Australia: New Customs Amendment Act commences, a new Dumping Bill is introduced and other important developments

Customs Trade and Transport Update
Last Updated: 4 June 2013
Article by Andrew Hudson


In a recent update we provided commentary on the new Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013 ("Bill"). The Bill has also been one subject of my presentations at the CBFCA State Conventions and CPD sessions. This Bill which will also form the basis of my forthcoming presentation to the CBFCA New South Wales Trade Symposium.

In another recent update we referred to the Government proposal to introduce another (sixth) tranche of amendments to the Customs Act 1901 regarding anti-dumping and countervailing law and practice.

There have been movements on both aspects together with other developments which are summarised below.


The Bill has now been passed by both Houses of Parliament and has received Royal Assent on 28 May 2013 meaning it is now an Act. While a number of the provisions will only commence on Proclamation, (which may be up to 6 months after the Act receives Royal Assent), a number of important provisions in Part 3 in Schedule 1 to the Act commenced on 29 May 2013. Those provisions introduce new offences for using and disclosing information held on a Customs computer to commit an offence against the laws of the Commonwealth, a State or a Territory. The relevant provisions (included in a new section 233BABAF) penalise both using "Restricted Information" to commit such an offence or disclosing such Restricted Information to another person. In both cases, the penalties are significant including imprisonment for 2 years or 120 penalty units (at $170 per penalty unit) or both. In the case of a person using information to commit an offence, the prosecution need not prove that the offender knew that the offence was an offence against a law of the Commonwealth, State or Territory.

Clearly, these are significant new provisions and those with access to "Restricted Information" (defined to be information held in a computer owned, leased or operated by Customs and to which access is restricted by an access control system associated with the function of the computer such as the ICS), will need to ensure that appropriate policies are in place so that those with access to the information are even more aware of the need to only use it for appropriate purposes.

The Australian Customs and Border Protection Service ("Customs") has issued notice number 2013/25 which gives some details of the amendments and which includes a link to part of the Customs website summarising the effect of the Act. Importantly, Customs has also provided Industry Guidelines as to the application of the Act and expectations from Customs as to the limitations on disclosure of information by various people in the supply chain. Having briefly reviewed the Guidelines, it appears that they are only an early version as they do not necessarily cover the position of all parties in the supply chain in a comprehensive and useful manner. However, for the time being, they represent the Guidelines which have been provided by Customs and need to be reviewed by those using Customs' systems and those receiving information from Customs' systems as a matter of urgency, so that appropriate policies are adopted to manage associated risks.


In our recent update following the announcement of the Federal Government Budget, we also referred to commentary from the Federal Government that it was about to introduce a new anti-dumping amendment bill.

As of 29 May 2013 (ie yesterday) the Government has introduced a new (sixth) tranche of anti-dumping legislation into Parliament.

According to the Media Release issued by the Minister and as set out in the relevant Explanatory Memorandum, the intent of the Bills is to amend the Customs Act 1901 and the Customs Tariff (Anti-Dumping) Act 1975 to implement 3 reforms to the anti-dumping system. The commentary summarised the effect of the Bills as follows:

  • The first reform removes, in certain cases, the Minister's mandatory consideration of the "lesser duty" rule. This will allow the Minister, in certain circumstances, to apply a full margin of duty to remedy the injurious effect of dumping and subsidisation. The legislation sets out the 3 circumstances where the Minister is not required to (but may) consider the desirability of fixing a lesser amount of duty.
  • The second reform makes a number of amendments to the retrospective duties provisions of the anti-dumping system ostensibly to align them more closely with the WTO Agreement and at the same time to make it clear that the Minister is the decision-maker for certain findings. Other changes restructure the legislation so that it is clearer and introduces consultation provisions to facilitate transparency and due process.
  • The third reform introduces a new type of "circumvention" activity to address sales at a loss and other practices that undermine the effect of anti-dumping duties already imposed. This new type of anti-circumvention enquiry will be conducted within a shorter timeframe than other anti-circumvention inquiries. This reform also introduces a termination provision that applies to all types of anticircumvention inquiries. This is of specific interest as it seems to go to commercial practices which may not contravene anti-dumping legislation are otherwise perceived as undermining the effect of those measures.

Interestingly, the Minister states that in developing the reforms the government has consulted closely with members of the International Trade Remedies Forum. However, it should be noted that the membership of the Forum is by invitation only and is effectively limited to Government agencies and some Australian manufacturers and producers and is not open to the wider trading community including importers and those otherwise affected by proposed reforms. Certainly, there has been no wider transparency on the introduction or intent of these provisions with others whose interests are directly affected.

Again, these provisions will be the subject of detailed discussion in the forthcoming member legal forums I am conducting in conjunction with the CBFCA.


As part of the wider reform of anti-dumping law and practice, readers would be aware that legislative change will remove review by the Trade Measures Review Officer and replace it with a new Anti-Dumping Review Panel. By way of Australian Customs Dumping Notice No. 2013/41, the Government has announced the membership of that Panel to include a former Federal Court judge, a former Presidential Member of the Administrative Appeals Tribunal and a lawyer specialising in anti-dumping cases. The notice also refers to a new website to start regarding the operation of the Panel.


This Act also received Royal Assent and is to commence on the 28th day after receiving Royal Assent on 28 May 2013. The Act will allow the relevant Minister to prohibit the carriage of certain cargo into Australian territory on an aircraft through the use of a Disallowable Instrument which, according to the Explanatory Memorandum, is a more "robust and transparent mechanism to prohibit carriage of inbound air cargo in the longer term should the need arise". There will also be an associated offence for contravention of the prohibition to be a strict liability offence. Those handling such cargo will now need to be more alert as to what goods are affected by the prohibition as Disallowable Instruments are not as obvious as amending Acts or Regulations.


While we have discussed the content of the Customs Amendment Act at various CBFCA State Conventions, in the CBFCA CPD program and it has been the subject of earlier Hunt & Hunt releases, we will be discussing the commencement of the relevant legislation during the legal member forums to be conducted in conjunction with the CBFCA in June. An application for CPD points for these provisions and sessions has been submitted to Customs and we hope that Customs sees the value in those sessions.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions