An Act to establish a scheme, to be known as the Tradex Scheme,
for the importation, without payment of duties of customs or other taxes, of
goods that are to be subsequently exported, and for related purposes
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Tradex
Scheme Act 1999.
2
Commencement [see
Note 1]
(1) Subject to subsection (2), this Act
commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1)
within 6 months after the day on which it receives the Royal Assent, it
commences on the first day after the end of that period.
3
Object of Act
The object of this Act is to establish a
statutory scheme, to be known as the Tradex Scheme, under which goods may be
imported without payment of duties of customs or other taxes provided that the
goods are subsequently exported or incorporated in other goods that are
exported.
4
Definitions
In this Act, unless the contrary
intention appears:
approved form means a form approved under
section 44.
authorised officer means an individual
holding an appointment as an authorised officer under section 45.
container includes every means by which goods
may be covered, enclosed, packed or contained.
core criteria:
(a) for the making of an application
for, or an application for the variation of, a tradex order—has the meaning
given by subsection 5(1); or
(b) for the holding of a tradex
order—has the meaning given by subsection 5(2).
disqualifying circumstances has the meaning
given by section 6.
document includes a book and any record.
eligible goods means goods other than:
(a) goods intended for sale in an
establishment that offers goods for sale free of duties of customs and other
taxes; and
(b) goods which, if they were produced
in Australia, would be subject to duties of excise or to another tax that is
declared by the regulations to be a tax to which this paragraph applies.
enter for home consumption means enter for
home consumption under section 68 of the Customs Act 1901.
exportation, in relation to goods, includes
the exportation of other goods in which the first‑mentioned goods are
incorporated.
externally‑administered body corporate means
a body corporate:
(a) that is being wound up under the Corporations
Act 2001; or
(b) in respect of whose property a
receiver, or a receiver and manager, appointed (whether by a court or
otherwise) under the Corporations Act 2001 is acting; or
(c) that is under administration
within the meaning of the Corporations Act 2001; or
(d) that has executed a deed of
company arrangement within the meaning of the Corporations Act 2001 that
has not yet terminated; or
(e) that has entered into with another
person a compromise or arrangement within the meaning of the Corporations
Act 2001 the administration of which has not been concluded;
and includes a body corporate that has, under the law of a
State or internal Territory (other than the Corporations Act 2001) or a
law of an external Territory or of a foreign country, a similar status to a
body corporate to which paragraph (a), (b), (c), (d) or (e) applies.
holder of a tradex order means the person on
whose application the order was made.
identity card means an identity card issued
under subsection 45(2).
ineligible: a person is ineligible to apply
for, or to hold, a tradex order if the person is an insolvent under
administration or an externally‑administered body corporate.
infringement notice means a notice served
under section 33.
insolvent under administration means a person
who:
(a) under the Bankruptcy Act 1966,
or the law of an external Territory, is a bankrupt in respect of a bankruptcy
from which the person has not been discharged; or
(b) under the law of a foreign
country, or the law of an external Territory, has the status of an undischarged
bankrupt;
and includes a person who has executed a personal
insolvency agreement under:
(c) Part X of the Bankruptcy
Act 1966; or
(d) the corresponding provisions of
the law of an external Territory or the law of a foreign country;
where the terms of the agreement have not been fully
complied with.
kind or description of goods includes a kind
or description expressed by reference to the tariff classification in the Customs
Tariff Act 1995 by which goods of that kind or description are classified.
magistrate means any magistrate, whether
remunerated by salary or not.
nominated goods means:
(a) in relation to goods of a kind or
description in respect of which an application has been made for a tradex
order—eligible goods of the kind or description specified in the application
that are intended to be imported by the applicant; or
(b) in relation to goods of a kind or description
in respect of which a tradex order is in force—eligible goods of the kind or
description specified in the order that are intended to be imported, or are
imported, by the holder of the order.
occupier of premises means the person in
charge, or apparently in charge, of the premises.
offence against this Act includes an offence
against section 6, 7 or 7A, or subsection 86(1), of the Crimes Act 1914
in relation to an offence against this Act.
premises includes any place (whether enclosed
or built on, or not) and, in particular, includes:
(a) a building, wharf or other
structure; and
(b) a vessel; and
(c) an aircraft; and
(d) a vehicle; and
(e) a part of premises (including a
part of any of the above).
Register means the Register of Tradex Orders
kept under section 9.
required records has the meaning given by
subsection 22(2).
Secretary means Secretary of the Department.
Texco Scheme means the administrative scheme
of that name that was in force immediately before the commencement of this Act
under Customs By‑law 9640056 for the purposes of item 21 of Schedule 4
to the Customs Tariff Act 1995.
tradex duty means the tax known as tradex
duty that is payable under section 21, as imposed by the Tradex Duty
Imposition (Excise) Act 1999, the Tradex Duty Imposition (Customs) Act
1999 or the Tradex Duty Imposition (General) Act 1999.
tradex number has the meaning given by
paragraph 11(7)(a).
tradex order means an order made under
section 11 that is in force.
Tradex Scheme means the scheme for the making
of tradex orders that is established by this Act.
5 Core
criteria for applying for or holding a tradex order
(1) The core criteria for the
making by a person of an application for, or an application for a variation of,
a tradex order are:
(a) that the person intends to import
nominated goods that are to be subsequently exported; and
(b) that the requirements of
regulations made for the purposes of this paragraph are met in relation to the
nominated goods; and
(c) that the nominated goods will be
exported within one year after their entry for home consumption; and
(d) that adequate record‑keeping
and accounting systems are in place in respect of nominated goods until they
are exported.
