CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 NO. 87, 1995 CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 NO. 87, 1995 - TABLE OF PROVISIONS 1. Short title 2. Commencement 3. Amendments of the Customs Act 1901 4. Amendment of the Excise Act 1901 5. Application and saving provisions SCHEDULE 1 SCHEDULE 2 (Assented to 1 July 1995) CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - LONG TITLE An Act to amend legislation relating to Customs and Excise, and for related purposes CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - SECT 1 Short title 1. This Act may be cited as the Customs and Excise Legislation Amendment Act 1995. (Minister's second reading speech made in- House of Representatives on 7 June 1995 Senate on 8 June 1995) CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - SECT 2 Commencement 2.(1) Sections 1 to 5 commence on the day on which this Act receives the Royal Assent. (2) Items 2, 6 (only insofar as that item refers to water) and items 7 and 10 of Schedule 1 are taken to have commenced on 1 August 1986. (3) Items 1, 4, 5, 6 (insofar as that item refers to sand, sandstone, soil, slate, clay (other than bentonite and kaolin), basalt, granite, gravel and limestone) and item 9 of Schedule 1, and Schedule 2, commence on 1 July 1995. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - SECT 3 Amendments of the Customs Act 1901 3. The Customs Act 1901 is amended in accordance with Schedule 1. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - SECT 4 Amendment of the Excise Act 1901 4. The Excise Act 1901 is amended in accordance with Schedule 2. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - SECT 5 Application and saving provisions 5.(1) Despite section 8 of the Acts Interpretation Act 1901, but subject to subsection (2): (a) all rebate applications made before, but not decided before, the day on which this Act receives the Royal Assent; and (b) all applications made to the Administrative Appeals Tribunal before, but not decided before, that day in respect of decisions relating to rebate applications; are to be decided under the Customs Act 1901, and the Excise Act 1901, as in force on and after that day. (2) Subsection (1) does not apply to: (a) a rebate application made by a person in respect of diesel fuel purchased by the person for use by the person at residential premises in: (i) providing food and drink for; or (ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or (iii) meeting other domestic requirements of; residents of the premises; or (b) an application made to the Administrative Appeals Tribunal in relation to such an application. (3) If a person purchased diesel fuel before 1 July 1995 for use by that person at residential premises in an activity referred to in subparagraph (2)(a)(i), (ii) or (iii) for the purposes of the definition of minerals in item 6 (excluding water): (a) the person may make an application under section 164 of the Customs Act 1901 for a rebate of customs duty, and under section 78A of the Excise Act 1901 for a rebate of excise duty, in respect of that fuel; and (b) if that application: (i) is not made; or (ii) is not finally decided; before 1 July 1995 then, for all purposes connected with the making and deciding of that application and making any necessary payment of rebate, the Customs Act 1901 and the Excise Act 1901 have effect as if: (iii) the amendments set out in items 1, 4, 5, 6 (insofar as that item refers to sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel and limestone) and item 9 of Schedule 1, and Schedule 2, had not been made; and (iv) the rate at which the rebate is payable were $0.24659 per litre; and (c) the person is not entitled to make an application for rebate in respect of that fuel otherwise than in accordance with paragraphs (a) and (b). (4) If, in relation to a rebate application: (a) legal proceedings have been brought in the Federal Court of Australia or the High Court of Australia before the day on which this Act receives the Royal Assent; and (b) those proceedings have not been determined before that day; then, for the purpose of those proceedings, despite section 8 of the Acts Interpretation Act 1901, the law governing the right to be paid such a rebate is the Customs Act 1901 as in force on and after that day and the Excise Act 1901 as so in force. (5) If: (a) a person has made a rebate application; and (b) the person has, before the day on which this Act receives the Royal Assent, been paid a rebate to which the person is entitled under the Customs Act 1901 as in force at the time of the payment and under the Excise Act 1901 as so in force; that payment is to be treated, on and after that day, as if it were a payment properly made under the Customs Act 1901 as in force on and after the first-mentioned day and under the Excise Act 1901 as so in force. (6) A person may, at any time, make a rebate application in respect of diesel fuel purchased for the purpose of a particular activity or operation more than 3 years before the making of that application only if: (a) notice of intention to make an application was duly given before 1 July 1994 under subsection 164(4AB) of the Customs Act 1901 and under subsection 78A(4AB) of the Excise Act 1901; and (b) the notice can reasonably be construed as extending to cover that activity or operation, whether it so refers in express terms or not. (7) In this section: "rebate application'' means an application for a rebate in respect of duty paid on diesel fuel made: (a) under section 164 of the Customs Act 1901 as in force at the time the application is made; and (b) under section 78A of the Excise Act 1901 as so in force. CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - SCHEDULE 1 SCHEDULE 1 Section 3 AMENDMENTS OF THE CUSTOMS ACT 1901 1. Paragraph 164(1)(b): Omit "at residential premises", substitute "at residential premises to generate electricity for use in". 