International Trade 2024 Comparisons

Australia was both a founding member of the WTO and the General Agreement on Tariffs and Trade. Australia has also signed on to the following plurilateral agreements:

• the Government Procurement Agreement;
• the Information Technology Agreement; and
• the Trade Facilitation Agreement.

Additionally, Australia is an observer to the Committee on Trade in Civil Aircraft.

Australia is party to the following free trade agreements (FTAs):

• Australia–New Zealand Closer Economic Relations Trade Agreement;
• Singapore–Australia FTA, including the Australia–Singapore Digital Economy Agreement;
• Australia–USA FTA;
• Thailand–Australia FTA;
• Australia–Chile FTA;
• ASEAN–Australia–New Zealand FTA;
• Malaysia–Australia FTA;
• Korean–Australia FTA;
• Japan–Australia Economic Partnership Agreement;
• China–Australia FTA;
• Comprehensive and Progressive Agreement for Trans–Pacific Partnership (CPTTP);
• Australia–Hong Kong FTA;
• Peru–Australia FTA;
• Indonesia–Australia Comprehensive Economic Partnership Agreement;
• Pacific Agreement on Closer Economic Relations Plus;
• Regional Comprehensive Economic Partnership Agreement;
• Australia–India Economic Cooperation and Trade Agreement (ECTA); and
• Australia–United Kingdom FTA (UKFTA).

Australia participates in the Generalised System of Preferences schemes for some developing countries, Hong Kong, the Republic of Korea, and Chinese Taipei, in addition to providing preferential rules of origin for least-developed countries. Australia also participates in the South Pacific Regional Trade and Economic Cooperation Agreement and provides preferential duty rates for Pacific Islands Forum members.

Australia is presently negotiating the following FTAs, with varying degrees of progress:

• Australia–European Union FTA (EUFTA);
• Australia–Gulf Cooperation Council FTA;
• Australia–India Comprehensive Economic Cooperation Agreement (CECA); and
• Australia–UAE Comprehensive Economic Partnership Agreement.

The ECTA took effect on 29 December 2022, abolishing tariffs on 90% of Australian exports to India. The CECA, a more comprehensive agreement, is under negotiation and aims to further explore digital trade and other opportunities.

Australia participated in the seven negotiation rounds for the Indo–Pacific Economic Framework (IPEF) in 2023. However, the “trade pillar” was unconcluded at year end.

In April 2023, Australia temporarily suspended DS598 so China could undertake an expedited review of the measures applicable to Australian barley. Subsequently, in August 2023, China eliminated the 80.5% duties and the WTO circulated the panel report reflecting the agreed solution.

The UKFTA took effect on 31 May 2023, meaning that 99% of Australian goods exported to the UK are now tariff-free. After five years, all UK imports to Australia will be duty-free.

On 16 July 2023, the CPTPP members admitted the UK to the trade agreement. The report in the first dispute under the CPTPP was issued on 5 September 2023, brought by New Zealand against Canadian dairy measures. Australia was a third party.

Australia and Singapore signed the Green Economy Agreement on 18 October 2022, bolstering green trade and investment opportunities.

Negotiations on the EUFTA have stalled. A primary concern for Australia is ensuring market access for its agricultural products; a significant issue from the EU’s perspective is Australian producers’ use of terms such as “feta” and “Prosecco” and the concern that Australia would adopt a “dual pricing” policy for its rare minerals.

On 23 October 2023, Australia and six other WTO members advanced the Agreement on Fisheries Subsidies towards enactment by depositing their acceptance instruments. This brings the total acceptances to 51 – 46% of the amount of WTO members needed for the Agreement to come into effect.

China initiated consultations with Australia in June 2021 concerning Australia’s application of anti-dumping and countervailing measures on steel products from China (DS603). A panel was set up by the WTO Dispute Settlement Body on 28 February 2022. The final report from this panel is expected to be published in 2024.

On 18 October 2023, China’s Ambassador to Australia hinted that a resolution to the wine anti-dumping tariffs that China has imposed on Australian wine (presently subject to dispute DS602) is impending.

The Australian Border Force (ABF) governs customs matters. It is an “operationally independent body” within the Home Affairs portfolio. The ABF Commissioner is also Comptroller-General of Customs.

Key legislation governing customs matters include:

• the Australian Border Force Act 2015;
• the Customs Act 1901; and
• the Customs Tariff Act 1995.

There are also several relevant regulations, including Customs Regulations 2015, Customs (International Obligations) 2015, the Customs (Prohibited Exports) Regulations 1958 (Prohibited Export Regulations) and the Customs Prohibited Import Regulations 1956.

The ABF has prime responsibility for administering and enforcing Australian customs law. More serious breaches of customs laws will be enforced by the Australian Federal Police (AFP) and the Office of the Commonwealth Director of Public Prosecutions (CDPP).

Australia has no similar law to the EU’s Trade Barriers Regulation or Section 301 of the US Trade Act of 1974. There is a mechanism in place (ie, a government website) allowing Australian businesses to report non-trade tariff barriers to the government. This does not appear to have been updated for at least two years – so to what effect such reporting is made is, at present, unclear.

As noted in 1.5 Key Developments Regarding Trade Agreements, the UKFTA was implemented in May 2023. This included amendments to the Customs Tariff Act 1995 to implement the tariff reductions.

In September the customs duty payable on the imports of certain petroleum-based oils and their synthetic equivalents was increased from 8.5 cents per litre or kilogram to 14.2 cents. This occurred because of the Product Stewardship Act 2000, which implements a scheme to provide incentives to oil recyclers for the sale or consumption of oil that has been recycled in Australia. The Product Stewardship for Oil (PSO) Scheme is intended to be self-funded and part of that funding comes from the collection of import duties on equivalent fuels to those that benefit under the PSO Scheme. The increase in tariffs was designed to return the PSO Scheme to fiscal neutrality.

The Customs Legislation Amendment (Controlled Trials and Other Measures) Act 2023 was passed in September 2023. This Act amends the Customs Act to create a regulatory framework whereby the Australian government can trial new customs practices and technologies with approved entities, prior to making legislative amendments to customs law. Areas in which a regulatory sandbox can be established include:

• imports and exports (excluding prohibited imports and exports);
• depots and warehouses;
• electronic communications;
• agents and customs brokers; and
• tariff concession orders.

The amendments will commence operation in mid-March 2024 at the latest.

Australia imposes two forms of sanctions – autonomous sanctions and those made by the United Nations Security Council (UNSC) under Chapter VII of the Charter of the United Nations (UN).

UNSC Sanctions

International legal instruments are not binding within Australian unless they have been implemented through domestic legislation. Australia implements its UN obligations via the Charter of the United Nations Act 1945 (Cth) (UNCA). The UNCA gives the Governor-General power to create regulations giving effect to UNSC decisions. Each sanctions regime is generally applied in distinct regulatory instruments. By way of example, UNSC Resolution 1493 (2003) regarding the Democratic Republic of Congo is primarily implemented through the Charter of the United Nations (Sanctions – Democratic Republic of Congo) Regulations 2008. The complexity of Australian regulations will vary considerably, depending on the complexity of the specific sanctions regime being implemented.

The prohibitions in each regime have been specified by the Minister for Foreign Affairs to be UN Sanctions Enforcement Laws. Legally, this is important, because the main prescription under the UNCA is engaging in conduct which contravenes a UN Sanctions Law.

Autonomous Sanctions

Australia’s autonomous sanctions regime is imposed in a similar fashion to UNSC sanctions. The Autonomous Sanctions Act 2011 (ASA) empowers the Governor-General to create regulations that impose autonomous sanctions. These regulations may prohibit the following:

• “sanctioned supply” of “export sanctioned goods”;
• “sanctioned imports” of “import sanctioned goods”;
• providing a “sanctioned service”;
• engaging in a “sanctioned commercial activity”;
• dealing with a “designated person or entity”;
• using or dealing with a “controlled asset”; or
• the entry into or transit through Australia of a “designated person” or a “declared person”.

These prohibitions are compiled into a single instrument, the Autonomous Sanctions Regulations 2011 (ASR). However, depending on the particular sanctions regime, there may be other relevant instruments not covered in the ASR. By way of example, the ASR covers prohibitions against making assets available to designated Russian persons and entities, but details of specific Russian persons/entities who have been designated are contained in the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) List 2014.

The Governor-General is empowered to make UNSC and autonomous sanctions regulations. This is a ceremonial rather than substantive function, as the Governor-General is the King’s representative and nominally the head of the Executive Government. The delegation of regulating power to the Governor-General represents the delegation by Parliament of its legislative power to the Executive Government – allowing the Executive Government to create legal instruments without going through the lengthy legislative process.

In practice, it is the Minister for Foreign Affairs and the Department of Foreign Affairs and Trade (DFAT) that are responsible for the content, implementation and facilitation of any sanctions.

The Australian Sanctions Office (ASO) in the DFAT is responsible for administering and regulating Australia’s sanctions regimes. The ASO works with several agencies – including the ABF, the AFP and the Department of Home Affairs – to enforce sanctions. By way of example, the ABF is responsible for stopping exports to and from sanctioned countries, where a breach of a sanctions law is expected to occur. The ASO may also refer breaches of sanctions laws to the ABF and the AFP for investigation, which can lead to criminal prosecution.

Australia’s autonomous sanctions regime is subject to Section 15.1 of the Criminal Code Act 1995, which means that the regime extends to entities/persons (wherever located) that engage in “conduct” connected with Australia. Conduct constituting a contravention of a sanctions law will be an offence where that conduct occurs:

• either wholly or partly in Australia (including on an Australian aircraft or ship); or
• wholly outside Australia and leads to a result that occurs wholly or partly in Australia (including on an Australian aircraft or ship); or
• wholly outside Australia and was undertaken by an Australian citizen or a body corporate incorporated by or under a law of the Commonwealth of Australia or of an Australian state or territory.

UNSC sanctions are more bespoke in nature and will vary depending on the requirements of the UNSC Resolution. Frequently, Section 15.1 of the Criminal Code will apply to a contravention of a UNSC Resolution; however, this needs to be assessed on a case-by-case basis.

Additionally, the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021 allows for thematic sanctions to be imposed on natural persons and entities considered responsible for ‒ or contributors to – particular (thematic) issues, such as threats to international peace and security, serious violations of human rights, serious corruption and serious violations of international humanitarian law.

The ASO maintains a Consolidated List of “designated” individuals/entities. These are individuals/entities who have been sanctioned under Australia’s various sanctions regimes.

Australia currently maintains sanction measures against several countries and regions, including:

• 17 region-specific UNSC sanctions regimes; and
• four wholly autonomous sanctions regimes – the Former Federal Republic of Yugoslavia, Myanmar, Russia/Ukraine, and Zimbabwe.

Australia has imposed additional autonomous sanctions against the Democratic People’s Republic of Korea, Iran, Libya and Syria, supplementary to UNSC regimes.

