Customs Amendment Act 1996

No. 30, 1996

An Act to amend the Customs Act 1901, and for related purposes

Customs Amendment Act 1996

No. 30, 1996

An Act to amend the Customs Act 1901, and for related purposes

The Parliament of Australia enacts:

[Assented to 9 July 1996]

1 Short title

This Act may be cited as the Customs Amendment Act 1996.

2 Commencement

(1) Subject to subsection (2), this Act commences at a time to be fixed by Proclamation, being a time after the time that the Customs Tariff (Miscellaneous Amendments) Act 1996 commences.

(2) If this Act does not commence within 6 months after the day on which it receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Customs Act 1901

Part 1—Amendments

1 Subsection 269B(1) (definition of last day for submissions)

Repeal the definition, substitute:

last day for submissions means:

(a) in relation to an original TCO application:

(i) so far as concerns a person invited by the CEO under section 269M to lodge a submission in respect of the TCO application—the day fixed in the notice inviting that submission; and

(ii) so far as concerns any other person—the day occurring 50 days after the gazettal day; and

(b) in relation to an amended TCO application:

(i) so far as concerns a person invited under paragraph 269L(4B)(a) to lodge a further submission in respect of the amended TCO application—the day occurring 14 days after the notification containing that invitation; and

(ii) so far as concerns any other person—the day occurring 14 days after publication of a notice under paragraph 269L(4B)(b) inviting submissions in relation to the amended application.

2 Subsection 269B(1) (definition of substitutable goods)

After “are put”, insert “, or are capable of being put,”.

3 At the end of section 269B

Add:

(3) In determining whether goods produced in Australia are put, or are capable of being put, to a use corresponding to a use to which goods the subject of a TCO, or of an application for a TCO, can be put, it is irrelevant whether or not the first-mentioned goods compete with the second-mentioned goods in any market.

4 Section 269C

Repeal the section, substitute:

269C Interpretation—core criteria

For the purposes of this Part, a TCO application is taken to meet the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business.

5 Subsection 269E(3) (definition of made-to-order capital equipment)

Repeal the definition, substitute:

made-to-order capital equipment means a particular item of capital equipment:

(a) that is made in Australia on a one-off basis to meet a specific order rather than being the subject of regular or intermittent production; and

(b) that is not produced in quantities indicative of a production run.

6 At the end of subsection 269F(3)

Add:

; and (c) if the applicant is not proposing to make use of the TCO to import the goods to which the application relates into Australia on the applicant’s own behalf—the identity of the importer for whom the applicant is acting; and

(d) particulars of all the inquiries made by the applicant (including inquiries made of prescribed organisations) to assist in establishing that there were reasonable grounds for believing that, on the day on which the application was lodged, there were no producers in Australia of substitutable goods.

7 After section 269F

Insert:

269FA The applicant’s obligation

It is the responsibility of an applicant for a TCO to establish, to the satisfaction of the CEO, that, on the basis of:

(a) all information that the applicant has, or can reasonably be expected to have; and

(b) all inquiries that the applicant has made, or can reasonably be expected to make;

there are reasonable grounds for asserting that the application meets the core criteria.

8 Paragraphs 269H(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if he or she is satisfied:

(i) that the application complies with section 269F; and

(ii) that, having regard to the information disclosed in the application and to the particulars of the inquiries made by the applicant, there are reasonable grounds for believing that the applicant has discharged the responsibility referred to in section 269FA; and

(b) if he or she is not aware of any producer in Australia of substitutable goods;

by notice in writing given to the applicant, inform the applicant that the application is accepted as a valid application; and

(c) if he or she is not so satisfied; or

(d) if he or she is aware of such a producer;

by notice in writing given to the applicant, inform the applicant that the application is rejected and of the reasons for the rejection.

9 After paragraph 269K(1)(a)

Insert:

(aa) identifying the applicant; and

(ab) if the applicant is not proposing to make use of the TCO to import the goods to which the application relates into Australia on the applicant’s own behalf—identifying the importer for whom the applicant is acting; and

10 Subsection 269L(2)

Omit “14 days”, substitute “28 days”.

