US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

2002-2003-2004

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

US Free Trade Agreement Implementation Bill 2004

No. , 2004

(Trade)

A Bill for an Act to implement the Australia-United States Free Trade Agreement, and for other purposes

Part 11—Limitation on remedies available against carriage service providers 157

A Bill for an Act to implement the Australia-United States Free Trade Agreement, and for other purposes

1 Short title

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.
2. Schedule 1	The later of: (a) 1 January 2005; and (b) the day on which the Australia-United States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. The Minister for Trade must announce by notice in the Gazette the day on which the Agreement comes into force for Australia.
3. Schedule 2, Parts 1 and 2	At the same time as the provisions covered by table item 2.
4. Schedule 2, Part 3	The later of: (a) immediately after the commencement of Parts 1 and 2 of Schedule 2 to this Act; and (b) immediately after the commencement of item 1 of Schedule 1 to the Agricultural and Veterinary Chemicals Legislation Amendment (Name Change) Act 2004. However, the provision(s) do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur.
5. Schedules 3 to 5	At the same time as the provisions covered by table item 2.
6. Schedule 6	The day on which this Act receives the Royal Assent.
7. Schedule 7	At the same time as the provisions covered by table item 2.
8. Schedule 8	The day on which this Act receives the Royal Assent.
9. Schedule 9, Part 1	1 January 2005.	1 January 2005
10. Schedule 9, Part 2	The day on which the WIPO Performances and Phonograms Treaty, done at Geneva on 26 December 1996, comes into force for Australia. The Minister administering the Copyright Act 1968 must announce by notice in the Gazette the day on which the Treaty comes into force for Australia.
11. Schedule 9, Parts 3 and 4	The earlier of the following times: (a) the time at which the provisions covered by table item 2 commence; (b) the time at which the provisions covered by table item 10 commence. (Parts 3 and 4 of Schedule 9 still commence even if one of the times mentioned in paragraph (a) or (b) does not occur.)
12. Schedule 9, items 107 to 112	1 January 2005.	1 January 2005
13. Schedule 9, item 113	The day on which this Act receives the Royal Assent.
14. Schedule 9, items 114 to 119	1 January 2005.	1 January 2005
15. Schedule 9, item 120	At the same time as the provisions covered by table item 2. However, if that time is the same time as the time at which the provisions covered by table item 12 commence, then item 120 commences immediately after those provisions commence.
16. Schedule 9, item 121	At the same time as the provisions covered by table item 2.
17. Schedule 9, item 122	At the same time as the provisions covered by table item 2. However, if that time is the same time as the time at which the provisions covered by table item 12 commence, then item 122 commences immediately after those provisions commence.
18. Schedule 9, items 123 to 166	At the same time as the provisions covered by table item 2.
19. Schedule 9, item 167	The day on which this Act receives the Royal Assent.
20. Schedule 9, items 168 to 192	At the same time as the provisions covered by table item 2.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Customs amendments

Part 1—US originating goods

Customs Act 1901

1 After Division 1B of Part VIII

Insert:

Division 1C—US originating goods

Subdivision A—Preliminary

153Y Simplified outline

The following is a simplified outline of this Division:

• This Division defines US originating goods. Preferential rates of customs duty under the Customs Tariff Act 1995 apply to US originating goods that are imported into Australia.

• Subdivision B provides that goods are US originating goods if they are wholly obtained or produced entirely in the US.

• Subdivision C provides that goods are US originating goods if they are produced entirely in the US, or in the US and Australia, exclusively from originating materials.

• Subdivision D sets out when goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from non-originating materials and originating materials, are US originating goods.

• Subdivision E sets out when goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from non-originating materials and originating materials, are US originating goods.

• Subdivision F sets out when accessories, spare parts or tools (imported with other goods) are US originating goods.

• Subdivision G deals with how the packaging materials or containers in which goods are packaged affects whether the goods are US originating goods.

