EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 96/2006
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).
Visy Industries Australia Pty Ltd requested that the CEO revoke TCO 0107594 which covers kraft paperboard.
Instrument
Tariff Concession Instrument No 96/2006 was made on 1 November 2006. It revokes TCO 0107594 and remakes a narrower TCO 0614831 covering kraft paperboard 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.96/2006 revoked 0107594 and made the narrower TCO No. 0614831 on 1 November 2006.
Overview
The Customs Act 1901, enacted by the Australian Parliament, established a framework for the imposition of customs duties on imported goods, among other things. A notable aspect of this Act is the ability for the Chief Executive Officer of Customs to make and revoke Tariff Concession Orders (TCOs), which provide for lower rates of customs duty on certain goods. The Tariff Concessions Revocation Instrument 96/2006, issued in response to a request by Visy Industries Australia Pty Ltd, revokes Tariff Concession Order 0107594, which pertained to kraft paperboard, and replaces it with a narrower Tariff Concession Order 0614831. This action was taken after it was determined that, while the original TCO would not have been made, a narrower TCO could have been issued. The policy objective here is to ensure that tariff concessions are only granted when no substitutable goods are produced in Australia, thereby balancing trade benefits with local production.
Scope and Application
The Tariff Concessions Revocation Instrument 96/2006 applies to the revocation of a Tariff Concession Order (TCO) under the Customs Act 1901, specifically TCO 0107594 which covers kraft paperboard. The instrument pertains to the Chief Executive Officer of Customs (CEO) who is responsible for making and revoking TCOs. It applies to the process where a person claiming to be a producer in Australia of substitutable goods may request the CEO to revoke a TCO if certain criteria are met, as outlined in the Act. The CEO must determine if the applicant is a producer of substitutable goods and if the TCO would not have been made if it were the day the application for the TCO was lodged. If the CEO is satisfied with these conditions and determines a narrower TCO could have been made, the existing TCO is revoked and replaced with a narrower one.
Geographically, the Act's application under this instrument is national, as it involves the Customs Act 1901, which is a Commonwealth Act. The instrument does not specify any exclusions or exemptions, nor does it mention any thresholds. The scope of the instrument is limited to the revocation and replacement of a specific TCO based on the statutory criteria and does not extend to other areas or types of TCOs unless specified by subordinate instruments. The commencement of the revocation and the replacement of the TCO is effective from the date the request for revocation was lodged, as stipulated in the Act.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 96/2006 include sections 269SB, 269SC, and 269SD of the Customs Act 1901. Section 269SB allows a producer in Australia of substitutable goods to request the Chief Executive Officer (CEO) of Customs to revoke a Tariff Concession Order (TCO) if they believe the TCO should not have been made. Under section 269SC, the CEO must decide whether to revoke the TCO based on specific criteria, including whether the applicant is a producer of substitutable goods and whether the TCO would have been made if it were not in force on the day the revocation request was lodged. If the CEO decides to revoke the TCO, they must consider whether a narrower TCO could be made instead (subsection 269SC(4)). Section 269SD outlines the commencement of the revocation and any new TCO, which comes into effect on the day the request to revoke was lodged (subsection 269SD(6) and 269SD(7)).
The obligations imposed by the Act on the parties and entities it governs include the requirement for any Australian producer of substitutable goods to formally request the CEO to revoke a TCO if they believe the concession should not apply (section 269SB). The CEO, in turn, is mandated to promptly decide on the revocation request by assessing the criteria outlined in section 269SC, including whether a narrower TCO could be implemented. Additionally, the CEO must publish a notice in a Gazette as soon as practicable after receiving a revocation request, detailing the request and the full particulars of the TCO in question (subsection 269SC(1A)).
The Instrument provides for civil and criminal consequences for breaches of the Act. Although the explanatory statement does not specify penalties, it is reasonable to infer that any breaches of the Act, such as providing false information in a revocation request or non-compliance with the statutory requirements, could lead to penalties under the Customs Act 1901 or other relevant legislation. Typically, such breaches may result in fines or other sanctions as determined by the relevant authorities, though the exact penalties are not detailed in this particular Instrument.