EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 14/2011
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.
Section 269SB of the Act provides, in part, that a person claiming to be a producer in Australia of substitutable goods in relation to the goods covered by a TCO may request the CEO to revoke the TCO.
Under subsections 269SC(1) and (3) of the Act, the CEO must make an order revoking the TCO if the CEO is satisfied:
− that, on the day of lodgement of the request, the person requesting the revocation of the TCO is a producer in Australia of goods that are substitutable goods in relation to the goods the subject of the TCO; and
− that, if the TCO were not in force on that day but that day were the day on which the application for that TCO was lodged, the CEO would not have made the TCO.
Hallweld Bennett Pty Ltd requested that the CEO revoke TCO 0940167 which covers wet mix concrete mixing and batching plants.
Instrument
Tariff Concessions Revocation Instrument No 14/2011 was made on 4 March 2010. It revokes TCO 0940167 as the CEO is satisfied that Hallweld Bennett Pty Ltd is a producer in Australia of substitutable goods and that the CEO would not have made the TCO.
Consultation
Subsection 269SC(1A) of the Act provides that as soon as practicable after receiving a request for revocation of a TCO, the CEO must publish in a Gazette a notice which includes a statement that a request has been lodged and the full particulars of the TCO to which the request relates.
Commencement
Subsection 269SC(6) provides that an order revoking a TCO comes into force on the day on which the request to revoke the TCO was lodged. Subsection 239SD(8) provides, in part, that subsection 269SC(6) 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Tariff Concessions Revocation Instrument No.14/2011, TCO 0940167, was revoked on 4 March 2010 with the Revocation date of effect as from 18 January 2010.
Overview
The Customs Act 1901, enacted by the Australian Parliament, establishes a framework for the administration of customs and excise in Australia. This legislation introduced a scheme under which Tariff Concession Orders (TCOs) can be made and subsequently revoked by the Chief Executive Officer of Customs. The problem it aimed to address was ensuring that Australian industries are protected from overseas competition when no equivalent goods are produced domestically. Specifically, it sought to provide relief to industries by temporarily reducing customs duty on imported goods if no suitable Australian-made alternatives exist. The Tariff Concessions Revocation Instrument 14/2011, made on 4 March 2010, revoked TCO 0940167 at the request of Hallweld Bennett Pty Ltd, reflecting the scheme's intent to swiftly respond to changes in domestic production capabilities and maintain fair competition within the Australian market.
Scope and Application
The Tariff Concessions Revocation Instrument 14/2011 under the Customs Act 1901 applies to Tariff Concession Orders (TCOs) and specifically targets TCO 0940167, which covers wet mix concrete mixing and batching plants. The Act pertains to the revocation of a TCO if a producer in Australia of substitutable goods requests its revocation, as outlined in sections 269C, 269P, 269SB, 269SC, and 269SD of the Customs Act 1901. The scope of the Act extends to any entity or individual claiming to be a producer in Australia of goods that are substitutable to those covered by a TCO and are capable of meeting the core criteria specified in the Act. The Act operates on a national level, impacting the customs duty rates applicable to the specified goods across Australia. The Act's application is restricted to instances where a producer in Australia asserts the production of substitutable goods and the CEO is satisfied with the validity of the claim. The revocation of TCOs is subject to the CEO's determination and the specific conditions stipulated within the Act, which may include the publication of notices in the Gazette and adherence to the timing provisions detailed within the legislative framework.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 14/2011 pertain to the revocation of Tariff Concession Order (TCO) 0940167, which covered wet mix concrete mixing and batching plants. Under section 269SB of the Customs Act 1901, a person who claims to be a producer of substitutable goods in Australia may request the Chief Executive Officer (CEO) of Customs to revoke a TCO. If the CEO is satisfied that the person is indeed a producer of substitutable goods and that the TCO would not have been made on the day the application for the TCO was lodged, the CEO must make an order revoking the TCO (section 269SC(1) and (3)). The Instrument itself revokes TCO 0940167 following Hallweld Bennett Pty Ltd's request, as the CEO is satisfied of the conditions outlined in the Act.
The Customs Act 1901 imposes specific obligations on the CEO in relation to TCOs. The CEO must ensure that TCOs are made only when certain core criteria are met, primarily that no substitutable goods are produced in Australia at the time the application is lodged (section 269C). Additionally, if a request for revocation of a TCO is received, the CEO must publish a notice in a Gazette as soon as practicable, detailing the request and the full particulars of the TCO in question (section 269SC(1A)). The CEO is also required to make an order revoking the TCO if the conditions specified in section 269SC(1) and (3) are satisfied.
The Act does not explicitly outline offences or penalties for the breach of its provisions related to TCOs. However, the revocation of a TCO following a valid request and meeting the statutory conditions would inherently involve compliance with the legislative framework. Non-compliance by the CEO in fulfilling their obligations, such as failing to revoke a TCO when conditions are met or not publishing the required notice, might lead to legal challenges or administrative consequences. It is important to note that while the Act does not specify maximum penalties, any administrative or judicial actions arising from non-compliance could potentially involve costs and other legal consequences for the party at fault.