Australia’s New Customs Amendment Act Strengthens Border Enforcement Regarding Counterfeits
Published 26 May 2026
Sarah Xuan
The Australian Government introduced the Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026 into the House of Representatives on 25 March 2026. The Bill was passed by both Houses of the Federal Parliament on 14 May 2026 and received Royal Assent on 20 May 2026, becoming Act No. 43 of 2026. According to the provisions of the Act, it shall commence on either a day to be fixed by Proclamation or 6 months after Royal Assent, whichever is the earlier.
The introduction of this Bill stems from the enforcement deficiencies of Australia’s existing intellectual property border protection mechanisms in addressing the import of counterfeit goods. Under the traditional framework, the Australian Border Force (ABF) relies primarily on the Notice of Objection mechanism submitted by rights holders to seize goods suspected of infringement, and subsequently forfeits, releases, or otherwise disposes of the goods in accordance with procedures. Although criminal prosecution pathways exist under existing laws, the actual deterrence after border seizure still relies heavily on the forfeiture of goods or the initiation of litigation by rights holders.
With the development of cross-border e-commerce and international supply chains, the cross-border movement of counterfeit goods has become more frequent and concealed, and the traditional model has gradually exposed two problems: First, the cost of rights enforcement is high and the duration is long, making it difficult for many rights holders to continuously pursue litigation, which results in a large number of cases stopping at the abandonment, forfeiture, or disposal of goods, and importers rarely face additional, immediate economic sanctions; Second, counterfeit goods have expanded from traditional sectors such as apparel, footwear, and leather goods to sectors with public safety risks, including electronic products, lithium-ion batteries and chargers, automotive parts, pharmaceuticals, and medical devices, posing a realistic threat to consumer health, safety, and financial interests.
The Bill mainly strengthens enforcement by adding a financial penalty layer to the existing seizure-based process. It creates a strict liability offence for importing goods bearing false trademarks, so ABF does not need to prove the importer’s intention or knowledge in order for the offence to arise. It also brings that offence within the Customs Infringement Notice Scheme, allowing ABF to issue an infringement notice as an alternative to prosecution. In practical terms, an importer may face not only seizure or forfeiture of the suspected counterfeit goods, but also a monetary penalty imposed through an infringement notice.
I. Analysis of the Core Amendatory Content of the Bill The Bill intensively amends Australia’s current Commerce (Trade Descriptions) Act 1905 and the Customs Regulation 2015, and its core legislative contribution lies in establishing two mutually supportive legal mechanisms.
- First Mechanism The Bill establishes a “strict liability offence” targeting the act of importing goods bearing false/counterfeit trademarks. In common law systems, strict liability means that when determining an unlawful act, the prosecution or enforcement agency is not required to prove that the subject involved possessed subjective “intent”, “recklessness”, or “fraudulent intent”. As long as it is objectively verified that the importer has committed the act of importing goods bearing a false trade mark (i.e., a trade mark substantially identical with or deceptively similar to an Australian registered trade mark), the violation can be directly established. This shift significantly reduces the burden of proof on the Border Force, enabling enforcement procedures to advance rapidly.
It should be noted that strict liability does not mean that importers have absolutely no room for defense. Importers cannot escape liability merely on the ground of “lack of knowledge” as a matter of course, but they may still raise a defense based on an “honest and reasonable mistake of fact” under section 9.2 of the Australian Criminal Code ; simultaneously, if an importer can prove that the use, modification, or removal of the trade mark or sign involved has been permitted by the trade mark owner or authorized user, or that the use of the trade mark/sign was required or authorized by the Trade Marks Act, a directive of the Registrar, or a court order, the relevant conduct shall not be included in the strict liability offence.
- Second Mechanism The Bill formally incorporates such acts into the “Infringement Notice Scheme” administered by the Border Force. According to this newly created procedure, when Border Force officers seize relevant goods at the border and have reasonable grounds to believe that an importer has committed a prescribed unlawful act, they may issue an infringement notice to the importer. If the importer elects to pay the penalty within the statutory period, the matter can be exempted from further prosecution; meanwhile, the payment of the penalty itself does not constitute an admission of guilt, nor will it form a criminal conviction record.
II. The Different Models of Customs IP Protection Between Australia and China For Chinese enterprises, the practical significance of the Australian regime becomes clearer when it is compared with China’s customs intellectual property protection system. Both jurisdictions recognize border enforcement as an important tool against counterfeit goods, yet they allocate the monitoring burden differently between customs authorities and rights holders.
