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CUSTOMS AMENDMENT ACT 1996 No. 30 of 1996 - SCHEDULE
Schedule 1-Amendment of the Customs Act 1901 Part 1-Amendments 1 Subsection
269B(1) (definition of last day for submissions) Repeal the definition,
substitute: last day for submissions means:
(a) in relation to an original TCO application:
(i) so far as concerns a person invited by the CEO under section
269M to lodge a submission in respect of the TCO
application-the day fixed in the notice inviting that
submission; and
(ii) so far as concerns any other person-the day occurring 50 days
after the gazettal day; and
(b) in relation to an amended TCO application:
(i) so far as concerns a person invited under paragraph 269L(4B)(a)
to lodge a further submission in respect of the amended TCO
application-the day occurring 14 days after the notification
containing that invitation; and
(ii) so far as concerns any other person-the day occurring 14 days
after publication of a notice under paragraph 269L(4B)(b)
inviting submissions in relation to the amended application. 2
Subsection 269B(1) (definition of substitutable goods) After
"are put", insert ", or are capable of being put,". 3 At the
end of section 269B Add:
(3) In determining whether goods produced in Australia are put, or are capable
of being put, to a use corresponding to a use to which goods the subject of a
TCO, or of an application for a TCO, can be put, it is irrelevant whether or
not the first-mentioned goods compete with the second-mentioned goods in any
market. 4 Section 269C Repeal the section, substitute: 269C
Interpretation-core criteria
For the purposes of this Part, a TCO application is taken to meet the core
criteria if, on the day on which the application was lodged, no substitutable
goods were produced in Australia in the ordinary course of business. 5
Subsection 269E(3) (definition of made-to-order capital equipment) Repeal the
definition, substitute: made-to-order capital equipment means a particular
item of capital equipment:
(a) that is made in Australia on a one-off basis to meet a specific order
rather than being the subject of regular or intermittent production;
and
(b) that is not produced in quantities indicative of a production run. 6
At the end of subsection 269F(3) Add:
; and (c) if the applicant is not proposing to make use of the TCO to import
the goods to which the application relates into Australia on the applicant's
own behalf-the identity of the importer for whom the applicant is acting; and
(d) particulars of all the inquiries made by the applicant (including
inquiries made of prescribed organisations) to assist in establishing
that there were reasonable grounds for believing that, on the day on
which the application was lodged, there were no producers in Australia
of substitutable goods. 7 After section 269F Insert: 269FA The
applicant's obligation
It is the responsibility of an applicant for a TCO to establish, to the
satisfaction of the CEO, that, on the basis of:
(a) all information that the applicant has, or can reasonably be expected
to have; and
(b) all inquiries that the applicant has made, or can reasonably be
expected to make; there are reasonable grounds for asserting that the
application meets the core criteria. 8 Paragraphs 269H(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) if he or she is satisfied:
(i) that the application complies with section 269F; and
(ii) that, having regard to the information disclosed in the
application and to the particulars of the inquiries made by the
applicant, there are reasonable grounds for believing that the
applicant has discharged the responsibility referred to in
section 269FA; and
(b) if he or she is not aware of any producer in Australia of
substitutable goods; by notice in writing given to the applicant,
inform the applicant that the application is accepted as a valid
application; and
(c) if he or she is not so satisfied; or
(d) if he or she is aware of such a producer; by notice in writing given
to the applicant, inform the applicant that the application is
rejected and of the reasons for the rejection. 9 After paragraph
269K(1)(a) Insert:
(aa) identifying the applicant; and
(ab) if the applicant is not proposing to make use of the TCO to import the
goods to which the application relates into Australia on the
applicant's own behalf-identifying the importer for whom the applicant
is acting; and 10 Subsection 269L(2) Omit "14 days", substitute "28
days".
11 Subsections 269L(3) and (4) Repeal the subsections, substitute:
(3) The applicant must not, under subsection (2), propose an amendment of an
application:
(a) that would cause the goods to which the application relates to be
covered by a different Customs tariff classification to the one
notified by the CEO in the Gazette under section 296K; or
(b) that would do otherwise than narrow the description of the goods as
set out in the application.
