Chapter 1—Preliminary
1 Name
This instrument is the Export Control (Tariff Rate Quotas) Order 2019.
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. | 18 December 2019 |
Note: This table relates only to the provisions of this instrument as originally made.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 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
5 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 goods.
6 Definitions
In this instrument:
additional U.S. note means an additional U.S. note to chapter 4 of the US Harmonized Tariff Schedule.
adjusted individual entitlement: see subsection 32(3).
allocation method means the method set out in Part 3 of Chapter 2.
allocation penalty: see section 33.
allocation trigger: see section 15.
annual access amount, for a quota type and a quota year, means the weight specified under Chapter 3 to be the annual access amount for that quota type in relation to that quota year.
annual application day: see section 27.
Australia‑US Free Trade Agreement means the Australia‑US Free Trade Agreement done at Washington on 18 May 2004, as in force from time to time.
Note: The Agreement is in Australian Treaty Series 2005 No. 1 ([2005] ATS 1) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
certification method means the method set out in Part 4 of Chapter 2.
consignment means a single shipment (by sea or air) of a kind of goods that is exported to a single consignee.
eligible past export, for a quota type and a quota year, means an export of a consignment that is specified under Chapter 3 to be an eligible past export for the quota type in relation to the quota year.
eligible person, for a quota type, means a person that is specified under Chapter 3 to be an eligible person for that quota type.
EU Beef and Buffalo Regulation means Commission Implementing Regulation (EU) No 593/2013, as in force from time to time.
Note: The Regulation could in 2019 be viewed on the EUR‑Lex website (https://eur‑lex.europa.eu).
EU buffalo meat: see section 53.
EU Dairy Regulation means Commission Regulation (EC) No 2535/2001, as in force from time to time.
Note: The Regulation could in 2019 be viewed on the EUR‑Lex website (https://eur‑lex.europa.eu).
EU grain fed beef: see section 57.
EU Grain Fed Beef Regulation means Commission Implementing Regulation (EU) No 481/2012, as in force from time to time.
Note: The Regulation could in 2019 be viewed on the EUR‑Lex website (https://eur‑lex.europa.eu).
EU high quality beef: see section 60.
European Union, during the UK withdrawal transition period, includes the United Kingdom.
EU WTO dairy goods: see section 71.
first come, first served method means the method set out in Part 1 of Chapter 2.
first year new entrant: see subsection 28(2).
high‑fill trigger method means the method set out in Part 2 of Chapter 2.
Indonesia‑Australia Comprehensive Economic Partnership Agreement means the Indonesia‑Australia Comprehensive Economic Partnership Agreement done at Jakarta on 4 March 2019, as amended from time to time.
Note: The Agreement could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Indonesia quota goods: see subsection 75(1).
initial decision: see section 120.
initial individual entitlement: see subsection 32(1).
Japan‑Australia Economic Partnership Agreement means the Agreement between Australia and Japan for an Economic Partnership, done at Canberra on 8 July 2014, as amended from time to time.
Note: The Agreement is in Australian Treaty Series 2015 No. 2 ([2015] ATS 2) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Japan quota goods: see subsection 86(1).
maximum transfer percentage: see section 27.
minimum quota allocation, for a quota type and a quota year, means the amount specified under Chapter 3 to be the minimum quota allocation for that quota type in relation to that quota year.
new entrant: see subsection 28(1).
new entrant access amount: see section 27.
new entrant access cap: see section 27.
new entrant available amount: see section 27.
penalty individual threshold: see section 27.
penalty pool threshold: see section 27.
post‑trigger access amount: see section 14.
provisional tariff rate quota entitlement: see subsection 20(1).
quarterly access amount: see subsection 7(1).
quarter of a quota year, for a quota type, means the period specified under Chapter 3 to be a quarter of a quota year for that quota type.
quota type means a kind of goods for export to a particular destination.
quota year, for a quota type, means the period that is specified under Chapter 3 to be a quota year for that quota type.
reclamation day: see section 27.
redistributed individual entitlement: see subsection 32(7).
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 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 120, means the person referred to in column 3 of that item.
required usage percentage: see section 27.
second year new entrant: see subsection 28(3).
standard access amount: see section 27.
tariff rate quota certificate means a tariff rate quota certificate issued under this instrument.
tariff rate quota entitlement: a person’s tariff rate quota entitlement for a quota type and a quota year at a particular time is the weight reserved at that time for the person’s use for the purposes of applications for tariff rate quota certificates in relation to consignments of that quota type for export in that quota year.
third year new entrant: see subsection 28(4).
trigger amount: see section 14.
trigger deadline: see section 14.
UK withdrawal transition period means the period (if any) when transitional arrangements agreed between the United Kingdom and the European Union relating to trade are in force following the withdrawal of the United Kingdom from the European Union.
uncommitted annual access amount: the uncommitted annual access amount for a quota type and a quota year at a particular time is the annual access amount for that quota type and 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 that quota type for export in that quota year; and
(b) if tariff rate quota entitlements have been allocated for that quota type and quota year—the total tariff rate quota entitlements of all persons.
Note: If a tariff rate quota certificate in relation to a consignment is cancelled, the certificate is taken never to have been issued (see subsection 119(5)).
uncommitted new entrant access amount: see section 27.
uncommitted quarterly access amount: see subsection 7(2).
uncommitted standard access amount: see section 27.
uncommitted trigger amount: see section 14.
US beef: see subsection 90(1).
US FTA dairy goods: see subsection 98(1).
US Harmonized Tariff Code means the code used in the US Harmonized Tariff Schedule.
US Harmonized Tariff Schedule means the Harmonized Tariff Schedule of the United States published by the United States International Trade Commission, as in force from time to time.
Note: The Schedule could in 2019 be viewed on the United States International Trade Commission’s website (http://www.usitc.gov).
using new entrant access quota, in relation to issuing a tariff rate quota certificate, has the meaning given by subsection 36(6).
using standard access quota, in relation to issuing a tariff rate quota certificate, has the meaning given by subsection 36(7).
US WTO dairy goods: see section 110.
7 Quarterly access amounts
(1) If a provision of Chapter 3 provides that there is a quarterly access amount for a quota type, then, subject to subsection (4), the quarterly access amount for that quota type and a quarter of a quota year is the annual access amount for that quota type and quota year divided by 4.
(2) The uncommitted quarterly access amount for a quota type and a quarter of a quota year at a particular time is the difference between:
(a) the quarterly access amount for that quota type and quarter; and
(b) the total weight for which tariff rate quota certificates have been issued during that quarter in relation to consignments of that quota type for export in 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 subsection 119(5)).
(3) For the purposes of subsection (2), if a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year is issued before the start of the quota year, the certificate is taken to have been issued during the first quarter of the quota year.
(4) If, at the end of the first, second or third quarter of a quota year, the uncommitted quarterly access amount for that quarter is greater than zero, the quarterly access amount for the next quarter of the quota year is increased by that uncommitted quarterly access amount.
Chapter 2—Methods for determining entitlements and issuing certificates
Part 1—First come, first served method
8 Application of this Part
If a provision of Chapter 3 provides that the first come, first served method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year, then this Part applies for the purposes of issuing a tariff rate quota certificate in relation to such a consignment.
9 Applications for tariff rate quota certificates
A person who intends to export a consignment of a quota type in a quota year may apply to the Secretary under this section for a tariff rate quota certificate in relation to the consignment.
Note: See section 114 for requirements and other matters relating to applications.
10 Applications to be dealt with in order of receipt
The Secretary must deal with applications under section 9 in the order in which the applications are received by the Secretary.
Note: Subsection 114(8) deals with when an application is taken to be received by the Secretary.
11 Issuing tariff rate quota certificates—annual access amounts
Application of this section
(1) This section applies in relation to an application under section 9 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year (other than an application relating to a quota type for which there is a quarterly access amount).
Note: Section 12 deals with applications relating to a quota type for which there is a quarterly access amount.
When Secretary must issue certificate
(2) Subject to section 115, the Secretary must issue a tariff rate quota certificate to the applicant in relation to the consignment if, at the time the Secretary deals with the application, the uncommitted annual access amount for the quota type and quota year is greater than zero.
Note: Section 115 deals with when the Secretary may decide not to issue a certificate.
(3) The certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the uncommitted annual access amount at the time the Secretary deals with the application.
12 Issuing tariff rate quota certificates—quarterly access amounts
Application of this section
(1) This section applies in relation to an application under section 9 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year if there is a quarterly access amount for that quota type.
Note: There is a quarterly access amount only if a provision of Chapter 3 provides for it (see section 7).
When Secretary must issue certificate
(2) Subject to section 115, the Secretary must issue a tariff rate quota certificate to the applicant in relation to the consignment if, at the time the Secretary issues the certificate, the uncommitted quarterly access amount for the quota type and the current quarter of the quota year is greater than zero.
Note: Section 115 deals with when the Secretary may decide not to issue a certificate.
(3) For the purposes of subsection (2), if the quota year has not started at the time the Secretary deals with the application, the first quarter of the quota year is taken to be the current quarter.
(4) The certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the uncommitted quarterly access amount at the time the Secretary deals with the application.
Part 2—High‑fill trigger method
Division 1—Preliminary
13 Application of this Part
If a provision of Chapter 3 provides that the high‑fill trigger method applies for the purposes of issuing a tariff rate quota certificate in relation to consignments of a quota type for export in a quota year, then this Part applies for the purposes of:
(a) issuing a tariff rate quota certificate in relation to such a consignment; and
(b) determining tariff rate quota entitlements for that quota type and quota year.
14 Definitions
In this instrument:
post‑trigger access amount, for a quota type and a quota year, means the weight that is the difference between the annual access amount for that quota type and quota year and the trigger amount for that quota type and quota year.
trigger amount, for a quota type and a quota year, means the weight specified under Chapter 3 to be the trigger amount for that quota type in relation to that quota year.
trigger deadline, for a quota type and a quota year, means the day specified under Chapter 3 to be the trigger deadline for that quota type in that quota year.
Note: The trigger deadline is the last day when the allocation trigger for that quota type and quota year can occur (see section 15).
uncommitted trigger amount: the uncommitted trigger amount for a quota type and a quota year at a particular time is the difference between:
(a) the trigger amount for that quota type and quota year; and
(b) the total weight for which tariff rate quota certificates have been issued in relation to consignments of that quota type for export in 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 subsection 119(5)).
