Susan McDonald (Queensland, National Party, Shadow Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

The Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026 deals with a serious and growing issue, the importation of counterfeit goods into Australia. At its core, the bill does two things. Firstly, it introduces a new strict liability offence for importing goods that bear false trademarks. Secondly, it brings that offence within the customs infringement notice scheme. In practical terms, this means that the Australian Border Force would be able to issue a financial penalty notice in relevant cases rather than relying only on seizure of goods or court action.

The government's argument is that many importers of counterfeit products currently face no real consequences beyond losing the goods themselves and, for some, that seizure may simply be treated as a minor cost in a much wider overall trade. The coalition recognises that counterfeit imports are a serious problem. They undermine legitimate Australian businesses, they distort fair markets, they expose consumers to unsafe or substandard products, and they are frequently linked to organised crime. Globally, counterfeit and pirated goods are estimated to account for around 2.5 per cent of world trade, amounting to hundreds of billions of dollars annually. Here in Australia, relevant authorities seize millions of dollars worth of counterfeit products each year, ranging from clothing and electronics to cosmetics, pharmaceuticals, vehicle parts and children's products.

These goods are not merely cheap imitations. Counterfeit medicines may be ineffective or dangerous, counterfeit electrical goods may not meet basic safety standards, counterfeit vehicle parts may put road users at risk and counterfeit children's products may expose vulnerable Australians to harm. So, on the surface, the government's proposal to strengthen enforcement in this area is reasonable. The idea of giving the Australian Border Force an additional enforcement tool, particularly one that sits between seizure and prosecution, has logic to it. For those reasons, the coalition will support this bill. But support for the objective of the bill does not mean the parliament should simply wave it through without scrutiny.

When the coalition first considered this legislation we believed there were several important questions to examine. The first concerned the use of a strict liability offence. Strict liability means there is no need to prove intent or knowledge. The offence turns on the fact that the goods were imported and bore a false trademark. That is a significant step. Strict liability can be appropriate in some regulatory contexts, but it also carries risk. It can capture inadvertent or low-level conduct and affect small businesses or individuals who may not have deliberately set out to do the wrong thing. That raised various questions about proportionality, fairness and the practical operation of the law.

The second issue was the apparent absence of a clear trigger for this legislation. There has been no major public incident, no clearly identified enforcement failure, and no new data or report that explains why this reform is being brought forward now. That did not necessarily mean the reform was wrong, but it did mean the parliament was entitled to ask, Why this bill? And why now?

The third issue was consultation. The evidence available to us suggested there had been limited recent formal stakeholder engagement. Some key stakeholders who were contacted in the preparation of the coalition's response were not even aware of the bill's existence. For a reform that creates a new offence and expands penalty powers, that was concerning. That is why the coalition took the responsible step of referring the bill to a Senate inquiry on the papers. That process allowed us to hear directly from affected stakeholders, examine the strict liability approach and test whether there may be unintended consequences. Importantly, that was a proportionate course of action. It did not unnecessarily delay the bill but ensured proper additional scrutiny before its final passage. As a result of that inquiry, the parliament is now better informed. We therefore sincerely thank every individual and organisation that contributed to that inquiry.

While some organisations proposed potential amendments, the coalition has chosen not to move them, in part because it was clear that they would not have had sufficient numbers in the Senate to pass. However, that does not mean these concerns should be overlooked. We will keep a close eye on the operation of this legislation and how these new powers are used in practice.

The coalition supports action against counterfeit goods and stronger enforcement where appropriate, but we also support getting the law right. Counterfeit importing is not a victimless issue. It harms legitimate businesses, undermines consumer confidence, distorts markets, supports organised crime and can endanger public safety. However, effective enforcement must be balanced with fairness, proportionality and proper safeguards. We will therefore support the bill while continuing to closely monitor how these new powers operate in practice. I thank the Senate.

David Shoebridge (NSW, Australian Greens) Share this | Link to 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.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) Share this | Link to this | Hansard source

I want to respond very briefly to Senator Shoebridge's comments and, rather than answer the particular questions he has raised, offer him a briefing from our minister on these particular issues and note the complexity of the law that we're talking about today and how quite a lot of the provisions we're talking about need to be taken in the context of the broader guidance the ABF uses and the defences in the legislation. But, again, we're in a non-contro period of the program, so I will just commend the bill to the Senate.

Question agreed to.

Bill read a second time.