Customs and Excise Legislation Amendment Act 1993 (Cth)

Customs and Excise Legislation

Amendment Act 1993

No. 113 of 1993

TABLE OF PROVISIONS

PART 1—PRELIMINARY

Section

1. Short title

2. Commencement

PART 2—AMENDMENTS OF THE CUSTOMS ACT 1901

3. Principal Act

4. Insertion of new section:

4AA. Act not to apply so as to exceed Commonwealth power

5. Rebate of duty in respect of diesel fuel used for certain purposes

6. Diesel fuel rebate scheme set-offs

PART 3—AMENDMENTS OF THE EXCISE ACT 1901

7. Principal Act

TABLE OF PROVISIONS—continued

Section

8. Definitions

9. Insertion of new section:

4AAA. Act not to apply so as to exceed Commonwealth power

10. Liability to pay duty

11. Definitions

12. Insertion of new Part:

PART VIIB—SPECIAL PROVISIONS RELATING TO BLENDED

PETROLEUM PRODUCTS

77G. Definitions

77H. Blending is to be treated as manufacture

77J. Exempt blended petroleum products

77K. Crude oil and condensate may attract more than one excise duty

13. Remissions, rebates and refunds

14. Insertion of new section:

78AAAA. Payments to certain naphtha producers

15. Rebate of duty in respect of diesel fuel used for certain purposes

16. Diesel fuel rebate scheme set-offs

17. Insertion of new section:

80B. Extension of diesel fuel rebate scheme in certain circumstances

Customs and Excise Legislation Amendment Act 1993

No. 113 of 1993

An Act to amend legislation relating to customs and excise, and for related purposes

[Assented to 24 December 1993]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Customs and Excise Legislation Amendment Act 1993.

Commencement

2.(1) Sections 1, 2, 3, 4, 7 and 9 commence on the day on which this Act receives the Royal Assent.

(2) Paragraph 5(c), section 6, section 14 and paragraph 15(c) commence on 1 January 1994.

(3) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(4) If a provision covered by subsection (3) does not commence under that subsection within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

PART 2—AMENDMENTS OF THE CUSTOMS ACT 1901

Principal Act

3. In this Part, “Principal Act” means the Customs Act 19011.

Insertion of new section

4. After section 4 of the Principal Act the following section is inserted:

Act not to apply so as to exceed Commonwealth power

“4AA.(1) Unless the contrary intention appears, if a provision of this Act:

(a) would, apart from this section, have an invalid application; but

(b) also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

“(2) Despite subsection (1), the provision is not to have a particular valid application if:

(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying the Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

“(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

“(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

“(5) In this section:

‘application’ means an application in relation to:

(a) one or more particular persons, things, matters, places, circumstances or cases; or

(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

‘invalid application’, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power;

‘valid application’, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.”.

Rebate of duty in respect of diesel fuel used for certain purposes

5. Section 164 of the Principal Act is amended:

(a) by inserting after subsection (4AA) the following subsection:

“(4AB) If an application for rebate in respect of diesel fuel is received under paragraph (4AA)(d) on or after 1 July 1994, rebate is payable only in respect of diesel fuel purchased within 3 years before that application is so received except where the applicant gave notice prior to 1 July 1994 of an intention to make an application on grounds set out in the notice.”;

(b) subsection (4A) is amended by omitting all the words after “those regulations” and substituting “may provide that, subject to subsection (4B), rebate is not payable to a person in respect of diesel fuel purchased by the person unless, when the application for the rebate is given to a Collector, the applicant gives the Collector a document of a kind, containing information of a kind, prescribed by the regulations.”;

(c) by inserting after subsection (4C) the following subsection:

“(4D) If a person who has applied for rebate under this section is to be paid rebate in respect of some or all the diesel fuel to which the application relates, the Collector must inform the person in writing of the amount of rebate payable to the person under the application.”.

Diesel fuel rebate scheme set-offs

6. Section 165A of the Principal Act is amended:

(a) by omitting from subsection (3) “section 273GA(1)” and substituting “subsection 273GA(1)”;

(b) by omitting from paragraph (3)(a) “has no effect” and substituting “does not permit the set-off of that amount against the amount of the rebate”;

(c) by omitting from paragraph (3)(b) “has effect only in respect” and substituting “permits the set-off only”.