China’s system is built around a customs recordal mechanism administered by the General Administration of Customs. Where an intellectual property right has been recorded with China Customs, customs authorities may act ex officio during import and export supervision. If customs identifies goods suspected of infringing recorded rights, it may suspend clearance and notify the recorded rights holder or its designated agent. The rights holder must then respond within the prescribed period and apply for detention if it wishes customs to continue the enforcement process. China Customs describes ex officio protection as proactive measures taken by customs when suspected infringing goods are discovered during supervision.
Australia adopts a more notice-based and rights-holder-driven model. ABF states that a Notice of Objection is the legal document that allows it to seize imported goods infringing trademarks, copyright and certain protected indicia. The notice is lodged by the IP rights holder, or in some cases an authorized user, and functions as the operational basis for ABF intervention. ABF guidance further states that it can only seize suspected infringing goods if a valid notice is in place. IP Australia similarly explains that a Notice of Objection is valid for four years and may allow ABF to seize imports during that period.
This distinction has important practical consequences. In China, once a right has been recorded, customs may identify a suspicious shipment in the ordinary course of supervision and notify the recorded rights holder or agent. The recordal system therefore creates a channel through which customs can reach the rights holder when potential infringement is detected. In Australia, registration of a trade mark with IP Australia alone does not automatically activate border protection. Unless the rights holder or authorized user has filed a Notice of Objection with ABF, the mere existence of an Australian trade mark registration does not, as a practical matter, place ABF under the same type of case-specific notification framework.
The Australian model therefore requires rights holders to be more proactive before infringement occurs. They should lodge and maintain a Notice of Objection, keep trade mark registrations current, provide ABF with practical identification materials, and monitor online and offline markets for indications that infringing goods may be entering Australia. This includes tracking suspicious importers, shipment patterns, unauthorized distributors, parallel supply chains, marketplace listings and changes in packaging or labelling used by counterfeiters. For foreign rights holders without a local enforcement team in Australia, this monitoring burden is especially important because ABF’s intervention is most effective when rights holders have already provided a valid notice and useful intelligence.
The difference may be summarized in functional terms. China’s customs recordal system gives rights holders a formal channel through which customs may proactively notify them when suspected infringing goods involving recorded rights are discovered. Australia’s Notice of Objection system gives ABF authority to act only where the rights holder or authorized user has already activated the border mechanism. Accordingly, Chinese companies that are accustomed to China’s recordal-based enforcement should not assume that Australian authorities will automatically contact the trade mark owner or its agent based on IP Australia’s register. In Australia, trade mark registration, market monitoring and ABF notice filing should be treated as separate but connected components of a border enforcement strategy.
III. Compliance Impacts and Potential Risks for Relevant Chinese Enterprises Given that China is one of Australia’s largest sources of imports, relevant Chinese exporters, cross-border e-commerce platforms, and supply chain enterprises will face higher compliance pressure regarding trade mark authorizations, customs clearance documents, and product labeling, with compliance risks manifested primarily in the following three core levels.
First, in past trade structures, even if goods were seized at Australian customs, domestic exporters often evaded liability on the grounds that they “were unaware of the trade mark registration status in Australia” or that the goods “were purely OEM and produced according to drawings provided by the foreign party”; local Australian importers also frequently used “lack of knowledge of the upstream supplier’s fraud” as a defense. However, after the implementation of the new law, once Australian importers are directly issued large administrative fines by the Border Force due to “objective infringement”, they will inevitably transmit this massive financial loss and legal risk backward to domestic Chinese suppliers through indemnity clauses, commercial arbitration, or termination of cooperation.
Second, because Border Force officers have obtained discretionary power to issue fines, their inspection intensity at the border and verification of trade mark authenticity will inevitably undergo a major upgrade. Especially in relation to the high-risk and key regulated industries mentioned above, such as batteries, electronic products, automotive parts, and medical devices, even if Chinese enterprises export genuine products, inconsistencies in trade mark registrations between China and Australia, incomplete OEM (Original Equipment Manufacturer) authorization chains, or deficiencies in customs clearance documents may cause the goods to be seized by customs for extended periods to conduct investigations. This will not only generate high demurrage fees but may also cause Chinese enterprises to constitute breaches under international trade contracts due to customs clearance delays. Third, cross-border e-commerce and small-parcel import models will face higher trade mark compliance pressure. Senate committee review materials indicate that counterfeit goods are increasingly entering Australia through small-parcel e-commerce, international mail, and express courier channels, and in small-batch parcel scenarios, it often lacks commercial viability for rights holders to protect rights through civil litigation. During the deliberations, eBay Australia & New Zealand and the Law Council of Australia expressed concerns that ordinary consumers who inadvertently purchase infringing goods might be affected, and pointed out that the Bill does not require the import conduct to have a commercial purpose; the committee ultimately concluded that the determination of “commercial quantities” could be exercised by the ABF at its discretion, combining product types, enforcement guidelines, and practical experience. Therefore, for enterprises selling to Australia through cross-border e-commerce, independent websites, or small-parcel channels, core risks are concentrated in areas such as trade mark searches, product identification, packaging design, authorization chains, and authenticity certification documents. If a product is suspected of infringing an Australian registered trade mark, it may lead to seizure of goods, failure in order fulfillment, refund disputes, and consumer complaints; repeated violations may further trigger commercial consequences such as product delisting, sales restrictions, or account penalties by platforms.
Comment The Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026 introduces a new administrative pathway for economic sanctions implemented by the ABF through infringement notices, in addition to the Notice of Objection, seizure of goods, and civil litigation by rights holders. Its compliance significance lies in the fact that it will be more difficult for importers and upstream supply chain enterprises to evade risks merely on the ground of “lack of knowledge”, and they particularly need to complete Australian trade mark searches, authorization chain reviews, labeling compliance, and the preparation of English certification documents prior to export.
In order to effectively mitigate the compliance risks brought about by this institutional shift, Chinese enterprises must establish a “preemptive” international intellectual property awareness. Prior to project research and development and goods export, enterprises should collaborate with foreign-related professional lawyers to conduct comprehensive searches of the existing Australian Trade Marks Register to ensure that the signs, packaging, and even appearance designs of exported commodities do not constitute substantial similarity with prior rights in Australia. Meanwhile, the rights licensing chain upstream of the supply chain must be standardized to ensure that the trade mark authorization letters and chain proofs for each batch of OEM or ODM goods are strictly compliant and translated into standard English documents, so as to be available for random inspections by customs at any time. Against the backdrop of increasingly tightening global trade compliance reviews, enterprises should internalize intellectual property compliance as a core asset protection mechanism to reduce legal risks and supply chain uncertainties in cross-border operations.
The introduction of this Bill stems from the enforcement deficiencies of Australia’s existing intellectual property border protection mechanisms in addressing the import of counterfeit goods. Under the traditional framework, the Australian Border Force (ABF) relies primarily on the Notice of Objection mechanism submitted by rights holders to seize goods suspected of infringement, and subsequently forfeits, releases, or otherwise disposes of the goods in accordance with procedures. Although criminal prosecution pathways exist under existing laws, the actual deterrence after border seizure still relies heavily on the forfeiture of goods or the initiation of litigation by rights holders.
With the development of cross-border e-commerce and international supply chains, the cross-border movement of counterfeit goods has become more frequent and concealed, and the traditional model has gradually exposed two problems: First, the cost of rights enforcement is high and the duration is long, making it difficult for many rights holders to continuously pursue litigation, which results in a large number of cases stopping at the abandonment, forfeiture, or disposal of goods, and importers rarely face additional, immediate economic sanctions; Second, counterfeit goods have expanded from traditional sectors such as apparel, footwear, and leather goods to sectors with public safety risks, including electronic products, lithium-ion batteries and chargers, automotive parts, pharmaceuticals, and medical devices, posing a realistic threat to consumer health, safety, and financial interests.
The Bill mainly strengthens enforcement by adding a financial penalty layer to the existing seizure-based process. It creates a strict liability offence for importing goods bearing false trademarks, so ABF does not need to prove the importer’s intention or knowledge in order for the offence to arise. It also brings that offence within the Customs Infringement Notice Scheme, allowing ABF to issue an infringement notice as an alternative to prosecution. In practical terms, an importer may face not only seizure or forfeiture of the suspected counterfeit goods, but also a monetary penalty imposed through an infringement notice.
I. Analysis of the Core Amendatory Content of the Bill The Bill intensively amends Australia’s current Commerce (Trade Descriptions) Act 1905 and the Customs Regulation 2015, and its core legislative contribution lies in establishing two mutually supportive legal mechanisms.
