (3) of regulation 19 in respect of goods that have been or are to be exported; and
(b) the amount shown in the notice as the invoice value of the goods is, in the opinion of the Bank, less than the export value of the goods or payment of an amount equal to the export value of the goods has not been received in Australia in accordance with regulation 16,
the Bank may, by notice in writing given to the exporter or owner of the goods, require the exporter or owner of the goods to deliver the shipping documents relating to the goods to the Bank or an agent of the Bank.
“ (2) A person to whom a notice is given in pursuance of sub-regulation (1) shall not, without reasonable excuse, fail to comply with the requirement of the notice.
“ (3) Where shipping documents are delivered to the Bank or an agent of the Bank in accordance with a requirement under sub-regulation (1), the Bank or agent of the Bank may retain the documents until the Bank is satisfied that an amount equal to the export value of the goods has been, or will be, received by the owner.
Provisions of other laws not affected
“ 22. (1) This Part applies with respect to the exportation of goods notwithstanding that a licence or other authority for the exportation of the goods is in force under any other law.
“ (2) The grant of an authority under this Part or the exemption of goods from the application of this Part does not absolve a person from the obligation to comply with any other law relating to the exportation of the goods.
Indemnity
“ 23. (1) No claim, action or proceeding shall be made or brought by a person against the Bank or an agent of the Bank, or against an officer of the Bank or of an agent of the Bank, in respect of any loss or damage arising out of any dealing with any document delivered to the Bank or an agent of the Bank under this Part.
“ (2) Sub-regulation (1) does not apply in relation to any dealing that was done negligently or otherwise than in good faith.
Security
“ 24. (1) Before or after the export of any goods from Australia, the exporter or owner shall, if required so to do by the Bank, give security for compliance with the requirements of this Part.
“ (2) Security required to be given under this regulation shall be in such form and for such amount as the Bank requires, shall be executed by the person giving the security and, if required by the Bank, shall also be executed by one or more sureties approved by the Bank, and shall be conditioned for the compliance by the person giving the security and all other persons bound thereby with the requirements of this Part.
“ (3) Any security given under this regulation shall, unless the Bank otherwise determines, be for a sum equal to twice the amount that, in the opinion of the Bank, is the amount of the export value of the goods.”.
Exemptions
4. Regulation 38 of the Banking (Foreign Exchange) Regulations is amended—
(a) by omitting from sub-regulation (1) “ (other than the provisions of Part III.) ”;
(b) by omitting from paragraph (b) of sub-regulation (1) “ or ” (last occurring.);
(c) by adding at the end of sub-regulation (1) the following paragraph:
“; or (d) any goods or goods included in any class of goods.”; and
(d) by inserting after sub-regulation (1) the following sub-regulation:
“ (1a) An exemption under sub-regulation (1) may be granted either unconditionally or subject to such conditions as the Bank thinks fit.”.
Offences
5. Regulation 42 of the Banking (Foreign Exchange) Regulations is amended by omitting from sub-regulation (6) “ gold ” and substituting “ goods ”.
Repeal
6. The heading “ THE SCHEDULES ” and the First Schedule to the Banking (Foreign Exchange) Regulations are repealed.
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