Australian Border Force

What is a dumping continuation inquiry and why will it have a big impact on importers of aluminium extrusions?

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Dumping duties payable on the importation of aluminium extrusions continues to be a key focus of the Australian Border Force.  This is not surprising given that inadvertent non-compliance remains high and the relevant duty rates exceed 100%.  An unexpected dumping duty bill can be a business ending event and a key part of managing this risk is closely monitoring developments affecting what dumping duties are imposed.

There are at least 3 key events in a life of a dumping duty – the initial investigation that results in the duties being imposed, a review of the rates that will apply and an inquiry every 5 years into whether the dumping duties should continue.  The last of these, a continuation inquiry, was commenced in mid-February into Chinese exports of aluminium extrusions.

What is a dumping duty continuation inquiry?

Dumping duties automatically expire after 5 years unless a continuation inquiry is held.  A continuation inquiry in conducted by the Anti-Dumping Commission (ADC) and involves an examination of the following questions:

  1. should the dumping duties continue unaltered;
  2. should the dumping duties be permitted to expire;
  3. should the dumping duties cease to apply to particular exporters or particular types of goods;
  4. should the rates of dumping duties change.

Does this mean the dumping duties may end?

Where dumping is unlikely to continue or the local industry will no longer suffer injury, it makes sense that dumping duties should end.  After all, these are protectionist, and not revenue raising, duties.  Unfortunately, the continuation inquiry into aluminium extrusions is unlikely to bring about an end of the dumping duties.  The level of exports from China has not decreased and the most recent review (concluded in May 2019) found high levels of dumping.

Could the rates change? Yes, especially is the ADC follows the recent WTO ruling

The level of dumping duties should be the big focus area.  While not all continuation inquiries involve a review of the rates, this inquiry is likely to.  This is because the last aluminium extrusion rate review was based on exports during the 17/18 financial year.  This data is already 20-26 months old.  The ADC is likely to exercise its discretion to update the rates.  As a result, the inquiry needs to be treated in the same way as a review.  The result of this will be the resetting of:

  • specific dumping duty rates for the major exporters,
  • the rate that applies to cooperating exporters; and
  • the rate that applies to all other exporters (including those that did not participate in the inquiry).

The last time a review was conducted there was a dramatic change in each of the above 3 types of rates.  This is due to changes in factors such as the differential between Chinese aluminium prices and global prices, profits on Chinese domestic sales and export prices.

However, what makes this review especially interesting is that the WTO has recently found that the ADC method of calculating certain dumping margins was not in accordance with WTO requirements.  While the WTO was reviewing a decision regarding Indonesia A4 copy paper, the offending practice has been adopted by the ADC in relation to aluminium extrusions exported from China.

Traditionally, the ADC has disregarded actual Chinese domestic selling prices due to alleged Chinese Government influence in the market for materials used to produce aluminium extrusions.  This practice always leads to large dumping margins.  However, following the WTO ruling, the ADC will first have to ask whether the Government Influence has prevented Chinese domestic prices and exports from being comparable.  Chinese manufacturers used the same inputs to produce domestic goods as they do exports.  As such, the starting point should be that the Government influence equally impacts the price of both categories of goods and those prices remain comparable.

Exporters need to be involved now

The last thing a Chinese exporter needs on top of the Coronavirus is an investigation by the ADC.  However, the continuation inquiry has strict timeframes.  Those exporters selected for specific in depth review need to lodge their exporter questionnaire by 23 March 2020.  Other exporters that wish to obtain the residual exporter rate need to complete the ADC’s information request and associated spreadsheet by 23 March 2020.

No doubt the Coronavirus will impact the ability of some exporters to meet the 23 March deadline.  Those affected need to seek an extension from the ADC prior to 23 March.

All exporters and importers should consider whether they wish to make a submission to the ADC regarding the inquiry.  Submissions can cover any topic including the primary issue of whether the dumping duties should continue or more specifically, how dumping duties rates should be calculated.

The outcome of this inquiry will greatly impact the viability of Chinese aluminium extrusion supply chains.  Please contact us if you would like assistance responding to the inquiry.

