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Orders/Other as made
This order provides for the establishment and administration of a system of tariff rate quotas for the export of feed grain to Indonesia. The tariff rate quota permits Australian exporters to export stipulated volumes of feed grain to Indonesia at a reduced tariff rate.
Administered by: Agriculture, Water and the Environment
Registered 25 Jun 2020

Commonwealth Coat of Arms of Australia

 

Export Control (Tariff Rate Quotas—Feed Grain Export to Indonesia) Order 2020

I, Debbie Langford, as delegate of the Secretary of the Department of Agriculture, Water and the Environment, make the following order.

Dated 18 June 2020

Debbie Langford

Assistant Secretary
Residues and Food Branch
Exports Division
Department of Agriculture, Water and the Environment

 

  

  

  


Contents

Part 1—Preliminary                                                                                                                                        1

1............ Name............................................................................................................................. 1

2............ Commencement............................................................................................................. 1

3............ Authority....................................................................................................................... 1

4............ Purpose of this instrument............................................................................................. 1

5............ Definitions..................................................................................................................... 1

6............ Tariff rate quota entitlement........................................................................................... 3

Part 2—Reservation of tariff rate quota entitlement                                                                 4

7............ Applications to reserve tariff rate quota entitlement....................................................... 4

8............ Applications to be dealt with in order of receipt............................................................ 4

9............ Reserving tariff rate quota entitlement........................................................................... 4

10.......... When Secretary may decide not to reserve tariff rate quota entitlement......................... 5

11.......... Outcome of application.................................................................................................. 5

12.......... Application to vary reservation amount......................................................................... 6

Part 3—Tariff rate quota certificates                                                                                                  7

13.......... Issue of tariff rate quota certificates using tariff rate quota entitlement.......................... 7

14.......... When Secretary may decide not to issue tariff rate quota certificate............................... 7

15.......... Cancellation of tariff rate quota certificates.................................................................... 8

16.......... Replacement tariff rate quota certificates........................................................................ 9

17.......... Recording issue of tariff rate quota certificate................................................................ 9

18.......... Recording cancellation of tariff rate quota certificate................................................... 10

19.......... Effect of cancellation on calculations........................................................................... 10

20.......... When tariff rate quota certificate has effect.................................................................. 10

21.......... Tariff rate quota certificates not transferable or able to be varied................................. 10

Part 4—Cancelling tariff rate quota entitlements                                                                      11

22.......... Secretary may cancel tariff rate quota entitlement........................................................ 11

23.......... Cancellation of tariff rate quota entitlement on request................................................ 11

24.......... Entitlement cancelled at end of certificate application period........................................ 12

Part 5—Reviewable decisions                                                                                                                 13

25.......... Initial decisions............................................................................................................ 13

26.......... Application for reconsideration by Secretary of initial decision................................... 13

27.......... Secretary to reconsider initial decision......................................................................... 13

28.......... Application for review by Administrative Appeals Tribunal....................................... 14

29.......... Reconsidering and reviewing decisions....................................................................... 14

Part 6—Miscellaneous                                                                                                                                 15

30.......... Matters relating to applications.................................................................................... 15

31.......... Audits.......................................................................................................................... 16

32.......... Secretary may arrange for use of computer programs to make decisions.................... 16

 

 


Part 1Preliminary

  

1  Name

                   This instrument is the Export Control (Tariff Rate Quotas—Feed Grain Export to Indonesia) Order 2020.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

The day after this instrument is registered.

26 June 2020

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under section 23A of the Export Control Act 1982.

4  Purpose of this instrument

                   This instrument provides for, and in relation to, the establishment and administration of a system of tariff rate quotas for the export of feed grain to Indonesia.

5  Definitions

                   In this instrument:

annual access amount, for a quota year, means the weight of feed grain that may, under the Indonesia‑Australia Comprehensive Economic Partnership Agreement, be exported from Australia to Indonesia in the quota year at a reduced tariff rate.

certificate application period, for an eligible feed grain contract, means the period specified in the contract for applications for tariff rate quota certificates to be made.

consignment means a single shipment (by sea or air) of feed grain that is exported to a single consignee.

eligible feed grain contract means a contract between a person and a consignee in Indonesia to export feed grain that:

                     (a)  is signed by both parties; and

                     (b)  specifies the total weight of feed grain to be exported to the consignee under the contract; and

                     (c)  specifies a period, no longer than 2 months, in which applications for tariff rate quota certificates for consignments to be exported will be made.

feed grain means feed grain of a kind that may be exported from Australia to Indonesia at a reduced tariff rate under the Indonesia‑Australia Comprehensive Economic Partnership Agreement.

Indonesia‑Australia Comprehensive Economic Partnership Agreement means the Indonesia‑Australia Comprehensive Economic Partnership Agreement done at Jakarta on 4 March 2019.

Note:          The Agreement could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

initial decision: see section 25.

quota year means a period of 12 months beginning on 1 January.

relevant destination authority means the authority or body that is responsible for regulating the importation of feed grain into Indonesia.

relevant liability means:

                     (a)  a fee imposed under the Export Control (Fees) Order 2015 that is due and payable; or

                     (b)  a charge prescribed by the Export Charges (Imposition—Customs) Regulation 2015 that is due and payable; or

                     (c)  a charge prescribed by the Export Charges (Imposition—General) Regulation 2015 that is due and payable.

relevant person, for an initial decision referred to in column 1 of an item in the table in section 25, means the person referred to in column 3 of that item.

reservation amount: a person’s reservation amount for an eligible feed grain contract and a quota year is the amount of tariff rate quota entitlement that the Secretary reserved under section 9 for export under the contract in that quota year.

Note:          The reservation amount does not change over time, unless it is varied under section 12. The amount of tariff rate quota entitlement for the contract and quota year will reduce over time as tariff rate quota certificates are issued for consignments of feed grain for export under the contract in the quota year.

tariff rate quota certificate means a tariff rate quota certificate issued under this instrument.

tariff rate quota entitlement: see section 6.

uncommitted annual access amount: the uncommitted annual access amount for a quota year at a particular time is the annual access amount for the quota year reduced by the sum of:

                     (a)  the total weight for which tariff rate quota certificates have been issued in relation to consignments of feed grain for export to Indonesia in that quota year; and

                     (b)  the total amounts of tariff rate quota entitlements at that time of all persons for all eligible feed grain contracts and that quota year.

Note:          If a tariff rate quota certificate in relation to a consignment is cancelled, the certificate is taken never to have been issued (see section 19).

6  Tariff rate quota entitlement

             (1)  In this instrument, a person has a tariff rate quota entitlement for an eligible feed grain contract and a quota year if:

                     (a)  the Secretary has reserved an amount of tariff rate quota entitlement under section 9 for export under the contract in that quota year; and

                     (b)  the entitlement has not been cancelled under section 22, 23 or 24.

             (2)  The amount of the person’s tariff rate quota entitlement at a particular time is the reservation amount for the contract and the quota year reduced by the total weight for which tariff rate quota certificates have been issued before that time in relation to consignments for export to Indonesia under the contract in the quota year.

Note 1:       The amount reserved by the Secretary does not change over time, unless it is varied under section 12. The amount of tariff rate quota entitlement for the contract and quota year will reduce over time as tariff rate quota certificates are issued for consignments of feed grain for export under the contract in the quota year.

Note 2:       If a tariff rate quota certificate in relation to a consignment is cancelled, the certificate is taken never to have been issued (see section 19).

             (3)  An amount includes a zero amount.

Part 2Reservation of tariff rate quota entitlement

  

7  Applications to reserve tariff rate quota entitlement

             (1)  A person may apply to the Secretary to reserve an amount of tariff rate quota entitlement for export of feed grain to Indonesia in a quota year under an eligible feed grain contract.

             (2)  The maximum amount of tariff rate quota entitlement that the person may apply to reserve is 110% of the total weight of feed grain specified in the contract.

             (3)  An application must not be made before 1 November in the calendar year immediately before the quota year.

