Overview

The Tariff Concession Instrument No. 0936636 was enacted under the Customs Act 1901, establishing a framework through which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. This legislative instrument was introduced to address the need for a mechanism to grant tariff concessions on specific goods, ensuring that lower rates of customs duty apply to these goods. The Tariff Concession Instrument was made to facilitate the application process for tariff concessions, ensuring that the application meets the core criteria outlined in the Act. The instrument aims to streamline the process for granting tariff concessions, benefiting importers by reducing the duty rates on specific goods, as evidenced by the case of Nil Modi, who applied for a tariff concession on certain computer fans. The enacting body, the Parliament, intended the Customs Act 1901 to provide a flexible and efficient means of adjusting customs duties to support economic interests and trade policies. The policy objective behind this instrument is to promote fair trade practices by allowing for tariff reductions on goods where no substitutable products are produced domestically, thus encouraging competition and potentially lowering costs for consumers. The Tariff Concession Instrument No. 0936636 exemplifies this objective by applying a zero rate of duty on certain computer fans, as determined by the CEO of Customs.

Scope and Application

The Tariff Concession Instrument No. 0936636 under the Customs Act 1901 applies to specific goods, in this instance certain computer fans, by providing a lower rate of customs duty for those goods, which are subject to a Tariff Concession Order (TCO). The application for a TCO must be made by a person to the Chief Executive Officer of Customs (CEO), who will consider the application against the core criteria outlined in the Act, particularly ensuring that no substitutable goods were produced in Australia at the time of application. The geographic reach of the Act is national, as it pertains to customs duties within Australia. The Act excludes certain goods from being subject to a TCO as specified in section 269SJ of the Customs Act 1901. The application process involves public consultation, where any objections to the TCO can be lodged with the CEO, though in this case, no objections were received. The TCO does not retroactively disadvantage any person other than the Commonwealth and does not impose any liabilities on individuals or entities other than the Commonwealth. The TCO's commencement is effective from the date the application was lodged, in this instance, 28 September 2009.

Key Provisions

The main operative sections of this legislation are sections 269F, 269C, 269B, 269E, 269D, and 269P of the Customs Act 1901. 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. Section 269C states that 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. The term "substitutable goods" is defined in section 269B and means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use to which the goods the subject of the application can be put. If the CEO is satisfied that the application meets the core criteria, they 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 applies. The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, a person who wishes to apply for a TCO must do so in accordance with section 269F of the Act. The CEO must then determine whether the application meets the core criteria as outlined in section 269C. If the CEO is satisfied that the application meets the criteria, they must make a written order declaring the goods to which the TCO applies. Additionally, as soon as practicable after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. Breaching the provisions of the Customs Act 1901 may result in offences, penalties, or civil and criminal consequences. The Explanatory Statement does not provide specific details on the maximum penalties for breaches. However, it is worth noting that the Act 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. In terms of civil consequences, 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. Criminal consequences may apply if there is a deliberate attempt to circumvent the provisions of the Act, but these are not detailed in the Explanatory Statement.