EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 NO. 217
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS
Section 270 of the Customs Act 1901 (“the Act”) provides in part that “The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act …”
Paragraph 126(1)(p) of the Customs Regulations prescribes a refund circumstance in respect of duty-paid petrol when that petrol is returned to a warehouse or to a manufacturer.
Regulation 128F of the Customs Regulations provides for certain requirements to be met by an applicant for refund under the circumstance in paragraph 126(1) (p), including an obligation to give notice of the proposed return of contaminated petrol to an “authorised officer” prior to its return.
Background
The requirement in regulation 128F that notice be provided to an authorised officer has created certain practical difficulties for applicants for refund since the circumstance was introduced in December of last year. In some regions oil companies have been requested to advise out of hours returns to the Customs radio room. This has meant that unless all radio room positions are authorised it is necessary for radio room staff to contact an authorised officer. If an authorised officer cannot be contacted, the conditions of the regulation are not met and a refund cannot be granted.
The Statutory Rules amend regulation 128F by omitting “authorised” wherever it occurs in that regulation and by omitting the definition of “authorised officer” from subregulation 128F(5) (regulation 2).
This will mean that any reference to an officer of Customs is consistent throughout the regulation, and will pick up the definition of “officer” which appears in section 4 of the Customs Act 1901.
The Statutory Rules are to be taken to have commenced on 21 December 1989 (regulation 1), being the date on which the amendments which introduced regulation 128F commenced. However,
since the Statutory Rules confer a benefit in liberalizing the notice requirements, they do not offend the prohibition against retrospectivity in subsection 48(2) of the Acts Interpretation Act 1901.
Overview
The Customs Regulations (Amendment) Statutory Rules 1990 No. 217 were enacted to address practical difficulties experienced by applicants for refunds under the Customs Act 1901. These difficulties arose due to the requirement in regulation 128F that applicants must notify an authorised officer prior to returning duty-paid petrol to a warehouse or manufacturer. Specifically, the necessity to contact authorised officers out of hours has led to situations where refunds were denied if an authorised officer could not be reached promptly. This amendment, issued by the authority of the Minister of State for Small Business and Customs, seeks to streamline the refund process by removing the need to notify an authorised officer, thereby aligning the regulation with the general definition of "officer" under section 4 of the Customs Act 1901. The policy objective is to alleviate the practical challenges faced by applicants, ensuring a more efficient and consistent application of the refund regulations without contravening the prohibition against retrospectivity under the Acts Interpretation Act 1901.
Scope and Application
The Customs Regulations (Amendment) Statutory Rules 1990 No. 217, issued under the authority of the Minister of State for Small Business and Customs, amend regulation 128F of the Customs Regulations, which pertains to the refund of duty on petrol. The amendment is designed to address practical difficulties experienced by applicants for refund when complying with the notice requirement to an "authorised officer" before returning contaminated petrol to a warehouse or manufacturer. By omitting the term "authorised" and the definition of "authorised officer" from regulation 128F, the amendment ensures that any reference to an officer of Customs is consistent throughout the regulation, aligning with the definition of "officer" provided in section 4 of the Customs Act 1901. This change aims to streamline the refund process and does not contravene the prohibition against retrospective effect as it confers a benefit by liberalising the notice requirements. The amendments are effective from 21 December 1989, the date on which the original regulations were introduced.
Key Provisions
The Customs Regulations (Amendment) Statutory Rules 1990 No. 217 amend regulation 128F of the Customs Regulations to modify the requirements for obtaining a refund under paragraph 126(1)(p) of the Customs Act 1901. Regulation 128F, which previously required notice to be given to an "authorised officer" before the return of duty-paid petrol to a warehouse or manufacturer, has been amended by omitting the term "authorised" wherever it occurs and by removing the definition of "authorised officer" from subregulation 128F(5). This change ensures that all references to Customs officers within the regulation are consistent and will now adopt the definition of "officer" provided in section 4 of the Customs Act 1901.
These amendments address practical difficulties experienced by applicants for refund, particularly in cases where out-of-hours returns necessitated contacting an authorised officer. The previous requirement often resulted in delays or denials of refund if an authorised officer could not be contacted promptly. By removing the need to specifically notify an authorised officer, the amendment simplifies the process, making it more straightforward for applicants to return duty-paid petrol and seek a refund.
Parties or entities governed by the Customs Regulations must now simply notify a Customs officer, rather than an authorised officer, prior to the return of contaminated petrol. This requirement remains to ensure that Customs is aware of the intended return, but the removal of the specificity to "authorised" officers reduces administrative burdens and streamlines the process. The changes aim to facilitate more efficient handling of refund applications while maintaining oversight by Customs.
Breach of the Customs Regulations, including failure to comply with the modified notice requirements under regulation 128F, could result in civil or criminal consequences. While the specific penalties are not detailed within the Statutory Rules, the Customs Act 1901 provides for various offences and penalties, including fines and imprisonment for serious breaches. The maximum penalties for contraventions of the Customs Act can be substantial, reflecting the importance of compliance with customs regulations in Australia.