Bills Digest 24, 2021–22

PDF [885KB]

Ian Zhou
Economic Policy Section
18 October 2021

Contents

Glossary
Commencement
Purpose of the Bills
Structure of the Bills
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments

 

Date introduced:  1 September 2021
House:  House of Representatives
Portfolio:  Home Affairs
Commencement: For commencement details refer to page 4 of this Digest.

Links: The Bills, the Explanatory Memorandum and speeches for the Customs Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021 and the Customs Tariff Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021 can be found on the Bill’s homepages or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2021.

Glossary

Abbreviation	Definition
AANZFTA	ASEAN-Australia-New Zealand Free Trade Area
ACCI	Australian Chamber of Commerce and Industry
ACTU	Australian Council of Trade Unions
ALP	Australian Labor Party
ASEAN	Association of Southeast Asian Nations
DFAT	Department of Foreign Affairs and Trade
FTA	Free trade agreement
GATS	World Trade Organization General Agreement on Trade in Services
ISDS	Investor-state dispute settlement
JSCOT	Joint Standing Committee on Treaties
NFF	National Farmers Federation
RCEP	Regional Comprehensive Economic Partnership
RCEP Party	Any State or separate customs territory for which the RCEP Agreement is in force
ROO	Rules of origin
RVC	Regional value content

Commencement

Sections 1-3 of both Bills commence on Royal Assent. Schedule 1 of both Bills commence on the later of Royal Assent or the day the Regional Comprehensive Economic Partnership (RCEP) Agreement enters into force for Australia. If the RCEP Agreement does not enter into force, the provisions do not commence at all. Schedule 2 of the Customs Tariff Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021 commences at the same time as Schedule 1, or 1 January 2022, whichever is later.

Purpose of the Bills

This Bills Digest relates to two Bills comprising:

• the Customs Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021 (the Customs Amendment Bill)
• the Customs Tariff Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021 (the Customs Tariff Amendment Bill).

The purpose of the two Bills is to amend the Customs Act 1901 and the Customs Tariff Act 1995 to implement Australia’s commitments under the Regional Comprehensive Economic Partnership (RCEP) Agreement.

Two separate Bills are needed in order to comply with the Australian constitutional requirement that ‘laws imposing duties of customs shall deal with duties of customs only’[1] and provisions regarding other matters must be dealt with separately.[2] As such, the Customs Act sets out the broad administrative rules regarding the export and import of goods, while the Customs Tariff Act focuses exclusively on the tariff/customs duty rates applicable to imported goods.

Structure of the Bills

Customs Amendment Bill

The Customs Amendment Bill has one Schedule comprising three Parts:

• Part 1 is titled RCEP originating goods and deals with rules of origin for goods imported into Australia. Goods imported into Australia that are classified as ‘RCEP originating goods’ will be eligible for preferential tariff/customs duty rates
• Part 2 is titled verification powers and deals with businesses’ record-keeping obligations and customs officials’ powers to verify claims of preferential tariff treatment
• Part 3 contains application provisions which set out the situations or timeframes that the Bill will apply.

Customs Tariff Amendment Bill

The Customs Tariff Amendment Bill has two Schedules:

• Schedule 1 makes amendments to the Customs Tariff Act to implement the preferential tariff/customs duty rates applicable to RCEP originating goods
• Schedule 2 contains minor contingent amendments to the Customs Tariff Act.

Background

Overview of the Australian tariff system

All goods (above a set minimum value) imported into Australia, whether by air, sea or post, must be cleared through Australian Customs/Border Force.[3] The typical duties and taxes paid on imported goods include import processing charge, Goods and Services Tax (GST), and customs duty (also known as tariff or import duty).

Customs duty is payable as a rate/percentage of the total value of the imported goods.[4] Customs duty rate typically ranges from 0% to 10%. Different goods are taxed at different customs duty rates (for example, 5%, 10%) according to the Australian tariff classification system.

Free trade agreements (FTAs) aim to reduce tariffs for goods traded between countries. In other words, goods imported from a FTA partner country may be eligible to receive preferential (lower) duty rates. Some economists argue that lower tariffs and fewer trade barriers promote economic growth.[5]

What is the RCEP Agreement?

The RCEP Agreement is a FTA between the ten member states of the Association of Southeast Asian Nations (ASEAN) and five regional countries which have signed FTAs with ASEAN. On 15 November 2020, Ministers from 15 countries (Australia, Brunei, Cambodia, China, Indonesia, Japan, Laos, Malaysia, Myanmar, New Zealand, Philippines, Singapore, South Korea, Thailand, and Vietnam) signed the RCEP Agreement.

Negotiations for the RCEP Agreement were formally launched during the 2012 ASEAN Summit in Cambodia.[6] India, one of the original countries involved in the negotiations, announced in November 2019 that it was leaving the negotiations as the RCEP Agreement ‘does not address satisfactorily India’s outstanding issues and concerns’.[7] Following India’s withdrawal, the remaining countries agreed to a Ministerial Declaration which set out the process for India to accede to the RCEP Agreement at a later date.[8]

Even without India, the RCEP Agreement is still the world’s largest FTA. The 15 countries that signed the RCEP Agreement account for approximately 30% of global gross domestic product and contain approximately 30% of the world’s population.[9] Figure 1 below shows the 15 countries and economies that are signatories/Parties to the RCEP Agreement.

Figure 1: signatories/Parties to the RCEP Agreement

Source: New Zealand Department of Foreign Affairs and Trade, ‘Regional Comprehensive Economic Partnership’, New Zealand Government website, n.d.

What does the RCEP Agreement aim to achieve?

The RCEP Agreement requires the 15 signatories to commit to lower tariffs, open markets, and reduce barriers to trade.[10] The RCEP Agreement will eliminate about 92% of tariffs on goods traded between RCEP signatories within 20 years of the Agreement coming into effect.[11] Furthermore, RCEP Parties commit to liberalise 65% of services sectors and ensure transparency of regulations.[12]

According to the Department of Foreign Affairs and Trade, RCEP will:

… help boost economic growth and job creation in Australia, and deliver new opportunities to large and small Australian businesses through greater trade and investment with important regional trading partners.[13]

Some stakeholders disagree with this assessment (discussed below in the ‘Policy position of major interest groups’ section).

Committee consideration

Joint Standing Committee on Treaties

The Joint Standing Committee on Treaties (JSCOT) tabled a report on the RCEP Agreement on 31 August 2021 and recommended that binding treaty action be taken.[14] The JSCOT concluded:

RCEP does not contain much in the way of innovation from a trade agreement perspective, and its tariff reductions are not as significant as Australia’s other trade agreements with RCEP Parties.

