Overview

The Tariff Concessions Revocation Instrument No. 60/2011, enacted on 23 September 2010, addresses the issue of tariff concessions within the Customs Act 1901 by revoking Tariff Concession Order (TCO) 0906882, which pertains to cups. This instrument was created in response to a request from The Paper Cup Company, a producer of substitutable goods, to revoke the tariff concession. The Customs Act 1901 allows the Chief Executive Officer of Customs to revoke a TCO if they are satisfied that a producer of substitutable goods exists in Australia and that the TCO would not have been issued if the application were made on the day the revocation request was lodged. This revocation is effective from 28 July 2010, despite the general prohibition on retrospective legislative instruments under the Legislative Instruments Act 2003, reflecting the Act's objective to ensure fair competition and market dynamics in Australia by preventing unnecessary tariff concessions.

Scope and Application

The Tariff Concessions Revocation Instrument 60/2011 operates under the Customs Act 1901 to facilitate the revocation of a specific Tariff Concession Order (TCO), namely TCO 0906882, which pertains to cups. This instrument applies to any party who has lodged a request for the revocation of a TCO, specifically in this case, The Paper Cup Company. The scope of the Act extends to any entity claiming to be a producer in Australia of substitutable goods relative to the goods covered by a TCO. The Instrument has national reach, as it is an instrument under the Commonwealth Customs Act 1901. The revocation process is subject to certain conditions: the requesting entity must be an Australian producer of substitutable goods, and the CEO must be satisfied that the TCO would not have been granted had the application been lodged on the day of the revocation request. The revocation takes effect on the date the request to revoke the TCO was lodged, notwithstanding any provisions that would typically prohibit retrospective legislative action. The CEO is mandated to publish a notice in the Gazette upon receiving a revocation request, detailing the particulars of the TCO in question. This legislative instrument thus provides a mechanism for revoking tariff concessions based on specific conditions and requirements outlined in the Customs Act 1901.

Key Provisions

The Tariff Concessions Revocation Instrument 60/2011, made under section 269SC of the Customs Act 1901 (the Act), revokes Tariff Concession Order (TCO) 0906882. The TCO, which provided a lower rate of customs duty for cups, was revoked at the request of The Paper Cup Company. The CEO of Customs determined that The Paper Cup Company is a producer in Australia of goods that are substitutable to the goods covered by the TCO, and that if the TCO were not in force on the day the request for revocation was lodged, the CEO would not have made the TCO (subsection 269SC(1) and (3)). Under the Act, any 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 (section 269SB). The CEO must make an order revoking the TCO if satisfied that the applicant is a producer of substitutable goods and that the CEO would not have made the TCO if the request for revocation had been lodged on the day the TCO application was originally lodged (subsection 269SC(1) and (3)). The CEO must also publish a notice in a Gazette, including a statement that a request for revocation has been lodged and the full particulars of the TCO to which the request relates (subsection 269SC(1A)). The revocation of the TCO came into force on the day the request to revoke was lodged (subsection 269SC(6)), despite section 12 of the Legislative Instruments Act 2003, which generally prohibits the making of retrospective legislative instruments (subsection 269SD(8)). The revocation date of effect is from 28 July 2010, as specified in the Instrument. In terms of offences and penalties, while the Act does not specify penalties for the failure to comply with the revocation process, any misuse of the tariff concession scheme or fraudulent claims could potentially lead to criminal charges under other sections of the Customs Act. For example, section 228A of the Act makes it an offence to make a false statement or representation in connection with goods subject to a TCO, with penalties including fines of up to 10,000 penalty units or imprisonment for up to 10 years, or both, for corporate entities. Natural persons can face higher penalties, up to 5,000 penalty units or imprisonment for up to 5 years, or both.