CUSTOMS AMENDMENT (ASEAN-AUSTRALIA-NEW ZEALAND FREE TRADE AGREEMENT IMPLEMENTATION) BILL 2009

i Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement

Implementation) Bill 2009 No. , 2009

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments

Customs Act 1901

Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement Implementation)

Bill 2009 No. , 2009 1

A Bill for an Act to amend the Customs Act 1901,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Customs Amendment

(ASEAN-Australia-New Zealand Free Trade Agreement

Implementation) Act 2009.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement

Implementation) Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

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 Agreement Establishing the

ASEAN-Australia-New Zealand Free

Trade Area, done at Thailand on

27 February 2009, enters into force for

Australia.

However, the provision(s) 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.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement Implementation)

Bill 2009 No. , 2009 3

Schedule 1--Amendments

Customs Act 1901

1 After Division 1F of Part VIII

Insert:

Division 1G--ASEAN-Australia-New Zealand (AANZ)

originating goods

Subdivision A--Preliminary

153ZKA Simplified outline

The following is a simplified outline of this Division:

�

This Division defines AANZ originating goods (short for

ASEAN-Australia-New Zealand originating goods).

Preferential rates of customs duty under the Customs Tariff

Act 1995 apply to AANZ originating goods that are imported

into Australia.

�

Subdivision B provides that goods are AANZ originating

goods if they are wholly obtained goods of a Party.

�

Subdivision C provides that goods are AANZ originating

goods if they are produced entirely in a Party from originating

materials only.

�

Subdivision D sets out when goods are AANZ originating

goods because they are produced from non-originating

materials only or from non-originating materials and

originating materials.

�

Subdivision E sets out when goods are AANZ originating

goods because they are accessories, spare parts, tools or

instructional or other information materials imported with

other goods.

Schedule 1 Amendments

4 Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement

Implementation) Bill 2009 No. , 2009

�

Subdivision F deals with how the consignment of goods

affects whether the goods are AANZ originating goods.

153ZKB Interpretation

Definitions

(1) In this Division:

AANZ originating goods means goods that, under this Division,

are AANZ originating goods.

Agreement means the Agreement Establishing the

ASEAN-Australia-New Zealand Free Trade Area, done at Thailand

on 27 February 2009, as amended from time to time.

Note:

In 2009, the text of the Agreement was accessible through the

Australian Treaties Library on the AustLII website

(www.austlii.edu.au).

aquaculture has the meaning given by Article 1 of Chapter 3 of the

Agreement.

Certificate of Origin means a certificate that is in force and that

complies with the requirements of Rule 7 of the Annex to

Chapter 3 of the Agreement.

Convention means the International Convention on the

Harmonized Commodity Description and Coding System done at

Brussels on 14 June 1983, as in force from time to time.

Note:

The text of the Convention is set out in Australian Treaty Series 1988

No. 30 ([1988] ATS 30). In 2009, the text of a Convention in the

Australian Treaty Series was accessible through the Australian

Treaties Library on the AustLII website (www.austlii.edu.au).

customs value of goods has the meaning given by section 159.

exclusive economic zone has the same meaning as in the Seas and

Submerged Lands Act 1973.

Harmonized System means the Harmonized Commodity

Description and Coding System (as in force from time to time) that

is established by or under the Convention.

in a Party includes:

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Bill 2009 No. , 2009 5

(a) the territorial sea of a Party; and

(b) the exclusive economic zone of a Party over which the Party

exercises sovereign rights or jurisdiction in accordance with

international law; and

sovereign rights or jurisdiction in accordance with

international law.

indirect materials means:

(a) goods or energy used in the production, testing or inspection

of goods, but not physically incorporated in the goods; or

(b) goods or energy used in the maintenance of buildings or the

operation of equipment associated with the production of

goods;

including:

(d) tools, dies and moulds; and

(e) spare parts and materials; and

(f) lubricants, greases, compounding materials and other similar

goods; and

(g) gloves, glasses, footwear, clothing, safety equipment and

supplies; and

(h) catalysts and solvents.

Interpretation Rules means the General Rules (as in force from

time to time) for the Interpretation of the Harmonized System

provided for by the Convention.

non-originating materials means goods that are not originating

materials.

originating materials means:

(a) AANZ originating goods that are used or consumed in the

production of other goods; or

(b)

indirect

materials.

Party means a Party (within the meaning of the Agreement) for

which the Agreement has entered into force.

Note:

See also subsection (7).

