Overview

The Tariff Concessions Revocation Instrument No. 111/2011, enacted on 27 July 2011, was developed in response to a need to streamline and rationalise tariff concessions under the Customs Act 1901. This instrument revokes Tariff Concession Order (TCO) 0802771, as determined by the Chief Executive Officer of Customs, who found that the order had not been quoted in any import entry to secure a concessional rate of duty over the preceding two years. The Customs Act 1901, enacted by the Australian Parliament, established a framework for the creation and revocation of TCOs to ensure that such concessions are only applied when necessary and beneficial. The policy objective behind this revocation is to ensure that tariff concessions are effectively utilised and do not remain in place without practical application, thereby maintaining the efficiency and relevance of the customs duty regime. The revocation took effect from the day the CEO became satisfied that the TCO had not been used, and it operates despite certain provisions of the Legislative Instruments Act 2003 that might otherwise prohibit retrospective legislative instruments.

Scope and Application

The Customs Act 1901, particularly under Part XVA, provides a framework for the creation and revocation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These orders enable a lower rate of customs duty on certain goods, provided that no substitutable goods are produced in Australia in the ordinary course of business on the day the application for the TCO is lodged. The revocation of a TCO can occur if the CEO is satisfied that the TCO has not been quoted in an import entry to secure a concessional rate of duty for any day in the preceding two years, as per sections 269C, 269P, and 269SD(1A) of the Act. The Tariff Concessions Revocation Instrument No. 111/2011, made on 27 July 2011, revokes TCO 0802771 based on this criterion. Notably, this revocation has no effect on businesses as the TCO had not been utilised in the preceding two years. The instrument's commencement is tied to the CEO's satisfaction regarding the TCO's inactivity, and it operates notwithstanding section 12 of the Legislative Instruments Act 2003, which generally prohibits retrospective legislative instruments.

Key Provisions

The main operative sections of the Tariff Concessions Revocation Instrument No. 111/2011 (the Instrument) are sections 269C, 269P, and 269SD of the Customs Act 1901 (the Act). Section 269C allows the Chief Executive Officer of Customs (the CEO) to make Tariff Concession Orders (TCOs), which provide a lower rate of customs duty on certain goods. Section 269P outlines the criteria that must be met for a TCO to be made. Section 269SD allows the CEO to revoke a TCO if it has not been quoted in an import entry to secure a concessional rate of duty in the two years preceding the day on which the CEO becomes satisfied that the TCO is no longer required. The Instrument imposes obligations on the CEO to assess whether a TCO is no longer required and to revoke the TCO if the conditions in section 269SD are met. The CEO is required to be satisfied that the TCO has not been quoted in an import entry to secure a concessional rate of duty in the two years preceding the day on which the CEO becomes satisfied that the TCO is no longer required. The CEO is also required to make the Instrument revoking the TCO on the day on which the CEO becomes satisfied that the TCO is no longer required. The Instrument does not provide for any offences, penalties, or civil or criminal consequences for breach. The Instrument is made under section 269SD(6) of the Act, which provides that the section has effect despite section 12 of the Legislative Instruments Act 2003, which prohibits the making of certain retrospective legislative instruments. Therefore, the revocation of the TCO is effective from the day on which the CEO becomes satisfied that the TCO has not been used in the preceding 2 years, regardless of whether this is before or after the making of the Instrument. It is important to note that the CEO is not required to consult with any party before revoking a TCO under section 269SD of the Act. This is because the revocation of the TCO will not have an effect on business if the TCO has not been used in the preceding 2 years. However, it is still important for the CEO to ensure that the conditions in section 269SD are met before revoking a TCO, to avoid any potential legal challenges or disputes.