EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0510584
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.
Ravensthorpe Nickel Operations Pty Ltd applied for a TCO in respect of a certain ore stacking and reclaiming plant on 11 August 2005.
Instrument
TCO No 0510584 was made on 04 November 2005. It declares that those certain ore stacking and reclaiming plants 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. 0510584 is taken to have come into force on 11 August 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, enacted by the Parliament of Australia, addresses the need for tariff concessions to facilitate trade and economic growth by providing reduced customs duties on certain goods. Specifically, Part XVA of the Act allows the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCOs) that apply lower rates of customs duty to specified goods, provided the core criteria are met. These criteria include the absence of substitutable goods produced in Australia. This legislative framework aims to promote competitive trade practices by ensuring that Australian industries are not unduly disadvantaged by higher duties on imported goods that have no local equivalent. The Tariff Concession Instrument No. 0510584, made under this Act, was introduced to provide tariff relief for certain ore stacking and reclaiming plants, further exemplifying the Act's objective to support specific sectors by reducing their import costs.
Scope and Application
The Customs Act 1901, specifically as amended by Tariff Concession Instrument No. 0510584, pertains to the application and administration of Tariff Concession Orders (TCOs) for particular goods. These orders are applicable to entities or individuals who import specified goods and seek a reduced rate of customs duty, as outlined in the Customs Tariff Act 1995. The instrument applies to the importation of certain ore stacking and reclaiming plants, and the scope of its application is limited to the goods defined in the instrument. It operates nationally across Australia, as it is a Commonwealth instrument. The Act does not impose any new liabilities or disadvantage existing rights of individuals or entities other than the Commonwealth, and it allows for the benefit of reduced duty rates to importers of the specified goods. The instrument excludes any goods specified in section 269SJ of the Customs Act 1901, which cannot be subject to a TCO. The Act also allows for the scope and application to be further defined or extended through subordinate instruments, although no such instruments are indicated in the explanatory statement.
Key Provisions
The main operative sections of this legislation, specifically the Tariff Concession Instrument No. 0510584, are contained within sections 269C, 269F, 269P, and 269S of the Customs Act 1901. Section 269F allows for an application to be made to the Chief Executive Officer of Customs (the CEO) for a Tariff Concession Order (TCO). If the CEO is satisfied that the application meets the core criteria, set out in section 269C, and is not in respect of goods specified in section 269SJ, the CEO must make a written order that declares the goods to which the TCO applies. This declaration is subject to the goods not being substitutable by any goods produced in Australia, as defined in section 269D. If the CEO is satisfied that the application meets these criteria, then under section 269P(3), they must make a TCO. This order, in turn, declares that the specified goods are subject to the prescribed item of Schedule 4 to the Customs Tariff Act 1995, effectively applying a free rate of duty to them.
The obligations and requirements imposed by this legislation on the parties governed by it are primarily on the CEO and the applicant. The CEO is required to assess the validity of the application and to determine if the core criteria set out in section 269C have been met. This involves verifying that no substitutable goods are produced in Australia and ensuring that the application is not in respect of goods specified in section 269SJ. The applicant must ensure that their application is made in accordance with the requirements of section 269F, which includes providing all necessary information and evidence to support their request for a TCO. Furthermore, the CEO must, as soon as practicable after accepting a TCO application, publish a notice in the Gazette inviting any person who considers there are reasons why the TCO should not be made to lodge a submission with the CEO.
There are no specific offences, penalties, or civil/criminal consequences outlined in the text for breaches of this legislation. However, the operation of the TCO itself, and the obligations to apply and assess applications, are governed by the overarching framework of the Customs Act 1901, which includes provisions for enforcement and penalties for breaches of the Act more broadly. For instance, the CEO has the authority to impose fines and other penalties for breaches of the Act, including those related to the improper application or administration of TCOs. The exact penalties would depend on the nature and severity of the breach, as well as any relevant regulations or subsidiary legislation that may apply.