However, the benefits to Australia from RCEP lie in the inclusion of both ASEAN and Australia’s other major trading partners under a single agreement, enabling easier trade for Australian businesses across the region and the commitment by RCEP Parties to integrate their economies into the international trade environment.[15]

As such, the JSCOT is of the view that, on balance, it would be in Australia’s interest to ratify the RCEP Agreement.[16]

The JSCOT also recommended:

• ‘the Government continue to pursue the restoration of civilian, democratic rule in Myanmar as a foreign policy priority, and considers making a declaration to this effect at the time of ratification’ and
• ‘the Government continue to pursue the inclusion of labour, human rights and environmental provisions within the Regional Comprehensive Economic Partnership Agreement at the time of the first review’.[17]

Additional comments were made by Australian Labor Party (ALP) members and a dissenting report was made by Senator Janet Rice for the Australian Greens (discussed below).

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bills.[18]

Policy position of non-government parties/independents

Australian Labor Party

The ALP provided additional comments to the JSCOT report and emphasised that trade agreements must align with Australia’s social and economic values.[19] The ALP noted stakeholders’ concerns about the absence of human rights, labour, and environmental protection provisions in the RCEP Agreement (discussed below in the ‘Position of major interest groups’).[20]

Furthermore, the ALP emphasised that it opposes FTAs that waive labour market testing or include any investor-state dispute settlement (ISDS) clauses (discussed below). The ALP expressed concerns that ‘Article 10.18 [of the RCEP Agreement] identifies that the Parties shall enter into discussions on an ISDS mechanism no later than two years after RCEP’s date of entry into force’.[21]

The ALP also expressed concerns that the Government has not commissioned an independent economic analysis regarding the potential impacts of the RCEP on the Australian economy.[22] As such, the ALP urged the Government to conduct an independent economic analysis for the RCEP and argued that the result of the analysis should form part of the public debate on the merits of the RCEP.[23]

Independent economic analysis of future trade agreements has been a longstanding concern of the ALP and the Australian Greens. The ALP’s support for independent economic analysis of trade agreements aligned with the JSCOT’s recommendations in 2012 and 2021.[24]

Australian Greens

The dissenting report tabled by Senator Janet Rice to the JSCOT report on the RCEP Agreement indicated that the Greens would not support the passage of the implementing legislation for the Agreement.[25]

The Greens raised several concerns regarding the RCEP Agreement, which include:

• no minimum requirements for signatory governments to uphold human rights, labour rights, and environmental protections
• the Government’s commitment to ‘lock in’ current levels of regulation in some services sectors (this is discussed further below) and
• ‘a gaping hole on human rights protections in the RCEP’.[26]

The Greens concluded that ‘there are no additional market access benefits for Australian exports that come out of RCEP’ and recommended that the RCEP not be ratified.[27] Furthermore, the Greens recommended the process for signing and ratifying trade agreements be amended to ensure:

• transparency around the negotiations and final text of agreements
• ISDS provisions are excluded from all trade agreements
• human rights, labour, and environmental protection provisions are included in all trade agreements.[28]

Position of major interest groups

Agricultural industry organisations

Agricultural industry organisations expressed support for the ratification of the RCEP Agreement. For example, Meat & Livestock Australia said:

Our industry is supportive of RCEP and particularly its enhanced trade facilitation outcomes. RCEP is set to provide a single set of rules and procedures for accessing preferential tariffs across the region - rather than utilisation of the slightly different rules/procedures existing via the 10 different FTAs applicable to the 15 RCEP members …

The ability of RCEP to provide additional avenues for tackling non-tariff barriers is also encouraging - with NTB’s [non-tariff barriers] amongst RCEP members impacting the Australian red meat industry to the tune of $1.6 billion per annum. The promotion of compliance with WTO [World Trade Organization] rules and further improvement in cooperation and transparency are useful inclusions.[29] [emphasis added]

Similarly, the National Farmers Federation (NFF) said:

The NFF is a strong supporter of free international trade and believes that multilateral free trade agreements, such as the Regional Comprehensive Economic Partnership (RCEP), promotes the global liberalisation of trade.[30]

While agricultural industry organisations were broadly supportive of the RCEP Agreement, they also expressed some disappointment with the Agreement, including:

• India’s refusal to sign the RCEP Agreement and therefore the missed opportunities for Australia to strength trade ties with India (noting that Australia does not have a FTA with India)
• Australia already having signed existing FTAs with all 15 current signatories of the RCEP Agreement and therefore the Agreement will not deliver additional market access gains for Australian exporters.[31]

Australian Chamber of Commerce and Industry

The Australian Chamber of Commerce and Industry (ACCI) was broadly supportive of the RCEP Agreement. Specifically, the ACCI expressed views on the following three issues.

1. The ‘noodle/spaghetti bowl’ issue of overlapping FTAs

The ACCI supported the RCEP Agreement because it believed the Agreement could potentially reduce the problem of the ‘noodle/spaghetti bowl’ of overlapping FTAs.

Explainer: what is the ‘noodle/spaghetti bowl’ of overlapping FTAs In addition to the RCEP Agreement, Australia already has existing bilateral FTAs with China, Indonesia, Japan, Korea, Malaysia, New Zealand, Singapore and Thailand. Furthermore, Australia is also a member of the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA).[32] Having regard to the number of FTAs to which Australia has signed and how they operate in relation to each other, the JSCOT noted: … a multiplicity of bilateral trade agreements can create a complexity of inconsistent rules and standards for business, thus creating a ‘spaghetti bowl’ or ‘noodle bowl’ of confusing systems …[33] … the benefits to Australia from RCEP lie in the inclusion of both ASEAN and Australia’s other major trading partners under a single agreement …[34]

The ACCI said:

RCEP has the capability to facilitate the removal of these barriers by addressing the ‘noodle bowl’ issue of our overlapping agreements – but only if we use it as an opportunity to remove precedent bilateral agreements.[35]

Figure two below shows the multitude of FTAs amongst the Asia-Pacific countries/economies and their trade partners, hence the name ‘the noodle bowl’ of FTAs.

Figure 2: ‘the noodle bowl’ of FTAs

Source: Western Australian Government, ‘South East Asia e-commerce markets’, PowerPoint presentation, Department of Primary Industries and Regional Development website, August 2018.

2. RCEP rules of origin

The ACCI welcomed the RCEP Agreement’s flexibility in regard to the rules of origin requirements.

