EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0929452
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.
Port Hedland Port Authority applied for a TCO in respect of certain automated robotic mooring system on 12 August 2009.
Instrument
TCO No 0929452 was made on 30 October 2009. It declares that those certain automated robotic mooring system 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. 0929452 is taken to have come into force on 12 August 2009.
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 Customs Act 1901 was enacted by the Parliament of Australia to regulate the importation and exportation of goods, including the imposition and collection of customs duties. The Act provides a framework for granting tariff concessions through Tariff Concession Orders (TCOs) to support specific industries or to address particular economic circumstances. Instrument No. 0929452, issued under the authority of the Customs Act 1901, provides a tariff concession for certain automated robotic mooring systems, recognising that no substitutable goods were produced in Australia. This concession was introduced to benefit the Port Hedland Port Authority by allowing them to import these systems duty-free, thus potentially enhancing the competitiveness and efficiency of their port operations. The instrument came into effect on the date the application was lodged, 12 August 2009, and no submissions were received opposing the concession. The policy objective underpinning this concession is to facilitate the importation of goods that are not produced domestically, thereby supporting economic activities and infrastructure improvements.
Scope and Application
The Tariff Concession Instrument No. 0929452, pursuant to the Customs Act 1901, applies to certain automated robotic mooring systems and is designed to provide tariff concessions for these goods. The Act applies to the Chief Executive Officer of Customs (CEO) who is responsible for making Tariff Concession Orders (TCOs) under section 269F, provided the goods in question are not specified in section 269SJ, which lists those goods that cannot be subject to a TCO. The core criteria for a TCO, as outlined in section 269C, require that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. This instrument came into force on 12 August 2009, the date the application was made by Port Hedland Port Authority. The geographic reach of this legislation is national, as it pertains to the federal customs laws of Australia. There are no stated exclusions or exemptions within this particular instrument, and it does not impose any liabilities on any person. The TCO provides a benefit to importers by allowing them to apply for a refund of duty on goods imported since the effective date of the TCO, under paragraph 126(1)(r) of the Regulations.
Key Provisions
The primary operative sections of the Customs Act 1901, as relevant to Tariff Concession Orders (TCOs), are sections 269C, 269F, 269K, and 269S. Section 269F allows for the application of a TCO by a person to the Chief Executive Officer of Customs (CEO) if the goods in question are not specified in section 269SJ. Section 269C sets out the core criteria that an application must meet, which includes the requirement that no substitutable goods are produced in Australia on the day the application is lodged (subsection 269C(1)). Section 269K requires the CEO to publish a notice in the Gazette inviting any interested parties to submit objections if they believe the TCO should not be made. Section 269S provides that a TCO comes into force on the day the application is lodged.
The Act imposes specific obligations and requirements on both the applicant and the CEO. The applicant must ensure that the goods in question are not listed in section 269SJ and that the application meets the core criteria, such as the absence of substitutable goods produced in Australia. The CEO is obligated to assess the application against the core criteria, publish a notice in the Gazette if the application is accepted as valid, and consider any submissions received before making the TCO. If the CEO determines that the application meets the core criteria, they must issue a written order specifying the goods and the applicable tariff concession.
The Act outlines several consequences for non-compliance or breaches. Firstly, if a TCO is made erroneously, there could be financial repercussions for the government due to lost customs revenue. Additionally, any party that knowingly or negligently misrepresents information in their application could face civil or criminal penalties under other sections of the Customs Act or related legislation. However, the explanatory statement does not specify maximum penalties for breaches of the TCO provisions themselves. The broader implications for incorrect TCOs might include the need for corrective actions or legal challenges to rectify the situation.