Customs Regulations (Amendment)

Administered by Attorney-General's Department

Legislation au F1997B02911 Regulations Not in force Legislative Instrument

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Customs Regulations (Amendment) 1997 No. 422

EXPLANATORY STATEMENT

STATUTORY RULES 1997 No. 422

Issued by the authority of the Minister for Customs and Consumer Affairs

Customs Act 1901

Customs Regulations (Amendment)

Section 270 of the Customs Act 1901 (the Act) provides in part that the GovernorGeneral may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.

Section 4 of the Acts Interpretation Act 1901 provides that where an Act, being an Act that is not to come into operation immediately upon its enactment, is expressed to confer power to make an instrument of a legislative character, then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or bringing the instrument into effect, before the Act concerned comes into operation.

Background

During the Winter Sittings 1997 the Parliament passed the Customs and Excise Legislation Amendment Act (No. 1) 1997, which revised the Diesel Fuel Rebate Scheme (DFRS) Scheme in 2 ways:

Firstly, eligibility under the Scheme in relation to the "mining" category was tightened up, and these provisions were proclaimed to commence on 1 August 1997.

Secondly, the DFRS was modernised to take account of an Australian National Audit Office (ANAO) report, which criticised the Scheme for its lack of accountability. These modernisation measures introduced document retention provisions, audit provisions and sanctions to, amongst other things, introduce penalty options where there is a failure to provide necessary information to enable claims to be verified. These measures have a statutory commencement of 1 January 1998, which is 6 months after the day on which the Amendment Act received the Royal Assent.

Purpose of the Regulations

These Regulations prescribe the documentary evidence relating to identity and eligibility that is required to accompany applications for diesel fuel rebate under the DFRS, as part of the modernising process.

Details of the regulations are set out in the Attachment

The regulations are complementary to similar amendments made to the Excise Regulations.

The Regulations commenced on 1 January 1998, which is the date of commencement of the relevant provisions of the Customs and Excise Legislation Amendment Act (No. 1) 1997.

ATTACHMENT

CUSTOMS ACT 1901

Customs Regulations (Amendment)

Regulation 3 - replaces existing regulations 128D and 128E with new regulations 128D, 128DA and 128DB.

Identity of Applicant

New Regulation 128D itemises categories of documents which an applicant for rebate may rely upon in establishing identity and address in applying for rebate.

For this purpose, different categories of document are prescribed

1. for individuals, or members of a partnership - subregulation 128D(2),

2. for companies - subregulation 128D(3); and

3. for other organisations - subregulation 128D(4),

The requirement to provide documentary evidence for this purpose is similar to the requirement to establish bonafides when opening a bank account, and the intention of the provision is to limit the opportunity for fraudulent claims on the Scheme by bogus persons or other entities who enjoy existence only on paper.

This requirement applies, only to new applicants under the Scheme. Persons or bodies who had lodged an application before 1 January 1998 are "grandfathered" from this provision by operation of new subregulation 128DB(4).

Records to be given with application

New Regulation 128DA itemises categories of documents which an applicant for rebate must provide with an application for rebate, if so requested.

For this purpose, different classes of document are prescribed for each of the rebate eligibility categories under the Scheme, as follows:

new subregulation 128DA(2): Mining Operations

new subregulation 128DA(3): Generation of electricity at residential premises

new subregulation 128DA(4): Hospital, Nursing Home etc

new subregulation 128DA(S): Agriculture

new subregulation 128DA(6): Fishing Operations

new subregulation 128DA(7): Foresty

Copies of documents sufficient

New Regulation 128DB provides that it is sufficient compliance with new regulations 128D and 128DA to provide a copy of a document which has been witnessed by an "appropriate person" - defined as a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959

New subregulation 128DB(4) is a "grandfather" provision which exempts existing claimants from the requirement to provide evidence of identity and address under new subregulation 128D

 

Overview

The Customs Regulations (Amendment) 1997 No. 422 were introduced to address the need for more stringent controls and accountability within the Diesel Fuel Rebate Scheme (DFRS), particularly in light of the Australian National Audit Office's criticism of the scheme's lack of accountability. Enacted by the Minister for Customs and Consumer Affairs under the authority of the Customs Act 1901, these regulations aim to modernise the DFRS by introducing documentary evidence requirements for identity and eligibility, thereby reducing the risk of fraudulent claims. The regulations also ensure that the scheme's updated requirements align with those in the Excise Regulations. The policy objective is to enhance the integrity and efficiency of the DFRS by introducing a more robust verification process for new applicants, while providing a transitional arrangement for existing claimants.

Scope and Application

The Customs Regulations (Amendment) 1997 No. 422 applies to individuals and entities seeking a diesel fuel rebate under the Diesel Fuel Rebate Scheme (DFRS) as amended by the Customs and Excise Legislation Amendment Act (No. 1) 1997. These regulations establish the documentary evidence required to prove identity and eligibility for the rebate, with specific categories of documents for individuals, companies, and other organisations. The regulations apply nationally across Australia and commenced on 1 January 1998, aligning with the statutory commencement of the Amendment Act. Existing applicants who had lodged claims before 1 January 1998 are exempt from the documentary evidence requirements under a specific grandfather clause. These regulations are complementary to the Excise Regulations and form part of the modernisation measures aimed at improving accountability and preventing fraudulent claims within the DFRS.

Key Provisions

The Customs Regulations (Amendment) 1997 No. 422, under the Customs Act 1901, introduces specific requirements for documentary evidence related to identity and eligibility for applicants seeking a diesel fuel rebate under the Diesel Fuel Rebate Scheme (DFRS). Regulation 128D specifies the types of documents that individuals, companies, and other organisations must present to establish their identity and address when applying for a rebate. These categories are delineated to ensure a comprehensive approach to verifying the applicant's bona fides, akin to the documentary requirements for opening a bank account, thereby aiming to prevent fraudulent claims. Under the new regulatory framework, applicants must provide specific documents that correspond to their category of operation, such as mining, electricity generation, or agriculture, as outlined in Regulation 128DA. For instance, individuals or partnerships must provide documents under subregulation 128D(2), while companies must adhere to subregulation 128D(3). The regulation also includes a grandfather clause in subregulation 128DB(4), exempting existing claimants who had submitted applications before 1 January 1998 from the new documentary requirements. The obligations imposed by these regulations necessitate that new applicants furnish documentary evidence of identity and address, ensuring the integrity and accountability of the DFRS. This includes providing copies of documents witnessed by an appropriate person, as defined under the Statutory Declarations Act 1959. The amendments aim to modernise the DFRS by introducing stringent verification processes, thereby addressing the criticisms highlighted in the Australian National Audit Office (ANAO) report. Failure to comply with these regulations may result in severe consequences. The Customs and Excise Legislation Amendment Act (No. 1) 1997 introduced penalty provisions, including fines and potential sanctions for non-compliance. These penalties underscore the seriousness with which the government regards the prevention of fraudulent claims and the maintenance of the scheme's integrity. The maximum penalties for breaches could include substantial fines and other civil or criminal repercussions, reinforcing the importance of adherence to the stipulated requirements.

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