(2) The core criteria for the
holding by a person of a tradex order are:
(a) that the holder:
(i) intends to import
nominated goods that are to be subsequently exported; or
(ii) has imported, and
intends to continue to import, nominated goods that have been, or are to be,
subsequently exported; and
(b) that the requirements of
regulations made for the purposes of this paragraph have been met in relation
to all of the nominated goods that have been exported; and
(c) that every exportation of
nominated goods occurred within one year after their entry for home
consumption; and
(d) that adequate record‑keeping
and accounting systems are in place in respect of nominated goods until they
are exported.
Note: The Secretary has power to extend periods
referred to in paragraphs (1)(c) and (2)(c) (see section 43).
6
Disqualifying circumstances
Disqualifying circumstances
exist in relation to a person who is the holder of a tradex order if:
(a) any of the core criteria for the
holding of the order have not been complied with, except where the only effect
of the non‑compliance was to render the person liable to pay tradex duty
and the person has paid the duty in accordance with section 21; or
(b) the person gave information, or a
document, to the Secretary or to an authorised officer in connection with an
application for, or for a variation of, the order or an application for, or for
a variation of, another tradex order, being information or a document that the
person knew, or ought to have known, to be false or misleading in a material
particular; or
(c) the person was ineligible to apply
for the order; or
(d) the person is ineligible to hold
the order; or
(e) the person has failed to pay
tradex duty in accordance with section 21 in respect of:
(i) nominated goods; or
(ii) nominated goods in
relation to another tradex order that is or has been held by the person.
7 Act
not to extend to external Territories
This Act does not extend to the external
Territories.
8 Act
not to bind Crown
This Act does not bind the Crown in any
of its capacities.
Part 2—Register of Tradex Orders
9
Secretary to ensure that Register is kept
(1) The Secretary must cause a Register of
Tradex Orders to be kept for the purposes of this Act.
(2) The Register is to contain such
particulars, and to be kept in such form, as the Secretary considers
appropriate.
(3) The Register may be kept in an electronic
form.
(4) If the Secretary finds out that any
particulars entered in the Register are incorrect, whether because a change has
occurred in the matter to which the particulars relate or for any other reason,
the Secretary must, as soon as practicable, cause the correct particulars to be
entered in the Register.
(5) The Secretary must cause the holder of a
tradex order to be notified in writing of the particulars entered in the
Register in respect of the order.
(6) If a change occurs in any of the
particulars that:
(a) are entered in the Register in
respect of a tradex order; and
(b) have been notified to the holder
of the order under subsection (5);
the holder must, within 14 days after the change occurs,
notify the Secretary in writing of the details of the change.
Note: The Secretary has power to extend a period
referred to in subsection (6) (see section 43).
Part 3—Making of tradex orders
10
Application for tradex order
(1) A person who proposes to import eligible
goods of a particular kind or description may apply for a tradex order in
relation to goods of that kind or description.
(2) The application must:
(a) be in writing; and
(b) be in accordance with the approved
form; and
(c) specify the kind or description of
goods to which the application relates; and
(d) contain such other information as
the form requires; and
(e) be signed in the manner indicated
in the form; and
(f) be lodged with the Secretary.
(3) The Secretary may at any time, by written
notice given to the applicant, require the applicant to give to the Secretary
in writing, within a period (being a reasonable period) stated in the notice,
any of the following:
(a) particulars of proposed export
activities that would, if the order were not made, make the nominated goods
eligible for drawback when they are exported;
(b) particulars of the measures
proposed to be taken to ensure that the requirements of the regulations will be
met in relation to the nominated goods;
(c) particulars of the record‑keeping
or accounting systems that are in place in respect of the nominated goods until
they are exported;
(d) any other information relevant to
the Secretary’s consideration of the application.
Note: The Secretary has power to extend a period
referred to in subsection (3) (see section 43).
11
Making of tradex order
(1) Subject to subsection (2), if the
Secretary is satisfied that:
(a) the core criteria for the making
of the application are complied with in respect of some or all of the nominated
goods; and
(b) the applicant is not ineligible to
apply for the tradex order; and
(c) the applicant has not given to the
Secretary or to an authorised officer for the purposes of this Act any
information or document that the applicant knew, or ought to have known, to be
false or misleading in a material particular; and
(d) the applicant has not failed to
pay tradex duty in accordance with section 21 in respect of nominated
goods in relation to another tradex order that is or has been held by the
applicant;
the Secretary must make an order specifying the nominated
goods in respect of which the Secretary is satisfied as mentioned in paragraph (a).
(2) The Secretary may refuse the application,
wholly or partly, except in so far as he or she is required to make a tradex
order in respect of the application under subsection (1).
(3) The Secretary must cause a written notice
of his or her decision on the application to be given to the applicant.
(4) If a notice under subsection (3) has
not been received by the applicant within 40 days after the day on which the
application was lodged, the Secretary is taken to have refused the application.
Note: For the right to have a decision refusing the
application reconsidered, see section 39.
(5) If the decision is to refuse the
application wholly or partly, the notice of the decision given under subsection (3)
must:
(a) set out the Secretary’s findings
on material questions of fact; and
(b) refer to the evidence or other
material on which those findings were based; and
(c) give the reasons for the decision.
(6) A tradex order must be in writing signed
by the Secretary and comes into force on a date stated in the order.
(7) When the Secretary makes a tradex order,
the Secretary must:
(a) cause a distinguishing number (the
tradex number) to be allocated to the order; and
(b) cause particulars of the order and
the tradex number to be entered in the Register; and
(c) include in the notice of the
decision given under subsection (3) (in addition to any other matters that
may be required under subsection (5) to be included in the notice)
particulars of:
(i) the tradex number
allocated to the order; and
(ii) the date on which the
order comes into force; and
(iii) the nominated goods to
which the order applies.