11 Subsections 269L(3) and (4)

Repeal the subsections, substitute:

(3) The applicant must not, under subsection (2), propose an amendment of an application:

(a) that would cause the goods to which the application relates to be covered by a different Customs tariff classification to the one notified by the CEO in the Gazette under section 296K; or

(b) that would do otherwise than narrow the description of the goods as set out in the application.

(4) As soon as practicable after, but not more than 7 days after, a proposed amendment of a TCO application was notified to the CEO, the CEO must consider the proposed amendment and:

(a) if the CEO is satisfied that the proposed amendment does not contravene subsection (3)—the CEO must inform the applicant that he or she is so satisfied and that subsection (4B) applies accordingly; or

(b) if the CEO is not so satisfied—the CEO must inform the applicant that he or she is not so satisfied and of the reasons for not being so satisfied.

(4A) If the CEO is not satisfied that a proposed amendment of a TCO does not contravene subsection (3), the CEO must continue to consider the application as it was originally made.

(4B) If the CEO is satisfied that the proposed amendment does not contravene the requirements of subsection (3), the CEO must, within 14 days after becoming so satisfied:

(a) notify the proposed amendment to each person who lodged a submission referred to in subsection (1) and, subject to the operation of subsections (5) and (6), invite that person, if he or she considers there are reasons not dealt with in the original submission why the TCO as proposed to be amended should not be made, to lodge a further submission within 14 days after being so notified; and

(b) publish a notice in the Gazette setting out the amended description in relation to the application and inviting persons who consider that there are reasons why the TCO as proposed to be amended should not be made to lodge a submission with the CEO no later than 14 days after the publication of that notice.

(4C) The notification and subsequent publication of an amendment of a TCO application does not affect the gazettal day in relation to the application or any time limits calculated by reference to that gazettal day.

12 At the end of section 269M

Add:

(6) At any time during the period of 150 days starting on the gazettal day, the CEO may, for the purpose of dealing with a TCO application, and despite section 16 of the Customs Administration

Act 1985, give a copy of all, or of a part, of the application to a prescribed organisation with a view to obtaining the advice of the organisation in relation to the question whether there are producers in Australia of substitutable goods.

13 Paragraph 269N(1)(c)

Repeal the paragraph, substitute:

(c) having regard to written advice on the matter given by an officer of Customs;

14 At the end of paragraph 269P(1)(c)

Insert “and”.

15 After paragraph 269P(1)(c)

Add:

(d) any inquiries made by the CEO;

16 Subsection 269S(1)

Omit “28 days before", substitute "on”.

17 Paragraph 269SA(1)(b)

Omit “28 days before”, substitute “the day on which”.

18 Paragraph 269SA(1)(c)

Omit “28 days before”, substitute “on the day on which”.

19 Paragraph 269SA(2)(b)

Omit “28 days before”, substitute “the day on which”.

20 Paragraph 269SA(2)(c)

Omit “28 days before”, substitute “on the day on which”.

21 Subparagraph 269SB(1)(b)(ii)

Omit “had occurred 28 days before”, substitute “were the day on which”.

22 Paragraph 269SC(1)(b)

Omit “had occurred 28 days before an application for that TCO were lodged", substitute “were the day on which the application for that TCO was lodged”.

23 Paragraph 269SC(4)(b)

Omit “a day occurring 28 days before”, substitute “the day of lodgment of'.

24 Before subsection 269SD(1)

Insert:

(1AA) If:

(a) a TCO is in force on a particular day; and

(b) the CEO believes that if:

(i) the TCO were not in force on that day; and

(ii) that day were the day on which the application for the TCO was lodged;

the CEO would not have made the TCO; the CEO may, not later than 14 days after that day, publish a notice in the Gazette:

(c) declaring his or her intention, subject to subsection (1AB), to make an order revoking the TCO with effect from that particular day (the intended revocation day)", and

(b) inviting any person who might be affected by the revocation of that TCO to give a written submission to the CEO within 28 days of the notice concerning the proposed revocation.

(1AB) Within 60 days after the date of publication of the notice referred to in subsection (1AA), the CEO must, after consideration of the matters raised in any submissions made in response to the invitation and of any other relevant matters:

(a) decide whether or not he or she is satisfied of the matters referred to in paragraph (1AA)(b); and

(b) if the CEO is so satisfied—make an order revoking the TCO with effect from the intended revocation day.

25 After subsection 269SD(1)

Insert:

(1A) If the CEO is satisfied on any day that a TCO is no longer required because, in the 2 years preceding that day, the TCO has not been quoted in an import entry to secure a concessional rate of duty, the CEO may make an order revoking the TCO with effect from that day.

26 Paragraph 269SD(2)(c)

Repeal the paragraph, substitute:

(c) having regard to written advice on the matter given by an officer of Customs;

27 Subsection 269SE(2)

Omit “269SD(1)”, substitute “269SD(1AB), (1) or (1A)”.

28 Subsections 269SG(1), (2) and (4)

After “269SC(3) or (4)’’, insert “or 269SD(1AB) or (1A)”.

29 Subsection 269SG(4)

Omit “capital equipment” (first occurring), substitute “made-to-order capital equipment”.

30 At the end of section 269SG

Add:

(5) In this section:

made-to-order capital equipment means a particular item of capital equipment:

(a) that is made on a one-off basis to meet a specific order rather than being the subject of regular or intermittent production; and

(b) that is not produced in quantities indicative of a production run.

31 After section 269SH

Insert:

269SHA Administrative Appeals Tribunal Review of reconsideration decisions

(1) For the purpose of an application to the Administrative Appeals Tribunal under section 273GA for review of a decision under subsection 269SH(1) or (4) (a reconsideration decision), application may be made by any person who is an affected person in relation to that decision within the meaning of subsection 269SH(13).

(2) If an affected person applies to the Tribunal for review of a reconsideration decision, the CEO must, as soon as practicable

after being notified of the application or of the first such application, publish in the Gazette:

(a) particulars of the decision (including any relevant TCO number or TCO application number) in respect of which such an application for review has been made; and

(b) the name of the person who made such an application; and

(c) sufficient particulars to identify the review proceedings before the Tribunal.

(3) Any person who had not applied under section 273GA for review of a reconsideration decision but whose interests are affected by the decision (whether or not that person is an affected person within the meaning of subsection 269SH(13)) may apply under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to the proceedings within 60 days of the publication under subsection (2) or within such further period as the Tribunal allows.

(4) The Tribunal must not grant a person applying to be joined as a party to proceedings for review of a reconsideration decision an extension of the period of 60 days referred to in subsection (3) unless it is satisfied that the person was not reasonably able to apply within the period.

(5) Any document on which a party to proceedings for review of a reconsideration decision before the Administrative Appeals Tribunal intends to rely must, subject to the provisions of the Administrative Appeals Tribunal Act 1975:

(a) be filed with the Tribunal; and

(b) be served on the other parties to the proceeding;

not less than 28 days before the date set for hearing, unless the Tribunal makes an order permitting the document to be filed and served within a lesser period or to be introduced at the hearing without being so filed or served.

(6) deciding whether to make such an order, the Tribunal must have regard to whether there is any reasonable cause for the document not being made available at least 28 days before the date of the hearing.

32 Before paragraph 269SJ(1)(a)

Insert:

(aa) described in terms other than generic terms; or

33 After subsection 269SJ(1)

Insert:

(1A) Without limiting the meaning of the reference in paragraph (1)(aa) to goods described in generic terms, goods are taken not to be so described if their description, either directly or by implication, indicates that they are goods of a particular brand or model, or that a particular part number applies to the goods.

Note: The heading to section 269SJ is altered by omitting “prescribed” and substituting "certain".

34 Paragraph 273GA(1)(m)

Omit the paragraph, substitute:

(m) a decision under subsection 269H(1) to reject an application for a TCO;

(maa) a decision under subsection 269L(4) to the effect that the CEO is not satisfied that a proposed amendment of a description of goods to be covered by a TCO does not contravene subsection 269L(3);

35 Paragraph 273GA(1)(s)

Omit “269SD(1)”, substitute “269SD(1AB), (1), (1A)”.

