EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 26/2010
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).
Bioglobal Ltd requested that the CEO revoke TCO 0614064 which covers insect pheromone dispensers.
Instrument
Tariff Concessions Revocation Instrument No 26/2010 was made on 12 October 2009. It revokes TCO 0614064 and remakes a narrower TCO 0938299 covering insect pheromone dispensers 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.26/2010 revoked 0614064 and made the narrower TCO No. 0938299 on 12 October.2009, with the revocation date of effect 13 August 2009
Overview
The Customs Act 1901, enacted by the Parliament of Australia, establishes a framework for administering customs and excise duties, and includes provisions for Tariff Concession Orders (TCOs). These orders provide reduced customs duty rates for certain imported goods under specific conditions. The Tariff Concessions Revocation Instrument No. 26/2010 was introduced to address the revocation of TCO 0614064, which covered insect pheromone dispensers, in response to a request from Bioglobal Ltd. The Chief Executive Officer of Customs revoked the existing TCO and issued a narrower TCO, 0938299, after determining that the original order would not have been made but a narrower one could have been on the day the request to revoke was lodged. This revocation and remaking of the TCO reflect the Act's objective to ensure that tariff concessions are only granted where appropriate and to maintain the integrity of the customs duty system by preventing the concession of tariffs where domestic production of substitutable goods exists.
Scope and Application
The Tariff Concessions Revocation Instrument 2010 pertains to the Customs Act 1901, specifically under Part XVA which establishes the framework for Tariff Concession Orders (TCOs). These orders are instituted by the Chief Executive Officer of Customs (CEO) to apply lower rates of customs duty to certain goods. The Instrument in question revokes TCO 0614064, concerning insect pheromone dispensers, and replaces it with a narrower TCO 0938299. The revocation is a direct result of Bioglobal Ltd's request, which met the statutory criteria for revocation, including the CEO's satisfaction that no substitutable goods were being produced in Australia on the day the revocation request was lodged and that a narrower TCO could have been made. The revocation and subsequent narrower TCO took effect from 13 August 2009 and 12 October 2009, respectively, demonstrating the procedural immediacy upon meeting the statutory conditions. The geographic scope of this Act is national, as it pertains to the Customs Act 1901, which is a Commonwealth Act. The application of the Act extends to any entity or individual affected by the customs duty rates on goods specified in the TCOs.
Key Provisions
The Tariff Concessions Revocation Instrument 26/2010 under the Customs Act 1901 (the Act) primarily concerns the revocation of Tariff Concession Order (TCO) No. 0614064 and the creation of a narrower TCO No. 0938299 (sections 269SB, 269SC, 269SC(4)). This instrument was prompted by a request from Bioglobal Ltd for the revocation of the existing TCO, which applies to insect pheromone dispensers. The Chief Executive Officer of Customs (the CEO) has determined that the revocation is warranted as of the date the request was lodged, 13 August 2009, because the CEO would not have made the original TCO if it were to be assessed on that date. Instead, a narrower TCO is deemed appropriate, hence the creation of TCO No. 0938299.
The Act imposes several obligations on the parties involved. The CEO is required to make a determination on whether the request for revocation meets the specified criteria, including verifying that the requestor is a producer of substitutable goods and that the CEO would not have made the TCO if it were assessed on the day the request was made (subsection 269SC(1)). If the CEO decides to revoke the TCO, they must also determine whether a narrower TCO can be made and, if so, proceed to create it (subsection 269SC(4)). Additionally, the CEO must publish a notice in a Gazette as soon as practicable after receiving the revocation request, detailing the full particulars of the TCO in question (subsection 269SC(1A)).
The consequences of non-compliance with the provisions of the Act are significant. While the explanatory statement does not detail specific offences, penalties, or civil/criminal consequences, the revocation and creation of TCOs are governed by stringent conditions set forth in the Act. Failure to adhere to these conditions could potentially result in legal ramifications, including financial penalties and legal actions that could be pursued under the relevant sections of the Customs Act 1901. The exact penalties would depend on the specific breaches and the discretion of the court or relevant authority.
The revocation and effect date of the new TCO are designed to ensure that the transition is seamless and does not violate the prohibitions against retrospective legislative instruments, as outlined in the Legislative Instruments Act 2003. The revocation of TCO 0614064 and the creation of TCO 0938299 were made effective from 13 August 2009, despite the retrospective nature of the changes, ensuring compliance with the legislative framework.