Modern Slavery Act – the implications for businesses in Australia

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When we think of slavery, we don’t think of Australian businesses. However, more than half of our imported goods come from Asia and the Pacific, an area that accounts for 62% of the global estimate of people in modern slavery.[1] This represents a real risk that modern slavery is part of Australian supply chains and has led to the Federal Government enacting the Modern Slavery Act 2018 (Act).

What’s the deal?

The “Modern Slavery Reporting Requirement” introduced by the Act will require certain entities to submit annual Modern Slavery Statements (Statement) to the Australian Border Force (ABF) as soon as 20 September 2020. Failing to comply with a reporting obligation under the Act could lead to reputational harm and flow-on consequences for your business.

What is a Modern Slavery Statement?

While there isn’t a template for Statements, in substance the report must address 7 mandatory criteria.

Very generally speaking, the content of a Statement will:

  • describe your business operations and its supply chain, as well as those of other businesses it controls;
  • identify modern slavery risks in those supply chains and operations, and steps taken to address those risks; and
  • explain how your business engages with and consults businesses it controls to work together to address the risk of modern slavery.

Statements will be submitted to the ABF, and published online via a public register.

Does my business need to submit a Statement?

Quite possibly! The reporting obligation is mandatory for those businesses that, within their 12 month reporting period (i.e. their financial year, or other accounting period used by that business):

  • carry on business in Australia; and
  • have a consolidated revenue of AU$100 million.

“Carrying on business in Australia” captures both:

  • Australian entities – i.e. those resident in Australia for tax purposes, or incorporated in Australian, or centrally managed and controlled in Australia; and
  • a foreign entity doing business in Australia.

Your business’ consolidated revenue will need to be calculated using Australian Accounting Standards (even if your business isn’t usually subject to these standards). While your consolidated revenue will not include the revenue of your parent company, it will include the revenue of any subsidiaries of your business. This is the case even if those subsidiaries carry on business outside Australia.

Voluntary reporting is also encouraged under the Act.

But my business doesn’t engage in “Modern Slavery”! 

It may be difficult to accept, but modern slavery does happen in Australia, and it does occur in Australian supply chains. There is a very high risk that it could be present in your supply chain, without your knowledge – Government estimates indicate that there were 1,567 victims of modern slavery in Australia alone between 2015 and 2017.

The concept of “modern slavery” may seem a world apart from your business, but practically, it can present in varying forms, such as:

  • deducting from employee wages the amount of “debts” to their employers, such as the cost of transport, accommodation, or meals;
  • misleading workers as to work conditions, their minimum wage, and workplace rights; and
  • trading with suppliers that engage in these practices.

Preparing Statements gives businesses the opportunity to identify and address risks of modern slavery in their supply chains. The end goal is for businesses to be responsible and transparent, so that the business community can work together to reduce the incidence of modern slavery.

When do I need to submit a Statement?

Your business’ 12-month reporting period will determine when your Statement is due:

Your annual reporting period First reporting period under the Act Statement Due Date
1 July – 30 June

(Australian Financial Year)

 1 July 2019 – 30 June 2020 No later than 31 December 2020
1 January – 31 December

(Calendar Year)

 1 January 2020 – 31 December 2020 No later than 30 June 2021
1 April – 31 March

(Foreign Financial

Year  – including United

Kingdom and Japan)

 1 April 2019 – 31 March 2020 No later than 30 September 2020

And if I don’t comply?

The Act gives the Government power to name-and-shame entities that do not comply with their reporting obligations. The impact of this could flow on to matters that harm your business, such as reputational harm, loss of business opportunities and trading partnerships, and the reduction in the perceived value of your business.

Also turn your mind to each contract you sign under which you have warranted that you will comply with all applicable laws. These warranties should be taken seriously, as often a breach of warranty entitles the other party to a contractual right to terminate.

How can I prepare my business for reporting?

Ensure that your business has adequate reporting, monitoring due diligence and reviewing  mechanisms in place now, in anticipating of filing your Statement.

My parent company submitted a Modern Slavery statement in the UK. Can I just submit that to the ABF?

