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2002
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDUSTRY,
TOURISM AND RESOURCES LEGISLATION
AMENDMENT BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Industry, Tourism and Resources,
the
Honourable Ian Macfarlane MP)
INDUSTRY, TOURISM AND RESOURCES LEGISLATION AMENDMENT BILL
2002
OUTLINE
The Industry, Tourism and Resources
Legislation Amendment Bill 2002 (the Bill) makes a series of minor amendments
to:
• the ACIS Administration Act 1999;
• the
Bounty (Computers) Act 1984;
• the Petroleum (Submerged
Lands) Legislation Amendment Act 2001;
• the Pooled Development
Funds Act 1992;
• the States Grants (Petroleum Products) Act
1965; and
• the Trade Practices Act 1974.
The Bill
also repeals:
• the Aluminium Industry Act 1960;
and
• the Management and Investment Companies Act
1983.
ACIS Administration Act 1999 Amendments
The
Bill makes a minor change to the ACIS Administration Act 1999 (the ACIS
Act) that will clarify the purposes for which duty credits earned under the
Automotive Competitiveness and Investment Scheme (ACIS) can be used.
Participants in the scheme earn incentives for eligible production and
investment in plant and equipment and research and development. Incentives are
paid in the form of ACIS duty credits which can either be used to offset customs
duty liability on eligible imports, or sold or transferred to another person.
In the early months of the scheme’s operation, it became clear that,
contrary to intentions, the ACIS Act did not give clear authority for duty
credits to be used to gain refunds of customs duty previously paid on eligible
goods. This Bill makes specific provision in the ACIS Act for this use of ACIS
duty credits.
Aluminium Industry Act 1960 Repeal
The
Bill repeals the Aluminium Industry Act 1960. The aluminium smelter at
Bell Bay in Tasmania was established in the 1950s as a joint venture between the
Commonwealth and Tasmanian Governments. The Aluminium Industry Act 1960
subsequently provided the legislative approval for the Commonwealth’s
interest in the smelter to be sold to a subsidiary of Comalco Limited. The
Aluminium Industry Act 1960 served its purpose well, but is now
redundant. There are no consequential impacts and both the Tasmanian Government
and the company involved concur with the proposed repeal.
Bounty
(Computers) Act 1984 Amendments
The definition of
“operating software” in subsection 3(1) of the Bounty (Computers)
Act 1984 refers to “the Standards Association of Australia”.
The Bill makes a technical correction to substitute this reference with
“Standards Australia International Limited”. This change reflects
the incorporation of the organisation as an Australian company in
1999.
Management and Investment Companies Act 1983
Repeal
The Bill repeals the Management and Investment Companies
Act 1983 (the MIC Act). The MIC Act ceased to operate in 1991 (as a result
of the conclusion of the MIC Program), and the related claw-back provisions
became inactive in 1995-96. The repeal of the MIC Act is in keeping with the
Government’s commitment to remove unnecessary and/or redundant
legislation. The repeal will have no impact on business.
Petroleum
(Submerged Lands) Legislation Amendment Act 2001 Amendments
The Bill
makes a technical amendment to the Petroleum (Submerged Lands) Legislation
Amendment Act 2001 to correct a misdescription of an amendment to the
principal Act, the Petroleum (Submerged Lands) Act 1967. Text that was
to be replaced in subsection 85(1) of the principal Act was misquoted in Item 17
of Schedule 1 of the amending Act, omitting the word “to” before the
word “make”. This amendment corrects that
misquote.
Pooled Development Funds Act 1992
Amendments
The Bill amends the Pooled Development Funds Act
1992 (the PDF Act) to correct an error in the legislation that resulted
following an amendment to the Superannuation Industry (Supervision) Act
1993 (the SI(S) Act), which repealed, effective from 8 October 1999,
the definition of an “excluded superannuation fund” in the SI(S)
Act. As a consequence of that amendment, the reference in section 4A of
the PDF Act to an “excluded superannuation fund” within the meaning
of the SI(S) Act became inoperative. This effectively removed from the PDF Act
the definition of a “widely-held complying superannuation fund” for
the purposes of section 31 of the PDF Act, which relates to limits on
shareholdings in a Pooled Development Fund.
States Grants
(Petroleum Products) Act 1965 Amendments
The States Grants
(Petroleum Products) Act 1965 contains a number of obsolete references to
the Chief Executive Officer of Customs, which the Bill updates to refer to the
Secretary of the Department. Administrative responsibility for the States
Grants (Petroleum Products) Act 1965, which implements the Petroleum
Products Freight Subsidy Scheme, was transferred from the Australian Customs
Service to the forerunner of the Department of Industry, Tourism and Resources
on 15 April 1999.
