Commonwealth: Customs and Excise Legislation Amendment Act (No. 3) 1989 (Cth)

Customs and Excise Legislation Amendment Act (No. 3) 1989 No. 78 of 1989 An Act to amend legislation relating to Customs and Excise, and for related purposes [Assented to 21 June 1989] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: PART 1—PRELIMINARY Short title 1. This Act may be cited as the Customs and Excise Legislation Amendment Act (No. 3) 1989. Commencement 2. (1) Subject to subsections (2) and (3), the provisions of this Act commence on the day on which this Act receives the Royal Assent. (2) Paragraphs 5 (1) (c), (d), (e), (f) and (g) shall be taken to have commenced on 3 March 1989. (3) Sections 6, 8, 16 and 18 commence 28 days after this Act receives the Royal Assent. PART 2—AMENDMENTS OF THE CUSTOMS ACT 1901 Principal Act 3. In this Part, "Principal Act" means the Customs Act 19011. Interpretation 4. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definition: " 'approved form' means a form approved, in writing, by the Comptroller-General;". Rebate of duty in respect of diesel fuel used for certain purposes 5. (1) Section 164 of the Principal Act is amended: (a) by omitting from subsection (1) ", being diesel fuel upon which duty has been paid,"; (b) by inserting after subsection (1) the following subsection: "(1a) An application under subsection (1) for rebate in respect of diesel fuel shall not be made before duty is paid on the diesel fuel."; (c) by inserting in the definition of "forestry" in subsection (7) "or chipmill" after "sawmill" (wherever occurring); (d) by omitting from paragraph (d) of that definition "or" (last occurring); (e) by omitting the definition of "fishing operations" from subsection (7) and substituting the following definition: " 'fishing operations' means: (a) the taking, catching or capturing of fish; (b) the farming of fish; (c) the processing of fish on board vessels; (d) pearling operations; (e) the operation of a dedicated mother vessel in connection with the activities referred to in paragraphs (a), (b), (c) or (d); or (f) the undertaking: (i) of voyages to or from a port by a vessel for the purposes of refitting or repairing the vessel, or its equipment, for purposes that are integral to the performance of an activity referred to in paragraph (a), (b), (c), (d) or (e); or (ii) trials in connection with such a refit or repair of a vessel or of its equipment; but does not include any activity referred to in paragraph (a), (b), (c), (d), (e) or (f) that is conducted, in whole or in part: (g) otherwise than for the purposes of a business; or (h) for business purposes connected with recreation, sport or tourism;"; (f) by adding after paragraph (e) of the definition of "forestry" in subsection (7) the following word and paragraph: "; or (f) the making and maintaining in a forest or plantation referred to in paragraph (a) or (b) of a road that is integral to the activities referred to in paragraph (a), (b) or (c);"; (g) by inserting after paragraph (c) of the definition of "mining operations" in subsection (7) the following paragraph: "(ca) other operations connected with the dressing or beneficiation of minerals, or ores bearing minerals, where that dressing or beneficiation is an integral part of the operation for the recovery of the minerals or of the ores, being operations that are carried out in, or at a place adjacent to, the area in which the dressing or beneficiation occurs;". (2) An application under section 164 of the Customs Act 1901 for rebate of duty, being an application that is lodged, but not finally dealt with, before the commencement of this subsection, shall continue to be dealt with after the commencement of this subsection, as if the amendments of that section made by paragraphs (1) (a) and (b) had not been made. (3) Where, at any time after 3 March 1989, a person: (a) was refused a rebate of duty paid on diesel fuel, being a rebate for which the person had made application under section 164 of the Customs Act 1901; or (b) was required, under subsection 165 (3) of the Customs Act 1901, to repay to the Commonwealth the whole or a part of a rebate of duty paid on diesel fuel; in circumstances where, by virtue of the amendments to section 164 of the Customs Act 1901 made by paragraphs (1) (c), (d), (e), (f) and (g) of this Act, a rebate of duty is payable to the person, the Commonwealth shall, as soon as practicable after the commencement of this subsection, pay that rebate to the person or refund to the person the