• Subdivision H deals with how the consignment of goods affects whether the goods are US originating goods.

153YA Interpretation

Definitions

(1) In this Division:

Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.

Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.

Australian originating goods means goods that are Australian originating goods under a law of the US that implements the Agreement.

Convention means the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983.

Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 30. In 2004 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world-wide web site.

customs value, in relation to goods, has the meaning given by section 159.

fuel has its ordinary meaning.

Harmonized System means the Harmonized Commodity Description and Coding System (as in force from time to time) that is established by or under the Convention.

Harmonized US Tariff Schedule means the Harmonized Tariff Schedule of the United States (as in force from time to time).

indirect materials means:

(a) goods used in the production, testing or inspection of other goods, but that are not physically incorporated in the other goods; or

(b) goods used in the operation or maintenance of buildings or equipment associated with the production of other goods;

including:

(d) tools, dies and moulds; and

(e) lubricants, greases, compounding materials and other similar goods; and

(f) gloves, glasses, footwear, clothing, safety equipment and supplies for any of these things; and

(g) catalysts and solvents.

Interpretation Rules means the General Rules for the Interpretation of the Harmonized System provided for by the Convention.

national of the US has the meaning given by Annex 1-A to Chapter 1 of the Agreement.

non-originating materials means goods that are not originating materials.

originating materials means:

(a) goods that are used in the production of other goods and that are US originating goods; or

(b) goods that are used in the production of other goods and that are Australian originating goods; or

Example: This example illustrates goods produced from originating materials and non-originating materials.

Pork sausages are produced in the US from US cereals, Hungarian frozen pork meat and Brazilian spices.

The US cereals are originating materials since they are goods used in the production of other goods (the sausages) and they are US originating goods under Subdivision B.

The Hungarian frozen pork meat and Brazilian spices are non-originating materials since they are produced in countries other than the US and Australia.

produce means grow, raise, mine, harvest, fish, trap, hunt, manufacture, process, assemble or disassemble. Producer and production have corresponding meanings.

recovered goods means goods in the form of individual parts that:

(a) have resulted from the complete disassembly of goods which have passed their useful life or which are no longer useable due to defects; and

(b) have been cleaned, inspected or tested (as necessary) to bring them into reliable working condition.

remanufactured goods means goods that:

(a) are produced entirely in the US; and

(b) are classified to:

(i) Chapter 84, 85 or 87 (other than heading 8418, 8516 or 8701 to 8706), or to heading 9026, 9031 or 9032 of Chapter 90, of the Harmonized System; or

(ii) any other tariff classification prescribed by the regulations; and

(d) have a similar useful life, and meet the same performance standards, as new goods:

(i) that are so classified; and

(ii) that are not comprised of any recovered goods; and

(e) have a producer’s warranty similar to such new goods.

Schedule 1 tariff table means the table in Schedule 1 to the Customs (Australia-United States Free Trade Agreement) Regulations 2004.

Schedule 2 tariff table means the table in Schedule 2 to the Customs (Australia-United States Free Trade Agreement) Regulations 2004.

US means the United States of America.

used means used or consumed in the production of goods.

US originating goods means goods that, under this Division, are US originating goods.

Value of goods

(2) The value of goods for the purposes of this Division is to be worked out in accordance with the regulations. The regulations may prescribe different valuation rules for different kinds of goods.

Tariff classifications

(3) In specifying tariff classifications for the purposes of this Division, the regulations may refer to the following:

(a) the Harmonized System;

(b) the Harmonized US Tariff Schedule.

(4) Subsection 4(3A) does not apply for the purposes of this Division.

Regulations

(5) For the purposes of this Division, the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time.

Subdivision B—Goods wholly obtained or produced entirely in the US

153YB Goods wholly obtained or produced entirely in the US

(1) Goods are US originating goods if they are wholly obtained or produced entirely in the US.