Trade Practices Act 1974
Amendments
On 13 August 1998, the Trade Practices Amendment
(Country of Origin Representations) Act 1998 came into effect. That
legislation clarified the permissible use under the Trade Practices Act
1974 of the most common country of origin descriptors, including
“made in” and “product of”. The proposed amendments in
the Bill are required to ensure that the country of origin defences available
under the Trade Practices Act 1974 are extended to another existing
provision prohibiting false or misleading representations under which a country
of origin action might be taken.
FINANCIAL IMPACT
STATEMENT
The Bill will not have any financial impact on Commonwealth revenue or
expenditure.
INDUSTRY, TOURISM AND RESOURCES LEGISLATION
AMENDMENT BILL 2002
NOTES ON CLAUSES
Clause 1 Short Title
1. Clause 1 provides for the Act to be cited
as the Industry, Tourism and Resources Legislation Amendment Act
2002.
Clause 2 Commencement
2. Clause 2 provides for the commencement of
the Act. Subclause 2(1) provides that each provision of the Act specified in
column 1 of the table commences, or is taken to have commenced, on the day or at
the time specified in column 2 of the table.
Clause
3 Schedule(s)
3. Clause 3 provides for the Schedule to the Act. It
provides that the Acts specified in the Schedule to the Bill are amended or
repealed as set out in that Schedule.
Schedule 1 Miscellaneous
amendments
ACIS Administration Act 1999
Item
1 Subsection 4(1)
4. This item amends the overview of the ACIS
Administration Act 1999 (the ACIS Act), providing for duty credits to be
used either to extinguish customs duty payable on eligible imports, or to gain a
refund of customs duty already paid on eligible imports.
Item 2
Subsection 4(1)
5. This item provides a reference in the overview of
the ACIS Act to the new section 75A, which provides that duty credits may be
used to gain a refund of duty previously paid.
6. This item adds a further use to which duty credits can be put, i.e. to
obtain a refund of duty previously paid on eligible imports.
Item
4 Subsection 6(1) (definition of eligible imports)
7. This
item expands the definition of eligible imports against which duty credits can
be applied to include not just those goods which have been imported under
column 2 of item 41E of Schedule 4 to the Tariff, but also those goods which
are eligible to be imported under this tariff heading. This is needed
because duty previously paid on eligible imports for which a refund is now being
sought would not have been imported under column 2 of item 41E, even though they
may have been eligible.
Item 5 After paragraph
66(a)
8. This item requires the Secretary to amend the ACIS ledger
when a person uses duty credits to receive a refund of duty already paid on
eligible imports.
9. This item repeals the overview to Part 7 and inserts a new overview
which includes reference to the new Division 2A, providing that duty credit may
be applied against previously paid duty.
10. This item inserts a new Division 2A which provides for duty credits
to be applied against previously paid duty. It also creates a new section 75A
which sets out the circumstances in which duty credit may be used in this way,
and provides for the Regulations to specify further the manner in which a
request for refund should be made.
Item 8 After paragraph
76(1)(c)
11. In the circumstance where it may be necessary to limit
the uses to which certain modulated duty credits earned on eligible investment
may be put, this item provides the Minister with a further option for how such a
limit might be provided ie. by allowing that duty credits may only be used
against an earlier payment of duty on the importation of eligible goods.
Item 9 After paragraph 77(1)(c)
12. In the circumstance
where it may be necessary to limit the uses to which modulated duty credits
earned on eligible production may be put, this item provides the Minister with a
further option for how such a limit might be provided, i.e. by allowing that
duty credits may only be used against an earlier payment of duty on the
importation of eligible goods.
Item 10 At the end of subsection
115(2)
13. This item includes, in the powers the Secretary may
delegate to the Chief Executive Officer of the Australian Customs Service, the
power to amend the ledger when duty credit is applied against previously paid
duty.
Aluminium Industry Act 1960
Item 11 The whole
of the Act
14. This item repeals the Aluminium Industry Act
1960.
Bounty (Computers) Act 1984
Item
12 Subsection 3(1) (definition of operating software)
15. This item replaces an out of date reference to “the
Standards Association of Australia” with the correct reference,
“Standards Australia International Limited”.
Management and Investment Companies Act
1983
Item 13 The whole of the Act
16. This item
repeals the Management and Investment Companies Act
1983.
