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.
Overview
The Customs Act 1901, enacted by the Commonwealth Parliament, governs the administration and enforcement of customs and excise laws in Australia. One of its significant functions is to allow the Chief Executive Officer of Customs to create by-laws for the implementation of various tariff items as prescribed under the Customs Tariff Act 1995. By-law No. 0906049, which came into effect on 1 April 2009, was introduced to rectify a legislative gap concerning the definition of "family" under the Customs Act, particularly in relation to the duty-free allowances for imported goods. This by-law was enacted in response to the Australian Human Rights Commission's report "Same-Sex: Same Entitlements", aiming to remove discriminatory practices and ensure that same-sex couples and their children are granted the same entitlements as heterosexual couples under Commonwealth law. By redefining "family" to include same-sex couples and their children, By-law No. 0906049 ensures equitable access to the duty-free concessions outlined in item 15 of Schedule 4 to the Customs Tariff Act.
Scope and Application
By-law No. 0906049, made under section 271 of the Customs Act 1901, prescribes specific goods for the purposes of item 15 of Schedule 4 to the Customs Tariff Act 1995, which provides for certain goods to be dutiable at a 'Free' rate. This by-law applies to individuals and entities involved in the importation of goods, particularly passengers, crew members, members of the Defence Force stationed outside Australia, and members of the forces of Canada, New Zealand, or the United Kingdom. It also extends to their personal effects, furniture, and household goods. The by-law operates nationally across Australia, as it is a Commonwealth regulation. The primary change introduced by this by-law is the expansion of the definition of 'family' to include same-sex couples and their children under the age of 18, thereby granting them access to the same duty-free allowances as opposite-sex couples. The by-law revokes the previous By-law No. 0540001, which had more limited definitions of 'family'. The commencement date for By-law No. 0906049 is 1 April 2009.
Key Provisions
By-law No. 0906049, issued under the Customs Act 1901 (section 271), serves to prescribe certain goods that qualify for the duty-free allowance as stipulated in item 15 of Schedule 4 of the Customs Tariff Act 1995. This by-law primarily aims to update the definition of "family" to include same-sex couples and their children under 18 years of age, ensuring that these groups can access the same concessions as heterosexual couples. The by-law identifies specific types of goods that can be imported duty-free, including those carried by passengers or crew members, goods purchased in duty-free shops, and items brought in by Defence Force personnel stationed overseas (subsections 15(a)-(e)). It also revises the definition of "family" from the previous by-law, incorporating de facto partners as defined in section 22A of the Acts Interpretation Act 1901, thus broadening the scope to include same-sex couples and their children.
This by-law imposes certain obligations on the parties it governs. Importers and passengers must ensure that the goods they intend to bring into Australia fall within the specified categories to claim duty-free status. They must also accurately declare these goods at customs to avoid any penalties. Customs officers are required to enforce the by-law by verifying the eligibility of the goods and the claimants under the updated definition of "family." The by-law also places a responsibility on the Australian Customs Service to update and maintain the list of eligible goods and the definition of "family" to reflect changes in societal norms and legal definitions.
Failure to comply with the provisions of this by-law can result in various consequences. Importers who falsely claim duty-free status for goods not eligible under the by-law may face civil penalties, including fines or the requirement to pay the applicable duties and taxes. Additionally, persistent non-compliance could lead to criminal charges, with potential penalties including imprisonment. The maximum penalties for these offences are not explicitly stated in the by-law but would be in line with the general penalties prescribed under the Customs Act 1901 for similar infractions. The by-law revokes the previous By-law No. 0540001, ensuring that only the new definitions and provisions are in effect from the commencement date of 1 April 2009.