15 Allocation trigger
(1) The allocation trigger for a quota type and a quota year occurs at the first time that the total weight for which tariff rate quota certificates have been issued in relation to consignments of that quota type in relation to that quota year is equal to the trigger amount for the quota type and quota year.
(2) However, the allocation trigger does not occur if the time mentioned in subsection (1) is after the trigger deadline for the quota type and quota year.
Note: For the allocation of quota after the allocation trigger has occurred, see Division 4.
Division 2—Tariff rate quota certificates if allocation trigger has not occurred
16 Applications for tariff rate quota certificates before allocation trigger
A person who intends to export a consignment of a quota type in a quota year may apply to the Secretary under this section for a tariff rate quota certificate in relation to the consignment if, at the time the application is made, the allocation trigger for the quota type and quota year has not occurred.
Note: See section 114 for requirements and other matters relating to applications.
17 Applications to be dealt with in order of receipt
(1) The Secretary must deal with applications under section 16 in the order in which the applications are received by the Secretary.
Note: Subsection 114(8) deals with when an application is taken to be received by the Secretary.
(2) If the Secretary has not dealt with an application under section 16 and the allocation trigger for the quota type and quota year occurs, the Secretary must treat the application as being made under section 23. The application is taken to be validly made under that section despite being made before the allocation trigger occurred.
18 Issuing tariff rate quota certificates
Application of this section
(1) This section applies in relation to an application under section 16 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year.
When Secretary must issue certificate
(2) Subject to section 115, the Secretary must issue a tariff rate quota certificate to the applicant in relation to the consignment if, at the time the Secretary deals with the application:
(a) for the issue of a certificate on or before the trigger deadline for the quota type and quota year—the uncommitted trigger amount for the quota type and quota year is greater than zero; or
(b) for the issue of a certificate after the trigger deadline—the uncommitted annual access amount for the quota type and quota year is greater than zero.
Note: Section 115 deals with when the Secretary may decide not to issue a certificate.
(3) If the certificate is issued on or before the trigger deadline, the certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the uncommitted trigger amount at the time the Secretary deals with the application.
(4) If the certificate is issued after the trigger deadline, the certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the uncommitted annual access amount at the time the Secretary deals with the application.
Division 3—Provisional tariff rate quota entitlements
19 Notice of provisional tariff rate quota entitlement
(1) If the Secretary believes that the allocation trigger for a quota type and a quota year is likely to occur, the Secretary must give a written notice to each person to whom tariff rate quota certificates have been issued in relation to consignments of that quota type for export in that quota year.
(2) The notice must:
(a) state the amount (if any) of the person’s provisional tariff rate quota entitlement for the quota type and quota year; and
(b) unless the person’s provisional tariff rate quota entitlement is nil—state that the person may request, no later than the day specified in the notice, the amount of that provisional tariff rate quota entitlement that the person wants to have allocated under section 21 as the person’s tariff rate quota entitlement if the allocation trigger occurs;
(c) specify the way in which the person is to make the request.
(3) The day specified for the purposes of paragraph (2)(b) must be at least 10 business days after the date of the notice.
20 Calculation of provisional tariff rate quota entitlement
(1) Subject to this section, a person’s provisional tariff rate quota entitlement for a quota type and a quota year is the amount worked out using the following formula:
where:
all eligible past exports is the total weight of all eligible past exports, for the quota type and quota year, by persons to whom tariff rate quota certificates have been issued in relation to consignments of that quota type for export in that quota year.
person’s eligible past exports is the total weight of the person’s eligible past exports for the quota type and quota year.
post‑trigger access amount is the post‑trigger access amount for the quota type and quota year.
(2) If the amount worked out under subsection (1) for a person is less than the minimum quota allocation for the quota type and quota year, the person’s provisional tariff rate quota entitlement for the quota type and quota year is nil.
(3) If subsection (2) applies to the provisional tariff rate quota entitlement of a person (an excluded person), then:
(a) the provisional tariff rate quota entitlement of each person to whom a notice must be issued under subsection 19(1) who is not an excluded person must be recalculated under subsection (1) of this section; and
(b) for the purposes of the recalculation, each excluded person is taken not to be a person to whom tariff rate quota certificates have been issued in relation to consignments of the quota type for export in the quota year.
(4) The amount of each person’s provisional tariff rate quota entitlement, as calculated under subsections (1) to (3), must be rounded to the nearest kilogram, with 0.5 of a kilogram to be rounded up.
(5) However, if the sum of the provisional tariff rate quota entitlements of all persons exceeds the post‑trigger access amount for the quota type and quota year, the amount of each person’s provisional tariff rate quota entitlement must be rounded down to the nearest kilogram instead.
Division 4—Allocation of quota after allocation trigger occurs
21 Allocation of tariff rate quota entitlement
(1) This section applies if the allocation trigger for a quota type and a quota year occurs.
(2) The Secretary must, as soon as practicable after the allocation trigger occurs, allocate the requested amount of tariff rate quota entitlement for the quota type and quota year to each person who has made a request in accordance with paragraph 19(2)(b).
(3) However, the Secretary must not allocate the requested amount to a person if the person is not an eligible person for the quota type.
(4) The Secretary must give each person to whom tariff rate quota certificates have been issued in relation to consignments of the quota type for export in the quota year a written notice stating:
(a) when the allocation trigger occurred; and
(b) if the person has been allocated an amount of tariff rate quota entitlement—the amount of the entitlement.
22 Transfer of tariff rate quota entitlement
(1) A person (the transferor) who has an amount of tariff rate quota entitlement for a quota type and a quota year may, at any time before the end of the quota year, make a written request to the Secretary to transfer all or part of that amount to an eligible person for the quota type (the transferee). The request must include the following:
(a) the name of the transferor;
(b) the name of the transferee;
(c) the amount of the entitlement to be transferred.
(2) If the Secretary receives a request under subsection (1), the amount is transferred in accordance with the request.
Division 5—Tariff rate quota certificates if allocation trigger has occurred
23 Applications for tariff rate quota certificates after allocation trigger occurs
A person who intends to export a consignment of a quota type in a quota year may apply to the Secretary under this section for a tariff rate quota certificate in relation to the consignment if, at the time the application is made, the allocation trigger for that quota type and quota year has occurred.
Note: See section 114 for requirements and other matters relating to applications.
24 Applications to be dealt with in order of receipt
(1) The Secretary must deal with applications under section 23 in the order in which the applications are received by the Secretary.
Note: Subsection 114(8) deals with when an application is taken to be received by the Secretary.
(2) The Secretary must not deal with any applications under section 23 until after the Secretary has allocated amounts of tariff rate quota entitlements for the quota type and quota year in accordance with section 21.
25 Issuing tariff rate quota certificates
Application of this section
(1) This section applies in relation to an application under section 23 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year.
When Secretary must issue certificate
(2) Subject to section 115, the Secretary must issue a tariff rate quota certificate to the applicant in relation to the consignment if, at the time the Secretary deals with the application:
(a) the applicant’s tariff rate quota entitlement for the quota type and quota year is greater than zero; or
(b) the uncommitted annual access amount for the quota type and quota year is greater than zero.
Note: Section 115 deals with when the Secretary may decide not to issue a certificate.
(3) The certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the sum of the applicant’s tariff rate quota entitlement and the uncommitted annual access amount at the time the Secretary deals with the application.
(4) If the applicant’s tariff rate quota entitlement for the quota type and quota year is greater than zero at the time the Secretary deals with the application, the applicant’s tariff rate quota entitlement is reduced (but not below zero) by the weight for which the tariff rate quota certificate is issued.
Part 3—Allocation method
Division 1—Preliminary
26 Application of this Part
If a provision of Chapter 3 provides that the allocation method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year, then this Part applies for the purposes of:
(a) issuing a tariff rate quota certificate in relation to such a consignment; and
(b) determining tariff rate quota entitlements for that quota type and quota year.
27 Definitions
In this instrument:
annual application day, for a quota type and a quota year, means the day specified under Chapter 3 to be the annual application day for that quota type and quota year.
maximum transfer percentage, for a quota type, means the percentage specified under Chapter 3 to be the maximum transfer percentage for that quota type.
new entrant access amount, for a quota type and a quota year, means the weight specified under Chapter 3 to be the new entrant access amount for that quota type in relation to that quota year.
new entrant access cap, for a quota type and a quota year, means the weight specified under Chapter 3 to be the new entrant access cap for that quota type in relation to that quota year.
new entrant available amount: the new entrant available amount, of a person who is a new entrant for a quota type and a quota year, at a particular time is the lesser of:
(a) the uncommitted new entrant access amount at that time for that quota type and quota year; and
(b) the difference between:
(i) the new entrant access cap for that quota type and quota year; and
(ii) the total weight for which tariff rate quota certificates have been issued to the person in relation to consignments of that quota type in relation to that quota year using new entrant access quota.
penalty individual threshold, for a quota type and a quota year, means the amount specified under Chapter 3 to be the penalty individual threshold for that quota type in relation to that quota year.
penalty pool threshold, for a quota type and a quota year, means the amount specified under Chapter 3 to be the penalty pool threshold for that quota type in relation to that quota year.
reclamation day, for a quota type and a quota year, means the day specified under Chapter 3 to be the reclamation day for that quota type and quota year.
required usage percentage, for a quota type, means the percentage specified under Chapter 3 to be the required usage percentage for that quota type.
standard access amount, for a quota type and a quota year, means the weight that is the difference between the annual access amount for that quota type and quota year and the new entrant access amount for that quota type and quota year.
uncommitted new entrant access amount: the uncommitted new entrant access amount for a quota type and a quota year at a particular time is the difference between:
(a) the new entrant access amount for that quota type and quota year; and
(b) the total weight for which tariff rate quota certificates have been issued in relation to consignments of that quota type for export in that quota year using new entrant access quota.
Note: If a tariff rate quota certificate in relation to a consignment is cancelled, the certificate is taken never to have been issued (see subsection 119(5)).
uncommitted standard access amount: the uncommitted standard access amount for a quota type and a quota year at a particular time is the standard access amount for that quota type and 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 that quota type for export in that quota year using standard access quota; and
(b) the total tariff rate quota entitlements of all persons for that quota type and 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 subsection 119(5)).
28 New entrants
(1) A person is a new entrant for a quota type and quota year if the person is:
(a) a first year new entrant for the quota type and quota year; or
(b) a second year new entrant for the quota type and quota year; or
(c) a third year new entrant for the quota type and quota year.