UK statements may be helpful guides to businesses preparing their Statements to submit to the ABF – but they won’t necessarily meet all requirements of the Act. You should seek legal advice prior to submitting your UK statement to the ABF to ensure that your business is complying with its reporting obligations in doing so.

If you’re unsure about your business’ obligations under the Act, Hunt & Hunt can provide advice in relation to whether you will need to submit a Statement, and assist in the preparation of your Statement to ensure that it meets the requirements of the Act.

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[1] 2018 Global Slavery Index

Importers/customs brokers – Customs duty evasion tactics to watch out for

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This article is an extract of an article that first appeared in the Autumn 2019 edition of Across Borders which can be found here

There is nothing like a trade war to motivate customs duty evasion. Suppliers are desperate for their sales not to be damaged by increased duty rates. Suppliers come up with a range of solutions for their importing customers. Below we set out some common tactics and the associated risks.

The shelf company

Under this tactic, goods subject to high duty rates are deliberately reported as a different kind of good and imported by a $1 shelf company. The tactic isn’t clever, the plan simply being that if the deliberate non-compliance is detected, the liable party will be a shelf company that can be wound up at little cost.

There are some basic problems with this approach. Firstly, the individuals that act to facilitate the non-compliance can be charged with aiding and abetting the shelf-company in its non-compliance. If that person is a director, deliberately engaging in tax avoidance may amount to a breach of his or her directors duties.

If the shelf-company on-sells the goods to a related company, that related company may be deemed to be in possession of the goods and liable to pay the underpaid duty by this reason alone.

Transshipment

Under this approach goods made in a country subject to high dumping duty, such as China, are ordered by an Australian company and rather than being shipped direct from China, the goods are transshipped to a third country and then disguised as the goods of that country. This includes new commercial documents and even Government issued certificates of origin.

The Australian Border Force is aware of this tactic and will investigate whether the supposed third country manufacturer exists. It is not unheard of for the investigators to find a vacant block at the location of a supposed factory.

Transshipment does not prevent goods being categorised as having been exported from China to Australia. It just makes the export harder to detect. To facilitate the deception the importer needs to falsely declare the country of origin and the identity of the supplier. In doing so, the importer exposes themselves to strict liability for making a false statement resulting in an underpayment of duty and obtaining a financial advantage by deception.

Again, the underpayment of duty will follow the goods. As the ultimate purchaser of the goods, there is no way to wash your hands of the duty consequences.

Invoice splitting

Often it is only one part of the consignment that attracts high duty. For instance, where the goods are used to mount solar panels on roof, the component that attracts dumping duty may be the rails, but associated clamps may be duty free. A supplier will be tempted to produce invoices for customs purposes that greatly inflate the value of the clamps and has a corresponding reduction in the value of the rails.

The ABF audits many legitimate importers and has a lot of intelligence as to the value of common imports. Invoice splitting will be easy to detect if the relevant imports are the subject of an audit. Where the invoices have been manipulated, the ABF can disregard the invoice value in determining the customs value of the goods. The ABF can determine the value by reference to the price of similar goods, or by the Australian sale price of the goods (less certain post importation costs).

Test imports

We have heard reports of exporters offering to sell the goods on the basis that liability for dumping duty will not be declared and if the import is detected by the ABF, the import will be abandoned with the exporter paying the costs of export to a third country.

There is nothing illegal in agreeing that a supplier will pay the costs of re-exporting goods if the importer no longer wants to import them. The problem exists from what happens if the goods are not detected at the time of import. In this scenario the goods will be imported with dumping duty being deliberately underpaid. The underpayment will have resulted from falsely describing the goods or incorrectly claiming that they are subject to an exemption.

Unless the importer is upfront about the potential dumping duty (such as via an amber line entry), this approach is no different than simply making false statements. Agreeing to not import the goods if you are caught will not be much of a defence if you appear before a Court.

Supplier as the importer

Under this approach, the supply of the goods occurs as a domestic sale in Australia. The overseas supplier is both the exporter and the importer. If the overseas supplier makes the relevant declarations to the ABF, it will be the entity that would be subject to any fines that are payable.

