EXPLANATORY STATEMENT
Instrument of Revocation No. 2 (2013)
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
On 1 March 2013 the Customs Tariff Amendment (Schedule 4) Act 2012 commenced. This legislation repealed the previous Schedule 4 of the Customs Tariff Act and replaced it with a new Schedule 4. As part of this process, new by-laws were required for all items that provide for goods to be prescribed by by-law.
Item 17 of Schedule 4 provides that goods which have been exported from Australia and returned in an unaltered condition are dutiable at the rate of “Free”. However, the current by-law attached to item 17, By-law No. 1300533, failed to specify all the conditions of use of item 17 – specifically the requirement that eligible goods be either Australian made or imported goods on which duty has been paid or is payable. As a result, the current item 17 By-law No.1300533 will be revoked and replaced by new By-law No. 0176871 that clearly sets out all conditions of use.
Instrument
Instrument of Revocation No. 2 (2013) revokes By-law No. 1300533.
Consultation
No consultation was undertaken in relation to the revocation of By-law No. 1300533.
Human Rights Implications
This by-law does not engage, impact on or limit in any way the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Commencement
Instrument of Revocation No. 2 (2013) takes effect from 1 July 2013.
Overview
Instrument of Revocation No. 2 (2013) is an instrument under the Customs Act 1901 that revokes By-law No. 1300533 and introduces a new by-law, No. 0176871, to address issues arising from the Customs Tariff Amendment (Schedule 4) Act 2012. The Customs Tariff Amendment Act, which commenced on 1 March 2013, necessitated the revision of existing by-laws to align with the new Schedule 4 of the Customs Tariff Act. The previous by-law, No. 1300533, failed to fully specify the conditions for applying duty-free treatment to goods exported from Australia and returned unaltered, particularly concerning the eligibility criteria of Australian-made goods or those on which duty has already been paid or is payable. This revocation and replacement aim to rectify the shortcomings of the outdated by-law and ensure compliance with the new tariff schedule.
Scope and Application
The Instrument of Revocation No. 2 (2013) pertains to the Customs Act 1901 and involves the revocation of By-law No. 1300533, which was related to the dutiable status of goods exported from Australia and subsequently returned in an unaltered condition. This instrument applies to the Chief Executive Officer of Customs and all entities or individuals involved in the importation and exportation of goods subject to the Customs Tariff. The by-law's revocation and replacement are a direct consequence of the Customs Tariff Amendment (Schedule 4) Act 2012, which updated the Customs Tariff Act 1995 and necessitated new by-laws to address the specified conditions of duty-free status for returned goods. The new by-law, No. 0176871, which will take effect from 1 July 2013, ensures that the eligibility criteria for duty-free treatment are explicitly defined, including the requirement for the goods to be either Australian made or imported goods on which duty has been paid or is payable. The revocation instrument has a national jurisdictional reach, aligning with the Commonwealth's legislative authority over customs duties as outlined in the Customs Act 1901. There were no human rights implications identified in the revocation process, and no consultation was undertaken regarding the change.
Key Provisions
The key operative sections of the Instrument of Revocation No. 2 (2013) include the revocation of By-law No. 1300533 and the introduction of new By-law No. 0176871 under Section 271 of the Customs Act 1901 (the Act). This instrument is necessitated by the commencement of the Customs Tariff Amendment (Schedule 4) Act 2012, which replaced the previous Schedule 4 of the Customs Tariff Act. Specifically, Section 4 of the Act defines a Customs Tariff as an Act imposing duties of customs, which is further elaborated in the Customs Tariff Act 1995. The Act mandates that the Chief Executive Officer of Customs may make by-laws for the purposes of any item in the Customs Tariff, provided that the item applies to goods or a class or kind of goods as prescribed by by-law.
The Act imposes specific obligations on the Chief Executive Officer of Customs to ensure that any by-laws made under Section 271 of the Customs Act are in accordance with the Customs Tariff. This includes ensuring that the new by-laws clearly specify all conditions of use for items in the Customs Tariff, such as the eligibility criteria for goods that have been exported and returned in an unaltered condition to be dutiable at the rate of “Free.” The obligation extends to replacing any by-laws that fail to meet these conditions, as exemplified by the revocation of By-law No. 1300533 and the issuance of By-law No. 0176871. This ensures that all by-laws are compliant with the new legislative requirements and accurately reflect the conditions for dutiable goods.
In terms of consequences for breach, the Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance with the new by-laws. However, it is implied that failure to adhere to the by-laws could result in legal ramifications, such as fines or other penalties under the Customs Act. The exact penalties would be determined by the relevant provisions within the Customs Act or other applicable legislation. The revocation of By-law No. 1300533 and the introduction of By-law No. 0176871 is intended to ensure that the conditions for dutiable goods are clearly defined and enforced, thereby preventing any potential breaches.