EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0506244
Customs Act 1901
Background
Part XVA of the Customs Act 1901 (the Act) sets out a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (the CEO). A lower rate of customs duty applies to goods that are the subject of a TCO.
Under section 269F of the Act, a person may apply to the CEO for a TCO in respect of goods. If the CEO is satisfied that the application is not in respect of goods specified in section 269SJ of the Act, which sets out those goods that cannot be subject to a TCO, the CEO must decide whether the application meets the core criteria.
Section 269C of the Act provides that a TCO application meets the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269B of the Act provides that ‘goods produced in Australia’ has the meaning given by section 269D, ‘ordinary course of business’ has the meaning given by section 269E and ‘substitutable goods’ in respect of goods the subject of a TCO application, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application can be put.
Subsection 269P(3) of the Act provides that if the CEO is satisfied that a TCO application meets the core criteria, the CEO must make a written order (a TCO) declaring that the goods the subject of the TCO application are goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) specified in the order applies.
Warner Bros Movie World Holdings applied for a TCO in respect of certain roller coaster ride parts on 25 May 2005.
Instrument
TCO No 0506244 was made on 07 October 2005. It declares that those certain roller coaster ride parts are goods to which item 50 of Schedule 4 to the Tariff applies since the CEO was satisfied that no substitutable goods were produced in Australia. The general rate of duty on these goods is 5%. The rate of duty for the goods subject to the TCO is free.
Consultation
Subsection 269K(1) of the Act provides in part that as soon as practicable after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette which includes an invitation to any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. The CEO did not receive any submissions in response to this invitation.
Commencement
Subsection 269S(1) relevantly provides that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged. TCO No. 0506244 is taken to have come into force on 25 May 2005.
The TCO does not affect the rights of a person (other than the Commonwealth) as at the date of registration so as to disadvantage that person or impose liabilities on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of registration. The rights of importers will be beneficially affected. Under paragraph 126(1)(r) of the Regulations, importers of such goods will be able to apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force. The TCO does not impose any liabilities on any person.
Overview
The Customs Act 1901 was enacted to provide for the regulation of imports and exports in Australia. The Tariff Concession Instrument No. 0506244 was introduced to address the issue of applying tariff concessions for specific goods, particularly in cases where no substitutable goods are produced domestically. This legislative instrument, made by the Chief Executive Officer of Customs, grants tariff concessions to Warner Bros Movie World Holdings for certain roller coaster ride parts, reducing the customs duty from the general rate of 5% to free. The enactment was aimed at facilitating the importation of these specific goods without imposing any disadvantage or liability on other parties, and it was introduced without any submissions against it, indicating a lack of opposition to the tariff concession. The tariff concession order came into effect on the date the application was lodged, 25 May 2005, and it allows for the potential refund of duties paid on these goods imported since that date.
Scope and Application
The Tariff Concession Instrument No. 0506244, made under the Customs Act 1901, applies to specific roller coaster ride parts that Warner Bros Movie World Holdings applied for, aiming to provide a lower rate of customs duty on these goods. This instrument is applicable to the particular entities that import these goods and the industry involved in the importation and production of such items. The scope of the Act is to facilitate tariff concessions for goods that are not produced in Australia in the ordinary course of business, thereby ensuring that the application meets the core criteria set out in the Customs Act. The geographic reach of the Act is national, operating under the authority of the Commonwealth. The Act allows for the application of a tariff concession order by the Chief Executive Officer of Customs, provided the application adheres to the exclusions and criteria outlined in the Act. Any subordinate instruments or regulations that extend or restrict the application of this Act would need to be in line with the Customs Act 1901 and the Customs Tariff Act 1995.
Key Provisions
The primary sections of Tariff Concession Instrument No. 0506244 (section 269C, 269B, 269E, 269F, and 269P) establish the framework for the making of Tariff Concession Orders (TCOs) under the Customs Act 1901. These sections outline the criteria that an application for a TCO must meet, the process by which the Chief Executive Officer of Customs (CEO) assesses these criteria, and the conditions under which a TCO may be issued. Specifically, section 269F allows for the application of a TCO, while sections 269C and 269P detail the criteria and the process of making the TCO if the CEO is satisfied that no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged.
The obligations imposed on parties by this legislation include the requirement for applicants to ensure their applications meet the specified criteria (section 269C). The CEO, on the other hand, must make a written order (TCO) if satisfied that the application meets these criteria (section 269P). Additionally, the CEO is mandated to publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made (section 269K). This requirement ensures transparency and provides an opportunity for interested parties to voice their concerns.
In terms of consequences for non-compliance, the Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches of the TCO provisions. However, the general principles of administrative law and the specific terms of the TCO itself would apply. Any failure to adhere to the terms of a TCO or to comply with the requirements of the Customs Act 1901 could potentially lead to administrative or judicial review, with the possibility of the TCO being revoked or modified if found to be improperly issued. This underscores the importance of careful application and adherence to the legislative requirements outlined in the Customs Act 1901.