In 4.1 Export Controls, the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (the “WMD Act”) is discussed. The WMD Act prevents trade with certain entities that are not otherwise subject to Australia’s sanctions regimes.

Australia does not apply secondary sanctions. See 3.4 Persons Subject to Sanctions Laws and Regulations regarding the jurisdictional reach of the sanctions regimes.

The UNCA outlines the penalties for contravening UN Sanctions Enforcement Laws and the ASA outlines the penalties for contravening autonomous sanctions laws.

An individual engaging in conduct that contravenes a sanctions law may be liable for imprisonment for up to ten years and/or a fine the greater of 2,500 penalty units (AUD782,500) or three times the value of the transaction per contravention. This means that the minimum penalty for an individual who contravenes a sanctions law is AUD782,500.

A body corporate that contravenes a sanctions law will be liable for a fine of 10,000 penalty units (AUD3.13 million) or three times the value of the transaction (whichever is greater) per contravention.

There are a range of other penalties that may arise from breaching a sanctions law, depending on the circumstances. By way of example, a person may be penalised where they provided false or misleading information in connection with the administration of a sanction law.

A party can apply to ASO for a permit to authorise an activity that would otherwise be prohibited under Australia’s sanctions regimes. The criteria to be met and the conditions on which a permit will be granted depend upon the sanctions measures to which the proposed conduct relates.

For UNSC sanctions, the Minister for Foreign Affairs will need to notify and/or seek approval from UNSC before granting the permit.

Violations of sanctions laws by bodies corporate are strict liability offences. No “intent” needs to be proved for the offence to be established. However, if a body corporate proves it took reasonable precautions – and exercised due diligence – to avoid contravening a sanctions law, the offence is not considered to have been committed. There is no legislative criteria addressing what amounts to “reasonable precautions” or the appropriate levels of “due diligence”, but ASO advises that the following should be undertaken at a minimum:

• conduct sanctions checks on the person/entity;
• understand the company structure (if applicable) and any links to designated individuals/entities;
• understand the end-user and use of the goods; and
• keep records of the due diligence that has been conducted.

It is also prudent for parties to seek independent legal advice as soon as they consider that their activities could be subject to Australian sanctions.

Parties that apply for a sanctions permit are required to keep records and documentation relating to that application for five years. The ASO can issue notices compelling persons to provide information of any kind for the purpose of determining whether a sanctions law has been complied with. Failure to comply with a notice can result in imprisonment for 12 months.

Australia has no blocking statutes or anti-boycott laws.

On 30 January 2023, the DFAT announced a review of the autonomous sanctions framework. This is being conducted ahead of the sunsetting of the ASR on 1 April 2024. The review was due to be completed on 30 June 2023, but there has yet to be any update from the DFAT on whether this has occurred.

On 15 September 2023, the judgment in Abramov v Minister for Foreign Affairs (No 2) was released. The applicant unsuccessfully challenged his designation. Importantly, the Federal Court clarified two significant matters impacting the operation of Australia’s autonomous sanctions regime. The Federal Court found that:

• there was no duty to afford procedural fairness to persons affected by designation decisions; and
• it is open to the Minister for Foreign Affairs to simultaneously revoke a person’s designation (if the designation is deemed invalid) and then immediately re-designate the same person.

Finally, the ASO has stopped issuing “indicative assessments”. These were assessment that determined whether a proposed activity would invoke Australia’s sanctions laws. In the absence of this mechanism, it is hoped that the ASO will publish more policy papers to allow parties to better assess their position.

See 3.14 Key Developments regarding sanctions.

It is likely that the DFAT’s review into Australia’s autonomous sanctions framework will recommend a number of changes to the Autonomous Sanctions Act. Although the DFAT’s recommendations are yet to be released, it is likely that the recommendations will have a broad-reaching effect on Australia’s autonomous sanctions regime and trigger legislative changes to autonomous sanctions laws.

Australia’s export controls generally relate to the goods, software and technology listed in the Defence Strategic Goods List (DSGL). The DSGL is a legislative instrument, created under the Customs Act, which reflects the controls imposed under the four multilateral export control regimes to which Australia is a party (the Wassenaar Arrangement, the Nuclear Suppliers Group, the Australia Group and the Missile Technology Control Regime), along with other non-proliferation treaties and certain Australian-specific controls.

The source of controls on DSGL-listed items differs, depending on whether the DSGL item is an actual physical good or technology and software (collectively, “DSGL technology”).

Controlled Goods

Physical exports fall under the Customs Act and the Prohibited Export Regulations. Regulation 13E of the latter prohibits goods listed in the DSGL – as well as goods containing DSGL technology – from being exported from Australia, unless the Defence Minister has granted permission for the export.

Controlled Technology

The movement of DSGL technology is controlled by the Defence Trade Controls Act 2012 (DTCA). Subject to certain exceptions and permissions, the DTCA restricts the:

• cross-border (intangible) supply of DSGL technology;
• publication of certain DSGL technology; and
• brokering of DSGL technology.

Non-controlled Goods

Items not listed on the DSGL may nevertheless be subject to Australia’s “catch-all” export controls:

• Section 112BA of the Customs Act allows the Defence Minister to prohibit the exportation of particular goods from Australia where the Defence Minister believes the goods would be (or may be) for a military end-use that would prejudice the security, defence or international relations of Australia; and
• The WMD Act broadly prohibits the supply or export of goods and services where the Defence Minister believes that the goods and services could be used in a WMD programme without a permit.

