EXPLANATORY STATEMENT
Customs By-law No. 2200082
Customs Act 1901
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 Comptroller‑General 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 an Act imposing duties of customs, and is therefore a Customs Tariff for the purposes of the Act.
Section 18 of the Customs Tariff Act provides for calculation of concessional duty.
Background
For the purposes of item 57 to Schedule 4 to the Customs Tariff Act, goods, as prescribed by by-law, that are goods that are medical products or hygiene products, capable of use in combating pathogens that are transmitted through droplet or airborne spread, are dutiable at the rate of ‘Free’.
Instrument
By-law No. 2200082 (the By-law) prescribes goods that are equipment that when worn, is capable of limiting the transmission of pathogens to humans, disinfectant preparations classified to heading 3808 (excluding hand sanitisers), soaps and test kits, regents and viral transport media. For the purposes of this by‑law only goods that are capable of use in combatting pathogens that are transmitted through droplet or airborne spread are prescribed.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that, where an Act confers a power to make, grant or issue an instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. The By-law repeals By-Laws No. 2019608, No. 2041552, No. 2020321 and No. 2100131.
Consultation
The Department the Prime Minister and Cabinet and the Department of the Treasury were consulted on the development of this measure.
Commencement
By-law No. 2200082 commences on 1 July 2022.
Overview
The Customs By-law No. 2200082 was enacted in 2022 to address the need for a clear and specific set of regulations regarding the duty-free importation of medical and hygiene products essential for combating airborne and droplet-transmitted pathogens. This by-law operates under Section 271 of the Customs Act 1901, which empowers the Comptroller-General of Customs to create by-laws for items listed in the Customs Tariff. The Customs Tariff Act 1995 defines what constitutes a Customs Tariff, and this by-law specifically targets items listed under item 57 of Schedule 4 of that Act, which pertains to the duty-free importation of specified medical and hygiene products. The policy objective behind this by-law is to streamline and clarify the importation process for critical products, ensuring that essential equipment and materials necessary for public health are readily available without the burden of customs duty.
Scope and Application
The Customs By-law No. 2200082, issued under Section 271 of the Customs Act 1901, delineates specific medical and hygiene products that are dutiable at the rate of 'Free'. This by-law applies to entities and individuals involved in the importation of goods categorised as medical products or hygiene products, particularly those capable of limiting the transmission of pathogens transmitted through droplet or airborne spread. The by-law applies nationally across Australia, as it operates under the Commonwealth jurisdiction. The specified goods include equipment worn to limit pathogen transmission to humans, disinfectant preparations classified to heading 3808 (excluding hand sanitisers), soaps, test kits, regents, and viral transport media. The by-law supersedes previous by-laws No. 2019608, No. 2041552, No. 2020321, and No. 2100131, and it came into effect on 1 July 2022.
Key Provisions
The Customs By-law No. 2200082, made under section 271 of the Customs Act 1901, specifies certain goods that are eligible for a ‘Free’ duty rate for the purposes of item 57 in Schedule 4 to the Customs Tariff Act 1995. These goods include medical products or hygiene products that can be used to combat pathogens transmitted through droplet or airborne spread, such as equipment worn to limit pathogen transmission, disinfectant preparations (excluding those classified to heading 3808), soaps, test kits, reagents, and viral transport media (section 1). The by-law effectively sets out which products will benefit from the concessional duty arrangement, ensuring that essential items in the fight against airborne and droplet-transmitted pathogens are not subject to customs duties.
The by-law imposes specific obligations on the parties involved, primarily those importing or dealing with the prescribed medical and hygiene products. Importers must ensure that the goods they are bringing into Australia fall within the categories outlined in the by-law to qualify for the ‘Free’ duty rate (section 1). Additionally, the by-law requires that these goods are genuinely intended for use in combating pathogens transmitted through droplet or airborne spread, as failure to meet this requirement could result in the goods being subject to standard customs duties.
Failure to comply with the provisions of the by-law could result in legal consequences for the parties involved. While the by-law itself does not explicitly detail penalties, breaches of the Customs Act 1901 or Customs Tariff Act 1995 can lead to various civil and criminal penalties. For instance, section 255 of the Customs Act provides for penalties, including fines up to 5,000 penalty units or imprisonment for up to five years, or both, for offences such as providing false or misleading information to customs officers. Additionally, section 277 of the Customs Tariff Act stipulates penalties for failure to comply with the provisions of the Act, which could include fines or imprisonment for serious offences. These potential consequences underscore the importance of adherence to the by-law’s requirements.