EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 249
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulation 2012 (No. 8)
Subsection 270(1) of the Customs Act 1901 (the Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to Customs.
The purpose of the Regulation is to amend the Customs Regulations 1926 (the Principal Regulations) to amend the drawback circumstances and add a refund circumstance for tobacco and tobacco products.
Drawback circumstance
Section 168 of the Act provides that the regulations may make provision for and in relation to allowing drawbacks of duty paid on goods imported into Australia. A drawback is essentially a refund of import duty that is payable on the exportation of previously imported goods where the goods meet certain requirements.
Regulation 129 through to regulation 136B of the Principal Regulations set out the circumstances in which goods are eligible for drawback of import duty, the methods of calculating the amount of drawback, and the procedures that must be followed before a drawback is payable. This includes regulation 134 which contains conditions relating to the payment of drawback of import duty.
Regulation 134 of the Principal Regulations provides that a drawback of import duty is not payable on the exportation of goods unless each of the requirements in the regulation is met.
The Regulation amends the drawback circumstances for tobacco and tobacco products to align them with the more stringent drawback of duty provisions in the Excise Regulations 1925.
In addition to the existing requirements for the payment of a drawback, the more stringent requirements for the payment of a drawback for tobacco and tobacco products would be as follows:
- before exportation of the tobacco or tobacco products, the owner of the goods must give the Collector, within a reasonable time prior to the exportation, a notice of the owner’s intention to claim a drawback on the exportation; and
- the claim must also mention that, to the best of the knowledge, information and belief of the person making the claim, the goods have not been, and are not intended to be, re-landed in Australia.
Where a person has given reasonable notice of the proposed exportation, the Regulation allows a Collector to examine the goods which are the subject of the proposed drawback. The Regulations provide, where a person has given a Collector a notice of intention to claim a drawback on the exportation of tobacco or tobacco products, the Collector may, by notice in writing, require the person making the claim to:
(a) produce the goods to an officer for examination before the exportation of the goods;
(b) cause the goods to be packed for export in the presence of an officer;
(c) cause the goods to be secured to the satisfaction of an officer after they are packed for export;
(d) mark each of the packages being exported with a distinctive mark or label;
(e) cause a distinctive label to be affixed to any of the goods that are to be exported.
Where the Collector has given the person a notice to examine the goods, drawback of import duty is not payable unless the person complies with the notice.
The Regulation further provides that the provision allowing a Collector to cause the goods to be packed for export in the presence of an officer, does not apply in relation to goods that:
(a) are intended to be exported in packages in which they were packed when entered for home consumption; or
(b) are intended to be exported without being packed into packages.
The Regulation also restricts the time period within which a person may make a claim for drawback for tobacco or tobacco products. Currently, subregulation 134(6) allows a person to make a claim for drawback up to four years after the goods have been exported. The Regulations amend this time period for tobacco or tobacco products from 4 years to 12 months from the time of exportation of the tobacco or tobacco products.
Refund circumstance
Section 163 of the Act provides for refunds, rebates and remissions of duty.
Regulation 126 of the Principal Regulations provides circumstances under which refunds, rebates and remissions are made for the purposes of section 163 of the Act.
The Regulation inserts new regulation 126F which adds a new refund circumstance for tobacco and tobacco products. The Regulation prescribes a refund circumstance for tobacco and tobacco products which have been destroyed and which do not meet the retail packaging requirements of the Tobacco Plain Packaging Act 2011.
A refund circumstance will only be available under the Regulation where the application is for at least 100 000 cigarettes, 100kg of tobacco or other tobacco products, or a combination of cigarettes and tobacco or other tobacco products weighing at least 100kg.
The Regulation would also prescribe further requirements on the refund of duty under new regulation 126F as below.
Regulation 127 provides conditions for refund of duty. Amendments to regulation 127 would provide a refund under new regulation 126F only if:
(a) Customs is given a notice, in an approved form, of the intended destruction of the goods, at least 7 days prior to the goods being destroyed; and
(b) when the notice is given the goods are in a warehouse licensed under section 79 of the Act; and
(c) Customs are given a reasonable opportunity to supervise the destruction.
Regulation 128 provides that an application for duty must, amongst other things, be in an approved form. The Regulation amends that regulation to provide that an application for a refund under new regulation 126F must comply with the requirements in subregulations 128(1) or (1A). Subregulation 128(1A) allows a person to make an application for certain refunds, rebate or remissions of duty by computer.
The new refund circumstance for tobacco and tobacco products created by 126F will only be available until 30 April 2013. Accordingly, the Regulation would provide that an application for refund under regulation 126F must be made on or before 30 April 2013.
The Regulation would also make minor technical amendments to correct incorrect references contained in Regulation 135.
The Act does not specify any conditions that need to be met before the power to make the Regulation may be exercised.
As the Regulation is of a minor or machinery nature, no consultation was undertaken in relation to the Regulation.
The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
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Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs Amendment Regulation 2012 (No. 8)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
The Regulation amends the Customs Regulations 1926 to amend the drawback circumstances and add a refund circumstance for tobacco and tobacco products.
The Regulation commences on the day after it is registered.
Human Rights implications
This legislative instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
This legislative instrument does not raise any human rights issues.
Minister for Home Affairs