Part 1—Preliminary
1 Name
This instrument is the Export Control (Tariff Rate Quotas—Sheepmeat and Goatmeat Export to the European Union and United Kingdom) Rules 2021.
3 Authority
(1) Subject to subsection (2), this instrument is made under the Export Control Act 2020.
(2) Division 2 of Part 6 is made under the following:
(a) the Export Control Act 2020;
(b) item 92 of Schedule 3 to the Export Control (Consequential Amendments and Transitional Provisions) Act 2020.
5 Purpose of this instrument
For the purposes of section 264 of the Act, this instrument provides for, and in relation to, the establishment and administration of a system of tariff rate quotas for the export of sheepmeat and goatmeat to the European Union and the United Kingdom.
6 Definitions
In this instrument:
access amount means:
(a) for EU‑eligible meat—the EU‑access amount; or
(b) for UK FTA‑eligible meat—the UK FTA‑access amount; or
(c) for UK WTO‑eligible meat—the UK WTO‑access amount.
Act means the Export Control Act 2020, and includes:
(a) legislative instruments made under the Export Control Act 2020; and
(b) the Regulatory Powers Act as it applies in relation to the Export Control Act 2020.
all third countries quota means the annual EU import tariff quota, under order numbers 09.2178, 09.2179 and 09.2016 in Annex I to the EU Regulation, for export of sheepmeat and goatmeat from all third countries (except the UK) to the EU.
approved form for making an application or giving a notice means a form approved by the Secretary under subsection 35(2) for making that kind of application or giving that kind of notice.
approved manner for making an application or giving a notice means a manner approved by the Secretary under subsection 35(1) for making that kind of application or giving that kind of notice.
Australia‑UK Free Trade Agreement means the Free Trade Agreement between Australia and the United Kingdom of Great Britain and Northern Ireland, done on 16 and 17 December 2021, as in force for Australia from time to time.
Note: The Agreement could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
balance of an exporter’s tariff rate quota entitlement: see section 8.
carcase equivalent weight means:
(a) for boneless lamb and boneless meat from a goat up to one year old—its weight multiplied by 1.67; or
(b) for boneless mutton, boneless sheep and boneless meat from a goat over one year old—its weight multiplied by 1.81; or
(c) for bone‑in meat—its weight.
consignment means a single shipment (by sea or air) by an exporter to a single consignee.
eligible meat means:
(a) EU‑eligible meat; or
(b) UK FTA‑eligible meat; or
(c) UK WTO‑eligible meat.
entitlement‑based amount: see paragraph 20(5)(a).
EU means the European Union.
EU‑access amount means:
(a) for the quota year beginning on 1 January 2022—5,851,000 kilograms; or
(b) for another quota year—the total weight of EU‑eligible meat that may, under order numbers 09.2105, 09.2106 and 09.2012 in Annex I to the EU Regulation, be exported from Australia to the EU in the quota year at the in‑quota customs duty rate set out for those order numbers.
EU‑accredited establishment means an establishment that:
(a) is under the full‑time inspection and supervision of the Department; and
(b) is registered under Chapter 4 of the Act; and
(c) has been accredited by AUS‑MEAT Limited (ACN 082 528 881), and the Department, for the export of meat to the EU.
EU‑eligible meat means sheepmeat and goatmeat of the kind described under order numbers 09.2105, 09.2106 and 09.2012 in Annex I to the EU Regulation.
EU Regulation means Commission Implementing Regulation (EU) 2020/1988, as in force from time to time.
Note: The Regulation could in 2021 be viewed on the EUR‑Lex website (https://eur‑lex.europa.eu).
exporter means the holder of an export licence allowing the holder to export sheepmeat or goatmeat.
penalty amount: see subsection 11(4).
performance period for a quota year means the period of 12 months ending on the 31 October before the quota year begins.
quota type means a kind of eligible meat for export to a particular destination.
quota year means a calendar year beginning on or after 1 January 2020.
relevant destination authority, for a kind of goods for export to a particular destination, means the authority or body that is responsible for regulating the importation of that kind of goods into that destination.
relevant weight means:
(a) for EU‑eligible meat and UK WTO‑eligible meat—the carcase equivalent weight; or
(b) for UK FTA‑eligible meat—the actual weight of the UK FTA‑eligible meat.
tariff rate quota certificate means a certificate issued under section 19, 20 or 28.
Note: A tariff rate quota certificate is not a government certificate (see the definition of government certificate in section 12 of the Act).
UK means the United Kingdom.
UK FTA‑access amount means the total weight of UK FTA‑eligible meat that may, under the Australia‑UK Free Trade Agreement, be exported from Australia to the UK in the quota year at a reduced tariff rate.
UK FTA‑eligible meat means sheepmeat of a kind that may, under the Australia‑UK Free Trade Agreement, be exported from Australia to the UK at a reduced tariff rate.
UK Regulations means The Customs (Tariff Quotas) (EU Exit) Regulations 2020 (UK), as in force from time to time.