(4) As soon as practicable after, but not more than 7 days after, a proposed
amendment of a TCO application was notified to the CEO, the CEO must consider
the proposed amendment and:
(a) if the CEO is satisfied that the proposed amendment does not
contravene subsection (3)-the CEO must inform the applicant that he or
she is so satisfied and that subsection (4B) applies accordingly; or
(b) if the CEO is not so satisfied-the CEO must inform the applicant that
he or she is not so satisfied and of the reasons for not being so
satisfied.
(4A) If the CEO is not satisfied that a proposed amendment of a TCO does not
contravene subsection (3), the CEO must continue to consider the application
as it was originally made.
(4B) If the CEO is satisfied that the proposed amendment does not contravene
the requirements of subsection (3), the CEO must, within 14 days after
becoming so satisfied:
(a) notify the proposed amendment to each person who lodged a submission
referred to in subsection (1) and, subject to the operation of
subsections (5) and (6), invite that person, if he or she considers
there are reasons not dealt with in the original submission why the
TCO as proposed to be amended should not be made, to lodge a further
submission within 14 days after being so notified; and
(b) publish a notice in the Gazette setting out the amended description in
relation to the application and inviting persons who consider that
there are reasons why the TCO as proposed to be amended should not be
made to lodge a submission with the CEO no later than 14 days after
the publication of that notice.
(4C) The notification and subsequent publication of an amendment of a TCO
application does not affect the gazettal day in relation to the application or
any time limits calculated by reference to that gazettal day. 12 At the end of
section 269M Add:
(6) At any time during the period of 150 days starting on the gazettal day,
the CEO may, for the purpose of dealing with a TCO application, and despite
section 16 of the Customs Administration Act 1985, give a copy of all, or of a
part, of the application to a prescribed organisation with a view to obtaining
the advice of the organisation in relation to the question whether there are
producers in Australia of substitutable goods. 13 Paragraph 269N(1)(c) Repeal
the paragraph, substitute:
(c) having regard to written advice on the matter given by an officer of
Customs; 14 At the end of paragraph 269P(1)(c) Insert "and". 15 After
paragraph 269P(1)(c) Add:
(d) any inquiries made by the CEO; 16 Subsection 269S(1) Omit "28 days
before", substitute "on". 17 Paragraph 269SA(1)(b) Omit "28 days
before", substitute "the day on which". 18 Paragraph 269SA(1)(c) Omit
"28 days before", substitute "on the day on which". 19 Paragraph
269SA(2)(b) Omit "28 days before", substitute "the day on which".
20 Paragraph 269SA(2)(c) Omit "28 days before", substitute "on the day on
which". 21 Subparagraph 269SB(1)(b)(ii) Omit "had occurred 28 days before",
substitute "were the day on which". 22 Paragraph 269SC(1)(b) Omit "had
occurred 28 days before an application for that TCO were lodged", substitute
"were the day on which the application for that TCO was lodged". 23 Paragraph
269SC(4)(b) Omit "a day occurring 28 days before", substitute "the day of
lodgment of". 24 Before subsection 269SD(1) Insert:
(1AA) If:
(a) a TCO is in force on a particular day; and
(b) the CEO believes that if:
(i) the TCO were not in force on that day; and
(ii) that day were the day on which the application for the TCO was
lodged;
the CEO would not have made the TCO; the CEO may, not later than 14 days after
that day, publish a notice in the Gazette:
(c) declaring his or her intention, subject to subsection (1AB), to make
an order revoking the TCO with effect from that particular day (the
intended revocation day); and
(d) inviting any person who might be affected by the revocation of that
TCO to give a written submission to the CEO within 28 days of the
notice concerning the proposed revocation.
