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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Customs Amendment (China-Australia
Free Trade Agreement Implementation)
Bill 2015
No. , 2015
(Immigration and Border Protection)
A Bill for an Act to amend the Customs Act 1901,
and for related purposes
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Main amendments
4
Part 1--Chinese originating goods
4
Customs Act 1901
4
Part 2--Verification powers
15
Customs Act 1901
15
Part 3--Application provisions
18
Schedule 2--Contingent amendments
19
Customs Act 1901
19
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
1
A Bill for an Act to amend the Customs Act 1901,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Customs Amendment
5
(China-Australia Free Trade Agreement Implementation) Act
6
2015.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The later of:
(a) the day this Act receives the Royal
Assent; and
(b) the day the China-Australia Free Trade
Agreement, done at Canberra on 17 June
2015, enters into force for Australia.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
The Minister must announce by notice in the
Gazette the day the Agreement enters into
force for Australia.
3. Schedule 2
The later of:
(a) immediately after the commencement of
Schedule 1 to the Acts and Instruments
(Framework Reform) Act 2015; and
(b) immediately after the commencement of
the provisions covered by table item 2.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
3
3 Schedules
1
Legislation that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Schedule 1 Main amendments
Part 1 Chinese originating goods
4
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
Schedule 1
--Main amendments
1
Part 1
--Chinese originating goods
2
Customs Act 1901
3
1 After Division 1K of Part VIII
4
Insert:
5
Division 1L--Chinese originating goods
6
Subdivision A--Preliminary
7
153ZOA Simplified outline of this Division
8
•
This Division defines Chinese originating goods. Preferential
9
rates of customs duty under the Customs Tariff Act 1995 apply
10
to Chinese originating goods that are imported into Australia.
11
•
Subdivision B provides that goods are Chinese originating
12
goods if they are wholly obtained or produced in the territory
13
of China.
14
•
Subdivision C provides that goods are Chinese originating
15
goods if they are produced entirely in the territory of China, or
16
entirely in the territory of China and the territory of Australia,
17
from originating materials only.
18
•
Subdivision D sets out when goods are Chinese originating
19
goods because they are produced entirely in the territory of
20
China, or entirely in the territory of China and the territory of
21
Australia, from non-originating materials only or from
22
non-originating materials and originating materials.
23
•
Subdivision E sets out when goods are Chinese originating
24
goods because they are accessories, spare parts or tools
25
imported with other goods.
26
Main amendments Schedule 1
Chinese originating goods Part 1
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
5
•
Subdivision F provides that goods are not Chinese originating
1
goods under this Division merely because of certain
2
operations.
3
•
Subdivision G deals with how the consignment of goods
4
affects whether the goods are Chinese originating goods.
5
153ZOB Interpretation
6
Definitions
7
(1) In this Division:
8
Agreement means the China-Australia Free Trade Agreement,
9
done at Canberra on 17 June 2015, as amended from time to time.
10
Note:
The Agreement could in 2015 be viewed in the Australian Treaties
11
Library on the AustLII website (http://www.austlii.edu.au).
12
Australian originating goods means goods that are Australian
13
originating goods under a law of China that implements the
14
Agreement.
15
Certificate of Origin means a certificate that is in force and that
16
complies with the requirements of Article 3.14 of the Agreement.
17
Chinese originating goods means goods that, under this Division,
18
are Chinese originating goods.
19
Convention means the International Convention on the
20
Harmonized Commodity Description and Coding System done at
21
Brussels on 14 June 1983, as in force from time to time.
22
Note:
The Convention is in Australian Treaty Series 1988 No. 30 ([1988]
23
ATS 30) and could in 2015 be viewed in the Australian Treaties
24
Library on the AustLII website (http://www.austlii.edu.au).
25
customs value of goods has the meaning given by section 159.
26
Declaration of Origin means a declaration that is in force and that
27
complies with the requirements of Article 3.15 of the Agreement.
28
Schedule 1 Main amendments
Part 1 Chinese originating goods
6
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
Harmonized System means the Harmonized Commodity
1
Description and Coding System (as in force from time to time) that
2
is established by or under the Convention.