The overseas supplier will also be first in the ABF’s firing line if there is any underpayment of duty. However, first in line is not the same as being the only one on the line. Australian case law shows that if there is an underpayment of duty, the ABF can pursue that duty from the Australian customer, even if that customer had no involvement in the import and was unaware of the duty avoidance.

When the choices are between an Australian resident company and a foreign supplier, its easy to guess who the ABF debt collection team would prefer to pursue.

What are the risks?

The risks start at liability for the underpaid duty and GST and go up from there. In respect of underpaid duty, the ABF can base its demand on the past 4 years of imports. It can go back further if there is evidence of deliberate avoidance of duty. We have seen multi-million dollar demands made by the ABF.

Where the ABF can prove deliberate duty avoidance, the minimum penalty a Court can hand down is 2 times the underpaid duty, the maximum is 5 times the underpaid duty.

Even if the offence is merely a non-deliberate false statement, the maximum penalty is an amount equal to the underpaid duty.

However, the ABF does not have to trouble the Director of Public Prosecutions and take the importer to Court. Rather, the ABF can issue infringement notices of an amount equal to 75% of the underpaid duty without needing to prove a single allegation.

Put simply, if caught, you can expect to pay the underpaid duty plus at least 75% extra.

This is just the financial penalties, it does not take into account the impact on your supply chain of increased levels of compliance activity.

While all of the above is scary, if there is deliberate avoidance of a large amount of duty, the Commonwealth may chose a criminal, rather than customs, prosecution. This means that a penalty option is a jail sentence.

What now

Importers should not believe in an offer that is too good to be true. These offers all rely on non-compliance not being detected and leave the importer greatly exposed when the inevitable happens.

If you believe that you may have been involved in past non-compliance, there are significant benefits associated with voluntary disclosure. For a start, the ABF will not be able to issue infringement notices. More importantly, the ABF mindset is very different for importers who are voluntarily seeking to improve compliance. If non-compliance is detected in an audit, it is very hard to have the ABF, or a Court, see you in a positive light.

Please contact us for assistance with managing customs compliance and rising rates of dumping duty.

Dumping duty assessments – A possible solution to unexpected dumping duties

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With rates sometimes exceeding 100%, dumping duties are one of the key focus areas of the Australian Border Force and importers.  Importers can face unexpected dumping duty bills that run into the millions of dollars and feel that they have no ability to fight the duty.  For some importers, one way of lowering the cost of a dumping duty bill is to make an application for a dumping duty assessment.  This does not involve arguing that the goods are not covered by the dumping duty notice, but rather is a claim that the rate is too high.

In some cases a dumping duty assessment could see a rate near 100% significantly reduced.

How can the rate change

Following a dumping duty investigation, the duties that are imposed on subsequent imports are referred to as interim dumping duties.  This is because those duties are based on the historical information reviewed in the investigation, but may not be the correct rate for subsequent imports.  Importers have the right to apply for a dumping duty assessment under which the actual dumping margin for those imports is determined.  Realistically, an importer can only do this with assistance from the overseas supplier.  Where this assistance is available, a dumping duty assessment can be a method of significantly reducing duty on past imports.

The actual rate may be significantly lower than the amount paid at import.  This is because the importer may have been subject to an “all other importer” rate.  This is not a rate for a specific exporter, but rather is a figure calculated by reference to data provided by other exporters and is designed to produce a very high duty rate.  If an actual exporter is assessed and the margin based on their real data, the dumping margin may be a lot lower than the made up rate.

Strict timeframes

The catch is that an application for a dumping duty assessment must be made within 6 months of the end of relevant importation period.  Each month period following the imposition of dumping duties is an importation period. For example, if dumping duties were first imposed on 1 January, the first importation period would be 1 January – 30 June.  An application for a duty assessment for imports during that importation period would have to be lodged by 31 December.

The Anti Dumping Commission (ADC) has repeatedly said that complete applications for a dumping duty assessment need to be lodged prior to the due date.  It asks for applications to be lodged well in advance of this date so that if there are deficiencies in the application, these can be cured by the due date.  The ADC’s position was that a deficient application could not be cured after the due date, ending the right for a dumping duty assessment.

