Customs By-law No. 1700581

The by-law introduces and relies on several key definitions and concepts that determine its scope and operation. Understanding these is essential for anyone seeking to use the concession.

Arriving person means a passenger or crew member on board a ship or aircraft that arrives in Australia from a place outside Australia. This is a broad category covering all travellers entering the country, regardless of their residency status. Arriving resident is a narrower subset: a person who arrives in Australia and intends immediately to take up or resume residence in Australia, and who is either an Australian citizen (under the Australian Citizenship Act 2007), holds a permanent visa (under the Migration Act 1958), or holds a special category visa under that Act. The “special category visa” includes New Zealand citizens who are eligible to enter and remain in Australia under the Trans-Tasman Travel Arrangement. The distinction matters because most categories of goods in the table (items 1, 2, 3 and 4) are available only to arriving residents; item 5 is the only category available to any arriving person.

Commercial goods is defined in two limbs. First, goods that are intended to be used by the arriving person for a commercial purpose, including sale, lease, hire or exchange. Second, goods that have been imported in such a quantity that, having regard to their nature or durability, that quantity represents a commercial quantity. This second limb is an objective test: even if the importer has no commercial intention, importing a large volume of identical goods (such as dozens of watches or hundreds of items of clothing) may be deemed commercial by quantity alone. The definition operates to exclude business stock, goods for resale, and bulk imports from the duty-free concession.

Personal goods means goods that are the property of the arriving person and are suitable, and intended, for use by that person. The definition expressly excludes motor vehicles or motor vehicle parts. This means cars, motorcycles, trailers (except non-motorised trailers falling under item 2), and their components cannot be imported duty-free under this by-law, even if personally owned and used. Other goods that are inherently commercial in nature (such as industrial machinery not used for personal purposes) would also fall outside the definition.

Family is defined in two ways: either two people who are married and any of their children under 18, or a person and his or her de facto partner (as defined in the Acts Interpretation Act 1901) and any of their children under 18. The definition is relevant to the per-family limits in items 2 and 3: only one boat (or trailer or caravan) or one aircraft may be imported per family per three years. Single individuals (not part of a family) are also limited to one such item per three years.

Tobacco products means cigarettes, cigars or other products containing tobacco. These are specifically excluded from item 5 (personal effects and furniture). Alcoholic beverages are also excluded from that item. Neither tobacco nor alcohol is granted duty-free entry under this by-law for any category.

A critical definition is the phrase “used” in relation to the expression “personally owned and used”. The by-law states that “used” means being available for use for their intended purpose by the arriving person or arriving resident on a continuing basis in each country in which that person was residing on a long term basis. This is an interpretive provision that sets a higher standard than mere possession. Occasional storage of goods, or keeping them in a location without ongoing personal availability for use, may not satisfy the requirement. The goods must have been available for use on a continuing basis in each country of long-term residence.

Finally, the by-law itself is a legal instrument that prescribes goods for the purposes of Item 15 of Schedule 4 to the Customs Tariff Act 1995. That Item is the head of power for the duty concession. The by-law does not create an independent duty exemption; it is the bridge that connects the statutory concessional item with specific categories of goods. The revocation of the previous by-law (No. 1300942) means any earlier prescriptions under that by-law are no longer valid, and importers must now rely on the new by-law.

The by-law directly affects several groups of people and entities, each with different rights and obligations.

Arriving residents are the primary beneficiaries. These are individuals who are moving to Australia (or returning after living abroad) and intend to take up or resume residence immediately upon arrival. They can potentially claim duty-free entry for goods under categories 1, 2, 3, 4 and 5, provided they meet the specific conditions for each category. For example, a family moving from the United Kingdom can bring their personal clothing (item 1), a small sailing boat (item 2, subject to the per-family limit), furniture and household goods (item 5, but excluding alcohol and tobacco), and even a single-engine aircraft (item 3) if they owned and used it for at least six months and do not sell it within two years. The by-law imposes significant compliance burdens on these individuals: they must document ownership and use for the required periods (twelve months for most categories, six months for aircraft), and they must restrict disposal of certain goods for two years. Failure to do so could result in duty demands or penalties.