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produce means grow, farm, raise, breed, mine, harvest, fish, trap,

hunt, capture, gather, collect, extract, manufacture, process or

assemble.

territorial sea has the same meaning as in the Seas and Submerged

Lands Act 1973.

Regional value content of goods

(2)

The

regional value content of goods for the purposes of this

Division is to be worked out in accordance with the regulations.

The regulations may prescribe different regional value content

rules for different kinds of goods.

Value of goods

(3)

The

value of goods for the purposes of this Division is to be

worked out in accordance with the regulations. The regulations

may prescribe different valuation rules for different kinds of goods.

Tariff classifications

(4) In specifying tariff classifications for the purposes of this Division,

the regulations may refer to the Harmonized System.

(5) Subsection 4(3A) does not apply for the purposes of this Division.

Incorporation of other instruments

(6) For the purposes of this Division, the regulations may apply, adopt

or incorporate any matter contained in any instrument or other

writing as in force or existing from time to time.

Notification of entry into force of Agreement for a Party

(7) The Minister must announce by notice in the Gazette the day on

which the Agreement enters into force for a Party (other than

Australia). For the purposes of this subsection, Party means a Party

(within the meaning of the Agreement).

(8) A notice referred to in subsection (7) is not a legislative instrument.

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Subdivision B--Wholly obtained goods of a Party

153ZKC Wholly obtained goods of a Party

(1)

Goods

are

AANZ originating goods if:

(a) they are wholly obtained goods of a Party; and

(b) the importer of the goods has, at the time the goods are

imported, a Certificate of Origin, or a copy of one, for the

goods.

(2)

Goods

are

wholly obtained goods of a Party if, and only if, the

goods are:

(a) plants, or goods obtained from plants, that are grown,

harvested, picked or gathered in a Party (including fruit,

flowers, vegetables, trees, seaweed, fungi and live plants); or

(b) live animals born and raised in a Party; or

(d) goods obtained from hunting, trapping, fishing, farming,

aquaculture, gathering or capturing in a Party; or

(e) minerals or other naturally occurring substances extracted or

taken in a Party; or

(f) fish, shellfish or other marine goods taken from the high seas,

in accordance with international law, by ships that are

registered or recorded in a Party and are flying, or are entitled

to fly, the flag of that Party; or

(g) goods produced from goods referred to in paragraph (f) on

board factory ships that are registered or recorded in a Party

and are flying, or are entitled to fly, the flag of that Party; or

(h) goods taken by a Party, or a person of a Party, from the

seabed, or beneath the seabed, outside:

(i) the exclusive economic zone of that Party; and

(ii) the continental shelf of that Party; and

(iii) an area over which a third party exercises jurisdiction;

and taken under exploitation rights granted in accordance

with international law; or

(i) waste and scrap that has been derived from production or

consumption in a Party and that is fit only for the recovery of

raw materials; or

(j) used goods that are collected in a Party and that are fit only

for the recovery of raw materials; or

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(k) goods produced or obtained entirely in a Party exclusively

from goods referred to in paragraphs (a) to (j) or from their

derivatives.

Subdivision C--Goods produced from originating materials

153ZKD Goods produced from originating materials

Goods

are

AANZ originating goods if:

(a) they are produced entirely in a Party from originating

materials only; and

(b) the importer of the goods has, at the time the goods are

imported, a Certificate of Origin, or a copy of one, for the

goods.

Subdivision D--Goods produced from non-originating

materials

153ZKE Goods produced from non-originating materials and

classified in the tariff table

(1)

Goods

are

AANZ originating goods if:

(a) they are classified to a heading or subheading of the

Harmonized System specified in column 1 or 2 of the table in

Schedule 1 to the Customs (ASEAN-Australia-New Zealand

Rules of Origin) Regulations 2009; and

(b) each requirement that is specified in the regulations to apply

in relation to the goods is satisfied; and

imported, a Certificate of Origin, or a copy of one, for the

goods.

Change in tariff classification

(2) The regulations may specify that each non-originating material

used or consumed in the production of the goods is required to

satisfy a specified change in tariff classification.

(3) The regulations may also specify when a non-originating material

used or consumed in the production of the goods is taken to satisfy

the change in tariff classification.

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Bill 2009 No. , 2009 9

(4)

If:

(a) the requirement referred to in subsection (2) applies in

relation to the goods; and

(b) one or more of the non-originating materials used or

consumed in the production of the goods do not satisfy the

change in tariff classification;

then the requirement referred to in subsection (2) is taken to be

satisfied if the total value of those non-originating materials does

not exceed 10% of the customs value of the goods.

