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1. What legal and procedural considerations need to be taken into account when making
a decision to import goods in Australia?
Just like any other country, Australia has its own procedures, laws, and custom laws to guide the
cross-border transactions. The Acts providing for the administrative procedure and structure
regarding importation include Customs Administration Act, Custom Act, Custom Tariffs Act,
Customs Undertakings (Penalties) Act, Commerce (Imports) Regulations, Commerce (Trade
Descriptions) Act, and Customs (Securities) Act. To start with, Australian importers should
consider the provisions of the Customs Act, which guides on what importer should and should
not do. this acts details the conditions for the entry of products to the country, warehouse of
products, duty payment, sampling of products, importation guidelines for shipping, cargo, and
aircraft, anti-dumping duties, tariff concession orders, penalties and prosecution, customs
officers’ power, remissions, rebates, deposits and refunds for securities, and good valuation. All
importers in the country should be familiar with the above conditions before the actual
importation. Lack of this vital information can lead to delays to the cargo clearance, especially if
they fail to present the necessary documents.
Secondly, they should consider that labeling and packaging of their products is crucial as per the
Commerce (Trade Descriptions) Act. The constitution does not allow those imports that do not
conform to the Act. The country also has stringent packaging and labeling requirements on most
of the imports, and these differ depending on the kind of product. Thirdly, the country has antidumping Act, which relieves industry from injury resulting from subsidized or dumped goods.
Dumping happens due to less export-selling price than that paid in the local market of the
exporting nation. On the other hand, subsidization is due to selling or production of exported
goods with the advantage of subsidy or any other monetary aid from the exporting country’s
government. Importers should also consider prohibited imports, which list commodities that are
illegal; prohibited unless permitted by authorities or ministers; prohibited unless they meet some
requirements concerning packing for sale; and prohibited from some countries unless approved
power grants permission.
Furthermore, the importers in Australia should consider tariffs as per the Customs Tariff Act
relating to details and duties amongst others issues like classifying goods rules, places and
countries concerning to which exclusive rates apply, duty rates on imported goods, and
concessions for certain goods’ imports by some authorities, departments, or persons. Lastly,
importers should provide notifications to quarantine or customs officer. In the notice, the
addresses and names of owner, supplier, and importer of the goods; the goods’ descriptions
including place of origin; identifying and packaging; import arrival details; and other pertinent
How are international treaties enforced in Australia? (5 Marks )
Australia does not automatically integrate international treaties into its law. This means that
there are some exemptions, such as, treaties, which end a State of hostilities. In case where the
Australian Executive arm enters into global treaties and obligations without referring to the
parliament, the law offers the Commonwealth Parliament the exceptional power to formulate
legislation. The parliament has a responsibility to pass the Act of Parliament in order to
implement the country’s treaty duties in domestic law. The country can ratify a treaty, and under
global law, with lack of constitution to enforce the treaty provisions, they will not provide
binding rights to, or compel responsibilities on the Australian community members. This is the
same as the United Kingdom, and other common law nations in the world. Nevertheless, it is
different from the USA’s, which differentiates between non-self-executing and self-executing
The country can implement treaties in various ways, for instance, through legislative statement;
scheduling or annexing a treaty copy to the Act of Parliament; and rewriting of the treaty terms
in form of an Act of Parliament. Moreover, the parliament has a legal authority to enforce the
treaties. This is per the Commonwealth Constitution, section 51, as well as the external affairs’
section 51 (xxix). The external affairs power has a High Court interpretation to imply the
authority to legislate regarding laws that affect treaties and other global duties, and laws
concerning issues physically external to the country. For example, the law that facilitates
prosecution for criminal offence that occurred in Europe during the World War II was
legitimate. Moreover, the High Court interprets it to mean laws that address the matters of global
concern. For instance, an issue that has a potential to influence Australia’s links to other
countries, and this can be enough for legislation to pass by means of external affairs authority
2. Identify the fundamental rationales recognized by domestic and international laws for
import controls. (2 Marks)
3. To what extent do you think the Australian regulatory approach to import’ may (or may
not) influence the trading nations to export in Australia? (8 Marks)
4. Provide a critical analysis of the role of the Appellate Body in dealing with public
morals’ in the US-Gambling DS285 under the WTO dispute settlement system. Does this
decision provide adequate incentives for the Member States to invoke the system? Support
your argument by relying on scholarly resources. (30 Marks)
The appellate body plays a crucial role in the WTO disputes regarding public morals,
specifically the US-Gambling DS285. This is evident in the earlier case by Antigua and
Barbuda, which took place in October 2004. Antigua and Barbuda filed a company against the
US with allegations that some of the US state and federal laws consisted of a prohibition on the
international provision of the online gambling services. In response, the US cited the public
morals clause regarding the general Agreement on Trade in Services (GATS). This clause,
similar to the General Agreement on Tariffs and Trade (GATT), is among the numerous general
exemptions to the WTO trade liberalization standard. Notably, other standards here are
applicable to the measures that protect animal, human, and plant health and life, and nonrenewable natural resources. These provisions facilitate states’ enactment of trade-restrictive
regulatory standards to serve legal public policy aims, in spite of the general trade liberalization
responsibilities under the WTO.