Arriving persons who are not residents (for example, tourists, temporary visa holders, crew members) are affected only by item 5. They can bring in fur apparel, personal effects, furniture and household goods duty-free, provided those goods are personally owned and used for twelve months prior to departure. They cannot claim any other category. This is a much narrower entitlement, reflecting the policy that only those relocating permanently should receive broader duty concessions. However, the by-law does not distinguish between short-term visitors and long-term temporary residents; a person on a temporary work visa who does not hold a permanent visa or special category visa is not an “arriving resident” even if they intend to live in Australia for several years. This creates a gap for expatriates on lengthy assignments who may be bringing significant household effects.

Family groups are affected by the per-family caps in items 2 and 3. If a family of four (two parents and two children under 18) moves to Australia, the entire family is limited to one boat (or non-motorised caravan or trailer) and one aircraft per three years. This may create difficult choices if multiple family members own boats or aircraft. The definition of “family” is narrow: it does not include grandparents, aunts, uncles, or other relatives living in the same household. Extended family groups may each have their own separate entitlements, but the by-law ties the cap to the legal definition.

Customs brokers, freight forwarders, and import agents must understand the by-law’s conditions to advise clients correctly. The distinction between “arriving person” and “arriving resident” is particularly important for temporary residents who may incorrectly assume they qualify for broad concessions. Agents also need to verify ownership periods, monitor disposal restrictions, and ensure that goods are genuinely personal rather than commercial. The burden of proof is on the importer to establish eligibility.

The Australian Border Force and Department of Home Affairs are indirectly affected. Officers must assess declarations under this by-law, verify compliance with conditions, and take enforcement action (such as demanding duty or seizing goods) when conditions are breached. The by-law does not confer any discretionary power to waive conditions; it is a prescriptive instrument that officers apply mechanically.

Sellers of second-hand goods and businesses that trade in imported used goods are affected by the two-year disposal prohibition on boats (item 2), aircraft (item 3), and machinery (item 4). An arriving resident who sells a boat within two years of importation would breach the condition, potentially triggering a duty liability. This restricts the ability to use the concession as a backdoor method of duty-free import for resale. However, the by-law does not impose penalties on third-party buyers, so a person who unknowingly purchases such goods from a non-compliant importer is not directly liable, though the goods may be subject to seizure if the sale is detected.

The by-law creates a framework of rights to import goods duty-free, balanced by duties and obligations that must be satisfied.

Rights: The central right is the ability to import prescribed goods without payment of customs duty, under Item 15 of Schedule 4. For arriving residents, this right extends to five categories of goods. For non-resident arriving persons, it extends only to item 5 (personal effects and furniture). The right is conditional: it only applies if all conditions in Column 2 of the table are met, and if the general threshold requirement (goods are not commercial and are personal) is satisfied. There is no right to import motor vehicles or motor vehicle parts, or commercial quantities of goods. The right is personal to the arriving person or arriving resident; it cannot be transferred or assigned. However, goods belonging to a family member (defined as spouse or de facto partner and children under 18) can be imported under the family entitlement for boats and aircraft, with only one unit allowed per family per three years.

Duties: Importers have several affirmative duties. First, they must ensure the goods are not commercial goods. For example, a person who brings in fifty identical laptops, even if owned personally, may be deemed to be importing a commercial quantity. The objective test in the definition of “commercial goods” places the burden on the importer to assess whether the quantity of goods, by reason of nature or durability, represents a commercial quantity. Second, importers must satisfy the ownership and use period requirements. For most goods, the importer must have personally owned and used the goods overseas for the twelve months preceding departure for Australia (or, for aircraft, six months). “Used” is defined as being available on a continuing basis in each country of long-term residence. This may require evidence such as travel records, insurance documents, or photographs to show the goods were in active personal use, not merely stored. Third, for items 2 and 4, the importer must intend to use the goods for their intended purpose in Australia for a continuous period of two years (item 4) or must not sell them within two years (item 2). Fourth, for item 4, the importer must be “in a position to use the goods” and must actually put them to use for the intended purpose for two years. This is an ongoing obligation. Fifth, for boats (item 2), aircraft (item 3), and machinery (item 4), there is a strict prohibition on sale or other disposal within two years of importation. “Otherwise disposed of” includes lease, hire, mortgage, or exchange. This is a negative duty that continues to apply after import.