amount of the rebate required to be repaid, as the case requires. Diesel fuel rebate—payment of penalty in lieu of prosecution 6. Section 164aa of the Principal Act is amended: (a) by omitting from paragraph (1) (e) "subsections (2) and (3)" and substituting "subsection (2)"; (b) by inserting after subsection (1) the following subsection: "(1a) Where a person, in an application for rebate under section 164: (a) makes a statement that is false or misleading in a material particular; or (b) omits from a statement any matter or thing without which the statement is misleading in a material particular; an officer may serve on the person a notice in writing: (c) setting out particulars of the false or misleading statement or of the omission by reason of which the statement is misleading; (d) if any rebate has been paid—demanding repayment of so much of the rebate paid as exceeds the rebate that would have been paid but for the statement or omission; (e) demanding payment of a penalty of: (i) unless subparagraph (ii) or (iii) applies—3 times the amount by which the rebate applied for exceeds the rebate for which application might properly have been made; (ii) if 3 times the excess referred to in subparagraph (i) would be less than $100—$100; or (iii) if 3 times the excess referred to in subparagraph (i) would be more than $5,000—$5,000; (f) setting out the terms of subsection (2); and (g) specifying the address at which payment of the amount demanded may be made under subsection (2)."; (c) by omitting subsections (2) and (3) and substituting the following subsection: "(2) Where: (a) a notice is served on a person: (i) under subsection (1), in relation to obtaining rebate or failing to notify a Collector of the sale or other disposal of diesel fuel; or (ii) under subsection (1a), in relation to the making of a statement or the omission of any matter or thing from a statement; and (b) the person pays to a Collector, at the address specified in the notice and within 21 days after the day on which the notice was served, the amount or amounts demanded in the notice; proceedings shall not be brought for an offence against this Act in relation to the obtaining of the rebate, the failure to notify, the making of a statement or the omission from a statement of a matter or thing, as the case requires.". Short paid duty etc. may be recovered 7. (1) Section 165 of the Principal Act is amended: (a) by omitting from subsection (1) "the Collector" and substituting "the Comptroller"; (b) by omitting from subsection (3) "a Collector" and substituting "the Comptroller"; (c) by adding at the end the following subsection: "(4) Where a court or the Administrative Appeals Tribunal determines, or an officer or employee of the Commonwealth performing duties in the Attorney-General's Department (being an officer or employee who is entitled, under section 55d of the Judiciary Act 1903, to practise as a barrister and solicitor in any Territory) advises, in writing, that, in particular circumstances, the rebate, or a part of the rebate, paid to a person in respect of diesel fuel used by that person should not have been so paid, the Comptroller shall not, under subsection (3): (a) demand repayment of that rebate or that part of that rebate from that person; or (b) demand repayment of any amount of rebate paid, in similar circumstances, to any other person who, by reason of the operation of that decision, would appear not to have been entitled to that amount; unless the person referred to in paragraph (a) or (b): (c) has been convicted of an offence against this Act in respect of the obtaining of that rebate; or (d) has been required to pay a penalty under subsection 164aa (1) or (1a) in respect of the application for that rebate and has paid that penalty.". (2) Any demand made by a Collector under subsection 165 (1) or (3) of the Customs Act 1901 as in force at any time before the commencement of this section, being a demand that has not been complied with before that commencement, continues to have effect after that commencement as if the amendments made by this section had not been made. 8. After section 165 of the Principal Act the following section is inserted: Diesel fuel rebate scheme set-offs "165a. (1) Subject to subsection (3), where at any time, a person is liable to repay to the Commonwealth an amount under subsection 164 (2) or 165 (3) in respect of a rebate of duty paid in relation to diesel fuel and, at the same time, the Commonwealth is liable to pay an amount to that person under