EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 10/2009
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 and revoked 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 sections 269C and 269P of the Act, a TCO will be made if the application for the TCO meets the core criteria, that is, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business.
Subsection 269SD(2) of the Act provides that if the CEO is satisfied that:
− because of an amendment of the Customs Tariff Act 1995; or
− having regard to a decision of a court of the Administrative Appeals Tribunal; or
− having regard to written advice on the matter given by an officer of Customs;
the tariff classification that is stated in a TCO to apply to the goods the subject of the TCO has not, with effect from a particular day, applied to those goods, the CEO must:
− make an order revoking the TCO with effect from that day; and
− make a new TCO in respect of the goods with effect from the revocation.
Instrument
Tariff Concessions Revocation Instrument No 10/2009 was made on 1 July 2008. It revokes TCO 0804091 and makes TCO 0814479. The tariff classification has been changed from 8479.89.90 to 8479.82.00 because of a tariff classification change.
Consultation
No consultation was undertaken since the change is minor or machinery nature and does not substantially alter existing arrangements.
Commencement
Subsection 269SD(2) provides that the order revoking the TCO has effect from the day on which the tariff classification did not apply to the goods. Further the new TCO has effect from the revocation. Subsection 269SD(4) provides that the day may be the day on which the old TCO came into force or a later day.
Subsection 269SD(6) provides that section 269SD has effect despite section 12 of the Legislative Instruments Act 2003. Section 12 prohibits the making of certain retrospective legislative instruments.
Tariff Concessions Revocation Instrument No. 10/2009 revoked 0804091 and made new TCO 0814479 on 1 July 2008, with the Revocation date of effect as from 17 March 2008
Overview
The Customs Act 1901, enacted by the Australian Parliament, established a framework for the administration of customs duties and tariffs, including the provision for Tariff Concession Orders (TCOs). These orders allow for reduced customs duty rates on certain goods under specific conditions. The Tariff Concessions Revocation Instrument 10/2009 was introduced to address the issue of changes in tariff classifications that can occur due to amendments in the Customs Tariff Act 1995, decisions from courts or tribunals, or advice from customs officers. This instrument allows the Chief Executive Officer of Customs to revoke and replace existing TCOs to ensure continued accuracy and compliance with current tariff classifications. The Revocation Instrument was created on 1 July 2008, revoking TCO 0804091 and establishing new TCO 0814479, with the revocation taking effect from 17 March 2008. This change was made without consultation as it was considered minor and of a procedural nature, not substantially altering the existing arrangements. The commencement of the instrument aligns with the provisions in section 269SD of the Customs Act, ensuring that the revocation and new TCO are effective from the date the previous tariff classification ceased to apply.
Scope and Application
The Tariff Concessions Revocation Instrument 10/2009, made under the Customs Act 1901, applies to the revocation and replacement of Tariff Concession Orders (TCO) concerning the tariff classification of specific goods. This instrument specifically revokes TCO 0804091 and establishes a new TCO, 0814479, as a result of a change in tariff classification. The legislation mandates that the Chief Executive Officer of Customs must revoke a TCO if it is determined that the tariff classification stated in the TCO is no longer applicable due to changes in the Customs Tariff Act 1995, a court decision, or advice from a Customs officer. The new TCO comes into effect from the day of revocation. The Instrument has a national reach across Australia, impacting entities involved in the importation of the affected goods. No consultation was required for this minor, machinery-related change. The commencement of the revocation and the creation of the new TCO is contingent on the day the tariff classification change took effect, with the revocation and new TCO being effective from 17 March 2008, despite potential conflicts with retrospective legislative instrument prohibitions under the Legislative Instruments Act 2003.
Key Provisions
The Tariff Concessions Revocation Instrument 10/2009 operates under the Customs Act 1901 (section 269SD(2)) to revoke Tariff Concession Order (TCO) 0804091 and establish a new TCO, 0814479, effective from 17 March 2008. This change was necessitated by an amendment in the tariff classification of the goods in question, shifting from 8479.89.90 to 8479.82.00. The Chief Executive Officer of Customs (CEO) was satisfied that the tariff classification no longer applied to the goods due to the amendment in the Customs Tariff Act 1995, prompting the revocation and creation of the new TCO.
Under this Act, the CEO is obligated to ensure that any TCO remains accurate and applicable to the goods it covers. Should a change in tariff classification, court decision, or advisory opinion by a Customs officer indicate that the tariff classification in a TCO is no longer correct, the CEO must revoke the existing TCO and issue a new one that reflects the correct tariff classification. This ensures that customs duties are applied correctly and fairly based on the most current tariff information.
Breaches of the provisions under the Customs Act 1901, including the revocation and creation of TCOs, can result in both civil and criminal penalties. Civil penalties may include fines, with the exact amount determined by the severity and intent of the breach. Criminal penalties can also be imposed for more serious breaches, potentially leading to imprisonment. The maximum penalties for breaches under the Customs Act are specified in section 286 and can vary depending on the specific circumstances of the breach.
The instrument took effect from 1 July 2008, with the revocation date backdated to 17 March 2008, ensuring that the changes are applied retroactively to the date the tariff classification change became effective. This retrospective application is permissible under the Customs Act 1901, despite the general prohibition on retrospective legislative instruments as outlined in section 12 of the Legislative Instruments Act 2003.