Additional conditions: The by-law includes exceptions that exclude certain goods from otherwise eligible categories. For example, item 1 excludes fur apparel and perfume concentrates even if they are personal clothing or hygiene articles. Item 5 excludes alcoholic beverages and tobacco products. These exclusions mean that even if goods are personal and owned for the required period, they cannot be imported duty-free under this by-law. Importers must pay duty on those excluded items under the normal tariff rates.

Record keeping: Although not expressly stated in the by-law, the practical duty on the importer is to maintain records that can demonstrate compliance with conditions. This includes proof of ownership (receipts, titles), proof of use (travel documents, utility bills from overseas addresses), and proof of the date of importation (to calculate the two-year restriction period). Because the by-law conditions are ongoing, the importer may be required to retain records for at least two years after import for items with disposal restrictions.

The by-law itself does not create penalties directly; it is a concessional instrument. Penalties and enforcement mechanisms arise under the Customs Act 1901 and related legislation. However, the by-law’s conditions set the boundaries within which penalties may be imposed.

Duty evasion: If goods are imported under a claim of duty-free treatment under this by-law but the conditions are not satisfied, the Australian Border Force may demand payment of the duty that would have applied under the normal tariff rate. For example, if a person imports a boat as an arriving resident but sells it within two years (breaching condition (5) of item 2), the duty becomes payable. The amount may be substantial, depending on the value and tariff classification of the goods. Additionally, the Customs Act imposes penalties for making false declarations. Section 243T of that Act (not reproduced in the by-law) provides for penalties equal to double the duty evaded in certain circumstances. While the by-law text does not refer to these penalties, any practitioner advising clients must be aware that non-compliance can lead to significant financial exposure.

Seizure and forfeiture: Goods imported in breach of Customs conditions may be subject to seizure and forfeiture. The by-law’s conditions create a legal basis for the goods to be regarded as subject to a condition that has been broken. Under the Customs Act, the Comptroller-General may demand the goods be exported or may seize them. This is particularly relevant for high-value items such as boats, aircraft, and machinery, where the owner might be tempted to sell quickly. The by-law’s prohibition on mortgage or other disposal also prevents using the goods as loan collateral within two years.

Offences: If goods are imported as commercial goods but claimed as personal goods, the importer may have committed an offence of making a false or misleading statement to a Customs officer. This can attract criminal penalties, including fines and, in serious cases, imprisonment. The definition of “commercial goods” includes goods that represent a commercial quantity by nature or durability. An importer who deliberately understates the quantity or misrepresents the nature of goods to fall within the personal goods definition may be liable for prosecution.

Administrative action: The by-law’s conditions are not discretionary. An ABF officer has no authority to waive the twelve-month ownership period or the two-year disposal restriction. If an officer detects a breach, the concessional treatment is void. The officer may also require the importer to provide evidence of compliance at the time of import. If the importer cannot produce adequate evidence (such as proof of ownership for the required period), the officer may deny the duty-free entry and assess duty immediately.

Liability of third parties: While the by-law imposes duties on the arriving person or arriving resident, third parties such as customs brokers may also face penalties if they knowingly facilitate false declarations. The by-law does not expressly address this, but the general law of customs compliance applies.

Enforcement of the two-year restriction: The by-law does not prescribe a mechanism for monitoring compliance with disposal restrictions after import. In practice, the ABF may conduct audits or rely on information from industry sources. The burden remains on the importer to maintain records and avoid disposal. If a sale is detected within two years, the ABF may issue a notice demanding duty. There is no limitation period stated in the by-law, but the general Customs Act limitation for duty recovery is typically four years from import.

The by-law operates within a larger legislative framework. Understanding these interactions is critical for accurate compliance.

