EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 59/2006
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).
Shorko Australia Pty Ltd requested that the CEO revoke TCO 0300863 which covers synthetic paper.
Instrument
Tariff Concession Instrument No 59/2006 was made on 21 July 2006. It revokes TCO 0300863 and remakes a narrower TCO 0612111 covering synthetic paper 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.59/2006 revoked 0300863 and made the narrower TCO No. 0612111 on 21 July 2006.
Overview
The Tariff Concessions Revocation Instrument 59/2006 was enacted to address the specific problem of revoking an existing tariff concession order (TCO) for synthetic paper, as requested by Shorko Australia Pty Ltd. The Customs Act 1901 provides a framework under which the Chief Executive Officer (CEO) of Customs may make or revoke TCOs, which apply lower rates of customs duty to certain goods. The explanatory statement outlines that the CEO was required to determine whether the revocation request was valid and whether a narrower TCO could be implemented in place of the revoked order. This legislative instrument was enacted by the CEO in accordance with the Customs Act 1901, with the primary objective of ensuring that the tariff concessions remain aligned with the production capabilities and market conditions in Australia.
Scope and Application
The Tariff Concessions Revocation Instrument 59/2006 applies to the revocation and subsequent replacement of Tariff Concession Orders (TCOs) under the Customs Act 1901. Specifically, it pertains to TCO 0300863, which covered synthetic paper, following a request for revocation by Shorko Australia Pty Ltd. The Act applies to the Chief Executive Officer of Customs (CEO) who is responsible for making and revoking TCOs based on certain criteria, including whether substitutable goods are produced in Australia. The CEO must assess whether the applicant for revocation is a producer of substitutable goods and whether, if the TCO were not in force, it would not have been made. If these criteria are met and a narrower TCO could be made, the CEO is required to revoke the existing TCO and issue a new, narrower one. This instrument reflects the Commonwealth's jurisdictional reach and applies nationally as it pertains to federal customs duties and concessions. It does not specify exclusions, exemptions, or thresholds within the text, though the process of revocation and replacement of TCOs is governed by specific provisions within the Customs Act 1901. The revocation and creation of a narrower TCO are effective from the date the request for revocation was lodged, notwithstanding legislative constraints on retrospective legislative instruments.
Key Provisions
The Tariff Concessions Revocation Instrument 59/2006 revokes Tariff Concession Order (TCO) 0300863 and introduces a narrower TCO 0612111 (sections 269C, 269P, and 269SC). Section 269C of the Customs Act 1901 allows the Chief Executive Officer of Customs (CEO) to create TCOs, which apply lower customs duty rates to specific goods. Section 269P stipulates that a TCO can only be made if, on the day the application is lodged, no substitutable goods are produced in Australia in the ordinary course of business. Section 269SC details the conditions under which the CEO can revoke a TCO, including being satisfied that the applicant is a producer of substitutable goods and that the CEO would not have made the TCO if the revocation request were the application day.
The CEO is mandated to assess whether the applicant meets the criteria for revocation and whether a narrower TCO could be made (subsection 269SC(1)). If satisfied, the CEO must revoke the existing TCO and issue a narrower TCO if applicable (subsection 269SC(4)). Shorko Australia Pty Ltd successfully requested the revocation of TCO 0300863, leading to the creation of the narrower TCO 0612111, as the CEO determined that while the original TCO would not have been issued, a narrower one could be.
Parties governed by the Customs Act 1901 must comply with the provisions regarding TCOs, including timely applications and revocations. Producers of goods subject to a TCO or substitutable goods must accurately report their production status to the CEO. The CEO, on the other hand, is obligated to review and respond to revocation requests promptly, publishing notices of such requests in the Gazette (subsection 269SC(1A)). This ensures transparency and allows stakeholders to be informed about changes in tariff concessions.
Breaches of the Customs Act 1901, including failure to comply with TCO regulations, may lead to various penalties. While specific penalties for such breaches are not detailed in the explanatory statement, general penalties under the Act can include fines and imprisonment for serious offences. The maximum penalties are often tied to the severity of the breach, with significant financial penalties and lengthy imprisonment terms for the most severe violations. Civil and administrative penalties may also apply, including fines and other corrective measures.