Note:          A person also must not make an application in certain periods after having a previous amount of tariff rate quota entitlement cancelled (see subsections 23(6) and 24(4)).

             (4)  An application must:

                     (a)  be accompanied by a copy of the eligible feed grain contract; and

                     (b)  state the amount of tariff rate quota entitlement that the applicant wishes to reserve.

Note:          See section 30 for additional requirements and other matters relating to applications.

8  Applications to be dealt with in order of receipt

                   The Secretary must deal with applications made under subsection 7(1) in the order in which the applications are received by the Secretary.

Note:          Subsection 30(7) deals with when an application is taken to be received by the Secretary.

9  Reserving tariff rate quota entitlement

             (1)  This section applies in relation to an application under subsection 7(1).

             (2)  Subject to section 10, the Secretary must reserve an amount of tariff rate quota entitlement for export by the applicant under the eligible feed grain contract in the quota year if, at the time the Secretary deals with the application:

                     (a)  the uncommitted annual access amount for the quota year is greater than zero; and

                     (b)  if the application was made before 1 May in the quota year—the total of the applicant’s reservation amounts for eligible feed grain contracts for the quota year is less than 150,000 tonnes.

Note:          Section 10 deals with when the Secretary may decide not to reserve an amount of tariff rate quota entitlement.

             (3)  The amount the Secretary must reserve is the lowest of the following amounts:

                     (a)  the amount of tariff rate quota entitlement applied for;

                     (b)  the uncommitted annual access amount at the time the Secretary deals with the application;

                     (c)  if the application was made before 1 May in the quota year—the difference, at the time the Secretary deals with the application, between 150,000 tonnes and the total of the applicant’s reservation amounts for eligible feed grain contracts for the quota year.

             (4)  For the purposes of paragraphs (2)(b) and (3)(c), the total of the applicant’s reservation amounts for eligible feed grain contracts and the quota year is taken to be reduced by the amount of any tariff rate quota entitlement of the person for an eligible feed grain contract and the quota year that has been cancelled under section 22, 23 or 24.

10  When Secretary may decide not to reserve tariff rate quota entitlement

                   The Secretary may decide not to reserve an amount of tariff rate quota entitlement for export by the applicant under the eligible feed grain contract in the quota year if the Secretary considers that it is not appropriate to do so, taking into account any or all of the following:

                     (a)  any failure by the applicant to comply with a request made under subsection 31(3) (requests relating to audits);

                     (b)  if a licence is required under a law of the Commonwealth to export consignments of feed grain under the contract—whether the applicant holds such a licence;

                     (c)  any relevant liability in relation to a tariff rate quota certificate that has not been paid by the applicant (including if the applicant is jointly liable with another person or other persons);

                     (d)  whether the applicant’s business as an exporter of feed grain is not financially viable or is not likely to remain so;

                     (e)  whether it would not be in the best interests of the feed grain industry for the reservation to be made.

11  Outcome of application

             (1)  If the Secretary reserves an amount of tariff rate quota entitlement for export of feed grain by the applicant under the eligible feed grain contract in the quota year, the Secretary must:

                     (a)  make an entry reflecting the reservation in an electronic system maintained by the Department; and

                     (b)  give the applicant written notice of the reservation amount for the contract and the quota year.

             (2)  If the Secretary does not reserve an amount of tariff rate quota entitlement for export of feed grain by the applicant under the eligible feed grain contract in the quota year, the Secretary must give the applicant a written notice stating:

                     (a)  that the application was not successful; and

                     (b)  the reasons why the application was not successful; and

                     (c)  if the decision was made under section 10—information about the applicant’s right to have the decision reviewed.

Note:          An application might also not be successful because the uncommitted annual access amount for the quota year is zero, or because the applicant already has 150,000 tonnes reserved before 1 May in the quota year.

12  Application to vary reservation amount

             (1)  A person who has a tariff rate quota entitlement for an eligible feed grain contract (the original contract) and a quota year may, if the total weight of feed grain to be exported under the contract is varied (the varied contract), make an application to the Secretary to vary the reservation amount for the contract.