Customs Tariff Act 1995: The by-law is made for the purposes of Item 15 of Schedule 4 to that Act. Item 15 is a concessional item that permits duty-free import of goods prescribed by by-law. Without this by-law, Item 15 would have no effect for the categories listed. The by-law does not override any other items in Schedule 4. For example, goods that are eligible for duty-free treatment under other items (such as items for diplomats, goods under the GATT, or temporary imports) are unaffected. The by-law is coexistent with those other concessions; an importer may choose the most favourable concessional item that applies, provided the conditions are met.

Customs Act 1901: The by-law is specifically made under section 271 of that Act, which empowers the Comptroller-General to make by-laws prescribing goods for concessional items. The by-law also relies on subsection 33(3) of the Acts Interpretation Act 1901, which permits the making of an instrument that revokes and replaces an earlier one. The Customs Act also governs the process of importation, declaration, duty assessment, and enforcement. The by-law does not create any independent powers of search, seizure, or prosecution; those are drawn from the parent Act. The definition of “arriving resident” uses concepts from the Migration Act 1958 (permanent visa, special category visa) and the Australian Citizenship Act 2007. Changes to those Acts automatically affect the by-law’s operation without amendment to the by-law itself.

Migration Act 1958: The by-law incorporates the definitions of “permanent visa” and “special category visa” as in force from time to time. A person who holds a special category visa (typically a New Zealand citizen) qualifies as an arriving resident even if they are not an Australian citizen. This interaction means that changes to visa categories under migration law will directly affect who can access the broader concessions under the by-law.

Biosecurity Act 2015: While not mentioned in the by-law, imported goods must also comply with biosecurity requirements. Furniture, boats, aircraft, and personal effects may be subject to inspection, treatment, or quarantine. The duty-free concession under the by-law does not exempt goods from biosecurity controls. An importer may have to pay for treatment or even forfeit goods that pose a biosecurity risk, regardless of their eligibility for duty-free entry.

Other customs by-laws: The by-law revokes Customs By-law No. 1300942. Any prescriptions under that earlier by-law are no longer valid. Importers who obtained earlier approvals or clearances under that by-law may need to re-evaluate their position, though goods imported before 1 February 2018 would have been subject to the earlier by-law. There is no transitional provision in the new by-law, so any ongoing conditions (such as disposal restrictions) that arose under the old by-law would remain in effect by operation of the original instrument, but new imports must meet the new conditions.

State and territory laws: The by-law is a Commonwealth instrument. It does not interact with state stamp duty, registration fees for boats and aircraft, or motor vehicle registration. For example, a boat imported duty-free under item 2 may still need to be registered with a state maritime authority, and registration may impose additional conditions or fees.

Customs By-law No. 1700581 was made on 29 January 2018 and took effect on 1 February 2018. It revoked and replaced Customs By-law No. 1300942, which had previously prescribed goods under Item 15. The text of the instrument provides no detail on the differences between the old and new by-laws. No subsequent amendments to By-law No. 1700581 are recorded in the source document. The by-law itself is a standalone legislative instrument; any later amendments would typically be published as separate amending by-laws. As the source contains only the original instrument, there is no amendment history beyond the revocation of the predecessor. The by-law appears to have been made as a routine update, perhaps to adjust the definition of “used” or to incorporate updated references to the Australian Citizenship Act 2007 and the Migration Act 1958. The effective date of 1 February 2018 was 3 days after signing, consistent with standard commencement arrangements for customs by-laws.

The source text does not refer to any court cases, tribunal decisions, or legal challenges concerning By-law No. 1700581 or its predecessor. As a legislative instrument, the by-law itself is not typically the subject of direct litigation; disputes more often arise under the Customs Act concerning assessments of duty, classification of goods, or penalty proceedings. Courts may interpret the by-law’s definitions (such as “commercial goods” or “personally owned and used”) in the context of such proceedings. However, no such cases are cited in the by-law, and we cannot infer any litigation history from the instrument alone. It is possible that the predecessor by-law was litigated, but the source provides no information. Given that the by-law is a concessional instrument with relatively low monetary thresholds for most categories (except boats and aircraft), and given that the conditions are clear on their face, litigation is likely rare. The by-law has been in force since 2018 without recorded judicial consideration in the source document.