Part 4—Variation of tradex orders
12
Application for variation of tradex order
(1) The holder of a tradex order may apply
for a variation of the order in relation to goods of a particular kind or
description.
(2) The variation applied for must be a
variation by way of either or both of the following:
(a) the exclusion from the order of
goods of a kind or description specified in the order;
(b) the inclusion in the order of
eligible goods of a kind or description not already specified in the order.
(3) The application must:
(a) be in writing; and
(b) be in accordance with the approved
form; and
(c) state the tradex number allocated
to the order; and
(d) set out particulars of the kind or
description of goods that are to be excluded from, or included in, the order by
the proposed variation; and
(e) contain such other information as
the form requires; and
(f) be signed in the manner indicated
in the form; and
(g) be lodged with the Secretary.
(4) The Secretary may at any time, by written
notice given to the applicant, require the applicant to give to the Secretary
in writing, within a period (being a reasonable period) stated in the notice,
any information relevant to the Secretary’s consideration of the application.
Note: The Secretary has power to extend a period
referred to in subsection (4) (see section 43).
13
Grant or refusal of application for variation
(1) If:
(a) the application is or includes an
application for the exclusion from the tradex order of goods of a particular
kind or description; and
(b) the Secretary is satisfied that,
if goods of that kind or description are excluded from the order, no
disqualifying circumstances will exist in relation to the applicant;
the Secretary must grant the application in so far as it
is an application for the exclusion of goods of that kind or description.
(2) If:
(a) the application is or includes an
application for the inclusion in the tradex order of goods of a particular kind
or description; and
(b) the Secretary is satisfied that
the core criteria for the making of the application are complied with in
respect of some or all of those goods; and
(c) the Secretary is satisfied that no
disqualifying circumstances exist in relation to the applicant;
the Secretary must grant the application in so far as it
is an application for the inclusion of goods in respect of which the Secretary
is satisfied as mentioned in paragraph (b).
(3) The Secretary may refuse the application
wholly or partly, except in so far as he or she is required to grant the
application under subsection (1) or (2).
(4) The Secretary must cause a written notice
of his or her decision on the application to be given to the applicant.
(5) If a notice under subsection (4) has
not been received by the applicant within 40 days after the day on which the
application was lodged, the Secretary is taken to have refused the application.
Note: For the right to have a decision refusing the
application reconsidered, see section 39.
(6) If the decision is to refuse the application
wholly or partly, the notice of the decision given under subsection (4)
must:
(a) set out the Secretary’s findings
on material questions of fact; and
(b) refer to the evidence or other
material on which those findings were based; and
(c) give the reasons for the decision.
(7) If the Secretary decides to grant the
application wholly or partly, the Secretary must vary the tradex order so as to
give effect to the decision.
(8) A variation of a tradex order must be in
writing signed by the Secretary and comes into force on a date stated in the
instrument of variation.
(9) If the Secretary varies the tradex order,
the Secretary:
(a) must cause particulars of the
variation to be entered in the Register; and
(b) include in the notice given under subsection (4)
(in addition to any other matters that may be required under subsection (6)
to be included in the notice) particulars of:
(i) the kind or
description of goods that have been excluded from, or included in, the order;
and
(ii) the date on which the
variation comes into force.
Part 5—Revocation, suspension and cessation of tradex orders
14
Request by holder for revocation of tradex order
(1) The holder of a tradex order may request
the Secretary to revoke the order.
(2) The request must:
(a) be in writing; and
(b) be in accordance with the approved
form; and
(c) state the tradex number allocated
to the tradex order; and
(d) contain such information as the
form requires; and
(e) be signed in the manner indicated
in the form; and
(f) be lodged with the Secretary.
15
Holder to notify ineligibility
(1) If the holder of a tradex order:
(a) becomes aware that the holder was
ineligible to apply for the order; or
(b) becomes ineligible to hold the
order;
the holder must, within 7 days after becoming aware as
mentioned in paragraph (a) or becoming ineligible as mentioned in paragraph (b),
give notice to the Secretary in accordance with subsection (2).
Note: The Secretary has power to extend the period
referred to in subsection (1) (see section 43).
(2) The notice must:
(a) be in writing; and
(b) be in accordance with the approved
form; and
(c) state the tradex number allocated
to the order; and
(d) state that the holder was
ineligible to apply for the order, or has become ineligible to hold the order,
as the case may be; and
(e) set out particulars of the
circumstances that gave rise to the ineligibility; and
(f) contain such other information as
the form requires; and
(g) be signed in the manner indicated
in the form; and
(h) be lodged with the Secretary.
16
Notice to show cause why tradex order should not be revoked
(1) If it appears to the Secretary that any
circumstances (other than circumstances specified in a notice given to the
Secretary under section 15) that may be disqualifying circumstances exist
in relation to the holder of a tradex order, the Secretary must cause to be
given to the holder a written notice:
(a) setting out particulars of the
circumstances; and
(b) inviting the holder to give to the
Secretary, within 28 days after the day on which the notice is received by the
holder, written evidence:
(i) that the circumstances
do not exist; or
(ii) if the circumstances
exist—that they are not disqualifying circumstances.
Note: The Secretary has power to extend the period
referred to in paragraph 16(1)(b) (see section 43).
(2) If the Secretary is of the opinion that
the holder of a tradex order does not intend to export nominated goods to which
the order applies, the Secretary may give the holder a written notice:
(a) setting out the Secretary’s
opinion; and
(b) inviting the holder to give the
Secretary, within 28 days after the day on which the notice is received by the
holder, written evidence that the holder intends to export the nominated goods.
