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AUSTRALIA INDUCTION PACK

OCTOBER 2016

A QUICK REFERENCE GUIDE ON GETTING STARTED

© Copyright New Zealand Trade and Enterprise (NZTE) 2016

While every effort is made to ensure the accuracy of the information contained herein, New Zealand Trade and Enterprise (NZTE), its officers, employees and agents accept no liability for any errors or omissions or any opinion expressed, and no responsibility is accepted with respect to the standing of any firms, companies or individuals mentioned. This information is a general guide only and you should obtain your own separate legal, accounting, tax and financial advice on doing business in Australia.

ABOUT THIS GUIDE

AUSTRALIA PRESENTS A COMPELLING MARKET OPPORTUNITY FOR NEW ZEALAND BUSINESSES. ITS SIZE, PROXIMITY AND FAMILIARITY MAKE IT AN IDEAL FIRST MARKET AND SPRINGBOARD TO THE REST OF THE WORLD.

It is also backed by the Closer Economic Relations (CER) free trade agreement, which removes goods and services tariffs and quantity restrictions. This guide has been created to provide you with a simple and easy guide for getting set up in Australia – from legal, taxation and regulation requirements to tips specific to your industry.

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CONTENTS

AUSTRALIA INDUCTION PACK | A QUICK REFERENCE GUIDE ON GETTING STARTED

Getting set up in Australia 2

Trading structures 6

Tax implications 8

Employing staff in Australia 10

Delivering your goods to market 13

Obtaining advice for your circumstances 16

About New Zealand Trade and Enterprise 16

GETTING SET UP IN AUSTRALIA

Your legal, taxation and regulation requirements for doing business in Australia depend entirely on the structure and level of business you do there.

Selling online to customers in Australia?If you are a New Zealand resident that trades over the internet:

— you generally will not have to pay Australian goods and services tax (GST) or register for GST (although this may change from 1 July 2017 when new provisions come into effect in Australia’s GST legislation to bring supplies of anything other than goods or real property, made by non-resident suppliers to certain Australian consumers into Australia’s GST net)

— you will generally not be liable to pay Australian income tax on your business profits – income tax generally only applies if you have an Australian permanent establishment (such as a branch, office, factory workshop, or dependent agent)

— you will generally not be liable for Australian capital gains tax (CGT) – CGT only applies to assets that are taxable Australian property (for the meaning of taxable Australian property, refer to sections 855-15, 855-20 and 855-25 of the Income Tax Assessment Act 1997)

— unless you are employing workers in Australia, you won’t have any Australian superannuation obligations, fringe benefits tax (FBT) or payroll tax obligations

— you will not usually be subject to withholding for failure to quote an Australian Business Number (ABN) in respect of payments made to you unless you have a permanent establishment in Australia

— when you sell to Australian consumers, you are required to comply with the Australian Consumer Law as well as other importation, labelling, and sale of goods regulations.

For more, go to ato.gov.au and search for ‘New Zealand residents trading over the internet’.

Have a turnover of $75,000 or more in Australia?If you run a business or other enterprise and have a GST turnover from your Australian activities of $75,000 or more ($150,000 or more for non-profit organisations), or you expect that your GST turnover will exceed those thresholds – you need to:

— apply for an ABN. This is free when you register with the Australian Business Register (ABR). The ABN is a unique 11 digit number that identifies your business or organisation to the government and community. You can use the same online form to apply for GST when completing your ABN application. Go to abr.gov.au apply for a Tax File Number. To apply, go to ato.gov.au

— register for GST. This is a requirement for all businesses with a turnover of $75,000 or more in Australia. To apply, go to ato.gov.au and search for ‘registering for GST’

— work out whether your sales are taxable (that is, subject to GST, and not exempted because they are GST-free or input-taxed) and include GST in the price of your taxable sales. Go to ato.gov.au and search for ‘when to charge GST’

— account for your liability to pay GST of 10 percent of the value of any taxable supplies you make (1/11th of the GST inclusive price), although this may be offset against any GST credits to which you are entitled

— issue tax invoices for your taxable sales and obtain tax invoices for your business purchases. Go to ato.gov.au and search for ‘issuing tax invoices’

— claim GST credits for GST included in the price of your business purchases, but only where you hold a valid tax invoice. Go to ato.gov.au and search for ‘claiming GST credits’

— account for GST on either a cash or non-cash basis and put aside the GST you have collected so you can pay it to the ATO when due. Go to ato.gov.au and search for ‘accounting for GST in your business’

— lodge activity statements or annual returns to report your sales and purchases, and pay GST to us or receive a GST refund. Go to ato.gov.au and search for ‘lodging your BAS or annual GST return’

— get an Australian bank account. Contact the international departments of New Zealand banks to find out more, and obtain a credit-worthiness reference from your local bank

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— register your business name, or trading name with ASIC. This should be done around the same time or soon after you get your ABN. Go to asic.gov.au.