Explainer: what are rules of origin? Rules of origin are described as ‘the plumbing of a FTA’, meaning that the rules are an obscure but critically important component of a FTA.[36] As the name suggests, rules of origin are rules that specify how goods are considered to be ‘made in’ a country. Goods that are ‘made in’ a country are eligible to receive a Government-authorised Certificate of Origin of that country. As an analogy, when a person travels internationally the person needs a passport to show the citizenship of his/her/their country. Similarly, when goods are traded internationally, they may need a Certificate of Origin to indicate where the goods originate from. Many overseas importers insist upon a Certificate of Origin when dealing with Australian exporters, and vice versa.[37] Depending on the specifics of the FTA, a product may be considered to be ‘made in Australia’ if, for example, more than 40% of the product’s components are locally sourced. This is known as regional value content requirement. Different FTAs may contain different rules of origin (details of the RCEP’s rules of origin are discussed in the ‘Key issues and provisions’ section below). While some FTAs allow exporters to self-declare the origin of their products, other FTAs empower Customs authorities to request businesses to show a Government-authorised Certificate of Origin in order for the business to receive a preferential tariff treatment.[38] The ACCI and other industry bodies are authorised by the Australian Government to issue Australian Certificates of Origin for Australian exporters.[39]

The ACCI argued the RCEP Agreement gives exporters the flexibility to ‘use the traditional Certificate of Origin system or take the riskier self-declaration approach’.[40]

The ACCI said:

We have examples of companies incurring significant costs under the Australia-US Free Trade Agreement (AUSFTA) relating to their declared claim for preference. They were able to finally satisfy the inquiry by providing a Certificate of Origin as a government-backed claim. Most recently, we have been made aware of an Australian exporter being investigated by Mexican Customs for self-declarations over a 12-month period… While RCEP does allow exporters to absorb this risk and self-declare their preferential claim, it also gives exporters the opportunity to de-risk with a Government-authorised Certificate of Origin.[41] [emphasis added]

As such, the ACCI recommended:

The Australian Government should retain the Certificate of Origin system for future trade agreement negotiations to ensure exporters are insured by a globally standardised system. Government is encouraged to provide exporters with the option to take on more risk through self-declaration whilst ensuring there is a Government-supported system for those seeking to mitigate risk.[42] [emphasis added]

3. Independent economic analysis of trade agreements

The ACCI argued that there is a need for independent analysis of trade agreements because:

… trade agreements can foster trade diversion as well as trade creation. It is therefore important to understand the various components of trade and what drive them. With the global proliferation of trade agreements in recent decades, the need to truly understand trade and the impact of these agreements is increasingly urgent. Economic analysis of Australia’s bilateral and regional trade agreements is needed to assess the impact of these agreements – good or bad, and the consequence of this impact on various components, stakeholders and economies.[43] [emphasis added]

Trade unions

Several trade unions provided submissions to the JSCOT inquiry on the RCEP Agreement. The trade unions argued that the ratification of the RCEP Agreement would not be in the Australian national interest,[44] therefore ‘the Parliament should not proceed with enabling legislation’.[45] The unions expressed concerns regarding the following five aspects of the RCEP Agreement:

1. RCEP’s trade in services chapter

The Australian Council of Trade Unions (ACTU) and the NSW Branch of the Australian Nursing and Midwifery Federation opposed the trade in services chapter in the RCEP Agreement.

Explainer: what is the trade in services chapter of the RCEP? The RCEP contains a chapter on trade in services that aims to reduce trade barriers in services sectors between RCEP Parties. The chapter imposes obligations on Australia (and other RCEP Parties) to ‘lock in’ existing regulation and not adversely modify the existing regulation in particular services sectors.[46] Annex III of the RCEP Agreement provides a schedule of services sectors for each RCEP Party that are exempted from the ‘lock in’ obligations in the trade in services chapter. The aged care sector is not listed as exempt in Australia’s schedule.

The ACTU argued that the trade in service chapter and associated annexes ‘freeze regulation at existing levels and lock in deregulation’.[47] As such, the unions believe this will reduce the ability of the Government to enact regulatory changes to respond to events like the COVID-19 pandemic and climate change.[48]

In particular, the unions argued the ‘lock in’ obligation will negatively affect the Australian aged care sector:

RCEP will mean the Australian Government may be limited in their ability to enact the recommendations of the Aged Care Royal Commission, including ensuring minimum staffing and qualification levels – it effectively trades away our ability as a nation to provide the highest standard of care to older Australians.[49]

As such, the ACTU recommended that the Australian Government seek an amendment to Australia’s Annex III schedule to make the aged care sector exempt from the ‘lock-in’ obligations in the trade in services chapter.[50]

2. RCEP provisions on labour market testing

The ACTU and the Electrical Trades Union expressed concerns that ‘the RCEP agreement entrenches the removal of labour market testing’ and this will jeopardise employment opportunities for Australian workers.[51]

Explainer: what is labour market testing? For some visa types, if an Australian sponsor/employer wishes to hire an overseas worker, the sponsor/employer must first demonstrate that they are unable to find a suitable Australian worker to fill the role in order for the Department of Home Affairs to grant a visa to the overseas worker. This is known as labour market testing.[52] The Australian Government can choose to waive labour market testing for some overseas workers under FTAs. For example, under the Indonesia-Australia Comprehensive Economic Partnership Agreement, the Australian Government has waived labour market testing for some types of Indonesian workers.[53] Put simply, if an Australian sponsor/employer wishes to hire certain Indonesian workers (for example, an Indonesian independent executive), the sponsor does not need to demonstrate that they are unable to find suitable Australian workers. The RCEP Agreement aims to promote the temporary movement of workers between RCEP countries via its chapter on ‘Temporary Movement of Natural Persons’.

The Electrical Trades Union emphasised that labour market testing is a critical tool to protect Australian local workers and therefore any ‘RCEP provisions which remove, exempt or water down labour market testing requirements in Australia should be immediately stripped from the RCEP and its accompanying documents’.[54]

On the other hand, the Department of Foreign Affairs and Trade (DFAT) asserted:

Australia is not waiving labour market testing for contractual service suppliers and is not making any new commitments on labour market testing exemptions beyond existing commitments in AANZFTA [ASEAN-Australia-New Zealand Free Trade Agreement] and GATS [General Agreement on Trade in Services].[55]

According to the Explanatory Memorandum to the Customs Amendment Bill:

Consistent with Australia’s existing commitments in AANZFTA and GATS, Australia will waive labour market testing for intra-corporate transferees and independent executives. Australia’s commitments do not waive labour market testing for contractual service suppliers.[56] [emphasis added]

3. Myanmar

The Electrical Trades Union argued that the Australian Government should not enter into a trade agreement with Myanmar while the military junta is in power because ‘doing so risks legitimatising the regime’.[57]

The ACTU agreed with this position, stating that the Australian Government should adopt the same approach as the United States with respect to Myanmar:

Instead of entering into a preferential trade deal with Myanmar, the Australian Government should be implementing trade sanctions and cutting off all support to the military junta.[58]

4. Absence of labour rights provisions in the RCEP

The ACTU and the Electrical Trades Union noted that the RCEP Agreement does not contain a chapter on labour rights. The unions argued that ‘the lack of safeguards for workers’ rights is particularly concerning given the RCEP agreement contains several countries with poor labour rights records’.[59]

As such, the unions recommended ‘the RCEP be re-negotiated to include enforceable commitments to labour rights’.[60]

5. Independent economic analysis of the RCEP

The ACTU called for an independent economic analysis of the RCEP, arguing that the negotiation process was largely carried out in secret. The ACTU said:

… the fact the RCEP has been put together without a proper transparent and inclusive process for public input into negotiations should give this Inquiry and Parliament even greater cause to ensure the agreement is now subject to comprehensive scrutiny. To this end, we call for an independent, external inquiry into the costs and benefits of the RCEP.[61] [emphasis added]

NT and ACT Governments

The Northern Territory (NT) Government expressed support for the ratification of the RCEP. The NT Government said:

Once ratified, RCEP will create an opportunity for closer economic engagement, opening new markets and opportunities for businesses, primary producers, service providers and investors. Similarly it will increase opportunities for Northern Territory businesses to access regional value chains. RCEP has the potential to simplify the regional trade and investment environment, better integrate Northern Territory businesses into regional supply chains and improve market access for Northern Territory exporters.[62] [emphasis added]

Andrew Barr, the Chief Minister for the Australian Capital Territory (ACT), said the RCEP will benefit ACT exporters and make it easier for people conducting business in RCEP countries. As such, ‘the ACT Government supports Australia's participation in RCEP’.[63]

Financial implications

According to the Explanatory Memorandum to the Customs Amendment Bill, the implementation of the RCEP Agreement will have no impact on Australian customs duty receipts.[64]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the compatibility of both Bills with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that both Bills are compatible.[65]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment on the Bills.[66]

Key issues and provisions

Customs Amendment Bill

Part 1 – RCEP originating goods

All FTAs contain rules of origin. Under the RCEP Agreement, only goods defined as ‘RCEP originating goods’ will be entitled to receive preferential tariff treatment prescribed by the Agreement (discussed in the ‘Explainer’ box above).

Broadly speaking, to be an RCEP originating good, a good must be:

• wholly obtained or produced in a RCEP Party (Rule 1) or
• produced in a RCEP Party exclusively using materials from one or more RCEP Parties (Rule 2) or
• produced in a Party with non-originating materials provided the good meets the Product Specific Rules set out in Annex 3A to Chapter 3 of the RCEP Agreement (Rule 3).[67]

Rules also specify the treatment of:

• packaging materials and containers (Rule 4)
• accessories, spare parts, tools or instructional or other information materials (Rule 5) and
• originating goods that are transferred through other countries before arriving in Australia (referred to as consignment) (Rule 6).

Part 1 of Schedule 1 of the Customs Amendment Bill incorporates the RCEP Agreement’s rules of origin provisions into Australian law by inserting Division 1N into Part VIII of the Customs Act. Proposed Division 1N consists of six Subdivisions (A-F).

Proposed Subdivision A provides for key definitions that apply to proposed Division 1N.[68] Proposed Subdivisions B-F outline the circumstances and rules under which goods are to be considered RCEP originating goods under the RCEP rules of origin. Figure 3 is a visual representation of some of the rules of origin that are typically used to determine a product’s origin.

Figure 3: rules of origin that are typically used to determine a product’s origin

Source: D Kniahin, D Dinh, M Mimouni, and X Pichot, ‘Global Landscape of Rules of Origin: Insights from the New Comprehensive Database’, paper presented at the 22nd Annual Conference on Global Economic Analysis, Warsaw, 21 June 2019, p. 8.

Rule 1 — goods wholly obtained or produced in RCEP Parties are treated as RCEP originating goods (proposed Subdivision B)

Subdivision B contains proposed subsection 153ZQC to define ‘goods wholly obtained or produced entirely in a [RCEP] Party’ as RCEP originating goods.

In other words, goods will be treated as RCEP originating goods if they are wholly obtained or produced entirely in one or more of the Parties to the RCEP Agreement and either:

• the importer of the goods has, at the time the goods are imported, a Proof of Origin, or a copy of one, for the goods or
• Australia has waived the requirement for a Proof of Origin for the goods.[69]

For example, if Australian importers can produce a Proof of Origin to indicate that the products they are importing are wholly obtained or produced in a Party to the RCEP Agreement,[70] then the goods will be treated as RCEP originating goods and receive preferential tariff treatment.

Explainer: what is considered as a Proof of Origin under the RCEP? In Article 3.16 of Chapter 3 of the RCEP Agreement, any of the following shall be considered as a Proof of Origin: - a Certificate of Origin issued by an issuing body in accordance with Article 3.17 (Certificate of Origin) - a Declaration of Origin by an approved exporter in accordance with subparagraph 1(a) of Article 3.18 (Declaration of Origin) - a Declaration of Origin by an exporter or producer in accordance with subparagraph 1(b) of Article 3.18 (Declaration of Origin), and subject to implementation in accordance with that Article, based on information available that the good is originating.[71] Put simply, the RCEP Agreement gives exporters the flexibility to either use a Government‑authorised Certificate of Origin or make a self-declaration (through a Declaration of Origin) to demonstrate the origins of their products. As noted above, the ACCI supported this flexibility. Industry groups such as the ACCI and the Australian Industry Group are authorised to issue Certificates of Origin for Australian goods. Only RCEP approved exporters can make a self-declaration through a Declaration of Origin. According to the Explanatory Memorandum: There will be a process for businesses to become accredited as an RCEP Approved Exporter, which is expected to involve a substantive compliance cost in the form of an application fee, and the cost of preparing and submitting an application.[72]

Rule 2—Goods produced in RCEP Parties from originating materials are treated as RCEP originating goods (proposed Subdivision C)