Note: The Secretary has power to extend the period
referred to in paragraph 16(2)(b) (see section 43).
17
Suspension of tradex order
(1) If the Secretary:
(a) decides to give a notice under
section 16 to the holder of a tradex order; and
(b) believes on reasonable grounds
that:
(i) any disqualifying
circumstances exist in relation to the holder; or
(ii) the holder does not
intend to export the nominated goods; and
(c) considers that it is appropriate
to take action under this section;
the Secretary may suspend the order.
Note: For the right to have a decision suspending a
tradex order reconsidered, see section 39.
(2) The Secretary must cause a written notice
of:
(a) his or her decision to suspend the
tradex order, and the reasons for the decision; and
(b) the date on which the suspension
comes into force;
to be given to the holder of the order. The notice may be
included in the notice given under section 16.
(3) A tradex order that has been suspended is
taken not to be in force during the period of the suspension.
(4) If the Secretary believes that it is
appropriate to do so, the Secretary may remove the suspension of a tradex
order.
(5) The Secretary must cause a written notice
of:
(a) his or her decision to remove the
suspension of a tradex order; and
(b) the date on which the removal of
the suspension comes into force;
to be given to the holder of the order.
(6) The suspension, or the removal of the
suspension, of a tradex order must be in writing signed by the Secretary and
comes into force on a date stated in the instrument of suspension or removal.
(7) The Secretary must cause particulars of
the suspension, or of the removal of the suspension, and the date on which the
suspension or removal comes into force, to be entered in the Register.
(8) The suspension of a tradex order, if not
sooner removed, ceases to be in force if the order is revoked.
18
Revocation of tradex order following request under section 14
(1) As soon as practicable after a request
for the revocation of a tradex order is lodged by the holder of the order under
section 14, the Secretary must:
(a) revoke the order; and
(b) cause written notice of the
revocation, and the date on which the revocation comes into force, to be given
to the person who made the request; and
(c) cause to be entered in the
Register a statement that the order has been revoked and the date on which the
revocation comes into force.
(2) The revocation of a tradex order under
this section must be in writing signed by the Secretary and comes into force on
a date stated in the instrument of revocation.
19
Revocation of tradex order following notice given to Secretary under section 15
or given by Secretary under section 16
(1) If:
(a) the holder of a tradex order has
given a notice to the Secretary under section 15; or
(b) a notice is given to the holder of
a tradex order under subsection 16(1) and the holder does not satisfy the
Secretary, within the period stated in the notice, that the circumstances
specified in the notice:
(i) do not exist; or
(ii) if they exist—are not
disqualifying circumstances;
the Secretary must revoke the order.
Note: A decision under subsection (1) to revoke
a tradex order is reviewable (see section 39).
(1A) If:
(a) the Secretary has given the holder
of a tradex order a notice under subsection 16(2); and
(b) the holder does not satisfy the
Secretary, within the period stated in the notice, that the holder intends to
export the goods referred to in the notice;
the Secretary may revoke the tradex order.
Note: A decision under subsection (1A) to
revoke a tradex order is reviewable (see section 39).
(2) The revocation of a tradex order under
this section must be in writing signed by the Secretary and comes into force on
a date stated in the instrument of revocation.
(3) The Secretary must cause a written notice
of his or her decision to revoke the order to be given to the holder of the
order.
(4) The notice of the decision must:
(a) state the day on which the
revocation comes into force; and
(b) set out the Secretary’s findings
on material questions of fact; and
(c) refer to the evidence or other
material on which those findings were based; and
(d) give the reasons for the decision.
(5) If a tradex order is revoked under this
section, the Secretary must cause to be entered in the Register a statement
that the order has been revoked and the date on which the revocation comes into
force.
19A
Revocation of tradex order if holder cannot be contacted
(1) If, after reasonable attempts to contact
the holder of a tradex order, the Secretary is satisfied that the holder cannot
be contacted, the Secretary may revoke the tradex order.
Note: A decision under subsection (1) to revoke
a tradex order is reviewable (see section 39).
(2) The revocation of the tradex order:
(a) must be done by written
instrument; and
(b) comes into force on the date
specified in the instrument.
(3) If a tradex order is revoked under this
section, the Secretary must enter in the Register a statement that the order
has been revoked and the date on which the revocation comes into force.
20
Where individual holder dies or incorporated holder ceases to exist
If the Secretary becomes aware that the
Register contains particulars of a tradex order that was held by an individual
who has died or by a body corporate that has ceased to exist, the Secretary
must cause to be entered in the Register a statement that the individual has
died or the body corporate has ceased to exist and the date on which the
individual died or the body corporate ceased to exist.
Part 6—Liability to pay tradex duty in respect of nominated goods
in certain circumstances
21
Liability of holder to pay tradex duty
(1) This section applies if, in respect of
either of the following:
(a) goods that are nominated goods in
relation to a tradex order;
(b) goods that are nominated goods in
relation to a suspended or revoked tradex order and that were imported before
that suspension or revocation;
any of the following circumstances occur:
(c) the goods are consumed or used by
the holder in Australia;
(d) the goods are disposed of or
otherwise dealt with in any way by the holder for the purpose of being consumed
or used by another person in Australia;
(e) a requirement of the regulations
is not met in relation to the goods;
(f) the goods are not exported before
the end of the period that applies under paragraph 5(2)(c) (otherwise than
because the goods were accidentally destroyed or accidentally damaged).
(2) The holder of the order is liable to pay
to the Commonwealth, in accordance with the regulations, tradex duty in respect
of the goods.
