Australia: Doing Business in Australia - Transport and Customs Law

Last Updated: 1 May 2012
Article by Tony Holland

ADMIRALTY AND MARITIME LAW

Carriage of goods by sea

Australia's maritime law is headlined by its Carriage of Goods by Sea Act 1991 (Cth), which governs the liability of carriers and the sea carriage of goods.

A modified version of the Hague-Visby Rules applies to all shipments out of Australia and includes the package limitation of a carrier liability of the greater of 666.67 Special Drawing Rights (SDRs) per package or unit, or two SDRs per kilogram of gross weight of the goods lost or damaged.

The rule applies to bills of lading and consignment notes, sea waybills and ships' delivery orders, as well as to electronic bills of lading. A carrier's responsibility for shipments out of Australia extends from the time the goods are delivered to it within the limits of the port or wharf until the goods are delivered from the limits of the discharge port.

In certain circumstances, a carrier may also be liable for a loss due to delay but liability is limited to two-and-a-half times the freight payable for the goods delayed. For shipments into Australia, jurisdiction clauses contained in bills of lading are ineffective if they preclude or limit the jurisdiction of Australian courts.

Ship arrest

Australia is a signatory to the 1952 Convention on the Arrest of Sea-Going Ships.

Under the Admiralty Act 1988 (Cth), in rem jurisdiction is exercised by Australia's Federal Court and the Supreme Court of each state and territory. The right to commence proceedings against a ship extends to maritime liens, proprietary maritime claims (ie claims to title in respect of the mortgage of a ship) and general maritime claims, which include claims for damage to goods or property, claims for salvage and personal injury claims.

For general maritime claims, in rem proceedings can only be commenced if the person with personal liability for the claim, ie the "relevant person", is the owner or demise charterer of the ship at the time proceedings are commenced. In rem proceedings can also be commenced against a surrogate or sister ship.

By commencing in rem proceedings, the plaintiff has an automatic right to obtain an arrest warrant from a court unless a caveat against arrest has been lodged.

Following arrest, it is common for security to be provided by a P&I Club (a mutual insurer of shipowners) for the amount of the claim plus interest and costs by way of a written undertaking, also known as a "Club letter".

Limitation of liability

Australia is a signatory to the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims.

Under the Limitation of Liability for Maritime Claims Act 1989 (Cth), shipowners, including owners, charterers, managers and operators of a sea-going ship, are entitled to limit liability for damage to property occurring on-board or in direct connection with the operation of the ship.

Registering a ship

A ship must be registered under the Australian flag if:

  • More than half of the 64 possible shares in the ship are owned by Australian nationals or companies, where there are multiple or common owners, or it is operated by Australian nationals or an Australian company
  • It is a commercial ship more than 12 metres in overall length
  • It is a commercial ship more than 12 metres in overall length on demise, ie bare boat, chartered to an Australian-based operator.

A ship may be registered in Australia if:

  • More than half of the 64 possible shares in the ship are owned by Australian nationals or companies
  • It is less than 12 metres in length overall and wholly owned or operated by Australian residents, nationals or companies
  • The ship is less than 12 metres in length overall and on demise, ie bare boat, chartered to an Australian-based operator.

Carriage of goods by air

Since 24 January 2009, the Montreal Convention 1999 has formed part of Australian law and is incorporated into Australian law by way of amendments made to the Civil Aviation (Carriers' Liability) Act 1959 (Cth).

Under the Montreal Convention, an air carrier is strictly liable for damage to goods occurring during international air carriage.

If the country from where the goods have been carried is a signatory to the Montreal Convention, the amount recoverable is limited to 19 SDRs per kilogram of cargo. When the country from where the goods have been flown is not a signatory to the Montreal Convention, the 250 gold franc limit provided for in the Warsaw Convention may apply.

In relation to death or injury claims, an air carrier is strictly liable for damages up to 113,100 SDRs and is exposed to unlimited damages unless it can establish that damage was not caused by its negligence or was caused by the negligence of a third party.

In relation to baggage claims, the limit of carrier liability is 1,131 SDRs.

In relation to domestic air carriage by a regular public transport operator, the current limit of passenger liability is AU$500,000 for death or personal injury.

Carriage of goods by road

In Australia, road carriers are able to limit or exclude their liability for loss or damage to goods by incorporating properly worded terms and conditions into their carriage contracts. This is different from many other countries and it is usual for Australian road carriers to claim to exclude all liability for loss or damage to goods.

However, in the case of carriage and storage of household goods and personal effects, implied guarantee to exercise due care and skill applies in line with certain contracts for the supply of services. In this case, Australia's Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law that forms part of that Act come into play.

CUSTOMS AND TRADE LAW

Imports and exports

Importing and exporting goods is principally covered by the Customs Act 1901 (Cth) (Customs Act) and associated Regulations.