Subdivision C contains proposed section 153ZQD which defines goods produced entirely in a [RCEP] Party from originating materials only as RCEP originating goods.[73] Originating materials do not need to be specifically from the RCEP country producing the goods, they can be from ‘one or more of the [RCEP] Parties’.[74]

In other words, goods are RCEP originating goods if ‘they are produced entirely in a Party, from originating materials only’ and the importer has a Proof of Origin, or the need for this has been waived by Australia.[75]

Originating materials are defined as:

• goods that are originating goods, in accordance with Chapter 3 of the RCEP Agreement and that are used in the production of other goods
• indirect materials.[76]

Indirect materials are defined as:

• goods or energy used in the production, testing or inspection of goods, but not physically incorporated in the goods
• goods or energy used in the maintenance of buildings or the operation of equipment associated with the production of goods.[77]

Rule 3—goods produced in RCEP Parties, from non-originating materials (proposed Subdivision D)

Subdivision D contains proposed section 153ZQE which defines goods produced entirely in a [RCEP] Party from non-originating materials only, or from a combination of non-originating materials and originating materials, as RCEP originating goods.[78]

In other words, even if products contain materials from non-RCEP countries (known as non‑originating materials), the products may nonetheless be treated as RCEP originating goods if they satisfy the rules of origin detailed in proposed Subdivision D.

The rules which deal with the treatment of goods produced from non-originating materials are referred to as Product-Specific Rules (of Origin) in the RCEP Agreement.

Under Product-Specific Rules, goods are considered to be RCEP originating goods if:

1. they are classified to a Chapter, heading or subheading of Harmonized System[79] that is covered by the table in Annex 3A to Chapter 3 of the RCEP Agreement
2. they are produced entirely in a [RCEP] Party from non-originating materials only or from non-originating materials and originating materials
3. the goods satisfy the requirements applicable to the goods in Annex 3A and
4. the importer of the goods has, at the time the goods are imported, a Proof of Origin, or a copy of one, for the goods or Australia has waived the requirement for a Proof of Origin for the goods.[80]

Commentary regarding Product-Specific Rules of Origin If a RCEP country manufactures a product with components from different countries, the final product may still be treated as a ‘RCEP originating good’ if the product satisfies the ‘change in tariff classification’ requirement or the ‘regional value-content’ requirement, or both as set out in Annex 3A to Chapter 3 of the RCEP Agreement. Dr Jeffrey Wilson at the Perth USAsia Centre explains: … if the product is manufactured in a value chain with goods form different countries – say, bottled orange juice, with concentrate from one country, a glass jar from another, and processing in a third – how do we determine which of the three countries it comes from? Generally speaking, there are two methods for determining national origin for these tricky products: o  Change in tariff classification (CTC): If a country takes an imported product, and transforms [it] into another product that has a different classification code in the Harmonised System, then it should be considered to be ‘made in’ that country. o  Regional value content (RVC): If the percentage of value-added in the final product exceeds a set threshold (often 40 percent), then it should be considered to be ‘made in’ that country.[81]

The change in tariff classification requirement under the RCEP Agreement

In order to meet the change-in-tariff-classification requirement under the RCEP Agreement, non-originating materials used in the production of the goods must undergo the applicable change as a result of production occurring entirely in the territory of one or more RCEP Parties.

Explainer: products that underwent a change in tariff classification In order for a product with non-originating materials to be treated as a RCEP originating good, one requirement is for the product to undergo a change in tariff classification. A change in tariff classification means a change in the applicable Harmonized System code. The Harmonized System (HS) refers to the Harmonized Commodity Description and Coding System. It is an internationally standardised system of names and codes to classify traded goods. Jason Wood, the Assistant Minister for Customs, Community Safety and Multicultural Affairs, explained: The Harmonized System provides means for identifying a good as it moves from one country to another, ensuring that what Australia calls a ‘tomato’ is the same as what every other user of the Harmonized System calls a ‘tomato’.[82] The HS is enforced in Australian law via the Customs Tariff Act. The Customs Tariff Act contains thousands of HS codes. The HS codes are typically six to 10 digits long and they describe specific products. Each HS code has a corresponding rate of applicable customs duty – free, 5%, 10% et cetera. For example: - Chapter 20 of the HS codes is a broad description, titled ‘Preparation of vegetables, fruits…’ - Heading 09 of Chapter 20 is more specific, titled ‘Fruit juices…’ - Subheading 11.00 of Heading 09 of Chapter 20 is very specifically called ‘Frozen [orange juice]’.[83] The HS code given to frozen orange juice is 2009.11.00, indicating the product’s classification chapter, heading, and subheading. Businesses that wish to import frozen orange juice into Australia must pay the customs duty rate prescribed by the HS code 2009.11.00, which is currently 5% of the value of the import. Under the RCEP Agreement, businesses that import goods from RCEP countries may be eligible to receive preferential duty rates if the goods are determined to be RCEP originating goods. To continue with the orange juice example from above: orange juice manufacturers in a RCEP country may use non-originating materials (for example, fresh oranges from a non-RCEP country) in their production of frozen orange juice, however the final products (frozen orange juice) are treated as RCEP originating goods because the final products have undergone a change in tariff classification. In other words, fresh oranges (HS code 0805.10.00) are transformed into frozen orange juice (HS code 2009.11.00). As a result, businesses that import frozen orange juice into Australia from RCEP countries may be able to pay lower preferential duty rates rather than the 5% rate prescribed in the Customs Tariff Act.

The regional value content requirement under the RCEP Agreement

Regional value content (RVC) requirement prescribes that a certain minimum percentage of the total value of a good must be from regional (that is, domestic) origin. For example, in order for a product to be considered ‘made in Australia’, a certain percentage of the product must have been produced in Australia.

Different products have different regional value content requirements. The requirements are specified in the Annex 3A to Chapter 3 of the RCEP Agreement. For example, for some products to be considered as ‘RCEP originating products’, 40% of the components must be from regional origin. This is given an abbreviation of RVC40 in Annex 3A.[84]

Explainer: how to calculate regional value content under the RCEP Agreement There are two methods for calculating the regional value content under the RCEP: the build-down method and the build-up method.[85] The build-down method is based on the value of non-originating materials: The build-up method is based on the value of originating materials: where: - ‘RVC’ is the regional value content of a good, expressed as a percentage - ‘VNM’ or value of non-originating materials including materials of undetermined origin, used in the production of the good - ‘VOM’ is the value of originating materials used in the production of the good in the territory of RCEP parties - The definition of ‘FOM’ or ‘Free on Board’ value is the market value of the goods at the point of uniform valuation. That is, the value of the good inclusive of the cost of transport to the port or site of final shipment abroad.