2. Subsection 164(7) (definition of "agriculture"): Omit the definition, substitute: " 'agriculture' means: (a) the cultivation of the soil; or (b) the cultivation or gathering in of crops; or (c) the rearing of live-stock; or (d) viticulture, horticulture, pasturage or apiculture; and includes: (e) the shearing or cutting of hair or fleece of live-stock, or the milking of live-stock, carried out on an agricultural property; or (f) frost abatement carried out on an agricultural property; or (g) the transporting of live-stock to an agricultural property: (i) for the purpose of rearing; or (ii) for the purpose of agistment; or (h) the return journey from a place referred to in paragraph (g) of the vehicles or equipment used in transporting the live-stock, if that journey is for the purpose of later carrying out the transportation referred to in paragraph (g) or for the backloading of raw materials or consumables for use in a core agricultural activity; or (i) the mustering of live-stock undertaken: (i) by a person who carries on a core agricultural activity; or (ii) by a person contracted by that person to carry out the mustering; on the agricultural property where the core agricultural activity is carried on; or (j) hay baling on the agricultural property where the hay was cultivated; or (k) the planting or tending of trees on an agricultural property otherwise than for the purpose of felling; or (l) any activity undertaken for the purpose of soil or water conservation: (i) by a person who carries on a core agricultural activity; or (ii) by a person contracted by that person to carry out the first- mentioned agricultural activity; on the agricultural property where the core agricultural activity is carried on; or (m) the construction or maintenance of fences undertaken: (i) by a person who carries on a core agricultural activity; or (ii) by a person contracted by that person to carry out the construction or maintenance; on the agricultural property where the core agricultural activity is carried on; or (n) the construction or maintenance of firebreaks undertaken: (i) by a person who carries on a core agricultural activity; or (ii) by a person contracted by that person to carry out the construction or maintenance; on the agricultural property where the core agricultural activity is carried on or at a place adjacent to that place; or (o) the service, maintenance or repair of vehicles or equipment for use in an agricultural activity if the service, maintenance or repair: (i) is carried out on an agricultural property where a core agricultural activity is carried on; and (ii) is carried out by the person who carries on the first- mentioned agricultural activity or by a person contracted by that person to carry out the service, maintenance or repair; or (p) the construction or maintenance of sheds, pens, silos and silage pits for use in an agricultural activity if the construction or maintenance: (i) is carried out on an agricultural property where a core agricultural activity is carried on; and (ii) is carried out by the person who carries on the first- mentioned agricultural activity or by a person contracted by that person to carry out the construction or maintenance; or (q) the construction or maintenance of dams, water tanks, water troughs, water channels, irrigation systems or drainage systems including, without limiting the generality of the foregoing, water pipes and water piping for use in a core agricultural activity if the construction or maintenance: (i) is carried out on the agricultural property where the core agricultural activity is carried on; and (ii) is carried out by the person who carries on the core agricultural activity or by a person contracted by that person to carry out the construction or maintenance; or (r) the carrying out of earthworks for use in a core agricultural activity if the earthworks: (i) are carried out on the agricultural property where the core agricultural activity is carried on; and (ii) are carried out by the person who carries on the core agricultural activity or by a person contracted by that person to carry out the earthworks; or (s) searching for ground water solely for use in an agricultural activity, or the construction or maintenance of facilities for the extraction of such water, solely for that use, if the searching, construction or maintenance: (i) is carried out on an agricultural property where a core agricultural activity is carried on, or at a place adjacent to that property; and (ii) is carried out by the person who carries on the first- mentioned agricultural activity or by a person contracted by that person to carry out the searching, construction or maintenance; or (t) any activity undertaken for the purposes of soil or water conservation: (i) by a person who carries on a core agricultural activity within an approved catchment area; or (ii) by a person contracted by that person to carry out the first- mentioned activity; within the approved catchment area; or (u) the pumping of water solely for use in an agricultural activity if the pumping: (i) is carried out on an agricultural property where a core agricultural activity is carried on, or at a place adjacent to that property; and (ii) is carried out by the person who carries on the first- mentioned agricultural activity or by a person contracted by that person to carry out the pumping, other than a person so contracted that is a Commonwealth authority or a State or Territory authority; or (v) the supply of water solely for use in an agricultural activity if: (i) the supply is to an agricultural property where a core agricultural activity is carried on; and (ii) the water comes from that property or a place adjacent to that property; and (iii) the