For more, go to ato.gov.au/Business/GST or business.gov.au and search for ‘register for Goods and Services Tax’.

Supplying goods or services to Australia less than 75,000 AUD in annual value? If the products and services you supply to Australia do not exceed 75,000 AUD in GST turnover, then you are not required to register for GST, although you may voluntarily register if you are carrying on an enterprise through a permanent establishment in Australia or if you make supplies in or connected with Australia.

Unless you have a permanent establishment in Australia, including an agent or branch office, you will not be subject to no-ABN withholding on payments made to you if you do not quote an ABN. Nonetheless, you may wish to consider applying for a ABN/TFN and registering your business name with ASIC if you plan to establish a physical presence in Australia and want to eventually grow your revenue beyond this amount (at which point you will need to register for GST).

Other tips for getting set up in AustraliaSetting up an Australian bank account

It is not necessary to have an Australian company to set up an Australian bank account – anyone can do this. First, a credit-worthiness reference must be obtained from your local bank in New Zealand for the chosen Australian bank to approve.

Not all Australian banks will accept references from abroad, but it is worth having this just in case. Identification documents, including passport, driver’s license, birth certificate, and bills sent to the company’s address must be presented when opening the account.

You should contact the international department of your local bank or other New Zealand banks to see what specific services they provide to exporters to Australia.

Managing Foreign Exchange Risks

If you are doing business overseas, currency rate fluctuations are a fact of life. While you can’t avoid those Foreign Exchange (FX) risks completely, you can manage them and the potential impact on your business.

The three key principles of FX risk management are time, risk and product choice:

— time. An effective FX strategy should take into account your overall time horizon and any seasonality in your business

— risk. Consider how much risk potential FX fluctuations pose to your business, such as to cash-flow, net investment and profit translation

— product choice. Forward exchange contracts and currency options can help you manage your FX risk.

Depending on your business cycle, you may need a mix of certainty and/or flexibility so you can take advantage of potentially advantageous changes in the currency exchange rate. Your FX strategy should be closely aligned to both market conditions and the certainty of your underlying business requirements.

Privacy

Companies with an annual turn-over greater than $3 million are required to comply with certain obligations under the Privacy Act 1988 (and the Australian Privacy Principals).

These include having a public privacy policy and using collection statements. It is generally good practice for all businesses operating in Australia to comply with Australian privacy law, and with related laws like the Spam Act 2003, which imposes certain requirements on mail-outs to customers and the public.

Obtaining a .com.au web address

There are a number of domain name providers that you can contact to register a .com.au address even if your business has no presence in Australia. To apply for a com.au, net.au, org.au, asn.au, or id.au domain name, choose your preferred registrar and follow their application process to register your domain name. Some registrars provide services directly to the public, others may use resellers.

To find a registrar, go to auda.org.au and search for ‘Registrars’. You will then need to arrange for your domain name to be hosted. A hosting service provides a location for your web site. Internet Service Providers (ISPs) or a web hosting service can host your domain name. Finally, create your web page and set up your email addresses. You can do this yourself, or your registrar, reseller, ISP, or an IT consultant can create it for you. We strongly recommend if you are doing business in Australia that you create a ‘.com.au’ website address.

Registering your trade marks and business name

If you do not have a registered company set up in Australia, or if you trade under a different name, then you will need to register your business name via the Australian Securities and Investment Commission (ASIC).

Registration is required by law for consumer protection purposes (so customers can find out who they’re dealing with) and penalties may apply if you operate under an unregistered business name. You may also wish to register your name or logo as a trade mark in Australia. This is done through IP Australia, but you should get expert advice first on how best to protect your brand.