Even though gambling is the initial WTO dispute to demonstrate public moral clause, the
appearance of a logical policy of governing trade-morality disagreements could have
considerable consequences on the international and WTO law more commonly. According to
certain commentators, public morals clause is a means to the integration of women rights,
women rights, and taskforce standards into the WTO, and provision of practical influence to the
standards via WTO’s economic permission. Nevertheless, wide public morals exemption can
possibly function as a buffer zone for protectionism, vitiating the comparatively strong policies
that present oversee human and environmental health laws and undermining the WTO’s
considerable progress to trade liberalization.
The gambling case resulted in two novel policy questions, which differentiate trade-morality
disputes from preceding WTO jurisprudence that involve human or environmental health norms.
the first question concerns how global tribunal evaluate a country’s claim that a matter is legally
an issue of ‘public morals’, as these interests are probable to strongly hold, have geographical
location, and is different across political borders. Secondly, presuming a certain regulation has a
legal relation to public morality, on the basis upon which global tribunal balances interest in the
regulation of public morality against other member states’ rights in trade liberalization.
Imperatively, gambling holdings mere had partial solutions to the above questions. On the
former question, ii was clear that gambling comprised of legal concern of public morality whose
primary basis is on the proof that several countries alongside US held the same opinion. On the
second question, the invoking of the multifactor that balances test from the current WTO
jurisprudence was to weigh the US interest in regulating internet-gambling services against the
other WTO member states’ interest in the trade liberalization.
According to the Note, gambling precedent is excessively restrictive of the WTO member states
sovereignty, and that an optional approach, which gives a better stability between trade
liberalization and regulatory autonomy. Here, the basic argument is that defining public morals
founded on the proof external to the country whose control is the mechanism absolutely
assumed in gambling, improperly compels a moral majority entry on the exception of the public
morals. In the case of the doctrinal, normative, and policy reasons, WTO members ought to have
a leeway to identify moral public morals founded exclusively on the local circumstances.
Nonetheless, exaggerated leeway would enable WTO member states to identify public morality
unilaterally; hence, risking protectionist violence, and possibly enabling the exception to absorb
the rule. The note also asserts that a wider explanation of public morals cabined through
application of scrutiny in two present doctrinal approaches: trade-restrictive standards should be
the least trade-restrictive way of obtaining their stated end, and that their design and application
is in a non-discriminatory manner.
In the GATS and GATT, the invoking of common exceptions clauses as a defense by a member
state’s respondent upon prima facie demonstrating by a complaining country that the responding
state breached a trade regulation. In that case, the Appellate Body describes the general
exemptions clause as balance between the member states right to control in the listed areas, and
the responsibility not to disrupt with free flow of services and goods.
Many trends recommend that public morals exemption will play an increasingly vital role in
global trade links in and outside the WTO. The improved WTO heterogeneity, combined with
the developing economic international trade to WTO member states, might boost the foreign
trade frequency of trade-morality conflicts.
Public morals principles can also have impacts outside of the WTO because of these clauses in
the bilateral and regional trade consents. Out of the 250 bilateral and regional free trade
consents, registered under WTO, nearly 100 of them have public morals exemptions identical
and similar to Article XIV (a) of GATS. Since most of these consents clearly assume the
language and structure of GATT, as well as WTO agreements, the rise of sufficient public
morals principle in WTO is probable to affect practice under bilateral and regional agreements.
Regarding the complaint by Barbuda and Antigua in March 2003, the Panel found includes
Travel Act, federal Wire Act, Illegal Gambling Act, and the state gambling constitution in
Louisiana, Colorado, New Jersey, Minnesota, South Dakota, Massachusetts, and Utah. To
respond to, the US offered many reasons for federal and state laws, if found to breach GATS
regulations, its justification could come from public mor8als clause, Article XIV. Firstly, the US
said that the distant gambling services supply is specifically susceptible to exploitation by
arranged crime because of low set-up costs, geographic flexibility, and provision ease.
Moreover, protection of American community from the destructive forces of arranged crime on
property and people as a public morality concern. Secondly, the US states that the internet can
initiate gambling into unsuitable environments like schools and homes, where it would not
involve conventional, in-person regulations. Besides, internet gambling would not enable
gambling children and have adverse influences on obsessive gamblers by permitting
anonymous, 24-hour access.