             (2)  Subsections 7(2) and (4) and sections 8 to 11 apply to the application as if it were an application under subsection 7(1).

Note:          See section 30 for additional requirements and other matters relating to applications.

             (3)  For the purposes of dealing with the application under section 9, the applicant is taken not to have a reservation amount and tariff rate quota entitlement for the contract and the quota year.

Note:          This prevents the contract from being double‑counted by excluding the original contract from calculations in relation to the varied contract.

             (4)  If, under section 9, the Secretary reserves an amount of tariff rate quota entitlement for export in the quota year under the varied contract (the new reservation amount):

                     (a)  the new reservation amount becomes the applicant’s reservation amount for the contract and the quota year; and

                     (b)  the applicant’s tariff rate quota entitlement for the contract and the quota year is the new reservation amount reduced by the weight for which tariff rate quota certificates have already been issued in relation to consignments for export to Indonesia in the quota year under the original contract.

             (5)  If the Secretary does not reserve an amount of tariff rate quota entitlement for export under the varied contract, the applicant’s reservation amount and amount of tariff rate quota entitlement for the original contract and the quota year are unchanged.

Part 3Tariff rate quota certificates

  

13  Issue of tariff rate quota certificates using tariff rate quota entitlement

Applications for tariff rate quota certificates

             (1)  A person who has a tariff rate quota entitlement for an eligible feed grain contract and a quota year may, if the amount of the entitlement is greater than zero, apply to the Secretary for a tariff rate quota certificate in relation to a consignment to be exported to Indonesia under the contract in the quota year.

             (2)  An application must be made during the certificate application period for the contract.

Note:          See section 30 for additional requirements and other matters relating to applications.

Issuing tariff rate quota certificates

             (3)  Subject to section 14, the Secretary must issue a tariff rate quota certificate to the applicant in relation to the consignment.

Note:          Section 14 deals with when the Secretary may decide not to issue a certificate.

             (4)  The certificate must be issued for the lower of the following amounts:

                     (a)  the weight of the consignment applied for;

                     (b)  the amount of the applicant’s tariff rate quota entitlement for the contract and the quota year at the time the Secretary deals with the application.

Note:          The amount of the applicant’s tariff rate quota entitlement for the contract and the quota year is reduced by the weight for which the tariff rate quota certificate is issued (see subsection 6(2)).

14  When Secretary may decide not to issue tariff rate quota certificate

             (1)  The Secretary may decide not to issue a tariff rate quota certificate to an applicant under subsection 13(1) if the Secretary considers that it is not appropriate to issue the certificate, taking into account any or all of the following:

                     (a)  any failure by the applicant to comply with a request made under subsection 31(3) (requests relating to audits);

                     (b)  if a licence is required under a law of the Commonwealth to export the consignment—whether the applicant holds such a licence;

                     (c)  any relevant liability in relation to a tariff rate quota certificate that has not been paid by the applicant (including if the applicant is jointly liable with another person or other persons);

                     (d)  whether the applicant’s business as an exporter of feed grain is not financially viable or is not likely to remain so;

                     (e)  whether it would not be in the best interests of the feed grain industry for the certificate to be issued.

             (2)  If the Secretary decides not to issue a tariff rate quota certificate, the Secretary must give the applicant a written notice stating:

                     (a)  the reasons for the decision; and

                     (b)  information about the applicant’s right to have the decision reviewed.

15  Cancellation of tariff rate quota certificates

Cancellation on request

             (1)  The Secretary must cancel a tariff rate quota certificate in relation to a consignment for export to Indonesia if:

                     (a)  the person to whom the certificate was issued requests the Secretary to do so; and

                     (b)  the certificate has not been accepted by the relevant destination authority; and

                     (c)  if hard copies of the certificate were issued—the person gives the Secretary:

                              (i)  all the hard copies of the certificate; or

                             (ii)  a declaration, in any form the Secretary requires and accompanied by any evidence the Secretary requires, about why the copies cannot be given.

