Australia: Five customs topics in five minutes

E-alert
Last Updated: 3 November 2016
Article by Russell Wiese and Lynne Grant

The second half of 2016 has had its fair share of issues that affect customs brokers. An update on some of the most recent happenings is set out below.

1
Update to the Singapore FTA – more relaxed certificate of origin requirements

The Australian and Singaporean governments have reached agreement to update and modernise the Singapore Australia FTA. Importantly, traders will now be able to self-certify that their goods meet the origin requirements of the FTA. The self-certified certificate of origin will not have to take a particular form and can be completed by the manufacturer, exporter, importer or their representative. Perhaps importers will request their customs broker (as their representative) to complete a certificate of origin for them?

Also, the rules of origin are being updated to include a schedule of product specific rules. These rules will be more flexible than the existing origin rules and make it much more likely that goods will qualify for preferential treatment under the FTA.

The amendments to the FTA have to be ratified domestically in each country before taking effect. We expect this to occur in the first half of 2017.


2
Technology agreement duty reductions from 1 January 2017

The WTO hasn't been able to agree on much over the past 20 years! However, its members did agree on duty reductions for a range of information technology goods. The timeframe for duty reduction depends on the particular good. However, it can be said that:

  • Duty reductions for some goods begin on 1 January 2017, however, no duty rate is immediately reduced to 0.
  • Most goods subject to the agreement will be duty free by 1 January 2019.
  • The balance of goods subject to the agreement will be duty free by 1 January 2021.
  • The legislation creates a number of new tariff classifications, primarily as sub-headings that apply when the good is used for an information technology purpose (in a similar way to motor vehicle components).
  • The new classifications are scheduled to commence from 1 January 2017 even if the reduced rates do not commence until a later time.

Customs brokers should ensure that from 1 January 2017 they are using the correct classification and that any TCO or tariff advice applicable to the old classification has been transferred to the new classification. The TCO issue will be particularly important given that many information technology products are not manufactured in Australia and are likely to be subject to TCOs.


3
Brokers the target of infringement notices

The department has released the October 2016 edition of the Goods Compliance Update. An important statistic contained in the update was that in almost all cases where an infringement notice was issued, the recipient was the customs broker, cargo operator or other service provider and not the importer/exporter of the goods.
Between May and July 2016 there were 12 infringement notices issued for making a false statements to the department resulting in a loss of duty. Of these, only two were issued to importers. For the other 10, the broker/service provider received the infringement notice.
The message is clear. The department will look to customs brokers and not their clients for false statements in import declarations. So, customs brokers need to ensure their terms and conditions are enforceable against clients and contain an obligation on the client to cover the cost of an infringement notice, especially if the error was their fault.


4
Infringement notices remain too high

Payment of an infringement notice is not compulsory. However, the risk is that if the infringement notice is not paid, the alleged infringing party will be prosecuted. Where the amount of the infringement notice is low, it is an easier decision to pay the fine and avoid the risk of prosecution.
However, we have seen infringement notices that are much higher than any fine we expect a court would impose. On occasion, fines in excess of $8,000 are handed out for minor inadvertent breaches.
A recent court case showed that you may well receive a lesser fine if you do not pay the infringement notice and proceed to court. In The Queen v Chi, the County Court handed down a $22,000 fine to an importer who had lied about the origin of goods for the purpose of avoiding dumping duties. The importer's deception helped him avoid $100,000 in dumping duties.
The judgment shows that courts rarely will impose the maximum applicable penalty. The infringement notice system is based on fines being equal to 75% of the maximum penalty. This is very likely to result in the infringement notice fine that is higher than the penalty that would be imposed by a Court. While we do not advocate that our clients invite court prosecution, there is no justification for infringement notices representing a larger penalty than would be handed out by a court.


5
Goods containing asbestos

Perhaps the most significant issue has been the Department of Immigration and Border Protection approach to the importation of goods containing asbestos. Our earlier guidance regarding avoiding liability for statements regarding asbestos is here.


The above issues showcase the variety of challenges faced by customs brokers (and we barely mentioned ChAFTA or TCOs!).

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 Mondaq.com.

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

Authors
Russell Wiese
 
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”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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