PART 3—AMENDMENTS OF THE EXCISE ACT 1901

Principal Act

7. In this Part, “Principal Act” means the Excise Act 19012.

Definitions

8. Section 4 of the Principal Act is amended:

(a) by omitting from subsection (1) the definition of “manufacture” and substituting the following definition:

“ ‘manufacture’ includes all processes in the manufacture of excisable goods and, in relation to beer, includes the provision to the public at particular premises of commercial facilities and equipment for use in the production of beer at those premises;”;

(b) by inserting in subsection (1) the following definition:

“ ‘beer’ means any liquor on which, under the name of beer, any duty of excise imposed by the Parliament is payable;”;

(c) by inserting in subsection (1) the following definitions:

“ ‘condensate’ means either:

(a) liquid petroleum; or

(b) a substance:

(i) that is derived from gas associated with oil production; and

(ii) that is liquid at standard temperature and pressure;

‘liquid petroleum’ is a mixture of hydrocarbons:

(a) that is produced from gas wells; and

(b) that is liquid at standard temperature and pressure after recovery in surface separation facilities;

but does not include a substance referred to in paragraph (b) of the definition of condensate;

‘standard temperature and pressure’ means a temperature of 20° centigrade and a pressure of one standard atmosphere;”.

Insertion of new section

9. After section 4 of the Principal Act the following section is inserted:

Act not to apply so as to exceed Commonwealth power

“4AAA.(1) Unless the contrary intention appears, if a provision of this Act:

(a) would, apart from this section, have an invalid application; but

(b) also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

“(2) Despite subsection (1), the provision is not to have a particular valid application if:

(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying the Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

“(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

“(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

“(5) In this section:

‘application’ means an application in relation to:

(a) one or more particular persons, things, matters, places, circumstances or cases; or

(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

‘invalid application’, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power;

‘valid application’, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.”.

Liability to pay duty

10. Section 54 of the Principal Act is amended by adding at the end the following subsection:

“(2) If the manufacture of beer involves, in whole or in part, the provision to the public at particular premises of commercial facilities and equipment for use in the production of beer at those premises, then, despite subsection (1), only the person who provides those facilities and equipment at those premises is liable to pay excise duty on the beer.”.

Definitions

11. Section 77A of the Principal Act is amended by omitting the definition of “beer”.

Insertion of new Part

12. After Part VIIA of the Principal Act the following Part is inserted:

“PART VIIB—SPECIAL PROVISIONS RELATING TO BLENDED PETROLEUM PRODUCTS

Definitions

“77G. In this Part, unless the contrary intention appears:

‘blended petroleum product’ means the product of the blending of a petroleum product (including a petroleum product that is itself a blended petroleum product) with another substance or other substances, whether that other substance or those other substances are petroleum products or not;

‘excisable blended petroleum product’ means a blended petroleum product that is not an exempt blended petroleum product;

‘exempt blended petroleum product’ means a blended petroleum product that is exempt under section 77J;

‘petroleum product’ means:

(a) any excisable goods classified to item 11 or 12 or to sub-item 17(A) or 17(B) of the Schedule to the Excise Tariff Act 1921; or

(b) any imported goods that would be classified to item 11 or 12 of that Schedule if they were produced in Australia.

Blending is to be treated as manufacture

“77H.(1) For greater certainty so far as concerns the application of the provisions of this Act, petroleum blending to produce an excisable blended petroleum product is taken to constitute the manufacture of that excisable blended petroleum product.

“(2) Subsection (1) does not imply that, in the absence of such a provision, the blending of substances (whether petroleum products or not) would not constitute the manufacture of the substance produced by the blending.

Exempt blended petroleum products

“77J.(1) For the purposes of this Part, a blended petroleum product is an exempt blended petroleum product if:

(a) it is made by a person who is not a statutory blender; or

(b) it is declared by the regulations to be an exempt blended petroleum product.

“(2) For the purposes of subsection (1) but subject to subsection (3), a person is a statutory blender if that person, or another person acting on that person’s behalf, produces, or has, at any time after this section commences, produced, in the aggregate:

(a) more than 300 litres of blended petroleum products on any day; or

(b) more than 600 litres of blended petroleum products during any continuous period of 30 days; or

(c) more than 3,000 litres of blended petroleum products during any continuous period of 12 months.

“(3) In determining whether, at a particular time, a person is a statutory blender for the purposes of subsection (1), any blending done by or on behalf of the person:

(a) after this section commences; and

(b) more than 12 months before that time;

is to be disregarded.

“(4) For the purposes of subsection (2), a blended petroleum product does not include a blended petroleum product that is declared, by regulations made for the purposes of paragraph (1)(b), to be an exempt blended petroleum product.

“(5) The regulations may provide that, with effect from a day specified in the regulations, subsection (2) has effect as if there were substituted for a volume specified in paragraph (2)(a), (b) or (c) such greater volume as is specified in the regulations.

Crude oil and condensate may attract more than one excise duty

“77K. The fact that excise duty attaches to stabilised crude petroleum oil or to condensate consisting of liquid petroleum under item 17 of the Schedule to the Excise Tariff Act 1921 does not prevent further excise duty attaching to that oil or that condensate under item 11 of that Schedule.”.

