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Tuesday, 21 May 1985
Page: 2280


Senator CHANEY (Leader of the Opposition)(10.00) —I move:

Page 11, paragraph (a), after proposed new sub-section 269P (2B), insert the following new sub-section:

' ''(2C) A revocation under sub-section (2B) of a concession order comes into effect on the date specified in the order of revocation, not being a date earlier than the date of the making of the order.'.

This amendment have been circulated by the Opposition and therefore honourable senators will have it. The amendment deals with the possibility that the clause in its amended form might still have retrospective operation. The clause which was in the Bill originally brought into the House of Representatives clearly permitted the revocation of a concession order back to the date of the making of the order. It was a matter of concern to the Opposition that that could mean that an innocent importer who imported goods knowing that the concession order had been made, and not aware that there might be some reason why the Minister might wish to revoke it, or why it might have been accidentally made, or whatever, might import the goods understanding them, according to the concession order, to be free of duty, to be subsequently faced by a bill for duty which became payable because of the revocation of the concession order back to the date of its being made.

In fact, the Government moved an amendment in the House of Representatives after, I think, we had indicated that we were concerned about it, but I think the Government had also had representations from other people who were concerned with the form of the legislation. The Minister might like to clarify the point but I understand that the Government moved an amendment to seek to remove the possible retrospective effect. In particular, the Government removed a proposal to have a sub-section (3A)-I quote now from the Bill as it was first introduced into the House of Representatives-which provided that a revocation under the relevant sub-section of a concession order:

. . . comes into effect on the date specified in the order of revocation, being the earliest date on which the description of the goods in the concession order was not a description of the goods in respect of which it was intended to make the concession order.

It is a fairly mind boggling provision but, quite simply, it was to give the Government the opportunity to select a date, going right back to the original date of the concession order, as being the date at which the revocation order ceased to have effect. The Government's removal of that is welcomed by the Opposition. If we read the remaining provisions in the Bill, in particular the provisions of proposed sub-section (2B), we find that it is at least arguable that the provision as it stands would also permit the retrospective revocation of a concession order and, as a result, an importer being made liable for duty.

I acknowledge that the Minister for Industry, Technology and Commerce (Senator Button), in his usual way, made officers of the Department available to discuss this legislation and to brief the Opposition on it. I discussed this proposal with the officers when the sections were in their original form as they were introduced in the House of Representatives. The point was made by the officers that it was possible that some person, knowing that in fact the concession order should not have been made, could take advantage of the concession order and gain a benefit which that person should not have. The example that the officials gave me, as I recall it, is quite practical and sensible. It was that somebody who knew that goods subject to the concession order were in fact available and manufactured in Australia could discover that a concession order had been issued, take advantage of it and obtain a commercial advantage in a way which was quite improper. That is a possibility, but it is also a possibility as things stand that a person who was acting in all innocence could be subject to the retrospective liability for duty. A person who has no such knowledge could be caught in a way which would be quite unreasonable and quite unfair.

Proposed sub-section (2B) provides that:

Where the Minister becomes satisfied that, because of an amendment of a Customs Tariff or otherwise-

and the words 'or otherwise' are, of course, virtually without limitation-

a concession order was not, on and after a particular date (which may be the date on which the concession order came into effect) a concession order in respect of the particular goods in respect of which it was intended to make the concession order, the Minister may, by order in writing, revoke the concession order.

The reference to the particular date as being the date on which the concession order came into effect at least gives rise to an arguable proposition that this means that the revocation order could go back to that date and give rise to the argument that the apparent duty free entry was not valid and that there ought to be a liability for duty. In those circumstances, and in order to remove any doubt, the Opposition proposes to insert new sub-section (2C), which provides very simply that:

A revocation under sub-section (2B) of a concession order comes into effect on the date specified in the order of revocation, not being a date earlier than the date of the making of the order.

At worst, I would have thought that this was a belt and braces amendment which makes quite evident the position that, I understand, the Government accepts-although I have not heard that directly from the Minister. I commend to the Committee the proposition that if there is an error of this sort, it is an error which ought to be retrieved prospectively and that since there is a possibility that a penalty could be imposed on people who innocently take advantage of a concession order, the amendments ought to be supported. I commend the amendments to the Committee.