EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 27/2010
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).
Quikshade Australia Pty Ltd requested that the CEO revoke TCO 0833068 which covers shelters.
Instrument
Tariff Concession Instrument No 27/2010 was made on 26 October 2009. It revokes TCO 0833068 and remakes a narrower TCO 0939945 covering shelters 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.27/2010 revoked 0833068 and made the narrower TCO No. 0939945 on 26 October.2009, with the revocation date of effect 9 September 2009
Overview
The Customs Act 1901, amended by Tariff Concessions Revocation Instrument 27/2010, was enacted to provide a mechanism for revoking tariff concession orders (TCOs) that may no longer be necessary due to changes in the Australian production landscape. The problem this legislation addresses is the potential over-allocation of tariff concessions that could unfairly benefit some importers at the expense of local producers. The instrument allows the Chief Executive Officer of Customs to revoke a TCO if it is demonstrated that substitutable goods are now being produced in Australia, and that under the current circumstances, the tariff concession would not have been granted. This ensures that tariff concessions remain aligned with the objective of supporting Australian production and protecting local industries from unfair competitive disadvantages. The instrument was enacted by the relevant legislature and its policy objective is to maintain the integrity of the tariff concession scheme by ensuring that concessions are only granted when necessary to support Australian production.
Scope and Application
The Tariff Concessions Revocation Instrument 27/2010 operates under the Customs Act 1901 and specifically addresses the revocation of a Tariff Concession Order (TCO) concerning shelters. This instrument applies to any entities or individuals impacted by the revocation of TCO 0833068, as well as to the narrower TCO 0939945 that replaces it. The scope of the Act is limited to the Commonwealth of Australia, as it is a federal instrument, and it pertains to the customs duty applied to imported goods. The Act allows for the revocation of TCOs if certain criteria are met, such as the emergence of Australian-produced substitutable goods, and it mandates that the Chief Executive Officer of Customs (CEO) must be satisfied that the revocation or the creation of a narrower TCO is warranted based on the circumstances as of the date the request is lodged. Notably, the Act excludes the application of retrospective legislative measures, ensuring that the changes do not apply before the date the revocation request was made. The Instrument came into force on 26 October 2009, with the revocation of TCO 0833068 effective from 9 September 2009, and the new narrower TCO 0939945 taking effect from the date of the revocation.
Key Provisions
The Tariff Concessions Revocation Instrument 2010 (F2010L02901) primarily operates under sections 269SB, 269SC, and 269SD of the Customs Act 1901. Section 269SB outlines the process by which a producer of substitutable goods in Australia can request the Chief Executive Officer of Customs (the CEO) to revoke a Tariff Concession Order (TCO). Section 269SC details the criteria the CEO must consider in deciding whether to revoke a TCO, including whether the requester is a producer of substitutable goods and whether the CEO would have made the TCO if it were being considered on the day the request was lodged. If the CEO decides to revoke the TCO, section 269SC(4) allows for the creation of a narrower TCO if appropriate. The commencement of the revocation and any new TCO is governed by section 269SD, which specifies that the revocation takes effect from the date the request was lodged and any new TCO comes into force from the date of the revocation.
The Act imposes several obligations on the CEO and the parties involved in the tariff concession process. The CEO must publish a notice in a Gazette as soon as practicable after receiving a request for revocation, including the full particulars of the TCO in question (subsection 269SC(1A)). This ensures transparency and allows interested parties to be aware of the process. Additionally, the CEO is required to assess the request based on the criteria outlined in subsection 269SC(1). If the CEO is satisfied that the request meets the criteria, they must either revoke the TCO or remake a narrower TCO, as stipulated in subsection 269SC(4). The commencement provisions in subsection 269SD(8) ensure that the revocation and any new TCO take effect on the date specified, notwithstanding any retrospective prohibitions under the Legislative Instruments Act 2003.
Failure to comply with the requirements set out in the Customs Act 1901 may result in civil or criminal consequences, depending on the nature and severity of the breach. Although the specific penalties are not detailed in the explanatory statement, breaches of customs legislation generally attract fines and, in some cases, imprisonment. For example, section 247 of the Customs Act 1901 provides for penalties, including fines and imprisonment, for offences such as making false statements or evading duty. The maximum penalties can vary significantly, depending on the offence, with some offences carrying fines of up to $22,200 and imprisonment for up to two years. Given the importance of compliance with customs regulations, it is essential for parties involved in the tariff concession process to adhere strictly to the requirements outlined in the Act.