Proposed subsection 153ZQE(6) provides that where there is a requirement that particular goods have a regional value content of not less than a particular percentage calculated in a given way, then the RVC is to be worked out in accordance with the method set out in Article 3.5, or as prescribed in the Regulations.[86]

Rule 4—packaging materials and containers

Goods imported into Australia from RCEP Parties frequently come with packaging materials and containers. For example, when businesses import fresh grapes into Australia, these grapes may come with crates or plastic packaging.

For customs and tariff purposes, it is important to determine how to treat these packaging materials and whether additional tariffs should be applied to these packaging materials.

Rule 5 of the General Rules for Interpretation of the Harmonized System provides guidance regarding the treatment of cases and packing containers. In most cases, according to this rule, containers are classified together with the goods they contain; they are not classified separately.[87]

Proposed subsection 153ZQF(1) provides that if goods are packaged for retail sale in packaging material or a container and the packaging material or container is classified with the goods in accordance with Rule 5 of the General Rules for Interpretation, then the packaging material or container is to be disregarded for the purposes of proposed Subdivision D.

Put simply, the packaging materials for RCEP originating goods will not attract additional tariffs provided that they meet the requirements in proposed subsection 153ZQF(1).

However, if there is a requirement that the goods have a regional value content of not less than a particular percentage, calculated in a particular way, then the regulations must provide for the value of the packaging material or container to be taken into account, for the purposes of calculating the regional value content of the goods (proposed subsection 153ZQF(2)).

Rule 5—accessories, spare parts, tools or instructional or other information materials will be treated as RCEP originating goods if certain requirements are met (proposed Subdivision D)

When goods are imported into Australia from RCEP countries, the goods may come with accessories, spare parts, tools or instructional or other information materials. These accessories/spare parts are not necessarily treated as RCEP goods.

For customs and tariff purposes, it is important to determine whether these accessories/spare parts should be treated separately from the actual goods because additional tariffs may apply.

Proposed section 153ZQG gives effect to Article 3.9 of the RCEP Agreement.[88] Proposed subsection 153ZQG(1) provides that accessories, spare parts, tools or instructional or other information materials are to be disregarded for the purposes of proposed Subdivision D if:

• goods are imported into Australia with accessories, spare parts, tools or instructional or other information materials
• the accessories, spare parts, tools or instructional or other information materials are presented with, and not invoiced separately from, the goods
• the quantities and value of the accessories, spare parts, tools or instructional or other information materials are customary for the goods.[89]

Put simply, accessories/spare parts will be treated as RCEP originating goods (therefore will be eligible to receive preferential tariff treatments) if the accessories/spare parts are not invoiced separately from the actual goods and the quantities/value of these accessories do not exceed the customary amount.

However, if there is a requirement that the goods have a regional value content of not less than a particular percentage, calculated in a particular way, then the regulations must provide for the value of the accessories/spare parts to be taken into account for the purposes of calculating the regional value content of the goods (proposed subsection 153ZQG(2)).[90]

Rule 6—Consignment rules (proposed Subdivision F)

When goods are imported into Australia, they may travel through several locations before finally arriving in Australia. This raises questions about the origin of the goods.

For example, a New Zealand product (a RCEP Party) may have travelled through Russia (a non‑RCEP Party) to be packaged first. When the New Zealand product finally arrives in Australia, it is important to ask whether the product has undergone any significant production process in Russia in order for Customs authorities to determine whether the product is a RCEP originating good.

The consignment or shipment rules in the RCEP Agreement stipulate that the goods are not to be treated as RCEP originating goods if they are shipped through non-RCEP countries and the goods undergo any process of production or operation (other than unloading, re-loading, any operation to preserve them in good condition or any operation that is necessary for them to be transported to Australia).[91] Goods must also remain under the control of Customs authorities in the countries through which they are shipped. Proposed section 153ZQI incorporates the RCEP consignment rules into Australian law.

To continue with the example above, if the New Zealand product was merely unloaded and reloaded in Russia, then the product would still be classified as a RCEP originating good. However, if the New Zealand product has undergone any production process in Russia, then the product would not be treated as a RCEP originating good.

Powers to make regulations (proposed Subdivision G)

Proposed section 153ZQJ provides that regulations may make provision for and in relation to determining whether goods are RCEP originating goods under new Division 1N.

Part 2 – Verification powers

Part 2 of Schedule 1 of the Bill deals with businesses’ record keeping obligations and customs officials’ powers to verify claims of preferential tariff treatment.

Item 4 amends Part VI of the Customs Act to insert new Division 4L, which is titled ‘Exportation of goods to Parties to the Regional Comprehensive Economic Partnership Agreement’. Proposed sections 126AQA, 126AQB, 126AQC and 126AQD combine to set out new obligations on exporters of eligible goods to a Party to the RCEP Agreement who wish to obtain preferential treatment of customs duty in respect of those goods, and on people who produce such goods.

Definitions

Proposed section 126AQA provides definitions of key terms used in Division 4L including:

• Producer means a person who engages in the production of goods
• Customs authority has the same meaning given by Article 4.1 of the RCEP Agreement. It means ‘any authority that is responsible under the law of each Party for the administration and enforcement of its customs laws and regulations’[92]
• RCEP customs official means a person representing the Customs authority of that Party.

Record keeping obligations

Proposed subsection 126AQB(1) provides that regulations may prescribe record keeping obligations in relation to goods that are exported to a RCEP Party and are claimed to be originating goods, in accordance with Chapter 3 of the RCEP Agreement, for the purposes of obtaining preferential tariff treatment. Proposed subsection 126AQB(2) provides that record keeping obligations may be imposed on the exporter or producer of goods.

Power to require records

Proposed subsection 126AQC(1) provides that an authorised officer (as defined in existing section 4 of the Customs Act) may require a person who is subject to record keeping obligations under regulations made for the purposes of section 126AQB to produce to the officer, records as the officer requires.

Proposed subsection 126AQC(2) provides that an authorised officer may disclose any records so produced to a RCEP customs official for the purpose of verifying a claim for a preferential tariff in a RCEP Party.

The note to subsection 126AQC(1) states that where an authorised officer has requested a person to produce a record in order to verify the origin of goods in accordance with this section, a failure to do so may be an offence under existing section 243SB of the Customs Act. This is a strict liability offence. The note states that, under existing section 243SC of the Customs Act, a person does not have to produce a record if doing so would tend to incriminate them.