Obtaining business premises in Australia

The purchase, lease and development of commercial property in Australia is facilitated by state and territory, and local governments. Approvals, assessments (including environmental assessment) and regulatory requirements will differ between jurisdictions. For more information, please refer to the relevant State or Territory. Go to austrade.gov.au and search for ‘investment promotion assistance’.

Listing on the Australian Stock Exchange

Australia has a modern and active stock market, allowing access to the Asia-Pacific region and a time zone providing opportunities for trading on a round-the-clock basis. The primary stock exchange in Australia is the Australian Securities Exchange (ASX).

Both Australian and international companies may apply for listing on the ASX. To obtain and maintain an ASX listing, companies need to meet the prescribed requirements set out in the stock exchange listing rules. This includes company disclosure and reporting requirements. For further information, see the ASX guide to listing on the ASX at asx.com.au, and search for ‘ASX listing rules’.

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TRADING STRUCTURES

When entering into the Australian market, you will need to decide on the right structure to suit your business.

Most foreign companies conduct business in Australia through an Australian branch or a wholly or partly-owned subsidiary. There are a number of structures available, each determining how much tax you will pay, the licenses you require, your potential personal liability, and how much control you have over the business. The most suitable option will depend on the size of your company, your growth plans and desired market presence in Australia.

Australian branchEstablishing an Australian branch is ideal if you want to consolidate the financial results of your company in New Zealand. Foreign companies ‘carrying on business’ must be registered with ASIC. A registered office also needs to be established in Australia and a local agent must be appointed.

Once registered, ASIC will issue a nine digit identifying number known as the Australian Registered Body Number (ARBN). New Zealand companies that are registered as foreign companies in Australia are exempt from the requirements to lodge certain basic company information and financial statements with ASIC where this information can be sourced from the NZCO, although you will need to notify ASIC if your details change.

Sole traderIf you are an individual doing business in Australia worth more than 75,000 AUD, but you want to keep things simple, then register as a sole trader. This is the simplest business structure and is inexpensive to set up because there are few legal and tax requirements.

As a sole trader, you are the single-owner of a business and generally plan to export small quantities of goods. You may require a local agent who will represent the business in Australia. Besides registering your name with ASIC, you will require a TFN and ABN for GST purposes.

CompanyA propriety limited company is the more common of structures amongst Australian businesses. It is a complex business structure with set up and administrative costs that are usually higher than for other business structures.

A propriety limited company is a separate legal entity, meaning it has the same rights as a natural person and can incur debt, sue and be sued. Its number of members is limited to 50 non-employee shareholders, who can limit their personal liability and are generally not liable for company debts. A company is bigger and has a more complex business structure, with higher set-up and administrative costs due to additional reporting requirements. A TFN and ABN are required to operate. The money the business earns belongs to the company, and the company must have a separate bank account.

It must also lodge an annual company tax return. Companies usually make Pay As You Go (PAYG) instalments, which are credited against the total income tax that you are liable to pay.

PartnershipA partnership involves two or more co-owners, and each co-owner could either be an individual or another company. A partnership may require both a TFN and an ABN number to operate in Australia. A partnership does not pay income tax on the income it earns. Instead the partners pay tax on their share of the net income that they receive. While the partnership doesn’t pay tax, it does have to lodge an annual partnership tax return to show all income the partnership owned and deductions claimed for expenses. It also shows each partner’s share of the net partnership income. A limited partnership allows each co-owner to have a certain level of responsibility to the partnership based on his/her level of investment in the business.

Joint ventureA joint venture creates a common enterprise whose member parties assist one another with the joint venture’s predetermined common goal as a business. While it is not single legal entity, it is possible to integrate various joint ventures, depending on the individual situation and the terms of each joint venture partner involved in the process. The joint venture’s operators are responsible for making corresponding tax payments.

For a simple overview of tax structures, there is a video by the Australian Tax Office on YouTube called ‘Starting your business – Choosing your business structure: tax basics for small business’. Or for more information on choosing the right structure for you, go to ato.gov.au and search for ‘choosing your business structure’.