In each case, a prohibition will only apply once the Defence Minister has published a notice to that effect. Usually such a notice will be issued after the goods are entered for export. That noted, the WMD Act also generally prohibits the supply or export goods where the supplier believes or suspects that the goods will (or may be) used in a WMD programme, even if no notice has been issued.

Defence Export Controls (DEC) regulate the exportation of DSGL goods and technologies, as well as the application of the Defence Minister’s catch-all provisions. The DEC are responsible for assessing whether a particular good or technology falls within the DSGL, assessing whether there is a basis to publish a catch-all notice, and reviewing permit applications; the Defence Minister is ultimately empowered to grant permits.

Self-assessment is fundamental to Australia’s export system. Exporters must lodge an export declaration with the ABF, which contains information on the good, its intended export destination, and other relevant details about the export transaction itself. Any permit obtained for the export will also need to be identified to the ABF. If the proposed export is consistent with the conditions of the permit, and other requirements are met, then the ABF will issue an approval to export (known as an “authority to deal”). The ABF can vet export consignments to ensure permit requirements are met and to assess whether there is a basis to publish a catch-all notice. If the ABF has concerns, they will delay issuing an authority to deal and will refer the consignment to the DEC for assessment.

When an exporter has failed to comply with Australia’s export controls regime, it may be subject to a range of consequences/penalties depending on the severity of their non-compliance. Less serious breaches will be enforced by the ABF; responses may include exporter education, warnings, administrative sanctions, or prosecution. Criminal offences would generally fall to the AFP and the CDPP for enforcement and prosecution.

The DEC are responsible for enforcement of the controls imposed on the transfer, publication and brokering of DSGL goods and technology under the DTCA. In this regard, the DEC have discretion to respond to instances of non-compliance and may choose to counsel the entity to ensure it understands its obligations or impose stringent compliance conditions on the entity’s permit. The majority of offences for non-compliance with the DTCA are “indictable offences”, so serious cases of non-compliance can be referred to the CDPP for prosecution.

See 4.1 Export Controls and 4.8 Penalties for further details.

Australia does not maintain a restricted persons list.

The DSGL includes a “sensitive list of dual‑use goods and technologies” and a “very sensitive list of dual‑use goods and technologies”. Goods and technologies included on these lists are subject to more stringent permit requirements.

The Prohibited Export Regulations includes prohibitions relating to non-DSGL goods, such as asbestos, human substances, and cat and dog fur.

Each of the Acts discussed in 4.1 Export Controls contains penalties for non-compliance. The most relevant are discussed here.

Penalties Under the Customs Act

A range of penalties can apply for different types of non-compliance with export controls under the Customs Act. Less serious violations of export controls may be treated as either:

• exporting prohibited goods; and
• unlawfully conveying or having possession of prohibited exports.

The penalty upon conviction for these offences is a fine of three times the value of the goods or 1,000 penalty units (AUD313,000).

Conduct which contravenes a condition of a licence or permit is punishable by a fine of 100 penalty units (AUD31,300). The Defence Minister may also decide to revoke the licence or permit.

The ABF has the discretion to issue an “infringement notice” for such offences where there are “reasonable grounds” to do so. Where an infringement notice is issued, the penalty will be either one-quarter of the maximum fine a court could impose or 15 penalty units for an individual (AUD4,695) or 75 penalty units for a corporation (AUD23,475). Payment of an infringement notice penalty by a person discharges any liability and prevents that person from being prosecuted in a court for the alleged contravention. Significantly, the person will not be regarded as having admitted guilt or liability for the alleged contravention, nor as having been convicted of the alleged offence.

More serious violations of export controls may be treated as the exportation of DSGL goods without a permit. This is an indictable offence, which can result in imprisonment for ten years, a fine of 2,500 penalty units (AUD782,500), or both.

The Customs Act also provides provision for the forfeiture of any goods whose export is prohibited.

Penalties Under the DTCA

The key offences under the DTCA are:

• supplying DSGL technology to a person outside Australia;
• publishing DSGL technology (categorised as a Part 1 DSGL item); and
• brokering DSGL goods and technology (ie, arranging for the supply of controlled goods of technology outside of Australia).

Penalties arising for each of these offences can result in imprisonment for ten years, a fine of 2,500 penalties units (AUD782,500) or both. Where a party has received a permit to undertake conduct that would otherwise breach the DTCA, the party’s failure to abide by their permit condition could result in a fine of 60 penalty units (AUD18,780).

The Defence Minister also has the power to issue a notice to prevent the publication or supply of DSGL technology. Non-compliance with such notices is punishable by imprisonment for ten years, a fine of 2,500 penalty units (AUD782,500), or both. Additionally, the DTCA contains offences in relation to dealings under the Australia–US Defence Trade Cooperation Treaty.

Maximum Penalties Under the WMD Act

The three main penalties imposed under the WMD Act are for:

• supplying goods to a WMD programme;
• exporting goods to a WMD programme; and
• supplying services to a WMD programme.

Each of these offences is punishable by imprisonment for up to eight years if the Attorney-General consents to prosecution.

There are a range of licences and permits available to those seeking to engage in activities that would otherwise be prohibited under Australia’s export controls regime. These include, for example, Australian General Export Licences (AUSGELs), which are available for a range of pre-approved activities to pre-approved destinations. This allows an exporter to supply goods and technology to specific destinations and for specific purposes for a defined period. These can provide more flexibility than DSGL permits, but they are subject to certain exceptions. However, goods and technology listed on the “Sensitive List” of the DSGL may or may not be covered by an AUSGEL, and goods and technology listed under the “Very Sensitive List” in the DSGL cannot be covered by an AUSGEL. The complexity and fine differences underline the need for an exporter to properly word its application and understand the scope of any permission granted.

