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CUSTOMS AMENDMENT REGULATIONS 2009 (NO. 6) (SLI NO 277 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 277
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2009 (No. 6)
Subsection 270(1) of the Customs Act 1901 (the Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed, or as may be necessary or convenient to be prescribed, for giving effect to the Act.
Subsection 163(1) of the Act provides in part that refunds, rebates and remissions of duty may be made:
(a) in respect of goods generally or in respect of the goods included in a class of goods; and
(b) in such circumstances as are prescribed, being circumstances that relate to goods generally or to the goods included in the class of goods.
The purpose of the amending Regulations is amend the Customs Regulations 1926 to prescribe new refund circumstances in respect of goods imported into Australia from a Party to the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (the Agreement), in order to fulfil Australia's obligations under the Agreement.
The Agreement was signed on 27 February 2009 and is expected to enter into force for Australia on 1 January 2010. The Parties to the Agreement are the ASEAN Member States, Australia and New Zealand. The ASEAN Member States are Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.
The Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement Implementation) Act 2009 (the FTA Act) amends the Act to fulfil Australia's obligations under Chapter 3 of the Agreement, which deals with rules of origin. These rules determine whether goods imported into Australia from a Party to the Agreement are AANZ originating goods and are thereby eligible for preferential rates of customs duty. AANZ originating goods are goods from a Party to the Agreement that satisfy the new rules of origin which are contained in new Division 1G of Part VIII of the Act, inserted by the FTA Act.
The Agreement allows for refunds of customs duty to be paid in respect of AANZ originating goods that are imported into Australia. It is possible that an importer may pay customs duty on such goods where no duty, or a lesser amount of duty, should have been paid. It is also possible that goods imported from a Party would be AANZ originating goods except that an importer did not have a valid Certificate of Origin, or a copy of one, at the time the goods were imported. It is proposed that an importer would be able to obtain a refund of duty in relation to such goods if the importer holds a Certificate of Origin, or a copy of one, at the time the refund is sought. The new refund circumstances will apply to the above circumstances.
Details of the amending Regulations are set out in the Attachment.
No consultation was undertaken specifically in relation to the amendments as they implement Australia's international obligations under the Agreement.
The amending Regulations commence on the commencement of Schedule 1 to the FTA Act, which will be the later of the day the FTA Act receives the Royal Assent or the day the Agreement enters into force for Australia.
0923265A
ATTACHMENT
Regulation 3 - Amendment of Customs Regulations 1926
This regulation provides that the Schedule 1 amends the Customs Regulations 1926 (the Principal Regulations).
Item [1] - After regulation 126C
Item [1] inserts new regulation 126D into the Principal Regulations after regulation 126C.
New subregulation 126D(1) provides that for subsection 163(1) of the Act, the following circumstances are prescribed:
(a) duty has been paid on AANZ originating goods;
(b) duty has been paid on goods:
(i) that would have been AANZ originating goods if, at the time the goods were imported, the importer had a Certificate of Origin, or a copy of one; and
(ii) for which the importer has a Certificate of Origin, or a copy of one, at the time of making the application for the refund.
It is possible, at the time that goods are imported, that an importer may pay duty on AANZ originating goods at a higher rate of duty than is imposed on such goods. It is also possible that goods may satisfy all of the requirements under the Act to be AANZ originating goods except for the requirement that the importer has a Certificate of Origin for the goods at the time of importation. In such circumstances, a refund of duty is payable.
New subregulation 126D(2) provides that a person may not apply for duty to be refunded under paragraph 126(1)(e) of the Principal Regulations in respect of goods mentioned in new subregulation 126D(1) to the extent that an application for refund relates to 1 or more of the factors that determine whether the goods are AANZ originating goods.
Paragraph 126(1)(e) provides that refunds of duty are payable where duty has been paid through manifest error of fact or patent misconception of the law. A refund of duty could be paid under paragraph 126(1)(e) in respect of goods mentioned in subregulation 126D(1) if it does not relate to the factors that determine whether the goods are AANZ originating goods.
The purpose of new subregulation 126D(2) is to restrict refunds of duty in relation to AANZ originating goods to the extent that the refund relates to any of the factors that determine whether goods are AANZ originating goods to new regulation 126D only.
New subregulation 126D(3) provides that in new regulation 126D:
Certificate of Origin has the meaning given in subsection 153ZKB(1) of the Act;
AANZ originating goods has the meaning given in subsection 153ZKB(1) of the Act.
Item [2] - Paragraph 128(1)(e)
Item [2] amends paragraph 128(1)(e) of the Principal Regulations to insert a reference to subregulation 126D(1).
Subregulation 128(1) of the Principal Regulations prescribes, for the purpose of paragraph 163(1AA)(a) of the Act, how an application by document for a refund, rebate or remission of duty is to be made. Paragraph 128(1)(e) currently requires the application to state which circumstance under subregulation 126(1), 126B(1) or 126C(1) applies to the goods.
The operation of paragraph 128(1)(e) is extended so that an application for a refund, rebate or remission of duty could state that the circumstance under subregulation 126D(1) applies to the goods.
Item [3] - Paragraph 128(1A)(b)
Item [3] amends paragraph 128(1A)(b) of the Principal Regulations to insert a reference to subregulation 126D(1).
Subregulation 128(1A) of the Principal Regulations prescribes, for the purposes of paragraph 163(1AA)(a) of the Act, how an application by computer for a refund, rebate or remission of duty is to be made. Paragraph 128(1A)(b) currently requires the application by computer to state which circumstance under subregulation 126(1), 126B(1) or 126C(1) applies to the goods.
The operation of paragraph 128(1A)(b) is extended so that an application for a refund, rebate or remission of duty could state that the circumstance under subregulation 126D(1) applies to the goods.
Item [4] - After subparagraph 128A(4)(vi)
Item [4] inserts new subparagraph 128A(4)(a)(vii).
Regulation 128A of the Principal Regulations specifies when an application for a refund of duty may be made in certain circumstances.
New subparagraph 128A(4)(a)(vii) includes in paragraph 128A(4)(a) the refund circumstances specified in new subregulation 126D(1) (inserted by item [1] above). This amendment means that an application for a refund of duty in relation to a circumstance specified in new subregulation 126D(1) can be made within 4 years from the date on which the duty was paid.
Item [5] - Subregulation 128B(6), before definition of allowable factory costs
Item [5] inserts the definition of AANZ originating goods into subregulation 128B(6) of the Principal Regulations and provides that the phrase has the meaning given in subsection 153ZKB(1) of the Act.
Item [6] - After subregulation 128B(11)
Item [6] inserts new subregulations 128B(12) and (13) in the Principal Regulations. New subregulations 128B(12) and (13) set out the amount of refund payable under new subregulation 126D.
New subregulation 126C(12) provides that the amount of a refund, rebate or remission of duty that may be made in the circumstances prescribed in paragraph 126D(1)(a) is the difference between the amount of duty paid on the goods and the amount of duty payable on the goods as AANZ originating goods.
New subregulation 126C(13) provides that the amount of a refund, rebate or remission of duty that may be made in the circumstances prescribed in paragraph 126D(1)(b) is the difference between the amount of duty paid on the goods and the amount of duty payable on the goods if they had been AANZ originating goods at the time of their importation.