Branch vs subsidiary?Branches and subsidiaries are the most popular structures used by New Zealand companies setting up in Australia. There are a number of advantages in setting up a subsidiary:

— Australians can be quite ‘parochial’ in that they often prefer dealing with local businesses. Being seen as a branch of a New Zealand company may put you at disadvantage

— subsidiaries provide a higher level of risk isolation than a branch structure

— registration with ASIC and ATO is typically much easier, faster and less costly for subsidiaries. The level of documentation required for a branch structure can be more complex

— local funding and banking is often easier to arrange for a subsidiary

— subsidiaries may be able to take advantage of tax concessions for Research and Development activities

— subsidiaries will find it easier to lease premises and employ local staff.

TAX IMPLICATIONS

Taxation is one of the most important costs to consider when entering the Australian market.

There are a range of different taxes that apply in Australia in addition to GST and income tax. The discussion set out immediately below provides an overview of income tax only.

Double taxationIf you are a New Zealand resident, you may be subject to income tax in Australia on, amongst other things, any income sourced in Australia. Given the potential for double taxation in respect of income tax, it is important to understand how the double tax treaty between our two countries works.

As a general rule, the business profits of New Zealand residents cannot be taxed in Australia unless they carry on business through a permanent physical establishment in Australia (which may include a branch, office, factory workshop, dependent agent or a place where the resident has, is using or is installing substantial equipment or substantial machinery). However, where a New Zealand resident has a permanent establishment in Australia, such as a branch office, profits will be attributed to the permanent establishment as if the permanent establishment were a separate enterprise dealing independently with its head office and other parties,

and those profits will be taxed in Australia at the general corporate rate of 30 percent (although certain small business entities pay a tax rate of 28.5 percent).

New Zealand resident taxpayers may also be subject to withholding tax on certain types of Australian sourced income (including interest, dividends and royalties).

It is also relevant to note that Australia has a system of dividend imputation that is designed to minimise the double taxation that can arise where a company pays income tax at the corporate income tax rate (generally 30 percent) and the shareholder is subject to income tax on the same income when a dividend is paid.

The system generally operates on the basis that an Australian resident company will obtain franking credits from the payment of income tax that can be attached to franked dividends paid to shareholders which give rise to a franking credit tax offset in the hands of their Australian resident shareholders. However, under the trans-Tasman imputation system, a New Zealand resident company may choose to enter the Australian imputation system.

By entering into the system, the New Zealand resident company may pay dividends franked with Australian franking credits thereby allowing Australian resident shareholders of the New Zealand company to access the franking credits.

However, New Zealand shareholders of a New Zealand company that pays tax in Australia still do not have access to the benefit of franking credits that arise from company tax paid in Australia. This may result in double taxation effectively being paid on the same profits where:

(a) a New Zealand resident company with a branch office in Australia, which pays tax in Australia, seeks to pay a dividend to its New Zealand shareholders; or

(b) an Australian resident subsidiary company of a New Zealand resident pays dividends to repatriate to New Zealand profits that have already been subject to tax in Australia,

Although fully franked dividends do have the advantage that they are typically not subject to dividend withholding tax.

While this is an issue, there are a range of options that may assist to reduce the risk of double taxation arising in these circumstances, including:

— using New Zealand retained earnings for dividend payments

— using Australian profits to fund business growth or reduce debt

— ensuring you are charging appropriately for products and services provided by your Australian operation.

Choice of structure – income tax impactTax issues vary too, according to the business structure you choose for your Australian operation. For example, the income tax consequences of some of the more common structures may be summarised as follows:

— export only by a New Zealand resident entity. If you have no permanent establishment in Australia, then generally no Australian income tax is payable

— Australian branch. Income tax is paid in Australia on the business profits attributable to the branch subject to deductions and credits etc. Income tax returns will need to be filed annually. No withholding tax is payable on after tax profits remitted from the branch office. However, gains made with respect to CGT assets used by the permanent establishment in conducting its business in Australia may also be subject to CGT on disposal

— Australian relevantly. Income tax is paid in Australia on the company’s taxable income, which includes assessable income from all

sources not just Australian sourced income subject to deductions and credits etc. Income tax returns will need to be filed annually in Australia. Dividend withholding tax may also be payable at the applicable rates under the Australia-New Zealand double tax agreement on the payment of dividends by the Australian subsidiary to the New Zealand shareholder unless those dividends are otherwise exempt from withholding tax.