(2) Goods are wholly obtained or produced entirely in the US if, and only if, the goods are:

(a) minerals extracted in the US; or

(b) plants grown in the US, or in the US and Australia, or products obtained from such plants; or

(d) goods obtained from hunting, trapping, fishing or aquaculture conducted in the US; or

(e) fish, shellfish or other marine life taken from the sea by ships registered or recorded in the US and flying the flag of the US; or

(f) goods produced exclusively from goods referred to in paragraph (e) on board factory ships registered or recorded in the US and flying the flag of the US; or

(g) goods taken from the seabed, or beneath the seabed, outside the territorial waters of the US by the US or a national of the US, but only if the US has the right to exploit that part of the seabed; or

(h) goods taken from outer space by the US or a national of the US; or

(i) waste and scrap that:

(i) has been derived from production operations in the US; or

(ii) has been derived from used goods that are collected in the US and that are fit only for the recovery of raw materials; or

(j) recovered goods derived in the US and used in the US in the production of remanufactured goods; or

(k) goods produced entirely in the US exclusively from goods referred to in paragraphs (a) to (i) or from their derivatives.

Subdivision C—Goods produced entirely in the US or in the US and Australia exclusively from originating materials

153YC Goods produced entirely in the US or in the US and Australia exclusively from originating materials

Goods are US originating goods if they are produced entirely in the US, or entirely in the US and Australia, exclusively from originating materials.

Subdivision D—Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials

153YD Simplified outline

The following is a simplified outline of this Subdivision:

• This Subdivision sets out when goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from non-originating materials and originating materials, are US originating goods.

• The goods may be US originating goods under section 153YE (which applies to all goods except clothing and textiles).

• The goods may also be US originating goods under section 153YF (which applies only to goods that are chemicals, plastics or rubber).

153YE Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials

(1) Goods are US originating goods if:

(a) a tariff classification (the final classification) that is specified in column 2 of the Schedule 1 tariff table applies to the goods; and

(b) they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

First requirement

(2) Subject to subsection (3), the first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods. The first requirement is that:

(a) each of the non-originating materials satisfies the transformation test (see subsection (8)); or

(b) the following are satisfied:

(i) the total value of all the non-originating materials does not exceed 10% of the customs value of the goods;

(ii) if one or more of the non-originating materials are prescribed for the purposes of this paragraph—each of those non-originating materials satisfies the transformation test (see subsection (8)).

Note 1: Paragraph (2)(b) relates to Article 5.2 (De Minimis) of the Agreement.

Note 2: The value of the non-originating materials is to be worked out in accordance with the regulations: see subsection 153YA(2).

(3) However, the first requirement does not apply if:

(a) an alternative requirement to the change in tariff classification is also specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; and

(b) that alternative requirement is satisfied.

Second requirement

(4) Subject to subsection (5), the second requirement applies only if a regional value content requirement is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods. The second requirement is that the goods satisfy that regional value content requirement.

(5) However, the second requirement does not apply if:

(a) an alternative requirement to the regional value content requirement is also specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; and

(b) that alternative requirement is satisfied.

(6) The regulations may prescribe different regional value content requirements for different kinds of goods.

Third requirement

(7) The third requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 1 tariff table opposite the final classification for the goods.

Transformation test

(8) A non-originating material satisfies the transformation test if:

(a) it satisfies the change in tariff classification that is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; or

(b) it does not satisfy the change in tariff classification mentioned in paragraph (a), but it was produced entirely in the US, or entirely in the US and Australia, from other non-originating materials, and each of those materials satisfies the transformation test (including by one or more applications of this subsection).

Note 1: Paragraph (8)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement.

Note 2: Subsection (8) operates in a recursive manner: a non-originating material may satisfy the transformation test in its own right, or it may satisfy it because each non-originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non-originating material used to produce the material does so), and so on.

