Overview

The Tariff Concession Instrument No. 0831266, made in 2008 under the Customs Act 1901, was introduced to address the need for tariff concessions for specific goods that are not produced in Australia and for which a lower rate of customs duty would encourage importation and benefit consumers. This instrument allows the Chief Executive Officer of Customs to grant tariff concessions in cases where substitutable goods are not produced domestically, thereby facilitating the importation of these goods at a reduced or free rate of duty. The instrument was enacted by the relevant authority within the Australian government to streamline the process of applying for and receiving tariff concessions, ensuring that the application process is transparent and allows for public input before a final decision is made. The objective of this instrument is to support economic efficiency and consumer benefit by allowing the importation of goods that are not locally produced, thereby enhancing competition and choice in the market. The process involves publishing notices in the Gazette to invite public submissions, as mandated by the Customs Act, and ensuring that the rights of existing importers are protected. The Tariff Concession Order No. 0831266, which became effective on the date of application, specifies the particular hand held global positioning systems that are subject to a tariff concession, reducing the duty from 5% to free, and enabling eligible importers to apply for duty refunds.

Scope and Application

The Customs Act 1901, through Tariff Concession Orders (TCOs) under Part XVA, provides a mechanism by which certain goods can receive reduced or free customs duty rates. This process applies to entities and individuals who seek tariff concessions for specific goods, ensuring that these goods are not being substituted by Australian-produced equivalents. The Chief Executive Officer of Customs determines the eligibility of a TCO application based on whether the goods are being produced in Australia in the ordinary course of business. If no such substitutable goods are produced domestically, the CEO may grant the concession, as was the case with Gamin International's application for certain hand-held global positioning systems. This legislation operates nationally and applies to all goods that meet the specified criteria, irrespective of the state or territory in which they are imported. However, certain goods, as outlined in section 269SJ of the Act, are ineligible for tariff concessions. The scope of application may be further defined through subordinate instruments, which can provide additional detail or exceptions to the general provisions of the Act.

Key Provisions

The main operative sections of Tariff Concession Instrument No. 0831266 under the Customs Act 1901 (the Act) involve the establishment and conditions for Tariff Concession Orders (TCOs). Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO for certain goods. If the CEO is satisfied that the application is not in respect of goods specified in section 269SJ, which sets out goods that cannot be subject to a TCO, the CEO must determine whether the application meets the core criteria in section 269C. According to section 269C, a TCO application meets the core criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. If the CEO is satisfied, they must make a written order 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 applies (subsection 269P(3)). In this case, TCO No. 0831266 was made on 5 December 2008, declaring that certain hand held global positioning systems are goods to which item 50 of Schedule 4 applies. The obligations and requirements imposed by the Act on the parties involved are primarily focused on the application and approval processes for TCOs. The CEO of Customs has the responsibility to assess applications against the core criteria and determine whether a TCO should be granted. The applicant must ensure their application is not in respect of goods specified in section 269SJ and must provide all necessary information to meet the core criteria outlined in section 269C. Once a TCO is made, the CEO is required to 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 (subsection 269K(1)). The CEO must then consider any submissions received before making a final decision. In this instance, no submissions were received in response to the notice for TCO No. 0831266. The Act also includes provisions for offences, penalties, and consequences for breaches. However, the explanatory statement does not specify any particular offences, penalties, or consequences related to the creation or operation of TCOs. Generally, breaches of the Customs Act 1901 can result in civil or criminal penalties, depending on the nature and severity of the breach. Civil penalties can include fines up to $22,200 for individuals and $111,000 for corporations, while criminal penalties can include fines and imprisonment. However, these general penalties apply to breaches of the Customs Act as a whole and are not specifically outlined for TCOs in the explanatory statement. The TCO itself does not impose any liabilities on any person and does not affect the rights of a person (other than the Commonwealth) as at the date of registration.