(1AB) Within 60 days after the date of publication of the notice referred to
in subsection (1AA), the CEO must, after consideration of the matters raised
in any submissions made in response to the invitation and of any other
relevant matters:
(a) decide whether or not he or she is satisfied of the matters referred
to in paragraph (1AA)(b); and
(b) if the CEO is so satisfied-make an order revoking the TCO with effect
from the intended revocation day. 25 After subsection 269SD(1) Insert:
(1A) If the CEO is satisfied on any day that a TCO is no longer required
because, in the 2 years preceding that day, the TCO has not been quoted in an
import entry to secure a concessional rate of duty, the CEO may make an order
revoking the TCO with effect from that day. 26 Paragraph 269SD(2)(c) Repeal
the paragraph, substitute:
(c) having regard to written advice on the matter given by an officer of
Customs; 27 Subsection 269SE(2) Omit "269SD(1)", substitute
"269SD(1AB), (1) or (1A)". 28 Subsections 269SG(1), (2) and (4) After
"269SC(3) or (4)", insert "or 269SD(1AB) or (1A)". 29 Subsection
269SG(4) Omit "capital equipment" (first occurring), substitute
"made-to-order capital equipment". 30 At the end of section 269SG Add:
(5) In this section: made-to-order capital equipment means a particular item
of capital equipment:
(a) that is made on a one-off basis to meet a specific order rather than
being the subject of regular or intermittent production; and
(b) that is not produced in quantities indicative of a production run. 31
After section 269SH Insert: 269SHA Administrative Appeals Tribunal
Review of reconsideration decisions
(1) For the purpose of an application to the Administrative Appeals Tribunal
under section 273GA for review of a decision under subsection 269SH(1) or (4)
(a reconsideration decision), application may be made by any person who is an
affected person in relation to that decision within the meaning of subsection
269SH(13).
(2) If an affected person applies to the Tribunal for review of a
reconsideration decision , the CEO must, as soon as practicable after being
notified of the application or of the first such application, publish in the
Gazette:
(a) particulars of the decision (including any relevant TCO number or TCO
application number) in respect of which such an application for review
has been made; and
(b) the name of the person who made such an application; and
(c) sufficient particulars to identify the review proceedings before the
Tribunal.
(3) Any person who had not applied under section 273GA for review of a
reconsideration decision but whose interests are affected by the decision
(whether or not that person is an affected person within the meaning of
subsection 269SH(13)) may apply under subsection 30(1A) of the Administrative
Appeals Tribunal Act 1975 to be made a party to the proceedings within 60 days
of the publication under subsection (2) or within such further period as the
Tribunal allows.
(4) The Tribunal must not grant a person applying to be joined as a party to
proceedings for review of a reconsideration decision an extension of the
period of 60 days referred to in subsection (3) unless it is satisfied that
the person was not reasonably able to apply within the period.
(5) Any document on which a party to proceedings for review of a
reconsideration decision before the Administrative Appeals Tribunal intends to
rely must, subject to the provisions of the Administrative Appeals Tribunal
Act 1975 :
(a) be filed with the Tribunal; and
(b) be served on the other parties to the proceeding; not less than 28
days before the date set for hearing, unless the Tribunal makes an
order permitting the document to be filed and served within a lesser
period or to be introduced at the hearing without being so filed or
served.
(6) In deciding whether to make such an order, the Tribunal must have regard
to whether there is any reasonable cause for the document not being made
available at least 28 days before the date of the hearing. 32 Before paragraph
269SJ(1)(a) Insert:
(aa) described in terms other than generic terms; or 33 After subsection
269SJ(1) Insert:
(1A) Without limiting the meaning of the reference in paragraph (1)(aa) to
goods described in generic terms, goods are taken not to be so described if
their description, either directly or by implication, indicates that they are
goods of a particular brand or model, or that a particular part number applies
to the goods. Note: The heading to section 269SJ is altered by omitting
"prescribed" and substituting "certain". 34 Paragraph 273GA(1)(m) Omit the
paragraph, substitute:
(m) a decision under subsection 269H(1) to reject an application for a
TCO;
(maa) a decision under subsection 269L(4) to the effect that the CEO is not
satisfied that a proposed amendment of a description of goods to be
covered by a TCO does not contravene subsection 269L(3); 35 Paragraph
273GA(1)(s) Omit "269SD(1)", substitute "269SD(1AB), (1), (1A)".
