Commonwealth Numbered Acts

Customs Amendment Act 1983 No. 19 of 1983 - SECT 5

5. After Part XV of the Principal Act the following Part is inserted:

               ''PART  XVA-COMMERCIAL  TARIFF  CONCESSION  ORDERS
Interpretation

''269B. (1) In this Part, unless the contrary intention appears-

'application' means an application made under section 269G for a concession
order;

'concession order' means a Commercial Tariff Concession Order provided for by
section 269C;

'days' includes Sundays and holidays;

'particular goods' includes goods included in a particular class or kind of
goods;

'prescribed item' means an item in Part I of Schedule 4 to the Customs  Tariff
Act 1982 that is expressed to apply to goods that a Commercial Tariff
Concession Order declares are goods to which the item applies.

''(2) A reference in this Part to the Customs Tariff Act 1982 shall be read as
including a reference to that Act as proposed to be altered by a Customs
Tariff alteration proposed in the Parliament.

''(3) For the purposes of this Part, identical goods shall be taken to serve
similar functions.

''(4) Without limiting sub-section (3), for the purposes of this Part, goods
shall be taken to serve similar functions to other goods unless the Minister
is satisfied that, if both goods were readily available for sale throughout
Australia, there would be no significant part of Australia in which there
would be significant cross-elasticity of demand between the goods.

''(5) For the purposes of this Part, goods, other than unmanufactured raw
products, shall not be taken to have been produced in Australia unless-

   (a)  the goods were wholly or partly manufactured in Australia; and

   (b)  not less than 1/4 of the factory or works cost of the goods is
        represented by the sum of-

        (i)    the value of labour of Australia;

        (ii)   the value of materials of Australia; and

        (iii)  the factory overhead expenses incurred in Australia in respect
               of the goods.

''(6) For the purposes of this Part, goods shall not be taken to have been
partly manufactured in Australia unless at least one substantial process in
the manufacture of the goods was carried out in Australia.

''(7) For the purposes of this Part, a person shall be taken to be capable of
producing goods in the normal course of business if, in the normal course of
business, he is prepared to accept orders for the supply of such goods that
have been, are being, or are to be, produced by him. Commercial Tariff
Concession Orders

''269C. (1) Subject to this Part, where the Minister, after considering an
application under section 269G for the making of an order under this section
in respect of particular goods, is satisfied that-

   (a)  goods serving similar functions to the particular goods are not
        produced in Australia; and

   (b)  goods serving similar functions to the particular goods are not
        capable of being produced in Australia by any person in the normal
        course of business, the Minister shall make a written order, to be
        known as a Commercial Tariff Concession Order, declaring that the
        particular goods are goods to which a prescribed item specified in the
        order applies.

''(2) Where, by virtue of a concession order, particular goods are goods to
which a particular prescribed item applies, nothing in this Part shall be
taken to prevent the making of another concession order that declares, or of
other concession orders that declare, that other prescribed goods are also
goods to which that particular item applies.

''(3) A reference in paragraph (1) (a) or (b) to 'the particular goods' shall,
in the case of particular goods of which there are classes or kinds, be read
as including a reference to goods included in a class or kind of the
particular goods. Concession orders not to apply to prescribed goods

''269D. (1) The Minister shall not make a concession order in respect of
particular goods that are particular goods, or some of particular goods,
declared by the regulations to be goods in respect of which such an order
shall not be made (if any).

''(2) Without limiting the generality of sub-section (1), a declaration by
regulations for the purposes of that sub-section may be a declaration by
reference to goods to which a particular item, sub-item, paragraph or
sub-paragraph in Schedule 3 to the Customs Tariff Act 1982 applies at a
particular time. Minister may refuse to make certain concession orders

''269E. (1) The Minister may, in his discretion, refuse to make a concession
order in respect of particular goods if, in his opinion, the making of the
order-

   (a)  would be likely to have a substantially adverse effect on the market
        for any goods produced in Australia; or

   (b)  would not be in the national interest.

''(2) The Minister, in considering for the purposes of paragraph (1) (b)
whether the making of a concession order in respect of particular goods would
not be in the national interest, shall have regard to the matters to which the
Industries Assistance Commission is required to have regard under sub-sections
22 (1) (other than paragraph (g)) and (2) of the Industries Assistance 
Commission Act 1973 and may have regard to any other matters (whether or not
of the same kind as the first-mentioned matters) that he considers relevant.