- First Mechanism The Bill establishes a “strict liability offence” targeting the act of importing goods bearing false/counterfeit trademarks. In common law systems, strict liability means that when determining an unlawful act, the prosecution or enforcement agency is not required to prove that the subject involved possessed subjective “intent”, “recklessness”, or “fraudulent intent”. As long as it is objectively verified that the importer has committed the act of importing goods bearing a false trade mark (i.e., a trade mark substantially identical with or deceptively similar to an Australian registered trade mark), the violation can be directly established. This shift significantly reduces the burden of proof on the Border Force, enabling enforcement procedures to advance rapidly.
It should be noted that strict liability does not mean that importers have absolutely no room for defense. Importers cannot escape liability merely on the ground of “lack of knowledge” as a matter of course, but they may still raise a defense based on an “honest and reasonable mistake of fact” under section 9.2 of the Australian Criminal Code ; simultaneously, if an importer can prove that the use, modification, or removal of the trade mark or sign involved has been permitted by the trade mark owner or authorized user, or that the use of the trade mark/sign was required or authorized by the Trade Marks Act, a directive of the Registrar, or a court order, the relevant conduct shall not be included in the strict liability offence.
- Second Mechanism The Bill formally incorporates such acts into the “Infringement Notice Scheme” administered by the Border Force. According to this newly created procedure, when Border Force officers seize relevant goods at the border and have reasonable grounds to believe that an importer has committed a prescribed unlawful act, they may issue an infringement notice to the importer. If the importer elects to pay the penalty within the statutory period, the matter can be exempted from further prosecution; meanwhile, the payment of the penalty itself does not constitute an admission of guilt, nor will it form a criminal conviction record.
II. The Different Models of Customs IP Protection Between Australia and China For Chinese enterprises, the practical significance of the Australian regime becomes clearer when it is compared with China’s customs intellectual property protection system. Both jurisdictions recognize border enforcement as an important tool against counterfeit goods, yet they allocate the monitoring burden differently between customs authorities and rights holders.
China’s system is built around a customs recordal mechanism administered by the General Administration of Customs. Where an intellectual property right has been recorded with China Customs, customs authorities may act ex officio during import and export supervision. If customs identifies goods suspected of infringing recorded rights, it may suspend clearance and notify the recorded rights holder or its designated agent. The rights holder must then respond within the prescribed period and apply for detention if it wishes customs to continue the enforcement process. China Customs describes ex officio protection as proactive measures taken by customs when suspected infringing goods are discovered during supervision.
Australia adopts a more notice-based and rights-holder-driven model. ABF states that a Notice of Objection is the legal document that allows it to seize imported goods infringing trademarks, copyright and certain protected indicia. The notice is lodged by the IP rights holder, or in some cases an authorized user, and functions as the operational basis for ABF intervention. ABF guidance further states that it can only seize suspected infringing goods if a valid notice is in place. IP Australia similarly explains that a Notice of Objection is valid for four years and may allow ABF to seize imports during that period.
This distinction has important practical consequences. In China, once a right has been recorded, customs may identify a suspicious shipment in the ordinary course of supervision and notify the recorded rights holder or agent. The recordal system therefore creates a channel through which customs can reach the rights holder when potential infringement is detected. In Australia, registration of a trade mark with IP Australia alone does not automatically activate border protection. Unless the rights holder or authorized user has filed a Notice of Objection with ABF, the mere existence of an Australian trade mark registration does not, as a practical matter, place ABF under the same type of case-specific notification framework.
The Australian model therefore requires rights holders to be more proactive before infringement occurs. They should lodge and maintain a Notice of Objection, keep trade mark registrations current, provide ABF with practical identification materials, and monitor online and offline markets for indications that infringing goods may be entering Australia. This includes tracking suspicious importers, shipment patterns, unauthorized distributors, parallel supply chains, marketplace listings and changes in packaging or labelling used by counterfeiters. For foreign rights holders without a local enforcement team in Australia, this monitoring burden is especially important because ABF’s intervention is most effective when rights holders have already provided a valid notice and useful intelligence.