Part 2-Transitional and saving provisions 36 Definitions In this Part: CEO
means the Chief Executive Officer of Customs. commencing time means the time
at which this Act commences. CTCO means a Commercial Tariff Concession Order
having effect under Part XVA of the Customs Act as that Part is continued in
force by section 20 of the Customs Legislation (Tariff Concessions and Anti-
Dumping) Amendment Act 1992. Customs Act means the Customs Act 1901. TCO means
a Tariff Concession Order in force under Part XVA of the Customs Act. 37
Applications made, but not decided, before the commencing time
(1) An application for a TCO received by the CEO before the commencing time
but not decided before that time is to be decided under the Customs Act as in
force immediately before that time.
(2) If the CEO is satisfied that an application to which subitem (1) applies
meets the core criteria on the basis of paragraph 269C(a) of the Customs Act
as in force immediately before the commencing time, the resulting TCO
continues in force, subject to the operation of items 39, 40 and 41, after the
commencing time, as if it had been made under the Customs Act as amended by
this Act.
(3) If the CEO is satisfied that an application to which subitem (1) applies
meets the core criteria on the basis of paragraph 269C(b) of the Customs Act
as in force immediately before the commencing time, the resulting TCO is taken
to have effect, subject to the operation of items 39, 40 and 41, only until
the commencing time, as if it had been revoked by the CEO under section 269SD
of the Customs Act, with effect from that time. 38 Revocation of CTCOs and
TCOs made before the commencing time
(1) In spite of subsection 20(1) of the Customs Legislation (Tariff
Concessions and Anti-Dumping) Amendment Act 1992, after the commencing time,
the revocation of a CTCO in force immediately before that time is to be
decided under the Customs Act as amended by this Act as if it were a TCO made
under the Customs Act as amended by this Act.
(2) After the commencing time:
(a) the CEO may, on his or her own initiative, revoke a TCO in force
immediately before the commencing time in accordance with the Customs
Act as amended by this Act; and
(b) subject to subitem (3), a request for the revocation of a TCO in force
immediately before that time (whether or not the request was made
before that time) is to be decided under the Customs Act as amended by
this Act.
(3) If a request for a revocation of a TCO is lodged with Customs before, but
has not been finally determined before, the commencing time:
(a) the CEO must first decide whether the revocation should be made under
the Customs Act as in force immediately before that time; and
(b) if the CEO is not satisfied that the revocation should be made under
the Customs Act as then in force, the CEO must decide whether the
revocation should be made under the Customs Act as amended by this
Act.
(4) A decision to revoke a TCO pursuant to paragraph (3)(a) of this item takes
effect, subject to the operation of items 39, 40 and 41, on the day the
request for the revocation was lodged. The Customs Act as in force immediately
before the commencing time applies to that revocation as if it were made
before that time.
(5) In spite of subsection 269SC(6) of the Customs Act as amended by this Act,
a decision to revoke a TCO pursuant to paragraph (3)(b) of this item takes
effect, subject to the operation of items 39, 40 and 41, at the commencing
time. 39 Internal review
(1) If:
(a) a person makes an application for a TCO before the commencing time;
and
(b) the CEO makes a decision on that application; and
(c) an application under section 269SH of the Customs Act for
reconsideration of that decision:
(i) is made before that time but is not finally determined before
that time; or
(ii) is made after that time; the application for reconsideration is
to be decided under the Customs Act as in force immediately
before that time.
(2) If:
(a) a person lodges a request for the revocation of a TCO before the
commencing time; and
(b) the CEO makes a decision in respect of that request; and
(c) an application under section 269SH of the Customs Act for
reconsideration of that decision:
(i) is made before that time but is not finally determined before
that time; or
(ii) is made after that time; the application for reconsideration is
to be decided under:
(d) the Customs Act as in force immediately before that time; and
(e) if, in considering the application, the CEO is not satisfied that the
revocation sought by the request would have been made under the
Customs Act as then in force-the Customs Act as amended by this Act.
(3) If the CEO:
(a) on a reconsideration of a decision referred to in paragraph (1)(b) of
this item; or
(b) on a reconsideration of a decision referred to in paragraph (2)(b) of
this item; makes a decision resulting in the granting of a new TCO on
the basis of paragraph 269C(a) of the Customs Act as in force
immediately before the commencing time, that new TCO is taken to
continue in force, subject to the operation of items 40 and 41, after
that time, as if it had been made under the Customs Act as amended by
this Act.