(3) The tradex duty is payable within 28 days
after the earliest of whichever of the following days is applicable:
(a) the day on which the goods are
consumed or used as mentioned in paragraph (1)(c);
(b) the day on which the goods are
disposed of or otherwise dealt with as mentioned in paragraph (1)(d);
(c) the day on which the requirement
of the regulations is not met in relation to the goods;
(d) the last day of the period
referred to in paragraph (1)(f).
Note: The Secretary has power to extend the period
referred to in subsection (3) (see section 43).
(4) An amount of tradex duty that is not paid
within the period referred to in subsection (3) is a debt due to the
Commonwealth and is recoverable by action in any court of competent
jurisdiction.
(5) A person who fails to pay an amount of
tradex duty in accordance with subsection (3) continues to be liable to
pay the duty even if a person is convicted of an offence, or pays a penalty
under Part 10, in respect of the failure to pay the amount.
(6) In this section:
consumed or used means consumed or used
otherwise than as permitted by regulations made for the purposes of this
section.
holder includes the person who was the holder
of a suspended or revoked tradex order.
Part 7—Keeping of records
22
Holder of tradex order to keep records in relation to nominated goods
(1) If any nominated goods in relation to a
tradex order are entered for home consumption, the holder of the order must
keep, or ensure that another person keeps on behalf of the holder, the required
records in relation to the goods in accordance with section 23.
(2) The required records are
records containing full particulars of the entry of the goods for home
consumption and all subsequent dealings with, and things done in respect of,
the goods by the holder, including particulars of:
(a) any incorporation of the goods in
other goods;
(b) the storage of the goods, or of
any goods in which they are incorporated, while they are in the possession,
custody or ownership of the holder;
(c) if the goods, or any goods in
which they are incorporated, are consumed or used in Australia by the
holder—the consumption or use;
(d) if the goods, or any goods in
which they are incorporated, are disposed of, or otherwise dealt with, by the
holder for the purpose of being consumed or used by any other person in
Australia—the disposal or other dealing;
(e) the exportation of the goods or of
any goods in which they are incorporated;
(f) any payment of tradex duty in
respect of the goods;
(g) any other matters specified in the
regulations.
23
Provisions relating to keeping of required records
(1) The required records in relation to goods
are to be kept at a place in Australia.
(2) The required records in relation to goods
are to be kept:
(a) in writing in the English
language; or
(b) in another form (including an
electronic form) that enables them to be readily converted into writing in the
English language.
(3) The required records in relation to goods
are to be kept for 5 years after the last occasion on which any act was done in
relation to the goods by, or at the request or direction of, the holder of the
order.
Part 8—Audit
24
Audit powers
(1) An authorised officer has the powers
conferred by this section but may not exercise the power to enter premises:
(a) except with the consent of the
occupier of the premises or under the authority of a monitoring warrant issued
under section 25; and
(b) if the occupier of the premises
requires the officer to produce his or her identity card for inspection by the
occupier—unless the officer complies with the requirement.
(2) An authorised officer has power to do all
or any of the following in respect of the holder of a tradex order:
(a) to require the holder, within a
period specified by the officer, to make available for examination by the
officer in accordance with subsection (3) specified documents:
(i) which are in the
holder’s possession, or to which the holder has access; and
(ii) which are relevant to
whether any disqualifying circumstances exist in relation to the holder;
(b) to require the holder to
demonstrate to the officer the operation of any record‑keeping or
accounting system used in respect of the nominated goods;
(c) to conduct testing of any such
record‑keeping or accounting system in order to determine its accuracy in
respect of the nominated goods;
(d) if the holder has indicated, or
documents made available by the holder indicate, that nominated goods have
been, are, or may be, on particular premises—subject to subsection (1), to
enter the premises;
(e) to search, with such assistance as
is necessary, for any nominated goods on premises so entered and:
(i) to examine any such
goods that are on the premises and, for that purpose, to open (including to
break open) any container in which any such goods are, or may be, stored; and
(ii) to take and retain
samples of any such goods;
(f) to examine, and to make and
retain copies of, or take and retain extracts from, any documents made available
in accordance with a requirement under paragraph (a) or found on premises
entered under paragraph (d);
(g) to require the holder, an agent of
the holder, or an employee of the holder or of such an agent, to answer any
questions about:
(i) any documents referred
to in paragraph (f); or
(ii) any record‑keeping
or accounting system referred to in paragraph (b); or
(iii) the nominated goods.
Note: The Secretary has power to extend the period
specified in a requirement made under paragraph (2)(a) (see section 43).
(3) A requirement under paragraph (2)(a)
to make documents available for examination by an authorised officer must be
complied with either:
(a) by sending or giving the documents
(or copies of the documents that are certified, in a manner acceptable to the
officer, to be true copies) to the officer for examination; or
(b) by notifying the officer that the
documents may be examined, at any reasonable time, by the officer at the
premises where they are kept and allowing the officer so to examine them.
(4) The occupier of premises entered by an
authorised officer under paragraph (2)(d) must provide the officer with
all reasonable facilities for the effective exercise of the officer’s powers.
25
Monitoring warrants
(1) An authorised officer may apply to a
magistrate for a monitoring warrant under this section in relation to
particular premises.
(2) Subject to subsection (3), the
magistrate is to issue a monitoring warrant if the magistrate is satisfied, by
information on oath or affirmation, that:
(a) the occupier of the premises has
not consented to the officer entering the premises; and
(b) it is reasonably necessary that
the officer should have access to the premises for the purpose of finding out
whether any nominated goods, or documents relating to any nominated goods, are
on the premises.
(3) The magistrate must not issue a
monitoring warrant unless the officer or another person has given the
magistrate, either orally (on oath or affirmation) or by affidavit, such
further information as the magistrate requires about the grounds on which the
issue of the warrant is being sought.