According to the panel, public morals are measures of right and wrong behavior of the
community or nation. In order to establish whether gambling was within the explanation, he
panel examined various global practices including the local regulations of other countries,
regional practice, and historical proof of wide global agreement concerning morality and
gambling at League of Nations. Depending on the proof, the panel concluded that gambling was
a matter of public morality, which falls under the public moral clause of GATS. The panel then
established whether certain US standards were appropriate to protect public morals. this panel
focused on the federal wire Act’s legal history, and the Illegal Gambling Business Act, evidence
by the US attorney General concerning the enforcement of the Travel Act, and US federal
courts’ decisions, eventually concluding that the US standards primary aim was to protect public
morals as per Article XIV (a) of GATS.
It also sought to establish whether the US standards were essential in the protection of public
morals as per the GATS Article XIV (a). The panel used a multi-factor that balances the
assessment developed before GATT jurisprudence, which advocates for the safeguarding of
vitality of interests, the degree to which the standard supports the stated aim, and the standard’s
general influence on trade. Nonetheless, the exact approaches in the balancing test are somehow
unclear. The Panel recognized that the US interests, aimed at preserving regulation of arranged
crime, children’s protection, and irrational gamblers, were vital, and that the standards made a
considerable contribution to the stated aim. WTO Appellate Body changed the Panel’s decision
that the US principles were unessential, but untimely judged against the US on grounds the US
laws do not differentiate against international service providers of gambling. The Interstate
Horseracing Act possibly exempted US firms that supply distant gambling services, such as,
pari-mutuel betting, and off-track betting, from the laws involved. Therefore, Appellate Body
confirmed that the Panel’s decision that the US standards are within the limits of XIV (a).
Besides, the Appellate Body and the Panel have similar opinions regarding public morals.
5. In what ways might Australian export controls limit or otherwise affect companies’
ability to export? (5 Marks)
6. What advice would you give an exporter of defense and dual-use goods’ to make sure
that it complies with the applicable regulation? (5 Marks)
Australia is powerful supporter of global efforts to safeguard the proliferation of items of ability
of causing important destruction and several casualties. The country’s export controls are useful
to dual-use and defense good, such as, components and parts and related equipment, materials,
and technologies transported to an outside nation or territory, regardless of the working
condition or state of the products. The export controls cover goods for the purpose supplying or
selling to foreign entities; returning to owners or manufacturer; repairing; loaning or
demonstrating on a short-term basis; and sending samples or items for research exchange.
According to the Defence and Strategic Goods List, there is a full list of goods regulated for
export according to the Customs Act 1901. To start with, there are defense and related goods,
which include technologies and goods adapted and designated for utilize by armed forces, or
lethal goods for military use, as well as non-military lethal items.
Secondly, the lists consists of dual-use technologies and goods, which refer to intangible and
tangible goods created to satisfy commercial needs, although which can be useful in military
mechanisms, or in the production or development of Weapons of Mass Destruction (WMD), or
military systems. These entail equipment; components and assemblies; test, production, and
inspection equipment; technologies, and software.
In terms of the administration of the export controls, it is imperative to know that Defence
Export Control Office in the Department of Defence has authority by Minister of Defence.
Besides, the Defence Control Office operates closely with the Australian Customs Service, as
well as other government bodies, which ensure that people export goods as per the legislation.
Exporters should ensure that they obtain permission from the Defence Export Control Office
before engaging in the exportation of controlled technologies and goods. Authorization is in
form of either a license or a permit provided to cover a variety of export purposes like ongoing
transactions, one-off exports, and short-term exports that cover repairs, loans, or demonstrations.
Exporters can also get permission for approval-in-principle where they are seeking to create
foreign markets, and are uncertain about the possibility of getting endorsement to export.
Permission to export can be subject to requirements, and exporters should be sure to meet these
conditions to remain legal. Notably, all licenses and permits’ issuance is free-of-charge.
Exporters should get permission by filing an Export Application Form that is in the Defence
Export Office website, or can obtain it after requesting for it. The application processing takes at
most 15 working days for the unserious applications, and 90 days for the serious ones. It is
worth noting that applicants know the importance of providing all information to evaluate an
application, especially complete details of end-users and consignees’ addresses and names;
detailed values and descriptions of goods for export; proposed destination; and end-use of the
export products. Failure to give complete and full information may lead to processing delays.
The assessment of applications for export controlled technologies and goods to consideration of
a range of foreign policy, strategic, and economic factors, and human right matters and industry
effect. Some technologies and items are more serious from a strategic angle than others, as some
export targets. The Standing Interdepartmental Committee on Defence Exports (SIDCDE)
assesses the sensitive applications, together with other Governmental groups. The Minister for
Defence is the only one that can reject an export application, or cancel an existing license or