EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 105/2006
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 105/2006 was made on 27 November 2006. It revokes TCO 0611314 and makes TCO’s 0618917 and 0618918. The tariff classification has been changed from 8479.89.90 to 8415.10.00 and 8415.82.00 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. 105/2006 revokes 0611314 and makes new TCO’s 0618917 and 0618918 on 27 November 2006.
Overview
The Customs Act 1901, enacted by the Commonwealth Parliament, established a framework for the administration of customs and excise in Australia. Specifically, Part XVA of the Act outlines the process for making and revoking Tariff Concession Orders (TCOs), which are orders that provide a lower rate of customs duty on certain goods. The Tariff Concessions Revocation Instrument 105/2006, made on 27 November 2006, addresses a specific issue concerning the tariff classification of certain goods under the Customs Act. This instrument revokes Tariff Concession Order 0611314 and establishes new orders 0618917 and 0618918 in response to a change in tariff classification. The revocation and creation of these orders were necessitated by an amendment to the Customs Tariff Act 1995, which altered the classification of the goods in question, thereby requiring adjustments to the applicable tariff concessions. The instrument was made without consultation as the changes were deemed minor and of a machinery nature, not substantially altering existing arrangements.
Scope and Application
The Tariff Concessions Revocation Instrument 105/2006, made under the Customs Act 1901, specifically applies to Tariff Concession Orders (TCOs) that have been previously issued. This instrument is designed to revoke an existing TCO and replace it with new TCOs when there is a change in tariff classification, which can occur due to amendments in the Customs Tariff Act 1995, decisions by the Administrative Appeals Tribunal, or written advice from Customs officers. The instrument was enacted to ensure that the tariff classification stated in a TCO remains accurate and applicable to the goods in question. It affects the entities and individuals who have applied for or are benefiting from the tariff concessions, and its reach is jurisdictional, as it is made under the Commonwealth Act. The instrument was effective from 27 November 2006, and the revocation and new TCOs took effect from the day when the tariff classification ceased to apply to the goods, potentially retroactive to the day the old TCO came into force. Notably, the instrument's enactment circumvents the prohibition on retrospective legislative instruments under the Legislative Instruments Act 2003 by virtue of the specific provisions in the Customs Act.
Key Provisions
The Tariff Concessions Revocation Instrument 105/2006 operates under sections 269C and 269P of the Customs Act 1901 (the Act) to revoke a Tariff Concession Order (TCO) and establish new TCOs. Specifically, section 269SD(2) mandates that if the Chief Executive Officer of Customs (the CEO) is satisfied that a tariff classification stated in a TCO no longer applies to the goods due to changes in the Customs Tariff Act 1995, court decisions, or advice from a Customs officer, the CEO must revoke the existing TCO and issue new TCOs. This instrument revokes TCO 0611314 and introduces TCOs 0618917 and 0618918, reflecting updated tariff classifications. The changes in tariff classification were made effective from 27 November 2006.
The Act imposes several obligations on the CEO regarding the administration of TCOs. Firstly, the CEO must ensure that no substitutable goods are produced in Australia when making a TCO, as per section 269C. Additionally, the CEO is required to monitor tariff classifications and revoke TCOs if the classification changes, as stated in section 269SD(2). The CEO must also issue new TCOs to reflect the updated tariff classifications, ensuring compliance with the Customs Tariff Act 1995 and relevant court decisions or Customs advice. These obligations ensure that the tariff concessions remain aligned with current legislative and judicial interpretations.
Failure to comply with the provisions of the Customs Act 1901 or the Tariff Concessions Revocation Instrument can result in civil and criminal consequences. Specifically, section 269ZD of the Act imposes penalties for breaches related to tariff concessions, which may include fines up to $22,200 for individuals and $111,000 for corporations. Additionally, the Act may provide for criminal penalties, including imprisonment, for serious or repeated breaches. The penalties underscore the importance of adhering to the legislative requirements governing tariff concessions and their administration.
The Tariff Concessions Revocation Instrument 105/2006 operates under the authority granted by section 269SD of the Customs Act 1901, which allows the CEO to make orders revoking and issuing TCOs when necessary. Despite section 12 of the Legislative Instruments Act 2003, which generally prohibits retrospective legislative instruments, section 269SD(6) ensures that the provisions of section 269SD can still apply retrospectively. This allows the CEO to address tariff classification changes that occurred before the instrument's issuance, thereby maintaining the integrity and effectiveness of the tariff concession scheme. The instrument's retrospective effect is crucial for ensuring that TCOs accurately reflect current tariff classifications from the outset of their application.