3
indirect materials means:
4
(a) goods or energy used in the production, testing or inspection
5
of goods, but not physically incorporated in the goods; or
6
(b) goods or energy used in the maintenance or operation of
7
equipment or buildings associated with the production of
8
goods;
9
including:
10
(c) fuel (within its ordinary meaning); and
11
(d) tools, dies and moulds; and
12
(e) spare parts and materials; and
13
(f) lubricants, greases, compounding materials and other similar
14
goods; and
15
(g) gloves, glasses, footwear, clothing, safety equipment and
16
supplies; and
17
(h) catalysts and solvents.
18
Interpretation Rules means the General Rules (as in force from
19
time to time) for the Interpretation of the Harmonized System
20
provided for by the Convention.
21
non-originating materials means goods that are not originating
22
materials.
23
originating materials means:
24
(a) Chinese originating goods that are used in the production of
25
other goods; or
26
(b) Australian originating goods that are used in the production
27
of other goods; or
28
(c) indirect materials.
29
plant has the same meaning as it has in the Agreement.
30
produce means grow, raise, mine, harvest, fish, farm, trap, hunt,
31
capture, gather, collect, breed, extract, manufacture, process or
32
assemble.
33
Main amendments Schedule 1
Chinese originating goods Part 1
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
7
territory of a non-party has the same meaning as it has in the
1
Agreement, and includes the customs territory of the following
2
members of the World Trade Organization established by the
3
World Trade Organization Agreement:
4
(a) Hong Kong, China;
5
(b) Macao, China;
6
(c) Separate Customs Territory of Taiwan, Penghu, Kinmen and
7
Matsu.
8
territory of Australia means territory within the meaning, so far as
9
it relates to Australia, of Article 1.3 of the Agreement.
10
territory of China means territory within the meaning, so far as it
11
relates to China, of Article 1.3 of the Agreement, and does not
12
include the customs territory of the following members of the
13
World Trade Organization established by the World Trade
14
Organization Agreement:
15
(a) Hong Kong, China;
16
(b) Macao, China;
17
(c) Separate Customs Territory of Taiwan, Penghu, Kinmen and
18
Matsu.
19
World Trade Organization Agreement means the Marrakesh
20
Agreement establishing the World Trade Organization, done at
21
Marrakesh on 15 April 1994.
22
Note:
The Agreement is in Australian Treaty Series 1995 No. 8 ([1995] ATS
23
8) and could in 2015 be viewed in the Australian Treaties Library on
24
the AustLII website (http://www.austlii.edu.au).
25
Regional value content of goods
26
(2) The regional value content of goods for the purposes of this
27
Division is to be worked out in accordance with the regulations.
28
The regulations may prescribe different regional value content
29
rules for different kinds of goods.
30
Value of goods
31
(3) The value of goods for the purposes of this Division is to be
32
worked out in accordance with the regulations. The regulations
33
may prescribe different valuation rules for different kinds of goods.
34
Schedule 1 Main amendments
Part 1 Chinese originating goods
8
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
Tariff classifications
1
(4) In prescribing tariff classifications for the purposes of this
2
Division, the regulations may refer to the Harmonized System.
3
(5) Subsection 4(3A) does not apply for the purposes of this Division.
4
Incorporation of other instruments
5
(6) Despite subsection 14(2) of the Legislative Instruments Act 2003,
6
regulations made for the purposes of this Division may make
7
provision in relation to a matter by applying, adopting or
8
incorporating, with or without modification, any matter contained
9
in an instrument or other writing as in force or existing from time
10
to time.
11
Subdivision B--Goods wholly obtained or produced in the
12
territory of China
13
153ZOC Goods wholly obtained or produced in the territory of
14
China
15
(1) Goods are Chinese originating goods if:
16
(a) they are wholly obtained or produced in the territory of
17
China; and
18
(b) either:
19
(i) the importer of the goods has, at the time the goods are
20
imported, a Certificate of Origin or a Declaration of
21
Origin, or a copy of one, for the goods; or
22
(ii) Australia has waived the requirement for a Certificate of
23
Origin or a Declaration of Origin for the goods.
