David Shoebridge (NSW, Australian Greens) Share this | Hansard source

The Greens won't be opposing this bill, but we do have a series of concerns we wish to put on the record. First, as the Law Council has pointed out in its submissions to the inquiry, there is the question of strict liability. And I note that the Law Council said in their submission to the Legal and Constitutional Affairs Committee's inquiry into this bill that that creates significant concerns. The offence as drafted doesn't require any commercial purpose and that means a person importing a single item for personal use—not to sell, not to distribute, just for themselves—and not knowing that it was a fake could technically be caught by this provision. That's a very broad net, particularly when we think about all the online transactions that people do. Whether or not somebody knows it is a counterfeit item when they are purchasing is irrelevant. There is no requirement for Border Force to prove any knowledge or recklessness before they can be successfully prosecuted. That is a very broad net and it's not what a well-targeted law looks like. It would, of course, be deeply concerning if this is how Border Force chooses to use the law in practice, and the Greens will continue to monitor this space.

The Copyright Act is an example of a law that does get this kind of right. The section 132AH of that act requires that importing infringing articles be done in the course of selling or distributing for trade. Why is that important? It's because if you are importing materials for the purposes of business or trade, there is a further obligation on you to check whether or not they are counterfeit. Obviously, if you are doing it for a commercial purpose you should make due diligence to see whether or not the item you're bringing in is counterfeit. If you don't do that and it ends up being counterfeit then you can see how it a strict liability offence might apply. But if you're just a mum or dad at home, or a teenager going online, having a look, and purchasing something online, how are you meant to know whether or not it's a counterfeit item? And with a strict liability offence, you could be prosecuted under this law; that doesn't seem to get it right.

As I said, under the Copyright Act there is a requirement for it to be an importing offence to be in the course of selling or distributing for trade but there is no equivalent limitation here. The government is essentially saying it will just trust law enforcement to use discretion. From experience, the Greens don't just blankly trust law enforcement to use discretion. We are concerned this will be abused. If the government did not intend to catch personal imports then it could have said so in the law. Many people, having read the report and having seen what the Law Council has said, would like to hear the government address in any reply that the minister makes today that question as to whether or not personal imports, not for trade, are intended to be picked up.

I want to raise something else that was flagged in the submissions that will resonate with people—to the extent that they are watching the debate on the Customs Legislation Amendment (False Trademarks Infringement Notices) Bill 2026. I think there is a clear distinction between different kinds of counterfeit goods. Not all counterfeits are the same, not all counterfeits produce the same kind of social harm, and the law should reflect that.

On the one hand, there are genuinely dangerous goods, and some examples of those were contained in the submissions, that can cause harm and injury or even lead to loss of life. They could include things like fake lithium ion batteries in chargers that can cause fires; counterfeit automotive parts, brake pads and the like, that may lead to fatal crashes; fake cosmetics and medical equipment that could put people's lives at risk; and fake pharmaceuticals. Clearly, there are products where somebody, either the consumer or a third party, could be harmed if we allow these counterfeit products into the country without checks and balances. The Federal Chamber of Automotive Industries has made the point clearly. The Consumer Electronics Suppliers Association also gave examples of actual consumer injury. Those are serious risks and serious enforcement action is warranted. We understand the rationale for that part of the bill.

But on the other hand, is what most people would call or recognise as dupe culture, which includes goods that imitate the aesthetic of luxury or designer brands—Gucci handbags and the like—bought by consumers who may not even necessarily be deceived. A $15 Gucci handbag in Shenzhen may not actually be a genuine Gucci handbag—I get that—but who is harmed when someone buys a $15 Gucci handbag in Shenzhen? There's no consumer risk. The only people who are harmed are a couple of cashed-up French billionaires who are shareholders in Gucci. There's no safety risk there.

The idea that we would be applying the same penalty for somebody bringing in one of those counterfeit luxury scarves/belts/handbags as somebody deliberately commercially importing counterfeit automotive parts, I think, shows why there's something wrong with this bill. The social harm from buying a fake designer bag is categorically different from somebody buying a counterfeit car brake pad, and a law that treats those two things identically is not proportionate. We're told that we should just rely on the prosecutorial discretion, but I'd say again that that is not a genuine safeguard given the history we've seen about some pretty awful prosecutions that have been done by this government and the former government.

One of the submissions, from Mr Sanderson, suggests that the infringement notice pathways could be expressly confined to commercial-scale importation and genuinely high-risk categories, which is a position I think is worthy of further consideration by the parliament. We urge the government, if this bill passes and when it passes, to consider prompt amendments to limit it to a commercial purpose requirement and some form of tiered approach that reflects the genuine difference in harm between safety-critical counterfeits and those lower risk importation goods.