The DEC are aware that Australia’s export controls are complex and so exporters/persons may unintentionally breach their obligations. To this end, the DEC’s approach is to facilitate understanding of Australia’s export controls and encourage exporters to rectify any mistakes, as and when they arise. However, repeated non-compliance can result in permits being subject to more stringent compliance conditions, the revocation of the permits, or referral for criminal prosecution.

The DEC offer some tools that may assist exporters, including an online self-assessment tool and the ability to seek an official pre-assessment. The DEC’s website also includes a range of resources that can be used by exporters and persons for this purpose.

A person who considers that they may have breached Australia’s export controls can voluntarily disclose details of its non-compliance to the DEC. The DEC will then work with the person to rectify the breach. Depending on the severity of the breach, the DEC may also assist the person to identify gaps in their systems, improve compliance processes or enforce penalties for non-compliance.

The DTCA requires permit-holders to retain records regarding the activities conducted under the permit for five years. The Customs Act includes similar requirements. Both Acts also allow the relevant authority to require permit-holders to produce such records, as and when necessary.

The DTCA is currently being reviewed by the Department of Defence, as is legislatively required every five years. Public submissions to the 2023 review closed on 29 October 2023. However, this has been upstaged by the sudden release of proposed reforms to Australia’s export controls framework. These include controls on supply of DSGL technology to foreign persons within Australia, extending controls on DSGL technology once it leaves Australia, controls on certain services and, significantly, creating a permit free zone for transfers of technology to the USA and UK. If the proposals are enacted, this would significantly change Australia’s export controls system.

See 4.12 Key Developments Regarding Exports.

The authority governing the imposition of anti-dumping/countervailing duties (AD/CVD) is the Anti-Dumping Commission (ADC), headed by the Commissioner of the Anti-Dumping Commission (“the Commissioner”). The ADC undertakes the investigatory functions necessary for the imposition of AD/CVD. If the investigation finds a basis to impose AD/CVD, then the Commissioner will recommend their imposition to the relevant Minister (currently the Minister for Industry, Science and Technology). The Minister is legally empowered to impose such measures.

AD/CVD investigations are undertaken in accordance with the requirements of Part XVB of the Customs Act. This is supplemented by the Customs (International Obligations) Regulations 2015, which includes a number of relevant provisions – including specifying how exporters’ costs of production and selling costs are determined in an anti-dumping investigation. Finally, the power to impose such measures is provided to the Minister pursuant to the Customs (Anti-Dumping Tariff) Act 1975.

Safeguards investigations are undertaken by the Productivity Commission. Safeguard investigations are infrequently initiated; the last one was concluded in 2013. Since the start of the new millennium, there have only been three safeguard investigations, concerning imports of pig meat, processed fruit products and tinned tomatoes – none of which resulted in the imposition of safeguard measures. These investigations were undertaken under the Productivity Commission Act 1998, which broadly allows the Productivity Commission to undertake “inquiries” where requested by the government. In undertaking a request for a safeguard inquiry, the Productivity Commission follows procedures set out in the Commonwealth of Australia Gazette No S 297. These procedures are designed to fulfil the requirements of the WTO Agreement on Safeguards.

The ABF is responsible for the application of all import duties, including interim AD/CVD, and hypothetically the administration of safeguard measures. Australia’s customs system is a “self-assessment” system – however, the ABF undertakes a number of compliance exercises, such as data-matching and audits, in order to ensure compliance with importers’ duty obligations.

The ADC also has a role in compliance through undertaking “anti-circumvention” inquiries. These inquiries are limited to ascertaining whether “circumvention activities” have been undertaken, namely:

• assembly of parts in Australia;
• assembly of parts in a third country;
• exporting of goods through one or more third countries;
• arrangements between exporters;
• avoidance of the attended effect of duty; and
• slight modification of goods.

If a circumvention activity is determined to have taken place, the Minister has broad powers to alter the existing dumping measures to ensure the circumvention is addressed.

Any “affected party” can apply for a review of measures: this includes a person representing the Australian industry producing like goods, a person directly concerned with the export or import of like goods, and the government of a country from which like goods are exported. The Minister may also write to the Commissioner to request that a review is initiated.

The scope of a review may vary. By way of example, an exporter may apply for a review of its individual measures, rather than a broad review of all measures applicable to its own country of export. Exporters and importers usually request narrow reviews, but the Minister will usually broaden them out to encompass all exporters.

There are also “accelerated reviews”, which are open to “new exporters” who did not export to Australia during the period in which dumping was found to have occurred. Exporters who do not undertake this kind of review are subject to the “others” rate of duty, which is generally prohibitively high. An accelerated review allows the new exporter to receive its own dumping margin.

Reviews are ad hoc and initiated based on either an application from an affected party or parties or at the request of the Minister. Affected parties cannot apply for a review within 12 months of the outcome of an investigation or the last review of the measures.

Provided a non-domestic company is an “interested party”, it may participate in a review. Interested parties encompass “any person who is or is likely to be directly concerned with the importation or exportation into Australia of the goods that are the subject of the application”.

In practice, an exporter subject to a review will need to complete an exporter questionnaire within 37 days of initiation. The exporter questionnaire is intended to elicit all information necessary to determine the export price, normal value, and non-injurious price (where relevant) for the responding exporter.

