EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS REGULATIONS (AMENDMENT)
STATUTORY RULES 1989 NO. 260
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SCIENCE, CUSTOMS AND SMALL BUSINESS
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 ….”
Part XVA of the Act provides a legislative regime for the granting of commercial tariff concession orders (“CTCOs”) in respect of goods which satisfy the criteria outlined in Part XVA. A CTCO enables goods specified therein to be imported into Australia at a rate of duty less than that which would otherwise apply. Paragraph 269G(2)(a) of the Act provides that an application for a CTCO under Part XVA shall contain such particulars as are prescribed. This prescription occurs in sub-regulation 181(1) of the Customs Regulations.
Paragraph 181(1)(m) of the Customs Regulations requires the tariff classification that applies to the goods to be specified in an application for a CTCO. Paragraph 181(1)(d) requires a description that adequately identifies the goods.
It had previously been the practice to regard applications for a CTCO as only being made in respect of the tariff classification for the goods shown on the application. However, in the Federal Court decision of Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs and Others (7 April 1989, unreported, No. G819 of 1988), the Court made it clear that an order may only be made in respect of the goods as described by the applicant in his application. The scope of a CTCO can therefore only lawfully be applied to certain tariff headings in the Customs Tariff if the applicant’s actual description of the goods in the application in fact included the tariff description of the goods.
The decision in Corinthian Industries has effectively meant that the tariff classification of the goods in terms of paragraph 181(1)(m) does not form part of the description of the goods and therefore cannot be used to limit the scope of a CTCO. The Statutory Rules (paragraphs a and b) delete paragraph 181(1)(m) and amend paragraph 181(1)(d) so as to make the tariff classification an integral part of the description of the goods for which the application for a CTCO has been made.
In addition to the above amendment paragraphs (b) and (e) delete paragraphs 181(1)(n) and 181(1)(u) as a consequence of the amendment to paragraph 181(1)(d).
Paragraphs (f) and (g) also effect minor technical amendments to sub-regulation 181(2) to make that provision more accurate in its reference to the office of the Customs in Canberra and the person who is authorised to accept lodgement of CTCO applications.