Overview

The Customs Act 1901, enacted by the Australian Parliament, provides a framework for the administration of customs and excise. It includes the mechanism for issuing Tariff Concession Orders (TCOs), which allow for reduced customs duties on certain imported goods. This legislative framework was introduced to address the problem of ensuring that certain imported goods are available at competitive prices, which can benefit consumers and businesses in Australia. The Tariff Concession Instrument No. 0840298, made in 2009, applies this scheme to a specific case where Makita Australia sought a concession for certain power tool sets. The policy objective, as outlined in the explanatory statement, is to ensure that the goods in question are not subject to local production, thereby allowing for the tariff concession to be applied effectively. The instrument was created following a formal application process, including an invitation for public submissions, and it came into effect on the date of the application.

Scope and Application

The Tariff Concession Order No. 0840298 under the Customs Act 1901 applies to specific power tool sets for which Makita Australia submitted an application on 19 November 2008. The instrument was made by the Chief Executive Officer of Customs on 27 February 2009, following a determination that no substitutable goods were produced in Australia, satisfying the core criteria outlined in the Act. As a result, the power tool sets are now subject to a reduced customs duty rate of free, whereas the general rate is 5%. The geographic reach of this legislation is national, applying to the entire Commonwealth of Australia. Notably, the Act ensures that the Tariff Concession Order does not disadvantage any person or impose liabilities on anyone in respect of actions taken before the order's effective date, thereby protecting the rights of importers who can now apply for a refund of duty on goods imported since the order's inception. The Act also provides for the possibility of further regulation through subordinate instruments, which can extend or restrict the application of the concessions as needed.

Key Provisions

The Customs Act 1901 (section 269C) sets out the core criteria that must be met for a Tariff Concession Order (TCO) to be granted. Specifically, a TCO can be made if the Chief Executive Officer (CEO) of Customs is satisfied that, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business (section 269D and 269E). If these criteria are met, the CEO must then make a written order (section 269P(3)) that specifies the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies. The obligations imposed by the Customs Act 1901 on the parties involved include the requirement for the CEO to publish a notice in the Gazette (section 269K(1)) as soon as practicable after accepting a TCO application as valid. This notice invites any person who believes there are reasons why the TCO should not be made to submit their views to the CEO. For the TCO in question (TCO No. 0840298), the CEO did not receive any submissions in response to this invitation. The Act also mandates that a TCO is to be taken as coming into force on the day on which the application for the TCO was lodged (section 269S(1)), meaning that TCO No. 0840298 is deemed to have come into force on 19 November 2008. Under the Customs Act 1901, the TCO does not affect the rights of any person (other than the Commonwealth) as at the date of registration so as to disadvantage that person or impose any liabilities on them in respect of anything done or omitted to be done before the date of registration (section 269S(2)). Importers of the goods subject to the TCO will benefit from the ability to apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force (Regulation 126(1)(r)). In terms of consequences for breach, the Customs Act 1901 does not specify offences, penalties, or civil/criminal consequences for failing to comply with the provisions related to TCOs. However, any person who contravenes the Customs Act 1901 or the regulations made under it may be subject to penalties as outlined in other sections of the Act. For instance, penalties for breaches of the Customs Act 1901 can include fines and imprisonment, the specifics of which are detailed in other relevant sections of the Act.