Note: The Regulations could in 2021 be viewed on the UK legislation website (https://legislation.gov.uk).
UK WTO‑access amount means:
(a) for the quota year beginning on 1 January 2022—13,335,000 kilograms; or
(b) for another quota year—the total weight of UK WTO‑eligible meat that may, as set out in the Quota Table within the meaning of the UK Regulations, be exported from Australia to the UK in the quota year at the quota duty rate for quota numbers 05.2012, 05.2105 and 05.2106 in the Quota Table.
UK WTO‑eligible meat means sheepmeat and goatmeat of a kind that may, under the UK Regulations, be exported from Australia to the UK under quota number 05.2012, 05.2105 or 05.2106.
uncommitted access amount: see subsection 20(6).
Part 2—Use of access amounts
Division 1—Introduction
7 Purpose of this Part
This Part provides for a system of tariff rate quotas for the export of a quota type within the access amount for the quota type and a quota year.
Division 2—Tariff rate quota entitlement
8 Balance of tariff rate quota entitlement
The balance of an exporter’s tariff rate quota entitlement, for a quota type at a time in a quota year, is the total at that time of the amounts of tariff rate quota entitlement for the quota type and quota year allocated or transferred to the exporter under sections 10, 13 and 17, reduced by the following:
(a) amounts of tariff rate quota entitlement for the quota type and quota year transferred by the exporter under section 13;
(b) amounts of the exporter’s tariff rate quota entitlement for the quota type and quota year revoked under section 14, 15, 16 or 18;
(c) amounts stated in certificates issued to the exporter under section 19 for the quota type and quota year;
(d) entitlement‑based amounts stated in certificates issued to the exporter under section 20 for the quota type and quota year.
Note 1: See paragraph 20(5)(a) for the entitlement‑based amount.
Note 2: Any reduction mentioned in paragraph (c) or (d) is disregarded if the relevant certificate is revoked (see subsection 23(4)). See also section 24 for the effect of annotations of certificates.
9 Application for tariff rate quota entitlement
(1) The Secretary may invite exporters to apply to the Secretary to be allocated an amount of tariff rate quota entitlement for a quota type and a quota year under subsection 10(1).
(2) If the Secretary does so, an exporter may apply to the Secretary to be allocated an amount of tariff rate quota entitlement for the quota type and quota year under subsection 10(1) in accordance with the invitation. If the invitation imposes a deadline for applications, the application must be made before the deadline.
(3) The application must be:
(a) made:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
10 Initial allocation
(1) The Secretary must determine the amount of tariff rate quota entitlement for a quota type and a quota year to be allocated to each applicant under section 9, using:
(a) if the tariff rate quota entitlement being determined is for UK FTA‑eligible meat—the method statement set out in subsection (1A) of this section; or
(b) if the tariff rate quota entitlement being determined is for EU‑eligible meat or UK WTO‑eligible meat—the following method statement.
Method statement
Step 1. Use the formula in section 12 to work out the step 1 amount for each applicant.
Step 2. For any applicant who is subject to a penalty for the quota type and quota year (see section 11), reduce the step 1 amount by the applicant’s penalty amount. The result is the applicant’s step 2 amount.
Step 3. Use the formula in section 12 to distribute the total of the penalty amounts among the applicants who are not subject to a penalty, and add the amount distributed to each such applicant’s step 1 amount. For this purpose:
(a) replace references in the formula to AA with references to the total of the penalty amounts; and
(b) replace references to all applicants with references to applicants who are not subject to a penalty.
Step 4. If, after step 3, the amount for an applicant is less than 12,000 kg:
(a) the amount is excluded; and
(b) the applicant is excluded and is not allocated an amount of tariff rate quota entitlement for the quota type and quota year under this section.
Step 5. Use the formula in section 12 to distribute the total of the amounts excluded at step 4 among the applicants who are not subject to a penalty and not excluded at step 4, and add the amount distributed to each such applicant’s step 3 amount to reach the applicant’s step 5 amount. For this purpose:
(a) replace references in the formula to AA with references to the total of the amounts excluded; and
(b) replace references to all applicants with references to applicants who are not subject to a penalty and not excluded.
Step 6. Round all of the step 2 amounts and step 5 amounts to the nearest kilogram, with 0.5 of a kilogram to be rounded up. If, after this, the sum of the amounts exceeds the access amount for the quota type and quota year, round all the amounts down to the nearest kilogram instead.
Step 7. The amount of tariff rate quota entitlement allocated to an applicant not excluded at step 4 is:
(a) if the applicant is subject to a penalty—the step 2 amount, rounded in accordance with step 6; and
(b) otherwise—the step 5 amount, rounded in accordance with step 6.
(1A) For the purposes of paragraph 10(1)(a), the method statement is as follows:
Method statement
Step 1. Use the formula in section 12 to work out the step 1 amount for each applicant.
