EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO 368
CUSTOMS REGULATIONS (AMENDMENT)
ISSUED BY AUTHORITY OF THE MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE
Statutory Rules No. 126 of 1985 amended Customs Regulation 138B, to impose an obligation on the Comptroller-General of Customs to include in any notice to persons affected by certain decisions of the Comptroller, a statement that an application for review of those decisions could be made to the Administrative Appeals Tribunal.
The Senate Standing Committee on Regulations and Ordinances, in its review of the Regulation, expressed concern that no obligation was placed on the Comptroller in the first instance to notify a person of the Comptroller’s appealable decision, which had the effect of rendering the statement which was to accompany that notice illusory.
The amendments remedy this defect and at the same time, restrict review to only those decisions which have the effect of a refusal, consistent with the regime corresponding to the similar provisions in the Excise Regulations.
The regulations provide in particular:
Regulation 1. which amends Regulation 138A to restrict the review by the Administrative Appeals Tribunal of the 4 classes of decisions covered by that Regulation to decisions which amount to a refusal by the Comptroller
(i) to approve goods being brought into Australia, pursuant to Regulation 125A, or
(ii) to give consent pursuant to Regulation 125B, or
(iii) to approve payment of drawback pursuant to Regulations 133 or 134.
Regulation 2, which amends Regulation 138B, to impose an obligation on the Comptroller to notify persons of the decisions covered by Regulation 138A above, within 30 days of the date of the decision, and to include in the notice of the decision, a statement that an application for review of the decision can be made to the Administrative Appeals Tribunal.
Overview
The Customs Regulations (Amendment) Statutory Rules 1986 No. 368, issued by authority of the Minister of State for Industry, Technology and Commerce, were enacted to address a gap in the notification and review processes concerning certain decisions made by the Comptroller-General of Customs. This legislation was introduced in response to concerns raised by the Senate Standing Committee on Regulations and Ordinances, which identified a lack of an initial obligation on the Comptroller to inform individuals of the appealable nature of their decisions, rendering the accompanying statements ineffective. The primary policy objective of these amendments was to ensure that individuals are duly notified of decisions that could be subject to review, thereby providing them with the opportunity to seek redress through the Administrative Appeals Tribunal. The regulation specifically restricts the scope of review to decisions that effectively constitute a refusal by the Comptroller, aligning with similar provisions in the Excise Regulations.
Scope and Application
The Customs Regulations (Amendment) Statutory Rules 1986 No 368, issued under the authority of the Minister of State for Industry, Technology and Commerce, amend existing Customs Regulations to address specific concerns raised by the Senate Standing Committee on Regulations and Ordinances. The amendments concern Regulation 138A and Regulation 138B, focusing on the processes and obligations surrounding the review of certain decisions made by the Comptroller-General of Customs. Specifically, these amendments restrict the review by the Administrative Appeals Tribunal to only those decisions that amount to a refusal by the Comptroller, such as refusals to approve goods being brought into Australia, to give consent, or to approve payment of drawback. Moreover, the Comptroller is now obligated to notify affected persons of these appealable decisions within 30 days and to include a statement in the notification about the option to apply for review to the Administrative Appeals Tribunal, thereby rectifying the previous omission that rendered the statement accompanying the notice illusory. This legislative amendment ensures that the notification and review processes are clearly defined and operational within the regulatory framework.
Key Provisions
The primary operative sections of the Customs Regulations (Amendment) Statutory Rules 1986 No. 368 address the review process for certain decisions made by the Comptroller-General of Customs. Regulation 1 (138A) specifies that the Administrative Appeals Tribunal can only review decisions that result in a refusal by the Comptroller to approve goods entering Australia under Regulation 125A, to give consent under Regulation 125B, or to approve payment of drawback under Regulations 133 or 134. Regulation 2 (138B) amends the original notice requirement, ensuring that the Comptroller must notify affected persons of these appealable decisions within 30 days of the decision being made, and include a statement that an application for review can be made to the Administrative Appeals Tribunal.
The obligations imposed by these regulations are significant for both the Comptroller-General of Customs and the affected parties. The Comptroller must now notify individuals of decisions that involve refusals to approve goods, consent, or drawback payments, within 30 days of the decision. This notification must include a statement regarding the right to apply for a review by the Administrative Appeals Tribunal. For affected parties, this means they are made aware of their right to seek a review of a decision that directly impacts their interests.
The amendments also rectify a prior oversight by ensuring that the Comptroller notifies parties of their appealable decisions, thereby making the review process more transparent and effective. Failure to comply with these obligations could potentially lead to legal challenges regarding the validity of the decisions made. For example, if the Comptroller fails to notify a party of their right to review within the stipulated 30-day period, the affected party might argue that they were not given adequate notice, potentially affecting the legitimacy of the decision.
As for the consequences of breaching these regulations, there are no explicit penalties stated within the text. However, the failure to comply with these requirements could lead to legal disputes and potentially significant consequences for the Comptroller-General of Customs. Such breaches might result in the decisions being overturned or challenged in court, leading to delays and additional costs associated with resolving the disputes.