Cancellation on Secretary’s own initiative

             (2)  The Secretary may cancel a tariff rate quota certificate in relation to a consignment for export to Indonesia if:

                     (a)  the certificate has not been accepted by the relevant destination authority; and

                     (b)  any of the following apply:

                              (i)  the certificate is incorrect in any respect;

                             (ii)  the consignment did not leave Australia within 6 weeks after the certificate was issued;

                            (iii)  the person to whom the certificate was issued fails to comply with a request under subsection 31(3) (requests relating to audits);

                            (iv)  the person does not hold, or has ceased to hold, any licence required under a law of the Commonwealth to export the consignment;

                             (v)  a relevant liability in relation to a tariff rate quota certificate has not been paid by the person (including if the person is jointly liable with another person or other persons);

                            (vi)  the person’s business as an exporter of feed grain is not financially viable or is not likely to remain so;

                           (vii)  the Secretary considers that it would not be in the best interests of the feed grain industry for the person to continue to hold the certificate.

Note:          The Secretary must notify the person to whom the certificate was issued (see paragraph 18(1)(b)).

16  Replacement tariff rate quota certificates

Applications for replacement tariff rate quota certificates

             (1)  A person to whom a tariff rate quota certificate (the original certificate) was issued in relation to a consignment for export to Indonesia under an eligible feed grain contract in a quota year may apply to the Secretary for a new tariff rate quota certificate (the replacement certificate) to be issued in relation to a consignment for export to Indonesia under the contract in the quota year if:

                     (a)  the original certificate has not been accepted by the relevant destination authority and has not been cancelled; and

                     (b)  the tariff rate quota entitlement of the person for the eligible feed grain contract and quota year has been cancelled.

Note 1:       If the person has a tariff rate quota entitlement, the person may request cancellation of a tariff rate quota certificate under subsection 15(1), and apply for a new certificate under section 13.

Note 2:       See section 30 for additional requirements and other matters relating to applications.

Issuing replacement tariff rate quota certificates

             (2)  The Secretary must issue a replacement certificate to the applicant in relation to the consignment.

             (3)  The replacement certificate must be issued for the lowest of the following amounts:

                     (a)  the weight of the consignment;

                     (b)  the difference between:

                              (i)  the reservation amount for the eligible feed grain contract and the quota year; and

                             (ii)  the total weight for which tariff rate quota certificates (other than the original certificate) have been issued in relation to consignments for export under the eligible feed grain contract;

                     (c)  the sum of:

                              (i)  the uncommitted annual access amount at the time the Secretary deals with the application; and

                             (ii)  the amount for which the original certificate was issued.

             (4)  When the Secretary issues the replacement certificate, the Secretary must cancel the original certificate.

17  Recording issue of tariff rate quota certificate

                   If the Secretary issues a tariff rate quota certificate to a person under section 13 or 16, the Secretary must:

                     (a)  record the issue of the certificate in an electronic system maintained by the Department; and

                     (b)  either:

                              (i)  send the certificate to the person; or

                             (ii)  give the person written notice that the certificate has been issued.

18  Recording cancellation of tariff rate quota certificate

             (1)  If the Secretary cancels a tariff rate quota certificate under section 15 or 16, the Secretary must:

                     (a)  record the cancellation of the certificate in an electronic system maintained by the Department; and

                     (b)  if the cancellation was under subsection 15(2)—give the person to whom the certificate was issued written notice of the cancellation.

             (2)  A notice under paragraph (1)(b) must include:

                     (a)  the reasons for the cancellation; and

                     (b)  information about the person’s right to have the decision reviewed.

19  Effect of cancellation on calculations

                   For the purposes of working out the weight of tariff rate quota certificates that have been issued in relation to consignments, a tariff rate quota certificate that is cancelled is taken never to have been issued.

20  When tariff rate quota certificate has effect

             (1)  If a tariff rate quota certificate in relation to a consignment for export to Indonesia in a quota year is issued before the start of the quota year, the certificate has no effect before the start of the quota year.

             (2)  A tariff rate quota certificate in relation to a consignment for export to Indonesia in a quota year ceases to have effect if the consignment is not accepted for entry into Indonesia before:

                     (a)  the end of the quota year; or

                     (b)  if the relevant destination authority has set an earlier expiry date—that expiry date.