section 164, the Comptroller shall, by notice in writing, set off the first-mentioned amount against the second-mentioned amount and, where he or she does so, then, with effect from the day of issue of that notice: (a) if one amount is greater than the other—the lesser amount shall be taken to have been paid in full and the greater amount shall be taken to have been paid to the extent of the lesser amount; and (b) if both amounts are equal—both amounts shall be taken to have been paid in full. "(2) Where the Comptroller effects a set-off by notice under subsection (1), he or she shall give a copy of the notice to the person affected by the set-off. "(3) Where the Comptroller becomes aware that a person who has been requested to pay an amount under subsection 164 (2) or 165 (3) in respect of a rebate of duty has made application under section 273ga (1) for review of that decision requesting payment of that amount: (a) this section has no effect pending the final determination by the Administrative Appeals Tribunal, or by a Court on appeal from the Tribunal, of the review proceedings; and (b) if it is determined, or ultimately determined, that the amount, or any part of the amount, is not payable, this section thereupon has effect only in respect of the part of the amount, if any, that is payable having regard to the determination of the Tribunal or Court.". Disputes as to amount or rate of duty 9. Section 167 of the Principal Act is amended by inserting in subsection (1) "(not being duty imposed under the Customs Tariff (Anti-Dumping) Act 1975)" after "Parliament". Review of decisions 10. Section 273ga of the Principal Act is amended: (a) by inserting in subsection (1), after paragraph (ha), the following paragraph: "(haa) a decision of a Collector under subsection 164 (2) demanding the repayment of rebate;"; (b) by inserting in subsection (1), after paragraph (j), the following paragraph: "(ja) a decision of the Comptroller under subsection 165 (3) demanding repayment of the whole or a part of a rebate of duty;". PART 3—AMENDMENTS OF THE CUSTOMS ADMINISTRATION ACT 1985 Principal Act 11. In this Part, "Principal Act" means the Customs Administration Act 19852. 12. (1) Section 14 of the Principal Act is repealed and the following section is substituted: Delegation "14. (1) The Comptroller-General may, by signed instrument, delegate to an officer of Customs all or any of the functions and powers of the Comptroller-General under a law of customs or excise or any other law of the Commonwealth. "(2) A delegation under this section may be made subject to a power of review and alteration by the Comptroller-General, within a period specified in the instrument of delegation, of acts done under the delegation. "(3) A function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the law of customs or excise, or the other law of the Commonwealth, under which the function was established or the power conferred, be taken to have been performed or exercised by the Comptroller-General. "(4) Paragraph 34ab (c) of the Acts Interpretation Act 1901 does not apply to a delegation under subsection (1). "(5) In this section, 'officer of Customs' has the same meaning as it has for the purposes of the Customs Act 1901". (2) A delegation by the Comptroller-General under section 14 of the Principal Act and in force immediately before the commencement of this section continues in force after that commencement as if it were given under section 14 of the Principal Act as amended by subsection (1). PART 4—AMENDMENTS OF THE EXCISE ACT 1901 Principal Act 13. In this Part, "Principal Act" means the Excise Act 19013. Interpretation 14. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definition: " 'approved form' means a form approved, in writing, by the Comptroller-General;". Rebate of duty in respect of diesel fuel used for certain purposes 15. (1) Section 78a of the Principal Act is amended: (a) by omitting from subsection (1) ", being diesel fuel upon which duty has been paid,"; (b) by inserting after subsection (1) the following subsection: "(1a) An application under subsection (1) for rebate in respect of diesel fuel shall not be made before duty is paid on the diesel fuel.". (2) An application under section 78a of the Excise Act 1901 for rebate of duty, being an application that is lodged, but not finally dealt with, before the commencement of this subsection, shall continue to have effect after the commencement of this subsection, as if the amendment of that section made by subsection (1) had not been made. Diesel fuel rebate—payment of penalty in lieu of prosecution 16. Section 78ab of the Principal Act is amended: (a) by omitting from paragraph (1) (b) "78a" and substituting "78aa"; (b) by omitting from paragraph (1) (e) "subsections (2) and (3)" and substituting "subsection (2)"; (c) by inserting after subsection (1) the following subsection:' "(1a) Where a person, in an application for rebate under section 78a: (a) makes a statement that is false or misleading in a material particular; or (b) omits from a statement any matter or thing without which the statement is misleading in a material particular; an officer may serve on the person a notice in writing: (c) setting out particulars of the false or misleading statement or of the omission by reason of which the statement is misleading; (d) if any rebate has been paid—demanding repayment of so much of the rebate paid as exceeds the rebate that would have been paid but for the statement or omission; (e) demanding payment of a penalty of: (i) unless subparagraph (ii) or (iii) applies—3 times the amount by which the rebate applied for exceeds the rebate for which application might properly have been made; (ii) if 3 times the excess referred to in subparagraph (i) would be less than $100—$100; or (iii) if 3 times the excess referred to in subparagraph (i) would be more than $5,000—$5,000; (f) setting out the terms of subsection (2); and (g) specifying the address at which payment of the amount may be made under subsection (2)."; (d) by omitting subsection (2) and substituting the following subsection: "(2) Where: (a) a notice is served on a person: (i) under subsection (1), in relation to obtaining rebate or failing to notify a Collector of the sale or other disposal of diesel fuel; or (ii) under subsection (1a), in relation to the making of a statement or the omission of any matter or thing from a statement; and (b) the person pays to a Collector, at the address specified in the notice and within 21 days after the day on which the notice was served, the amounts demanded in the notice; proceedings shall not be brought for an offence against this Act in relation to the obtaining of the rebate, the failure to notify, the making of a statement or the omission from a statement of a matter or thing, as the case requires.". Recovery of overpayments of refunds, rebates or drawbacks 17. (1) Section 80 of the Principal Act is amended: (a) by omitting from subsection (1) "a Collector" and substituting "the Comptroller"; (b) by omitting from subsection (2) "a Collector" and substituting "the Comptroller"; (c) by adding at the end the following subsection: "(3) Where a court or the Administrative Appeals Tribunal determines, or an officer or employee of the Commonwealth performing duties in the Attorney-General's Department (being an officer or employee who is entitled, under section 55d of the Judiciary Act 1903, to practise as a barrister and solicitor in any Territory) advises, in writing, that, in particular circumstances, the rebate, or a part of the rebate, paid to a person in respect of diesel fuel used by that person should not have been so paid, the Comptroller shall not, under subsection (2): (a) demand repayment of that rebate or that part of that rebate from that person; or (b) demand repayment of any amount of rebate paid, in similar circumstances, to any other person who, by reason of the operation of that decision, would appear not to have been entitled to that amount; unless the person referred to in paragraph (a) or (b): (c) has been convicted of an offence against this Act in respect of the obtaining of that rebate; or (d) has been required to pay a penalty under subsection 78ab (1) or (1a) in respect of that rebate and has paid that penalty.". (2) Any demand made by a Collector under subsection 80 (1) or (2) of the Excise Act 1901 as in force at any time before the commencement of this section, being a demand that has not been complied with before that commencement, continues to have effect after that commencement as if the amendments made by this section had not been made. 18. After section 80 of the Principal Act the following section is inserted: Diesel fuel rebate scheme set-offs "80a. (1) Subject to subsection (3), where, at any time, a person is liable to repay to the Commonwealth an amount under subsection 78a (2) or 80 (2) in respect of a rebate of duty paid in relation to diesel fuel and, at the same time, the Commonwealth is liable to pay an amount to that person under section 