(4) The monitoring warrant must:
(a) authorise an authorised officer
named in the warrant, with such assistance and by such force as is necessary
and reasonable, from time to time, while the warrant remains in force:
(i) to enter the premises;
and
(ii) to exercise powers of
the kind set out in paragraphs 24(2)(b), (c), (e), (f) and (g) in relation to
the premises; and
(b) state whether an entry under the
warrant is authorised to be made at any time of the day or night or during
specified hours of the day or night; and
(c) specify the day (not more than 7
days after the day on which the warrant is issued) on which the warrant ceases
to have effect; and
(d) state the purpose for which the
warrant is issued.
Part 9—Offences
26
Failure to notify details of change in registered particulars
(1) A person is guilty of an offence if:
(a) the person is the holder of a
tradex order; and
(b) the person is required by
subsection 9(6) to notify the Secretary of the details of a change in any of
the particulars entered in the Register in respect of the order; and
(c) the person fails to comply with
the requirement.
Maximum penalty: 30 penalty units.
(2) For the purposes of an offence against subsection (1),
strict liability applies to the physical element of the offence, that the
requirement is a requirement made by subsection 9(6).
Note: For strict liability, see
section 6.1 of the Criminal Code.
27
Failure to notify ineligibility
(1) A person is guilty of an offence if:
(a) the person is the holder of a
tradex order; and
(b) the person is required by section 15
to give a notice to the Secretary; and
(c) the person fails to comply with
the requirement.
Maximum penalty: 30 penalty units.
(2) For the purposes of an offence against subsection (1),
strict liability applies to the physical element of the offence, that the
requirement is a requirement made by section 15.
Note: For strict liability, see
section 6.1 of the Criminal Code.
28
Failure to pay tradex duty
(1) A person is guilty of an offence if:
(a) the person is liable under
subsection 21(2) to pay to the Commonwealth tradex duty in respect of goods;
and
(b) the person fails to pay the duty
within the period applicable under subsection 21(3).
Maximum penalty: An amount equal to the amount of tradex
duty that was not paid by the person within the period applicable under
subsection 21(3).
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For the meaning of strict liability,
see section 6.1 of the Criminal Code.
29
Failure to keep records
(1) A person is guilty of an offence if:
(a) the person is required by section 22
to keep records in respect of any goods; and
(b) the person fails to comply with
the requirement.
Maximum penalty: 30 penalty units.
(2) For the purposes of an offence against subsection (1),
strict liability applies to the physical element of the offence, that the
requirement is a requirement made by section 22.
Note: For strict liability, see
section 6.1 of the Criminal Code.
30
Failure to comply with requirement made by authorised officer
(1) A person is guilty of an offence if:
(a) a requirement is made of the
person by an authorised officer under paragraph 24(2)(a), (b) or (g); and
(b) the person refuses or fails to
comply with the requirement.
Maximum penalty: 60 penalty units.
(2) A person is not entitled:
(a) to refuse to answer a question
that he or she is required by an authorised officer to answer under paragraph
24(2)(g); or
(b) to refuse to make available for
examination documents that he or she is required to make available by an
authorised officer under paragraph 24(2)(a);
on the ground that the answer to the question or the
making available of the documents, as the case may be, might tend to
incriminate him or her.
(3) However, any answer so given, or the
making available of any such documents, and any information or thing (including
any document) obtained as a direct or indirect result of the giving of the
answer or the making available of the documents, is not admissible in evidence
against the person in:
(a) any criminal proceedings other
than proceedings for an offence against section 32; or
(b) any civil proceedings.
31
Failure by occupier of premises to provide facilities or assistance for
authorised officer
The occupier of premises entered by an
authorised officer under paragraph 24(2)(d) is guilty of an offence if the
occupier fails to provide the officer with all reasonable facilities and
assistance for the effective exercise of the officer’s powers.
Maximum penalty: 10 penalty units.
32
False or misleading statements
A person is guilty of an offence if:
(a) the person answers a question
asked by an authorised officer or gives a document to, or makes a document
available for examination by, the Secretary or an authorised officer; and
(b) the answer or the document is
false or misleading in a material particular; and
(c) the person knows that the answer
or document is false or misleading in that particular.
Maximum penalty: Imprisonment for 12 months.
Note: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum
term of imprisonment (in months) by 5, and then multiplying the amount of a
penalty unit by the resulting number. The amount of a penalty unit is stated in
section 4AA of that Act.
Part 10—Penalty in lieu of prosecution
33
When an infringement notice can be served
If the Secretary has reason to believe
that a person has committed an offence against section 28, the Secretary
may cause an infringement notice to be served on the person in accordance with
this Part.
34
Matters to be included in an infringement notice
(1) An infringement notice must:
(a) state that it is being served on
behalf of the Secretary; and
(b) set out particulars of the alleged
offence and the maximum penalty that a court could impose for the alleged
offence; and
(c) if there is still any unpaid
amount of tradex duty—state that the obligation to pay that amount continues
despite the service of the infringement notice; and
(d) specify a penalty that is payable
under the notice in respect of the alleged offence; and
(e) state that, if:
(i) the person on whom the
notice is served does not wish the matter to be dealt with by a court; and
(ii) the person has paid
any unpaid amount of tradex duty or pays any unpaid amount of tradex duty
within the period of 28 days after the date of service of the notice;
the person may pay to the
Secretary within that period the amount of the penalty specified in the notice;
and
(f) state where and how the penalty
may be paid.
Note: The Secretary has power to extend periods
stated in notices given under paragraph (1)(e) (see section 43).
(2) An infringement notice may contain any
other matters that the Secretary considers necessary.
(3) The penalty to be specified in an
infringement notice under paragraph (1)(d) is an amount equal to one‑fifth
of the tradex duty that was not paid by the person on whom the notice is served
within the period applicable under subsection 21(3).
