Overview

The Tariff Concessions Revocation Instrument 45/2009, enacted to amend the Customs Act 1901, was introduced to address the revocation of Tariff Concession Orders (TCOs) that provide lower rates of customs duty on certain goods. The revocation was prompted by a request from Wintech International Pty Ltd, which claimed to be a producer of substitutable goods in relation to the goods covered by TCO 0809365, which pertains to expanded polystyrene foam cutters. This instrument was enacted by the Chief Executive Officer of Customs (CEO) under the authority granted by the Customs Act 1901. The policy objective of this revocation is to ensure that tariff concessions are only granted when there are no substitutable goods produced in Australia, thereby maintaining fair competition in the domestic market. The instrument came into force on the day the revocation request was lodged, which was 19 August 2008, and was published in a Gazette as required by the Act.

Scope and Application

The Tariff Concessions Revocation Instrument 45/2009, under the Customs Act 1901, pertains to the revocation of Tariff Concession Orders (TCOs) which are designed to apply a lower rate of customs duty to specific goods. This legislation applies to entities or individuals who may request the revocation of a TCO if they can demonstrate that they are a producer in Australia of goods that are substitutable to those covered by the TCO. The revocation of a TCO is contingent upon the Chief Executive Officer of Customs being satisfied that the applicant is indeed a producer of such substitutable goods and that, had the TCO not been in force, it would not have been granted initially. The scope of the Act is Commonwealth-wide, impacting the national customs regime. The Instrument itself was made to revoke a specific TCO concerning expanded polystyrene foam cutters, in response to a request from Wintech International Pty Ltd. The revocation took effect from the date the request was lodged, 19 August 2008, notwithstanding the usual prohibitions against retrospective legislative instruments.

Key Provisions

The Tariff Concessions Revocation Instrument 45/2009 (referred to as the Instrument) revokes Tariff Concession Order (TCO) 0809365, which provided a lower rate of customs duty for expanded polystyrene foam cutters. The Instrument is made under sections 269C, 269P, 269SB, 269SC, and 269SD of the Customs Act 1901 (the Act). Pursuant to section 269SC(1) of the Act, the Chief Executive Officer of Customs (the CEO) revoked the TCO as they were satisfied that Wintech International Pty Ltd is a producer in Australia of substitutable goods, and that on the date of the request for revocation, if the TCO had not been in force, the CEO would not have made the TCO. Under the Act, the CEO is required to make a TCO if an application meets the core criteria and, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Conversely, section 269SB of the Act allows a producer of substitutable goods to request the CEO to revoke a TCO. The CEO must make an order revoking the TCO if satisfied that the requestor is a producer in Australia of goods that are substitutable in relation to the goods covered by the TCO, and that if the TCO were not in force on the day of the request, the CEO would not have made the TCO. Additionally, the CEO is required to publish in a Gazette a notice that includes a statement that a request has been lodged and the full particulars of the TCO to which the request relates, as soon as practicable after receiving a request for revocation of a TCO. Entities governed by the Act must comply with the requirements to apply for a TCO if they meet the core criteria, and to request the revocation of a TCO if they are a producer of substitutable goods. The CEO has an obligation to make an order revoking a TCO if satisfied that the requestor is a producer in Australia of substitutable goods, and that if the TCO were not in force on the day of the request, the CEO would not have made the TCO. The CEO must also publish a notice in a Gazette that includes a statement that a request has been lodged and the full particulars of the TCO to which the request relates, as soon as practicable after receiving a request for revocation of a TCO. There are no offences, penalties, or civil/criminal consequences for breach specified in the Instrument. However, failure to comply with the requirements of the Act may result in the imposition of civil or criminal penalties as provided by the Act. The maximum penalties for contraventions of the Act vary depending on the nature and severity of the offence. For example, section 281 of the Act provides for a maximum penalty of 10,000 penalty units for a corporation that contravenes certain provisions of the Act, while section 283 provides for a maximum penalty of 2,000 penalty units for an individual who contravenes certain provisions of the Act.