(5)

If:

(a) the requirement referred to in subsection (2) applies in

relation to the goods; and

(b) the goods are classified to any of Chapters 50 to 63 of the

Harmonized System; and

consumed in the production of the goods do not satisfy the

change in tariff classification;

then the requirement referred to in subsection (2) is taken to be

satisfied if the total weight of those non-originating materials does

not exceed 10% of the total weight of the goods.

Regional value content

(6) The regulations may specify that the goods are required to have a

regional value content of at least a specified percentage.

(7)

If:

(a) the goods are required to have a regional value content of at

least a particular percentage; and

(b) the goods are imported into Australia with accessories, spare

parts, tools or instructional or other information materials;

and

information materials are not invoiced separately from the

goods; and

(d) the quantities and value of the accessories, spare parts, tools

or instructional or other information materials are customary

for the goods;

then the regulations must require the value of the accessories, spare

parts, tools or instructional or other information materials to be

Schedule 1 Amendments

10 Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement

Implementation) Bill 2009 No. , 2009

taken into account as originating materials or non-originating

materials, as the case may be, for the purposes of working out the

regional value content of the goods.

Note:

The value of the accessories, spare parts, tools or instructional or other

information materials is to be worked out in accordance with the

regulations: see subsection 153ZKB(3).

(8) For the purposes of subsection (7), disregard section 153ZKI in

working out whether the accessories, spare parts, tools or

instructional or other information materials are originating

materials or non-originating materials.

(9) However, subsection (7) does not apply if the accessories, spare

parts, tools or instructional or other information materials are

imported solely for the purpose of artificially raising the regional

value content of the goods.

No limit on regulations

(10) Subsections (2) and (6) do not limit paragraph (1)(b).

153ZKF Goods produced from non-originating materials and not

classified in the tariff table

Regional value content of at least 40%

(1)

Goods

are

AANZ originating goods if:

(a) they are classified to a heading or subheading of the

Harmonized System that is not specified in column 1 or 2 of

the table in Schedule 1 to the Customs

(ASEAN-Australia-New Zealand Rules of Origin)

Regulations 2009; and

(b) the final process in their production was performed in a

Party; and

(d) the importer of the goods has, at the time the goods are

imported, a Certificate of Origin, or a copy of one, for the

goods.

(2) For the purposes of subsection (1), if:

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Bill 2009 No. , 2009 11

(a) the goods are imported into Australia with accessories, spare

parts, tools or instructional or other information materials;

and

(b) the accessories, spare parts, tools or instructional or other

information materials are not invoiced separately from the

goods; and

or instructional or other information materials are customary

for the goods;

then the regulations must require the value of the accessories, spare

parts, tools or instructional or other information materials to be

taken into account as originating materials or non-originating

materials, as the case may be, for the purposes of working out the

regional value content of the goods.

Note:

The value of the accessories, spare parts, tools or instructional or other

information materials is to be worked out in accordance with the

regulations: see subsection 153ZKB(3).

(3) For the purposes of subsection (2), disregard section 153ZKI in

working out whether the accessories, spare parts, tools or

instructional or other information materials are originating

materials or non-originating materials.

(4) However, subsection (2) does not apply if the accessories, spare

parts, tools or instructional or other information materials are

imported solely for the purpose of artificially raising the regional

value content of the goods.

Change in tariff classification at heading level

(5)

Goods

are

AANZ originating goods if:

(a) they are classified to a heading or subheading of the

Harmonized System that is not specified in column 1 or 2 of

the table in Schedule 1 to the Customs

(ASEAN-Australia-New Zealand Rules of Origin)

Regulations 2009; and

(b) they are produced entirely in one or more Parties from

non-originating materials only or from non-originating

materials and originating materials; and

production of the goods undergoes a change in tariff

classification that is a change to a heading of the Harmonized

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Implementation) Bill 2009 No. , 2009

System from any other heading of the Harmonized System;

and

(d) the importer of the goods has, at the time the goods are

imported, a Certificate of Origin, or a copy of one, for the

goods.

(6) For the purposes of paragraph (5)(c), if one or more of the

non-originating materials used or consumed in the production of

the goods do not satisfy the change in tariff classification referred

to in that paragraph, then that paragraph is taken to be satisfied if

the total value of those non-originating materials does not exceed

10% of the customs value of the goods.

(7) For the purposes of paragraph (5)(c), if:

(a) the goods are classified to any of Chapters 50 to 63 of the

Harmonized System; and

(b) one or more of the non-originating materials used or

consumed in the production of the goods do not satisfy the

change in tariff classification referred to in that paragraph;

then that paragraph is taken to be satisfied if the total weight of

those non-originating materials does not exceed 10% of the total

weight of the goods.

