EXPLANATORY STATEMENT
Issued by the authority of the Comptroller-General of Customs
Customs Act 1901
Comptroller-General of Customs (Strength of Alcoholic Beverages) Determination 2019
Background
The Customs Act 1901 (the Act) concerns customs-related functions and is the legislative authority that sets out the customs requirements for the importation, and exportation, of goods to and from Australia.
Division 1AA of Part VIII of the Act sets out the requirements for the calculation of duty on certain alcoholic beverages. Section 153AA provides that “alcoholic beverage” has the meaning given by the regulations. Section 95 of the Customs Regulation 2015 sets out the definition of “alcoholic beverage” as a good that is classified under tariff heading 2203, 2204, 2205, 2206 or 2208 of Schedule 3 to the Customs Tariff Act 1995.
Section 153AB of the Act requires customs duty to be paid on an alcoholic beverage according to the labelled alcoholic strength of prescribed alcoholic beverages, even when the actual strength is less than the labelled strength.
Subsection 153AC(1) of the Act provides that the Comptroller-General of Customs may, by instrument in writing, determine rules for working out the percentage by volume of alcohol in an alcoholic beverage, permitted variations in strength, methods of testing, sampling and analysis.
Purpose of Instrument
The purpose of the Comptroller-General of Customs (Strength of Alcoholic Beverages) Determination 2019 (the 2019 Determination) is to provide importers with clear guidelines as to how to measure the alcoholic strength of goods which are alcoholic beverages. The 2019 Determination provides rules for working out the customs duty to be paid on an alcoholic beverage according to the labelled alcoholic strength of alcoholic beverages that are being entered for home consumption, in retail and bulk containers. The 2019 Determination provides guidance on the following:
- sampling and analysis;
- measuring and equipment; and
- permitted variations in alcoholic strength.
The 2019 Determination mirrors the determination by the Deputy Commissioner of Taxation under the Excise Act 1901 which contains similar guidance on sampling and analysis, measuring and equipment and permitted variations in alcoholic strength, in relation to the payment of excise duty on locally produced alcoholic beverages.
The 2019 Determination replaces the “CEO Determination No. 1 of 2009”, signed on 19 June 2009 (the 2009 Determination), which is due to sunset on 1 October 2019. The 2019 Determination replicates the requirements in the 2009 Determination that must be met by an importer in relation to working out the percentage by volume of alcohol in alcoholic beverages. However, the 2019 Determination contains some minor modifications to simplify key concepts and approaches that were included in the 2009 Determination. Importers that satisfied the requirements of the 2009 Determination will be unaffected by these changes.
In particular, as there are existing legal requirements relating to the accuracy of measuring equipment, there is no longer a requirement to calibrate certain measuring instruments at intervals of one year or less against a standard certified instrument. The National Measurement Institute can be contacted for further information in relation to the legal requirements pertaining to measurement under the National Measurement Act 1960.
The permitted variations in the strength of alcoholic beverages for the purpose of working out the duty payable on beer, and on alcoholic beverages other than beer, have also been clarified.
Consultation
Public consultation was undertaken in relation to the 2019 Determination and no comments were received. The Office of Best Practice Regulations were also consulted (ID 25583). 25583).
Commencement
The 2019 Determination commences on 1 October 2019.
Under section 42 of the Legislation Act 2003, the instrument is subject to disallowance and a Statement of Compatibility with Human Rights has been prepared and is at Attachment A.
ATTACHMENT A
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Comptroller-General of Customs (Strength of Alcoholic Beverages) Determination 2019
This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
The purpose of the Comptroller-General of Customs (Strength of Alcoholic Beverages) Determination 2019 (the Determination) is to provide importers with clear guidelines as to how to measure the alcoholic strength of goods which are alcoholic beverages. The Determination provides rules for working out the customs duty to be paid on an alcoholic beverage according to the labelled alcoholic strength of alcoholic beverages that are being entered for home consumption, in retail and bulk containers. The Determination provides guidance on the following:
- sampling and analysis;
- measuring and equipment; and
- permitted variations in alcoholic strength.
The Determination replaces the “CEO Determination No. 1 of 2009”, signed on 19 June 2009 (the 2009 Determination) which is due to sunset on 1 October 2019.
The Determination replicates the requirements in the 2009 Determination that must be met by an importer in relation to working out the percentage by volume of alcohol in alcoholic beverages. However, the revisions made in this new Determination simplify the key concepts and approaches that were outlined in the 2009 Determination.
Human rights implications
The Determination does not engage any of the applicable rights or freedoms, as it simply provides guidance to importers of alcoholic beverages as to how to determine the alcoholic strength of their products for the purpose of the payment of customs duty.
Conclusion
The Determination is therefore compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Michael Outram, Comptroller-General of Customs