Part 2—Transitional and saving provisions

36 Definitions

In this Part:

CEO means the Chief Executive Officer of Customs.

commencing time means the time at which this Act commences.

CTCO means a Commercial Tariff Concession Order having effect under Part XVA of the Customs Act as that Part is continued in force by section 20 of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992.

Customs Act means the Customs Act 1901.

TCO means a Tariff Concession Order in force under Part XVA of the Customs Act.

37 Applications made, but not decided, before the commencing time

(1)      An application for a TCO received by the CEO before the commencing time but not decided before that time is to be decided under the Customs Act as in force immediately before that time.

(2)      If the CEO is satisfied that an application to which subitem (1) applies meets the core criteria on the basis of paragraph 269C(a) of the Customs Act as in force immediately before the commencing time, the resulting TCO continues in force, subject to the operation of items 39, 40 and 41, after the commencing time, as if it had been made under the Customs Act as amended by this Act.

(3)      If the CEO is satisfied that an application to which subitem (1) applies meets the core criteria on the basis of paragraph 269C(b) of the Customs Act as in force immediately before the commencing time, the resulting TCO is taken to have effect, subject to the operation of items 39, 40 and 41, only until the commencing time, as if it had been revoked by the CEO under section 269SD of the Customs Act, with effect from that time.

38 Revocation of CTCOs and TCOs made before the commencing time

(1)      In spite of subsection 20(1) of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992, after the commencing time, the revocation of a CTCO in force immediately before that time is to be decided under the Customs Act as amended by this Act as if it were a TCO made under the Customs Act as amended by this Act.

(2)      After the commencing time:

(a) the CEO may, on his or her own initiative, revoke a TCO in force immediately before the commencing time in accordance with the Customs Act as amended by this Act; and

(b) subject to subitem (3), a request for the revocation of a TCO in force immediately before that time (whether or not the request was made before that time) is to be decided under the Customs Act as amended by this Act.

(3)      If a request for a revocation of a TCO is lodged with Customs before, but has not been finally determined before, the commencing time:

(a) the CEO must first decide whether the revocation should be made under the Customs Act as in force immediately before that time; and

(b) if the CEO is not satisfied that the revocation should be made under the Customs Act as then in force, the CEO must decide whether the revocation should be made under the Customs Act as amended by this Act.

(4)      A decision to revoke a TCO pursuant to paragraph (3)(a) of this item takes effect, subject to the operation of items 39, 40 and 41, on the day the request for the revocation was lodged. The Customs Act as in force immediately before the commencing time applies to that revocation as if it were made before that time.

(5)      In spite of subsection 269SC(6) of the Customs Act as amended by this Act, a decision to revoke a TCO pursuant to paragraph (3)(b) of this item takes effect, subject to the operation of items 39, 40 and 41, at the commencing time.

39 Internal review

(1)      If:

(a) a person makes an application for a TCO before the commencing time; and

(b) the CEO makes a decision on that application; and

(c) an application under section 269SH of the Customs Act for reconsideration of that decision:

(i) is made before that time but is not Finally determined before that time; or

(ii) is made after that time;

the application for reconsideration is to be decided under the Customs Act as in force immediately before that time.

(2)      If:

(a) a person lodges a request for the revocation of a TCO before the commencing time; and

(b) the CEO makes a decision in respect of that request; and

(c) an application under section 269SH of the Customs Act for reconsideration of that decision:

(i) is made before that time but is not finally determined before that time; or

(ii) is made after that time;

the application for reconsideration is to be decided under:

(d) the Customs Act as in force immediately before that time; and

(e) if, in considering the application, the CEO is not satisfied that the revocation sought by the request would have been made under the Customs Act as then in force—the Customs Act as amended by this Act.

(3)      If the CEO:

(a) on a reconsideration of a decision referred to in paragraph (1)(b) of this item; or

(b) on a reconsideration of a decision referred to in paragraph (1)(b) of this item;

makes a decision resulting in the granting of a new TCO on the basis of paragraph 269C(a) of the Customs Act as in force immediately before the commencing time, that new TCO is taken to continue in force, subject to the operation of items 40 and 41, after that time, as if it had been made under the Customs Act as amended by this Act.