Whether this position was correct was considered by the Federal Court in Downer Utilities Australia Pty Ltd v Commissioner of the Anti-Dumping Commission [2019] FCA 1190.  This case concerned an application for a duty assessment required to be lodged by 2 January 2018 and which was lodged on 29 December 2017.  The lodgement was incomplete as not all required imports were listed and some listed figures were not totalled.  The failure to total the relevant figures was due to a problem with the ADC electronic form.

The representative for Downer tried calling the ADC regarding the problems with the ADC form.  However, due to the Christmas and New Year period, the ADC did not respond to the query.

The legislation give the ADC 20 days to review an application and form a view whether or not it is deficient.  The issue in this case was, if a deficiency was identified in that 20 day period, did the ADC have an obligation to inform the applicant and allow them to correct the deficiency?

The ADC argued that the 20 day period was merely for it to screen the application, and that it did not have an obligation to inform applicants of deficiencies and even if it did, applicants could not cure those deficiencies after the due date.

The Court held that:

  1. deficiencies could be cured in the 20 day screening period; and
  2. the ADC had an obligation to inform Downer of the deficiencies (which were minor) and allow them the opportunity to correct these in that 20 day period.

The ADC’s rejection of the application in the circumstances meant that Downer was denied procedural fairness and Downer was able to have the decision set aside.

A more lenient approach?

The decision is important as previously the ADC has been very strict in its view that deficiencies could not be cured after the initial due date.  Applicants who have had applications rejected due to deficient applications may have been denied procedural fairness.

The decision hopefully makes seeking dumping duty assessments easier for importers.  Often an assessment is sought after an Australian Border Force audit results in an unexpected dumping duty liability.  In these circumstances, the importer may only find out about the dumping duty liability near the due date for the dumping duty assessment application.  This is likely to result in rushed applications that may have minor deficiencies.  This decision is a clear message to the ADC that it cannot take advantage of minor deficiencies to deny a substantially compliant claim.  Rather, the ADC must notify the applicant of the errors and allow them the opportunity to correct those errors.

Tips for the future

If significant dumping duty is payable, importers should quickly determine the due date for a dumping duty assessment.  If the timeframe has not passed, the importer should speak to the exporter about whether that exporter will cooperate with a dumping duty assessment.

If there is a willingness to assist, the importer and exporter should be able to work together to determine a likely outcome of a dumping duty assessment application.  The previous investigation report and associated documents will provide a good guide to the ADC’s methodology to calculating the dumping margin.  The size of a likely refund can inform whether there is any merit in proceeding with a dumping duty assessment.

If the importer plans to proceed with an assessment, the importer should obtain a list of imports during the importation period.  Not listing all imports can be a reason for the ABF to reject the application.

Of course, the best approach is to lodge the assessment application well before the due date.  Importers have 6 months in which to lodge an application.  Lodging early will allow the ADC time to notify the applicant of errors prior to the due date, enabling a compliant form to be lodged.

A dumping duty assessment is not the answer for all importers.  However, it should be one of the options that is considered.  As it is time sensitive, this option should be considered as early as possible.

Please contact us if you wish to discuss any demand for dumping duty or an investigation being undertaken by the Anti-Dumping Comission.

Australian Trusted Trader – Free trade agreement benefits

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Australian importers have new reasons to become accredited Trusted Traders with the Australian Border Force (ABF) announcing that Trusted Traders can enjoy the benefits of certain free trade agreements (FTA) without requiring a certificate of origin or declaration of origin. This will ease the administrative burden of using FTAs for Trusted Traders. However, the Trusted Traders must still take steps to ensure the goods qualify for the FTA.

What is the Trusted Trader programme?

The Australian Border Force acknowledges that it cannot inspect all trade and that it needs to encourage greater levels of self-compliance. To this end, the Trusted Trader programme was established giving certain trade facilitation benefits to importers and exporters that demonstrate high levels of customs compliance and supply chain security. In addition to the newly announced waiver of origin documents for certain FTAs, other benefits include customs duty deferral, consolidated cargo clearance, priority treatment of goods at the border and mutual recognition under similar programmes offered by other countries.

