Overview

The Tariff Concessions Revocation Instrument 22/2009, enacted under the Customs Act 1901, addresses the issue of revoking tariff concession orders when new evidence emerges that substitutable goods are being produced within Australia. This legislative instrument empowers the Chief Executive Officer of Customs to revoke a tariff concession order if it is determined that such concessions should not have been granted in the first place due to the existence of domestic production. The revocation process was initiated following a request from Boronia Technologies Pty Ltd, who claimed to be a producer of substitutable goods. The instrument was enacted by the relevant authority in accordance with the Act's provisions, ensuring that the revocation took effect from the date the revocation request was lodged, thereby circumventing the prohibition on retrospective legislative instruments. The instrument's creation was overseen by the Parliament of Australia, with the objective of maintaining the integrity of the tariff concession scheme by ensuring that concessions are only granted when no substitutable goods are produced in Australia. By revoking Tariff Concession Order 0700605 for air cooled chillers, the instrument reflects the policy objective of supporting domestic production and preventing undue advantages to imported goods. The revocation was formally communicated through a Gazette notice, as mandated by the Customs Act, ensuring transparency and adherence to legal processes.

Scope and Application

The Tariff Concessions Revocation Instrument 22/2009 applies to Tariff Concession Orders (TCOs) under Part XVA of the Customs Act 1901, specifically targeting the revocation of TCO 0700605 for air cooled chillers. This instrument is relevant to Boronia Technologies Pty Ltd, a producer in Australia, and to any entities or individuals affected by the concession on customs duty that the revoked TCO had previously applied to. The revocation is triggered when the Chief Executive Officer of Customs is satisfied that a producer in Australia is manufacturing substitutable goods, thereby meeting the criteria for revocation as outlined in sections 269SB, 269SC, and 269SD of the Act. This Act has a Commonwealth reach, and its application is extended through subordinate instruments as necessary. The revocation takes effect from the date the request to revoke the TCO was lodged, despite provisions in the Legislative Instruments Act 2003 that typically prohibit retrospective legislative changes.

Key Provisions

The primary operative sections of the Tariff Concessions Revocation Instrument No. 22/2009 under the Customs Act 1901 (the Act) concern the revocation of a Tariff Concession Order (TCO). Specifically, section 269SB allows for a producer in Australia of substitutable goods to request the Chief Executive Officer (CEO) of Customs to revoke a TCO. If the CEO is satisfied that the requesting party is a producer of substitutable goods and that the TCO should not have been made, the CEO must revoke the TCO under sections 269SC(1) and 269SC(3). This revocation takes effect from the day the request was lodged as per section 269SC(6), despite any prohibitions against retrospective legislative instruments under section 12 of the Legislative Instruments Act 2003, as provided in subsection 269SD(8). The obligations and requirements imposed by this Instrument on the parties or entities it governs are primarily centred on the process for revoking a TCO. Upon receiving a request for the revocation of a TCO, the CEO must publish a notice in a Gazette within the shortest practicable time. This notice must include a statement confirming the lodgement of the request and the full particulars of the TCO in question as per subsection 269SC(1A). The CEO must then evaluate the request, determining whether the applicant is a producer of substitutable goods and whether the TCO should have been made in the first place. If the CEO is satisfied on these points, the TCO will be revoked. The consequences for breach of the provisions under this Instrument are not explicitly detailed in the explanatory statement provided. However, generally, breaches of the Customs Act 1901 can result in both civil and criminal penalties. Civil penalties can include fines up to a maximum of $126,000 for individuals and $630,000 for bodies corporate, as per section 283 of the Act. Criminal penalties can include imprisonment for up to five years, or both imprisonment and fines, as provided in section 284. These penalties may vary depending on the specific nature and severity of the breach. It is important to note that these penalties apply broadly to the Customs Act 1901 and may not specifically pertain to the revocation of TCOs unless otherwise stated.