Step 2. If the step 1 amount for an applicant is less than 12,000 kg:
(a) the amount is excluded; and
(b) the applicant is excluded and is not allocated an amount of tariff rate quota entitlement for the quota type and quota year under this section.
Step 3. Use the formula in section 12 to distribute the total of the amounts excluded at step 2 among the applicants who are not excluded at step 2, and add the amount distributed to each such applicant’s step 1 amount to reach the applicant’s step 3 amount. For this purpose:
(a) replace references in the formula to AA with references to the total of the amounts excluded; and
(b) replace references to all applicants with references to applicants who are not excluded.
Step 4. Round all of the step 3 amounts to the nearest kilogram, with 0.5 of a kilogram to be rounded up. If, after this, the sum of the amounts exceeds the access amount for the quota type and quota year, round all the amounts down to the nearest kilogram instead.
Step 5. The amount of tariff rate quota entitlement allocated for the quota type to an applicant not excluded at step 2 is the step 3 amount, rounded in accordance with step 4.
(2) The Secretary must give each applicant a written notice stating:
(a) whether the applicant is allocated an amount of tariff rate quota entitlement for the quota type and quota year under this section; and
(b) if so—the amount allocated.
11 Penalty amount
(1) For the purposes of step 2 of the method statement in subsection 10(1), an applicant is subject to a penalty for a quota type and a quota year if the applicant’s certified exports for the quota type and the previous quota year (as worked out under subsection (2)) are less than 90% of the applicant’s annual entitlement for the quota type and the previous quota year (as worked out under subsection (3)).
(2) The applicant’s certified exports for the quota type and the previous quota year are the sum of:
(a) the amounts stated in certificates (if any) issued to the applicant under section 19, before the end of 30 November in the previous quota year, for export of consignments to the quota type in the previous quota year; and
(b) the entitlement‑based amounts stated in certificates (if any) issued to the applicant under section 20, before the end of 30 November in the previous quota year, for export of consignments to the quota type in the previous quota year.
Note: The amount stated in a certificate is disregarded if the certificate is revoked (see subsection 23(4)). See also section 24 for the effect of annotations of certificates.
(3) The applicant’s annual entitlement for the quota type and the previous quota year is the total of the amounts of tariff rate quota entitlement for the quota type and previous quota year allocated or transferred to the applicant under sections 10, 13 and 17, reduced by the sum of:
(a) amounts (if any) of tariff rate quota entitlement for the quota type and the previous quota year transferred by the applicant under section 13; and
(b) amounts (if any) of the applicant’s tariff rate quota entitlement for the quota type and the previous quota year revoked under section 14, 15 or 16.
(4) If the applicant is subject to a penalty, the applicant’s penalty amount for the quota type and the quota year is half the amount by which the applicant’s annual entitlement for the quota type and the previous quota year exceeds the applicant’s certified exports for the quota type and the previous quota year.
12 Formula for working out initial allocation
For the purposes of the method statements in subsections 10(1) and (1A), the formula is the following:
where:
AA means the access amount for the quota type and the quota year.
applicant’s accredited exports means the relevant weight of all the applicant’s exports for the quota type from an EU‑accredited establishment to any foreign country in the performance period for the quota year, including amounts exported by another exporter in the performance period that have been transferred to the applicant under section 25.
applicant’s quota exports means the total of the amounts stated in certificates issued to the applicant under section 19 or 20 in the performance period for the quota type and quota year.
Note: The amount stated in a certificate that has been revoked is disregarded (see subsection 23(4)). See also section 24 for the effect of annotations of certificates.
total accredited exports means the relevant weight of all applicants’ exports for the quota type from an EU‑accredited establishment to any foreign country in the performance period for the quota year, including amounts exported by another exporter in the performance period that have been transferred to an applicant under section 25.
total quota exports means the total amount of applicant’s quota exports for all applicants.
13 Transfer of tariff rate quota entitlement before 1 November
(1) If, at any time before 1 November in a quota year, the balance of an exporter’s tariff rate quota entitlement for a quota type and the quota year is greater than zero, the exporter may transfer all or part of the balance to another exporter.
(2) The transferring exporter must give the Secretary a notice setting out:
(a) the transferring exporter’s name; and
(b) the name of the transferee; and
(c) the amount transferred.
(3) The notice must be:
(a) given:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
14 Return of tariff rate quota entitlement before 1 November
(1) If, at any time before 1 November in a quota year, the balance of an exporter’s tariff rate quota entitlement for a quota type and the quota year is greater than zero, the exporter may return all or part of the balance by giving the Secretary notice of the amount to be returned.
(2) The notice must be:
(a) given:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
(3) The amount stated in the notice is revoked at the time the notice is given.
Note: Amounts revoked under this section may be allocated to other exporters after 1 November (see section 17).