Several aspects of the by-law are easy to overlook or misinterpret. Practitioners and importers should pay close attention to the following traps.

Motor vehicles and parts are absolutely excluded. The definition of “personal goods” explicitly excludes motor vehicles and motor vehicle parts. This means even a personally owned car that is used daily overseas cannot be imported duty-free under this by-law. The exclusion covers all parts, so even a set of alloy wheels would be excluded if claimed under this instrument. There are other concessions (such as the Personal Effects Importation Scheme under s.162 of the Customs Act) that may allow vehicles, but not under this by-law. The term “motor vehicles” is not defined, so it would include cars, motorbikes, trailers with motors, and other self-propelled road vehicles.

Boats, aircraft, and machinery have a two-year disposal restriction that applies to the “arriving resident” or “arriving person”. For boats (item 2), the condition is that the goods “will not be sold or otherwise disposed of in Australia by or on behalf of the arriving resident, within two years after the date of importation”. This prohibits sale, gift, trade-in, or any similar transfer. Importantly, it applies to “any of” the arriving resident or their behalf, so a family member selling the boat would breach the condition even if the arriving resident did not personally sell it. The control obligation is strict. For machinery (item 4), the condition extends to lease, hire, mortgage, or other disposal. This means the machinery cannot be used as collateral for a loan within two years. For aircraft, the condition is the same as for boats (no sale or disposal). Breaching these conditions triggers duty liability.

The “family” cap on boats and aircraft is per three years, not per importation. The by-law says “only one article selected from each of the three groups (a), (b) and (c) will be allowed for the family per three years.” This means if a family imports a boat under item 2(c), they cannot import another boat (or any other article from groups (a), (b) or (c) of item 2) for three years. The same applies to aircraft under item 3 (one per family per three years). The cap runs from the date of importation of the first item. If a family imports a boat in 2021, they cannot import another boat until 2024. This is easy to forget, especially if multiple family members own separate items.

The “used” definition is more onerous than simply owning the goods. Goods are “used” only if they were available for use on a continuing basis in each country where the person was residing on a long term basis. If a person lived in two countries over the twelve month period, the goods must have been available for use in both countries on a continuing basis. Goods stored in a warehouse or left with a relative may not qualify. This could be a trap for frequent travellers or expatriates who move between countries.

Alcoholic beverages and tobacco products are excluded from item 5. Even though personal effects and furniture include many consumables and household supplies, the by-law specifically removes alcohol and tobacco. These must be declared and duty paid. There is no de minimis exception. The definition of “tobacco products” includes “other products containing tobacco”, which captures e-cigarette liquids containing nicotine? Possibly, but that would depend on definitions in other legislation. At minimum, it catches cigarettes, cigars, and loose tobacco.

Fur apparel and perfume concentrates are excluded from item 1. Even though item 1 covers personal clothing and hygiene articles, fur apparel and perfume concentrates cannot be imported duty-free under that item. They may fall under item 5 (personal effects) if they meet the twelve-month ownership condition and are not alcohol or tobacco. But perfume concentrates may be considered alcoholic (if alcohol-based), and the exclusion from item 5 for “alcoholic beverages” does not explicitly cover perfume, so there is uncertainty. Importers would be wise to classify perfume concentrates carefully.

No transitional provisions for the revocation of the previous by-law. Goods imported before 1 February 2018 under By-law No. 1300942 are presumably grandfathered, but the new by-law does not say so. Importers who obtained approvals under the old by-law for future imports after 1 February 2018 would find those approvals void. Customs may exercise administrative discretion, but the instrument does not provide for it.

“Intend immediately to take up or resume residence” is a subjective state of mind that may be scrutinised. An arriving person who enters on a tourist visa but claims to be an arriving resident would be problematic. The ABF may examine evidence of the person’s intention, such as lease agreements, job offers, or family ties. If the person later departs Australia quickly, the ABF may conclude the intention was not genuine, potentially voiding the duty-free treatment.

Compliance with Customs By-law No. 1700581 requires careful attention to its conditions, documentation, and timing. The following steps provide a practical guide.