153YF Goods that are chemicals, plastics or rubber

Goods are US originating goods if:

(a) they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

(b) they are goods that are classified to any of Chapters 28 to 40 of the Harmonized System; and

(c) a tariff classification (the final classification) that is specified in column 2 of the Schedule 1 tariff table applies to the goods; and

(d) before the tariff classifications in column 2 of that table in relation to Chapter 28 or 39 of the Harmonized System, the regulations specify particular rules in column 3 of that table; and

(e) those rules apply in relation to the final classification for the goods; and

(f) the goods satisfy those rules.

Subdivision E—Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non-originating materials

153YG Simplified outline

The following is a simplified outline of this Subdivision:

• This Subdivision sets out when goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from non-originating materials and originating materials, are US originating goods.

• The goods may be US originating goods under section 153YH (which applies to all clothing and textiles).

• The goods may also be US originating goods under section 153YI (which applies only to clothing and textiles classified to Chapter 62 of the Harmonized System).

153YH Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non-originating materials

(1) Subject to subsection (5), goods are US originating goods if:

(a) a tariff classification (the final classification) that is specified in column 2 of the Schedule 2 tariff table applies to the goods; and

(b) they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

Note: Subsection (5) sets out a qualification for goods put up in a set for retail sale.

First requirement

(2) The first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 2 tariff table opposite the final classification for the goods. The first requirement is that:

(a) subject to subsection (3), each of the non-originating materials satisfies the transformation test (see subsection (7)); or

(b) the following are satisfied:

(i) the total weight of all the non-originating materials does not exceed 7% of the total weight of the goods;

Note: Paragraph (2)(b) relates to paragraphs 6 and 7 (De Minimis) of Article 4.2 of the Agreement.

(3) In relation to goods classified to Chapter 61, 62 or 63 of the Harmonized System, paragraph (2)(a) is to be applied by applying:

(a) for goods covered by Chapter 61 of the Harmonized System—Chapter Rule 2 for Chapter 61 that is set out in the Schedule 2 tariff table; and

(b) for goods covered by Chapter 62 of the Harmonized System—Chapter Rule 3 for Chapter 62 that is set out in the Schedule 2 tariff table; and

(c) for goods covered by Chapter 63 of the Harmonized System—Chapter Rule 1 for Chapter 63 that is set out in the Schedule 2 tariff table.

Second requirement

(4) The second requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 2 tariff table opposite the final classification for the goods.

Goods put up in a set for retail sale

(5) However, if:

(a) the goods are put up in a set for retail sale; and

(b) the goods are classified in accordance with Rule 3 of the Interpretation Rules;

the goods are US originating goods only if:

(d) the total value of the goods in the set that are not US originating goods under this Division does not exceed 10% of the customs value of the set of goods.

Note: The value of the goods in the set is to be worked out in accordance with the regulations: see subsection 153YA(2).

(6) In applying paragraph (5)(c), assume the goods were not part of a set.

Example: A skirt and a belt are put up in a set for retail sale. The skirt and the belt have been classified under Rule 3 of the Interpretation Rules according to the tariff classification applicable to skirts.

The effect of subsection (6) is that the origin of the belt must now be determined according to the tariff classification applicable to belts.

Transformation test

(7) A non-originating material satisfies the transformation test if:

(a) it satisfies the change in tariff classification that is specified in column 3 of the Schedule 2 tariff table opposite the final classification for the goods; or

Note 1: Paragraph (7)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement.

Note 2: Subsection (7) operates in a recursive manner: a non-originating material may satisfy the transformation test in its own right, or it may satisfy it because each non-originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non-originating material used to produce the material does so), and so on.

153YI Goods that are clothing and textiles classified to Chapter 62 of the Harmonized System

Goods are US originating goods if:

(a) they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

(b) they are goods that are classified to Chapter 62 of the Harmonized System; and

(i) in any case—the goods satisfy Chapter Rule 2 for Chapter 62 that is set out in the Schedule 2 tariff table; or

(ii) in the case of goods that are classified to subheading 6205.20 or 6205.30 of Chapter 62 of the Harmonized System—the goods satisfy the subheading rule for that subheading that is set out in the Schedule 2 tariff table.