''(3) Where the Minister refuses to make a concession order in respect of
particular goods by reason of the operation of paragraph (1) (b), he shall
publish in the Gazette a notice-

   (a)  stating that he has refused to make a concession order for which an
        application has been made;

   (b)  specifying the particular goods;

   (c)  stating that he has refused to make the order by reason that, in his
        opinion, the making of the order would not be in the national
        interest; and

   (d)  setting out his reasons for that opinion. Concession orders not to
        contravene international agreements

''269F. Where the Minister is satisfied that, in accordance with the
obligations of Australia under an agreement (including a treaty or convention)
between Australia and another country or other countries, the rate of duty by
reference to which the duty in respect of particular goods (which may be
particular goods that are not the produce or manufacture of a particular
country) is to be ascertained is not to be less than a particular minimum
rate, the Minister shall not make a concession order that would result in a
contravention of those obligations. Applications for concession orders

''269G. (1) A person may make an application in writing to the Minister for a
concession order in respect of particular goods specified in the application.

''(2) An application-

   (a)  shall contain such particulars as are prescribed; and

   (b)  shall be lodged with the Comptroller-

        (i)    in a prescribed manner;

        (ii)   on a day other than a Sunday, a Saturday or a prescribed
               holiday; and

        (iii)  at a time that is between prescribed hours.

''(3) Except where an application is lodged in such a prescribed manner that
the date on which it is lodged is automatically recorded, the Comptroller
shall, in a prescribed manner, give the applicant an acknowledgment, in
writing, of the lodging of the application specifying the date on which it was
lodged.

''(4) Where-

   (a)  an application is lodged on a day immediately following a day, or 2 or
        more consecutive days, on which applications may not be lodged; and

   (b)  the application states that, if it had been permissible to do so, the
        application would have been lodged on that earlier day or on such of
        those earlier days as is specified in the application, the application
        shall, for the purposes of sub-section (5), be deemed to have been
        lodged with the Comptroller on the earlier day or on the specified
        earlier day, as the case may be.

''(5) An application shall, for the purposes of this Part, be taken to have
been made on the date on which it was lodged with the Comptroller. Notice of
applications

''269H. (1) A person may give to the Comptroller a notice in writing that he
proposes to make an application for a concession order in respect of
particular goods specified in the notice.

''(2) A notice under sub-section (1)-

   (a)  shall contain such particulars as are prescribed; and

   (b)  shall be given to the Comptroller-

        (i)    in a prescribed manner; and

        (ii)   on a day on which, and at a time at which, applications may be
               lodged.

''(3) Except where a notice under sub-section (1) is given in such a
prescribed manner that the date on which it is given is automatically
recorded, the Comptroller shall, in a prescribed manner, give the person who
gave the notice an acknowledgment, in writing, of the giving of the notice
specifying the date on which it was given.

''(4) Where-

   (a)  a notice under sub-section (1) is given on a day immediately following
        a day, or 2 or more consecutive days, on which such notices may not be
        given; and

   (b)  the notice states that, if it had been permissible to do so, the
        notice would have been given on that earlier day or on such of those
        earlier days as is specified in the notice, the notice shall, for the
        purposes of sub-section 269N (3), be deemed to have been given on the
        earlier day or on the specified earlier day, as the case may be.
        Applications deemed to be made

''269J. (1) Where the Industries Assistance Commission or the Temporary
Assistance Authority makes a report to the Minister in accordance with the
Industries Assistance Commission Act 1973 (other than a report resulting from
a request under sub-section 269R (1)) that contains a recommendation that a
concession order should be made in respect of particular goods, an application
under section 269G for a concession order in respect of those particular goods
shall be deemed to have been made on a date that the Minister considers to be
appropriate.

''(2) Where the Minister declares, in writing, that he is of the opinion that
it is desirable that consideration should be given to the making of a
concession order in respect of particular goods, an application under section
269G for a concession order in respect of those goods shall be deemed to have
been made on the date on which he makes the declaration. Refusal of
applications

''269K. (1) Where the Minister decides not to make a concession order for
which an application, other than an application deemed to have been made under
sub-section 269J (1) or (2), has been made (whether or not a notice referred
to in section 269L in relation to the application has been published), he
shall, in a prescribed manner, give the applicant notice, in writing, of the
decision.