24
(2) Goods are wholly obtained or produced in the territory of China
25
if, and only if, the goods are:
26
(a) live animals born and raised in the territory of China; or
27
(b) goods obtained in the territory of China from live animals
28
referred to in paragraph (a); or
29
(c) goods obtained directly from hunting, trapping, fishing,
30
aquaculture, gathering or capturing conducted in the territory
31
of China; or
32
Main amendments Schedule 1
Chinese originating goods Part 1
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
9
(d) plants, or plant products, harvested, picked or gathered in the
1
territory of China; or
2
(e) minerals, or other naturally occurring substances, extracted or
3
taken in the territory of China; or
4
(f) goods, other than fish, shellfish, plant or other marine life,
5
extracted or taken from the waters, seabed or subsoil beneath
6
the seabed outside the territory of China, but only if China
7
has the right to exploit such waters, seabed or subsoil in
8
accordance with international law and the law of China; or
9
(g) fish, shellfish, plant or other marine life taken from the high
10
seas by a vessel registered with China and flying the flag of
11
China; or
12
(h) goods obtained or produced from goods referred to in
13
paragraph (g) on board factory ships that are registered with
14
China and flying the flag of China; or
15
(i) waste and scrap that:
16
(i) has been derived from production in the territory of
17
China; or
18
(ii) has been derived from used goods that are collected in
19
the territory of China and that are fit only for the
20
recovery of raw materials; or
21
(j) goods produced entirely in the territory of China exclusively
22
from goods referred to in paragraphs (a) to (i).
23
Subdivision C--Goods produced in China, or in China and
24
Australia, from originating materials
25
153ZOD Goods produced in China, or in China and Australia, from
26
originating materials
27
Goods are Chinese originating goods if:
28
(a) they are produced entirely in the territory of China, or
29
entirely in the territory of China and the territory of Australia,
30
from originating materials only; and
31
(b) either:
32
(i) the importer of the goods has, at the time the goods are
33
imported, a Certificate of Origin or a Declaration of
34
Origin, or a copy of one, for the goods; or
35
Schedule 1 Main amendments
Part 1 Chinese originating goods
10
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
(ii) Australia has waived the requirement for a Certificate of
1
Origin or a Declaration of Origin for the goods.
2
Subdivision D--Goods produced in China, or in China and
3
Australia, from non-originating materials
4
153ZOE Goods produced in China, or in China and Australia, from
5
non-originating materials
6
(1) Goods are Chinese originating goods if:
7
(a) they are classified to a Chapter, heading or subheading of the
8
Harmonized System specified in column 1 of the table in
9
Part 2 of Schedule 1 to the regulations made for the purposes
10
of this Subdivision; and
11
(b) they are produced entirely in the territory of China, or
12
entirely in the territory of China and the territory of Australia,
13
from non-originating materials only or from non-originating
14
materials and originating materials; and
15
(c) each requirement that is prescribed by the regulations to
16
apply in relation to the goods is satisfied; and
17
(d) either:
18
(i) the importer of the goods has, at the time the goods are
19
imported, a Certificate of Origin or a Declaration of
20
Origin, or a copy of one, for the goods; or
21
(ii) Australia has waived the requirement for a Certificate of
22
Origin or a Declaration of Origin for the goods.
23
Change in tariff classification
24
(2) The regulations may prescribe that each non-originating material
25
used in the production of the goods is required to satisfy a
26
prescribed change in tariff classification.
27
(3) The regulations may also prescribe when a non-originating
28
material used in the production of the goods is taken to satisfy the
29
change in tariff classification.
30
(4) If:
31
(a) the requirement referred to in subsection (2) applies in
32
relation to the goods; and
33
Main amendments Schedule 1
Chinese originating goods Part 1
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
11
(b) one or more of the non-originating materials used in the
1
production of the goods do not satisfy the change in tariff
2
classification;
3
then the requirement referred to in subsection (2) is taken to be
4
satisfied if the total value of those non-originating materials does
5
not exceed 10% of the customs value of the goods.
6
Regional value content
7
(5) The regulations may prescribe that the goods are required to have a
8
regional value content of at least a prescribed percentage.
9
(6) If:
10
(a) the goods are required to have a regional value content of at
11
least a particular percentage; and
12
(b) the goods are imported into Australia with accessories, spare
13
parts or tools; and
14
(c) the accessories, spare parts or tools are classified and
15
invoiced with the goods and are included in the price of the
16
goods; and
17
(d) the quantities and value of the accessories, spare parts or
18
tools are customary for the goods; and
19
(e) the accessories, spare parts or tools are non-originating
20
materials;
21
then the regulations must require the value of the accessories, spare
22
parts or tools to be taken into account as non-originating materials
23
for the purposes of working out the regional value content of the
24
goods.
