EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0805146
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.
Western Kingfish Limited applied for a TCO in respect of certain system farm aquaculture equipment on 02 April 2008.
Instrument
TCO No 0805146 was made on 04 July 2008. It declares that those certain system farm aquaculture equipment 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. 0805146 is taken to have come into force on 02 April 2008.
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 Tariff Concession Instrument No. 0805146, enacted in 2008, provides a concessional rate of customs duty for certain system farm aquaculture equipment under the Customs Act 1901. The instrument was introduced to address the need for tariff concessions on specific goods not produced in Australia, thereby facilitating their importation and use in aquaculture without incurring prohibitive duty rates. The instrument was made by the Chief Executive Officer of Customs under section 269P(3) of the Act, which mandates that a Tariff Concession Order be issued if no substitutable goods are produced in Australia. This legislative measure ensures that the import of these specialised aquaculture equipment is made more cost-effective, thereby promoting industry development and innovation within Australia's aquaculture sector. The policy objective is to support industries by lowering the cost of importing essential goods that are not domestically produced, thus enhancing economic efficiency and competitiveness.
Scope and Application
The Tariff Concession Instrument No. 0805146, made under the Customs Act 1901, applies to the specific goods identified in the instrument, namely certain system farm aquaculture equipment, and the entity that applied for the concession, Western Kingfish Limited. The Act enables the Chief Executive Officer of Customs to grant tariff concessions that reduce or eliminate customs duty on certain goods, provided the application meets the core criteria outlined in the Act. The application of this particular TCO is limited to the goods specified in the instrument and does not extend to any other goods unless expressly stated in a subsequent order. The geographic reach of the Act is national, as it pertains to customs duties across Australia. There are no stated exclusions in this specific instrument, but the Act does provide for exclusions in section 269SJ. The application of the Act can be further extended or restricted through subordinate instruments, such as regulations and orders, which may detail specific conditions or categories of goods.
Key Provisions
The main operative sections of this legislation are sections 269C, 269F, 269K, and 269P of the Customs Act 1901 (the Act). Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of goods. If the application meets the core criteria, as defined in section 269C, the CEO must make a written order that declares the goods subject to the TCO application are to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) applies (section 269P(3)). Subsection 269K(1) requires the CEO to publish a notice in the Gazette as soon as practicable after accepting a TCO application as a valid application. This notice must include an invitation for any person to lodge a submission with the CEO if they consider there are reasons why the TCO should not be made.
The obligations and requirements imposed by the Act include the application process for a TCO, the assessment of the application against the core criteria, and the publication process. When a person applies for a TCO (section 269F), the CEO must determine if the application pertains to goods specified in section 269SJ, which cannot be subject to a TCO. If the goods are not listed, the CEO must assess whether the application meets the core criteria (section 269C). If the application meets these criteria, the CEO must make a TCO (section 269P(3)) and publish a notice in the Gazette (subsection 269K(1)), inviting submissions from interested parties. The CEO must consider any submissions received before finalising the TCO.
The Act also outlines the consequences for non-compliance with its provisions. While the explanatory statement does not explicitly state penalties for breaches, it is reasonable to infer that any failure to comply with the requirements of the Act, including the proper application and assessment processes, could lead to legal consequences. The specifics of these consequences would depend on the broader legal framework governing the administration and enforcement of the Customs Act 1901. Given the nature of customs regulations, non-compliance could potentially result in fines, legal action, or other enforcement measures as prescribed by the relevant laws.