Customs Tariff (Stand-By Duty) Act 1985 (Cth)

Customs Tariff (Stand-By Duty) Act 1985

No. 190 of 1985

An Act to provide for a special duty of Customs in respect of certain petroleum oils in certain circumstances

[Assented to 16 December 1985]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title

1. This Act may be cited as the Customs Tariff (Stand-By Duty) Act 1985

Commencement

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Incorporation

3. The Customs Act 1901 is incorporated and shall be read as one with this Act.

 

Interpretation

4. (1) In this Act, unless the contrary intention appears—

“annual month” means one of the 12 months of the year;

“Australian installation” means an installation that is deemed to be part of Australia by virtue of the operation of section 5 of the Tariff Act;

“Bass Strait allocation notice” means a notice in writing given (whether before or after the commencement of this Act), for the purposes of the scheme known as the Crude Oil Allocation Scheme, by the Resources Minister to a refiner that informed the refiner that the quantity of Bass Strait oil produced in an annual month specified in the notice (not being a month which ended earlier than 30 days before the giving of the notice) that is purchased by the refiner should not be less than a quantity specified in the notice;

“Bass Strait oil” means stabilised crude petroleum oil produced at an Australian installation in the Gippsland Basin in Bass Strait;

“Customs Minister” means the Minister for Industry, Technology and Commerce;

“exempt oils” means prescribed oils that have, at 15°C, a density of 0.90 or greater as ascertained by a method used in the petroleum industry for the purpose of measuring the density of oil, being a method approved for the purpose of this definition by the Comptroller-General of Customs;

“ineligible person” means—

(a) a refiner specified in a stand-by certificate, not being a stand-by certificate that has been revoked; or

(b) an associate of a refiner referred to in paragraph (a);

“initial prices notice” means the notice with the relevant heading that was published in the Gazette on 28 February 1985;

“list of eligible importers” means a list maintained by the Resources Minister that sets out the names of, and particulars sufficient to identify, persons who have applied, in writing, to the Resources Minister to have their names placed on the list and each of whom is, for the time being, a person—

(a) who is not an ineligible person; and

(b) who has given the Resources Minister an undertaking in writing that all relevant oils imported into Australia by, or on behalf of, the person while a stand-by declaration is in force will not be oils intended for use, or for use in the production of goods for use, for the purposes of trade by an ineligible person, being an undertaking that the Resources Minister is satisfied is an undertaking that is being complied with;

“minor oil” means stabilised crude petroleum oil produced in Australia, other than Bass Strait oil;

 

‘minor oil allocation notice” means a notice in writing given (whether before or after the commencement of this Act), for the purposes of the scheme known as the Crude Oil Allocation Scheme, by the Resources Minister to a refiner that informed the refiner that the percentage that is to apply to the refiner in respect of minor oil that is produced in an annual month specified in the notice (not being a month which ended earlier than 30 days before the giving of the notice) is a percentage specified in the notice;

‘oil source” means an area, or areas, to which an item of a particular number in the initial prices notice, or an item of a particular number in a periodic prices notice (being the earliest prices notice containing an item of that number) applies, but—

(a) where the area, or areas, to which the item of that particular number in a later periodic prices notice applies does not include an area (in this paragraph referred to as the “omitted area”) that is part of the first-mentioned area or areas—does not include, during the annual month or months to which the later periodic prices notice applies, the omitted area; or

(b) where the area, or areas, to which the item of that particular number in a later periodic prices notice applies, includes an area (in this paragraph referred to as the “additional area”) that is not part of the first-mentioned area or areas—includes, during the annual month or months to which the last-mentioned periodic prices notice applies, the additional area;

‘periodic prices notice” means a notice with the relevant heading published in the Gazette after the initial prices notice, but does not include—

(a) a notice the treatment of which as a prices notice would—

(i) discriminate between States or parts of States within the meaning of paragraph 51 (ii) of the Constitution; or

(ii) give preference to one State or any part thereof over another State or any part thereof within the meaning of section 99 of the Constitution; or

(b) the notice with the relevant heading published in the Gazette on 28 June 1985;

‘prescribed oils” means oils that, if they were imported into Australia, would be oils to which a relevant tariff classification would apply; ‘prices notice” means—

(a) the initial prices notice; or

(b) a periodic prices notice;

‘quantity”, in relation to Bass Strait oil or minor oil, means volume;

‘refiner” means a person on whose behalf stabilised crude petroleum oil is refined in Australia, whether at an oil refinery operated by the person or otherwise;

 

“relevant heading” means the heading “PRICES FOR STABILIZED CRUDE (OTHER THAN STABILIZED CRUDE FROM BASS STRAIT)”;

“relevant oils” means prescribed oils other than exempt oils;