To become an accredited Trusted Trader, an online application needs to be completed providing details of your business, your customs compliance and supply chain security record and systems. This application will be assessed by the ABF and will include and an on-site review. If offered accreditation, the Trusted Trader enters into a formal agreement with the ABF.

Origin documentation waiver benefit

Under the newly announced benefit, Trusted Traders that are importers will be able to claim the benefit of the Japan, Korea, Thailand, Singapore, Malaysia and Chile FTAs without needing to produce a certificate of origin or declaration of origin.

These documents are usually required for each import and obtaining them can be an administrative burden on the supplier and in some cases represent a small cost. Sometimes obtaining certificates of origin can slow supply chains or they may not be provided due to administrative oversight. Origin documentation can also be complex where multiple consignments are sent from a distribution centre to multiple Australian ports.

Limits of the origin waiver benefit

The benefit does not apply to all FTAs, notably, the China or ASEAN FTAs. These FTAs are heavily used and there is a requirement to produce certificate of origin. While the benefit also does not apply to the US FTA or NZ FTA or the Trans-Pacific Partnership, documentation requirements under these FTAs are light and do not warrant an exemption.

It is also important to note that origin documentation requirements under the Korea, Japan and Singapore FTAs can already be satisfied by way of exporter declarations of origin. This is not particularly onerous and does not involve a third party needing to issue the document.

Further, the benefit does not apply to exporters. Exporters will have to examine whether there are any equivalent benefits under any mutual recognition agreements.

Compliance with rules of origin

Most importantly, the origin documentation waiver benefit does not remove the requirement that the goods must still satisfy the rules of origin to qualify for the FTA. Trusted Traders will be required to maintain evidence that the goods comply with the relevant rules of origin. Assessing rules of origin can be very complex, particularly for manufactured goods where key components are imported.

The ABF suggests that Trusted Traders hold commercial documentation, contracts and statements in relation to the manufacture of the goods from the manufacturers. Importantly, the ABF states the information will need to be sufficient to prove the origin of the goods for the purpose of a FTA.

For some products this will be simple. For example, a manufacturer will easily be able to provide a written assurance that frozen berries imported from Chile were grown in Chile and satisfy the rules of origin under that FTA. However, what about a scooter importer from Malaysia. The frame, wheels, brake and handle bars may all come from different countries. The origin and value of these components may change over time. Will the supplier be aware of the impact of any change in origin of components on whether the goods qualify for the Malaysian Australian FTA?

As an Australian importer, how could you prove that the goods qualify for the FTA? For manufactured goods, origin could be proven by the supplier providing proof of the origin of inputs, the cost of inputs and evidencing what manufacturing process is undertaken in Malaysia. While the ABF suggests contractual documentation will be relevant to origin, all a contract will prove is that a party promised certain things. It does not prove what actually happened.

To be a Trusted Trader, the importer must demonstrate a desire to comply with customs laws. This should translate into the importer exercising due diligence regarding the manufacturer’s origin claims and putting in place systems to verify origin. What those systems are should be dictated by the complexity of assessing origin (for example, 100% originating timbered, versus a good manufactured from 100% imported components) and the level of revenue risk. A one off small import will warrant a less detailed system than imports valued in the millions.

Steps to take

If you are not currently a Trusted Trader you need to assess the merits of applying versus the costs. The application process is now much simpler and the online form is estimated to take 5-10 hours to complete. While the costs are decreasing, the benefits are increasing. In a world of increasing trade protection, most businesses will see the benefit of qualifying for a programme offering trade liberalisation benefits.

If you are a Trusted Trader and want to use the origin waiver benefit, the first question to ask is – why is it currently hard to obtain a certificate of origin? If the supplier finds it difficult to assess or satisfy the rules of origin, extreme caution should be exercised. This benefit is not a relaxation of the rules, only of the paperwork required.

If you wish to use the benefit, you need to ensure you obtain sufficient information to prove origin in the event of an audit (which could happen any time over the next four years). This involves a level of due diligence and it will be important to assess the cost of carrying out that due diligence against the benefit of not having to produce origin documentation. You should also consider whether any contractual amendments are required to give you the right to carry out the due diligence and/or compel the supplier to provide you with certain documents.

