Overview

The Tariff Concession Instrument No. 0618418, enacted in 2007, amends the Customs Act 1901 to provide tariff concessions on certain train unloaders. This instrument was introduced to address the need for reduced customs duty on specific goods where there are no substitutable goods produced in Australia. The enacting body responsible for this instrument is the Chief Executive Officer of Customs, who must ensure that applications for tariff concessions meet the core criteria as outlined in the Customs Act. The policy objective behind this legislation is to facilitate the import of goods that are essential and have no local alternatives, thereby supporting trade and industry efficiency. This instrument operates under the Customs Act 1901, where section 269F allows for applications to the CEO for tariff concessions if certain conditions are met. Specifically, section 269C stipulates that a tariff concession order is permissible if no substitutable goods are produced in Australia on the day the application is lodged. The CEO must then publish a notice inviting submissions against the application, as mandated by section 269K(1). In this case, no submissions were received, allowing the CEO to proceed with the tariff concession. The concession came into force on the date the application was lodged, as per section 269S(1) of the Act. This ensures that importers of the specified goods can apply for a refund of duty from the date the concession is deemed to have taken effect, without any retroactive liabilities imposed on them.

Scope and Application

The Tariff Concession Order No. 0618418 made under section 269F of the Customs Act 1901 applies specifically to certain train unloaders, as applied for by Fortescue Metals on 9 November 2006. The Act provides a mechanism through which the Chief Executive Officer of Customs can grant tariff concessions on goods, provided they meet specific criteria, notably that no substitutable goods are produced in Australia in the ordinary course of business. The TCO applies to the named goods from the date of the application, 9 November 2006, and sets a preferential duty rate of free, as opposed to the general rate of 5%. The application of the TCO is limited to the goods specified and does not extend to any other goods or industries, ensuring targeted tariff relief. The scope of the TCO is limited to the Commonwealth jurisdiction under the Customs Act 1901, with no submissions received against the order in the Gazette as per subsection 269K(1) of the Act. The TCO does not impose any new liabilities on any person and does not affect the rights of any person as at the date of registration. However, it does confer benefits on importers who can apply for a refund of duty on goods imported since the TCO came into force. The application of the TCO can be further defined or extended through subordinate instruments, though this specific TCO does not currently include such provisions.

Key Provisions

The key operative sections of Tariff Concession Instrument No. 0618418 are sections 269C, 269F, 269P, and 269SJ of the Customs Act 1901 (section 269C). Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a Tariff Concession Order (TCO) in respect of goods. If the application meets the core criteria specified in section 269C, the CEO is required to make a written order (section 269P(3)). Section 269SJ sets out goods that cannot be the subject of a TCO. The TCO in question, No. 0618418, was made on 30 January 2007, and it declares that certain train unloaders are subject to a 5% duty rate as per item 50 of Schedule 4 to the Customs Tariff Act 1995, with the rate of duty for these goods being free. The Act imposes several obligations and requirements on the parties it governs. Firstly, the CEO must decide whether a TCO application meets the core criteria. This involves verifying that no substitutable goods were produced in Australia on the day the application was lodged. Secondly, if the CEO is satisfied that the application meets the core criteria, they must publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made (section 269K(1)). Lastly, the CEO must consider any submissions received and decide whether to make the TCO. In this case, no submissions were received in response to the notice published. There are potential civil and criminal consequences for breach of the Customs Act 1901. While the explanatory statement does not specify exact penalties, breaches of the Act can generally result in fines and imprisonment. For example, under section 236, contravening a provision of the Act or regulations can result in a fine of up to 10,000 penalty units or imprisonment for up to five years, or both. The specific penalties would depend on the nature and severity of the breach. The Tariff Concession Instrument No. 0618418 does not affect the rights of a person (other than the Commonwealth) as at the date of registration to disadvantage that person or impose liabilities in respect of anything done or omitted to be done before the date of registration (subsection 269S(3)). This means that 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. Importantly, the TCO does not impose any liabilities on any person.