Subdivision F—Other US originating goods

153YJ Standard accessories, spare parts and tools

(1) If goods (the underlying goods) are imported into Australia with standard accessories, standard spare parts or standard tools, then the accessories, spare parts or tools are US originating goods if:

(a) the underlying goods are US originating goods; and

(b) the accessories, spare parts or tools are not invoiced separately from the underlying goods; and

(c) the quantities and value of the accessories, spare parts or tools are the usual quantities and value in relation to the underlying goods.

(2) In working out if the underlying goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the accessories, spare parts or tools to be taken into account for the purposes of that requirement.

Note: The value of the accessories, spare parts or tools is to be worked out in accordance with the regulations: see subsection 153YA(2).

Subdivision G—Packaging materials and containers

153YK Packaging materials and containers

(1) If:

(a) goods are packaged for retail sale in packaging material or a container; and

(b) the packaging material or container is classified with the goods in accordance with Rule 5 of the Interpretation Rules;

then the packaging material or container is to be disregarded for the purposes of this Division (with 1 exception).

(2) The exception is that in working out if the goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the packaging material or container to be taken into account for the purposes of that requirement.

Note: The value of the packaging material or container is to be worked out in accordance with the regulations: see subsection 153YA(2).

Subdivision H—Consignment

153YL Consignment

(1) Goods are not US originating goods under this Division if:

(a) they are transported through a country or place other than the US or Australia; and

(b) they undergo any process of production in that country or place (other than unloading, reloading, any operation to preserve them in good condition or any operation that is necessary for them to be transported to Australia).

(2) This section applies despite any other provision of this Division.

Part 2—Verification powers

Customs Act 1901

2 At the end of subsection 4C(1)

Add “or is a verification officer for the purposes of Subdivision JA of Division 1 of Part XII”.

3 Paragraph 4C(2)(b)

Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.

4 Subsection 4C(3)

Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.

5 Subsection 4C(5)

Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.

6 After Division 4A of Part VI

Insert:

Division 4B—Exportation of textile and clothing goods to the US

126AE Authorised officer may request records or ask questions

(1) If textile and clothing goods are exported to the US, an authorised officer may request a person who:

(a) is the exporter or producer of the goods; or

(b) is involved in the transportation of the goods from Australia to the US;

to produce particular records, or to answer questions put by the officer, in relation to the export, production or transportation of the goods.

(2) The person is not obliged to comply with the request.

Disclosing records or answers to US

(3) An authorised officer may disclose any records so produced, or disclose any answers to such questions, to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.

Definitions

(4) In this section:

Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.

Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.

Harmonized System has the same meaning as in section 153YA.

textile and clothing goods means goods that are classified to:

(a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or

(b) any of Chapters 50 to 63 of the Harmonized System; or

(d) subheading 9409.90 of Chapter 94 of the Harmonized System.

US means the United States of America.

US customs official means a person representing the customs administration of the US.

7 Subdivision J of Division 1 of Part XII (heading)

Repeal the heading, substitute:

Subdivision J—General powers to monitor and audit

8 After Subdivision J of Division 1 of Part XII

Insert:

Subdivision JA—Powers to monitor and audit—Australia-United States Free Trade Agreement

214BAA Simplified outline

The following is a simplified outline of this Subdivision:

• This Subdivision allows certain officers (verification officers) to enter premises, and to exercise certain powers (AUSFTA verification powers) in or on the premises, for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

• However, verification officers may only enter premises under this Subdivision with the occupier’s consent.

• In entering premises and exercising AUSFTA verification powers, verification officers may be accompanied by US customs officials, but only with the occupier’s consent.

214BAB Definitions

In this Subdivision:

Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.

Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.

AUSFTA verification powers has the meaning given by section 214BAC.