supply is carried out by the person who carries on the first-mentioned agricultural activity or by a person contracted by that person to carry out the supply, other than a person so contracted that is a Commonwealth authority or a State or Territory authority; or (w) the storage of produce of a core agricultural activity on an agricultural property where a core agricultural activity is carried on; or (x) the packing, or the prevention of deterioration, of the produce of a core agricultural activity if: (i) the packing, or the prevention of deterioration, of the produce is carried out on an agricultural property where a core agricultural activity is carried on; and (ii) there is no physical change to the produce; and (iii) the packing, or the prevention of deterioration, of the produce does not constitute a processing of the produce; or (y) weed, pest or disease control undertaken: (i) by a person who carries on a core agricultural activity; or (ii) by a person contracted by that person to carry out the weed, pest or disease control; on the agricultural property where the core agricultural activity is carried on; or (z) the removal of waste products of an agricultural activity from the agricultural property where the activity is carried on; or (za) the disposal of waste products of an agricultural activity on the agricultural property where the activity is carried on; or (zb) hunting or trapping that is carried on for the purposes of a business, including the storage of any carcasses or skins obtained from the hunting or trapping; but does not include: (zc) fishing operations or forestry; or (zd) an activity referred to in any one of paragraphs (a) to (za) unless the activity is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale. Note: The agricultural activities referred to in paragraph (h), (l), (m), (n), (o), (p), (q), (r), (s), (u), (v) or (y) are given an expanded meaning by subsection (8).". 3. Subsection 164(7) (after paragraph (l) of the definition of "agriculture"): Insert the following word and paragraph: "or (la) the carrying out of firefighting activities: (i) by a person who carries on a core agricultural activity; or (ii) by a person contracted by that person to carry out the first- mentioned activity; on the agricultural property where the core agricultural activity is carried on or at a place adjacent to that place; or". 4. Subsection 164(7) (after paragraph (zb) of the definition of "agriculture"): Insert the following word and paragraph: "or (zba) the use of diesel fuel at residential premises in: (i) providing food and drink for; or (ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or (iii) meeting other domestic requirements of; residents of the premises if: (iv) the use is by a person who carries on a core agricultural activity; and (v) the residential premises are situated on the agricultural property where that activity is carried on;". 5. Subsection 164(7) (paragraph (r) of the definition of "agriculture"): Omit "(h) or (i)", substitute "(h), (i) or (zba)". 6. Subsection 164(7) (definition of "minerals"): After "inorganic" insert ", except sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel, limestone or water". 7. Subsection 164(7) (definition of "mining operations"): Omit the definition, substitute: " 'mining operations' means: (a) exploration, prospecting the removal of overburden and other activities undertaken in the preparation of a site to enable mining to commence or mining for minerals; or (b) the dressing or beneficiation of minerals, or ores bearing minerals, as an integral part of operations for their recovery; and includes: (c) if minerals, or ores bearing minerals, are dressed or beneficiated at a place other than the mining site as an integral part of operations for their recovery: (i) the transporting of the minerals or ores from the mining site to that place; and (ii) the return journey from that place to the mining site of the vehicles or equipment used in transporting the minerals or ores, if that journey is for the purpose of later carrying out the mining operation referred to in subparagraph (i) or for the backloading of raw materials or consumables for use in a mining operation referred to in paragraph (a) or (b); or (d) the undertaking: (i) of voyages to or from an Australian port by a ship that is proposed to be, or that is, used wholly or primarily in carrying out northern mining activities for the purposes of refitting or repairing the ship or its equipment for, or as a result of, carrying out those activities; or (ii) of trials in connection with such a refit or repair of the ship or its equipment; or (e) the liquefying of natural gas; or (f) if natural gas is liquefied at a place other than the mining site-the transporting of the natural gas from the mining site to that place; or (g) the production of common salt by evaporation; or (h) the reactivation of carbon for use in the beneficiation of ores bearing gold; or (i) coal stockpile management for the prevention of the spontaneous combustion of coal if the management is carried out: (i) by a person who carries on a mining operation referred to in paragraph (a) or (b); or (ii) by a person contracted by that person to carry out the management; at the place where the mining operation is carried on; or (j) the generation of electricity solely for, or the provision of electricity solely to, a mining town if: (i) the existence of the town is necessary to enable a mining operation referred to in paragraph (a) or (b) to be undertaken; and (ii) the generation or provision is carried out by the person who carries on the mining operation; or (k) the rehabilitation of a place at which a mining operation referred to in paragraph (a) or (b) has been carried on if the rehabilitation is carried out by: (i) the person who carried on the mining operation at the place; or (ii) a person contracted by that person to carry out the rehabilitation; or (l) searching for ground water solely for use in a mining operation referred to in paragraph (a) or (b), or the construction or maintenance of facilities for the extraction of such water, solely for that use, if the searching, construction or maintenance: (i) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the searching, construction or maintenance; or (m) the pumping of water solely for use in a mining operation referred to in paragraph (a) or (b) if the pumping: (i) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the pumping; or (n) the supply of water solely for use in a mining operation referred to in paragraph (a) or (b) if: (i) the supply is to the place where the mining operation is carried on; and (ii) the water comes from that place or a place adjacent to that place; and (iii) the supply is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the supply; or (o) the construction or maintenance of private access roads for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (p) the construction or maintenance of storage dams or tailings dams for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (q) the construction or maintenance of private airstrips, buildings, plant or equipment for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (r) the construction or maintenance of power stations or power lines solely for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or (s) the removal of waste products of a mining operation referred to in paragraph (a) or (b) from the place where the mining operation is carried on; or (t) the disposal of waste products of a mining operation referred to in paragraph (a) or (b) at the place where the mining operation is carried on; or (u) the service, maintenance or repair of vehicles, plant or equipment for use in a mining operation referred to in paragraph (a) or (b) if the service, maintenance or repair: (i) occurs at the place where the mining operation is carried on; and (ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the service, maintenance or repair; or (v) the service, maintenance or repair of transport networks, vehicles or equipment solely for use in a mining operation referred to in paragraph (c) if the service, maintenance or repair is carried out by: (i) the person who carries on the mining operation; or (ii) a person contracted by that person to carry out the service, maintenance or repair; but does not include quarrying operations carried on solely for the purpose of obtaining stone for building, road making or similar purposes. Note: The mining operations referred to in paragraph (i), (k), (l), (m), (n), (o), (p), (q), (r), (u) or (v) are given an expanded meaning by subsection (9).". 8. Subsection 164(7) (paragraph (k) of the definition of "mining operations"): Omit "the rehabilitation of a place at which", substitute "rehabilitation at places affected by". 9. Subsection 164(7) (after paragraph (v) of the definition of "mining operations"): Insert the following word and paragraph: "or (w) the use of diesel fuel at residential premises in: (i) providing food and drink for; or (ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or (iii) meeting other domestic requirements of; residents of the premises if: (iv) the use is by a person who carries on a mining operation referred to in paragraph (a) or (b); and (v) the residential premises are situated at the place where the mining operation is carried on, or at a place adjacent to that place;". 10. Subsection 164(7): Insert: " 'agricultural activity' means an activity referred to in any one of paragraphs (a) to (za) of the definition of 'agriculture' if that activity is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale; 'core agricultural activity' means an activity referred to in paragraph (a), (b), (c) or (d) of the definition of 'agriculture' if that activity is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale; 'earthworks' means: (a) the forming or maintenance of levee banks or windbreaks; or (b) contour banking; or (c) land levelling or land grading; 'mining town' means a town constructed by or on behalf of a person engaged in mining operations, in an area where immediately prior to its construction there was no town, to house employees of the person, but does not include a town principally administered by: (a) a council that is constituted under local government legislation of a State or Territory; or (b) an organisation taken to be a council under such legislation; 'State or Territory authority' means: (a) an instrumentality of a State or Territory; or (b) an authority or body established for the purpose of a State or Territory by or under a law of the State or Territory; 'transport networks' includes conveyor belts, pipelines and railway lines;". 11. Section 164: Add at the end: "(8) For the purposes of determining whether an activity is an agricultural activity, the activity referred to in paragraph (h), (l), (m), (n), (o), (p), (q), (r), (s), (u), (v) or (y) of the definition of 'agriculture' includes such an activity when it is carried out by a subcontractor of a person contracted to carry out the activity. "(9) For the purposes of determining whether an operation is a mining operation, the operation referred to in paragraph (i), (k), (l), (m), (n), (o), (p), (q), (r), (u) or (v) of the definition of 'mining operations' includes such an operation when it is carried out by a subcontractor of a person contracted to carry out the operation.". CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 No. 87 of 1995 - SCHEDULE 2 SCHEDULE 2 Section 4 AMENDMENT OF THE EXCISE ACT 1901 1. Paragraph 78A(1)(b): Omit "at residential premises", substitute "at residential premises to generate electricity for use in".