(2) A person is a first year new entrant for a quota type and quota year (the current quota year) if the person:
(a) applied for a tariff rate quota certificate in relation to a consignment of the quota type for export in the current quota year; and
(b) has not been allocated a tariff rate quota entitlement under section 30 or 45 for the quota type and the current quota year or any of the 3 quota years preceding the current quota year; and
(c) has not been issued a tariff rate quota certificate in relation to a consignment of the quota type for export in either of the 2 quota years preceding the current quota year using new entrant access quota; and
(d) is not an associated entity, within the meaning of the Corporations Act 2001, of any person who:
(i) has been allocated a tariff rate quota entitlement under section 30 or 45 for the quota type and the current quota year or any of the 3 quota years preceding the current quota year; or
(ii) has been issued a tariff rate quota certificate in relation to a consignment of the quota type for export in the current quota year, or either of the 2 quota years preceding the current quota year, using new entrant access quota.
(3) A person is a second year new entrant for a quota type and quota year if:
(a) the person was a first year new entrant for the quota type and the previous quota year; and
(b) the person has not been allocated a tariff rate quota entitlement under section 30 for the quota type and quota year.
(4) A person is a third year new entrant for a quota type and quota year if:
(a) the person was a second year new entrant for the quota type and the previous quota year; and
(b) the person has not been allocated a tariff rate quota entitlement under section 30 for the quota type and quota year.
Division 2—Allocation of quota at beginning of quota year
29 Applications for quota
Who may apply
(1) Subject to this section, an eligible person for a quota type may apply to the Secretary for an allocation of an amount of tariff rate quota entitlement for that quota type and a quota year.
Note: A person who is allocated an amount of tariff rate quota entitlement for a quota type and a quota year under section 30 cannot qualify as a new entrant for the quota type for the next 3 quota years—see section 28.
(2) A person is not eligible to apply for an allocation for a quota type and a quota year if, in relation to any of the 3 previous quota years:
(a) the person transferred one or more amounts of tariff rate quota entitlement for the quota type and quota year; and
(b) the total of the amounts that the person transferred was more than the amount worked out using the following formula:
where:
allocations is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that the person has been allocated.
maximum transfer percentage is the maximum transfer percentage for the quota type.
transfers in is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that have been transferred to the person.
When to make application
(3) The application must be made on or before the annual application day for the quota type and quota year.
Requirements for applications
(4) The application must:
(a) state the amount of tariff rate quota entitlement being applied for; and
(b) be made in a manner approved, in writing, by the Secretary; and
(c) 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).
(5) 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 (4).
(6) An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (4) for the application.
30 Allocation of quota
(1) The Secretary must, as soon as practicable after the annual application day for a quota type and a quota year, allocate to applicants under section 29 amounts of tariff rate quota entitlement for that quota type and quota year in accordance with this section.
(2) The amount of tariff rate quota entitlement to be allocated to an applicant is:
(a) if the total amount applied for in all applications is less than or equal to the standard access amount for the quota type and quota year—the amount the person applied for; or
(b) if the total amount applied for in all applications is more than the standard access amount for the quota type and quota year—the amount worked out under section 31.
Note: See also section 32 for calculations required for the purposes of section 31.
31 Calculation of tariff rate quota entitlement allocated from standard access amount
(1) For the purposes of paragraph 30(2)(b), the amount of tariff rate quota entitlement to be allocated to an applicant for a quota type and a quota year is:
(a) if the amount of the applicant’s redistributed individual entitlement for the quota type and quota year is equal to the amount of tariff rate quota entitlement the applicant applied for—that amount;
(b) if the amount of the applicant’s redistributed individual entitlement is less than the minimum quota allocation for the quota type and quota year and paragraph (a) does not apply—nil; and
(c) if neither paragraph (a) nor (b) applies—the amount worked out using the formula in subsection (2), subject to subsections (3) to (6).
Note: For an applicant’s redistributed individual entitlement, see subsections 32(7) to (14). This is worked out from an applicant’s initial individual entitlement (see subsections 32(1) and (2)) and adjusted individual entitlement (see subsections 32(3) to (6)).
(2) For the purposes of paragraph (1)(c), the formula is:
where:
applicant’s eligible past exports is the total weight of the applicant’s eligible past exports for the quota type and quota year.
non‑excess eligible past exports is the total weight of all eligible past exports, for the quota type and quota year, by all applicants to whose entitlement paragraph (1)(c) applies.
quota for redistribution is the sum of the redistributed individual entitlements of all applicants to whose entitlement paragraph (1)(b) applies.
RIE is the applicant’s redistributed individual entitlement.
Note: For an applicant’s redistributed individual entitlement, see subsections 32(7) to (14). This is worked out from an applicant’s initial individual entitlement (see subsections 32(1) and (2)) and adjusted individual entitlement (see subsections 32(3) to (6)).
(3) If the amount worked out under subsection (2) for any applicant (a quota‑filled applicant) is more than the amount of tariff rate quota entitlement the applicant applied for, then:
(a) the amount of tariff rate quota entitlement to be allocated to each quota‑filled applicant is equal to the amount of tariff rate quota entitlement that applicant applied for; and
(b) the amount of tariff rate quota entitlement to be allocated to each applicant to whom paragraph (1)(c) applies who is not a quota‑filled applicant must be recalculated under subsection (2); and
(c) for the purposes of the recalculation:
(i) each quota‑filled applicant is taken to be an applicant to whose entitlement paragraph (1)(a) applies; and
(ii) the quota available for redistribution is taken to be reduced by the difference, for each quota‑filled applicant, between the amount of tariff rate quota entitlement that applicant applied for and the amount of that applicant’s redistributed individual entitlement.
(4) The recalculation mentioned in subsection (3) must be repeated until subsection (3) no longer applies in relation to any applicant.
(5) The amount of tariff rate quota entitlement to be allocated to each applicant, as calculated under subsections (1) to (4), must be rounded to the nearest kilogram, with 0.5 of a kilogram to be rounded up.
(6) However, if the sum of the tariff rate quota entitlements to be allocated exceeds the standard access amount for the quota type and quota year, the amount of tariff rate quota entitlement to be allocated to each applicant must be rounded down to the nearest kilogram instead.
32 Initial calculations of tariff rate quota entitlement
Initial entitlement calculation using eligible past exports
(1) Subject to subsection (2), an applicant’s initial individual entitlement for a quota type and a quota year is the amount worked out using the following formula:
where:
all eligible past exports is the total weight of all eligible past exports by all applicants for the quota type and quota year.
applicant’s eligible past exports is the total weight of the applicant’s eligible past exports for the quota type and quota year.
standard access amount is the standard access amount for the quota type and quota year.
(2) If the amount worked out under subsection (1) for an applicant is more than the amount of tariff rate quota entitlement the applicant applied for, the amount of the applicant’s initial individual entitlement is the amount of tariff rate quota entitlement the applicant applied for.
Redistribution of excess allocations
(3) The amount of an applicant’s adjusted individual entitlement for a quota type and a quota year is:
(a) if the amount of the applicant’s initial individual entitlement for the quota type and quota year is equal to the amount of tariff rate quota entitlement the applicant applied for—that amount; and
(b) if the amount of the applicant’s initial individual entitlement for the quota type and quota year is less than the amount of tariff rate quota entitlement the applicant applied for—the amount worked out using the formula in subsection (4), subject to subsections (5) and (6).
(4) For the purposes of paragraph (3)(b), the formula is:
where:
all entitlements is the total of the initial individual entitlements of all applicants for the quota type and quota year.
applicant’s eligible past exports is the total weight of the applicant’s eligible past exports for the quota type and quota year.
IIE is the applicant’s initial individual entitlement.
non‑excess eligible past exports is the total weight of all eligible past exports, for the quota type and quota year, by all applicants to whose entitlement paragraph (3)(b) applies.
standard access is the standard access amount for the quota type and quota year.
(5) If the amount worked out under subsection (4) for any applicant (a quota‑filled applicant) is more than the amount of tariff rate quota entitlement the applicant applied for, then:
(a) the adjusted individual entitlement of each quota‑filled applicant is equal to the amount of tariff rate quota entitlement that applicant applied for; and
(b) the adjusted individual entitlement of each applicant to whose entitlement paragraph (3)(b) applies who is not a quota‑filled applicant must be recalculated under subsection (4); and
(c) for the purposes of the recalculation, each quota‑filled applicant’s initial individual entitlement is taken to have been equal to the amount of tariff rate quota entitlement that applicant applied for.
(6) The recalculation mentioned in subsection (5) must be repeated until subsection (5) no longer applies in relation to any applicant.
Application and redistribution of penalties
(7) The amount of an applicant’s redistributed individual entitlement for a quota type and a quota year is:
(a) if the applicant has an allocation penalty for the quota type and quota year—the amount of the applicant’s adjusted individual entitlement for the quota type and quota year, less the amount of the allocation penalty, subject to subsections (11) to (14); and
(b) if paragraph (a) does not apply and the applicant’s adjusted individual entitlement for the quota type and quota year is equal to the amount of tariff rate quota entitlement the applicant applied for—that amount; and
(c) if neither paragraph (a) nor (b) applies—the amount worked out using the formula in subsection (8), subject to subsections (9) and (10).
Note: See section 33 for determination of whether a person has an allocation penalty and the amount of the penalty.
(8) For the purposes of paragraph (7)(c), the formula is:
where:
AIE is the applicant’s adjusted individual entitlement.
applicant’s eligible past exports is the total weight of the applicant’s eligible past exports for the quota type and quota year.
non‑penalised eligible past exports is the total weight of all eligible past exports, for the quota type and quota year, by all applicants to whose entitlement paragraph (7)(c) applies.
penalties is the total of the amount of the allocation penalties of applicants for the quota type and quota year.
(9) If the amount worked out under subsection (8) for any applicant (a quota‑filled applicant) is more than the amount of tariff rate quota entitlement the applicant applied for, then:
(a) the redistributed individual entitlement of each quota‑filled applicant is equal to the amount of tariff rate quota entitlement that applicant applied for; and
(b) the redistributed individual entitlement of each applicant to whose entitlement paragraph (7)(c) applies who is not a quota‑filled applicant must be recalculated under subsection (8); and
(c) for the purposes of the recalculation, each quota‑filled applicant’s adjusted individual entitlement is taken to have been equal to the amount of tariff rate quota entitlement that applicant applied for.
(10) The recalculation mentioned in subsection (9) must be repeated until subsection (9) no longer applies in relation to any applicant.