Harmonized System has the same meaning as in section 153YA.

occupier of premises includes a person who is apparently in charge of the premises.

textile and clothing goods means goods that are classified to:

(a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or

(b) any of Chapters 50 to 63 of the Harmonized System; or

(d) subheading 9409.90 of Chapter 94 of the Harmonized System.

US means the United States of America.

US customs official means a person representing the customs administration of the US.

verification officer means a person authorised under section 214BAD to enter premises and to exercise AUSFTA verification powers.

214BAC AUSFTA verification powers

(1) For the purposes of this Subdivision, the following are the AUSFTA verification powers:

(a) the power to search premises;

(b) the power to take photographs (including a video recording), or make sketches, of premises or anything at premises;

(c) the power to inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of, anything in or on premises;

(d) the power to inspect any document or record in or on premises;

(e) the power to take extracts from, or make copies of, any document or record in or on premises;

(f) the power to take into or onto premises any equipment or material reasonably necessary for the purpose of exercising a power under paragraph (a), (b), (c), (d) or (e);

(g) the power to test and operate record-keeping, accounting, computing or other operating systems of any kind that are at premises and may be used to generate or record information or documents of a kind that may be communicated to Customs;

(h) the powers in subsections (2) and (3).

Operation of equipment

(2) For the purposes of this Subdivision, the AUSFTA verification powers include the power to operate equipment at premises to see whether:

(a) the equipment; or

(b) a disk, tape or other storage device that:

(i) is at the premises; and

(ii) can be used with the equipment or is associated with it;

contains information that is relevant to the verification of information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

Removing documents and disks etc.

(3) For the purposes of this Subdivision, the AUSFTA verification powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

(a) the power to operate equipment or other facilities at the premises to put the information in documentary form and remove the documents so produced;

(b) the power to operate equipment or other facilities at the premises to transfer the information to a disk, tape or other storage device:

(i) that is brought to the premises for the exercise of the power; or

(ii) that is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises;

and to remove the disk, tape or other storage device from the premises.

214BAD Appointment of verification officers

(1) The CEO may, by writing, authorise an officer to enter premises, and to exercise AUSFTA verification powers in or on premises, for the purposes of this Subdivision.

Who may be authorised to be a verification officer

(2) The CEO must not do so unless the CEO is satisfied that the officer is suitably qualified, because of the officer’s abilities and experience, to exercise AUSFTA verification powers.

Form of authorisation

(3) An authorisation may apply:

(a) generally; or

(b) during a specified period; or

(d) during a specified period in or on specified premises.

AUSFTA verification powers to be used only as authorised

(4) This Subdivision does not allow:

(a) an officer who is authorised to enter premises and exercise AUSFTA verification powers during a specified period to enter the premises or exercise the powers at a time outside that period; or

(b) an officer who is authorised to enter specified premises and to exercise AUSFTA verification powers in or on the premises to enter other premises or to exercise the powers in or on the other premises.

214BAE Verification officers may enter premises and exercise AUSFTA verification powers with consent

(1) A verification officer may enter premises, and exercise AUSFTA verification powers in or on the premises, to the extent that it is reasonably necessary for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

Occupier’s consent required

(2) However, a verification officer must not enter premises under this section unless the occupier of the premises consents to the officer entering the premises and exercising AUSFTA verification powers in or on the premises.

(3) Before obtaining a consent under subsection (2), a verification officer must give to the occupier of the premises a written notice stating:

(a) that the officer wishes to enter the premises and exercise AUSFTA verification powers in or on the premises; and

(b) the period during which the officer wishes to exercise the powers; and

(4) Before obtaining a consent under subsection (2), a verification officer must tell the occupier of the premises that the occupier may refuse consent.

(5) An occupier of premises may express a consent to be limited to entry to the premises, and to the exercise of AUSFTA verification powers in or on the premises, during a particular period unless the occupier withdraws the consent before the end of that period.

