Overview

The Customs Act 1901 was enacted by the Commonwealth Parliament to provide for the regulation of customs and excise duties. The Act establishes a framework for the administration of customs and excise, including provisions for the imposition and collection of duties. The introduction of Part XVA of the Customs Act 1901, which allows for the creation of Tariff Concession Orders (TCOs), addresses the gap in the ability to provide tariff relief for specific goods under certain conditions. This mechanism was introduced to provide flexibility in tariff application, ensuring that imported goods that do not have substitutable Australian-produced alternatives can benefit from lower duty rates, thereby potentially enhancing trade and competition. The explanatory statement for Tariff Concession Instrument No. 0618829 clarifies that this specific instrument, which was registered on 02 February 2007, applies to certain garbage compactors and was made following an application by Hagemeyer Brands Australia Pty Ltd. The instrument sets the duty rate for these compactors at free, down from the general rate of 5%, recognising that no substitutable goods were produced in Australia at the time of the application.

Scope and Application

The Tariff Concession Instrument No. 0618829, made under the Customs Act 1901, pertains to the application of tariff concession orders (TCOs) for certain goods, specifically garbage compactors, and is applicable to individuals or entities seeking to import these goods into Australia. The Act applies to the CEO of Customs, who is responsible for deciding whether to grant a TCO based on specific criteria, including the absence of substitutable goods produced in Australia. The TCO affects the importation of the specified garbage compactors by providing a lower rate of customs duty, in this case, making it duty-free. The geographic scope of the Act is national, as it is an instrument of the Commonwealth of Australia, thereby extending its reach across the entire country. There are no exclusions or exemptions explicitly stated in the text, and it does not impose any liabilities on persons other than the Commonwealth. The application of the Act may be extended or restricted through subordinate instruments, although such details are not elaborated in the provided text.

Key Provisions

The main operative sections of the Customs Act 1901 (the Act) in relation to Tariff Concession Orders (TCOs) are sections 269C, 269F, 269K, 269P, 269S, and 269SJ. Section 269F allows a person to apply to the Chief Executive Officer of Customs (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, which sets out those goods that cannot be subject to a TCO, the CEO must then decide whether the application meets the core criteria in section 269C. If the application meets the core criteria, the CEO must make a written order declaring that the goods are to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) applies (section 269P(3)). Once a TCO is made, it is taken to have come into force on the day on which the application for the TCO was lodged (subsection 269S(1)). The CEO must publish a notice in the Gazette inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission (subsection 269K(1)). The obligations and requirements imposed by the Act on the parties or entities it governs include ensuring that any TCO application made is not in respect of goods specified in section 269SJ of the Act. If the CEO is satisfied that the application meets the core criteria in section 269C, 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 Tariff applies. The CEO must also publish a notice in the Gazette inviting submissions regarding the TCO application. Importers of the goods subject to the TCO must ensure that they comply with any requirements for a refund of duty under the Regulations. Any breaches of the provisions of the Customs Act 1901 may result in civil or criminal penalties. Section 282 of the Act provides that a person who contravenes the Act, or an order or direction made under the Act, is liable to a penalty of up to 10,000 penalty units for a corporation and up to 1,000 penalty units for an individual. Section 283 of the Act provides that a person who contravenes the Act, or an order or direction made under the Act, may be guilty of an offence and liable to imprisonment for up to two years for an individual and up to five years for a corporation. The maximum penalties are subject to change based on the current penalty unit amount, which is set out in the Commonwealth Penalties (Schedule) Determination 2019. The Tariff Concession Instrument No. 0618829 was made in relation to certain garbage compactors, which were declared to be subject to item 50 of Schedule 4 to the Tariff. The general rate of duty on these goods is 5%, but the rate of duty for the goods subject to the TCO is free. The CEO was satisfied that no substitutable goods were produced in Australia, and therefore the core criteria were met. The TCO was published in the Gazette, and no submissions were received. The TCO is taken to have come into force on 09 November 2006, and it 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. Importers of the goods subject to the TCO 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.