(4)      If the CEO:

(a) on a reconsideration of a decision referred to in paragraph (1)(b) of this item; or

(b) on a reconsideration of a decision referred to in paragraph (1)(b) of this item;

makes a decision resulting in the granting of a new TCO on the basis of paragraph 269C(b) of the Customs Act as in force immediately before the commencing time, that new TCO is taken to have effect, subject to the operation of items 40 and 41, only until that time, as if it had been revoked by the CEO under section 269SD of the Customs Act with effect from that time.

(5)      If the CEO, on a reconsideration of a decision referred to in paragraph (2)(b) of this item, makes a decision resulting in the revocation of the TCO on the basis of the Customs Act as in force immediately before the commencing time:

(a) the revocation takes effect, subject to the operation of items 40 and 41, on the day the request referred to in paragraph (2)(a) of this item was lodged; and

(b) the Customs Act as in force immediately before the commencing time applies to that revocation as if it were made before that time.

(6)      If the CEO, on a reconsideration of a decision referred to in paragraph (2)(b) of this item, makes a decision resulting in the revocation of the TCO on the basis of the Customs Act as amended by this Act, then, in spite of subsection 269SC(6) of the Customs Act as amended by this Act, the revocation takes effect, subject to the operation of items 40 and 41, at the commencing time.

40 AAT review

(1)      If:

(a) a person makes an application for a TCO before the commencing time; and (a) the CEO makes a decision on that application; and

(b) the CEO subsequently reconsiders that decision under section 269SH; and

(c) application to the Administrative Appeals Tribunal under paragraph 273GA(1)(n) of the Customs Act for review of the decision on that reconsideration:

(i) is made before that time but is not finally determined before that time; or

(ii) is made after that time;

the application for review is to be decided under the Customs Act as in force immediately before that time.

(2)      If:

(a) a person lodges a request for the revocation of a TCO before the commencing time; and

(b) the CEO makes a decision in respect of that request; and

(c) the CEO subsequently reconsiders that decision under section 269SH; and

(d) application to the Administrative Appeals Tribunal under paragraph 273GA(1)(q) of the Customs Act for review of the decision on that reconsideration:

(i) is made before that time but is not finally determined before that time; or

(ii) is made after that time;

the application for review is to be decided under:

(e) the Customs Act as in force immediately before that time; and

(f) if. in considering the application, the Administrative Appeals Tribunal is not satisfied that the revocation sought by the request would have been made under the Customs Act as then in force—the Customs Act as amended by this Act.

(3)      If:

(a) a person lodges a request for the revocation of a TCO before the commencing time; and

(b) the CEO makes a decision in respect of that request; and

(c) the CEO subsequently reconsiders that decision under section 269SH; and

(d) application to the Administrative Appeals Tribunal under paragraph 273GA(1)(r) of the Customs Act for review of the decision on that reconsideration:

(i) is made before that time but is not finally determined before that time; or

(ii) is made after that time;

the application for review is to be decided under the Customs Act as in force immediately before that time.

(4)      If the Tribunal:

(a) on reviewing a decision made on a reconsideration referred to in paragraph (1)(c) of this item; or

(b) on reviewing a decision made on a reconsideration referred to in paragraph (3)(c) of this item;

makes a decision resulting in the granting of a new TCO on the basis of paragraph 269C(a) of the Customs Act as in force immediately before the commencing time, that new TCO is taken to continue in force, subject to the operation of item 41, after that time, as if it had been made under the Customs Act as amended by this Act.

(5)      If the Tribunal:

(a) on reviewing a decision made on a reconsideration referred to in paragraph (1)(c) of this item; or

(b) on reviewing a decision made on a reconsideration referred to in paragraph (3)(c) of this item;

makes a decision resulting in the granting of a new TCO on the basis of paragraph 269C(b) of the Customs Act as in force immediately before the commencing time, that new TCO is taken to have effect, subject to the operation of item 41, only until that time, as if it had been revoked by the CEO under section 269SD of the Customs Act with effect from that time.

(6)      If the Tribunal, on reviewing a decision made on a reconsideration referred to in paragraph (2)(c) of this item, makes a decision resulting in the revocation of the TCO on the basis of the Customs Act as in force immediately before the commencing time:

(a) that revocation takes effect, subject to the operation of item 41, on the day the request referred to in paragraph (2)(a) of this item was lodged; and

(b) the Customs Act as in force immediately before the commencing time applies to the revocation as if it were made before that time.

(7)      If the Tribunal, on reviewing a decision made on a reconsideration referred to in paragraph (2)(c) of this item, makes a decision resulting in the revocation of the TCO on the basis of the Customs Act as amended by this Act, then, in spite of subsection 269SC(6) of the Customs Act as amended by this Act, the revocation takes effect, subject to the operation of item 41, at the commencing time.

41 Pending proceedings in the Federal Court or High Court

If legal proceedings have been brought in the Federal Court of Australia or the High Court of Australia in relation to:

(a) an application for a TCO made under section 269F of the Customs Act before the commencing time; or

(b) a request for a revocation of a TCO lodged under section 269SB of the Customs Act before that time;

then the Customs Act as in force immediately before that time continues to apply in relation to that application or request for the purposes of those proceedings.

42 Revocation of certain by-laws and determinations

(1)      This item applies:

(a) to any by-law that was made under section 271 of the Customs Act and in force immediately before the commencing time; and

(b) to any determination made under section 273 of that Act and in force immediately before that time;

if that by-law or determination is taken to be made in relation to item 43, 45, 46, 52 or 56 of Schedule 4 to the Customs Tariff Act 1995 by virtue of item 2 of Schedule 2 to the Customs Tariff (Miscellaneous Amendments) Act 1996.

(2)      A by-law or determination to which this item applies is to be taken to have been revoked with effect from the commencing time.

(3)      If:

(a) a person had, before the commencing time, requested that the CEO make a by-law under section 271 of the Customs Act to enable goods to be covered by an item referred to in subitem (1); and

(b) that request was still outstanding at that time;

that request is to be treated as if it were a request made under the Customs Act as amended by this Act.

(4)      If:

(a) a person had, before the commencing time, requested that the CEO make a determination under section 273 of the Customs Act to enable goods to be covered by an item referred to in subitem (1); and

(b) that request was still outstanding at that time;

that request is to be treated as if it were a request made under the Customs Act as amended by this Act.

43 Effect of revocation on goods in transit and capital equipment on order

(1)      In this item:

revoked instrument means:

(a) a TCO that is taken to have been revoked under item 37, 39 or 40 of this Schedule; or

(b) a by-law or determination that is taken to have been revoked under item 42 of this Schedule.

(2)      Subject to subitem (3), a revoked instrument ceases to apply in relation to goods entered for home consumption after the time when the revocation comes into effect.

(3)      Despite its revocation, the instrument continues to apply in relation to:

(a) goods that:

(i) were imported into Australia before the time when the revocation came into effect; and

(ii) are entered for home consumption before the commencing time, or on, or within 28 days after, the day when the commencing time occurs; and

(b) goods that:

(i) were in transit to Australia at the commencing time; and

(ii) are entered for home consumption before, on, or within 28 days after, the day on which they were imported into Australia.

(4)      For the purposes of subparagraph (3)(b)(i) of this item, goods are taken to be in transit to Australia only if they have left for direct shipment to Australia from a place of manufacture, or a warehouse, in the country from which they are being exported.

(5)      If an officer of Customs is satisfied that, after a revoked instrument in relation to made-to-order capital equipment comes into force but before its revocation in accordance with item 37, 39, 40 or 42 of this Schedule, a firm order had been placed for the purchase of any such equipment:

(a) if the instrument is a by-law or determination that is taken to have been revoked under item 42 of this Schedule—the instrument continues to apply in relation to the importation

into Australia of that equipment if the equipment is entered for home consumption on or before 15 February 1997; and

(b) in any other case—the instrument continues to apply in relation to the importation into Australia of that capital equipment.

(6)      In this item;

made-to-order capital equipment has the same meaning as in section 269SG of the Customs Act as amended by this Act.

[Minister’s second reading speech made in—

House of Representatives on 30 May 1996

Senate on 19 June 1996]