EXPLANATORY STATEMENT
Select Legislative Instrument No. 4, 2014
Issued by the Authority of the Assistant Minister for Immigration and Border Protection
Customs Act 1901
Customs Amendment Regulation 2014 (No. 1)
Section 270 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.
Part XVA of the Act provides for the making of Tariff Concession Orders (TCOs) in certain circumstances; goods that are covered by a TCO may then be imported into Australia free from customs duty. The Tariff Concession System (TCS) which governs TCOs is designed to help industry become more internationally competitive and allows duty-free entry of certain goods where there is no local industry that produces these goods. However, subsection 269SJ(1) of the Act provides, in part, that the Chief Executive Officer (CEO) of Customs must not make a TCO in respect of goods declared by the regulations to be goods to which a TCO should not extend.
The Customs Regulations 1926 (the Principal Regulations) provide, in part, that for the purposes of subsection 269SJ(1), a TCO cannot be made for a good classified to a tariff heading or subheading in column 2 of Schedule 2 to the Principal Regulations. However, if the same good is also listed in column 3, a TCO can be made in respect of those goods. The reason for the exception is that, in general, there is no known local manufacturer of that good.
Currently a TCO for mastectomy bras (bras designed to conceal a mammary prosthesis and hold it securely in place) cannot be made as these goods may be classified under a tariff heading listed in column 2 of Schedule 2 to the Principal Regulations. The purpose of the Regulation is to include mastectomy bras in column 3 of Schedule 2 and therefore allow a TCO to be made in respect of these goods. This would reduce the duty payable on the importation of mastectomy bras from 10 per cent to nil.
The Act does not specify any conditions that need to be met before the power to make the Regulation may be exercised.
The Regulation is minor or machinery in nature and therefore no formal consultation was undertaken in relation to the amendment.
The Regulation commences on the day after it is registered.
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs Amendment Regulation 2014 (No. 1)
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
This Regulation amends the Customs Regulations 1926 (the Principal Regulations) to allow a Tariff Concession Order (TCO) to be made in respect of mastectomy bras (bras designed to conceal a mammary prosthesis and hold it securely in place). The effect of making a TCO would be to reduce the rate of duty payable on the importation of mastectomy bras to nil.
The Regulation commences on the day after registration.
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.
Assistant Minister for Immigration and Border Protection
Overview
The Customs Amendment Regulation 2014 (No. 1) was enacted to address a gap in the Customs Regulations 1926 that prevented the importation of mastectomy bras duty-free. This regulation amends the Principal Regulations to include mastectomy bras in the list of goods eligible for a Tariff Concession Order (TCO). As a result, the importation of these medically necessary items can now occur without incurring the previously applicable 10 per cent customs duty, thereby making them more accessible to those who need them. The policy objective is to improve access to essential healthcare products by facilitating their duty-free entry into Australia, in line with the broader aims of the Tariff Concession System to support industry competitiveness and the availability of goods not produced locally. This regulation was issued under the authority of the Assistant Minister for Immigration and Border Protection and is designed to be minor and operational in nature, thus no formal consultation was conducted prior to its enactment.
Scope and Application
The Customs Amendment Regulation 2014 (No. 1) applies to the Customs Regulations 1926, which are subordinate to the Customs Act 1901, and amends the regulatory framework to facilitate the making of Tariff Concession Orders (TCO) for specific goods. Specifically, this regulation addresses the classification of mastectomy bras, which are bras designed to conceal a mammary prosthesis and hold it securely in place. By amending Schedule 2 of the Principal Regulations, the regulation allows for the creation of a TCO for these bras, thereby reducing the customs duty on their importation from 10 per cent to nil. This change is intended to benefit consumers by making these essential medical devices more affordable. The regulation applies nationally across Australia and does not specify any conditions or thresholds for its application, simply allowing for the exemption of these specific goods from the duty previously applicable. The regulation does not exclude or exempt any other goods from its scope, focusing solely on mastectomy bras as defined.
Key Provisions
The Customs Amendment Regulation 2014 (No. 1) introduces a significant change to the Customs Regulations 1926, allowing for the creation of a Tariff Concession Order (TCO) for mastectomy bras. As per section 270 of the Customs Act 1901, the Governor-General has the authority to make regulations that do not conflict with the Act and are necessary for its effective implementation. This regulation specifically targets section 269SJ(1), which previously prevented the creation of a TCO for goods listed in column 2 of Schedule 2 of the Principal Regulations. By amending the Principal Regulations to include mastectomy bras in column 3, the regulation permits the exemption of these goods from customs duty.
Under the amended regulation, the Chief Executive Officer of Customs is now allowed to issue a TCO for mastectomy bras, which are bras designed to conceal a mammary prosthesis and hold it securely in place. This change means that the importation of these specific bras will be free from customs duty, reducing the rate from 10 per cent to nil. This adjustment is intended to support the availability and affordability of these essential medical devices for Australian consumers.
The Customs Amendment Regulation 2014 (No. 1) imposes no specific obligations on the parties involved beyond what is already outlined in the Customs Act 1901 and the Customs Regulations 1926. Importers and manufacturers of mastectomy bras now have the opportunity to benefit from the tariff concession if they comply with the existing regulatory framework. This includes ensuring that the bras meet the specified classification and do not fall under any other prohibited categories.
Breaching the conditions set by the Customs Act 1901 or the amended regulations can lead to various penalties. For instance, any misrepresentation of goods to obtain a tariff concession not legally entitled to one could result in fines and potential criminal charges. The maximum penalties for such breaches are outlined in the Customs Act 1901, which may include substantial fines and imprisonment depending on the severity of the offence. Therefore, compliance with the regulatory framework is crucial to avoid any legal repercussions.