Amoena Australia Pty Ltd and Chief Executive Officer of Customs

Amoena Australia Pty Ltd (Amoena) sought review of decisions made by the Chief Executive Officer of Customs (Customs) concerning the classification of mastectomy bras for customs duty purposes. The matter was heard by Senior Member Egon Fice of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Amoena's mastectomy bras should be classified under heading 9021 of the Tariff Act, as contended by Customs, or under chapter 62, as argued by Amoena. This classification determined the applicable rate of customs duty.

The Tribunal found that the mastectomy bra was not an orthopaedic appliance as it did not prevent or correct bodily deformities, nor did it support or hold parts of the body following illness, operation, or injury, as required by Note 6 of Chapter 90. Furthermore, the Tribunal determined that the bra was not a part of the breast form or prosthesis with which it was designed to be used. However, the Tribunal concluded that the mastectomy bra qualified as an accessory because it was suitable for use principally with a breast form, notwithstanding its potential use by women who had not undergone a mastectomy. The Tribunal reasoned that the bra's special features, which made it attractive for post-mastectomy wear and were central to its marketing as a mastectomy bra, distinguished it from ordinary clothing.

Consequently, the Tribunal found that Customs' decisions to classify the mastectomy bras under heading 9021 were incorrect. The Tribunal set aside these decisions and remitted the matter to Customs for reassessment in accordance with the Tribunal's findings, meaning the bras were not to be classified under heading 9021.