35
Withdrawal of infringement notice
(1) The Secretary may withdraw an
infringement notice served on a person by causing written notice of the
withdrawal to be served on the person within the period within which the
penalty specified in the infringement notice is required to be paid.
(2) The matters to which the Secretary may
have regard in deciding whether or not to withdraw an infringement notice
include, but are not limited to, the following:
(a) whether the person has previously
been convicted of an offence against this Act;
(b) the circumstances in which the
offence specified in the notice is alleged to have been committed;
(c) whether the person has previously
been served with an infringement notice in respect of which the person paid the
penalty specified in the notice.
(3) If:
(a) the person pays the penalty
specified in the infringement notice within the period within which the penalty
is required to be paid; and
(b) the notice is withdrawn after the
person pays the penalty;
the Secretary must refund to the person, out of money
appropriated by the Parliament for the purpose, an amount equal to the amount
paid.
36
What happens if unpaid tradex duty and penalty are paid
(1) This section applies if:
(a) an infringement notice is served
on a person; and
(b) the person pays any unpaid tradex
duty and the penalty specified in the notice before the end of the period
referred to in paragraph 34(1)(e); and
(c) the infringement notice is not
withdrawn.
(2) Any liability of the person for the
offence specified in the notice is taken to be discharged.
(3) Further proceedings cannot be taken
against the person for the offence.
(4) The person is not regarded as having been
convicted of the offence.
37
More than one infringement notice may not be served for the same offence
This Part does not permit the service of
more than one infringement notice on a person for the same offence.
38
Infringement notice not required to be served etc.
This Part does not:
(a) require an infringement notice to
be served on a person in relation to an offence against section 28; or
(b) affect the liability of a person
to be prosecuted for an offence against section 28 if:
(i) an infringement notice
is not served on the person in relation to the offence; or
(ii) an infringement notice
served on the person in relation to the offence has been withdrawn; or
(c) affect the liability of a person
to be prosecuted for an offence against section 28 if the person does not
comply with an infringement notice served on the person in relation to the offence;
or
(d) limit the amount of the penalty
that may be imposed by a court on a person convicted of an offence against
section 28.
Part 11—Miscellaneous
39
Reconsideration of certain decisions
(1) If a decision is made by the Secretary:
(a) under section 11 refusing
wholly or partly an application for a tradex order; or
(b) under section 13 refusing
wholly or partly an application for the variation of a tradex order;
the applicant may apply to the Secretary, within 28 days
after the day on which the notice of the decision was given to the applicant,
for reconsideration of the decision.
(2) If a decision is made by the Secretary:
(a) under section 17 suspending a
tradex order; or
(b) under section 19 or 19A revoking
a tradex order;
the holder of the order may apply to the Secretary, within
28 days after the day on which the notice of the decision was given to the
holder, for reconsideration of the decision.
(3) An application for reconsideration must:
(a) be in writing; and
(b) be in accordance with the approved
form; and
(c) include the grounds on which the
person seeks the reconsideration of the decision (whether or not those grounds
had previously been considered); and
(d) be signed in the manner indicated
in the form; and
(e) be lodged with the Secretary.
(4) The Secretary must cause to be recorded
the day on which an application for reconsideration of a decision is lodged.
(5) The Secretary must decide, not later than
28 days after the day on which the application was lodged, whether to affirm
the original decision or to substitute any other decision that the Secretary
might have made.
(6) In reconsidering a decision, the
Secretary may have regard to:
(a) the application for
reconsideration and any submissions, information, documents and materials that
the Secretary was entitled to take into account in making the decision; and
(b) any new matter produced to the
Secretary by the applicant for reconsideration other than matter that was not
produced to the Secretary before the end of the period within which the
application for reconsideration was required to be made.
(7) If the Secretary fails to make a decision
on the reconsideration within the period referred to in subsection (5),
the Secretary is taken, for the purposes of the reconsideration, to have made,
at the end of that period, a decision to affirm the original decision.
(8) The Secretary must cause to be given to
the applicant a written notice:
(a) of his or her decision on the
application for reconsideration; or
(b) if subsection (7) applied—of
the decision that is taken by that subsection to have been made.
Note 1: The Secretary has power to extend periods
referred to in subsections (1) and (2) (see section 43).
Note 2: For the right to have a decision on
reconsideration reviewed by the Administrative Appeals Tribunal, see section 40.
40
Review of decisions by Administrative Appeals Tribunal
Application may be made to the
Administrative Appeals Tribunal for the review of a decision by the Secretary
under section 39 on a reconsideration of:
(a) a decision of the Secretary under
section 11 refusing wholly or partly an application for a tradex order; or
(b) a decision of the Secretary under
section 13 refusing wholly or partly an application for the variation of a
tradex order; or
(c) a decision of the Secretary under
section 17 suspending a tradex order; or
(d) a decision of the Secretary under
section 19 or 19A revoking a tradex order.
Note: Under section 27A of the Administrative
Appeals Tribunal Act 1975, the decision‑maker must give to persons
whose interests are affected by the decision a notification of the making of
the decision and of their right to have the decision reviewed. In notifying any
such persons, the decision‑maker must have regard to the Code of Practice
determined under section 27B of that Act.
40A
Evidentiary matters in relation to tradex duty liability
(1) If the Secretary believes on reasonable
grounds that the circumstance referred to in paragraph 21(1)(f) has occurred in
respect of either of the following:
(a) goods that are nominated goods in
relation to a tradex order;
(b) goods that are nominated goods in
relation to a suspended or revoked tradex order and that were imported before
that suspension or revocation;
the Secretary may issue an evidentiary certificate stating
that the circumstance has occurred in relation to those goods.
