EXPLANATORY STATEMENT
By-law No. 0906049
Customs Act 1901
Background
Section 271 of the Customs Act 1901 (the Act) provides, in part, that where an item of a Customs Tariff is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law, the Chief Executive Officer of Customs may make by-laws for the purposes of that item. A Customs Tariff is defined in section 4 of the Act to mean an Act imposing duties of customs. The Customs Tariff Act 1995 (the Customs Tariff Act) is a Customs Tariff for the purposes of the Act.
Item 15 of Schedule 4 to the Customs Tariff Act provides that the following goods are dutiable at the rate of ‘Free’:
Goods, as prescribed by by-law, being:
(a) goods imported by passengers or members of the crew of ships or aircraft;
(b) goods that:
(i) at the time they are approved for delivery for home consumption, are the property of a person who has arrived in Australia on an international flight within the meaning of section 96B of the Customs Act 1901; and
(ii) were purchased by that person in an inwards duty free shop within the meaning of that section;
(c) goods, brought into, or sent to, Australia by such members of the Defence Force stationed outside Australia as are prescribed by by-law;
(d) goods imported by members of the forces of Canada, New Zealand or the United Kingdom; or
(e) passengers' personal effects, furniture or household goods
Prior to By-law No. 0906049, By-law No. 0540001 prescribed certain goods for the purposes of item 15 being:
– accompanied alcoholic beverages and tobacco products of passengers and crew; and
– accompanied goods of passengers and crew that are not commercial goods, motor vehicles or motor vehicle parts, including goods not exceeding a particular value ($900 for an adult and $450 for a child).
In By-law No. 0540001, some of these goods were subject to conditions that applied if a person was part of a family. For example, the duty-free allowance of $900 per adult and $450 per child in a family applied under item 8 of the Table to that by-law. Under paragraph 7 of By-law No. 0540001, "family" was defined to mean a husband, wife, and, if any, their child or children who are under the age of 18 years.
Following the Australian Human Rights Commission's report "Same-Sex: Same Entitlements", all Commonwealth legislation is progressively being amended to remove discrimination to enable same-sex couples and their children to be recognised by Commonwealth law. The definition of "family" in By-law No. 0540001 did not include same-sex couples and their children, with the result that such couples and children could not access the concession granted by item 15 of Schedule 4 to the Customs Tariff Act.
New By-law 0906049 contains a new definition of "family", which extends the previous definition in By-law No 0540001 to a person and his or her de facto partner (within the meaning of section 22A of the Acts Interpretation Act 1901), and any of their children who are under the age of 18 years. Under the definition of de facto partner in the Acts Interpretation Act 1901, a person can be a de facto partner of another person if they are of the same sex as the other person. Therefore, a same-sex couple and any of their children under 18 years may now be able to access the concession granted under item 15.
Instrument
By-law No. 0906049 prescribes certain accompanied goods for the purposes of item 15 of Schedule 4 of the Customs Tariff and extends the categories of persons entitled to access the concession to same-sex couples and their children. The descriptions of the goods and the concessions granted under previous By-law 0540001 are otherwise unchanged in new By-law 0906049.
By-law No. 0906049 also revokes By-law No. 0540001.
Consultation
No consultation was undertaken specifically in relation to By-law No. 0906049 as it is of a minor or machinery nature and does not substantially alter existing arrangements.
Commencement
By-law No. 0906049 commences on 1 April 2009.