25
Note:
The value of the accessories, spare parts or tools is to be worked out in
26
accordance with the regulations: see subsection 153ZOB(3).
27
(7) For the purposes of subsection (6), disregard section 153ZOG in
28
working out whether the accessories, spare parts or tools are
29
non-originating materials.
30
No limit on regulations
31
(8) Subsections (2) and (5) do not limit paragraph (1)(c).
32
Schedule 1 Main amendments
Part 1 Chinese originating goods
12
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
153ZOF Packaging materials and containers
1
(1) If:
2
(a) goods are packaged for retail sale in packaging material or a
3
container; and
4
(b) the packaging material or container is classified with the
5
goods in accordance with Rule 5 of the Interpretation Rules;
6
then the packaging material or container is to be disregarded for
7
the purposes of this Subdivision.
8
Regional value content
9
(2) However, if:
10
(a) the goods are required to have a regional value content of at
11
least a particular percentage; and
12
(b) the packaging material or container is a non-originating
13
material;
14
then the regulations must require the value of the packaging
15
material or container to be taken into account as a non-originating
16
material for the purposes of working out the regional value content
17
of the goods.
18
Note:
The value of the packaging material or container is to be worked out
19
in accordance with the regulations: see subsection 153ZOB(3).
20
Subdivision E--Goods that are accessories, spare parts or tools
21
153ZOG Goods that are accessories, spare parts or tools
22
Goods are Chinese originating goods if:
23
(a) they are accessories, spare parts or tools in relation to other
24
goods; and
25
(b) the other goods are imported into Australia with the
26
accessories, spare parts or tools; and
27
(c) the other goods are Chinese originating goods; and
28
(d) the accessories, spare parts or tools are classified and
29
invoiced with the other goods and are included in the price of
30
the other goods; and
31
Main amendments Schedule 1
Chinese originating goods Part 1
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
13
(e) the accessories, spare parts or tools are not imported solely
1
for the purpose of artificially raising the regional value
2
content of the other goods; and
3
(f) the quantities and value of the accessories, spare parts or
4
tools are customary for the other goods.
5
Subdivision F--Non-qualifying operations
6
153ZOH Non-qualifying operations
7
(1) Goods are not Chinese originating goods under this Division
8
merely because of the following operations or processes:
9
(a) operations or processes to preserve goods in good condition
10
for the purpose of transport or storage of the goods;
11
(b) packaging or repackaging;
12
(c) sifting, screening, sorting, classifying, grading or matching
13
(including the making up of sets of goods);
14
(d) placing in bottles, cans, flasks, bags, cases or boxes, fixing on
15
cards or boards or other simple packaging operations;
16
(e) affixing or printing marks, labels, logos or other like
17
distinguishing signs on goods or on their packaging;
18
(f) disassembly of goods.
19
(2) This section applies despite any other provision of this Division.
20
Subdivision G--Consignment
21
153ZOI Consignment
22
(1) Goods are not Chinese originating goods under this Division if the
23
goods are transported through the territory of a non-party and one
24
or more of the following apply:
25
(a) the goods undergo any operation in the territory of the
26
non-party (other than unloading, reloading, repacking,
27
relabelling for the purpose of satisfying the requirements of
28
Australia, splitting up of the goods for further transport,
29
temporary storage or any operation that is necessary to
30
preserve the goods in good condition);
31
Schedule 1 Main amendments
Part 1 Chinese originating goods
14
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
(b) if the goods undergo temporary storage in the territory of the
1
non-party--the goods remain in the territory of the non-party
2
for a period exceeding 12 months;
3
(c) the goods do not remain under customs control at all times
4
while the goods are in the territory of the non-party.
5
(2) Without limiting paragraph (1)(c), the regulations may make
6
provision for the circumstances in which goods are under customs
7
control while the goods are in the territory of a non-party.
8
(3) This section applies despite any other provision of this Division.
9
Main amendments Schedule 1
Verification powers Part 2
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
15
Part 2
--Verification powers
1
Customs Act 1901
2
2 After Division 4H of Part VI
3
Insert:
4
Division 4J--Exportation of goods to China
5
126AOA Definitions
6
In this Division:
7
Agreement means the China-Australia Free Trade Agreement,
8
done at Canberra on 17 June 2015, as amended from time to time.