(2) As soon as practicable after issuing the
certificate, the Secretary must give a copy to the person who is or was the
holder of the tradex order.
(3) The certificate is, in any proceedings,
prima facie evidence of the matters stated in the certificate.
41 Other
evidentiary matters
(1) At the hearing of a prosecution for an
offence against section 28, a certificate signed by the Secretary stating:
(a) that the Secretary did not allow a
further period under section 43 for payment under subsection 21(3) of the
tradex duty; and
(b) that the whole or a part of the
tradex duty was not paid within the period applicable under that subsection;
is evidence of those matters.
(2) At the hearing of a prosecution for an
offence against section 28, a certificate signed by the Secretary stating:
(a) that the Secretary allowed a
further period under section 43 for payment under subsection 21(3) of the
tradex duty; and
(b) that the whole or a part of the
tradex duty was not paid before the end of the further period;
is evidence of those matters.
(3) At the hearing of a prosecution for an
offence against section 28 in respect of which an infringement notice was
served, a certificate signed by the Secretary stating:
(a) that the Secretary did not allow a
further period under section 43 for payment under paragraph 34(1)(e) of
any unpaid tradex duty and the penalty specified in the notice; and
(b) that the whole or a part of any
unpaid tradex duty or of the penalty was not paid in accordance with the notice
within the period applicable under that paragraph;
is evidence of those matters.
(4) At the hearing of a prosecution for an
offence against section 28 in respect of which an infringement notice was
served, a certificate signed by the Secretary stating:
(a) that the Secretary allowed a
further period under section 43 for payment under paragraph 34(1)(e) of
any unpaid tradex duty and the penalty specified in the notice; and
(b) that the whole or a part of any
unpaid tradex duty or of the penalty was not paid in accordance with the notice
before the end of the further period;
is evidence of those matters.
(5) At the hearing of a prosecution for an
offence against section 28 in respect of which an infringement notice was
served, a certificate signed by the Secretary stating that the notice was
withdrawn on a day stated in the certificate is evidence of that fact.
(6) A document that purports to be a
certificate signed by the Secretary is taken to be such a certificate unless
the contrary is proved.
42
Payment by cheque
If a cheque is tendered to the Secretary
as payment of all or part of any tradex duty or as payment of all or part of
the penalty specified in an infringement notice, payment is taken not to have
been made unless the cheque is honoured upon presentation.
42A
Refund of overpaid tradex duty
(1) If an amount of tradex duty has been
overpaid by a person, the Commonwealth must, on request by the person, refund
the amount of the overpayment.
(2) A request by a person for the purposes of
subsection (1):
(a) must be made in writing; and
(b) must be made no later than 4 years
after the overpayment was made.
43
Power of Secretary to extend certain periods
(1) For the purposes of the application of a
provision of this Act referred to in subsection (4) in relation to a
person, the Secretary may, by writing, extend the period referred to in the
provision.
(2) The power of the Secretary under subsection (1)
to extend a period may be exercised before or after the end of the period.
(3) If the Secretary extends a period under subsection (1),
a reference in this Act or in a notice or other instrument under this Act to
the period is taken, in relation to the person, to be a reference to the period
as so extended.
(4) The periods that may be extended under subsection (1)
are the periods referred to in paragraphs 5(1)(c) and (2)(c), subsections 9(6),
10(3), 12(4) and 15(1), paragraphs 16(1)(b) and (2)(b), subsection 21(3), paragraphs
24(2)(a) and 34(1)(e) and subsections 39(1) and (2).
44
Power of Secretary to approve forms
The Secretary may, by writing, approve a
form for the purposes of a provision of this Act.
45
Authorised officers
(1) The Secretary may, by writing, appoint
persons to be authorised officers for the purposes of this Act.
(2) The Secretary may cause an identity card
to be issued to an authorised officer.
(3) An identity card:
(a) is to incorporate a recent
photograph of the person to whom it is issued; and
(b) is to contain:
(i) the person’s
signature; and
(ii) a unique number
assigned to the person by the Secretary; and
(c) is to state that the person is an
authorised officer for the purposes of this Act.
(4) A person who ceases to be an authorised
officer must, as soon as practicable after so ceasing, return his or her
identity card to the Secretary.
(5) A person is guilty of an offence if:
(a) an identity card was issued to the
person; and
(b) the person has ceased to be an
authorised officer; and
(c) the person fails to return the
identity card as required by subsection (4).
Maximum penalty: 1 penalty unit.
(6) In this section:
person means an individual.
46
Tradex order not transmissible
To avoid doubt, a tradex order is not
property that is transmissible by assignment, by contract, by will or by
operation of law.
47
Application of Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
48
Delegation
The Secretary may, by writing, delegate
to an officer of, or a person employed in, the Department all or any of the
Secretary’s functions and powers under this Act.
49
Regulations
The Governor‑General may make
regulations prescribing all matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act;
including regulations about:
(c) how applications, requests or
notices under this Act are to be made or given to or lodged with the Secretary
or an authorised officer; and
(d) how notices or other documents
under this Act are to be given by the Secretary or an authorised officer.
Part 12—Transitional
50
Existing users under the Texco Scheme
If a person:
(a) was, immediately before the
commencement of this Act, a user, in relation to goods of a particular kind or
description, under the Texco Scheme; and
(b) had, before that commencement,
given a written notice to the Secretary (however the notice was expressed) to
the effect that the person wished to import goods of that kind or description
under the Tradex Scheme;
the Secretary must, as soon as practicable, make under
section 11, in respect of goods of that kind or description, such a tradex
order as would have been made if the person had duly made an application for
the order under section 10.