''(2) The giving of a notice under sub-section (1) in respect of a concession
order does not prevent the Minister giving further consideration to the
application or applications for that concession order or reversing the
decision by reason of which the notice was given. Orders not to be made
without notice of application, &c.

''269L. The Minister shall not make a concession order (not being an order
dealt with in a report by the Industries Assistance Commission or the
Temporary Assistance Authority or an order under sub-section 269P (10)) unless
he has-

   (a)  published in the Gazette a notice-

        (i)    stating that an application for the order has been made;

        (ii)   specifying the particular goods to which the application
               relates; and

        (iii)  inviting any persons who consider that there are reasons why
               the order should not be made to submit, in a manner specified
               in the notice, particulars, in writing, of these reasons to the
               Comptroller within 28 days after the date of the publication of
               the notice; and

   (b)  considered any relevant particulars submitted in response to the
        invitation referred to in sub-paragraph (a) (iii). Publication of
        concession orders

''269M. (1) A concession order shall be published in the Gazette as soon as
practicable after it is made.

''(2) Any failure to comply with the requirements of sub-section (1) in
relation to a concession order shall not be taken to affect the validity of
the concession order. Application of concession orders

''269N. (1) A concession order (not being an order made under sub-section 269P
(10)) in respect of particular goods shall be deemed to have come into effect
on such date before the making of the order as is specified in the order.

''(2) Subject to sub-sections 269P (7) and (8), a concession order applies in
relation to the particular goods to which it relates that are first entered
for home consumption on or after the date on which it comes into effect.

''(3) Subject to sub-sections (4), (6) and (7), the date to be specified in a
concession order for the purposes of sub-section (1) shall be-

   (a)  where, within the period of 28 days immediately preceding the date on
        which the application for the order was made the person who made the
        application gave notice under section 269H of his intention to make
        the application-the date on which he gave that notice; or

   (b)  in any other case-the date on which the application for the order was
        made.

''(4) Subject to sub-sections (6) and (7), where, in relation to a concession
order in respect of particular goods, the Minister is satisfied (whether by
reason of an application under sub-section (5) or otherwise) that the
applicant for the order delayed taking steps to obtain a concession order in
relation to those goods by reason of an officer having done, or having failed
to do, any act or thing, the date to be specified in the order for the
purposes of sub-section (1) shall be the date that the Minister considers
would have been the date that would have been specified if the delay had not
occurred.

''(5) An applicant for a concession order may, in the application for the
order, apply to the Minister to consider whether he should perform his duty
under sub-section (4) in relation to the order, setting out particulars in
support of his application under this sub-section.

''(6) Subject to sub-section (7), where-

   (a)  the Minister proposes to make a concession order; and

   (b)  there are 2 or more applications for the order, the date to be
        specified in the order for the purposes of sub-section (1) shall be
        the earliest date that, in accordance with sub-section (3) or (4),
        would have been required to be so specified by reason of an
        application referred to in paragraph (b).

''(7) Where-

   (a)  a concession order relates to particular goods to which an earlier
        concession order that has been revoked under sub-section 269P (1) also
        related; and

   (b)  the Minister is satisfied that the earlier order should not have been
        revoked, the date to be specified in the order for the purposes of
        sub-section (1) shall be the date on which the revocation of the
        earlier order came into effect. Revocation of concession orders

''269P. (1) Where the Minister becomes satisfied at any time during which a
concession order in respect of particular goods is in force that, if-

   (a)  that order were not in force at that time; and

   (b)  an application were to be made at that time for a concession order in
        respect of the particular goods, a concession order, or a concession
        order specifying the item that is specified in the first-mentioned
        concession order, would not be made in respect of the particular goods
        (whether by reason that the order would relate to all the particular
        goods, to goods included in a class of the particular goods or
        otherwise), the Minister may, in his discretion, by order in writing
        revoke the first-mentioned concession order.

''(2) The circumstances in which the Minister may exercise his discretion
under sub-section (1) not to revoke a concession order include, but are not
limited to, the case where he considers that the revocation of the concession
order would give an unfair advantage to any person.

''(3) A revocation under sub-section (1) comes into effect on the date on
which the order of revocation is made.

''(4) Where a concession order is revoked under sub-section (1), a notice of
the revocation shall be published in the Gazette as soon as is practicable
after the making of the order of revocation.

''(5) Any failure to comply with the requirements of sub-section (4) in
relation to the revocation of a concession order shall not be taken to affect
the validity of the revocation.

''(6) Where a declaration by regulations for the purposes of sub-section 269D
(1) is made that applies to particular goods to which a concession order
relates (whether all the particular goods, goods in a class of the particular
goods or otherwise), that concession order shall be taken to be revoked and
that revocation comes into effect on the date on which those regulations came
into effect.

''(7) Subject to sub-section (8), where a concession order is revoked under
sub-section (1) or by virtue of sub-section (6), the concession order ceases
to apply in relation to particular goods entered for home consumption on or
after the date on which the revocation comes into effect.

''(8) Notwithstanding the revocation under sub-section (1) or by virtue of
sub-section (6) of a concession order in respect of particular goods, the
concession order continues to apply in relation to-

   (a)  particular goods that-

        (i)    were imported into Australia on or before the date on which the
               revocation came into effect; and

        (ii)   are entered for home consumption, before, on, or within 28 days
               after, that date; and

   (b)  particular goods that-

        (i)    were in transit to Australia on that date; and

        (ii)   are entered for home consumption before, on, or within 28 days
               after, the date on which they were imported into Australia.

''(9) For the purposes of sub-paragraph (8) (b) (i), goods shall be taken to
be in transit to Australia if, and 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.

''(10) Where-

   (a)  a concession order in respect of particular goods is revoked under
        sub-section (1) or by virtue of sub-section (6); and

   (b)  the Minister is satisfied that the order was revoked by reason that it
        related to some of those prescribed goods (whether goods included in a
        class of those particular goods or otherwise) but would not have been
        revoked if it had related only to the remainder of those particular
        goods, the Minister shall make a written order declaring that
        particular goods, being that remainder of the first-mentioned
        particular goods, are goods to which the item that was specified in
        the revoked concession order applies, and the order so made shall be
        deemed to be a concession order that came into effect on the date on
        which the revocation of the revoked concession order came into effect,
        which date shall be specified in the order under this sub-section.
        Concession orders not to be Statutory Rules

''269Q. An order under this Part shall not be deemed to be a statutory rule
within the meaning of the Statutory Rules Publication Act 1903. Matters may be
referred to Industries Assistance Commission

''269R. (1) Where the Minister-

   (a)  makes a concession order (not being an order under sub-section 269P
        (10)); or

   (b)  decides not to make a concession order for which an application has
        been made (not being an application deemed to have been made under
        sub-section 269J (1) or (2)), otherwise than by reason of the
        operation of paragraph 269E (1) (b), a person whose interests are
        affected by the making of the order, or the decision not to make the
        order, as the case may be, may request the Minister, in writing, to
        refer to the Industries Assistance Commission the question whether the
        order should have been made.

''(2) Where the Minister revokes a concession order under sub-section 269P
(1), a person whose interests are affected by the revocation may request the
Minister, in writing, to refer to the Industries Assistance Commission the
question whether the concession order should have been revoked.

''(3) Nothing in this Part or in the Industries Assistance Commission Act 
1973 shall be taken to require the Minister to-

   (a)  comply with any request made under this section to refer any question
        to the Industries Assistance Commission; or

   (b)  act in accordance with any report made to him by the Industries
        Assistance Commission as the result of the referral under this section
        of any question. Factory and works cost

''269S. (1) For the purposes of this Part, the Minister may, by instrument in
writing published in the Gazette-

   (a)  direct that the factory or works cost of goods is to be determined in
        a specified manner; and

   (b)  direct that the value of labour of Australia, the value of materials
        of Australia or the factory overhead expenses incurred in Australia in
        respect of goods is to be determined in a specified manner, and those
        directions shall have effect accordingly.

''(2) The provisions of section 48 (other than paragraphs (1) (a) and (b) and
sub-section (2)), 49, 49A and 50 of the Acts Interpretation Act 1901 apply in
relation to directions given under this section as if-

   (a)  references in those provisions to regulations were references to
        directions; and

   (b)  references in those provisions to the repeal of a regulation were
        references to the revocation of a direction.''.