Remissions, rebates and refunds

13. Section 78 of the Principal Act is amended by adding at the end the following subsections:

“(3) If:

(a) a person uses stabilised crude petroleum oil classified to paragraph 11(H)(2) of the Schedule to the Excise Tariff Act 1921 or condensate classified to paragraph 11(J)(2) of that Schedule in substitution for an excisable petroleum product classified to sub-item 11(A), 11(B), 11(C), 11(D) or 11(E) of that Schedule in particular circumstances; and

(b) a remission, rebate or refund of excise duty is allowed under subsection (1) in respect of that last-mentioned excisable petroleum product in those circumstances;

this section, and the regulations made for the purposes of this section, have effect as if that oil or condensate were that last-mentioned excisable petroleum product.

“(4) Without limiting the generality of subsection (1) or (3) or the scope of the regulations that may be made for the purposes of subsection (1), if the Comptroller is satisfied that:

(a) stabilised crude petroleum oil classified to paragraph 11(H)(2) of the Schedule to the Excise Tariff Act 1921; or

(b) condensate classified to paragraph 11(J)(2) of that Schedule;

has been produced, or distributed, for use (the ‘substituted use’) otherwise than as a fuel in an internal combustion engine, the person who is liable to pay excise duty on that stabilised crude petroleum oil or condensate because it is classified to that paragraph is entitled to a remission of duty.

“(5) The amount of the remission allowed in respect of excise duty payable under item 11 of the Schedule to the Excise Tariff Act 1921 on that stabilised crude petroleum oil or that condensate is an amount worked out under the formula:

where:

‘Volume’ means the volume of that stabilised crude petroleum oil or of the condensate;

‘Primary rate’ means:

(a) so far as stabilised crude petroleum oil is concerned—the rate of excise duty applicable to goods classified to paragraph 11(H)(2) of that Schedule; and

(b) so far as condensate is concerned—the rate of excise duty applicable to goods classified to paragraph 11(J)(2) of that Schedule;

‘Substituted use rate’ means, so far as both stabilised crude petroleum oil and condensate are concerned:

(a) if the substituted use is use as fuel oil, heating oil, lighting kerosene or power kerosene—the rate of excise duty applicable to goods classified to paragraph 11(E)(3) of that Schedule; and

(b) if the substituted use is any other use—Free.”.

Insertion of new section

14. After section 78 of the Principal Act the following section is inserted:

Payments to certain naphtha producers

“78AAAA.(1) A person who produces naphtha from shale mined in Australia may, subject to this section and to the regulations, apply in writing to the Comptroller for payment of amounts in respect of the naphtha so produced worked out by reference to the amount of excise duty payable on the volume of unleaded gasoline that can be obtained from that naphtha.

“(2) A person is not entitled to a payment under subsection (1):

(a) unless the naphtha is produced at a plant that is approved by the Minister for Primary Industries and Energy for the purposes of this section; or

(b) in respect of naphtha produced before the plant is approved or after 31 December 2005.

“(3) A person is not entitled, in any calendar year, to a payment under subsection (1) in respect of any naphtha produced by that person at an approved plant that exceeds the volume of naphtha required to produce 95,392.2 kilolitres of unleaded gasoline.

“(4) Without limiting the generality of subsection (1), regulations made for the purpose of that subsection must set out:

(a) the circumstances in which, and the conditions subject to which, an approval of such a plant will be granted; and

(b) the manner of working out the volume of unleaded gasoline that can be obtained from a volume of naphtha; and

(c) the manner of applying to the Comptroller for a payment under subsection (1); and

(d) the conditions and restrictions to which a payment under subsection (1) is subject.

“(5) A power conferred on the Minister for Primary Industries and Energy, the Comptroller or any other person by this section or by regulations made for the purposes of this section must not be exercised in such a manner that payments to naphtha producers under this section would not be uniform throughout the Commonwealth within the meaning of paragraph 51(iii) of the Constitution.

“(6) In this section:

‘unleaded gasoline’ means the petroleum product that would be classified to subparagraph 11(A)(3)(c) of the Schedule to the Excise Tariff Act 1921.”.

Rebate of duty in respect of diesel fuel used for certain purposes

15. Section 78A of the Principal Act is amended:

(a) by inserting after subsection (4AA) the following subsection:

“(4AB) If an application for rebate in respect of diesel fuel is received under paragraph (4AA)(d) on or after 1 July 1994, rebate is payable only in respect of diesel fuel purchased within

3 years before that application is so received except where the applicant gave notice prior to 1 July 1994 of an intention to make an application on grounds set out in the notice.”;

(b) subsection (4A) is amended by omitting all the words after “those regulations” and substituting “may provide that, subject to subsection (4B), rebate is not payable to a person in respect of diesel fuel purchased by the person unless, when the application for the rebate is given to a Collector, the applicant gives the Collector a document of a kind, containing information of a kind, prescribed by the regulations.”;

(c) by inserting after subsection (4C) the following subsection:

“(4D) If a person who has applied for rebate under this section is to be paid rebate in respect of some or all the diesel fuel to which the application relates, the Collector must inform the person in writing of the amount of rebate payable to the person under the application.”.