(6) An occupier’s consent that is not so limited has effect in relation to any entry to the premises, and to any exercise of AUSFTA verification powers in or on the premises, until the occupier withdraws the consent.

Verification officer must leave premises if consent withdrawn

(7) A verification officer must leave the premises if the occupier withdraws the consent.

Consent to be voluntary

(8) A consent of a person does not have effect for the purposes of this section unless it is voluntary.

Consent, or withdrawal of consent, to be in writing

(9) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.

Notice setting out the occupier’s rights and obligations

(10) Before exercising AUSFTA verification powers in respect of premises, a verification officer must give to the occupier of the premises a written notice setting out the occupier’s rights and obligations under this Subdivision.

Production of identity card

(11) Before a verification officer enters premises or exercises any AUSFTA verification powers, he or she must produce his or her identity card to the occupier.

214BAF US customs officials may accompany verification officers

Occupier’s consent required

(1) In entering premises and exercising AUSFTA verification powers, a verification officer may be accompanied by one or more US customs officials, but only if the officer obtains the consent of the occupier of the premises to those officials accompanying the officer.

(2) Before obtaining such a consent, a verification officer must tell the occupier of the premises that the occupier may refuse consent.

US customs officials must leave premises if consent withdrawn

(3) The US customs officials must leave the premises if the occupier withdraws the consent.

Consent to be voluntary

(4) A consent of a person does not have effect for the purposes of this section unless it is voluntary.

Consent, or withdrawal of consent, to be in writing

(5) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.

214BAG Availability of assistance in exercising AUSFTA verification powers

In entering premises and exercising AUSFTA verification powers, a verification officer may obtain such assistance as is necessary and reasonable in the circumstances.

214BAH Verification officer may ask questions

(1) If a verification officer is in or on premises that he or she entered under this Subdivision, the officer may request the occupier to answer any questions put by the officer.

(2) The occupier is not obliged to comply with the request.

214BAI Verification officer may ask for assistance

(1) If a verification officer is in or on premises that he or she entered under this Subdivision, then, while the officer is entitled to remain in or on the premises, the officer may request the occupier to provide reasonable assistance to the officer for the purpose of the officer’s exercise of AUSFTA verification powers in or on the premises.

(2) The occupier is not obliged to comply with the request.

214BAJ Verification officer may disclose information to US

A verification officer may disclose any information obtained in exercising AUSFTA verification powers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.

214BAK Operation of electronic equipment at premises

A person may operate electronic equipment at premises in order to exercise a power under this Subdivision only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

214BAL Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in section 214BAC:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or addition of other data.

Schedule 2—Agricultural and veterinary chemicals amendments

Part 1—Limits on use of information

Agricultural and Veterinary Chemicals Code Act 1994

1 After Division 4 of Part 2 of the Schedule

Insert:

Division 4A—Limits on use of information

Subdivision A—Preliminary

34B Explanation of Division

(1) This Division limits for a period the use the NRA can make of information given to it:

(a) in connection with an application under section 10 or 27 relating to:

(i) approval of an active constituent for a chemical product; or

(ii) registration of a chemical product; or

(iii) approval of a label for a container for a chemical product; or

(b) under section 161 in connection with a registered chemical product.

(2) During the period, the NRA cannot use the information for granting another application, or for a reconsideration of an approval or registration, unless:

(a) the NRA is given a written statement made by a person who can authorise the use of the information consenting to the use; or

(b) certain other conditions are met.

(3) The object of limiting use of the information in this way is to encourage innovation by making it easier for a person who made an investment in finding out the information to get a return on that investment.

Subdivision B—Limits on use of information

34C NRA must not use some information during some periods for some purposes

(1) During the period described in an item of the table, the NRA must not use information described in the item for a purpose described in the item.