Anti-dumping and countervailing investigations follow the procedure and timelines as set out in the Customs Act 1901. The statutory timelines are as follows:

• application for investigation;
• 20 days after receipt of application – investigation initiated;
• 37 days after initiation – lodgment of submissions;
• 60 days after initiation – preliminary affirmative determination can be made, which results in in securities being collected on imports;
• 110 days after initiation – publication of the Statement of Essential Facts (SEF);
• 20 days after the SEF – lodgment of submissions responding to the SEF;
• 155 days after initiation – final report to the Minister; and
• 30 days after the Final Report is made – Minister’s decision announced and final report published.

The SEF and reporting dates are extended as a matter of course. Investigations presently take between 12 and 16 months.

The first round of interested party submissions includes questionnaire responses. An exporter who needs more time to complete questionnaire responses needs to write to the ADC to request an extension – these are complex documents, so that is often the case. The Commissioner’s consideration of a request is guided by the Customs (Extensions of Time and Non‑cooperation) Direction 2015. The ADC may accept other submissions throughout the investigation. This reflects Australian administrative review principles and is particularly important for injury and causation-focused submissions. The ADC may consider such submissions, provided doing so will not prevent the timely publication of the SEF or the timely preparation of the report to the Minister.

The ADC will usually seek to verify information submitted by interested parties. This occurs prior to the SEF’s publication. The ADC also publishes verification reports outlining their initial findings for each entity following verification.

The ADC maintains a public record that includes all official reports and the application for an investigation and submissions and correspondences from interested parties, subject to certain requirements around confidentiality.

The authorities will not impose AD duties on goods originating from New Zealand.

See 5.4 Ad Hoc and Regular Reviews.

The review process is similar to that outlined with regard to AD/CVD investigations.

The Anti-Dumping Review Panel (ADRP) is an administrative review body that can hear merits appeals of certain AD/CVD decisions. Procedures adopted depend on the decision appealed. However, in general, the following applies:

• 30 days after reviewable decision made – ADRP appeal filed;
• approximately one month after application – ADRP appeal initiated;
• 30 days after initiation – interested party submissions lodged;
• 30 days after submissions – the ADRP reports to the Minister;
• 30 days after report – the Minister affirms or revokes and remakes reviewable decision.

This timeline will usually be extended substantially. The ADRP has the power to ask the ADC to reinvestigate certain findings and then report back to the ADRP. If that occurs, the ADC’s practice is to publish preliminary reinvestigation reports, in order to allow interested parties to make submissions, before reporting back to the ADRP. The ADRP may also hold interested party conferences throughout the appeal and require interested parties to make submissions regarding these conferences.

The other form of appeal is an appeal to the Federal Court of Australia under either or both the Anti-Dumping (Judicial Review) Act 1977 or Section 39B of the Judiciary Act 1901 (“judicial review”). Judicial review is focused on the legality of a decision, rather than its factual merit – although unreasonableness of epic proportions can substantiate legal relief.

Judicial review litigation is initiated via an originating application lodged with the Federal Court. This needs to occur within 28 days of the making of the challenged decision. The timeline for each matter is set pursuant to orders made by the relevant judge. While it will depend on the circumstances, judicial review litigation could be completed within 12 to 18 months of initiation.

There have not been any key developments in law, regulatory activity, enforcement, litigation or public attention in the past 12 months related to trade remedies.

The Department of Industry and Science’s 2022–23 annual report introduces a new performance measure ensuring the ADC’s compliance with both legislated and WTO timeframes. The 2022–23 results established a baseline for future years. The ADC is expected to either maintain or improve timeframes for most case types.

Australia’s foreign investment laws are primarily contained in the Foreign Acquisitions and Takeovers Act 1975 (FIA), the Foreign Acquisitions and Takeovers Regulation 2015, and the Foreign Acquisitions and Takeovers Fees Impositions Act 2015.

The Foreign Investment Act allows the Treasurer to review foreign investment proposals that meet certain criteria. In practice, this assessment is undertaken by the Foreign Investment Review Board (FIRB), a non-statutory body that then advises the Treasurer whether the proposed investment should be allowed to go ahead.

The Treasury administers this framework in relation to foreign investment proposals for entities, businesses, agricultural and commercial land. The Australian Taxation Office (ATO) reviews investment proposals relating to residential real estate and administers vacancy fees and the Register of Foreign Ownership of Australian Assets.

Foreign investment amounting to a notifiable action (or a notifiable national security action) requires the submission of an application to the FIRB via the foreign investment website. The latest Treasury report indicates that timeframes for reviewing applications are sitting at a median of approximately 38 days, varying up to more than three months.

The key question when assessing a notified investment is whether it passes a national interest test or a national security test. The Treasurer has the power to block a foreign investment proposal or to apply conditions on the implementation of the proposal so as to ensure it is not contrary to the national interest or national security.

The Treasurer is the ultimate decision-maker for foreign investment into Australia. The FIRB is the key responsible entity, as described in 6.1 Investment Security Mechanisms.

The application of the FIRB regime depends on whether an action is a “significant action”, “notifiable action”, “notifiable national security action” or a “reviewable national security action”. Whether the action falls within these descriptions will determine whether it triggers the requirement to notify the Treasurer of the intended action, whether it will be reviewable at the discretion of the Treasurer based on national security concerns, and/or whether the action must be notified to the Registrar. A requirement to notify also arises where a foreign individual investor acquires an interest in Australian residential land of any value – in short, an otherwise ordinary real-estate transaction.

