Counterfeit risk has always been a customs issue, but in 2026 it is becoming a more
direct importer risk issue as well. A new federal bill, the Customs Legislation
Amendment (False Trade Marks Infringement Notices) Bill 2026, proposes a stricter
enforcement approach by creating a new strict liability offence for importing goods
bearing false trade marks and bringing that offence into the Customs Infringement
Notice Scheme. In practical terms, that means the existing border-seizure
environment may be supplemented by direct financial penalties through infringement
notices, not just seizure and court action. As at April 2026, the bill is still before
Parliament, so this is a proposed change rather than a settled one.
Why this matters now
For many importers, counterfeit exposure has historically been treated as something
that happens to “bad actors” or obvious fake-goods traders. That is too narrow a
view. In practice, exposure can arise anywhere in the supply chain where product
authenticity, labelling, trade mark use, packaging or supplier representations are not
being checked closely enough. The Parliamentary Library’s Bills Digest says the
proposed framework is intended to complement the ABF’s existing Notice of
Objection regime, which already allows the Australian Border Force to seize
imported goods that appear to infringe certain intellectual property rights.
This is what makes the bill commercially important. If enacted, the risk profile shifts
from “goods might be stopped” to “goods might be stopped, and the importer may
also face an infringement notice as an administrative penalty pathway instead of only
prosecution.” The existing ABF guidance describes infringement notices as a timely
and cost-efficient enforcement tool that can be used where the ABF has reasonable
grounds to believe the law has been contravened.
What the proposed bill actually does
The bill proposes two key changes. First, it would establish a new strict liability
offence for importing goods bearing false trade marks. Second, it would prescribe
that offence within the Customs Infringement Notice Scheme. According to the Bills
Digest, this would allow the Comptroller-General of Customs and authorised ABF
delegates to issue infringement notices as an alternative to prosecution.
The phrase “strict liability” is the part importers should pay close attention to. In
broad terms, strict liability offences do not require the same proof of intent that many
businesses assume would be necessary. That does not mean every disputed
shipment automatically results in liability, but it does mean “we did not know” may be
a much weaker protection than importers expect if the factual circumstances point to
counterfeit goods entering the border stream. That is a legal and operational
distinction, not just a semantic one. The bill’s practical message is that authenticity
controls will matter more, not less.
How this interacts with the current ABF border process
Even before this bill, the ABF already had a functioning mechanism for dealing with
infringing goods. Under the Notice of Objection Scheme, rights holders can lodge a
Notice of Objection with the ABF. If imported goods are under customs control,
covered by a valid notice, appear to infringe IP rights and are intended for
commercial purposes, the ABF may seize them. The importer is then notified and
has ten working days to make a claim for release. If no claim is made, the goods are
deemed forfeited. If a claim is made, the objector then has ten working days to
commence legal action or consent to release.
That process is already significant from a delay, storage, customer-service and
cashflow perspective. The proposed bill does not replace that framework. It sits
alongside it. So the importer risk is not just legal exposure in the abstract. It is the
cumulative effect of seizure risk, supply chain disruption, documentation scrutiny,
possible destruction of goods if forfeited, and potentially an infringement notice
regime layered on top.
Where importers are most exposed
The highest-risk scenarios are not limited to obviously fake luxury goods. Exposure
can arise where offshore suppliers use brand names, logos, packaging elements or
get-up that are not properly authorised, where substitute goods are shipped against
approved samples, where private-label arrangements are poorly documented, or
where an importer relies too heavily on supplier assurances without independent
verification. Goods can also become risky where packaging is changed late in
production, where parallel sourcing introduces inconsistent branding, or where
product and packaging approvals are handled by different parties with no single point
of control.
From a customs-broking perspective, this matters because the border declaration is
often only as sound as the commercial information behind it. If the underlying goods
are problematic, accurate ICS data alone will not solve the issue. Compliance begins
much earlier than lodgement.
What importers should be doing now
The immediate takeaway is not panic. It is preparation. Importers should be
reviewing supplier onboarding, authenticity controls and documentary verification
now, while the bill is still only proposed. At a minimum, that means checking who
actually owns the trade marks connected to the goods, whether the supplier is
authorised to use them, whether packaging and product branding have been
approved, and whether purchase contracts deal clearly with counterfeit liability and
indemnities.
It also means tightening document review before shipment. Commercial invoices,
product descriptions, packaging proofs, brand authorisations and supporting
agreements should align. A mismatch between what was ordered, what was
approved and what actually ships is exactly the kind of gap that creates border
exposure. Businesses importing branded goods, accessories, spare parts, consumer
goods or packaged retail lines should treat this as a live compliance issue, not just
an IP issue for lawyers to worry about later.
The commercial takeaway
Counterfeit exposure is moving closer to the mainstream of importer compliance.
The proposed 2026 bill signals that Australia is willing to sharpen the consequences
for goods bearing false trade marks, and it does so in a way that is operationally
relevant for ordinary importers, not just deliberate counterfeit traders. The broader
direction is clear: authenticity risk is becoming a customs risk, a cost risk and a
governance risk.
At Australian Customs Brokers, our view is that importers should not wait for a
seizure event to test whether their controls are good enough. The better approach is
to review exposure before goods ship, pressure-test supplier documentation, and
make sure the customs entry process is supported by a defensible compliance trail.
In an environment where counterfeit scrutiny may soon carry both border and
penalty consequences, “close enough” is not a strong strategy.
Useful Links
Australian Parliament Bills Digest:
https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2526/26bd057
Australian Border Force – Intellectual Property Imports: https://www.abf.gov.au/importing-
exporting-and-manufacturing/importing/how-to-import/types-of-imports/intellectual-property
Australian Border Force – Infringement Notice Scheme Guide:
https://www.abf.gov.au/trade-and-goods-compliance-subsite/files/infringement-notice-scheme-
guide.pdf