Partial return of penalties
(11) Subsection (12) applies if, after the recalculation mentioned in subsection (9) has been repeated as many times as required for applicants to whose entitlement paragraph (7)(c) applies, the total of the redistributed individual entitlements of all applicants is less than the standard access amount for the quota type and quota year.
(12) If this subsection applies, the redistributed individual entitlement of an applicant who has an allocation penalty for the quota type and quota year is the amount worked out using the following formula, subject to subsections (13) and (14):
where:
AIE is the applicant’s adjusted individual entitlement.
applicant’s eligible past exports is the total weight of the applicant’s eligible past exports for the quota type and quota year.
penalised eligible past exports is the total weight of all eligible past exports, for the quota type and quota year, by all applicants who have an allocation penalty for the quota type and quota year.
penalty is the amount of the applicant’s allocation penalty for the quota type and quota year.
quota for redistribution is the difference between:
(a) the standard access amount for the quota type and quota year; and
(b) the total of the redistributed individual entitlements of all applicants after the recalculation mentioned in subsection (6) has been repeated as many times as required.
(13) If the amount worked out under subsection (12) for any applicant (a quota‑filled applicant) is more than the amount of tariff rate quota entitlement the applicant applied for, then:
(a) the redistributed individual entitlement of each quota‑filled applicant is equal to the amount of tariff rate quota entitlement that applicant applied for; and
(b) the redistributed individual entitlement of each applicant with an allocation penalty for the quota type and quota year who is not a quota‑filled applicant must be recalculated under subsection (12); and
(c) for the purposes of the recalculation:
(i) each quota‑filled applicant is taken to not have an allocation penalty for the quota type and quota year; and
(ii) the quota available for redistribution is taken to be reduced by the difference, for each quota‑filled applicant, between the amount of tariff rate quota entitlement that applicant applied for and the amount of that applicant’s redistributed individual entitlement as it was worked out under paragraph (7)(a).
(14) The recalculation mentioned in subsection (13) must be repeated until subsection (13) no longer applies in relation to any applicant.
33 Penalty on allocation for unused entitlement in previous quota year
(1) A person has an allocation penalty for a quota type and a quota year if, as at the end of the annual application day for the quota type and quota year, the total weight for which tariff rate quota certificates have been issued to the person in relation to consignments of that quota type in relation to the previous quota year is less than the amount worked out using the following formula:
where:
allocations is the sum of all of the amounts of tariff rate quota entitlement for the quota type and the previous quota year that the person has been allocated.
required usage percentage is the required usage percentage for the quota type.
returns is the sum of all of the amounts of tariff rate quota entitlement for the quota type and the previous quota year that the person returned on or before the reclamation day for the previous quota year.
transfers in is the sum of all of the amounts of tariff rate quota entitlement for the quota type and the previous quota year that have been transferred to the person.
transfers out is the sum of all of the amounts of tariff rate quota entitlement for the quota type and the previous quota year that have been transferred from the person to another person.
(2) However, the person does not have an allocation penalty if, as at the end of the annual application day for the quota type and quota year:
(a) the person’s tariff rate quota entitlement for the quota type and the previous quota year is less than the penalty individual threshold for the quota type and the previous quota year; or
(b) the uncommitted annual access amount for the quota type and the previous quota year, less any amounts of tariff rate quota entitlement for the previous quota year that were returned to the Secretary after the reclamation day for the previous quota year, is greater than the penalty pool threshold for the quota type and the previous quota year.
(3) If a person has an allocation penalty for a quota type and a quota year, the amount of the allocation penalty is the amount, as at the end of the annual application day for the quota type and quota year, of the person’s tariff rate quota entitlement for the quota type and the previous quota year.
Division 3—Tariff rate quota certificates before reclamation day
34 Applications for tariff rate quota certificates before reclamation day
A person who intends to export a consignment of a quota type in a quota year may, on or before the reclamation day for the quota type and quota year, apply to the Secretary under this section for a tariff rate quota certificate for the consignment.
Note: See section 114 for requirements and other matters relating to applications.
35 Applications to be dealt with in order of receipt
(1) The Secretary must deal with applications under section 34 in the order in which the applications are received by the Secretary.
Note: Subsection 114(8) deals with when an application is taken to be received by the Secretary.
(2) If the Secretary has not dealt with an application under section 34 before the end of the reclamation day for the quota type and quota year, the Secretary must deal with the application before allocating amounts of tariff rate quota entitlement for the quota type and quota year in accordance with section 42.
36 Issuing tariff rate quota certificates
Application of this section
(1) This section applies in relation to an application under section 34 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year.
When Secretary must issue certificate
(2) Subject to section 115, the Secretary must issue a tariff rate quota certificate to the applicant in relation to the consignment if, at the time the Secretary deals with the application:
(a) the applicant’s tariff rate quota entitlement for the quota type and quota year is greater than zero; or
(b) if the applicant is a new entrant for the quota type and quota year—the applicant’s new entrant available amount for the quota type and quota year is greater than zero; or
(c) the uncommitted standard access amount for the quota type and quota year is greater than zero.
Note: Section 115 deals with when the Secretary may decide not to issue a certificate.
(3) If the applicant is a new entrant, the certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the sum of the applicant’s tariff rate quota entitlement, the applicant’s new entrant available amount and the uncommitted standard access amount at the time the Secretary deals with the application.
Note: A new entrant might have obtained a tariff rate quota entitlement by a transfer of entitlement under section 37.
(4) If the applicant is not a new entrant, the certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the sum of the applicant’s tariff rate quota entitlement and the uncommitted standard access amount at the time the Secretary deals with the application.
(5) If the applicant’s tariff rate quota entitlement for the quota type and quota year is greater than zero at the time the Secretary deals with the application, the applicant’s tariff rate quota entitlement is reduced (but not below zero) by the weight for which the tariff rate quota certificate is issued.
(6) If the applicant is a new entrant for the quota type and quota year, the certificate is taken to be issued using new entrant access quota for the lesser of the following weights:
(a) if the applicant does not have a tariff rate quota entitlement for the quota type and quota year at the time the Secretary deals with the application—the weight for which the tariff rate quota certificate is issued;
(b) if the applicant does have such an entitlement—the difference between the weight for which the tariff rate quota certificate is issued and that entitlement;
(c) the applicant’s new entrant available amount for the quota type and quota year at the time the Secretary deals with the application.
(7) The certificate is taken to be issued using standard access quota for the following weight:
(a) if the applicant is not a new entrant for the quota type and quota year—the weight for which the tariff rate quota certificate is issued;
(b) if the applicant is a new entrant—the difference between the weight for which the tariff rate quota certificate is issued and the weight for which the certificate is taken to be issued using new entrant access quota.
Division 4—Transfer or return of quota
37 Transfer of tariff rate quota entitlement
(1) A person (the transferor) who has an amount of tariff rate quota entitlement for a quota type and a quota year may, at any time on or before the reclamation day for the quota type and quota year, make a written request to the Secretary to transfer all or part of that amount to an eligible person for the quota type (the transferee). The request must include the following:
(a) the name of the transferor;
(b) the name of the transferee;
(c) the amount of the entitlement to be transferred.
Note: Transferring more than a certain amount of entitlement for a quota year will make the person ineligible to apply for an allocation of entitlement for the following 3 quota years: see subsection 29(2).
(2) However, a new entrant for the quota type and quota year is not permitted to be a transferor.
(3) If the Secretary receives a request under subsection (1), the amount is transferred in accordance with the request.
38 Return of tariff rate quota entitlement
(1) A person who has an amount of tariff rate quota entitlement for a quota type and a quota year may, at any time before the end of the quota year, return all or part of that amount by notifying the Secretary in writing of the amount of the entitlement to be returned.
Note 1: If the notice is given after the reclamation day for the quota year, the cancelled quota will be counted in determining a penalty in relation to the following quota year under section 33.
Note 2: A person may also return an amount of tariff rate quota entitlement when giving a notice under section 39.
(2) If the Secretary receives a notice under subsection (1), the amount of the person’s tariff rate quota entitlement stated in the notice is cancelled.
Division 5—Reclamation and reallocation of quota
Subdivision A—Reclamation
39 Notice before reclamation day
(1) A person who has a tariff rate quota entitlement for a quota type and a quota year must give the Secretary a written notice under this section on or before the reclamation day for the quota type and quota year.
(2) The notice must state:
(a) the amount of tariff rate quota entitlement that the person is returning; or
(b) the amount of additional tariff rate quota entitlement that the person is applying for; or
(c) that the person does not intend to either return tariff rate quota entitlement or apply for additional tariff rate quota entitlement.
Note: For applications for tariff rate quota entitlement by persons who do not have an entitlement, see section 44.
(3) The notice 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 notice:
(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 provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code).
(4) The Secretary may accept any information or document previously given to the Secretary under this instrument as satisfying any requirement to give that information or document under subsection (3).
(5) A notice is taken not to have been given if the notice does not comply with the requirements referred to in subsection (3) for the notice.
40 Cancellations of tariff rate quota entitlement following notice or reclamation day
Cancellation of notified amount
(1) If the Secretary receives a notice under section 39 from a person that states an amount of tariff rate quota entitlement for a quota type and a quota year that the person is returning, the amount of the person’s tariff rate quota entitlement stated in the notice is cancelled.
Cancellation if no notice given
(2) If a person who has a tariff rate quota entitlement for a quota type and a quota year does not give the Secretary a notice in accordance with section 39:
(a) the person’s tariff rate quota entitlement is forfeited at the start of the day after the reclamation day; and
(b) the whole of that entitlement is cancelled.
Cancellation if less than 25% of entitlement used
(3) Subsection (4) applies if, at the end of the reclamation day for a quota type and a quota year:
(a) a person has a tariff rate quota entitlement for the quota type and quota year; and
(b) the total weight for which tariff rate quota certificates have been issued to the person in relation to consignments of that quota type in relation to the quota year is less than 25% of:
where:
allocations is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that the person has been allocated.
returns is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that the person has returned.
transfers in is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that have been transferred to the person.
transfers out is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that have been transferred from the person to another person.
(4) If this subsection applies, then:
(a) the person’s tariff rate quota entitlement is forfeited at the start of the day after the reclamation day; and
(b) the whole of that entitlement is cancelled.
Subdivision B—Allocation process for new entrants
41 Application by new entrant for quota allocation after reclamation day
(1) A person may apply to the Secretary under this section for an allocation of an amount of tariff rate quota entitlement for a quota type and a quota year if:
(a) the person is an eligible person for the quota type; and
(b) the person is a new entrant for the quota type and quota year; and
(c) tariff rate quota certificates have been issued to the person in relation to consignments of that quota type in relation to the quota year.
