Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2004 (NO. 6) 2004 NO. 261

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 or for the conduct of any other business relating to the Customs.

Section 50 of the Act provides in part that the Governor-General may, by regulation, prohibit the importation of goods into Australia and that the powers may be exercised by prohibiting the importation of goods absolutely or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of specified goods for the purposes of the Act.

The purpose of the amending Regulations is to revise the current import restrictions on unmanufactured tobacco leaf in order to facilitate the administration of these restrictions by the Australian Taxation Office.

Under existing subregulation 4(2) and item 2 of Schedule 3 to the Principal Regulations, the importation of 'tobacco leaf referred to in item 2401.10.00 of Schedule 3 to the Customs Tariff Act 1995 (described therein as tobacco not stemmed/stripped)' is prohibited unless:

(a)       the written consent of the Treasurer is produced to a Collector; and

(b)       the importer is a registered dealer under Part 3 of the Excise Act 1901 or a licensed manufacturer under Part 4 of the Excise Act 1901.

The amending Regulations omit item 2 of Schedule 3 to the Principal Regulations and insert a new regulation 4D to introduce a permission-based regime to control the importation of unmanufactured tobacco leaf.

New regulation 4D prohibits the importation of unmanufactured tobacco leaf mentioned in subheading 2401.10.00 of Schedule 3 to the Customs Tariff Act 1995 unless the importer is the holder of a dealer licence, or a manufacturer licence for tobacco or tobacco products, granted under the Excise Act 1901, and has been given permission by the Commissioner of Taxation to import the tobacco leaf.

New regulation 4D also inserts other provisions in relation to the permission-based regime, including provisions relating to:

•       applications for a permission;

•       factors to be considered in the decision whether to grant a permission;

•       the imposition of conditions on a permission;

•       the revocation of a permission under certain circumstances;

•       the notification of adverse decisions made under new regulation 4D;

•       the review of adverse decisions made under new regulation 41); and

•       the saving of existing consents granted by the Treasurer.

Details of the amending Regulations are in the Attachment.

The amending Regulations commenced on the date of their notification in the Gazette.

0311357A

ATTACHMENT DETAILS OF THE PROPOSED CUSTOMS (PROHIBITED IMPORTS) AMENDMENT REGULATIONS 2004 (No. 6)

Regulation 1 - Name of Regulations

Regulation 1 provides that the amending Regulations are the Customs (Prohibited Imports) Amendment Regulations 2004 (No. 6).

Regulation 2 - Commencement

Regulation 2 provides that the amending Regulations commence on the date of their notification in the Gazette.

Regulation 3 - Amendment of Customs (Prohibited Imports) Regulations 1956

Regulation 3 provides that Schedule 1 amends the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations).

SCHEDULE 1 -AMENDMENTS

Item 1 - After regulation 4C

Item 1 inserts new regulation 4D.

Subregulation 40(1) prohibits the importation into Australia of unmanufactured tobacco leaf mentioned in subheading 2401.10.00 of Schedule 3 to the Customs Tariff Act 1995 unless:

(a)       the person importing the leaf is the holder of:

(i)       a dealer licence granted under Part IV of the Excise Act 1901 (the Excise Act); or

(ii)       a manufacturer licence, to manufacture excisable tobacco or tobacco products, granted under Part IV of the Excise Act; and

(b)       a permission in writing to import the leaf has been given by the Commissioner of Taxation; and

(c)       the permission is produced to a Collector.

The descriptions of the persons able to import unmanufactured tobacco have been revised to reflect changes to the tobacco licensing provisions in the Excise Act 1901. Further, in order to facilitate the administration of the permission regime by the Australian Taxation Office (ATO), the power to grant a permission to import has been vested in the Commissioner of Taxation (the Commissioner), rather than the Treasurer. It is intended that the Commissioner's power will be delegated to officers of the ATO under section 8 of the Taxation Administration Act 1953 (the TA Act).

Subregulation 40(2) provides that an application for a permission must be in writing and lodged with the Commissioner and subregulation 4D(3) requires an applicant for a permission to give the Commissioner in writing any information the Commissioner reasonably requires for the application.

Under subregulation 4D(4), in deciding whether to grant a permission, the Commissioner must consider the applicant's compliance with the Excise Act and may also consider any other relevant matters.

Subregulation 4D(5) allows the Commissioner to specify conditions to be complied with by the holder of the permission, and the time at which the holder of the permission must comply with a condition.

Subregulation 4D(6) allows the Commissioner to revoke a permission where the holder of the permission does not comply with a condition of the permission.

Under subregulations 4D(7), 4D(8) and 4D(9), where the Commissioner makes a decision to:

(a)       not grant a permission;

(b)       specify a condition for a permission; or

(c)       revoke a permission;

the Commissioner must give the applicant written notice of the decision as soon as practicable after making the decision. In addition, a person who is dissatisfied with the decision will be able to object against it in the manner set out in Part IVC of the TA Act. Under section 14ZL of the TA Act, such an objection is deemed a 'taxation objection' and the review procedures set out in Part IVC of the TA Act apply to such an objection.

Subregulation 4D(10) provides that a consent given by the Treasurer under item 2 of Schedule 3 to the PI Regulations as in force immediately before the commencement of new regulation 4D is taken to be a permission granted by the Commissioner, subject to any conditions to which the consent was subject.

Item 2 - Repeal of item 2, Schedule 3

Item 2 omits item 2 of Schedule 3 to the PI Regulations, which sets out the existing import restrictions on unmanufactured tobacco leaf.