15 Notice about tariff rate quota entitlement before 1 November
(1) An exporter must, before 1 November in a quota year, give the Secretary a notice under this section if either or both of the following apply:
(a) the balance of the exporter’s tariff rate quota entitlement for a quota type and the quota year will be greater than zero on that day;
(b) the balance of the exporter’s tariff rate quota entitlement for a quota type and the quota year was greater than zero at any time in the quota year, and the exporter wants to apply for an additional amount of tariff rate quota entitlement for the quota type and quota year.
(2) The notice must:
(a) if paragraph (1)(a) applies:
(i) state how the exporter intends to deal with the balance; and
(ii) if the exporter wants to return all or part of the balance—state the amount to be returned; and
(b) if paragraph (1)(b) applies—state the amount the exporter is applying for.
(3) Any amount stated in the notice for the purposes of subparagraph (2)(a)(ii) is revoked at the time the notice is given.
Note: Amounts revoked under this section may be allocated to other exporters after 1 November (see section 17).
(4) The notice must be:
(a) given:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
16 Revocation of tariff rate quota entitlement for failure to give notice
If, under paragraph 15(1)(a), an exporter is required to give a notice before 1 November in a quota year in relation to the balance of the exporter’s tariff rate quota entitlement for a quota type and the quota year, and does not do so, the balance of the exporter’s tariff rate quota entitlement for the quota type and quota year as at the end of 31 October is, at that time, revoked.
Note: Amounts revoked under this section may be allocated to other exporters after 1 November (see section 17).
17 Additional allocations after 1 November
(1) The Secretary must, as soon as practicable after 1 November in a quota year, determine the additional amount of tariff rate quota entitlement for a quota type and the quota year to be allocated to each applicant under paragraph 15(2)(b) as follows:
(a) if the total amount of tariff rate quota entitlements for the quota type and quota year revoked under sections 14, 15 and 16 (the revoked amount) exceeds the total of the amounts applied for under paragraph 15(2)(b)—allocate each applicant the amount applied for; and
(b) otherwise—allocate each applicant the amount worked out using the following method statement.
Method statement
Step 1. Allocate each applicant either the amount worked out by using the formula in section 12 or the amount applied for, whichever is lower. For this purpose:
(a) replace references in the formula to AA with references to the revoked amount; and
(b) replace references to all applicants with references to applicants under paragraph 15(2)(b).
Step 2. If after this there remains both an unallocated revoked amount and applicants who were allocated less than the amount applied for, use the formula in section 12 to distribute the remaining revoked amount among the remaining applicants. For this purpose:
(a) replace references in the formula to AA with references to the remaining revoked amount; and
(b) replace references to all applicants with references to remaining applicants.
Step 3. Allocate to each remaining applicant either:
(a) the amount distributed to the applicant at step 2; or
(b) if the amount distributed at step 2 together with the total amount already allocated to the applicant exceeds the amount the applicant applied for—the difference between the amount applied for and the total amount already allocated.
Step 4. Reapply steps 2 and 3 in relation to any remaining unallocated revoked amount and applicants who were allocated less than the amount applied for (treating references to step 2 as references to the most recently performed step 2), until each remaining applicant has been allocated the amount applied for or all the remaining revoked amount has been allocated.
Step 5. Round the amounts allocated to the nearest kilogram, with 0.5 of a kilogram to be rounded up. If after this the sum of the amounts exceeds the revoked amount, round all the amounts down to the nearest kilogram instead.
(2) The Secretary must give each applicant a written notice stating:
(a) whether the applicant is allocated an amount for the quota type and quota year under this section; and
(b) if so—the amount allocated.
18 Return of tariff rate quota entitlement on or after 1 November
(1) If, at any time on or after 1 November in a quota year, the balance of an exporter’s tariff rate quota entitlement for a quota type and the quota year is greater than zero, the exporter may return all or part of the balance by giving the Secretary notice of the amount to be returned.
(2) The notice must be:
(a) given:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
(3) The amount stated in the notice is revoked at the time the notice is given.
Note: Amounts revoked under this section form part of the uncommitted access amount for which certificates may be issued under section 20. However, they do not reduce the applicant’s annual entitlement for the purposes of working out a penalty amount under section 11.
Division 3—Tariff rate quota certificates
19 Tariff rate quota certificates before additional allocations
(1) At any time before the Secretary allocates amounts under section 17 in relation to a quota type and a quota year (additional allocations after 1 November), an exporter may apply to the Secretary for a tariff rate quota certificate for the export of a consignment of the quota type in the quota year within the access amount for the quota type and the quota year.
Note: The application must be made in accordance with section 21.
(2) Subject to subsection (4), the Secretary must issue the applicant a tariff rate quota certificate in relation to the consignment if, at the time the Secretary deals with the application, the balance of the applicant’s tariff rate quota entitlement for the quota type and the quota year is greater than zero.
(3) The certificate must be issued for:
(a) the relevant weight of the consignment; or
(b) if that weight is greater than the balance of the tariff rate quota entitlement—that balance.