(4) If the CEO:
(a) on a reconsideration of a decision referred to in paragraph (1)(b) of
this item; or
(b) on a reconsideration of a decision referred to in paragraph (2)(b) of
this item; makes a decision resulting in the granting of a new TCO on
the basis of paragraph 269C(b) of the Customs Act as in force
immediately before the commencing time, that new TCO is taken to have
effect, subject to the operation of items 40 and 41, only until that
time, as if it had been revoked by the CEO under section 269SD of the
Customs Act with effect from that time.
(5) If the CEO, on a reconsideration of a decision referred to in paragraph
(2)(b) of this item, makes a decision resulting in the revocation of the TCO
on the basis of the Customs Act as in force immediately before the commencing
time:
(a) the revocation takes effect, subject to the operation of items 40 and
41, on the day the request referred to in paragraph (2)(a) of this
item was lodged; and
(b) the Customs Act as in force immediately before the commencing time
applies to that revocation as if it were made before that time.
(6) If the CEO, on a reconsideration of a decision referred to in paragraph
(2)(b) of this item, makes a decision resulting in the revocation of the TCO
on the basis of the Customs Act as amended by this Act, then, in spite of
subsection 269SC(6) of the Customs Act as amended by this Act, the revocation
takes effect, subject to the operation of items 40 and 41, at the commencing
time.
40 AAT review
(1) If:
(a) a person makes an application for a TCO before the commencing time;
and
(b) the CEO makes a decision on that application; and
(c) the CEO subsequently reconsiders that decision under section 269SH;
and
(d) application to the Administrative Appeals Tribunal under paragraph
273GA(1)(n) of the Customs Act for review of the decision on that
reconsideration:
(i) is made before that time but is not finally determined before
that time; or
(ii) is made after that time; the application for review is to be
decided under the Customs Act as in force immediately before
that time.
(2) If:
(a) a person lodges a request for the revocation of a TCO before the
commencing time; and
(b) the CEO makes a decision in respect of that request; and
(c) the CEO subsequently reconsiders that decision under section 269SH;
and
(d) application to the Administrative Appeals Tribunal under paragraph
273GA(1)(q) of the Customs Act for review of the decision on that
reconsideration:
(i) is made before that time but is not finally determined before
that time; or
(ii) is made after that time; the application for review is to be
decided under:
(e) the Customs Act as in force immediately before that time; and
(f) if, in considering the application, the Administrative Appeals
Tribunal is not satisfied that the revocation sought by the request
would have been made under the Customs Act as then in force-the
Customs Act as amended by this Act.
(3) If:
(a) a person lodges a request for the revocation of a TCO before the
commencing time; and
(b) the CEO makes a decision in respect of that request; and
(c) the CEO subsequently reconsiders that decision under section 269SH;
and
(d) application to the Administrative Appeals Tribunal under paragraph
273GA(1)(r) of the Customs Act for review of the decision on that
reconsideration:
(i) is made before that time but is not finally determined before
that time; or
(ii) is made after that time; the application for review is to be
decided under the Customs Act as in force immediately before
that time.
(4) If the Tribunal:
(a) on reviewing a decision made on a reconsideration referred to in
paragraph (1)(c) of this item; or
(b) on reviewing a decision made on a reconsideration referred to in
paragraph (3)(c) of this item; makes a decision resulting in the
granting of a new TCO on the basis of paragraph 269C(a) of the
Customs Act as in force immediately before the commencing time, that
new TCO is taken to continue in force, subject to the operation of
item 41, after that time, as if it had been made under the Customs Act
as amended by this Act.
(5) If the Tribunal:
(a) on reviewing a decision made on a reconsideration referred to in
paragraph (1)(c) of this item; or
(b) on reviewing a decision made on a reconsideration referred to in
paragraph (3)(c) of this item; makes a decision resulting in the
granting of a new TCO on the basis of paragraph 269C(b) of the
Customs Act as in force immediately before the commencing time, that
new TCO is taken to have effect, subject to the operation of item 41,
only until that time, as if it had been revoked by the CEO under
section 269SD of the Customs Act with effect from that time.