Finally, there is usually no tax when you sell shares in Australian subsidiaries unless those shares qualify as taxable Australian property (for the meaning of taxable Australian property, refer to sections 855-15, 855-20 and 855-25 of the Income Tax Assessment Act 1997).

Where the structure chosen for doing business in Australia involves the use of a permanent establishment in Australia, or an Australian resident entity such as a subsidiary, it will be important to obtain an ABN because if you are unable to quote an ABN then other residents paying money to you (or your subsidiary) may be required to withhold from those payments (currently at the rate of 49 percent).

EMPLOYING STAFF IN AUSTRALIA

When hiring staff in Australia, you will need to comply with a range of legislative requirements including the Fair Work Act 2009, workplace health and safety, workers’ compensation, superannuation (pension) and taxation.

The Fair Work Ombudsman (FWO) and the Fair Work Commission (FWC) are the two key organisations in Australia’s workplace relations system. The FWO provide useful guidelines and templates on it’s website to help you adopt best practice employment processes from the start, as well as a pay calculator, pay slip and record-keeping templates, employer checklists and more. To find out more, visit fairwork.gov.au or call the Fair Work Infoline on 13 13 94.

Regulations — employers must adhere to the ten Australian National Employment Standards (NES) which are found in the Fair Work Act 2009 (see below)

— the NES form a ‘safety net’ of minimum employment conditions in Australia and covers all employees of corporations, or those who work in Victoria, the ACT, the NT, South Australia and Tasmania (significant penalties apply if a business fails to comply with the NES)

— in addition to the NES, some employees are also covered by modern awards, depending on their industry sector or occupation. It is important that employers are familiar with the terms of any modern awards that apply to their business as they can set penalty rates or other entitlements that must be provided to employees

— Australia also has several key pieces of legislation which govern the employment relationship, including:

– the Fair Work Act 2009 (CTH) (ACT), which contains:

• the NES

• the unfair dismissal regime (see below)

• general protections for employees

• prohibitions on ‘sham contracting’

• ‘anti-bullying’ protections

• enterprise bargaining provisions

• union right of entry

• industrial action provisions

– anti-discrimination legislation at both Federal and State levels, which makes it unlawful to discriminate on the basis of certain protected characteristics (such as sex, race, disability, age, marital status, pregnancy, parental status, religious or political belief and industrial activity) or to engage in sexual harassment in the workplace

– federal and state work health and safety legislation, which imposes strict obligations on employers to take reasonably practicable steps to ensure the health and safety of all workers (significant penalties and criminal sanctions apply)

– state long service leave legislation which provides employees extra leave entitlements for longer periods of service

– federal independent contracting legislation

– state-based child labour and anti-surveillance laws

– state-based workers’ compensation legislation, which enables injured workers to claim for compensation payments from their employer.

Staff costs — in Australia, staff costs can be up to 50 percent tax-related (including payroll tax and compulsory superannuation and workers compensation contributions), while this figure in New Zealand is only 7 percent

— wages in Australia are significantly higher than in New Zealand. Australian law prescribes a general minimum wage which is reviewed annually and from 1 July 2016 is AUD$17.70 per hour or AUD$672.70 for a 38-hour week

— income tax (known as ‘Pay-As-You-Go’ or PAYG tax) must be deducted from pay/wages by the employer and forwarded to the Australian Taxation Office (ATO)

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— employers must also make minimum superannuation (pension) contributions into an employees’ superannuation fund (currently 9.5 percent of an employee’s ordinary time earnings). Which superannuation fund employees contributions are made to depends on what (if any) modern award covers the employee

— time and wage records for employees must be kept for seven years.

Recruiting an employee — the most common methods for finding employees are seek.com.au, LinkedIn, local newspaper advertisements and using recruitment firms with expertise in hiring the roles you require

— employers need to be careful that no aspect of the recruitment process can give rise to the accusation that an applicant was rejected because of a particular characteristic or attribute that is protected under anti-discrimination legislation, unless an exemption applies

— similarly, employers should be careful to ensure that communications are free from statements or representations that may be misleading or deceptive (or likely to mislead or deceive) in order to induce an applicant to accept an offer of employment

— an offer of employment can be made conditional upon the satisfactory completion of certain checks, (including a pre-employment medical check), with the consent of the applicant.

