EXPLANATORY STATEMENT
Customs By-law No. 1301035
Customs Act 1901
Section 271 of the Customs Act 1901 (the Act) provides, in part, that where an item of a Customs Tariff is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law, the Chief Executive Officer of Customs may make by-laws for the purposes of that item. A Customs Tariff is defined in section 4 of the Act to mean an act imposing duties of customs. The Customs Tariff Act 1995 (the Customs Tariff Act) is a Customs Tariff for the purposes of the Act.
Background
The Customs Tariff Amendment (Schedule 4) Act 2012 will commence on 1 March 2013. It will repeal the existing Schedule 4 of the Customs Tariff Act and replace it with a new Schedule 4. As part of this process, new by-laws are required for all items that provide for goods to be prescribed by by-law.
Item 23 in new Schedule 4 combines items 23A and 23B of the previous Schedule 4 to the Customs Tariff Act. Item 23 paragraph (b) provides that goods, as prescribed by by-law, that have been donated or bequeathed to the public or to a public institution, are dutiable at the rate of “Free”.
New By-law No. 1301035 replaces previous By-law No. 9640058.
Instrument
By-law No. 1301035 prescribes goods that have been donated or bequeathed to the public or to a public institution. By-law No. 1301035 does not apply to:
a) goods that serve similar functions to goods which are produced in Australia;
b) goods that serve similar functions to goods which are capable of being produced in Australia in the normal course of business;
c) goods for which substitutable goods are produced in Australia in the ordinary course of business.
Consultation
No consultation was undertaken in relation to By-law No. 1301035 as it does not alter existing arrangements.
Human Rights Implications
This by-law 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.
Commencement
By-law No. 1301035 takes effect on and from the date that the Customs Tariff Amendment (Schedule 4) Act 2012 commences, that is 1 March 2013.
Overview
The Customs By-law No. 1301035, enacted under the Customs Act 1901, addresses the need for updated regulations in the Customs Tariff concerning donated or bequeathed goods to the public or public institutions. This by-law was introduced in response to the Customs Tariff Amendment (Schedule 4) Act 2012, which necessitated new by-laws to accommodate the restructuring of the Customs Tariff. The objective of this by-law is to ensure that goods donated or bequeathed to the public or public institutions are appropriately classified for duty purposes, specifically exempting such goods from duty if they are not competitive with Australian-produced goods or do not have substitutable Australian goods. The by-law was implemented without consultation as it maintains existing arrangements, and it does not infringe upon any human rights as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011. The by-law came into effect on 1 March 2013, in line with the commencement of the amending Act.
Scope and Application
The Customs By-law No. 1301035 applies to goods that have been donated or bequeathed to the public or to a public institution, as prescribed by the by-law, and it relates to the dutiable status of such goods under the Customs Act 1901. This by-law is a subordinate instrument made under section 271 of the Customs Act 1901 and operates to implement specific provisions in the Customs Tariff concerning dutiable goods. The by-law applies nationally across Australia and is intended to align with the changes introduced by the Customs Tariff Amendment (Schedule 4) Act 2013, which commenced on 1 March 2013. Notably, this by-law excludes certain goods from its application, specifically those that serve similar functions to goods produced in Australia, goods that could be produced in Australia in the normal course of business, and goods for which substitutable goods are produced domestically in the ordinary course of business. No consultation was deemed necessary for this by-law as it does not alter existing arrangements.
Key Provisions
By-law No. 1301035, under section 271 of the Customs Act 1901, specifically outlines the customs duties applicable to goods that have been donated or bequeathed to the public or a public institution. According to item 23 in the new Schedule 4 of the Customs Tariff Act 1995, these donated or bequeathed goods are to be dutiable at the rate of “Free” if they are prescribed by by-law. This new by-law supersedes the previous by-law No. 9640058 and aligns with the Customs Tariff Amendment (Schedule 4) Act 2012, which came into effect on 1 March 2013. However, it is crucial to note that the by-law does not apply to goods that serve similar functions to those produced in Australia, goods that could be produced in Australia in the normal course of business, or goods for which substitutable goods are produced in Australia in the ordinary course of business.
The obligations imposed by By-law No. 1301035 on the parties and entities it governs are primarily related to the classification and duty assessment of donated or bequeathed goods. Those involved in the importation and customs clearance of these goods must ensure that they fall under the specific conditions outlined in the by-law. This includes verifying that the donated or bequeathed goods are not similar to those produced domestically or those for which domestic substitutes exist. Failure to correctly classify these goods could result in incorrect duty assessments, which could lead to legal complications and financial liabilities.
In terms of potential consequences for breach, By-law No. 1301035 does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance. However, the Customs Act 1901 provides a framework for enforcement actions that could apply. Under the Act, non-compliance with customs regulations can result in civil penalties, including fines and the recovery of unpaid duties and taxes. Additionally, serious breaches could lead to criminal charges, potentially resulting in fines or imprisonment, depending on the severity and intent of the violation. The specific penalties would be determined in accordance with the relevant provisions of the Customs Act 1901 and any other applicable legislation.