Diesel fuel rebate scheme set-offs

16. Section 80A of the Principal Act is amended:

(a) by omitting from paragraph (3)(a) “shall have no effect” and substituting “does not permit the set-off of that amount against the amount of the rebate”;

(b) by omitting from paragraph (3)(b) “shall thereupon have effect only in respect” and substituting “permits the set-off only”.

Insertion of new section

17. After section 80A of the Principal Act the following section is inserted:

Extension of diesel fuel rebate scheme in certain circumstances

“80B.(1) In this section:

‘diesel fuel rebate scheme’ means the scheme for the provision of rebate in relation to excise duty paid on diesel fuel that is set out in sections 78A, 78AA, 78AB, 80 and 80A.

“(2) If an excisable blended petroleum product is not constituted, in whole or in part, by:

(a) goods referred to in paragraph 11(A)(3) or 11(C)(2) of the Schedule to the Excise Tariff Act 1921; or

(b) a blended petroleum product that is itself constituted, in whole or in part, by goods referred to in paragraph (a);

then, for the purposes of the diesel fuel rebate scheme, this Act has effect as if the excisable blended petroleum product were diesel fuel.

“(3) If stabilised crude petroleum oil classified to paragraph 11(H)(2) of the Schedule to the Excise Tariff Act 1921:

(a) is not included in an excisable blended petroleum product; and

(b) is not oil in respect of which there is an entitlement to a remission under subsection 78(3);

then, for the purposes of the diesel fuel rebate scheme, this Act has effect as if that stabilised crude petroleum oil were diesel ‘fuel.”.

NOTES

1. No. 6, 1901, as amended. For previous amendments, see No. 21, 1906; Nos. 9 and 36, 1910; No. 19, 1914, No. 10, 1916; No. 41, 1920; No. 19, 1922; No. 12, 1923; No. 22, 1925; No. 6, 1930; Nos. 7 and 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45, 1949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66, 1954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29, 82 and 133, 1965; No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; Nos. 162 and 216, 1973; Nos. 28 and 120, 1974; Nos. 56, 77 and 107, 1975; Nos. 41, 91 and 174, 1976; No. 154, 1977; Nos. 36 and 183, 1978; Nos. 92, 116, 177 and 180, 1979; Nos. 13, 15, 110 and 171, 1980; Nos. 45, 64, 67, 152 and 157, 1981; Nos. 48, 51, 80, 81, 115 and 137, 1982; Nos. 19, 39 and 101, 1983; Nos. 2, 22, 63, 72 and 165, 1984; Nos. 39, 40 and 175, 1985; Nos. 10, 34 and 149, 1986; Nos. 51, 76, 81, 104 and 141, 1987; Nos. 63, 66 and 76, 1988; Nos. 23, 24, 79, 108 and 174, 1989; Nos. 5, 6, 11, 70, 79 and 111, 1990; Nos. 28, 82, 120 and 123, 1991; and Nos. 34, 89, 104, 164, 207, 209, 210 and 221, 1992.

2. No. 9, 1901, as amended. For previous amendments, see No. 26, 1918; No. 8, 1923; No. 44, 1934; No. 16, 1942; No. 88, 1947; No. 46, 1949; No. 55, 1952; No. 10, 1957; No. 49, 1958; No. 37, 1962; No. 49, 1963; No. 139, 1965; No. 93, 1966; Nos. 15 and 105, 1968; No. 23, 1972; Nos. 24 and 145, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 29, 1974; No. 91, 1976; No. 110, 1978; Nos. 11 and 50, 1979; No. 42, 1980; Nos. 61 and 65, 1981; Nos. 51, 80 and 108, 1982; No. 81, 1982 (as amended by No. 39, 1983); Nos. 39 and 101, 1983; Nos. 72 and 165, 1984; Nos. 39 and 175, 1985; No. 40, 1985 (as amended by No. 34, 1986); Nos. 10, 34 and 149, 1986; Nos. 81 and 104, 1987; No. 99, 1988; Nos. 23, 24 and 78, 1989; Nos. 5 and 11, 1990; No. 80, 1991; and Nos. 34 and 104, 1992.

[Minister’s second reading speech made in—

House of Representatives on 28 September 1993

Senate on 26 October 1993