(4) The Secretary may decide not to issue a tariff rate quota certificate to the applicant if the Secretary considers that it is not appropriate to issue the certificate, taking into account the following:
(a) any failure by the applicant to comply with a request under subsection 33(3) in the quota year or a previous quota year;
(b) a failure of the applicant to hold any licence required under a law of the Commonwealth to export the consignment;
(c) any relevant Commonwealth liability in relation to a tariff rate quota certificate for the export of eligible meat 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 eligible meat is not financially viable or is not likely to remain so;
(e) whether it would not be in the best interests of the eligible meat industry for the certificate to be issued.
Note: A decision not to issue a tariff rate quota certificate is a reviewable decision (see section 29 of this instrument and Part 2 of Chapter 11 of the Act).
(5) A tariff rate quota certificate issued under this section in relation to a consignment of a quota type for export to a destination in a quota year:
(a) has no effect before the start of the quota year to which the certificate relates; and
(b) ceases to have effect if the consignment is not accepted by the relevant destination authority before the end of the quota year.
20 Tariff rate quota certificates after additional allocations
(1) At any time between when the Secretary allocates amounts under section 17 in relation to a quota type and a quota year (additional allocations after 1 November) and the end of the quota year, an exporter may apply to the Secretary for a tariff rate quota certificate for the export of the quota type in the quota year within the access amount for the quota type and the quota year.
Note: The application must be made in accordance with section 21.
(2) The Secretary must deal with applications under this section in the order in which the applications are received.
(3) Subject to subsection (7), the Secretary must issue the applicant a tariff rate quota certificate in relation to the consignment if, at the time the Secretary deals with the application, either or both of the following apply:
(a) the balance of the applicant’s tariff rate quota entitlement for the quota type and quota year is greater than zero;
(b) there is an uncommitted access amount for the quota type and quota year (see subsection (6)).
(4) The certificate must be issued for:
(a) the relevant weight of the consignment; or
(b) if that weight is greater than the total of the balance of the applicant’s tariff rate quota entitlement and the uncommitted access amount—that total.
(5) If a certificate is issued to an applicant under this section:
(a) the lower of the amount stated in the certificate and the amount that was the balance of the applicant’s tariff rate quota entitlement just before the certificate was issued is the applicant’s entitlement‑based amount; and
(b) any remaining amount reduces the uncommitted access amount.
Note: The entitlement‑based amount reduces the applicant’s tariff rate quota entitlement (see paragraph 8(d)).
(6) The uncommitted access amount, for a quota type and a quota year at a particular time, is the sum of:
(a) the amount (if any) that remained unallocated after the Secretary allocated amounts for the quota type and quota year under section 17; and
(b) any amounts of tariff rate quota entitlement for the quota type and quota year revoked under section 18 before that time;
reduced in accordance with paragraph (5)(b) for certificates issued to applicants under this section before that time.
(7) The Secretary may decide not to issue a tariff rate quota certificate to an applicant if the Secretary considers that it is not appropriate to issue the certificate, taking into account the following:
(a) any failure by the applicant to comply with a request under subsection 33(3) in the quota year or a previous quota year;
(b) a failure of the applicant to hold any licence required under a law of the Commonwealth to export the consignment;
(c) any relevant Commonwealth liability in relation to a tariff rate quota certificate or the export of eligible meat 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 eligible meat is not financially viable or is not likely to remain so;
(e) whether it would not be in the best interests of the eligible meat industry for the certificate to be issued.
Note: A decision not to issue a tariff rate quota certificate is a reviewable decision (see section 29 of this instrument and Part 2 of Chapter 11 of the Act).
(8) A tariff rate quota certificate issued under this section in relation to a consignment of a quota type for export to a destination in a quota year ceases to have effect if the consignment is not accepted by the relevant destination authority before the end of the quota year.
21 Requirements for applications under section 19 or 20
(1) This section applies in relation to an application under section 19 or 20 in relation to a consignment.
(2) The application must not be made more than 3 weeks before the applicant intends the consignment to leave Australian territory.
(3) The application must be:
(a) made:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
Note: A person may commit an offence or be liable to a civil penalty 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).
(4) 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 (3).
(5) An application is taken not to have been made if the application does not comply with subsection (3).
(6) The Secretary may request further information from the applicant that is relevant to the application.
(7) Any further information in relation to the application (whether or not provided in response to a request under subsection (6)) must be given to the Secretary.
(8) An application is taken to be received by the Secretary when all of the following information has been received:
(a) any information or documents required by the Secretary to accompany the application;
(b) if further information is requested under subsection (6) in relation to the application—that further information.
(9) A person who has made an application may withdraw the application at any time before the Secretary makes a decision on the application.
22 Recording issue of tariff rate quota certificate
If the Secretary issues a tariff rate quota certificate to a person under this instrument, the Secretary must:
(a) make an entry reflecting 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) notify the person of the issue of the certificate.
