EXPLANATORY STATEMENT
Instrument of Revocation No. 2 (2011)
Customs Act 1901
Section 271 of the Customs Act 1901 (the Act) provides, in part, that where an item of a Customs Tariff is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law, the Chief Executive Officer of Customs may make by-laws for the purposes of that item. A Customs Tariff is defined in section 4 of the Act to mean an Act imposing duties of customs, that is the Customs Tariff Act 1995 (the Customs Tariff Act).
Section 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by‑laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Item 73 of Schedule 4 to the Customs Tariff Act provided a duty concession for certain clothing & finished textiles qualifying for the Product Diversification Scheme (PDS).
Item 73 was end-dated by the Customs Tariff Amendment Act (No.1) 2010 on 28 June 2010. This Act amended the end-date of item 73 from 30 June 2017 to 30 June 2011.
By-law No.0618808 was made for the purposes of item 73. This by-law prescribes qualifying goods being certain clothing &finished textiles defined in the PDS.
By-Law 0618808 is now redundant as a result of item 73 being end dated on 30 June 2011.
Instrument
CEO Instrument of Revocation No. 2 (2011) revokes Customs By-law No.0618808.
Consultation
No consultation was undertaken in relation to Instrument of Revocation No. 2 (2011) as it is of a minor and machinery nature and does not alter existing arrangements.
Commencement
CEO instrument of Revocation No. 2 (2011) takes effect on the day after it is registered on the Federal Register of Legislative Instruments
Overview
The Customs Act 1901 was enacted to provide a comprehensive framework for the regulation of customs and excise duties in Australia. One of its provisions, section 271, allows the Chief Executive Officer of Customs to make by-laws for the application of certain items within the Customs Tariff, which is defined by the Customs Tariff Act 1995. The Customs Tariff Amendment Act (No.1) 2010 modified the end-date of item 73 from 30 June 2017 to 30 June 2011, resulting in the redundancy of Customs By-law No. 0618808, which prescribed qualifying goods for the Product Diversification Scheme. Consequently, the CEO Instrument of Revocation No. 2 (2011) was introduced to revoke this by-law, aligning with the changes made by the amendment act. This instrument was not subject to consultation as it pertains to a minor adjustment of a regulatory nature and does not affect existing arrangements. The revocation instrument took effect the day after its registration on the Federal Register of Legislative Instruments.
Scope and Application
The Customs Act 1901 provides the framework within which the Australian Customs Service operates, including the authority to make by-laws for the purposes of applying items of the Customs Tariff. Section 271 of the Act specifically empowers the Chief Executive Officer of Customs to create such by-laws to enforce or facilitate the application of tariff items. The Customs Tariff Act 1995 defines what constitutes a Customs Tariff, which in turn informs the scope of duties and concessions that can be legislated. The Act applies to individuals and entities involved in the importation or exportation of goods subject to customs duties, including importers, exporters, and customs brokers. The geographic reach of the Act is national, applying across Australia, as the Customs Service is a federal agency. However, the Act can also extend its application through subordinate instruments, such as by-laws and regulations, to further specify the details of customs duties and exemptions. Exclusions or exemptions from the Act are typically outlined in specific items of the Customs Tariff or subsequent legislative amendments, but they do not alter the overarching jurisdiction of the Customs Act. The revocation of by-law No. 0618808 by CEO Instrument of Revocation No. 2 (2011) exemplifies how subordinate instruments can modify the application of the Act, in this case by nullifying a by-law that had prescribed qualifying goods under a now-defunct duty concession.
Key Provisions
The main operative sections of the Customs Act 1901, specifically section 271, empower the Chief Executive Officer of Customs to make by-laws for items in the Customs Tariff, such as by-law No. 0618808 for item 73 of the Customs Tariff Act 1995. These by-laws define the specific goods qualifying for particular concessions, such as those under the Product Diversification Scheme (PDS) for certain clothing and finished textiles. The Act also provides, under section 33(3) of the Acts Interpretation Act 1901, that powers to create instruments include powers to repeal, rescind, revoke, amend, or vary them, which is the basis for revoking by-law No. 0618808.
The Customs Act 1901 and the Customs Tariff Act 1995 impose obligations on the Chief Executive Officer of Customs to create and maintain by-laws that reflect the current duties and concessions applicable to various goods. These obligations ensure that the by-laws are up-to-date and relevant, reflecting any changes in policy or law. The requirement to revoke by-law No. 0618808 due to the end-dating of item 73 on 30 June 2011 is a direct result of these obligations. The Chief Executive Officer must ensure that all by-laws remain consistent with the current Customs Tariff and any legislative amendments.
The revocation of by-law No. 0618808 is a minor and machinery change, meaning it does not alter existing arrangements or impose new obligations on the parties it governs. Instead, it aligns the legal framework with the current state of the law, ensuring that there are no redundant or outdated by-laws in effect. This revocation ensures that the Customs Tariff operates smoothly and that all relevant parties are aware of the current legal requirements.
Breaching the provisions of the Customs Act 1901 can result in both civil and criminal consequences. The Act includes various offences related to the importation and exportation of goods, including fraudulent activities and non-compliance with by-laws. Penalties for breaches can be substantial, with maximum penalties varying depending on the nature and severity of the offence. For example, knowingly making a false statement in a Customs declaration can result in fines up to $11,000 or imprisonment for up to 2 years, or both, under section 144 of the Act. Similarly, contravening a by-law can result in fines up to $22,000 for individuals and $110,000 for corporations, as specified in section 271A of the Act. These penalties underscore the importance of compliance with the Act and its by-laws.