Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS REGULATIONS (AMENDMENT) 1997 NO. 422

STATUTORY RULES 1997 No. 422

Issued by the authority of the Minister for Customs and Consumer Affairs

Customs Act 1901

Customs Regulations (Amendment)

Section 270 of the Customs Act 1901 (the Act) provides in part that the GovernorGeneral may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.

Section 4 of the Acts Interpretation Act 1901 provides that where an Act, being an Act that is not to come into operation immediately upon its enactment, is expressed to confer power to make an instrument of a legislative character, then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or bringing the instrument into effect, before the Act concerned comes into operation.

Background

During the Winter Sittings 1997 the Parliament passed the Customs and Excise Legislation Amendment Act (No. 1) 1997, which revised the Diesel Fuel Rebate Scheme (DFRS) Scheme in 2 ways:

Firstly, eligibility under the Scheme in relation to the "mining" category was tightened up, and these provisions were proclaimed to commence on 1 August 1997.

Secondly, the DFRS was modernised to take account of an Australian National Audit Office (ANAO) report, which criticised the Scheme for its lack of accountability. These modernisation measures introduced document retention provisions, audit provisions and sanctions to, amongst other things, introduce penalty options where there is a failure to provide necessary information to enable claims to be verified. These measures have a statutory commencement of 1 January 1998, which is 6 months after the day on which the Amendment Act received the Royal Assent.

Purpose of the Regulations

These Regulations prescribe the documentary evidence relating to identity and eligibility that is required to accompany applications for diesel fuel rebate under the DFRS, as part of the modernising process.

Details of the regulations are set out in the Attachment

The regulations are complementary to similar amendments made to the Excise Regulations.

The Regulations commenced on 1 January 1998, which is the date of commencement of the relevant provisions of the Customs and Excise Legislation Amendment Act (No. 1) 1997.

ATTACHMENT

CUSTOMS ACT 1901

Customs Regulations (Amendment)

Regulation 3 - replaces existing regulations 128D and 128E with new regulations 128D, 128DA and 128DB.

Identity of Applicant

New Regulation 128D itemises categories of documents which an applicant for rebate may rely upon in establishing identity and address in applying for rebate.

For this purpose, different categories of document are prescribed

1. for individuals, or members of a partnership - subregulation 128D(2),

2. for companies - subregulation 128D(3); and

3. for other organisations - subregulation 128D(4),

The requirement to provide documentary evidence for this purpose is similar to the requirement to establish bonafides when opening a bank account, and the intention of the provision is to limit the opportunity for fraudulent claims on the Scheme by bogus persons or other entities who enjoy existence only on paper.

This requirement applies, only to new applicants under the Scheme. Persons or bodies who had lodged an application before 1 January 1998 are "grandfathered" from this provision by operation of new subregulation 128DB(4).

Records to be given with application

New Regulation 128DA itemises categories of documents which an applicant for rebate must provide with an application for rebate, if so requested.

For this purpose, different classes of document are prescribed for each of the rebate eligibility categories under the Scheme, as follows:

new subregulation 128DA(2): Mining Operations

new subregulation 128DA(3): Generation of electricity at residential premises

new subregulation 128DA(4): Hospital, Nursing Home etc

new subregulation 128DA(S): Agriculture

new subregulation 128DA(6): Fishing Operations

new subregulation 128DA(7): Foresty

Copies of documents sufficient

New Regulation 128DB provides that it is sufficient compliance with new regulations 128D and 128DA to provide a copy of a document which has been witnessed by an "appropriate person" - defined as a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959

New subregulation 128DB(4) is a "grandfather" provision which exempts existing claimants from the requirement to provide evidence of identity and address under new subregulation 128D