23 Revocation of tariff rate quota certificate
Revocation on request
(1) The Secretary must revoke a tariff rate quota certificate issued to a person under section 19 or 20 in relation to a consignment of a quota type for export to a destination in a quota year if:
(a) the certificate has not been accepted by the relevant destination authority; and
(b) the person requests the Secretary in writing to revoke the certificate; and
(c) if hard copies of the certificate were issued—the person also gives the Secretary either of the following:
(i) all the hard copies of the certificate;
(ii) a declaration, in any form the Secretary requires, accompanied by any evidence the Secretary requires, about why the copies cannot be given.
Revocation on Secretary’s own initiative
(2) The Secretary may revoke a tariff rate quota certificate issued to a person under section 19 or 20 in relation to a consignment of a quota type for export to a destination in a quota year 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 does not leave Australian territory within 6 weeks after the certificate was issued;
(iii) the person has failed to comply with a request under subsection 33(3) in the quota year or a previous quota year;
(iv) the person does not hold, or ceases to hold, any licence required under a law of the Commonwealth to export the consignment;
(v) a relevant Commonwealth liability in relation to a tariff rate quota certificate for the export of eligible meat 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 eligible meat 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 eligible meat industry for the person to continue to hold the certificate;
(viii) the quota year for which the certificate was issued has ended.
Note: A decision under subsection (2) to revoke a tariff rate quota certificate is a reviewable decision (see section 29 of this instrument and Part 2 of Chapter 11 of the Act).
Notice and recording of revocation
(3) If a tariff rate quota certificate is revoked under this section, the Secretary must:
(a) record the revocation in an electronic system maintained by the Department; and
(b) for a revocation under subsection (2)—notify the person to whom the certificate was issued, in writing, of the revocation.
Effect of revocation
(4) Subject to Part 4 (review of decisions), a tariff rate quota certificate that is revoked under this section is taken never to have been issued.
Division 4—Miscellaneous
24 Annotation of tariff rate quota certificate
(1) If:
(a) a relevant destination authority annotates a tariff rate quota certificate to show that the weight of the consignment to which the certificate relates is less than the weight stated in the certificate; and
(b) the exporter to whom the certificate was issued gives the Secretary a copy of the annotated certificate, before the time required by subsection (2) or (3) (if applicable);
the amount stated in the certificate is taken to be the amount as affected by the annotation.
(2) For the purposes of subsection 11(2), the exporter must give the Secretary the copy of the annotated certificate before the end of the 30 November mentioned in that subsection.
(3) For the purposes of the definition of applicant’s quota exports in section 12, the exporter must give the Secretary the copy of the annotated certificate before the end of the 30 November that occurs immediately after the end of the performance period mentioned in that definition.
(4) An annotation of a certificate issued under section 20 affects the applicant’s entitlement‑based amount (if any) for the quota type and quota year before it affects the uncommitted access amount for the quota type and quota year.
25 Transfer of export records
(1) An exporter may, by notice given to the Secretary before the end of the 7 November after the end of the performance period for a quota year, transfer to another exporter all or part of the relevant weight of the person’s exports of mutton, lamb or goatmeat from an EU‑accredited establishment in the performance period, other than exports for which a certificate was issued under section 19 or 20.
Note: The transfers are taken into account in working out the transferee’s accredited exports, and total accredited exports, for the quota year (see section 12).
(2) The notice must state:
(a) the name of the person transferring the weight; and
(b) the transferee’s name; and
(c) the relevant weight, in kilograms, to be transferred.
(3) The notice must be:
(a) given:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
26 Errors in export records
(1) The Secretary may correct an error in a record of an exporter’s exports (whether the error is notified by the exporter under subsection (2) or otherwise). If the Secretary does so, the Secretary must notify the exporter of the correction.
(2) If an exporter thinks that a record of its exports given to the exporter by the Secretary contains an error, the exporter must give the Secretary notice of the error within 30 days after receiving the record.
(3) A notice under subsection (2) must be:
(a) given:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
Part 3—All third countries quota
27 Purpose of this Part
This Part provides for a system of tariff rate quotas for the export from Australia to the EU of EU‑eligible meat under the all third countries quota.
28 Tariff rate quota certificates for all third countries quota
(1) An exporter may apply to the Secretary for a tariff rate quota certificate for the export from Australia to the EU of a consignment of EU‑eligible meat in the quota year under the all third countries quota.
(2) The application must not be made more than 3 months before the start of the quota year.
(3) The application must be:
(a) made:
(i) in the approved manner (if any) and approved form (if any); or
(ii) if there is no approved manner and no approved form—in writing; and
(b) accompanied by any information or documents required by the Secretary.
(4) If an exporter applies under subsection (1) for a tariff rate quota certificate, the Secretary may issue the tariff rate quota certificate to the exporter.
(5) If the Secretary decides not to issue the tariff rate quota certificate to the exporter, the Secretary must give the exporter a written notice that sets out:
(a) the terms of the decision; and
(b) the reasons for the decision; and
(c) particulars of the exporter’s right to have the decision reviewed under Part 4.