When to make application
(2) The application must be made on or before the reclamation day for the quota type and quota year.
Limit on amount applied for
(3) The maximum amount of tariff rate quota entitlement that the person may apply for is the lesser of:
(a) the total weight of the tariff rate quota certificates that have been issued to the person in relation to consignments of the quota type for export in the quota year using new entrant access quota; and
(b) the difference between the new entrant access cap for the quota type and quota year and the weight mentioned in paragraph (a).
Requirements for applications
(4) The application must:
(a) state the amount of tariff rate quota entitlement being applied for; and
(b) be made in a manner approved, in writing, by the Secretary; and
(c) 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).
(5) 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 (4).
(6) An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (4) for the application.
42 Allocation of quota after reclamation day—new entrants
(1) The Secretary must, as soon as practicable after the reclamation day for a quota type and a quota year, allocate amounts of tariff rate quota entitlement for the quota type and quota year to applicants under section 41 in accordance with this section.
Note: The Secretary must deal with all applications for tariff rate quota certificates made under section 34 before allocating entitlements in accordance with this section (see subsection 35(2)).
(2) The amount of tariff rate quota entitlement to be allocated to an applicant is:
(a) if the total amount applied for in all applications is less than or equal to the uncommitted new entrant access amount for the quota type and quota year as at the time the Secretary makes the allocation—the amount the person applied for; or
(b) if the total amount applied for in all applications is more than the uncommitted new entrant access amount for the quota type and quota year as at the time the Secretary makes the allocation—the amount worked out under section 43.
43 Calculation of tariff rate quota entitlement for new entrants
(1) For the purposes of paragraph 42(2)(b) and subject to this section, the amount of tariff rate quota entitlement to be allocated to an applicant for a quota type and a quota year is the uncommitted new entrant access amount for the quota type and quota year at the time the Secretary makes the allocation, divided by the number of applicants.
(2) If the amount worked out under subsection (1) for any applicant (a quota‑filled applicant) is more than the amount of tariff rate quota entitlement the applicant applied for:
(a) the amount of tariff rate quota entitlement to be allocated to each quota‑filled applicant is equal to the amount of tariff rate quota entitlement that applicant applied for; and
(b) the amount of tariff rate quota entitlement to be allocated to each applicant who is not a quota‑filled applicant must be recalculated under subsection (1); and
(c) for the purposes of the recalculation:
(i) each quota‑filled applicant is taken not to be an applicant; and
(ii) the uncommitted new entrant access amount is taken to be reduced by the total amount of tariff rate quota entitlement to be allocated to quota‑filled applicants.
(3) The recalculation mentioned in subsection (2) must be repeated until subsection (2) no longer applies in relation to any applicant.
(4) The amount of tariff rate quota entitlement to be allocated to each applicant, as calculated under subsections (1) to (3), must be rounded to the nearest kilogram, with 0.5 of a kilogram to be rounded up.
(5) However, if the sum of the tariff rate quota entitlements to be allocated exceeds the uncommitted new entrant access amount for the quota type and quota year at the time the Secretary makes the allocation, the amount of tariff rate quota entitlement to be allocated to each applicant must be rounded down to the nearest kilogram instead.
Subdivision C—Allocation process for persons other than new entrants
44 Application by person who is not new entrant for quota allocation after reclamation day
(1) Subject to subsection (2), a person may apply to the Secretary under this section for an allocation of an amount of tariff rate quota entitlement for a quota type and a quota year if:
(a) the person is an eligible person for the quota type;
(b) the person is not a new entrant for the quota type and quota year; and
(c) the person does not, at the time of the application, have a tariff rate quota entitlement for the quota type and quota year.
Note 1: A person who has a tariff rate quota entitlement is required to give the Secretary a notice under section 39, and may, as part of that notice, apply for an amount of additional tariff rate quota entitlement.
Note 2: A person who is allocated an amount of tariff rate quota entitlement for a quota type and a quota year under section 45 cannot qualify as a new entrant for the quota type for the next 3 quota years (see section 28).
(2) A person is not eligible to apply for an allocation for a quota type and a quota year if, in relation to any of the 3 previous quota years:
(a) the person transferred one or more amounts of tariff rate quota entitlement for the quota type and quota year; and
(b) the total of the amounts that the person transferred was more than the amount worked out using the following formula:
where:
allocations is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that the person has been allocated.
maximum transfer percentage is the maximum transfer percentage for the quota type.
transfers in is the sum of all of the amounts of tariff rate quota entitlement for the quota type and quota year that have been transferred to the person.
When to make application
(3) The application must be made on or before the reclamation day for the quota type and quota year.
Requirements for applications
(4) The application must:
(a) state the amount of tariff rate quota entitlement being applied for; and
(b) be made in a manner approved, in writing, by the Secretary; and
(c) 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).
(5) 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 (4).
(6) An application is taken not to have been made if the application does not comply with the requirements referred to in subsection (4) for the application.
45 Allocation of quota after reclamation day—applicants who are not new entrants
(1) The Secretary must allocate amounts of tariff rate quota entitlement for a quota type and a quota year to persons who applied for entitlement in accordance with paragraph 39(2)(b) or under section 44 as soon as practicable after:
(a) all relevant amounts of tariff rate quota entitlement for the quota type and quota year have been cancelled under section 40; and
(b) the Secretary has allocated amounts of tariff rate quota entitlement for the quota type and quota year under section 42.
(2) The amount of tariff rate quota entitlement to be allocated to an applicant is:
(a) if the total amount applied for in all applications is less than or equal to the uncommitted annual access amount for the quota type and quota year as at the time the Secretary makes the allocation—the amount the person applied for; or
(b) if the total amount applied for in all applications is more than the uncommitted annual access amount for the quota type and quota year as at the time the Secretary makes the allocation—the amount worked out under section 46.
Note: The uncommitted annual access amount is not available for the purposes of issuing tariff rate quota certificates until this allocation process is carried out (see subsection 49(5)).
46 Calculation of tariff rate quota entitlement after reclamation day
(1) For the purposes of paragraph 45(2)(b) and subject to this section, the amount of tariff rate quota entitlement to be allocated to an applicant for a quota type and a quota year is the amount worked out using the following formula:
where:
all eligible past exports is the total weight of all eligible past exports by all applicants for the quota type and that quota year.
applicant’s eligible past exports is the total weight of the applicant’s eligible past exports for the quota type and quota year.
uncommitted annual access amount is the uncommitted annual access amount for the quota type and quota year at the time the Secretary makes the allocation.
(2) If the amount worked out under subsection (1) for any applicant (a quota‑filled applicant) is more than the amount of tariff rate quota entitlement the applicant applied for:
(a) the amount of tariff rate quota entitlement to be allocated to each quota‑filled applicant is equal to the amount of tariff rate quota entitlement that applicant applied for; and
(b) the amount of tariff rate quota entitlement to be allocated to each applicant who is not a quota‑filled applicant must be recalculated under subsection (1); and
(c) for the purposes of the recalculation:
(i) each quota‑filled applicant is taken not to be an applicant; and
(ii) the uncommitted annual access amount is taken to be reduced by the total amount of tariff rate quota entitlement to be allocated to quota‑filled applicants.
(3) The recalculation mentioned in subsection (2) must be repeated until subsection (2) no longer applies in relation to any applicant.
(4) The amount of tariff rate quota entitlement to be allocated to each applicant, as calculated under subsections (1) to (3), must be rounded to the nearest kilogram, with 0.5 of a kilogram to be rounded up.
(5) However, if the sum of the tariff rate quota entitlements to be allocated exceeds the uncommitted annual access amount for the quota type and quota year at the time the Secretary makes the allocation, the amount of tariff rate quota entitlement to be allocated to each applicant must be rounded down to the nearest kilogram instead.
Division 6—Tariff rate quota certificates after reclamation day
47 Applications for tariff rate quota certificates after reclamation day
A person who intends to export a consignment of a quota type in a quota year may, after the reclamation day for the quota type and quota year, apply to the Secretary under this section for a tariff rate quota certificate in relation to the consignment.
Note: See section 114 for requirements and other matters relating to applications.
48 Applications to be dealt with in order of receipt
The Secretary must deal with applications under section 47 in the order in which the applications are received by the Secretary.
Note: Subsection 114(8) deals with when an application is taken to be received by the Secretary.
49 Issuing tariff rate quota certificates
Application of this section
(1) This section applies in relation to an application under section 47 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year.
When Secretary must issue certificate
(2) Subject to subsection (5) and section 115, the Secretary must issue a tariff rate quota certificate to the applicant in relation to the consignment if, at the time the Secretary deals with the application:
(a) the applicant’s tariff rate quota entitlement for the quota type and quota year is greater than zero; or
(b) the uncommitted annual access amount for the quota type and quota year is greater than zero.
Note: Section 115 deals with when the Secretary may decide not to issue a certificate.
(3) The certificate must be issued for the lesser of:
(a) the weight of the consignment applied for; and
(b) the sum of the applicant’s tariff rate quota entitlement and the uncommitted annual access amount at the time the Secretary deals with the application.
(4) If the applicant’s tariff rate quota entitlement is greater than zero at the time the Secretary deals with the application, the applicant’s tariff rate quota entitlement is reduced (but not below zero) by the weight for which the tariff rate quota certificate is issued.
No uncommitted annual access amount until after allocation process
(5) For the purposes of this section, the uncommitted annual access amount for a quota type and a quota year is taken to be zero during the period:
(a) beginning at the start of the day after the reclamation day for the quota type and quota year; and
(b) ending when the Secretary has allocated amounts of tariff rate quota entitlement for the quota type and quota year to persons in accordance with section 45.
Part 4—Certification method
50 Application of this Part
If a provision of Chapter 3 provides that the certification method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year, then this Part applies for the purposes of issuing a tariff rate quota certificate in relation to such a consignment.
51 Applications for tariff rate quota certificates
A person who intends to export a consignment of a quota type in a quota year may apply to the Secretary for a tariff rate quota certificate in relation to the consignment.
Note: See section 114 for requirements and other matters relating to applications.
52 Issuing tariff rate quota certificates
If the Secretary receives an application under section 51, the Secretary must, subject to section 115, issue a tariff rate quota certificate to the applicant in relation to the consignment.
Note: Section 115 deals with when the Secretary may decide not to issue a certificate.
