Australia: Status of legislation affecting industry – Road Safety Remuneration, Dumping, IP, Illegal Logging and Chain of Responsibility - Update on Legislation and Cases

Last Updated: 8 May 2012
Article by Andrew Hudson

Further to recent publications, I thought it appropriate to provide the following short update on the status of legislation referred to in those earlier updates.

  • In an earlier update, we provided a summary of the extensive reforms contained in the Road Safety Remuneration Bill 2012 ("RSB"). Following detailed Parliamentary review, the RSB (together with associated legislation) has passed through Federal Parliament and received Royal Assent to commence on 1 July 2012.
  • The RSB will have an important role in changing work practices and reducing behaviours which contribute to unsafe road transport operations. It will also potentially affect remuneration and work hours for drivers. Those affected should now be reviewing the RSB and its Regulations, determining how contracts should change and the effect on dealing with customers.
  • We have separately advised on the status of the various tranches of legislation affecting amendments to Australia's Anti-Dumping and Countervailing legislation. One tranche has passed through Parliament, a second tranche is before the Senate, a third tranche has just been introduced to Parliament and a fourth tranche is due to be introduced later in the year. Associated with those changes, the Australian Customs and Boarder Protection Service ("Customs") has issued a revised draft Dumping and Subsidy Manual for comment by interested parties.
  • The significant amendments to intellectual property legislation effected by the "Raising the Bar" Act has now passed through Parliament. Included in these amendments were provisions reforming the rights of the holders of intellectual property to stop goods allegedly breaching copyright and trade mark rights from being imported into Australia. Legislation has passed Parliament and received Royal Assent and the relevant provisions will commence in April 2013.
  • In our previous update, we referred to two earlier Parliamentary Inquiries into the proposed Illegal Logging Prohibition Bill 2011. Notwithstanding those two earlier Inquiries into the proposed Bill by the Senate Rural and Regional Affairs and Transport Legislation Committee, the Trade Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade has now commenced an Inquiry into the international implications of the Bill. As previously reported, concern over the international implications of the Bill has been expressed by Canada, Indonesia, Malaysia, New Zealand and Papua New Guinea in their submissions to the earlier Inquiries into the Bill.
  • The concern expressed by a number of those countries is that the Bill does, in fact, represent an unreasonable restraint on trade in timber exported from those countries. Doubtlessly, a number of submissions will be made as to whether the proposed regulation is consistent to Australia's obligations to its trading partners pursuant to WTO regulations. Should the Bill pass through Parliament largely in its current form, then it will place significant obligations on importers of wood (and products containing wood) to be able to certify that the wood has not been "illegally logged".

  • Several years after adoption of National "Chain of Responsibility" in many States, Western Australia finally introduced its legislation into its State Parliament in November 2011 through the Road Traffic (Vehicles) Bill 2011. Although part of the national reform, not all parts of the National Model Bill are to be adopted.

Recent cases of interest – Penalties, TCOs and Container Detention

  • Of recent time, there have been a number of decisions in various courts and tribunals which may be of interest. These include the following:
  • Customs successful prosecution of the operator of a licensed Depot in Victoria in relation to the "unlawful removal" of imported cigarettes without appropriate approvals and payment of relevant duties. This led to orders for penalties, the payment of customs duty and GST which should have been paid and the revocation of the Depot licence.
  • Customs also secured a successful prosecution against an illegal importer of kava. This led to a significant fine of $900,000 for illegal importation and the making of a false statement.
  • An importer of certain pillow cases, neck roll covers and "U" shaped pillow cases was unsuccessful at the Administrative Appeals Tribunal ("AAT") in seeking review of Customs on the classification of those goods. The AAT endorsed Customs classification of the goods to tariff heading 6302 as "bed linen".
  • In another decision of the AAT, an importer was unsuccessful in having its products secure the benefit of a Tariff Concession Order associated with disposable pants.
  • In a potentially significant decision of the New South Wales District Court, a shipping line has been able to enforce various "container detention" penalties imposed upon an importer. At this stage, reasons for the decision have not been made public as the New South Wales District Court does not provide reasons for judgement to parties other than those involved in the litigation. We have made a submission to the New South Wales District Court that it would be in the interests of those in industry that the reasons for the decision be made available more widely. However, according to various media reports, an importer had attempted to resist the payment of container detention fees imposed by a shipping line on the basis that they were a "penalty" and therefore unenforceable. The various fees were imposed pursuant to an Agreement between the shipping line and the users of the services of the shipping line which provided for a set of trading terms and conditions and the imposition of charges associated with the late return of containers. It would appear that the District Court had characterised the amount being charged as an escalated hiring charge rather than a penalty associated with a breach of the Agreement for having failed to return the containers within the time prescribed by the agreement. As we have set out in our earlier commentary on container detention fees and their enforceability, there is a distinct difference between fees which are characterised as being payable for a "breach" of an agreement to return a container by a set date (in which case the penalty regime may apply) compared to where the fee is seen as an increased charge for the hire of the containers. It is difficult to determine the impact of the decision until it is provided by the District Court as it may well be limited by the relevant facts of the case. It is also unclear whether the decision will have any impact on the position of freight forwarders or customs brokers who collect goods under a "Delivery Order" which then seeks to impose liability for the container, its return and associated fees on the freight forwarder or customs broker.

As always, we will keep you informed of developments and would be pleased to provide additional details on these cases. We will be reviewing these developments in detail in our CBFCA Member Forums in July 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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