Hiring a New Zealander to work in Australia

— an employee (such as one from New Zealand) is considered an Australian resident after having worked 180 days during a 365-day period. At this point employee tax comes into effect

— if you want to employ someone from New Zealand through the 457 visa, you must be willing to pay for relocation costs, medical expenses (including dependents) and other immigration costs

— service in New Zealand will also count in some instances for entitlements in Australia where the New Zealand and Australian companies are related entities.

Employment contracts — it is important to ensure that employees are categorised accurately. There are several different ‘types’ of employment, (full-time, part-time, casual, fixed term and maximum term), and different rights and entitlements arise from each

— employers must also ensure that relationships with persons engaged as contractors are properly classified as such and do not in fact point to a

relationship of employment, as this distinction has a significant impact on the rights, entitlements and obligations that arise

— variations to employment contracts can only be made by consent between the employer and employee

— it is important to include a clause dealing with notice of termination in employment contracts, to avoid a term of ‘reasonable notice’ being implied

— “garden leave” clauses are commonly included in employment contracts, which give an employer the right to require an employee to remain “in the garden” (i.e. not at work) for part or all of a notice period

— “restraint clauses” are also common in employment contracts, which act to ‘restrain’ an employee from certain activities post-employment (such as taking clients) for a period of time and within a certain area. Restraint clauses can be complex so it is best to seek advice on how to draft these.

Terminating employment and unfair dismissal— the NES sets out minimum

statutory notice periods which apply on termination of employment and range from 1 to 5 weeks in length, depending on the employee’s years of continuous service and age

— employees may also be terminated without notice in certain circumstances, such as where an employee is dismissed for ‘serious misconduct’, (including for example, theft, fraud and assault, or being intoxicated at work)

— the NES provides a minimum statutory redundancy pay scale (based on the employee’s years of continuous service), which employees receive if their employment is terminated because the job is no longer required to be done by anyone (this may not apply if the employer has less than 15 employees)

— employees may be protected from unfair dismissal under the Act, (subject to minimum employment period and an annual earnings cap, currently $136,700 per annum, or being employed under an enterprise agreement or award) and must make an application with 21 days of their dismissal

— the primary remedy available for unfair dismissal is reinstatement or, if reinstatement is not appropriate, compensation. Compensation for unfair dismissal is currently capped at $68,350 (equivalent to 26 weeks’ pay).

Taxation obligations as an employerThere are a number of additional taxation and superannuation obligations to be aware of if your business has employees or contractors in Australia.

These include:

— pay as you go (PAYG) withholding tax. Employers must generally withhold amounts from payments of salary and wages, including bonuses, to employees who are subject to tax in Australia. The rate of withholding depends on the tax characteristics of the particular employee

— FBT. Which is payable when benefits of a non-cash benefits are provided to employees by an employer, an associate or certain other parties

— payroll tax. A tax imposed by each State government on the wages paid or payable by an employer in Australia, generally at a rate of between 4.25 percent to 6.85 percent, where the total aggregate amount of annual wages paid by that employer in the relevant state exceeds a minimum threshold

— superannuation guarantee. Where an employee earns $450 or more (before tax) in a calendar month, employers must pay a compulsory rate of 9.5 percent of the employee’s earnings, in addition to their salary, into a complying Australian superannuation fund.

1. Maximum weekly hours (38 hour standard week)

2. Requests for flexible working arrangements

3. Parental leave and related entitlements

4. Annual leave (4 weeks’ paid leave per year, pro rata for part time employees)

5. Personal (sick)/carer’s leave and compassionate leave

6. Community service leave

7. Long service leave (which for the moment is State based)

8. Public holidays

9. Notice of termination and redundancy pay

10. Provision of a Fair Work Information Statement.

AUSTRALIAN NATIONAL EMPLOYMENT STANDARDS

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DELIVERING YOUR GOODS TO MARKET

Commercial businesses importing into Australia for the first time need to register with the Australian Department of Immigration and Border Protection (DIBP).

An import declaration is a statement made to the Australian Customs and Border Protection Service (ACBPS) providing information about imported goods. Import declarations are used to clear goods from Customs that are worth more than 1,000 AUD. This information is used to assess the goods for duty, GST and other taxes and charges.

It is also used to determine if any exemptions or concessions apply such as those available under the Australia New Zealand Closer Economic Relations Trade Agreement (ANZCERTA).

