Overview

The Tariff Concessions Revocation Instrument 38/2009 was enacted to address the issue of revoking a Tariff Concession Order (TCO) under the Customs Act 1901. This instrument was introduced to provide a mechanism by which the Chief Executive Officer (CEO) of Customs can revoke a TCO if certain conditions are met, such as when a producer in Australia claims that they are producing substitutable goods and requests the revocation of the TCO. This revocation process is intended to ensure that tariff concessions are only granted when no substitutable goods are produced in Australia. The revocation is effective from the date the request was lodged, as stipulated in the Act, and ensures compliance with the legislative framework despite any retrospective legislative prohibitions. The Instrument was introduced by the CEO of Customs, following a request by Adventure One Pty Ltd to revoke TCO 0908498, which covered backpacks. The CEO's decision to revoke the TCO was based on the satisfaction that Adventure One Pty Ltd was a producer of substitutable goods in Australia and that the TCO would not have been made if the current circumstances had applied at the time of the original application. The revocation was effective from 4 June 2009, and the CEO published a notice of the revocation in the Gazette as soon as practicable after receiving the request, in accordance with the requirements of the Act.

Scope and Application

The Tariff Concessions Revocation Instrument 38/2009, which revokes Tariff Concession Order (TCO) 0908498, pertains to entities and individuals involved in the production of goods that are subject to a TCO under the Customs Act 1901. Specifically, this revocation applies to Adventure One Pty Ltd, which requested the revocation based on the production of substitutable goods in Australia. The revocation is made under the authority of the Customs Act 1901, where the Chief Executive Officer of Customs (CEO) has the discretion to revoke a TCO if certain conditions are met. These conditions include the absence of substitutable goods in Australia on the day of the application for the TCO and the CEO's satisfaction that Adventure One Pty Ltd is a producer of such substitutable goods. The revocation is effective from the date the request to revoke the TCO was lodged, despite the prohibition against retrospective legislative instruments under the Legislative Instruments Act 2003. This instrument thus narrows the scope of the TCO by removing the tariff concessions for backpacks, impacting the industries and entities previously benefiting from the reduced customs duty.

Key Provisions

The main operative sections of the Tariff Concessions Revocation Instrument 38/2009 are sections 269SB, 269SC, and 269SD of the Customs Act 1901. Section 269SB allows a producer of substitutable goods in Australia to request the Chief Executive Officer of Customs (CEO) to revoke a Tariff Concession Order (TCO). Section 269SC outlines the conditions under which the CEO must make an order to revoke a TCO, namely that the person requesting the revocation must be a producer of substitutable goods in Australia and that the CEO would not have made the TCO if it were being considered on the day the request for revocation was lodged. Section 269SD specifies that an order revoking a TCO comes into force on the day the request for revocation was lodged. The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, any person claiming to be a producer of substitutable goods in Australia can request the CEO to revoke a TCO under section 269SB. The CEO is then obligated to make an order revoking the TCO if satisfied with the conditions under section 269SC. The CEO must also publish a notice in a Gazette as soon as practicable after receiving a revocation request, as per subsection 269SC(1A). The notice must include a statement that a request has been lodged and the full particulars of the TCO to which the request relates. The Instrument also outlines the consequences for breach and contravention of the Act’s provisions. While the explanatory statement does not explicitly detail offences or penalties, the revocation of a TCO could have significant economic implications for importers and other stakeholders who were relying on the tariff concessions. The revocation effectively increases the customs duty on the affected goods, which could lead to higher costs for consumers and businesses. However, the explanatory statement does not specify any criminal or civil penalties for non-compliance with the revocation order itself, but rather focuses on the procedural aspects of the revocation process. The Tariff Concessions Revocation Instrument 38/2009 revokes TCO 0908498 with a commencement date of 4 June 2009, as stated in the Instrument. The CEO made the revocation order on 29 July 2009, following Adventure One Pty Ltd's request, and is satisfied that the company is a producer in Australia of substitutable goods and that the TCO would not have been made under current conditions. The revocation order takes effect from the date the request was lodged, in line with subsection 269SC(6) of the Act, which ensures the order’s effectiveness despite any retrospective legislative prohibitions under section 12 of the Legislative Instruments Act 2003.