Note: A decision not to issue a tariff rate quota certificate is a reviewable decision (see section 29 of this instrument and Part 2 of Chapter 11 of the Act).
(6) A tariff rate quota certificate issued under this section in relation to the export of a consignment of EU‑eligible meat in a quota year:
(a) has no effect before the start of the quota year; and
(b) ceases to have effect if the consignment is not accepted for entry into the EU before the end of the quota year.
Part 4—Review of decisions
29 Reviewable decisions
For the purposes of subsection 381(2) of the Act:
(a) a decision referred to in column 1 of an item in the following table made under the provision referred to in column 2 of the item is a reviewable decision; and
(b) the person referred to in column 3 of the item is the relevant person for the reviewable decision.
Reviewable decisions |
Item | Column 1 Reviewable decision | Column 2 Provision under which the reviewable decision is made | Column 3 Relevant person for the reviewable decision |
1 | Not to issue a tariff rate quota certificate | Subsection 19(4) | The person who applied for the certificate |
2 | Not to issue a tariff rate quota certificate | Subsection 20(7) | The person who applied for the certificate |
3 | To revoke a tariff rate quota certificate | Subsection 23(2) | The person to whom the certificate was issued |
4 | Not to issue a tariff rate quota certificate | Subsection 28(4) | The person who applied for the certificate |
30 Modifications of powers on review of decisions
(1) For the purposes of subsections 386(1) and (3) of the Act, this section modifies:
(a) the powers of the Secretary or an internal reviewer, under subsection 383(4) of the Act, when reviewing a reviewable decision mentioned in section 29 of this instrument; and
(b) the powers of the Administrative Appeals Tribunal, under subsection 43(1) of the Administrative Appeals Tribunal Act 1975, when reviewing:
(i) a reviewable decision mentioned in section 29 of this instrument made by the Secretary personally; or
(ii) a decision of the Secretary, or an internal reviewer, under section 383 of the Act that relates to a reviewable decision mentioned in section 29 of this instrument.
(2) If a decision not to issue a tariff rate quota certificate to a person in relation to a consignment of a quota type for export to a destination in a quota year is set aside at a time, a certificate may only be issued for the amount for which a certificate could be issued to the person at that time under section 19 or 20 of this instrument in relation to the consignment for export to that destination in that quota year.
Note: If the original decision was made under section 19 before the Secretary allocates amounts under section 17, but was set aside after the Secretary allocates amounts, section 20 would be the section under which a certificate could be issued to the person at the time the original decision was set aside.
(3) If:
(a) a decision to revoke a tariff rate quota certificate issued to a person in relation to a consignment of a quota type for export to a destination in a quota year 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 at that time under section 19 or 20 of this instrument in relation to a consignment for export to that destination in that quota year;
the revoked certificate may only be reinstated for the available amount.
Part 5—Miscellaneous
33 Audits
(1) For the purposes of subsections 270(4) and (5) of the Act, this section makes provision for and in relation to an audit of export operations in relation to lamb, mutton or goatmeat carried out by:
(a) a person who has applied for a tariff rate quota certificate in relation to lamb, mutton or goatmeat; or
(b) a person to whom a tariff rate quota certificate in relation to lamb, mutton or goatmeat has been issued (whether or not the certificate has been revoked).
Note: The Secretary may require an audit to be conducted of the export operations under paragraph 266(1)(f) of the Act. Part 1 of Chapter 9 of the Act and this section provide for the conduct of an audit.
(2) An audit must be conducted:
(a) as expeditiously as possible; and
(b) in a way that results in minimal interference to the export operations to which the audit relates.
(3) After an auditor completes an audit, or the audit ends, the auditor must make a written report of the audit.
(4) Within 14 business days after the audit is completed or ends, the auditor must:
(a) give the audit report to the Secretary in a manner approved by the Secretary; and
(b) give a copy of the audit report to the relevant person for the audit.
Note: For the person who is the relevant person for an audit, see section 269 of the Act.
34 Use of computer programs to make decisions
Kinds of decisions
(1) For the purposes of paragraph 286(2)(a) of the Act, the following decisions under provisions of this instrument may be made by the operation of a computer program (an authorised computer program) under an arrangement made under subsection 286(1) of the Act:
(a) determining under section 10 an amount of tariff rate quota entitlement to be allocated;
(b) determining under section 17 an additional amount of tariff rate quota entitlement to be allocated;
(c) a decision under section 19 to issue a tariff rate quota certificate (but not a decision under subsection 19(4) not to issue a certificate);
(d) a decision under section 20 to issue a tariff rate quota certificate (but not a decision under subsection 20(7) not to issue a certificate);
(e) a decision under subsection 23(1) to revoke a tariff rate quota certificate on request;
(f) a decision under section 28 to issue a tariff rate quota certificate (but not a decision under subsection 28(5) not to issue a certificate).
