TCO – USEFUL DEFINITIONS FROM CUSTOMS ACT 1901

Section 269B  Interpretation

substitutable goods, in respect of goods the subject of a TCO application or of a TCO, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put.

(3)   In determining whether goods produced in Australia are put, or are capable of being put, to a use corresponding to a use to which goods the subject of a TCO, or of an application for a TCO, can be put, it is irrelevant whether or not the first‑mentioned goods compete with the second‑mentioned goods in any market.

Section 269C  Interpretation—core criteria

For the purposes of this Part, a TCO application is taken to meet the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business.

Section 269D  Interpretation—goods produced in Australia

(1)   For the purposes of this Part, goods, other than unmanufactured raw products, are taken to be produced in Australia if:

(a)   the goods are wholly or partly manufactured in Australia; and

(b)   not less than ¼ of the factory or works costs of the goods is represented by the sum of:

(i)   the value of Australian labour; and

(ii)   the value of Australian materials; and

(iii)   the factory overhead expenses incurred in Australia in respect of the goods.

(2)   For the purposes of this Part, goods are to be taken to have been partly manufactured in Australia if at least one substantial process in the manufacture of the goods was carried out in Australia.

(3)   Without limiting the meaning of the expression substantial process in the manufacture of the goods, any of the following operations or any combination of those operations does not constitute such a process:

(a)   operations to preserve goods during transportation or storage;

(b)   operations to improve the packing or labelling or marketable quality of goods;

(c)   operations to prepare goods for shipment;

(d)   simple assembly operations;

(e)   operations to mix goods where the resulting product does not have different properties from those of the goods that have been mixed.

(4)   For the purposes of this section, the CEO may, by instrument in writing published in the Gazette:

(a)   direct that the factory or works cost of goods is to be determined in a specified manner; and

(b)   direct that the value of Australian labour, the value of Australian materials or the factory overhead expenses incurred in Australia in respect of goods is to be determined in a specified manner;

and those directions have effect accordingly.

(5)   The provisions of sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 48A, 48B, 49A and 50 of the Acts Interpretation Act 1901 apply in relation to directions given under subsection (4) as if:

(a)   references in those provisions to regulations were references to directions; and

(b)   references in those provisions to the repeal of a regulation were references to the revocation of a direction.

Section 269E  Interpretation—the ordinary course of business

(1)   For the purposes of this Part, other than section 269Q, goods (other than made‑to‑order capital equipment) that are substitutable goods in relation to goods the subject of a TCO application are taken to be produced in Australia in the ordinary course of business if:

(a)   they have been produced in Australia in the 2 years before the application was lodged; or

(b)   they have been produced, and are held in stock, in Australia; or

(c)   they are produced in Australia on an intermittent basis and have been so produced in the 5 years before the application was lodged;

and a producer in Australia is prepared to accept an order to supply them.

(2)   For the purposes of this Part, goods that:

(a)   are substitutable goods in relation to goods the subject of a TCO application; and

(b)   are made‑to‑order capital equipment;

are taken to be produced in Australia in the ordinary course of business if:

(c)   a producer in Australia:

(i)   has made goods requiring the same labour skills, technology and design expertise as the substitutable goods in the 2 years before the application was lodged; and

(ii)   could produce the substitutable goods with existing facilities; and

(d)   the producer is prepared to accept an order to supply the substitutable goods.

(3)   In this section:

made‑to‑order capital equipment means a particular item of capital equipment:

(a)   that is made in Australia on a one‑off basis to meet a specific order rather than being the subject of regular or intermittent production; and

(b)   that is not produced in quantities indicative of a production run.