1. Determine the status of the importer. Is the importer an “arriving person” (passenger or crew member, regardless of residency) or an “arriving resident” (a person intending to take up or resume Australian residence and holding Australian citizenship, permanent visa, or special category visa)? This classification determines which goods categories are available. An arriving person can only use item 5 (personal effects and furniture). An arriving resident can use all five categories, subject to the specific conditions. The importer must have documentary evidence of their status: passport, citizenship certificate, permanent visa grant letter, or special category visa evidence. The intention to take up residence should be supported by evidence such as a rental agreement, job contract, or airline ticket showing one-way travel.

2. Identify the goods and map them to the correct table item. Personal clothing and hygiene items (excluding fur and perfume concentrates) go under item 1. Boats, non-motorised caravans, and trailers fall under item 2, with specific size and weight limits. Aircraft (single engine, not more than one propulsion motor) fall under item 3. Machinery, plant and equipment fall under item 4. Fur apparel, personal effects, furniture and household goods (excluding alcohol and tobacco) fall under item 5. Goods that do not fit these categories, such as motor vehicles, parts, or goods for resale, are not eligible.

3. Verify ownership and use period. For most categories, the importer must have personally owned and used the goods overseas for twelve months preceding departure for Australia. For aircraft under item 3, the period is six months. “Used” means the goods were available for use on a continuing basis in each country of long-term residence. Keep records: original purchase receipts, credit card statements, insurance policies, photos showing use in the overseas home, travel documents showing presence in the country of residence, and utility bills linking the importer to the address. For goods that were moved between countries during the period, show that they were available for use in each location.

4. Assess the “commercial goods” threshold. Even if goods are personal and owned for the required period, they cannot be imported if they are intended for commercial use or if the quantity represents a commercial quantity. For example, importing a single used washing machine is likely personal; importing fifty used washing machines is clearly commercial. There is no bright-line numerical test, so use common sense and, if uncertain, seek a ruling from the ABF or a customs broker. The risk of misclassification is high for durable goods like electronics, watches, or luxury items.

5. Comply with family limits. For items 2 and 3, if the importer is part of a family (spouse or de facto partner plus children under 18), only one article per three years per family is allowed. This means the family must decide which boat, trailer, or aircraft to claim. If multiple family members own eligible items, the family must choose one and either export the others, store them overseas, or pay duty on them. It is prudent to document the family composition at the time of import and the selection made.

6. Prepare to satisfy the disposal restrictions. For boats, aircraft, and machinery, the importer must not sell, lease, hire, mortgage, or otherwise dispose of the goods within two years of import. This means the goods cannot be used as loan security. If the importer later needs to sell for financial reasons, duty will become payable. The importer should keep the goods for the full two years and maintain a record of their location and use (for machinery under item 4, the goods must be used for the intended purpose). If the importer moves house or changes use, that may be permissible as long as there is no disposal.

7. Declare the goods accurately on import. The importer must complete appropriate Customs declarations (such as a B650 or a full import declaration, depending on value and type). The declaration should claim the concessional item as Item 15 of Schedule 4 and reference Customs By-law No. 1700581. The importer should keep a copy of the by-law and the completed declaration. For high-value items (boats, aircraft, machinery), a formal valuation may be required.

8. Retain records for the restriction period. After import, the importer should retain all ownership and use records for at least two years after the date of importation for goods with disposal restrictions (items 2, 3, 4). For other goods, a shorter period may be safe, but given the ABF’s power to audit, two years is recommended. In the event of an audit, the importer must be able to prove the goods were used for the required period and not disposed of.

9. Seek professional advice for complex goods. Boats, aircraft, and machinery often involve multiple regulatory regimes (registration, safety, environmental, biosecurity). A customs broker with experience in these areas can help ensure both customs compliance and other legal requirements are met. The by-law is only one part of the import puzzle.

10. Monitor future changes. The by-law is subject to revocation or amendment. Importers planning a move should check whether a newer by-law has been made that affects their goods. The ABF website and the Federal Register of Legislation are sources for current by-laws. The predecessor by-law was replaced without notice; the same may happen again.