Chapter 3—Exports covered by tariff rate quotas
Part 1—Exports to the European Union
Division 1—EU buffalo meat
53 EU buffalo meat
EU buffalo meat is frozen boneless buffalo meat of the kind referred to in Article 1(1)(b) of the EU Beef and Buffalo Regulation.
54 Quota year
A quota year for EU buffalo meat for export to the European Union is a period of 12 months beginning on 1 July.
55 Method for issuing tariff rate quota certificates
The first come, first served method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of EU buffalo meat for export to the European Union in a quota year beginning on or after 1 July 2020.
Note: The first come, first served method is set out in Part 1 of Chapter 2.
56 Annual access amount
The annual access amount for EU buffalo meat for export to the European Union in relation to a quota year is the weight of EU buffalo meat that may, under Article 1(1)(b) of the EU Beef and Buffalo Regulation, be exported from Australia to the European Union in the quota year at the ad valorem customs duty set out in Article 1(3) of that Regulation.
Division 2—EU grain fed beef
57 EU grain fed beef
EU grain fed beef is beef of the kind referred to in Article 1(2) of the EU Grain Fed Beef Regulation.
58 Quota year
A quota year for EU grain fed beef for export to the European Union is a period of 12 months beginning on 1 July.
59 Method for issuing tariff rate quota certificates
The certification method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of EU grain fed beef for export to the European Union in a quota year beginning on or after 1 July 2020.
Note: The certification method is set out in Part 4 of Chapter 2.
Division 3—EU high quality beef
60 EU high quality beef
EU high quality beef is beef of the kind referred to in Article 2(b) of the EU Beef and Buffalo Regulation.
61 Quota year
A quota year for EU high quality beef for export to the European Union is a period of 12 months beginning on 1 July.
62 Method for issuing tariff rate quota certificates
The allocation method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of EU high quality beef for export to the European Union in a quota year beginning on or after 1 July 2020.
Note: The allocation method is set out in Part 3 of Chapter 2.
63 Annual access amount
The annual access amount for EU high quality beef for export to the European Union in relation to a quota year is the weight of EU high quality beef that may, under Article 2(b) of the EU Beef and Buffalo Regulation, be exported from Australia to the European Union in the quota year at the ad valorem customs duty set out in Article 1(3) of that Regulation.
64 Application and reclamation days
(1) The annual application day for EU high quality beef for export to the European Union for a quota year is 16 May in the calendar year in which the quota year starts.
(2) The reclamation day for EU high quality beef for export to the European Union for a quota year is 15 February in the quota year.
65 Eligible person
An eligible person for EU high quality beef for export to the European Union is a person who holds a licence granted under section 10 of the Australian Meat and Live‑stock Industry Act 1997 allowing the holder to export EU high quality beef to the European Union.
66 Eligible past exports
A consignment is an eligible past export for EU high quality beef for export to the European Union in relation to a quota year if:
(a) it is a consignment of EU high quality beef exported to the European Union; and
(b) a tariff rate quota certificate was issued in relation to the consignment in the period:
(i) beginning on the 1 May that is 38 months before the start of the quota year; and
(ii) ending on 30 April of the calendar year in which the quota year starts.
67 Minimum quota allocation
The minimum quota allocation for EU high quality beef for export to the European Union in relation to a quota year is 1 tonne.
68 Penalties
(1) The required usage percentage for EU high quality beef for export to the European Union is 90 per cent.
(2) The penalty individual threshold for EU high quality beef for export to the European Union in relation to a quota year is 10 tonnes.
(3) The penalty pool threshold for EU high quality beef for export to the European Union in relation to a quota year is 300 tonnes.
69 Maximum transfer percentage
The maximum transfer percentage for EU high quality beef for export to the European Union is 50 per cent.
70 New entrant amounts
(1) The new entrant access amount for EU high quality beef for export to the European Union in relation to a quota year is 500 tonnes.
(2) The new entrant access cap for EU high quality beef for export to the European Union in relation to a quota year is 100 tonnes.
Division 4—EU WTO dairy goods
71 EU WTO dairy goods
Goods referred to in column 2 of an item in the following table:
(a) are EU WTO dairy goods; and
(b) are of the kind of EU WTO dairy goods referred to in column 1 of that item.
EU WTO dairy goods |
Item | Column 1 Kind of EU WTO dairy goods | Column 2 Goods |
1 | Cheese for processing | Goods described under quota number 09.4522 in Annex III(A) to the EU Dairy Regulation |
2 | Whole cheddar cheese | Goods described under quota number 09.4521 in Annex III(A) to the EU Dairy Regulation |
72 Quota year
A quota year for a kind of EU WTO dairy goods for export to the European Union is a period of 12 months beginning on 1 January.
73 Method for issuing tariff rate quota certificates
The first come, first served method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of a kind of EU WTO dairy goods for export to the European Union in a quota year beginning on or after 1 January 2020.
Note: The first come, first served method is set out in Part 1 of Chapter 2.
74 Annual access amount
The annual access amount for a kind of EU WTO dairy goods for export to the European Union in relation to a quota year is the weight of goods of that kind that may, under the EU Dairy Regulation, be exported from Australia to the European Union in the quota year at a reduced tariff rate.
Part 2—Exports to Indonesia
75 Indonesia quota goods
(1) Indonesia quota goods are goods of any of the following kinds:
(a) carrots;
(b) lemons and limes;
(c) live male cattle;
(d) mandarins;
(e) oranges;
(f) potatoes.
(2) For the purposes of this Part:
carrots means carrots of a kind that may be exported from Australia to Indonesia at a reduced tariff rate under the Indonesia‑Australia Comprehensive Economic Partnership Agreement.
lemons and limes means lemons and limes of a kind that may be exported from Australia to Indonesia at a reduced tariff rate under the Indonesia‑Australia Comprehensive Economic Partnership Agreement.
live male cattle means live male cattle of a kind that may be exported from Australia to Indonesia at a reduced tariff rate under the Indonesia‑Australia Comprehensive Economic Partnership Agreement.
mandarins means mandarins of a kind that may be exported from Australia to Indonesia at a reduced tariff rate under the Indonesia‑Australia Comprehensive Economic Partnership Agreement.
oranges means oranges of a kind that may be exported from Australia to Indonesia at a reduced tariff rate under the Indonesia‑Australia Comprehensive Economic Partnership Agreement.
potatoes means potatoes of a kind that may be exported from Australia to Indonesia at a reduced tariff rate under the Indonesia‑Australia Comprehensive Economic Partnership Agreement.
76 Quota year
(1) A quota year for a kind of Indonesia quota goods for export to Indonesia is a period of 12 months beginning on 1 January.
(2) For the purposes of this Part, the initial quota year is the quota year in which the Indonesia‑Australia Comprehensive Economic Partnership Agreement comes into force.
77 Method for issuing tariff rate quota certificates
Kinds of Indonesia quota goods other than carrots or potatoes
(1) The first come, first served method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of a kind of Indonesia quota goods (other than a consignment of carrots or potatoes) for export to Indonesia in the initial quota year or a later quota year.
Note: The first come, first served method is set out in Part 1 of Chapter 2.
Carrots and potatoes
(2) Subject to subsections (3) and (4), the allocation method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of carrots or a consignment of potatoes for export to Indonesia in the initial quota year or a later quota year.
Note: The allocation method is set out in Part 3 of Chapter 2.
(3) For the initial quota year:
(a) subsections 40(3) and (4) do not apply; and
(b) if the allocation of tariff rate quota entitlement under section 30 does not occur before 1 July in the initial quota year—Divisions 5 and 6 of Part 3 of Chapter 2 do not apply.
(4) For the quota year after the initial quota year, no person has an allocation penalty.
78 Annual access amount
The annual access amount for a kind of Indonesia quota goods for export to Indonesia in relation to a quota year is the weight of goods of that kind 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.
79 Application and reclamation days
(1) The annual application day for carrots and for potatoes for export to Indonesia is:
(a) for the initial quota year—the day specified by the Secretary; and
(b) for a later quota year—18 November in the calendar year immediately before the quota year.
(2) The reclamation day for carrots and for potatoes for export to Indonesia for a quota year is 31 August in the quota year.
(3) However, for the initial quota year, if the allocation of tariff rate quota entitlement under section 30 does not occur before 1 July in the quota year, the reclamation day is 31 December in the quota year.
Note: See also paragraph 77(3)(b).
80 Eligible person
Any person is an eligible person for carrots or for potatoes for export to Indonesia.
81 Eligible past exports
Carrots
(1) A consignment is an eligible past export for carrots for export to Indonesia in relation to the initial quota year or either of the next 2 quota years if it is a consignment of carrots exported to any country in the period:
(a) beginning on the 19 November that is between 25 and 26 months before the start of that quota year; and
(b) ending on 18 November of the calendar year before that quota year starts.
(2) A consignment is an eligible past export for carrots for export to Indonesia in relation to a quota year other than a quota year to which subsection (1) applies if:
(a) it is a consignment of carrots exported to Indonesia; and
(b) a tariff rate quota certificate was issued in relation to the consignment in the period:
(i) beginning on the 19 November that is between 25 and 26 months before the start of that quota year; and
(ii) ending on 18 November of the calendar year before that quota year starts.
Potatoes
(3) A consignment is an eligible past export for potatoes for export to Indonesia in relation to the initial quota year or either of the next 2 quota years if it is a consignment of potatoes exported to any country in the period:
(a) beginning on the 19 November that is between 25 and 26 months before the start of that quota year; and
(b) ending on 18 November of the calendar year before that quota year starts.
(4) A consignment is an eligible past export for potatoes for export to Indonesia in relation to a quota year other than a quota year to which subsection (3) applies if:
(a) it is a consignment of potatoes exported to Indonesia; and
(b) a tariff rate quota certificate was issued in relation to the consignment in the period:
(i) beginning on the 19 November that is between 25 and 26 months before the start of that quota year; and
(ii) ending on 18 November of the calendar year before that quota year starts.
82 Minimum quota allocation
The minimum quota allocation for carrots and for potatoes for export to Indonesia in relation to a quota year is 1 tonne.
83 Penalties
(1) The required usage percentage for carrots and for potatoes for export to Indonesia is 90 per cent.
(2) The penalty individual threshold for carrots and for potatoes for export to Indonesia in relation to a quota year is 10 tonnes.
(3) The penalty pool threshold for carrots and for potatoes for export to Indonesia in relation to a quota year is 300 tonnes.