Petroleum (Submerged Lands) Legislation Amendment Act
2001
Item 14 Item 17 of Schedule 1
17. Before the
amendments made by the Petroleum (Submerged Lands) Legislation Amendment Act
2001, subsection 85(1) of the Petroleum (Submerged Lands) Act 1967
read as follows:
“The Designated Authority may require any person
to produce to him or to make available for inspection by him or by or on behalf
of the Joint Authority any documents in the possession or under the control of
that person and relating to a transfer or dealing in relation to which approval
is sought under this Division.”
18. The amendment made by item 17
of the Petroleum (Submerged Lands) Legislation Amendment Act 2001 was to
delete all words from the first mention of “him” to
“Authority” inclusive and substitute certain other words. However,
in quoting the words to be deleted, item 17 omitted to mention the word
“to” before “make”. This item corrects the
quotation of the words that were deleted.
Pooled Development Funds Act
1992
Item 15 Paragraph 4A(1)(a)
19. This item
amends the definition of a “widely-held complying superannuation
fund” in paragraph 4A(1)(a) of the Pooled Development Funds Act
1992 (the PDF Act). This definition is particularly relevant to the
operation of section 31 of the PDF Act, which relates to limits on
shareholding in a Pooled Development Fund. The amendment retains the intent
that a “widely-held complying superannuation fund” be defined as a
fund comprising at least 5 members. The amendment is not
retrospective.
Item 16 Certain shareholdings in PDFs do not contravene
section 31
20. This item deals with possible contraventions of
section 31 of the PDF Act during the period commencing on 8 October 1999
until the date this Act receives the Royal Assent. Subject to some limited
exceptions, this item provides that investments that may have been made over
that period that would otherwise have contravened section 31 of the PDF Act are
not to be taken into account when applying section 31.
States
Grants (Petroleum Products) Act 1965
Item 17 Section 1A
Item 18 Subsection 5(2)
Item 19 Paragraph 5(3)(a)
Item 20 Paragraph 5(3A)(a)
Item 21 Paragraph 5(3A)(b)
Item 22 Section 7
21. These amendments to section 1A,
subsection 5(2), paragraph 5(3)(a), paragraph 5(3A)(a), paragraph 5(3A)(b) and
section 7 of the States Grants (Petroleum Products) Act 1965 have the
same wording and same effect. That is, they substitute a reference to the Chief
Executive Officer of Customs with a reference to the Secretary of the
Department. This reflects the transfer of administrative responsibility for
the Petroleum Products Freight Subsidy Scheme (the Scheme) from the Australian
Customs Service to the forerunner of the Department of Industry, Tourism and
Resources. The amendments allow the Secretary of the Department administering
the Scheme to carry out the functions necessary to transfer funds to States and
Territories to enable them to make payments to eligible fuel
distributors.
Item 23 Reference in scheme to Chief Executive Officer
of Customs
22. This item ensures that any references in the Scheme
formulated under section 4 to the Chief Executive Officer of Customs would be a
reference to the Secretary of the relevant Department. This means that the
administration of the Scheme will be consistent with the changes to the Act
which underpins the Scheme, and reflects the transfer of responsibility for
administration of the Scheme from the Australian Customs Service.
Item
24 Transitional provision - things previously done by the Chief Executive
Officer of Customs
23. This is a transitional provision to ensure
that any actions taken by the Chief Executive Officer of Customs before the
amendments come into force are taken to be done by the Secretary of the
Department.
Trade Practices Act 1974
Item 25
Section 65AA
24. This item modifies the overview of the country of
origin defences and extends their scope to include false and misleading country
of origin representations under section 53(a) of the Trade Practices Act
1974 (the TPA).
Item 26 Sections 65AB and
65AC
25. This item extends the general test for country of origin
representations and the test for representations that goods are product
of/produce of a country to include false and misleading country of origin
representations under section 53(a) of the TPA.
Item 27 Subsection
65AD(1)
26. This item extends the description of the permissible use
of a logo as a representation of country of origin to include false and
misleading country of origin representations under section 53(a) of the
TPA.
Item 28 Paragraph 65AN(1)(a)
27. This item extends
the existing provisions on the evidential burden required if proceedings are
brought against a person for an action on country of origin representation to
include false and misleading country of origin representations under section
53(a) of the TPA.
Item 29 Application of
amendments
28. In the event of proceedings being brought under any
additional paragraphs while the Bill is in Parliament, the above amendments are
to apply only to representations made after those items commence.