“relevant tariff classification” means—

(a) item 27.09;

(b) sub-item 27.10.1;

(c) paragraph 27.10.21;

(d) paragraph 27.10.29;

(e) sub-item 27.10.3;

(f)paragraph 27.10.41;

(g) paragraph 27.10.42;

(h) paragraph 27.10.49;

(j) sub-item 27.10.5; and

(k) sub-item 27.10.9,

in Schedule 3 to the Tariff Act;

“Resources Minister” means the Minister for Resources and Energy;

“stabilised crude petroleum oil” includes a liquid derived from petroleum gas;

“stand-by certificate” means a certificate given under sub-section 10 (1) or 11 (1);

“stand-by declaration” means a declaration made under sub-section 12 (1);

“Tariff Act” means the Customs Tariff Act 1982.

(2) For the purposes of this Act, stabilised crude petroleum oil shall be taken to be produced at an installation if the oil is derived from unstabilised crude petroleum oil, or petroleum gas, produced at that installation.

(3) For the purposes of this Act, minor oil shall be taken to be from a particular oil source if the oil is derived from unstabilised crude petroleum oil, or petroleum gas, produced at that oil source.

(4) For the purposes of this Act, an item in a prices notice applies to an area if the stabilised crude petroleum oil to which the item applies is described in the item by reference to petroleum obtained from the area.

(5) For the purposes of this Act, an item in a periodic prices notice applies to an annual month if—

(a) the annual month is specified in that item; or

(b) the annual month is an annual month (if any) that occurs after the annual month so specified and before the annual month specified in the item in the next periodic prices notice to be published in the Gazette after the first-mentioned notice that is of the same number as that item.

(6) For the purposes of this Act, a notice in writing shall be taken to be given to a refiner if the notice is telexed to the refiner.

 

(7) For the purposes of this Act, a refiner and another person shall be taken to be associates of each other if, and only if, they are engaged in the same kind of business and—

(a) both being bodies corporate, they are controlled, directly or indirectly, by a third person (whether or not a body corporate);

(b) one of them, being a body corporate, is, directly or indirectly, controlled by the other (whether or not a body corporate);

(c) one of them, being a natural person, is an employee, officer or director of the other (whether or not a body corporate); or

(d) they are members of the same partnership.

Shortfall

5. (1) For the purposes of this Act, a refiner shall be taken to have had a shortfall of Bass Strait oil during an annual month if the quantity of Bass Strait oil produced during that annual month that was purchased by that refiner is less than the quantity specified in the Bass Strait allocation notice given to that refiner that relates to that annual month.

(2) For the purposes of this Act, where a refiner has had a shortfall of Bass Strait oil during an annual month the shortfall shall be taken to have been within the control of the refiner unless the shortfall occurred principally because of factors other than factors under the control of the refiner.

Underlifting

6. (1) For the purposes of this Act, a refiner shall be taken to have underlifted minor oil from a particular oil source during a period if the percentage of the quantity of minor oil from that oil source produced during that period that was purchased by the refiner is less than—

(a) where the same percentage was specified in all the minor oil allocation notices given to the refiner that relate to an annual month in that period—that percentage; or

(b) where different percentages were specified in those minor oil allocation notices—the percentage ascertained by dividing the sum of those different percentages by the number of those different percentages.

(2) For the purposes of this Act, where a refiner has underlifted minor oil from a particular oil source during a period, the underlifting shall be taken to have been within the control of the refiner unless the underlifting occurred principally because of factors other than factors under the control of the refiner.

Imposition of special duty

7. Subject to section 9, a special duty of Customs (to be known as stand-by duty) is imposed, in accordance with this Act, on relevant oils imported into Australia while a stand-by declaration is in force.

 

Rate of duty

8. The rate of the special duty of Customs imposed by this Act is $0.03 per litre.

Exemption

9. (1) Relevant oils that, for the purposes of the Tariff Act, are the produce or manufacture of New Zealand or of Papua New Guinea are exempt from the special duty of Customs imposed by this Act.

(2) Relevant oils imported into Australia by, or on behalf of, a person whose name is, at the time of importation, set out on a list of eligible importers are exempt from the special duty of Customs imposed by this Act.

Certificate that imposition of duty is appropriate because of shortfall

10. (1) Subject to sub-sections (2), (3) and (4), where—

(a) during each of 3 consecutive annual months that occurred after June 1985, a refiner had a shortfall of Bass Strait oil; and

(b) the Resources Minister is satisfied that the shortfall during each of those months was within the control of that refiner,

the Resources Minister may give to the Customs Minister a certificate specifying that refiner and those 3 annual months and certifying that, because of a shortfall by that refiner, it is appropriate that duty should be payable under this Act.

