Overview

The Tariff Concession Instrument No. 0933957, enacted in 2009, amends the Customs Act 1901 to provide tariff concessions on certain cleaning sets, specifically those applied for by McPhersons Consumer Products. This legislative instrument was introduced to address the need for reducing customs duties on specific goods that do not have Australian-made alternatives, thereby encouraging their importation and potentially lowering costs for consumers. The instrument is a part of the broader scheme under Part XVA of the Customs Act, which allows the Chief Executive Officer of Customs to grant tariff concession orders (TCOs) for goods not produced in Australia in the ordinary course of business. The policy objective is to provide relief to importers by reducing the customs duty on specified goods, in this case, certain cleaning sets, from the general rate of 5% to free. The instrument was developed following a valid application for a TCO by McPhersons Consumer Products on 11 September 2009, and after no submissions were received opposing the concession, it was granted by the CEO. The TCO came into effect on the date the application was lodged, 11 September 2009, and it does not affect any pre-existing rights or impose liabilities on persons other than the Commonwealth. The rights of importers are positively impacted, allowing them to apply for a refund of duty on goods imported since the effective date of the TCO.

Scope and Application

The Tariff Concession Instrument No. 0933957, under the Customs Act 1901, applies to goods specified in the instrument, namely certain cleaning sets, for which McPhersons Consumer Products applied for a tariff concession order (TCO). This legislation operates within the Commonwealth jurisdiction, and its scope is limited to the customs duty concessions for specific imported goods. The Act mandates that the Chief Executive Officer of Customs (CEO) must consider applications for TCOs if they do not pertain to goods listed in section 269SJ of the Act, which excludes certain goods from eligibility for tariff concessions. For the TCO to be granted, the CEO must determine that no substitutable goods were produced in Australia on the date the application was lodged, according to the criteria outlined in sections 269C, 269D, and 269E of the Act. The geographic reach of this legislation is national, impacting importers and consumers across Australia. The TCO, once granted, provides a lower rate of duty for the specified goods, in this case, a free rate instead of the general 5% duty, and applies retroactively to the date of the application. Importantly, the TCO does not affect any pre-existing rights or impose liabilities on individuals or entities for actions taken before its registration.

Key Provisions

The main operative sections of the Customs Act 1901 relevant to Tariff Concession Orders (TCOs) include sections 269C, 269B, 269D, 269E, and 269F. These sections outline the criteria for determining whether a TCO application meets the core requirements and the process by which a TCO is to be made (sections 269C and 269F). Section 269C stipulates that an application meets the core criteria if, on the day it was lodged, no substitutable goods were produced in Australia in the ordinary course of business (section 269B). The definitions of key terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods' are provided in sections 269D, 269E, and 269P(3) respectively. If the Chief Executive Officer of Customs (CEO) is satisfied that an application meets these criteria, they must make a written order declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995. The obligations imposed by the Customs Act 1901 on the parties involved include the requirement for applicants to ensure that their TCO applications meet the core criteria by demonstrating that no substitutable goods were produced in Australia at the time of application. The CEO must then assess the application against these criteria and, if satisfied, proceed to make a written TCO. Additionally, the CEO is required to publish a notice in the Gazette, inviting submissions from any interested parties on the proposed TCO as soon as practicable after accepting the application as valid (subsection 269K(1)). The Act also stipulates that TCOs come into force on the day the application is lodged (subsection 269S(1)), thereby ensuring that the concession applies retroactively to the date of application. There are no specific offences, penalties, or civil or criminal consequences mentioned in the Act for breach of the TCO provisions. However, the Act ensures that the implementation of a TCO does not disadvantage any person or impose liabilities on them in respect of anything done or omitted before the date of registration (subsection 269S(1)). This means that the rights of importers will be beneficially affected, as they will be able to apply for a refund of duty on goods imported since the day the TCO is taken to have come into force (paragraph 126(1)(r) of the Regulations). The Act also ensures that the TCO does not impose any liabilities on any person, providing a safeguard against potential legal repercussions for those affected by the concession.