84 Maximum transfer percentage
The maximum transfer percentage for carrots and for potatoes for export to Indonesia is 50 per cent.
85 New entrant amounts
Carrots
(1) The new entrant access amount for carrots for export to Indonesia is:
(a) in relation to the initial quota year or either of the next 2 quota years—zero; and
(b) in relation to a later quota year—400 tonnes.
(2) The new entrant access cap for carrots for export to Indonesia is:
(a) in relation to the initial quota year or either of the next 2 quota years—zero; and
(b) in relation to a later quota year—250 tonnes.
Potatoes
(3) The new entrant access amount for potatoes for export to Indonesia is:
(a) in relation to the initial quota year or either of the next 2 quota years—zero; and
(b) in relation to a later quota year—600 tonnes.
(4) The new entrant access cap for potatoes for export to Indonesia is:
(a) in relation to the initial quota year or either of the next 2 quota years—zero; and
(b) in relation to a later quota year—300 tonnes.
Part 3—Exports to Japan
86 Japan quota goods
(1) Japan quota goods are goods of any of the following kinds:
(a) apple juice;
(b) bovine offal;
(c) honey;
(d) orange juice;
(e) pork;
(f) poultry;
(g) preserved meats (other);
(h) preserved meats (sausage).
(2) For the purposes of this Part:
apple juice means apple juice of a kind that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement.
bovine offal means edible offal of bovine animals that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement.
honey means honey that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement.
orange juice means orange juice of a kind that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement.
pork means meat, internal organs or preparations of swine that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement.
poultry means meat or preparations of poultry that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement.
preserved meats (other) means preparations of bovine animals (including beef jerky, but not including goods that are preserved meats (sausage)) that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement.
preserved meats (sausage) means any of the following goods made from bovine animals or swine that may be exported from Australia to Japan at a reduced tariff rate under the Japan‑Australia Economic Partnership Agreement:
(a) sausages;
(b) homogenised preparations;
(c) liver paste.
87 Quota year and quarter of quota year
(1) A quota year for a kind of Japan quota goods for export to Japan is a period of 12 months beginning on 1 April.
(2) A quarter of a quota year for a kind of Japan quota goods for export to Japan is a period of 3 months beginning on 1 April, 1 July, 1 October or 1 January.
88 Method for issuing tariff rate quota certificates
The first come, first served method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of a kind of Japan quota goods for export to Japan in a quota year beginning on or after 1 April 2020.
Note: The first come, first served method is set out in Part 1 of Chapter 2.
89 Access amounts
Annual access amount
(1) The annual access amount for a kind of Japan quota goods for export to Japan in relation to a quota year is the weight of goods of that kind that may, under the Japan‑Australia Economic Partnership Agreement, be exported from Australia to Japan in the quota year at a reduced tariff rate.
Quarterly access amount for bovine offal
(2) There is a quarterly access amount for bovine offal for export to Japan.
Part 4—Exports to the United States of America
Division 1—US beef
90 US beef
(1) US beef is fresh, chilled or frozen meat derived from cattle that is described in any of the following subheadings of the US Harmonized Tariff Schedule:
(a) 0201.10.10;
(b) 0201.20.10;
(c) 0201.20.30;
(d) 0201.20.50;
(e) 0201.30.10;
(f) 0201.30.30;
(g) 0201.30.50;
(h) 0202.10.10;
(i) 0202.20.10;
(j) 0202.20.30;
(k) 0202.20.50;
(l) 0202.30.10;
(m) 0202.30.30;
(n) 0202.30.50;
(o) 9913.02.05;
but does not include any of the following:
(p) edible offal;
(q) canned or processed meat;
(r) meat loaded onto a ship as part of the ship’s stores.
(2) For the purposes of subsection (1), processed meat has the same meaning as in the US Harmonized Tariff Schedule.
91 Quota year
A quota year for US beef for export to the United States of America is a period of 12 months beginning on 1 January.
92 Method for issuing tariff rate quota certificates
The high‑fill trigger method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of US beef for export to the United States of America in a quota year beginning on or after 1 January 2020.
Note: The high‑fill trigger method is set out in Part 2 of Chapter 2.
93 Annual access amount
The annual access amount for US beef for export to the United States of America in relation to a quota year is as follows:
(a) for the quota year starting on 1 January 2020—433,214,000 kilograms;
(b) for the quota year starting on 1 January 2021—438,214,000 kilograms;
(c) for the quota year starting on 1 January 2022—448,214,000 kilograms.
94 Trigger amount and trigger deadline
(1) The trigger amount for US beef for export to the United States of America in relation to a quota year is 85% of the annual access amount for US beef for export to the United States of America in relation to that quota year.
(2) The trigger deadline for US beef for export to the United States of America in a quota year is 31 September in the quota year.
95 Eligible person
An eligible person for US beef for export to the United States of America is a person who holds a licence granted under section 10 of the Australian Meat and Live‑stock Industry Act 1997 allowing the holder to export US beef to the United States of America.
96 Eligible past exports
A consignment is an eligible past export for US beef for export to the United States of America in relation to a quota year if:
(a) it is a consignment of US beef exported to the United States of America; and
(b) a tariff rate quota certificate was issued in relation to the consignment for export in either of the 2 preceding quota years.
97 Minimum quota allocation
The minimum quota allocation for US beef for export to the United States of America in relation to a quota year is 1 tonne.
Division 2—US FTA dairy goods
98 US FTA dairy goods
(1) Goods referred to in column 2 of an item in the following table:
(a) are US FTA dairy goods; and
(b) are of the kind of US FTA dairy goods referred to in column 1 of that item.
US FTA dairy goods |
Item | Column 1 Kind of US FTA dairy goods | Column 2 Goods |
1 | American cheese | Goods that will enter the United States of America under subheading 9913.04.50 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
2 | Butter | Goods that will enter the United States of America under subheading 9913.04.10 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
3 | Cheddar cheese | Goods that will enter the United States of America under subheading 9913.04.45 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
4 | Condensed milk | Goods that will enter the United States of America under subheading 9913.04.30 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
5 | Cream and ice cream | Goods that will enter the United States of America under subheading 9913.04.05 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
6 | European‑type cheese | Goods that will enter the United States of America under subheading 9913.04.40 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
7 | Goya cheese | Goods that will enter the United States of America under subheading 9913.04.55 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
8 | Non‑fat dried milk powder and skim milk powder | Goods that will enter the United States of America under subheading 9913.04.15 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
9 | Other cheese | Goods that will enter the United States of America under subheading 9913.04.35 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
10 | Other dairy products | Goods that will enter the United States of America under subheading 9913.04.25 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
11 | Other milk powder | Goods that will enter the United States of America under subheading 9913.04.20 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
12 | Swiss‑type cheese | Goods that will enter the United States of America under subheading 9913.04.65 as listed under subchapter XIII of Chapter 99 of the US Harmonized Tariff Schedule |
(2) For the purposes of this Division:
FTA butter means the kind of US FTA dairy goods referred to in column 1 of item 2 of the table in subsection (1).
FTA cheddar cheese means the kind of US FTA dairy goods referred to in column 1 of item 3 of the table in subsection (1).
99 Quota year
A quota year for a kind of US FTA dairy goods for export to the United States of America is a period of 12 months beginning on 1 January.
100 Method for issuing tariff rate quota certificates
Kinds of US FTA dairy goods other than butter or cheddar cheese
(1) The first come, first served method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of a kind of US FTA dairy goods (other than a consignment of FTA butter or FTA cheddar cheese) for export to the United States of America in a quota year beginning on or after 1 January 2020.
Note: The first come, first served method is set out in Part 1 of Chapter 2.
Butter and cheddar cheese
(2) Subject to subsections (3) to (5), the allocation method applies for the purposes of issuing a tariff rate quota certificate in relation to a consignment of FTA butter or a consignment of FTA cheddar cheese for export to the United States of America in a quota year beginning on or after 1 January 2020.
Note: The allocation method is set out in Part 3 of Chapter 2.
(3) For the quota year beginning on 1 January 2020:
(a) subsections 29(2) and 44(2) do not apply; and
(b) no person has an allocation penalty.
(4) For the quota year beginning on 1 January 2021, subsections 29(2) and 44(2) apply only in relation to the quota year beginning on 1 January 2020.
(5) For the quota year beginning on 1 January 2022, subsections 29(2) and 44(2) apply only in relation to the quota years beginning on 1 January 2020 and 1 January 2021.
101 Annual access amount
The annual access amount for a kind of US FTA dairy goods for export to the United States of America in relation to a quota year is the weight of goods of that kind that may, under the Australia‑US Free Trade Agreement, be exported from Australia to the United States of America in the quota year at a reduced tariff rate.
102 Working out weight of cream and ice cream
For the purposes of working out the weight of US FTA dairy goods of the kind referred to in column 1 of item 5 of the table in subsection 98(1) (cream and ice cream):
(a) a reference in this instrument to the weight of goods is to be read as a reference to the volume of goods; and
(b) a reference to kilograms is to be read as a reference to litres.
103 Application and reclamation days
(1) The annual application day for FTA butter and for FTA cheddar cheese for export to the United States of America is:
(a) for the quota year beginning on 1 January 2020—the day specified by the Secretary; and
(b) for a later quota year—30 November in the calendar year immediately before the quota year.
(2) The reclamation day for FTA butter and for FTA cheddar cheese for export to the United States of America for a quota year is 16 August in the quota year.
104 Eligible person
Any person is an eligible person for FTA butter or for FTA cheddar cheese for export to the United States of America.
105 Eligible past exports
FTA butter
(1) A consignment is an eligible past export for FTA butter for export to the United States of America in relation to a quota year if:
(a) it is a consignment of FTA butter exported to the United States of America; and
(b) a tariff rate quota certificate was issued in relation to the consignment in the period:
(i) beginning on the 1 December that is 37 months before the start of the quota year; and
(ii) ending on 30 November of the calendar year before the quota year starts.
FTA cheddar cheese
(2) A consignment is an eligible past export for FTA cheddar cheese for export to the United States of America in relation to a quota year if:
(a) it is a consignment of FTA cheddar cheese exported to the United States of America; and
(b) a tariff rate quota certificate was issued in relation to the consignment in the period:
(i) beginning on the 1 December that is 37 months before the start of the quota year; and
(ii) ending on 30 November of the calendar year before the quota year starts.
106 Minimum quota allocation
The minimum quota allocation for FTA butter and for FTA cheddar cheese for export to the United States of America in relation to a quota year is 1 tonne.