Whether or not a proposed action is a notifiable action can be a matter of some complexity, depending on the identity of the investor, the nature of the proposed investment and the value of the proposed investment and the target asset. As an example, the acquisition of a substantial interest in an Australian entity is a “notifiable action” where the value of the Australian entity exceeds a monetary threshold. A substantial interest is generally 20% of the value of the entity – although this varies in certain circumstances. What the monetary threshold is also differs, depending on where the acquirer is from (eg, a country with which Australia has certain FTAs such as the CPTPP) and whether the acquired business is a sensitive business (including businesses in the media, telecommunications, transportation and certain defence-adjacent industries). Further, if the acquirer is a “government investor” then the threshold value is AUD0, meaning that the acquisition of a substantial interest in any entity, irrespective of the value of the entity, is notifiable.

A “notifiable national security action” includes any of the following:

• starting a national security business;
• acquiring a direct interest in a national security business or an entity that carries on such a business;
• acquiring an interest in Australian land that, at the time of acquisition, is national security land; or
• acquiring a legal or equitable interest in an exploration tenement in respect of Australian land that, at the time of acquisition, is national security land.

What constitutes a national security business or national security land requires a significant amount of explanation. Indicatively, it is broad, encompassing everything from businesses that store personal information of defence and intelligence personnel through to manufacturers of critical goods for military use. Essentially, these types of “national security” enterprises involve instances where defence, intelligence or national security risks or interests are deemed to exist. The threshold for any of these actions is AUD0.

If a proposed action is a notifiable action or a notifiable security action, then it needs to approved by the FIRB before occurring.

Where actions fall outside the definitions of “notifiable action” or “notifiable national security action”, the terms “significant action” and “reviewable national security action” serve to capture these. The Treasurer is empowered to review these actions at their discretion. If a foreign investor chooses to notify the Treasurer of such actions despite not being required to do so, they must not proceed with the action until certain timeframes or events transpire.

So, complexity abounds.

See 6.3 Transactions Subject to Investment Security Measures with regard to “notifiable actions” and “notifiable national security actions”.

Further, notices must generally be given to the Register of Foreign Ownership of Australian Assets (“the Register”) within 30 days of the day on which:

• a foreign person acquires a relevant interest or otherwise takes an action; or
• a person becomes a foreign person while holding a relevant interest; or
• there is a change to a registered circumstance (for example, because a foreign person ceases to hold a relevant interest or person ceases to be a foreign person); or
• there is a change in certain characteristics of a registrable water interest; or
• there is a change in size of an interest in an entity or business.

There are several exemptions, which are provided for under Part 3 of the Foreign Investment Regulation.

The consequences of failing to notify or meet conditional requirements for investment approval can be severe.

For an individual, a failure to give notice of a notifiable or notifiable national security action, taking action while prohibited by the FIA, or contravening conditions of a notice or exemption can result in a penalty of up to AUD4.69 million and ten years of imprisonment. For a corporation, the total amount increases tenfold to AUD46.9 million.

There are additional and significant penalties relating to residential real investment and other non-compliances with the FIRB regime. Such transactions are best approached with caution and with independent legal advice.

Fees are applicable for various actions required or permitted under the FIA, including for the making of applications to the FIRB, giving of notices, and variations on certain notifications, notices or exemption certificates. The fee generally depends on the value of the transaction, but is capped at a maximum of AUD1,119,100.

By way of example, for commercial land and tenements, fees for notifiable actions start at AUD 14,100 for acquisitions of AUD50 million or less, rise to AUD28,200 for transactions between AUD50 and AUD100 million, and then generally increase by AUD28,200 with every AUD50 million of consideration. For residential land, fee tiers increase with every AUD1 million of consideration ‒ starting at AUD14,100, increasing to AUD28,200, and then again increasing by AUD28,200 for every AUD1 million of consideration.

Each action incurs a separate fee, unless multiple actions are taken together under a “single agreement”. In such cases, the fees are generally applied based on the aggregate consideration for each type of action.

Fees for foreign investment applications and notices are indexed each financial year from the averages of the Australian Bureau of Statistics Consumer Price Index. New fees apply from 1 July each year and are calculated using the appropriate indexation factor. The statutory timeframe of 30 days for making a decision will not commence until the relevant fee has been paid.

In addition, all states and territories charge additional stamp duty surcharges on foreign purchasers of property and certain states and territories charge higher rates of land tax on foreign owners where the property is not their principal place of residence.

As of July 2023, all notification obligations go to a singular register (the Register of Foreign Ownership of Australian Assets) rather than distinct registers for foreign ownership of residential land, agricultural land and water entitlements.

Notification obligations can “double up” in the sense that a foreign person may be required to notify the Treasurer under Sections 98C, 98D or 98E of the FIA and may be required to give a notice in relation to the same action. Where this arises, notification only to the register is permitted. However, if notification obligations only arise under Sections 98C, 98D or 98E, those notification obligations must be separately met.

There are no significant pending changes on the horizon in the next 12 months pertaining to investment security in Australia.

The key restriction on imports relates to the prohibition of parallel imports of books under Section 37 of the Copyright Act 1968 (Cth). It persists despite Australia’s Productivity Commission recommending it be abolished in 2009, which was later reiterated by the Harper Competition Policy Review in 2015.

There are a number of ways in which the Australian government, both at the federal and the state level, offers industry assistance. These include – but are not limited to – small business capital gains tax concessions, R&D tax concessions and government financing vehicles, and the PSO Scheme discussed in 2.4 Key Developments in Customs Measures. Arguably, such schemes facilitate and encourage domestic production.