78a, the Comptroller shall, by notice in writing, set off the first-mentioned amount against the second-mentioned amount and, where he or she does so, then, with effect from the day of issue of that notice: (a) if one amount is greater than the other—the lesser amount shall be taken to have been paid in full and the greater amount shall be taken to have been paid to the extent of the lesser amount; and (b) if both amounts are equal—both amounts shall be taken to have been paid in full. "(2) Where the Comptroller effects a set-off by notice under subsection (1), he or she shall give a copy of the notice to persons affected by the setoff. "(3) Where the Comptroller becomes aware that a person who has been requested to pay an amount under subsection 78a (2) or 80 (2) in respect of a rebate of duty has made application under subsection 162c (1) for review of the decision requesting payment of that amount: (a) this section shall have no effect pending the final determination by the Administrative Appeals Tribunal, or by a Court on appeal from the Tribunal, of the review proceedings; and (b) if it is determined, or ultimately determined, that the amount, or any part of the amount, is not payable, this section shall thereupon have effect only in respect of the part of the amount, if any, that is payable having regard to the determination of the Tribunal or Court.". Review of decisions 19. Section 162c of the Principal Act is amended: (a) by inserting in subsection (1), after paragraph (f), the following paragraph: "(faa) a decision of a Collector under subsection 78a (2) demanding the repayment of rebate already paid;"; (b) by inserting in subsection (1), after paragraph (fa), the following paragraph: "(fb) a decision of the Comptroller under subsection 80 (2) demanding repayment of the whole or a part of a rebate of duty;". Transitional 20. Where, at any time after 3 March 1989, a person: (a) was refused a rebate of duty paid on diesel fuel, being a rebate for which the person had made application under section 78a of the Excise Act 1901; or (b) was required, under section 80 of the Excise Act 1901, to repay to the Commonwealth the whole or a part of a rebate of duty paid on diesel fuel; in circumstances where, by virtue of amendments to expressions denned for the purposes of section 164 of the Customs Act 1901, being amendments made by paragraphs 5 (1) (c), (d), (e), (f) and (g) of this Act, a rebate of duty is payable to the person, the Commonwealth shall, as soon as practicable after the commencement of this provision, pay that rebate to the person or refund to the person the amount of the rebate required to be repaid, as the case requires. NOTES 1. No. 6, 1901, as amended. For previous amendments, see No. 21, 1906; Nos. 9 and 36, 1910; No. 10, 1916; No. 41, 1920; No. 19, 1922; No. 12, 1923; No. 22, 1925; No. 6, 1930; Nos. 7 and 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45, 1949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66, 1954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29, 82 and 133, 1965; No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; No. 162, 1973; No. 216, 1973 (as amended by No. 20, 1974); Nos. 28 and 120, 1974; Nos. 56, 77 and 107, 1975; Nos. 41, 91 and 174, 1976; No. 154, 1977; Nos. 36 and 183, 1978; Nos. 92, 116, 177 and 180, 1979; Nos. 13, 15 and 110, 1980; Nos. 45, 64, 67, 152 and 157, 1981; Nos. 48, 51, 80, 108, 115 and 137, 1982; No. 81, 1982 (as amended by No. 39, 1983); Nos. 19, 39 and 101, 1983; Nos. 2, 22, 63, 72 and 165, 1984; Nos. 39, 40 and 175, 1985; Nos. 10, 34 and 149, 1986; Nos. 51, 76, 81, 104 and 141, 1987; Nos. 66, 76, 99 and 121, 1988; and Nos. 23 and 24, 1989. 2. No. 38, 1985; and No. 78, 1989. 3. No. 9, 1901, as amended. For previous amendments, see No. 26, 1918; No. 8, 1923; No 44, 1934; No. 16, 1942; No. 88, 1947; No. 46, 1949; No. 55, 1952; No. 10, 1957; No. 49, 1958; No. 37, 1962; No. 49, 1963; No. 139, 1965; No. 93, 1966; Nos. 15 and 105, 1968; No. 23, 1972; Nos. 24 and 145, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 29, 1974; No. 91, 1976; No. 110, 1978; Nos. 11 and 50, 1979; No. 42, 1980; Nos. 61 and 65, 1981; Nos. 51, 80 and 108, 1982; No. 81, 1982 (as amended by No. 39, 1983); Nos. 39 and 101, 1983; Nos. 72 and 165, 1984; Nos. 39 and 175, 1985; No. 40, 1985 (as amended by No. 34, 1986); Nos. 10, 34 and 149, 1986; Nos. 81 and 104, 1987; No. 99, 1988; and Nos. 23 and 24, 1989. [Minister's second reading speech made in— House of Representatives on 3 May 1989 Senate on 25 May 1989]