Compliance with customs

The Australian Customs Service (Customs) expects that industry and the international trading community will comply with the customs legislation in all transactions involving the movement of ships and aircraft to and from Australia. There are a number of penalties for noncompliance, many of which are strict liability and do not require intent in order to be proven. These relate to providing false or misleading statements, unauthorised goods or interference with goods, and loading goods for export without authority to deal. Customs will consider whether a sanction is the best means for achieving future compliance.

Liability for payment of customs duty and Goods and Services Tax (GST) arises when the goods are entered for home consumption, ie when they are cleared through customs. Such liability is imposed on the owner of the goods, where "owner" is broadly defined.

Goods must be entered for home consumption by the end of the day following their import into Australia, ie the administrative process of clearing the goods through Customs must be complete by that time. Even if a Customs agent is employed to clear the goods, the importer is responsible for the accuracy of the entry.

If goods are merely passing through Australia, no duty or GST is levied. However, Customs officers have powers of direction over transhipped goods.

Intergrated Cargo System

The Integrated Cargo System (ICS) was introduced in 2005 and Customs now requires all cargo to be reported electronically on the ICS prior to arriving in Australia. This includes in-transit and transhipment cargo.

Customs has a number of specific requirements for communicating electronically with it and these should be reviewed at www.customs.gov.au.

Australia Quarantine Inspection Service requirements

The Australian Quarantine Inspection Service (AQIS) has strict quarantine requirements that must be complied with before goods can be imported to, or exported from, Australia. These include examination and inspection of all animal, plant and human products and should be reviewed on the AQIS website at www.daff.gov.au/aqis.

Import Permit System Regulations

The Customs Act prohibits the import of certain goods, either absolutely or conditionally. The nature of the goods determines whether or not a permit to import the goods is required under the Customs (Prohibited Imports) Regulations. The value of the goods has no bearing on the matter.

Goods requiring an import permit include such things as food and plant imports, protected wildlife, motor vehicles, intellectual property, drugs, firearms and other hazardous or dangerous goods. Permits must be obtained before goods arrive in Australia or they may be forfeited.

Export Permit System Regulations

Goods controlled by the Customs (Prohibited Exports) Regulations or other legislation require a permit to export. Such goods include fruit and vegetables and other primary products, cultural heritage items, protected wildlife and hazardous waste.

Goods may not be exported or loaded on to an aircraft or ship unless they have been entered for export and had an Export Clearance Number assigned. Certificates for departure are only issued once requirements for all cargo are met.

International obligations

Australia's membership of the World Trade Organisation and contracting party status to the General Agreement on Tariffs and Trade 1994 (GATT) and associated multilateral side agreements mean it is obliged to charge no more than its agreed maximum tariff rate on imports from other signatory countries. It must also accord no less favourable tariff treatment to imports from another signatory country.

Australia has given effect to the anti-dumping provisions of the GATT, and the Customs Act sets out the framework for complaints about dumping, which may be applied for where:

  • A consignment of goods has been, or is likely to be, imported into Australia
  • There is, or may be established, an Australian industry producing like goods
  • A person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment.

Dumping and countervailing duties impost is governed by the Customs Tariff (Anti-Dumping) Act 1975 (Cth).

Being a member of the World Customs Organisation, Australia has adopted the Harmonised Commodity Description and Coding System 1983. This is given effect through the Customs Tariff Act 1995 (Cth) (Tariff Act), which sets out the rules of interpretation and tariff classification. Where more than one classification item may apply, the Tariff Act provides a mechanism for solution. Australia adopts GATT's Valuation Code Free On Board method to value goods subject to customs duties.

Australia is a signatory to the United Nations Educational, Scientific and Cultural Organisation Agreement on the Importation of Educational, Scientific and Cultural Materials, which excludes educational, scientific or cultural goods from customs duties and other charges.

Preferential rates of duty apply to goods from developing countries.

Bilateral trading agreements

New Zealand

Most goods may be imported from New Zealand free of customs duties as a result of a longstanding bilateral trading agreement between the two countries. This is ratified by the Customs Legislation Amendment (New Zealand Rules of Origin) Act 2006 (Cth), which introduced new rules of origin for goods traded under the Australia New Zealand Closer Economic Relations Trade Agreement.

These rules provide that New Zealand-originating goods will be eligible for a preferential rate of customs duty under the Tariff Act. Goods will be New Zealand-originating goods where they meet the change in tariff classification and/or regional value content requirement.

Other agreements

Australia has bilateral trading agreements with the US, Thailand and Singapore, which allow goods from these countries to be either free of duty or subject to a concessional rate.

Marking requirements on goods

Australia's Competition and Consumer Act 2010 (Cth) prohibits corporations engaging in misleading and deceptive conduct and provides specifically for country of origin representations and whether or not they are misleading and deceptive. Representations are not considered misleading or deceptive if 50% or more of the cost of producing or manufacturing the goods occurred in that alleged country of origin.

The Commerce (Trade Description) Act 1905 (Cth) and associated Regulations prescribe that certain imports, including shoes, electrical appliances, toys, agricultural seeds and jewellery, be labelled before entering Australia for consumption. False trade descriptions or those likely to mislead attract penalties, including forfeiting the goods.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions