Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026
Submission Date: 28 April 2026
The Law Council of Australia provided a submission to the Senate Legal and Constitutional Affairs Committee on the Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026.
The Law Council is grateful for the input of its Business Law Section’s Intellectual Property Committee (the IP Committee) and its National Criminal Law Committee in responding to the Bill.
The IP Committee commends the Government’s commitment to protecting Australians from counterfeit goods (some of which can be dangerous) and to safeguarding legitimate businesses from fraud and intellectual property theft. The Committee supports the introduction of a strict liability offence for importing goods with false trade marks under the Commerce (Trade Descriptions) Act 1905 (Cth) (the CTD Act), and the extension of the infringement notice scheme in Part XIII Division 5 of the Customs Act 1901 (Cth) to the importation of goods bearing infringing trade marks.
The Law Council notes that there may be concerns as to whether there is evidence justifying the policy for the Bill at this time. The Law Council recognises that the illicit trade in counterfeit goods remains a significant global issue, as noted by the OECD and the EUIPO in their 2025 report Mapping Global Trade in Fakes 2025 Global Trends and Enforcement Challenges. Australia’s proximity to China, which, as the report notes, continues to be the primary source of counterfeit goods, means that importation of counterfeit goods into Australia remains a significant issue. The Assistant Minister for Citizenship, Customs and Multicultural Affairs and Assistant Minister for International Education has observed that over 700,000 individual counterfeit items were seized at the border in the 2024–25 financial year. Accordingly, the IP Committee considers that there is sufficient evidence to justify the Bill at this time and that the proposed new measures will create additional disincentives to the importation of counterfeit goods into Australia.
A further concern has been raised as to whether the introduction of a strict liability offence is proportionate and fair as drafted. The Law Council understands that the availability of the defences in subsections (2) and (3) of the proposed new section 10AB of the CTD Act, and the defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code, are intended to provide appropriate safeguards. The IP Committee also emphasises that those importers of trade marked goods who avoid infringement by virtue of section 122A of the Trade Marks Act 1995 (Cth) are not caught by the new offence.
Last Updated on 13/05/2026
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