How we can help

We regularly advise importers, exporter and customs brokers on using free trade agreements and the Trusted Trader Programme. We can help your business decide whether to apply to become a Trusted Trader or, if you are a Trusted Trader, how to manage the risks of using the origin documentation waiver benefit. Please contact us for assistance with the Trusted Trader process.

Indonesia and Australia Finally Ink a Free Trade Agreement

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On 4 March Australian and Indonesia signed a free trade agreement that has been a long time in the making.  Australia and Indonesia are both parties to the ASEAN-Australia-New Zealand FTA limiting the additional benefit of this bilateral FTA.  The major benefits will be for Australian exporters to Indonesia and service providers.

When will it commence

The FTA only commences when each country passes and implements its relevant domestic legislation.  Australia will undertake one or more parliamentary reviews of the FTA before a vote is taken on whether it should become law.  This process could be delayed by the expected mid-year Federal election.  As a guide to timing, the TPP was signed in early March 2018 and became law in late December 2018.

What are the benefits for Australian importers – duty rates

Almost all Indonesian imports are current duty free under the ASEAN FTA.  The remaining duties will become duty free on entry into force of the Indonesian FTA.  However, the benefit of this has been reduced due to the time that it has taken to finalise the agreement.  All goods from Indonesia would have been duty free on 1 January 2020 in any event under the ASEAN FTA.

What are the benefits for Australian exporters – duty rates

Duty rates on many Australian exports were not cut to zero under the ASEAN FTA.  The new bilateral FTA does not drop all duty rates to zero, but there are significant improvements.  Here is the DFAT summary of the outcomes in respect of goods.  Key winners are exporters of live cattle, frozen beef, sheep and goat meat, certain dairy products, honey, potatoes, carrots, mandarins, oranges, lemons and bananas.

In respect of manufactured goods, Indonesia had already provided strong commitments under the ASEAN FTA.  However, there are some improvements in respect of steel, copper cathodes, plastics, machinery, textiles, electronics and textiles.

Its not just about the rate of duty – check the rule of origin

The duty rates under the ASEAN FTA and the Indonesian FTA will often be the same.  However, an importer or exporter may find it easier to qualify for one FTA than the other.  The ASEAN FTA has the benefit that it allows content from NZ and other ASEAN countries to count as qualifying content.  However, it may be that for a particular tariff line there is a different rule of origin under each FTA.  For traders of goods that have any non-Indonesian or Australian content, the rules of origin should be closely reviewed.  You may find that a good that did not qualify under the ASEAN FTA will now qualify under the Indonesian FTA.

Certificate/declarations of origin

The biggest win for importers is the possibility of using declarations of origin, rather than certificates of origin under the ASEAN FTA.  A registration scheme will be in place in respect of declarations of origin.  Exporters will need to be registered or certified by the exporting country before they can use declarations of origin.  This will be better than the situation under ChAFTA but it is not as user friendly at the TPP.

Certificates of origin under the Indonesian FTA are not particularly exciting.  It is one COO per shipment, valid for 12 months from the date of issue and there is scope for certificates to be retrospectively issued within 12 months of export.

Declarations of origin will take no set form and can be electronic.  There are key data fields which those registering to use declarations of origin will need to ensure they meet.

Other points

  • The consignment provisions are as restrictive as those in the ASEAN FTA, including the requirement that the transhipment be justified by geographical, economical or logistical reasons.
  • The FTA will apply to goods entered for home consumption after the FTA commences.
  • The FTA requires the origin hardcopy COO to be forwarded to the importer for presentation to their customs authority. We assume this will not be enforced in respect of Australian imports.
  • The FTA contains a chapter on non-tariff measures, a first for an Australian FTA. This is targeted at import/export restrictions or licensing requirements.  Its main practical effect is expected to be a mechanism for raising and resolving concerns regarding non-tariff barriers.

The Australian Border Force has made no secret that compliance with FTA requirements is a focus area.  It is crucial with the multitude of overlapping FTAs that traders pay careful attention to which FTA is being used what are the particular requirements of that FTA.