21  Tariff rate quota certificates not transferable or able to be varied

                   A tariff rate quota certificate is not transferable and may not be varied in any respect.

Note:          A certificate may be cancelled and, subject to the requirements of this instrument, a new certificate may be able to be issued with similar content.

Part 4Cancelling tariff rate quota entitlements

  

22  Secretary may cancel tariff rate quota entitlement

             (1)  The Secretary may cancel the tariff rate quota entitlement of a person for an eligible feed grain contract and a quota year if any of the following apply:

                     (a)  the person fails to comply with a request under subsection 31(3) (requests relating to audits);

                     (b)  the person does not hold, or has ceased to hold, any licence required under a law of the Commonwealth to export consignments of feed grain under the contract;

                     (c)  a relevant liability in relation to a tariff rate quota certificate has not been paid by the person (including if the person is jointly liable with another person or other persons);

                     (d)  the person’s business as an exporter of feed grain is not financially viable or is not likely to remain so;

                     (e)  the Secretary considers that it would not be in the best interests of the feed grain industry for the person to continue to have the tariff rate quota entitlement.

Note:          For the purposes of paragraphs 9(2)(b) and (3)(c), the total of the person’s reservation amounts for eligible feed contracts and the quota year is take to be reduced by any tariff rate quota entitlement cancelled under this section (see subsection 9(4).

             (2)  If the Secretary cancels a person’s tariff rate quota entitlement for an eligible feed grain contract and a quota year under subsection (1), the Secretary must:

                     (a)  record the cancellation of the entitlement in an electronic system maintained by the Department; and

                     (b)  give the person written notice that the entitlement has been cancelled.

             (3)  A notice under paragraph (2)(b) must include:

                     (a)  the reasons for the cancellation; and

                     (b)  information about the person’s right to have the decision reviewed.

23  Cancellation of tariff rate quota entitlement on request

             (1)  A person who has a tariff rate quota entitlement for an eligible feed grain contract and a quota year may give the Secretary a written notice (a cancellation notice) stating that:

                     (a)  the person does not want to make further applications for tariff rate quota certificates for consignments under the contract; and

                     (b)  the person wants the tariff rate quota entitlement for the contract to be cancelled.

             (2)  A cancellation notice must be given to the Secretary before the end of the certificate application period for the contract.

Note:          If no notice is given and an amount of tariff rate quota entitlement remains at the end of the certificate application period, the entitlement will be cancelled and the person will be excluded from applying for further reservation amounts for a period (see section 24).

             (3)  If the Secretary receives a cancellation notice, the person’s tariff rate quota entitlement for the contract and the quota year is cancelled at the time the Secretary receives the notice.

Note:          For the purposes of paragraphs 9(2)(b) and (3)(c), the total of the person’s reservation amounts for eligible feed contracts and the quota year is take to be reduced by any tariff rate quota entitlement cancelled under this section (see subsection 9(4)).

             (4)  However, if at the time the Secretary receives the notice the person has made one or more applications for a tariff rate quota certificate in relation to a consignment to be exported under the contract in the quota year that the Secretary has not dealt with, the entitlement is cancelled when the Secretary has dealt with all of the applications.

             (5)  The Secretary must record the cancellation of the entitlement in an electronic system maintained by the Department.

             (6)  If the amount of the cancelled tariff rate quota entitlement for the contract and the quota year is more than 25% of the reservation amount for the contract and quota year, the person must not make an application under section 7 for a period of 28 days beginning on the day the Secretary receives the cancellation notice.

24  Entitlement cancelled at end of certificate application period

             (1)  If a person has a tariff rate quota entitlement for an eligible feed grain contract and a quota year at the end of the certificate application period for the contract (and has not given the Secretary a cancellation notice in accordance with section 23), the entitlement is cancelled at the start of the day after the last day of the certificate application period for the contract (the cancellation time).