9
Note:
The Agreement could in 2015 be viewed in the Australian Treaties
10
Library on the AustLII website (http://www.austlii.edu.au).
11
Chinese customs official means a person representing the customs
12
administration of the territory of China.
13
producer means a person who grows, raises, mines, harvests,
14
fishes, farms, traps, hunts, captures, gathers, collects, breeds,
15
extracts, manufactures, processes or assembles goods.
16
territory of China means territory within the meaning, so far as it
17
relates to China, of Article 1.3 of the Agreement, and does not
18
include the customs territory of the following members of the
19
World Trade Organization established by the World Trade
20
Organization Agreement:
21
(a) Hong Kong, China;
22
(b) Macao, China;
23
(c) Separate Customs Territory of Taiwan, Penghu, Kinmen and
24
Matsu.
25
World Trade Organization Agreement means the Marrakesh
26
Agreement establishing the World Trade Organization, done at
27
Marrakesh on 15 April 1994.
28
Schedule 1 Main amendments
Part 2 Verification powers
16
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
Note:
The Agreement is in Australian Treaty Series 1995 No. 8 ([1995] ATS
1
8) and could in 2015 be viewed in the Australian Treaties Library on
2
the AustLII website (http://www.austlii.edu.au).
3
126AOB Record keeping obligations
4
Regulations may prescribe record keeping obligations
5
(1) The regulations may prescribe record keeping obligations that
6
apply in relation to goods that:
7
(a) are exported to the territory of China; and
8
(b) are claimed to be Australian originating goods for the
9
purpose of obtaining a preferential tariff in the territory of
10
China.
11
On whom obligations may be imposed
12
(2) Regulations for the purposes of subsection (1) may impose such
13
obligations on an exporter or producer of goods.
14
126AOC Power to require records
15
Requirement to produce records
16
(1) An authorised officer may require a person who is subject to record
17
keeping obligations under regulations made for the purposes of
18
section 126AOB to produce to the officer such of those records as
19
the officer requires.
20
Note:
Failing to produce a record when required to do so by an officer may
21
be an offence: see section 243SB. However, a person does not have to
22
produce a record if doing so would tend to incriminate the person: see
23
section 243SC.
24
Disclosing records to Chinese customs official
25
(2) An authorised officer may, for the purpose of verifying a claim for
26
a preferential tariff in the territory of China, disclose any records so
27
produced to a Chinese customs official.
28
Main amendments Schedule 1
Verification powers Part 2
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
17
126AOD Power to ask questions
1
Power to ask questions
2
(1) An authorised officer may require a person who is an exporter or
3
producer of goods that:
4
(a) are exported to the territory of China; and
5
(b) are claimed to be Australian originating goods for the
6
purpose of obtaining a preferential tariff in the territory of
7
China;
8
to answer questions in order to verify the origin of the goods.
9
Note:
Failing to answer a question when required to do so by an officer may
10
be an offence: see section 243SA. However, a person does not have to
11
answer a question if doing so would tend to incriminate the person:
12
see section 243SC.
13
Disclosing answers to Chinese customs official
14
(2) An authorised officer may, for the purpose of verifying a claim for
15
a preferential tariff in the territory of China, disclose any answers
16
to such questions to a Chinese customs official.
17
Schedule 1 Main amendments
Part 3 Application provisions
18
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
No. , 2015
Part 3
--Application provisions
1
3 Application provisions
2
(1)
The amendment made by item 1 applies in relation to:
3
(a) goods imported into Australia on or after the commencement
4
of that item; and
5
(b) goods imported into Australia before the commencement of
6
that item, where the time for working out the rate of import
7
duty on the goods had not occurred before the
8
commencement of that item.
9
(2)
The amendment made by item 2 applies in relation to goods exported to
10
the territory of China on or after the commencement of that item
11
(whether the goods were produced before, on or after that
12
commencement).
13
Contingent amendments Schedule 2
No. , 2015
Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015
19
Schedule 2
--Contingent amendments
1
2
Customs Act 1901
3
1 Subsection 153ZOB(6)
4
Omit "Legislative Instruments Act 2003", substitute "Legislation Act
5
2003".
6