Under ANZCERTA, all tariffs and quantitative import or export restrictions on trade in goods originating in the Free Trade Area are prohibited, allowing both countries to benefit from lower compliance costs, higher screening thresholds and greater legal certainty when investing in their Trans-Tasman neighbour.

Lodging an import declaration (N10) Form B650To lodge an import declaration, you may:

— use the services of a licensed Customs broker who will complete the ACBPS requirements for you based on the information you provide. Customs brokers charge for the services they provide, though they also have access to lower processing fees because of their online connection to DIBP. To find a customs broker, search online or at yellowpages.com.au

— complete an import declaration and present it to a DIBP counter. You may be required to provide additional documentation or answer additional lodgement questions. The Documentary Import Declaration Comprehensive Guide provides information on how to complete an Import Declaration. Go to border.gov.au and search for ‘documentary import declaration’

— lodge an import declaration electronically via the Integrated Cargo System (ICS). A digital certificate is required. For further information on the ICS go to border.gov.au and search for ‘cargo support’.

After you make an import declaration you must keep all relevant documentation for at least five years.

If you anticipate using a licenced warehouse to accept and store your goods before entering them for home consumption or exporting them, you will need to lodge a Warehouse Declaration (N20). For further information on warehouse declarations go to borger.gov.au and search for ‘warehouse and depot’.

What it will costHow much the goods are worth, and how they arrive in Australia, will determine how DIBP clears them for delivery and what duty, taxes and charges may apply. For goods that are worth equal to or under 1,000 AUD, there are no duties, taxes or charges to pay.

However, you will need to pay duties and taxes on some goods (like tobacco or alcohol) regardless of their value. A listing of all current fees and charges for import declarations can be found at border.gov.au by searching for ‘restructure of import processing’ and a listing of all current fees and charges for licences can be found at border.gov.au by searching ‘changes to licence charges from 1 January 2016’.

There is no requirement for importers (companies or individuals) to hold an import licence to import goods into Australia. However, depending on the nature of the goods and regardless of value, importers may need to obtain special permits to clear certain imported goods from customs control. To find out which goods are prohibited or have restrictions on importation, go to border.gov.au and search for ‘prohibited and restricted imports’.

Labelling imported goodsImporters are required, amongst other things, to ensure that imported goods are correctly labelled. For example, imported goods that require a trade description must be marked with the name of the country in which the goods were made or produced, and where specified, a true description of the goods.

For further information, visit border.gov.au and search for ‘labelling requirements’.

Competition and consumer law compliance Australia has comprehensive competition and consumer protection laws, contained within the Competition and Consumer Act 2010 (CCA) and the Australian Consumer Law contained in Schedule 2 to the CCA (ACL).

These laws are enforced by the Australian Competition and Consumer Commission (the ACCC), a well resourced statutory body responsible for ensuring compliance with the CCA.

Under the ACL, a person must not, in trade or commerce, engage in misleading or deceptive conduct, or conduct which is likely to mislead or deceive. Price fixing, third line forcing, resale price maintenance, misuse of market power and cartel conduct are all specifically prohibited business practices. Non-compliance can attract serious fines and may also lead to imprisonment.

On the consumer law side, goods of a kind ordinarily used for personal, domestic or household use which are supplied to Australian consumers (including those provided online by suppliers located overseas) must comply with the consumer guarantees under the CCA.

The key provisions of the consumer guarantees are that goods must be of acceptable quality and fit for their intended purpose. If they are not, then consumers have the right to a refund, repair or replacement. These obligations bind both the retailer or the manufacturer, and cannot be excluded, amended or avoided in your terms and conditions or under contract (if they apply).

Standard form terms and conditions that contain ‘unfair terms’ (generally, terms that create an unreasonable imbalance if power between the consumer and supplier) may be deemed void and unenforceable in whole or in part.

The CCA and ACL have extra-territorial reach and significant consequences for breach. The compliance regime is complex, and seeking legal advice is strongly recommended.

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Food and beverage and medicinesFood and beverage products provided to Australian consumers must meet the requirements of the Food Standards Code. The Code applies to both Australian and New Zealand food and beverage manufacturers, and so New Zealand based manufacturers should already be familiar with it.

You should also be aware that specific measurement and labelling laws (e.g. on how volume measurements must be displayed) do apply in Australia in addition to the Food Standards Code*. Talk to an expert to find out how these laws apply to your products.