Power to ask questions

Proposed subsection 126AQD(1) provides that an authorised officer may require a person who is an exporter or producer of goods that:

1. are exported to a RCEP Party and
2. are claimed to be originating goods, in accordance with Chapter 3 of the RCEP Agreement, for the purpose of obtaining a preferential tariff in the Party

to answer questions in order to verify the origin of the goods.

Proposed subsection 126AQD(2) provides that an authorised officer may disclose any answers to a RCEP customs official for the purpose of verifying a claim for a preferential tariff in a RCEP Party.

The note to subsection 126AQD(1) states that where an authorised officer has requested a person to answer questions in order to verify the origin of goods in accordance with this section, a failure to answer questions by that person may be an offence under existing section 243SA of the Customs Act. Existing section 243SC provides that a person does not have to answer a question if doing so would tend to incriminate them.

Part 3 – Application provisions

Part 3 of Schedule 1 of the Bill deals with application provisions that give effect to the amendments made by Part 1 of Schedule 1 of the Bill. It provides that the amendments apply in relation to goods imported into Australia on or after the commencement of Part 1 (which will be the later of the day the Bill receives Royal Assent or the day the RCEP Agreement enters into force for Australia). It also applies to goods imported into Australia before commencement of Part 1, where the time for working out the rate of import duty on the goods had not occurred before the commencement.

The amendments made by Part 2 apply in relation to goods exported to a RCEP Party on or after commencement of that Part. (Part 2 commences at the same time as Part 1.)

Customs Tariff Amendment Bill

Article 2.4 of the RCEP Agreement provides that each ‘each Party shall reduce or eliminate its customs duties on originating goods of other Parties in accordance with its Schedule in Annex I (Schedules of Tariff Commitments)’.[93] The Customs Tariff Amendment Bill implements Australia’s commitments made under Article 2.4.

Stuart Robert, the Minister for Employment, Workforce, Skills, Small and Family Business, said in his second reading speech for the Customs Tariff Amendment Bill:

The bill will insert a new schedule of duty rates into the Customs Tariff Act. Schedule 14 will contain the preferential rates of customs duty for imported goods that satisfy the rules of origin as agreed by Australia and other RCEP signatory countries. Australia has committed to eliminating the duty rate for most originating goods to 'free' over the years following the entry into force of RCEP.[94] [emphasis added]

Concluding comments

The two Customs Bills amend Australian law to implement Australia’s tariff commitments under the RCEP Agreement.

There are divided opinions about the potential effect of the RCEP Agreement on Australian jobs and the economy. While some stakeholders support the ratification of the RCEP Agreement,[95] others argue that doing so would hurt the Australian national interest and therefore ‘the Parliament should not proceed with enabling legislation’.[96]

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[1].       Australian Constitution, section 55.

[2].       D Elder and P Fowler, House of Representatives practice, 7th edn, Department of the House of Representatives, Canberra, 2018, Chapter 11, ‘Taxation bills’.

[3].       Australian Border Force (ABF), ‘Import declaration’, ABF website, last updated 9 June 2021.

[4].       Importers must pay customs duty according to the estimated total value of imported goods, known as ‘ad valorem’ which is Latin for ‘tax according to value’. The most common method for valuing imported goods is to use the ‘transaction value’, which is the price the importer actually paid for the goods.

[5].       The World Bank, ‘Stronger open trade policies enable economic growth for all’, World Bank website, 3 April 2018.

[6].       Joint Declaration on the Launch of Negotiations for the Regional Comprehensive Economic Partnership, done at Phnom Penh 20 November 2012.

[7].       R Panda, ‘A step too far: why India opted out of RCEP’, Global Asia, 14(4), December 2019, pp. 82–88.

[8].       Department of Foreign Affairs and Trade (DFAT), ‘Ministers’ declaration on India’s participation in the Regional Comprehensive Economic Partnership (RCEP)’, DFAT website, 15 November 2020.

[9].       New Zealand Department of Foreign Affairs and Trade, ‘Regional Comprehensive Economic Partnership’, New Zealand Government website, n.d.

[10].     Regional Comprehensive Economic Partnership Agreement, done at Canberra 15 November 2020, [2021] ATNIF 1 (yet to enter into force for Australia) (RCEP Agreement), Articles 2.4 and 8.5.

[11].     Singaporean Ministry of Trade and Industry, Singapore ratifies the Regional Comprehensive Economic Partnership Agreement, media release, 9 April 2021.

[12].     Singaporean Ministry of Trade and Industry, What you need to know about the Regional Comprehensive Economic Partnership Agreement, media release, 26 April 2021, p. 3.

[13].     DFAT, ‘The Regional Comprehensive Economic Partnership: what is it and why is Australia a part of it?’, DFAT website, n.d.

[14].     The terms of reference and submissions to the Joint Standing Committee on Treaties (JSCOT) report are available on the inquiry homepage.

[15].     Joint Standing Committee on Treaties (JSCOT), Regional Comprehensive Economic Partnership Agreement, report, 196, JSCOT, Canberra, August 2021, pp. 47–48.

[16].     Ibid., p. 48.

[17].     Ibid.

[18].     Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 15, 2021, 16 September 2021, p. 26.

[19].     Australian Labor Party, Additional comments, JSCOT, Regional Comprehensive Economic Partnership Agreement, op. cit., p. 59.

[20].     Ibid., p. 59.

[21].     Ibid., p. 64.

[22].     Ibid., pp. 65–66.

[23].     Ibid.

[24].     JSCOT, Malaysia – Australia Free Trade Agreement done at Kuala Lumpur on 22 May 2012, report, 130, JSCOT, Canberra, October 2012, p. 32; JSCOT, Strengthening the trade agreement and treaty-making process in Australia, report, 193, JSCOT, Canberra, August 2021, p. 34.

[25].     Australian Greens, Dissenting report, JSCOT, Regional Comprehensive Economic Partnership Agreement, op. cit., p. 57.

[26].     Ibid., pp. 55–56.

[27].     Ibid., p. 55, 57.

[28].     Ibid., p. 57.

[29].     Meat & Livestock Australia, Submission to the JSCOT, Inquiry into Regional Comprehensive Economic Partnership Agreement, [Submission no. 9], 19 April 2021, p. 1.

[30].     National Farmers Federation, Submission to the JSCOT, Inquiry into Regional Comprehensive Economic Partnership Agreement, [Submission no. 11], 23 April 2021, p. 1.

[31].     Ibid., pp. 1–2; Meat & Livestock Australia, Submission, op. cit., p. 1.

[32].     See the DFAT website for a list of FTAs that Australia has entered into.

