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.
Overview
The Customs Regulations (Amendment) Statutory Rules 1989 No. 260 were enacted to address a gap in the Customs Regulations regarding the granting of commercial tariff concession orders (CTCOs). The Customs Act 1901 established the legislative framework for CTCOs, which allow for the importation of certain goods at a reduced rate of duty. However, a decision in the Federal Court of Australia, Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs and Others, clarified that a CTCO could only apply to the specific goods described in the application, not merely the tariff classification. This ruling necessitated amendments to ensure the tariff classification became an integral part of the goods description in CTCO applications. The rules were issued under the authority of the Minister of State for Science, Customs and Small Business to align the Customs Regulations with the Court's decision and ensure the proper administration of tariff concessions.
Scope and Application
The Customs Regulations (Amendment) Statutory Rules 1989 No. 260, issued under the authority of the Minister of State for Science, Customs and Small Business, amend the Customs Regulations 1996 to refine the requirements for applications for commercial tariff concession orders (CTCOs) under the Customs Act 1901. These amendments respond to a decision of the Federal Court in Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs and Others, clarifying that the scope of a CTCO is determined by the description of the goods in the application rather than the tariff classification specified. The rules adjust the regulation to integrate the tariff classification into the description of the goods, ensuring that the scope of a CTCO is consistent with the applicant's description. Additionally, the amendments remove certain outdated or redundant requirements in the regulations, streamlining the application process for CTCOs. These changes apply to all persons or entities seeking to import goods under a CTCO in Australia, aligning the regulatory framework with the court's interpretation and ensuring clarity and efficiency in the administration of tariff concessions.
Key Provisions
The Customs Regulations (Amendment) Statutory Rules 1989 No. 260 amend the Customs Regulations to address specific requirements for commercial tariff concession orders (CTCOs) under the Customs Act 1901. Section 270 of the Act allows for the creation of regulations that are necessary to implement the Act, and Part XVA deals with the granting of CTCOs for goods that meet certain criteria. The regulations have been amended to clarify the process for applying for a CTCO and to ensure that the tariff classification of goods is an integral part of the description of those goods in the application. This amendment follows a Federal Court decision in Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs and Others, which held that the scope of a CTCO is determined by the actual description of the goods in the application, rather than the tariff classification specified in the application.
Under the amended Customs Regulations, the application for a CTCO must include a description that adequately identifies the goods and specifies the tariff classification applicable to those goods (sub-regulation 181(1)). Previously, the tariff classification was not considered part of the description of the goods, but the new regulations now make it an integral part of that description. This means that the tariff classification must be included in the description to limit the scope of the CTCO to certain tariff headings in the Customs Tariff. Additionally, the amendments remove certain sub-regulations that are no longer necessary due to the changes made to sub-regulation 181(1)(d), and make minor technical amendments to sub-regulation 181(2).
The obligations imposed on applicants for a CTCO are primarily focused on ensuring that their application includes a comprehensive and accurate description of the goods and their tariff classification. This is to ensure that the scope of any resulting CTCO is clearly defined and limited to the specific goods described. The Customs Regulations also specify where and to whom the application should be submitted, ensuring that the process is clear and accessible for applicants.
Failure to comply with the requirements of the Customs Regulations could result in various consequences. While the specific penalties for non-compliance are not detailed in the provided text, the Customs Act generally provides for both civil and criminal penalties for breaches of the Act or its regulations. Civil penalties can include fines, while criminal penalties can include imprisonment, reflecting the seriousness with which the law treats non-compliance. The exact penalties would depend on the nature and severity of the breach, as well as any relevant case law or additional statutory provisions.