EXPLANATORY STATEMENT
Tariff Concession Instrument 25/2006
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.
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 subsection 269SC(1) of the Act, the CEO must decide whether of not her or she 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;
− 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.
If the CEO is satisfied of those matters but is also satisfied that a narrower TCO could have been made on the day the request to revoke was lodged, the TCO must revoke the TCO and make, in its place, such a narrower TCO (subsection 269SC(4) refers).
Adventure One Pty Ltd requested that the CEO revoke TCO 0514071 which covers travel or overnight or carry bags.
Instrument
Tariff Concession Instrument No 25/2006 was made on 24 March 2006. It revokes TCO 0514071 and remakes a narrower TCO 0605472 covering carry bags as the CEO is satisfied that he or she would not have made the old TCO but could have made the narrower 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 269SC(7) provides that if a narrower TCO is made in place of another TCO, that narrower TCO comes into force from the date of effect of the revocation of the other TCO.
Subsection 239SD(8) provides that subsections 269SC(6) and 269SC(7) have effect despite section 12 of the Legislative Instruments Act 2003. Section 12 prohibits the making of certain retrospective legislative instruments.
Tariff Concession Instrument No.25/2006 revoked 0514071 and made the narrower TCO No. 0605472 on 24 March 2006.
Overview
The Tariff Concession Instrument 25/2006 was enacted to address the specific issue of tariff concession orders under the Customs Act 1901, which provides a framework for the application, maintenance, and revocation of tariff concession orders by the Chief Executive Officer of Customs. This instrument was developed in response to a request from Adventure One Pty Ltd for the revocation of TCO 0514071, which originally covered travel or overnight and carry bags. The revocation and replacement of this order with a narrower TCO 0605472 was necessary as the CEO was satisfied that while the original TCO should not have been made, a narrower TCO could have been applicable on the day the request to revoke was lodged. The Customs Act 1901, enacted by the Australian Parliament, aims to regulate customs and border control and provide a flexible mechanism for tariff concessions to promote fair trade practices and protect domestic industries where appropriate.
Scope and Application
The Tariff Concession Instrument 25/2006 under the Customs Act 1901 applies to the revocation and remaking of Tariff Concession Orders (TCOs), specifically concerning the goods covered by TCO 0514071, which includes travel or overnight or carry bags. This instrument applies to any person or entity that requested the revocation of the TCO, in this case, Adventure One Pty Ltd, and to the goods they produce that are deemed substitutable to those covered by the TCO. The instrument has a Commonwealth reach as it pertains to the Customs Act, which is federal legislation. The CEO of Customs is the key figure in determining whether a TCO can be revoked or remade into a narrower TCO, based on the criteria specified in the Act, such as the absence of substitutable goods in Australia on the day the application was lodged. The CEO must also consider whether a narrower TCO could have been made on the day the request to revoke was lodged. The instrument's application is not restricted geographically but applies nationally within Australia. There are no explicit exclusions or thresholds mentioned in the explanatory statement, but the process does involve a review of the specific circumstances of the TCO in question. The instrument also extends its application through the publication of notices in a Gazette as per the Act, ensuring transparency and informing relevant stakeholders.
Key Provisions
The main operative sections of the Tariff Concession Instrument No 25/2006, made under the Customs Act 1901 (section 269SC(4)), include the revocation of Tariff Concession Order (TCO) 0514071, which previously covered travel or overnight or carry bags, and the creation of a narrower TCO 0605472, focusing specifically on carry bags. This action was taken following Adventure One Pty Ltd's request for revocation, based on the CEO's determination that the conditions for the original TCO were no longer met, but a narrower TCO could still be justified (section 269SC(1)). The CEO's decision-making process was guided by the requirement to ensure that the revocation request was made by a producer of substitutable goods and that the original TCO would not have been made if the request had been lodged on the day the original application was made (section 269SC(1)). Additionally, the CEO must publish a notice in a Gazette detailing the request for revocation and the specifics of the TCO in question (section 269SC(1A)).
The obligations imposed by the Act on the parties involved include the requirement for Adventure One Pty Ltd to formally request the revocation of TCO 0514071, demonstrating their status as a producer of substitutable goods. The CEO is obligated to assess the request against the statutory criteria, including verifying the applicant's status and the current production landscape in Australia related to the goods covered by the TCO. If the CEO decides to revoke the TCO, they must also determine whether a narrower TCO could be issued and subsequently do so if appropriate. Furthermore, the CEO is required to publish a notice in a Gazette detailing the request and the TCO's specifics as soon as practicable after receiving the request for revocation.
Failure to comply with the provisions of the Customs Act 1901 regarding the issuance and revocation of TCOs can lead to various civil and criminal consequences. While the specific penalties for non-compliance with the Act are not detailed in the explanatory statement, it is reasonable to infer that breaches of the Act's provisions could result in penalties under the broader customs legislation. These may include fines, imprisonment, or other sanctions as prescribed by the Customs Act 1901. The precise penalties would depend on the nature and severity of the breach, as well as any additional offences or contraventions that might arise from the non-compliance. The revocation of a TCO and the subsequent issuance of a narrower TCO, as outlined in this instrument, ensure that the regulatory framework remains responsive to changes in the production landscape while maintaining the integrity of the tariff concession scheme.