107 Penalties
(1) The required usage percentage for FTA butter and for FTA cheddar cheese for export to the United States of America is 90 per cent.
(2) The penalty individual threshold for FTA butter and for FTA cheddar cheese for export to the United States of America in relation to a quota year is 10 tonnes.
(3) The penalty pool threshold for FTA butter and for FTA cheddar cheese for export to the United States of America in relation to a quota year is 300 tonnes.
108 Maximum transfer percentage
The maximum transfer percentage for FTA butter and for FTA cheddar cheese for export to the United States of America is 50 per cent.
109 New entrant amounts
(1) The new entrant access amount for FTA butter and for FTA cheddar cheese for export to the United States of America in relation to a quota year is 80 tonnes.
(2) The new entrant access cap for FTA butter and for FTA cheddar cheese for export to the United States of America in relation to a quota year is 40 tonnes.
Division 3—US WTO dairy goods
110 US WTO dairy goods
Goods referred to in column 2 of an item in the following table:
(a) are US WTO dairy goods; and
(b) are of the kind of US WTO dairy goods referred to in column 1 of that item.
US WTO dairy goods | |
Item | Column 1 Kind of US WTO dairy goods | Column 2 Goods | Column 3 Annual access amount (kg) |
1 | American‑type cheese | Goods mentioned in additional U.S. note 19, being any of the following goods that will enter the United States of America under subheading 0406.10.34, 0406.20.36, 0406.20.69, 0406.30.34, 0406.30.69, 0406.90.52 or 0406.90.82 of the US Harmonized Tariff Code: (a) American‑type cheese, including Colby, washed curd and granular cheese but not cheddar cheese; (b) cheese; (c) substitutes for cheese that contain, or are processed from, American‑type cheese mentioned in paragraph (a) | 119,002 | |
2 | Cheddar cheese | Goods mentioned in additional U.S. note 18, being any of the following goods that will enter the United States of America under subheading 0406.10.24, 0406.20.31, 0406.20.65, 0406.30.24, 0406.30.65, 0406.90.08 or 0406.90.76 of the US Harmonized Tariff Code: (a) cheddar cheese; (b) cheese; (c) substitutes for cheese that contain, or are processed from, cheddar cheese | 1,465,501 | |
3 | Other unspecified cheese | Goods mentioned in additional U.S. note 16, being cheese, and substitutes for cheese, that: (a) will enter the United States of America under subheading 0406.10.04, 0406.10.84, 0406.20.89, 0406.30.89 or 0406.90.95 of the US Harmonized Tariff Code; and (b) are not any of the following: (i) cheese not containing cow’s milk; (ii) soft ripened cow’s milk cheese; (iii) cheese (other than cottage cheese) that contains 0.5% or less by weight of butterfat; (iv) an article to which the United States of America applies a quantitative limitation under any of additional U.S. notes 17 to 25 | 2,508,830 | |
4 | Swiss and Emmentaler cheese | Goods mentioned in additional U.S. note 25, being Swiss and Emmentaler cheese that: (a) have eye formation; and (b) will enter the United States of America under subheading 0406.90.46 of the US Harmonized Tariff Code | 290,302 | |
| | | | |
111 Quota year
A quota year for a kind of US WTO dairy goods for export to the United States of America is a period of 12 months beginning on 1 January.
112 Method for issuing tariff rate quota certificates
The first come, first served method applies for the purposes of issuing tariff rate quota certificates in relation to consignments of a kind of US WTO dairy goods for export to the United States of America in a quota year beginning on or after 1 January.
Note: The first come, first served method is set out in Part 1 of Chapter 2.
113 Annual access amount
The annual access amount for a kind of US WTO dairy goods for export to the United States of America in relation to a quota year is the amount specified for that kind of quota goods in column 3 of the table in section 110.
Chapter 4—Other matters relating to tariff rate quota certificates
114 Applications for tariff rate quota certificates
Applications covered by this section
(1) This section applies in relation to an application made under Chapter 2 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year.
When to make application
(2) The application:
(a) must not be made more than 3 weeks before the applicant intends the consignment to leave Australia; and
(b) if the application is in relation to a consignment of a kind of Japan quota goods for export to Japan in a quota year—must not be made before 10 March in the calendar year in which that quota year starts.
Requirements for applications
(3) The 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).
(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 the requirements referred to in subsection (3) for the application.
Secretary may request further information
(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.
When application is taken to be received by Secretary
(8) 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 (6) in relation to the application—that further information.
Withdrawal of application
(9) A person who has made an application may withdraw the application at any time before the Secretary makes a decision on the application.
115 When Secretary may decide not to issue tariff rate quota certificate
(1) This section applies in relation to an application made under Chapter 2 for a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year.
(2) 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 any or all of the following:
(a) any failure by the applicant to comply with a request made under subsection 125(3) (requests relating to audits);
(b) whether the applicant does not hold a licence required under a law of the Commonwealth to export the consignment;
(c) any relevant liability in relation to a tariff rate quota certificate, in relation to a consignment of any quota type, 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 the kind of goods is not financially viable or is not likely to remain so;
(e) whether it would not be in the best interests of the industry relating to the kind of goods for the certificate to be issued.
(3) 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.
116 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.
117 When tariff rate quota certificate has effect
(1) If a tariff rate quota certificate in relation to a consignment of a quota type for export 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 of a kind of goods for export to a destination in a quota year ceases to have effect if the consignment is not accepted for entry to that destination before:
(a) the end of the quota year; or
(b) if the relevant destination authority has set an earlier expiry date for certificates of that kind—that expiry date.
118 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 might be issued with similar contents.
119 Cancellation of tariff rate quota certificates
Cancellation on request
(1) The Secretary must cancel a tariff rate quota certificate in relation to a consignment of a quota type for export in a quota year 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 of 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 own initiative
(2) The Secretary may cancel a tariff rate quota certificate in relation to a consignment of a quota type for export 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 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 125(3) (requests relating to audits);
(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 liability in relation to a tariff rate quota certificate, in relation to a consignment of any quota type, 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 the kind of goods 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 industry relating to the kind of goods for the person to continue to hold the certificate.
Record and notice of cancellation
(3) If the Secretary cancels a tariff rate quota certificate under this section, 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 (2), notify the person to whom the certificate was issued, in writing, of the cancellation.
(4) A notice under paragraph (3)(b) must include:
(a) the reasons for the cancellation; and
(b) information about the person’s right to have the decision reviewed.
Effect of cancellation on calculations
(5) For the purposes of working out the weight of tariff rate quota certificates that have been issued in relation to consignments of a quota type, a tariff rate quota certificate that is cancelled under this section is taken never to have been issued.
(6) However, subsection (5) does not apply in relation to determining, for the purposes of the high‑fill trigger method, whether the allocation trigger for a quota type and a quota year occurs.
Note: See section 15 for when the allocation trigger occurs.
Chapter 5—Review of decisions
120 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 issue a tariff rate quota certificate | Subsection 115(2) | The person who applied for the certificate |
2 | To cancel a tariff rate quota certificate | Subsection 119(2) | The person to whom the certificate was issued |
121 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.
122 Secretary to reconsider initial decision
(1) On receiving an application under section 121 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 when 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 123, 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 when the application for reconsideration was received.
123 Application for review by Administrative Appeals Tribunal of Secretary’s decisions
Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Secretary made under section 122.
124 Reconsidering and reviewing decisions
For the purposes of reconsidering, or reviewing, a decision:
(a) references in Chapter 2 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 Chapter 2 to a person’s tariff rate quota entitlement at the time the Secretary deals with an application are taken to be references to the person’s tariff rate quota entitlement at the time of the reconsideration or review.
Chapter 6—Miscellaneous
125 Audits
(1) The Secretary may require an audit to be carried out in relation to the following:
(a) a tariff rate quota certificate issued to a person;
(b) 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 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.
126 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 122(1).
Note: For initial decision, see section 120.
(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.
Chapter 7—Application, saving and transitional provisions
Part 1—Transitional matters for commencement of instrument
127 References to tariff rate quota certificates
A reference in this instrument to a tariff rate quota certificate issued in relation to a previous quota year or in a past period includes a tariff rate quota certificate issued under any of the following instruments:
(a) the Export Control (Beef Export to the USA Tariff Rate Quota) Order 2016;
(b) the Export Control (Dairy Produce Tariff Rate Quotas) Order 2016;
(c) the Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016.
128 References to entitlement
(1) A reference in this instrument to an allocation of tariff rate quota entitlement in relation to a previous quota year includes:
(a) an allocation of quota entitlement under Part 2 of the Export Control (Dairy Produce Tariff Rate Quotas) Order 2016; and
(b) an allocation of standard tariff rate quota entitlement or supplementary tariff rate quota entitlement under the Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016.
(2) A reference in this instrument to a transfer of tariff rate quota entitlement in relation to a previous quota year includes a transfer under section 29 of the Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016.
(3) A reference in this instrument to the return of entitlement in relation to a previous quota year includes the relinquishment of tariff rate quota entitlement under section 25 of the Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016.
129 Continued application of repealed instruments
(1) Despite the repeal of the Export Control (Beef Export to the USA Tariff Rate Quota) Order 2016, that instrument continues to apply in relation to a quota year ending before 1 January 2020.
(2) Despite the repeal of the Export Control (Dairy Produce Tariff Rate Quotas) Order 2016, that instrument continues to apply in relation to a quota year ending before 1 January 2020.
(3) Despite the repeal of the Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016, that instrument continues to apply in relation to a quota year ending before 1 July 2020.
Note: See also section 130 of this instrument.
(4) Despite the repeal of the Export Control (Japan‑Australia) Economic Partnership Agreement Tariff Rate Quotas) Order 2016, that instrument continues to apply in relation to a quota year ending before 1 April 2020.
Part 2—Transitional provisions relating to the Export Control (Tariff Rate Quotas) Amendment (Trade with United Kingdom) Order 2020
130 Continued application of the Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016
The Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016 (the continuing Order) continues to apply under subsection 129(3) of this instrument in relation to the quota year ending on 30 June 2020 as if:
(a) the definition of EU in subsection 5(1) of the continuing Order included at the end “and, during the UK withdrawal transition period, includes the United Kingdom”; and
(b) the following definition were inserted into subsection 5(1) of the continuing Order:
UK withdrawal transition period means the period (if any) when transitional arrangements agreed between the United Kingdom and the European Union relating to trade are in force following the withdrawal of the United Kingdom from the European Union.