Note:          For the purposes of paragraphs 9(2)(b) and (3)(c), the total of the person’s reservation amounts for eligible feed contracts and the quota year is take to be reduced by any tariff rate quota entitlement cancelled under this section (see subsection 9(4)).

             (2)  However, if at the cancellation time the person has made one or more applications for a tariff rate quota certificate in relation to a consignment to be exported under the contract in the quota year that the Secretary has not dealt with, the entitlement is cancelled when the Secretary has dealt with all of the applications.

             (3)  The Secretary must record the cancellation of the entitlement in an electronic system maintained by the Department.

             (4)  If a person’s tariff rate quota entitlement for a contract and quota year is cancelled under this section and the amount of the cancelled entitlement is not zero, the person must not make an application under section 7:

                     (a)  for a period of 28 days beginning on the day the entitlement is cancelled; or

                     (b)  if the amount of the cancelled entitlement is equal to the person’s reservation amount for the contract and quota year—until 1 May in the next quota year.

Part 5Reviewable decisions

  

25  Initial decisions

                   Each of the decisions referred to in column 1 of the following table is an initial decision.

 

Initial decisions

Item

Column 1

Initial decision

Column 2

Provision under which the initial decision is made

Column 3

Relevant person for the initial decision

1

Not to reserve an amount of tariff rate quota entitlement

Section 10

The person who applied for the reservation amount

2

Not to issue a tariff rate quota certificate

Subsection 14(1)

The person who applied for the certificate

3

To cancel a tariff rate quota certificate

Subsection 15(2)

The person to whom the certificate was issued

4

To cancel a tariff rate quota entitlement

Subsection 22(1)

The person who held the entitlement

26  Application for reconsideration by Secretary of initial decision

             (1)  A relevant person for an initial decision may apply to the Secretary to have the initial decision reconsidered.

             (2)  An application for reconsideration under this section must:

                     (a)  be in writing; and

                     (b)  set out the reasons for the application; and

                     (c)  be lodged with the Secretary within 28 days after the day the initial decision first came to the notice of the applicant, or within such longer period as the Secretary allows.

27  Secretary to reconsider initial decision

             (1)  On receiving an application under section 26 for reconsideration of an initial decision, the Secretary must reconsider the initial decision and, subject to this Part, the Secretary may:

                     (a)  affirm or set aside the initial decision; and

                     (b)  if the Secretary decides to set aside the initial decision—make any decision that the person who made the initial decision could have made.

             (2)  A decision set aside by the Secretary ceases to have effect.

             (3)  A decision of the Secretary under paragraph (1)(b) takes effect:

                     (a)  on the day specified in the decision; or

                     (b)  if a day is not specified—on the day the decision was made.

             (4)  The Secretary must give the applicant written notice of the Secretary’s decision under this section within 45 days after the day the application for reconsideration was received.

             (5)  The notice must set out the reasons for the Secretary’s decision.

             (6)  For the purposes of section 28, the Secretary is taken to have affirmed the initial decision if the applicant does not receive notice of the decision on review within 45 days after the day the application for reconsideration was received.

28  Application for review by Administrative Appeals Tribunal

                   Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Secretary made under section 27.

29  Reconsidering and reviewing decisions

             (1)  For the purposes of reconsidering, or reviewing, a decision:

                     (a)  references in section 9 to an amount at the time the Secretary deals with an application are taken to be references to the amount at the time of the reconsideration or review; and

                     (b)  references in section 13 to the amount of a person’s tariff rate quota entitlement for a contract and quota year at the time the Secretary deals with an application are taken to be references to:

                              (i)  for a reconsideration or review at a time when the person has a tariff rate quota entitlement for the contract and quota year—the amount of tariff rate quota entitlement at the time of the reconsideration or review; or

                             (ii)  for a reconsideration or review after the person’s tariff rate quota entitlement for the contract and quota year has been cancelled—the uncommitted annual access amount at the time of the reconsideration or review.

             (2)  If:

                     (a)  a decision to cancel a tariff rate quota certificate issued to a person is set aside at a time; and

                     (b)  the amount for which the certificate was issued is more than the amount (the available amount) for which a certificate could be issued to the person under section 13 or 16 at that time;

the cancelled certificate may only be reinstated for the available amount.