A significant area of interest for the federal government has been improving Australia’s in-country manufacturing capabilities – essentially shifting it down the supply chain. Examples (but by no means all instances) of this include the establishment of the National Reconstruction Fund, which commits AUD15 billion to finance industries that support “national sovereign capability” (ie, renewables and low emissions technologies), medical manufacturing, value-adding in resources, critical technologies, advanced manufacturing, and value-adding in other areas. Similarly, the government has invested AUD50.5 million to establish the Australian Critical Minerals Research and Development Hub. This is intended to build research capabilities, increase commercialisation and invest in industry engagement. Including via “co-investment between Australia and like-minded international partners” and “critical minerals projects that can help develop end-to-end critical minerals supply chains between Australia and partner countries”.

The primary body is Standards Australia, a non-government entity that develops relevant Australian standards. Government policy is set by the Department of Industry, Innovation and Science.

The Department of Agriculture, Fisheries and Forestry and Department of Foreign Affairs and Trade oversee Australia’s sanitary and phytosanitary (SPS) obligations. In particular, the Department of Agriculture is responsible for setting and administering Australia’s SPS measures, and for maintaining and improving technical market access for Australia’s agricultural and other food exports.

There are no measures of which the authors are aware that are specifically aimed at reducing imports or encouraging domestic production. That said, measures for the protection of Australia’s unique biodiversity are often claimed to be disguised trade measures, and Australia is no stranger to being a respondent in WTO disputes under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures. In the authors’ experience, clients’ primary concern regarding the SPS system is its administration – particularly how it responds to new and emerging information regarding potential phytosanitary risks. The risk assessment process is often prolonged, with limited transparency, during which time imports are blocked from entry or treated in ways that destroy or degrade their food or floral quality.

The Australian Competition and Consumer Commission (ACCC) is the national regulatory body for competition, consumer rights, fair trading and product safety.

There are no specific competition policies or price controls employed in Australia that are aimed are reducing imports or encouraging domestic production.

Australia has imposed a price cap on “uncontracted” liquefied natural gas (LNG) (ie, gas that is not committed under export contracts) of AUD12 per gigajoule until 2025. This is predicted to apply to less than 4% of LNG production. Australia justifies this as reducing the cost of gas for Australian consumers.

In the 1990s, Australia went through a wave of privatisation. At present, the majority of government business enterprises tend to be services or utilities-based, or entities that facilitate government policies – for example, the Clean Energy Finance Corporation.

Australia’s government is multi-layered – from the Commonwealth government to the state and territory governments, and to local governments. At each level of these bureaucratic strata, there can be multiple different procurement requirements.

Australia has acceded to the WTO Government Procurement Agreement (GPA) and has reciprocal procurement access requirements under several FTAs. These are obviously caveated – for example, they may exclude defence procurement and procurement for health and education services. However, generally, at least at the Commonwealth level, the trend has been toward opening government procurement.

Commonwealth procurement is undertaken in accordance with the Governance, Performance and Accountability Act 2013 (Cth) and the Commonwealth Procurement Rules. Consistent with Australia’s GPA obligations, there are no express laws or rules that are aimed at reducing imports.

That said, there are certain policies that could promote domestic economic growth in the Commonwealth Procurement Rules 2023, including:

• commitments to source at least 20% of all procurement by value from SMEs and 35% of procurements valued up to AUD20 million (consistent with Annex 7 of Australia’s GPA instrument of accession); and
• for procurements above AUD4 million, the requirement to consider “the economic benefit of the procurement to the Australian economy”, which arguably could be a way to justify local industry preferences by stating that sourcing locally would support local employment, investment, etc.

Further, the Australian Industry Participation National Framework applies to “major Commonwealth government procurements” (ie, generally those valued above AUD20 million) and encourages tenderers for certain Commonwealth procurements to prepare and implement an Australian Industry Participation (AIP) Plan.

Similarly, the Australian Jobs Act 2013 applies to major projects for certain facilities (such as railways and roads, solar or hydro, and telecommunications) with an estimated capital expenditure of AUD500 million or more. Project proponents must notify the Australian Industry Participation of the project, submit a draft AIP Plan for approval and then implement the plan.

Defence procurement has additional requirements, set out in the Defence Procurement Policy Manual and other guidelines.

At the state level, there are more explicit rules. By way of example, the Victorian Industry Participation Policy sets a minimum local content requirement for government procurement of strategic projects valued at AUD50 million or more that is binding on all project tenderers. The practical effect of this mandate has been that tenderers for the strategic projects have refused to use foreign products to avoid non-compliance with tender conditions. Similarly, South Australia has a South Australia Industry Participation Policy 2021, which incorporates an “industry participation weighting”; the Western Australian government’s Buy Local Policy 2020 includes an “imported content impost”; and the Australian Capital Territory has a Canberra Region Local Industry Participation Policy, which encourages “Territory Entities to seek at least three quotations with at least one quote from a respondent located in the Canberra Region and one quote from an SME for procurements with a total estimated value between AUD25,000 and AUD200,000 (Goods and Services Tax-inclusive).

Australia has two systems for geographical indication registration:

• GIs for all goods can be registered using the certification trade mark system under the Trade Mark Act 1995; and
• GIs for wines can also be registered under a separate system under the Wine Australia Act 2013.

Reportedly geographical indicators have been a stumbling block in the EUFTA negotiations.

Australian Parliament continues to consider whether to introduce a ban on products produced using forced labour. In mid-2023, Australia’s Attorney-General’s Department completed a statutory review of the Modern Slavery Act 2018 (Cth) and released recommendations for reform, including a recommendation to designate a country or foreign entity as carrying a high modern slavery risk. Combined with reporting obligations, this could have a trade-diverting effect.