Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS REGULATIONS (AMENDMENT) 1992 NO. 72

STATUTORY RULES 1992 No. 72

Issued by the Authority of the Minister for Small Business, Construction and Customs

Customs Act 1901

Customs Regulations (Amendment)

Section 270 of the Customs Act 1901 provides in part that
"(1) The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed for giving effect to this Act or for the conduct of any business relating to the Customs..."

The proposed Statutory Rules amend the Customs Regulations to:

i)       omit the current regulation 128 and substitute a new regulation 128 to provide for the form in which an application for refund, rebate or remission of duty must be lodged; and

ii)       repeal Form 41 in Schedule 1 to the Regulations.

Background

1       Regulation 128

The reforms embodied in the new regulation 128 are essentially in two parts:

a)       ensuring an application is in an approved form or approved statement; and

b)       ensuring that any fee payable in respect of the application is paid on lodgement of the application.

a)       The Form of an Application

Section 163 of the Act provides a head of power for the making of refunds, rebates and remissions of duty and the prescription of the circumstances and conditions under which such refunds, rebates and remissions of duty take place.

Regulation 128 of the Regulations prescribes the requirements for an application for refund, rebate or remission of duty. Such application shall be in a form approved by the Collector and must state, as far as practicable, the nature and particulars of the claim and must be delivered to a Collector.

Although regulation 128 requires an application to be in a form approved by the Collector, no such form has ever been formally approved; thereby creating uncertainty in the process.

Proposed regulation 2.1 omits the present regulation 128 and substitutes a new regulation 128 to overcome the uncertainty and to make the process more transparent through the mechanisms of tabling and disallowance. In particular, the new regulation now requires applications to be in an approved form or an approved statement (new paragraph 128(1)(a)), containing such information as is required by the form or statement (new paragraphs 128(1) (b ), and signed in the manner specified in the form or statement (new paragraph 128(1)(c)).

The terms 'approved form' and 'approved statement' are defined in subsections 4A(1) and (1A) of the Act respectively, as a form or statement that is approved, by instrument in writing, by the Comptroller. Subsection 4A(2) of the Act provides that the instrument, by which a form or statement is approved is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Approved forms are relevant to paper based documents whilst approved statements are relevant to electronic documents.

b)       Attaching the fee payable

Subsection 163(1B) of the Act prohibits a Collector from considering an application for refund of duty if the fee payable under subsection (X) has not been paid. That subsection provides for a fee of $200, or such higher amount as may be prescribed, to be payable "in respect of an application made after 13 May 1987 for a refund of duty".

Proposed new paragraph 128(1)(d) reinforces the operation of subsections 163(1B) and (1C) of the Act by imposing the condition that any fee that is payable in respect of an application for refund accompany that application.

ii)       Repeal of Form 41

The Customs and Excise Legislation Amendment Act 1990 (Act No. 111 of 1990) amended the Act by, amongst other things, repealing sections 64 and 74 and introducing new provisions to provide for the advance reporting of ships and aircraft and their cargo and crew, including the electronic reporting of some of that information. Statutory Rules No. 129 of 1991 then amended the Regulations to prescribe various matters under the new cargo reporting regime.

Regulation 9 of those Statutory Rules repealed regulation 103 of the Regulations (which provides for the form of a Certificate of Clearance), and replaced it with a new regulation 103 which refers to a Certificate of Clearance as an approved form rather than as a prescribed form.

As a consequence of the amendment to regulation 103, Form 41 in Schedule 1 of the Regulations became redundant and is now repealed by proposed regulation 3.1.