153ZKG Non-qualifying operations or processes

(1) This section applies for the purposes of working out if goods are

AANZ originating goods under:

(a) subsection 153ZKE(1) where, in relation to paragraph

153ZKE(1)(b), the goods are claimed to be AANZ

originating goods solely on the basis that the goods have a

regional value content of at least a particular percentage; or

(b)

subsection

153ZKF(1).

(2) The goods are not AANZ originating goods merely because of the

following:

(a) operations or processes to preserve goods in good condition

for the purpose of transport or storage of the goods;

(b) operations or processes to facilitate the shipment or

transportation of goods;

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Bill 2009 No. , 2009 13

transportation or sale or presenting goods for transportation

or sale;

(d) simple processes of sifting, classifying, washing, cutting,

slitting, bending, coiling, uncoiling or other similar simple

processes;

(e) affixing of marks, labels or other distinguishing signs on

goods or on their packaging;

(f) dilution with water or another substance that does not

materially alter the characteristics of goods;

(g) any combination of things referred to in paragraphs (a) to (f).

153ZKH Packaging materials and containers

(1)

If:

(a) goods are packaged for retail sale in packaging material or a

container; and

(b) the packaging material or container is classified with the

goods in accordance with Rule 5 of the Interpretation Rules;

then the packaging material or container is to be disregarded for

the purposes of this Subdivision (with one exception).

Exception

(2) If the goods are required to have a regional value content of at least

a particular percentage, the regulations must require the value of

the packaging material or container to be taken into account as

originating materials or non-originating materials, as the case may

be, for the purposes of working out the regional value content of

the goods.

Note:

The value of the packaging material or container is to be worked out

in accordance with the regulations: see subsection 153ZKB(3).

Subdivision E--Goods that are accessories, spare parts, tools or

instructional or other information materials

153ZKI Goods that are accessories, spare parts, tools or

instructional or other information materials

Goods

are

AANZ originating goods if:

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14 Customs Amendment (ASEAN-Australia-New Zealand Free Trade Agreement

Implementation) Bill 2009 No. , 2009

(a) they are accessories, spare parts, tools or instructional or

other information materials in relation to other goods; and

(b) the other goods are imported into Australia with the

accessories, spare parts, tools or instructional or other

information materials; and

information materials are not imported solely for the purpose

of artificially raising the regional value content of the other

goods; and

(d) the other goods are AANZ originating goods; and

(e) the accessories, spare parts, tools or instructional or other

information materials are not invoiced separately from the

other goods; and

(f) the quantities and value of the accessories, spare parts, tools

or instructional or other information materials are customary

for the other goods.

Subdivision F--Consignment

153ZKJ Consignment

(1) Goods are not AANZ originating goods under this Division if:

(a) the goods are transported through a country or place other

than a Party; and

(b) at least one of the following applies:

(i) the goods undergo subsequent production or any other

operation in that country or place (other than unloading,

reloading, storing or any operation that is necessary to

preserve the goods in good condition or to transport the

goods to Australia);

(ii) the goods enter the commerce of that country or place;

(iii) the transport through that country or place is not

justified by geographical, economic or logistical

reasons.

(2) This section applies despite any other provision of this Division.

2 Application

(1)

Subject to this item, the amendment made by item 1 applies in relation

to:

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Bill 2009 No. , 2009 15

(a) goods imported into Australia on or after the commencement

of this item; and

(b) goods imported into Australia before the commencement of

this item, where the time for working out the rate of import

duty on the goods had not occurred before the

commencement of this item.

(2)

For a Party for which the Agreement enters into force on a day (the start

day) later than the day on which the Agreement enters into force for

Australia, the amendment made by item 1 applies in relation to:

(a) goods imported into Australia on or after the start day; and

(b) goods imported into Australia before the start day, where the

time for working out the rate of import duty on the goods had

not occurred before the start day.

(3)

In this item:

Agreement means the Agreement Establishing the

ASEAN-Australia-New Zealand Free Trade Area, done at Thailand on

27 February 2009, as amended from time to time.

Note:

In 2009, the text of the Agreement was accessible through the Australian Treaties

Library on the AustLII website (www.austlii.edu.au).

Party means a Party (within the meaning of the Agreement).

Commonwealth of Australia Bills

CUSTOMS AMENDMENT (ASEAN-AUSTRALIA-NEW ZEALAND FREE TRADE AGREEMENT IMPLEMENTATION) BILL 2009