Persons who may use computer program
(2) For the purposes of paragraph 286(2)(b) of the Act, the following persons may use an authorised computer program for a decision referred to in subsection (1) of this section:
(a) an exporter;
(b) an agent of an exporter;
(c) an authorised officer;
(d) an APS employee in the Department;
(e) a person performing services for the Department under a contract;
if the Secretary has given the person a unique identifier to enable the person to access the computer program.
Conditions of use of computer program
(3) For the purposes of paragraph 286(2)(c) of the Act, a person who may use an authorised computer program under subsection (2) of this section must:
(a) be satisfied on reasonable grounds that information entered into the computer program by the person for the purpose of enabling decisions to be made by operation of the computer program is true and correct; and
(b) ensure that the information is accurately entered into the computer program.
35 Approved manner and form
(1) The Secretary may, in writing, approve a manner for making applications or giving notices under this instrument.
(2) The Secretary may, in writing, approve a form for making applications or giving notices under this instrument.
Part 6—Application and transitional provisions
Division 2—Transitional provisions relating to the Export Control Legislation Amendment (Tariff Rate Quotas) Rules 2021
44 Definition for this Division
In this Division:
commencement time means the time when the Export Control Legislation Amendment (Tariff Rate Quotas) Rules 2021 commence.
45 Audit required but not commenced before commencement time
(1) This section applies if:
(a) the Secretary had, under section 33 of this instrument as in force before the commencement time, required an audit to be carried out in relation to a tariff rate quota certificate or certificates issued to a person; and
(b) the audit had not commenced before the repeal of that section.
(2) The requirement is taken to be a requirement under paragraph 266(1)(f) of the Act for an audit to be conducted of export operations carried out by the person in relation to the kind of goods for which the tariff rate quota certificate or certificates were issued.
46 Audit in progress before commencement time
(1) This section applies if:
(a) the Secretary had, under section 33 of this instrument as in force before the commencement time, required an audit to be carried out; and
(b) the audit had commenced before the commencement time but had not been completed at that time.
(2) The auditor must complete the audit as if section 33, as in force before the commencement time, had not been repealed. For the purposes of the audit, the approval of the auditor (under subsection 33(2) as in force before the commencement time) continues in force.
47 Review of decisions
Part 4 of this instrument, as in force immediately before the commencement time, continues to apply in relation to:
(a) a decision that was made under this instrument before the commencement time for which an application for reconsideration was permitted under section 29 as in force before the commencement time; and
(b) a decision of the Secretary (whether made before or after the commencement time) following a reconsideration of a decision referred to in paragraph (a).
48 Confidentiality of information
Information obtained under, or in accordance with, or in performing functions or exercising powers under, this instrument before the commencement of the Act is taken to be protected information for the purposes of the Act.
Division 3—Transitional provisions relating to the Export Control (Tariff Rate Quotas—Sheepmeat and Goatmeat Export to the European Union and United Kingdom) Amendment (2021 Measures No. 1) Rules 2021
49 Amendments do not apply to 2020 or 2021 quota year
This instrument as in force immediately before the commencement of the Export Control (Tariff Rate Quotas—Sheepmeat and Goatmeat Export to the European Union and United Kingdom) Amendment (2021 Measures No. 1) Rules 2021 continues to apply in relation to:
(a) allocations of tariff rate quota entitlement for a quota destination and the quota years beginning on 1 January 2020 and 1 January 2021; and
(b) tariff rate quota certificates for export of a consignment to a quota destination in those quota years.
50 Determining initial allocation for 2022 quota year
(1) This section applies for the purposes of determining amounts of tariff rate quota entitlement to be allocated under subsection 10(1) for the quota year starting on 1 January 2022.
(2) In using the method statement in subsection 10(1):
(a) disregard steps 2 and 3 and any references to the step 2 amount; and
(b) in step 4, treat the reference to step 3 as a reference to step 1; and
(c) in step 5, treat the reference to the step 3 amount as a reference to the step 1 amount; and
(d) disregard paragraph (a) of step 7.
51 Repeal of this Division
This Division is repealed at the start of 1 January 2023.
Division 4—Transitional provisions relating to the Export Control Legislation Amendment (Tariff Rate Quotas) Rules 2022
52 Application of amendments to the 2022 and 2023 quota year
This instrument as in force immediately before the commencement of Schedule 1 to the Export Control Legislation Amendment (Tariff Rate Quotas) Rules 2022 continues to apply in relation to:
(a) allocations of tariff rate quota entitlement for the following quota types and the quota years beginning on 1 January 2022 and 1 January 2023:
(i) sheepmeat and goatmeat of the kind described under order numbers 09.2105, 09.2106 and 09.2012 in Annex I to the EU Regulation; and
(ii) sheepmeat and goatmeat of the kind that may, under the UK Regulations, be exported from Australia to the UK under quota number 05.2012, 05.2105 or 05.2106; and
(b) tariff rate quota certificates for export of a consignment of those quota types in those quota years.
