Customs Act (Strength of Alcoholic Beverages) Determination (2009)

Administered by Department of Home Affairs

Legislation au F2009L02593 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

CEO Determination No. 1 of 2009

Customs Act 1901

Section 153AB of the Customs Act 1901 (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. Section 153AC of the Act provides that the CEO may, in writing, determine rules for working out the percentage by volume of alcohol in a beverage, permitted variations in strength, methods of testing, sampling and analysis.

Background

CEO Determination No. 1 of 2009 (Customs Act (Strength of Alcoholic Beverages) Determination (2009)) sets out the rules for the purposes of section 153AC of the Act. These rules govern the working out of the strength of an imported alcoholic beverage and provides for permitted variations in labelled strength from the actual strength for determining the customs duty payable. It also sets out the permissible methods of testing, sampling and analysis. CEO Determination No. 1 of 2009 replicates some of the rules originally established for the purposes of section 153AC by CEO Determination No. 2 of 2006, and also contains modifications to the original rules.

The main modifications to the original rules are to:

a) specify the type of equipment that must be used to work out the strength of an alcoholic beverage;

b) broaden the range of authorities that can calibrate instruments that are used to work out the strength of an alcoholic beverage. Previously, only independent authorities approved by the National Association of Testing Authorities could calibrate measuring equipment. Under CEO Determination No. 1 of 2009, it will be possible for equipment also to be calibrated by authorities appointed under the National Measurement Act 1960 and persons licensed under State and Territory measurement legislation, hence increasing the number of organisations with the ability to calibrate measuring equipment for the purpose of working out the strength of alcoholic beverages;

c) provide that only certain types of measuring equipment must be calibrated at intervals of one year or less; and

d) remove some of the rules relating to the alcoholic strength of beer which are not relevant in the Customs context.

CEO Determination No. 1 of 2009 mirrors the determination by the Deputy Commissioner of Taxation under the Excise Act 1901 (Excise (Alcoholic strength of excisable beverages) Determination 2009 (No. 1)), which contains similar testing methods, equipment, analysis and results in relation to the payment of excise duty on a locally produced alcoholic beverage.

Paragraphs 1 to 5 of CEO Determination No.1 of 2009 provide, inter alia, that it applies to all alcoholic beverages that are entered for, or delivered into, home consumption on or after its commencement. It also defines the key terms, commencement, and objectives of the instrument.

Paragraph 6 of CEO Determination No. 1 of 2009 requires that the strength of an alcoholic beverage be worked out by analysing a sufficient number of samples of the product. The strength is taken to be the average strength of all samples, expressed as a percentage.

Paragraph 7 of CEO Determination No.1 of 2009 contains the modifications to the original rules, as described above. It provides for the instruments and processes to be used to work out the strength of an alcoholic beverage and the rules for calibration of testing equipment.

Paragraph 8 of CEO Determination No. of 2009 permits variations in alcoholic strength when calculating the customs duty payable on beer, and on alcoholic beverages other than beer.

Instrument

CEO Determination No. 1 of 2009 (Customs Act (Strength of Alcoholic Beverages) Determination (2009)) revokes CEO Determination No. 2 of 2006 (Customs Act (Strength of Alcoholic Beverages) Determination).

Consultation

Prior to the making of CEO Determination No.2 of 2006, Customs and the Australian Taxation Office consulted extensively with people likely to be affected by the instrument, including industry.

Given the minor changes to the rules originally established by CEO Determination No.2 of 2006, and that the modifications to the rules broaden the requirements making compliance easier, it was not considered necessary to consult with industry and other affected parties prior to the making of CEO Determination No. 1 of 2009 (Customs Act (Strength of Alcoholic Beverages) Determination (2009)).

Commencement

The instrument commences on the day after it is registered.

Overview

CEO Determination No. 1 of 2009, enacted under section 153AC of the Customs Act 1901, provides the rules for determining the percentage by volume of alcohol in alcoholic beverages to ensure accurate customs duty assessments. This determination was introduced to address discrepancies between the labelled and actual alcoholic strength of beverages, ensuring consistency in duty calculations. The Australian Customs and Border Protection Service (ACBS) is the enacting body, aiming to streamline the compliance process for industry stakeholders. The primary objective is to establish a standardised methodology for measuring alcoholic strength, thereby reducing potential disputes and ensuring the correct application of customs duty based on the true alcoholic content of imported beverages.

Scope and Application

CEO Determination No. 1 of 2009, under the Customs Act 1901, applies to all alcoholic beverages that are entered for, or delivered into, home consumption on or after its commencement. It sets out rules for determining the percentage by volume of alcohol in a beverage, permitted variations in strength, and permissible methods of testing, sampling and analysis. The instrument is designed to ensure that customs duty on alcoholic beverages is calculated based on the labelled alcoholic strength, even when the actual strength differs. It specifies the type of equipment that must be used to determine the strength of alcoholic beverages, broadens the range of authorities that can calibrate instruments, and sets intervals for equipment calibration. The Determination also permits variations in alcoholic strength when calculating customs duty on different types of alcoholic beverages. It mirrors similar determinations under the Excise Act 1901 and was made without further consultation as the changes were considered minor and aimed at easing compliance. The Determination revokes the previous CEO Determination No. 2 of 2006 and commences on the day after it is registered.

Key Provisions

CEO Determination No. 1 of 2009, also known as the Customs Act (Strength of Alcoholic Beverages) Determination, establishes rules for determining the alcoholic strength of imported beverages, which is critical for assessing the applicable customs duty (s.1). These rules are necessary because Section 153AB of the Customs Act 1901 mandates that customs duty on alcoholic beverages be calculated based on the labelled alcoholic strength. When the actual strength differs from the labelled strength, the rules provided in this Determination help to ensure that the customs duty is accurately assessed (s.153AC). The Determination specifies the methods for calculating the percentage by volume of alcohol in a beverage, permitted variations in strength, and the procedures for testing, sampling, and analysis. The primary obligations imposed by CEO Determination No. 1 of 2009 include the requirement for importers to ensure that the alcoholic strength of their beverages is accurately determined and that the appropriate customs duty is paid based on this determination (s.6). Importers must analyse a sufficient number of samples of their alcoholic beverages to ascertain the average strength, which is then used for duty calculations. Additionally, the Determination mandates the use of specified types of equipment for these analyses and sets out detailed rules for the calibration of such equipment, ensuring that the instruments used are reliable and accurate (s.7). Importers must comply with these rules to avoid discrepancies in the duty assessment process. Non-compliance with the provisions of CEO Determination No. 1 of 2009 can lead to significant legal consequences. While the Determination itself does not explicitly outline specific offences or penalties, breaches of the Customs Act 1901, under which this Determination is made, can result in substantial penalties. For instance, knowingly making a false statement in relation to the importation of goods can lead to penalties of up to 10,000 penalty units or imprisonment for five years, or both, for individuals, and up to 50,000 penalty units or imprisonment for five years, or both, for bodies corporate (s.283AB of the Customs Act 1901). Furthermore, failure to pay the correct customs duty, which may result from non-compliance with this Determination, can also attract penalties as per the Customs Act 1901. Therefore, adherence to the rules set out in this Determination is crucial to avoid potential legal repercussions.

Area of Law: Customs Law
Instrument: Regulation
Concepts: Definitions & Interpretation; Regulatory Standards; Reporting & Disclosure Obligations; Enforcement Powers

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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