(2) The Resources Minister is not entitled to be satisfied, for the purposes of this Act, that a shortfall of Bass Strait oil by a refiner during each of 3 consecutive annual months was within the control of the refiner unless—

(a) after the expiration of those 3 annual months (but not before the commencement of this Act) the Resources Minister gave the refiner a notice in writing—

(i) setting out particulars of the shortfall; and

(ii) stating that, because of the shortfall, a certificate might be given under this section unless, within one calendar month after the giving of the notice, the refiner supplies information that will satisfy the Resources Minister that the shortfall was not within the control of the refiner; and

(b) either—

(i) within that calendar month, the refiner did not supply information purporting to be such information; or

(ii) information supplied to the Resources Minister by the refiner during that calendar month did not satisfy the Resources Minister that the shortfall was not within the control of that refiner.

(3) The Resources Minister is not entitled to give a stand-by certificate because a refiner had a shortfall of Bass Strait oil during each of 3 consecutive annual months unless—

 

(a) after making the decision that he or she is satisfied that the shortfall was within the control of the refiner, the Resources Minister gave the refiner notice in writing—

(i) setting out particulars of that decision; and

(ii) stating that, unless precluded by the operation of sub-section (4), he or she proposes to give a certificate under this section because of the shortfall; and

(b) after making that decision and at least 14 days before giving the certificate, the Resources Minister published a notice in the Gazette—

(i) setting out particulars of that decision; and

(ii) inviting persons to apply, in writing, to the Resources Minister to have their names placed on the list of eligible importers.

(4) The Resources Minister is not entitled to give a stand-by certificate because a refiner had a shortfall of Bass Strait oil during each of 3 consecutive annual months unless the quantity of Bass Strait oil that—

(a) was produced during the period that commenced at the beginning of the earliest of those 3 annual months and ended at the expiration of the calendar month that commenced on the day on which notice was given to the refiner under paragraph (3) (a) in respect of the shortfall; and

(b) was purchased by the refiner,

was less than the quantity of Bass Strait oil that would have been—

(c) produced during the period referred to in paragraph (a); and

(d) purchased by the refiner,

if the refiner had not had a shortfall of Bass Strait oil during—

(e) any of those 3 annual months;

(f) the period (if any) that commenced at the end of the last of those 3 annual months and ended immediately before the beginning of that calendar month; and

(g) that calendar month.

(5) For the purposes of sub-section (4), a refiner shall be taken to have had a shortfall of Bass Strait oil during a period that is not an annual month if the quantity of Bass Strait oil produced during that period that was purchased by the refiner is less than the quantity that bears to the quantity specified in the Bass Strait allocation notice given to the refiner before the commencement of that period that relates to an annual month part of which falls during that period the same proportion as that period bears to that last-mentioned annual month.

Certificate that imposition of duty is appropriate because of underlifting

11. (1) Subject to sub-sections (2), (3) and (4), where—

(a) a refiner underlined minor oil from a particular oil source during a period of 6 consecutive annual months that occurred after March 1985; and

 

(b) the Resources Minister is satisfied that the underlifting was within the control of that refiner, the Resources Minister may give to the Customs Minister a certificate specifying that refiner, that particular oil source and those 6 annual months and certifying that, because of underlifting of minor oil from that oil source by that refiner, it is appropriate that duty should be payable under this Act.

(2) The Resources Minister is not entitled to be satisfied, for the purposes of this Act, that the underlifting by a refiner of minor oil from a particular oil source during a period of 6 consecutive annual months was within the control of the refiner unless—

(a) after the expiration of that period (but not before the commencement of this Act), the Resources Minister gave the refiner a notice in writing—

(i) setting out particulars of the underlifting; and

(ii) stating that a certificate might be given under this section unless, within one calendar month after the giving of the notice, the refiner supplies information that will satisfy the Resources Minister that the underlifting was not within the control of the refiner; and

(b) either—

(i) within that calendar month, the refiner did not supply information purporting to be such information; or

(ii) information supplied to the Resources Minister by that refiner during that calendar month did not satisfy the Resources Minister that the underlifting was not within the control of the refiner.

(3) The Resources Minister is not entitled to give a stand-by certificate because of the underlifting by a refiner of minor oil from a particular oil source during a period of 6 consecutive annual months unless—

(a) after making the decision that he or she is satisfied that the underlifting was within the control of the refiner, the Resources Minister gave the refiner notice in writing—

(i) setting out particulars of that decision; and

(ii) stating that, unless precluded by the operation of sub-section (4), he or she proposes to give a certificate under this section because of the underlifting; and

(b) after making that decision and at least 14 days before giving the certificate, the Resources Minister published a notice in the Gazette—

(i) setting out particulars of that decision; and

(ii) inviting persons to apply, in writing, to the Resources Minister to have their names placed on the list of eligible importers.

(4) The Resources Minister is not entitled to give a stand-by certificate because a refiner underlifted minor oil from a particular oil source during a period of 6 consecutive annual months unless the refiner underlifted minor oil from that oil source during the period commencing at the beginning of

 

the earliest of those 6 annual months and ending at the end of the calendar month commencing on the day on which notice was given to the refiner under paragraph (3) (a) in respect of the underlifting.

Declarations that duty is payable

12. (1) Where—

(a) the Resources Minister gives the Customs Minister a stand-by certificate; and

(b) a declaration under this sub-section is not in force,

the Customs Minister shall, by notice in writing published in the Gazette,declare that duty is payable under this Act.

(2) A stand-by declaration has effect from and including such day as is specified in the notice containing the declaration, not being a day earlier than the day of publication of the notice in the Gazette.

Revocation of certificates

13. (1) Where—

(a) a stand-by certificate given under sub-section 10 (1) is in force; and

(b) the Resources Minister becomes satisfied after an annual month that the quantity of Bass Strait oil that—

(i) was produced in the period that commenced at the beginning of the earliest of the 3 annual months specified in the certificate and ended at the expiration of the first-mentioned annual month; and

(ii) was purchased by the refiner specified in the certificate,

was not less than the quantity of Bass Strait oil that would have been—

(iii) produced during that period; and

(iv) purchased by that refiner,

if that refiner had not had a shortfall of Bass Strait oil during any annual month in that period,

the Resources Minister shall, by notice in writing given to the Customs Minister, revoke that certificate.

(2) Where—

(a) a stand-by certificate given under sub-section 11 (1) is in force; and

(b) the Resources Minister becomes satisfied after an annual month that the refiner specified in the certificate did not underlift minor oil from the oil source specified in the certificate during the period commencing at the beginning of the earliest of the 6 annual months specified in the certificate and ending at the end of the first-mentioned annual month,

the Resources Minister shall, by notice in writing given to the Customs Minister, revoke that certificate.

 

Revocation of declarations

14. (1) Where—

(a) a stand-by declaration is in force; and

(b) the stand-by certificate, or all stand-by certificates, given before the making of the declaration and the stand-by certificate, or all standby certificates, (if any) given after the making of the declaration is or are revoked,

the Customs Minister shall, by notice in writing published in the Gazette as soon as is practicable, revoke that declaration.

(2) A revocation referred to in sub-section (1) has effect from and including such day as is specified in the Gazette, being a day that is the first day of the annual month following the annual month in which the notice is published.

Transfers of allocations

15. (1) Where—

(a) a refiner (in this sub-section referred to as the “transferor”) has agreed with another refiner (in this sub-section referred to as the “transferee”) not to purchase a quantity of Bass Strait oil produced in an annual month occurring after June 1985 and to which a Bass Strait allocation notice given to the transferor relates (in this subsection referred to as the “transferred quantity”); and

(b) the transferee has agreed with the transferor to purchase the transferred quantity,

then, in the application of this Act in respect of that month—

(c) the quantity of Bass Strait oil specified in that Bass Strait allocation notice shall be deemed to be reduced by the transferred quantity; and

(d) the quantity of Bass Strait oil specified in the Bass Strait allocation notice given to the transferee that relates to that month shall be deemed to be increased by the transferred quantity.

(2) Where—

(a) a refiner (in this sub-section referred to as the “transferor”) has agreed with another refiner (in this sub-section referred to as the “transferee”) not to purchase a quantity of minor oil from a particular oil source produced in an annual month occurring after March 1985 (in this sub-section referred to as the “transferred quantity”); and

(b) the transferee has agreed with the transferor to purchase the transferred quantity,

then—

(c) in the application of section 6 to the transferor in relation to minor oil from that oil source in respect of a period in which that month, or a part of that month, falls, the percentage referred to in paragraph 6 (1) (a) or the percentage ascertained in accordance with paragraph

 

6 (1) (b), as the case requires, shall be taken to be reduced by deducting from that percentage the percentage (in this sub-section referred to as the “transferred percentage”) that the transferred quantity is of the quantity of minor oil from that oil source produced in that period; and

(d) in the application of section 6 to the transferee in relation to minor oil from that oil source in respect of a period referred to in paragraph (c), the percentage referred to in paragraph 6 (1) (a) or ascertained in accordance with paragraph 6 (1) (b), as the case requires, shall be taken to be increased by adding to that percentage the transferred percentage.

Special duty to be additional to ordinary duties

16. The special duty of Customs payable under this Act is in addition to such other duties of Customs (if any) as are payable under any other Act.

[Minister’s second reading speech made in—

House of Representatives on 11 September 1985

Senate on 14 November 1985