The difference may be summarized in functional terms. China’s customs recordal system gives rights holders a formal channel through which customs may proactively notify them when suspected infringing goods involving recorded rights are discovered. Australia’s Notice of Objection system gives ABF authority to act only where the rights holder or authorized user has already activated the border mechanism. Accordingly, Chinese companies that are accustomed to China’s recordal-based enforcement should not assume that Australian authorities will automatically contact the trade mark owner or its agent based on IP Australia’s register. In Australia, trade mark registration, market monitoring and ABF notice filing should be treated as separate but connected components of a border enforcement strategy.
III. Compliance Impacts and Potential Risks for Relevant Chinese Enterprises Given that China is one of Australia’s largest sources of imports, relevant Chinese exporters, cross-border e-commerce platforms, and supply chain enterprises will face higher compliance pressure regarding trade mark authorizations, customs clearance documents, and product labeling, with compliance risks manifested primarily in the following three core levels.
First, in past trade structures, even if goods were seized at Australian customs, domestic exporters often evaded liability on the grounds that they “were unaware of the trade mark registration status in Australia” or that the goods “were purely OEM and produced according to drawings provided by the foreign party”; local Australian importers also frequently used “lack of knowledge of the upstream supplier’s fraud” as a defense. However, after the implementation of the new law, once Australian importers are directly issued large administrative fines by the Border Force due to “objective infringement”, they will inevitably transmit this massive financial loss and legal risk backward to domestic Chinese suppliers through indemnity clauses, commercial arbitration, or termination of cooperation.
Second, because Border Force officers have obtained discretionary power to issue fines, their inspection intensity at the border and verification of trade mark authenticity will inevitably undergo a major upgrade. Especially in relation to the high-risk and key regulated industries mentioned above, such as batteries, electronic products, automotive parts, and medical devices, even if Chinese enterprises export genuine products, inconsistencies in trade mark registrations between China and Australia, incomplete OEM (Original Equipment Manufacturer) authorization chains, or deficiencies in customs clearance documents may cause the goods to be seized by customs for extended periods to conduct investigations. This will not only generate high demurrage fees but may also cause Chinese enterprises to constitute breaches under international trade contracts due to customs clearance delays. Third, cross-border e-commerce and small-parcel import models will face higher trade mark compliance pressure. Senate committee review materials indicate that counterfeit goods are increasingly entering Australia through small-parcel e-commerce, international mail, and express courier channels, and in small-batch parcel scenarios, it often lacks commercial viability for rights holders to protect rights through civil litigation. During the deliberations, eBay Australia & New Zealand and the Law Council of Australia expressed concerns that ordinary consumers who inadvertently purchase infringing goods might be affected, and pointed out that the Bill does not require the import conduct to have a commercial purpose; the committee ultimately concluded that the determination of “commercial quantities” could be exercised by the ABF at its discretion, combining product types, enforcement guidelines, and practical experience. Therefore, for enterprises selling to Australia through cross-border e-commerce, independent websites, or small-parcel channels, core risks are concentrated in areas such as trade mark searches, product identification, packaging design, authorization chains, and authenticity certification documents. If a product is suspected of infringing an Australian registered trade mark, it may lead to seizure of goods, failure in order fulfillment, refund disputes, and consumer complaints; repeated violations may further trigger commercial consequences such as product delisting, sales restrictions, or account penalties by platforms.
Comment The Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026 introduces a new administrative pathway for economic sanctions implemented by the ABF through infringement notices, in addition to the Notice of Objection, seizure of goods, and civil litigation by rights holders. Its compliance significance lies in the fact that it will be more difficult for importers and upstream supply chain enterprises to evade risks merely on the ground of “lack of knowledge”, and they particularly need to complete Australian trade mark searches, authorization chain reviews, labeling compliance, and the preparation of English certification documents prior to export.
In order to effectively mitigate the compliance risks brought about by this institutional shift, Chinese enterprises must establish a “preemptive” international intellectual property awareness. Prior to project research and development and goods export, enterprises should collaborate with foreign-related professional lawyers to conduct comprehensive searches of the existing Australian Trade Marks Register to ensure that the signs, packaging, and even appearance designs of exported commodities do not constitute substantial similarity with prior rights in Australia. Meanwhile, the rights licensing chain upstream of the supply chain must be standardized to ensure that the trade mark authorization letters and chain proofs for each batch of OEM or ODM goods are strictly compliant and translated into standard English documents, so as to be available for random inspections by customs at any time. Against the backdrop of increasingly tightening global trade compliance reviews, enterprises should internalize intellectual property compliance as a core asset protection mechanism to reduce legal risks and supply chain uncertainties in cross-border operations.