In July 2016, a new country of origin food labelling system commenced under the ACL and applies to food offered for retail sale in Australia (including online). It does not apply to food service businesses, such as restaurants and cafés. Businesses have two years in order to comply with the new country of origin labelling requirements, and the laws will become mandatory on 1 July 2018.

The new system mandates that food which is produced, grown or made in Australia must include on the label a specified kangaroo triangle symbol (so that it can be readily identified as being of Australian origin), a statement saying that the food was grown, produced or made in Australia and the minimum proportion (by ingoing weight) of Australian ingredients, expressed as a percentage and displayed in a bar chart.

For any food which was grown, produced, made or packaged outside of Australia, the country of origin must be displayed on the label in a clearly defined box.

Country of origin labelling is also covered by the Food Standards Code. Businesses must continue to comply with these requirements under the Code until 1 July 2018, unless they choose to adopt the new country of origin labelling standard prior to this date.

Trade mark law on protected designation of origin or geographical indication may also apply. If your product is or may be considered to be a medicine, you should obtain advice about compliance with the Therapeutic Goods Act, and registration, sale and manufacturing requirements. Note that some products may be regulated as either foods or medicines (not both), and this can have significant ramifications for your business.

Trade promotions (consumer competitions)Trade promotions which involve an element of chance (e.g. “register to win!”) are considered lotteries in Australia, and are regulated by state and territory gaming laws. Games of skill (e.g. tell us in 25 words or less) are not regulated by gaming laws, but are still subject to compliance requirements.

The legal requirements to conduct trade promotions vary slightly between the states and territories. All trade promotions, regardless of whether they are games of chance or skill, must comply with general consumer protection, privacy and (where relevant) defamation laws.

Permits may be required, depending on where you wish to conduct the promotion. Note that you must have an ABN in order to run a trade promotion, and the draw must take place in Australia. Purchase to enter promotions are legal, provided that the price of the products to be purchased is not artificially inflated during the promotion period.

It is strongly recommended that you seek legal advice before conducting a trade promotion in Australia.

* Contact the National Measurement Institute (measurement.gov.au) to find a licensed technician who can help you work out how these laws apply to your products. Contact NZTE for a referral to legal and regulatory experts who can otherwise assist you with these matters.

OBTAINING ADVICE FOR YOUR CIRCUMSTANCES

The information is of a general nature only. The application of Australia’s legal and taxation framework to each business will depend on your particular circumstances.

You should obtain independent legal, taxation and accounting advice on how Australian law may apply to you.

About NZTENew Zealand Trade and Enterprise (NZTE) is the Government’s international business development agency. Our purpose is to grow companies internationally – bigger, better, faster – for the benefit of New Zealand.

We work to increase New Zealand companies’ international success by helping them boost their global reach and build capability. We use our connections and Government influence on behalf of businesses, and apply local knowledge – from the NZTE team and a network of private sector experts – to help them enter and grow in international markets.

We also link businesses with services designed to improve efficiency and operations, spark innovation, refine strategy, enhance leadership, and access capital – building the capability they need to be successful. More successful international businesses will grow our economy to benefit all New Zealanders, by providing jobs and raising our standard of living.

We also work alongside our NZ Inc partners within Government and the business community to protect and build credibility in our national brand – helping businesses to open doors in global markets.

Talk to us NEW ZEALAND TRADE AND ENTERPRISE

P: 0800 555 888 E: info@nzte.govt.nznzte.govt.nz

New Zealand Trade and Enterprise has offices based in the following Australian cities:

— Sydney (regional office) +61 2 9234 2700

— Melbourne +61 3 9678 0200

— Brisbane +61 2 9234 2704.

© Copyright New Zealand Trade and Enterprise (NZTE) 2016

Disclaimer: No part of this publication may be distributed or copied for any commercial purpose nor incorporated in any work or publication (whether in hard copy, electronic or any other form) without the prior written consent of NZTE. While NZTE has verified the information in this document, we make no representation as to the completeness, correctness, currency, accuracy or purpose of the information. NZTE will not be responsible for any damage or loss suffered by any person arising from the information contained in this document, whether that damage or loss arises from negligence or otherwise.

ISBN: 978-0-908344-52-9 October 2016