             (3)  If:

                     (a)  a decision to cancel a tariff rate quota entitlement is set aside at a time; and

                     (b)  the amount of tariff rate quota entitlement that was cancelled is more than the uncommitted annual access amount at that time (the available amount);

the tariff rate quota entitlement may only be reinstated for the available amount.

Part 6Miscellaneous

  

30  Matters relating to applications

Applications covered by this section

             (1)  This section applies in relation to an application under any of the following:

                     (a)  subsection 7(1) (application to reserve an amount of tariff rate quota entitlement);

                     (b)  subsection 12(1) (application to vary the reservation amount for an eligible feed grain contract);

                     (c)  subsection 13(1) (application for a tariff rate quota certificate);

                     (d)  subsection 16(1) (application for a replacement tariff rate quota certificate).

Requirements for applications

             (2)  An application must:

                     (a)  be made in a manner approved, in writing, by the Secretary; and

                     (b)  if the Secretary has approved a form for making the application:

                              (i)  include the information required by the form; and

                             (ii)  be accompanied by any documents required by the form.

Note:          A person may commit an offence if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code).

             (3)  The Secretary may accept any information or document previously given to the Secretary in connection with an application made under this instrument as satisfying any requirement to give that information or document under subsection (2).

             (4)  An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (2) for the application.

Secretary may request further information

             (5)  The Secretary may request further information from the applicant that is relevant to the application.

             (6)  Any further information in relation to the application (whether or not provided in response to a request under subsection (5)) must be given to the Secretary.

When application is taken to be received by Secretary

             (7)  An application is taken to be received by the Secretary when all of the following information has been received:

                     (a)  the information required by the approved form for the application or otherwise required by the Secretary;

                     (b)  if further information is requested under subsection (5) in relation to the application—that further information.

Withdrawal of application

             (8)  A person who has made an application may withdraw the application at any time before the Secretary makes a decision on the application.

31  Audits

             (1)  The Secretary may require an audit to be carried out in relation to the following:

                     (a)  an amount of tariff rate quota entitlement reserved for a person;

                     (b)  all amounts of tariff rate quota entitlements reserved for a person during a specified period;

                     (c)  a tariff rate quota certificate issued to a person;

                     (d)  all tariff rate quota certificates issued to a person during a specified period.

             (2)  An audit must be carried out by an auditor approved in writing by the Secretary.

             (3)  A person (the auditor) who is carrying out an audit in relation to one or more tariff rate quota entitlements reserved for a person, or tariff rate quota certificates issued to a person, may request the person to do either or both of the following:

                     (a)  produce any documents, records or things that the auditor is satisfied are relevant to the audit;

                     (b)  provide the auditor with all reasonable facilities and assistance for the effective carrying out of the audit.

32  Secretary may arrange for use of computer programs to make decisions

             (1)  The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Secretary may, or must, under this instrument:

                     (a)  make a decision; or

                     (b)  exercise any power or comply with any obligation; or

                     (c)  do anything else related to making a decision referred to in paragraph (a), or related to exercising a power or complying with an obligation referred to in paragraph (b).

             (2)  However, subsection (1) does not apply in relation to:

                     (a)  making an initial decision; or

                     (b)  reconsidering an initial decision under subsection 27(1).

Note:          For initial decision, see section 25.

             (3)  The Secretary must take all reasonable steps to ensure that decisions made by the operation of a computer program under an arrangement made under subsection (1) are correct.

             (4)  The Secretary is taken to have:

                     (a)  made a decision; or

                     (b)  exercised a power or complied with an obligation; or

                     (c)  done something else related to the making of a decision or exercise of a power or compliance with an obligation;

that was made, exercised, complied with or done by the operation of a computer program under an arrangement made under subsection (1).

             (5)  The Secretary may make a decision in substitution for a decision the Secretary is taken to have made under paragraph (4)(a) if the Secretary is satisfied that the decision made by the operation of the computer program is incorrect.