(6) If the Tribunal, on reviewing a decision made on a reconsideration
referred to in paragraph (2)(c) of this item, makes a decision resulting in
the revocation of the TCO on the basis of the Customs Act as in force
immediately before the commencing time:
(a) that revocation takes effect, subject to the operation of item 41, on
the day the request referred to in paragraph (2)(a) of this item was
lodged; and
(b) the Customs Act as in force immediately before the commencing time
applies to the revocation as if it were made before that time.
(7) If the Tribunal, on reviewing a decision made on a reconsideration
referred to in paragraph (2)(c) of this item, makes a decision resulting in
the revocation of the TCO on the basis of the Customs Act as amended by this
Act, then, in spite of subsection 269SC(6) of the Customs Act as amended by
this Act, the revocation takes effect, subject to the operation of item 41, at
the commencing time. 41 Pending proceedings in the Federal Court or High Court
If legal proceedings have been brought in the Federal Court of Australia or
the High Court of Australia in relation to:
(a) an application for a TCO made under section 269F of the Customs Act
before the commencing time; or
(b) a request for a revocation of a TCO lodged under section 269SB of the
Customs Act before that time; then the Customs Act as in force
immediately before that time continues to apply in relation to that
application or request for the purposes of those proceedings. 42
Revocation of certain by-laws and determinations
(1) This item applies:
(a) to any by-law that was made under section 271 of the Customs Act and
in force immediately before the commencing time; and
(b) to any determination made under section 273 of that Act and in force
immediately before that time; if that by-law or determination is taken
to be made in relation to item 43, 45, 46, 52 or 56 of Schedule 4 to
the Customs Tariff Act 1995 by virtue of item 2 of Schedule 2 to the
Customs Tariff (Miscellaneous Amendments) Act 1996 .
(2) A by-law or determination to which this item applies is to be taken to
have been revoked with effect from the commencing time.
(3) If:
(a) a person had, before the commencing time, requested that the CEO make
a by-law under section 271 of the Customs Act to enable goods to be
covered by an item referred to in subitem (1); and
(b) that request was still outstanding at that time; that request is to be
treated as if it were a request made under the Customs Act as amended
by this Act.
(4) If:
(a) a person had, before the commencing time, requested that the CEO make
a determination under section 273 of the Customs Act to enable goods
to be covered by an item referred to in subitem (1); and
(b) that request was still outstanding at that time; that request is to be
treated as if it were a request made under the Customs Act as amended
by this Act. 43 Effect of revocation on goods in transit and capital
equipment on order
(1) In this item: revoked instrument means:
(a) a TCO that is taken to have been revoked under item 37, 39 or 40 of
this Schedule; or
(b) a by-law or determination that is taken to have been revoked under
item 42 of this Schedule.
(2) Subject to subitem (3), a revoked instrument ceases to apply in relation
to goods entered for home consumption after the time when the revocation comes
into effect.
(3) Despite its revocation, the instrument continues to apply in relation to:
(a) goods that:
(i) were imported into Australia before the time when the
revocation came into effect; and
(ii) are entered for home consumption before the commencing time, or
on, or within 28 days after, the day when the commencing time
occurs; and
(b) goods that:
(i) were in transit to Australia at the commencing time; and
(ii) are entered for home consumption before, on, or within 28 days
after, the day on which they were imported into Australia.
(4) For the purposes of subparagraph (3)(b)(i) of this item, goods are taken
to be in transit to Australia only if they have left for direct shipment to
Australia from a place of manufacture, or a warehouse, in the country from
which they are being exported.
(5) If an officer of Customs is satisfied that, after a revoked instrument in
relation to made-to-order capital equipment comes into force but before its
revocation in accordance with item 37, 39, 40 or 42 of this Schedule, a firm
order had been placed for the purchase of any such equipment:
(a) if the instrument is a by-law or determination that is taken to have
been revoked under item 42 of this Schedule-the instrument continues
to apply in relation to the importation into Australia of that
equipment if the equipment is entered for home consumption on or
before 15 February 1997; and
(b) in any other case-the instrument continues to apply in relation to the
importation into Australia of that capital equipment.
(6) In this item: made-to-order capital equipment has the same meaning as in
section 269SG of the Customs Act as amended by this Act.
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