[33].     JSCOT, Regional Comprehensive Economic Partnership Agreement, op. cit., p. 6.

[34].     Ibid., p. 47.

[35].     Australian Chamber of Commerce and Industry (ACCI), Submission to the JSCOT, Inquiry into Regional Comprehensive Economic Partnership Agreement, [Submission no. 16], 27 April 2021, p. 5.

[36].     P Crivelli and S Inama, ‘Making RCEP successful through business-friendly rules of origin’, Asian Development blog, 12 February 2021.

[37].     Australian Trade and Investment Commission (Austrade), ‘What is a Certificate of Origin?’, Austrade website, n.d.

[38].     World Customs Organization (WCO), ‘Exporter's and importer's responsibilities’, WCO website, n.d.

[39].     ACCI, ‘Certificates of Origin’, ACCI website, n.d.

[40].     ACCI, Submission, op. cit., p. 1.

[41].     Ibid., p. 4.

[42].     Ibid.

[43].     Ibid.

[44].     Electrical Trades Union (ETU), Submission to the JSCOT, Inquiry into Regional Comprehensive Economic Partnership Agreement, [Submission no. 14], 23 April 2021, p. [2].

[45].     Australian Council of Trade Unions (ACTU), Submission to the JSCOT, Inquiry into Regional Comprehensive Economic Partnership Agreement, [Submission no. 10], 21 April 2021, p. 20.

[46].     Explanatory Memorandum, Customs Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021, p. 29.

[47].     ACTU, Submission, op. cit., p. 7.

[48].     Ibid.

[49].     ACTU, RCEP agreement will legitimise the military dictatorship in Myanmar and fails to provide benefit to Australian workers, media release, 28 July 2021.

[50].     ACTU, Submission, op. cit., p. 1.

[51].     ETU, Submission, op. cit., p. 3. See also: ACTU, ACTU calls to renegotiate huge RCEP trade deal, media release, 21 August 2021.

[52].     Department of Home Affairs (DHA), ‘Nominating a position: labour market testing’, DHA website, 14 September 2021.

[53].     JSCOT, IA-CEPA and A-HKFTA, report, 186, JSCOT, Canberra, 3 October 2019, p. 14.

[54].     ETU, Submission, op. cit., p. [2].

[55].     DFAT, ‘Regional Comprehensive Economic Partnership: Outcomes: Services and Investment’, fact sheet, 15 November 2020.

[56].     Explanatory Memorandum, op. cit., p. 34.

[57].     ETU, Submission to JSCOT, op. cit., p. 6.

[58].     ACTU, Submission, op. cit., p. 2.

[59].     Ibid., p. 9; ETU, Submission to JSCOT, op. cit., p. 7.

[60].     Ibid., p. 20.

[61].     Ibid., p. 17.

[62].     Northern Territory Department of Industry, Tourism and Trade, Submission to the JSCOT, Inquiry into Regional Comprehensive Economic Partnership Agreement, [Submission no. 18], 20 April 2021, p. 2.

[63].     A Barr, Submission to the JSCOT, Inquiry into Regional Comprehensive Economic Partnership Agreement, [Submission no. 17], 7 May 2021, p. 2.

[64].     Explanatory Memorandum, op. cit., p. 2.

[65].     The Statement of Compatibility with Human Rights can be found at page 21 of the Explanatory Memorandum to the Customs Amendment Bill and page 15 of the Explanatory Memorandum to the Customs Tariff Amendment Bill.

[66].     Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2021, 16 September 2021, p. 60.

[67].     JSCOT, Regional Comprehensive Economic Partnership Agreement, op. cit., p. 15. See RCEP Agreement, Article 3.2.

[68].     Customs Act, proposed section 153ZQB.

[69].     Customs Act, proposed subsection 153ZQC(1).

[70].     Proposed subsection 153ZQC(2) defines what is meant for a good to be considered to be wholly obtained or produced in a Party.

[71].     RCEP Agreement, Article 3.16.

[72].     Explanatory Memorandum, op. cit., p. 41.

[73].     Customs Act, proposed section 153ZQD.

[74].     RCEP Agreement, Article 3.2.

[75].     Explanatory Memorandum, op. cit., p. 12.

[76].     Customs Act, proposed subsection 153ZQB(1) (definition of ‘originating good’).

[77].     Customs Act, proposed subsection 153ZQB(1) (definition of indirect material).

[78].     Customs Act, proposed section 153ZQE.

[79].     The Harmonized System refers to the Harmonized Commodity Description and Coding System. The Harmonized System is the worldwide goods classification system that has been adopted by more than 200 countries and economies (including Australia) for customs purposes.

[80].     Explanatory Memorandum, op. cit., p. 12.

[81].     J Wilson, ‘What’s the deal about rules-of-origin in the RCEP negotiations?’, Perth USAsia Centre blog, 8 July 2019.

[82].     J Wood, ‘Second reading speech: Customs Tariff Amendment (Incorporation of Proposals and Other Measures) Bill 2020’, House of Representatives, Debates, 3 December 2020, p. 10444.

[83].     See Chapter 20 in Schedule 3 to the Customs Tariff Act 1995.

[84].     Explanatory Memorandum, op. cit., p. 12.

[85].     RCEP Agreement, Article 3.5.

[86].     Explanatory Memorandum, op. cit., p. 14.

[87].     There are three instances where this rule does not apply:

(i)    When the container itself gives the good its essential character. For example, a silver tea caddy containing tea or an ornamental ceramic bowl containing sweets.

(ii)    When the container is shipped separately. If you just ship an empty crate, it is classified as a crate.

(iii)   When the packing container is suitable for repetitive use. Many companies have heavy-duty crates or boxes that they use to ship repair and return items to and from overseas destinations. These must be classified separately as the type of containers they are.

Source: H Selby, ‘Doing it by the book: classifying your goods for international trade’, International Trade blog, 23 July 2018.

[88].     Explanatory Memorandum, op. cit., p. 15.

[89].     Ibid., p. 15.

[90].     Ibid., p. 16.

[91].     RCEP Agreement, Article 3.15.

[92].     RCEP Agreement, Article 4.1.

[93].     RCEP Agreement, Article 2.4.

[94].     S Robert, ‘Second reading speech: Customs Tariff Amendment (Regional Comprehensive Economic Partnership Agreement Implementation) Bill 2021’, House of Representatives, Debates, (proof), 1 September 2021, p. 21.

[95].     Northern Territory Department of Industry, Tourism and Trade, Submission, op. cit., p. 2.

[96].     ACTU, Submission, op. cit., p. 20.

 

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