Limits on use of information
	The NRA must not use this information:	During this period:	For this purpose:
1	Information that the applicant or an approved person gives the NRA: (a) in connection with an application under section 10 or 27; and (b) before the NRA makes a preliminary assessment under section 11A or 28A of the application	The period: (a) starting when the information is given; and (b) ending when the NRA makes the preliminary assessment	Making a decision under section 14, 29 or 34 (except a decision on the application)
2	Information that the applicant or an approved person gives the NRA: (a) in connection with an application under section 10 or 27; and (b) as required by the NRA or section 160A	The period: (a) starting when the NRA makes a preliminary assessment under section 11A or 28A of the application; and (b) ending when the NRA treats the application as having been withdrawn or grants or refuses the application	Making a decision under section 14, 29 or 34 (except a decision on the application)
3	Information that: (a) was given to the NRA by the applicant or an approved person in connection with an application under section 10 or 27; and (b) was given as required by the NRA or section 160A; and (c) was relied on by the NRA to grant the application	The relevant period described in section 34F	Making a decision under section 14, 29 or 34
4	Information that the interested person for a registered chemical product gives the NRA under section 161 in connection with the product	The period: (a) starting when the person gives the NRA the information; and (b) ending 5 years later if the product is an agricultural chemical product or 3 years later if the product is a veterinary chemical product	Making a decision under section 14, 29 or 34

Note 1: Section 34D sets out exceptions to this subsection.

Note 2: Section 161 may require an interested person for an approved active constituent to give the NRA information in connection with the constituent, even though this table does not deal with that requirement.

(2) This section applies only to information given to the NRA:

(a) in connection with an application made after the commencement of this section; or

(b) under section 161 in connection with a chemical product that was registered as a result of an application made after the commencement of this section.

(3) The use of information in contravention of subsection (1) for making a decision does not affect the validity of the decision.

(4) An action or proceeding does not lie against any of the following for any loss directly or indirectly sustained because of the use of information in contravention of subsection (1):

(a) the Commonwealth;

(b) the NRA;

(i) a director of the NRA; or

(ii) the Chief Executive Officer of the NRA; or

(iii) a delegate of the NRA; or

(iv) a member of the staff of the NRA.

Subdivision C—Exceptions to limits on use of information

34D Exceptions

(1) Section 34C does not prevent the NRA from using information for making a decision:

(a) under section 14 or 29 about an application; or

(b) under section 34 about a reconsideration of an approval or registration;

if a condition in subsection (2), (3), (4), (5) or (6) of this section is met.

Evidence of consent for use

(2) One condition is that the applicant, an approved person or the interested person for the approval or registration gives the NRA a written statement by the authorising party of that party’s consent to the NRA using the information for making the decision. This condition is met even if the authorising party:

(a) later states that it has not consented; or

(b) withdraws the consent (whether before or after the NRA is given the statement of consent).

Note: Chapter 7 of the Criminal Code creates offences relating to false and misleading statements and forgery.

Use in the public interest

(3) Another condition is that the NRA is satisfied, having regard to the criteria (if any) prescribed by the regulations, that the use of the information is in the public interest.

Note: Section 34E sets out other rules that are relevant to the exception based on this condition.

Information does not favour the applicant or interested person

(4) Another condition is that:

(a) the decision relates to:

(i) a proposed or existing approval of an active constituent for a proposed or existing chemical product; or

(ii) a proposed or existing registration of a proposed or existing chemical product; and

(b) the information meets a condition in paragraph 160A(4)(b) or (c) or 161(2)(b) or (c) (which are about showing that use or dealing with the product may have adverse effects or that the product may be ineffective), whether or not the information was given to the NRA under section 160A or 161.

Identical information whose use is not limited

(5) Another condition is that the NRA is satisfied that there is identical information, or information to the same effect, whose use is not prevented by section 14B or 34C or Part 3.

Information given to NRA in connection with certain applications

(6) Another condition is that the application mentioned in subsection 34C(1) was one of the following:

(a) an application for approval, as an active constituent for a chemical product, of a substance that was a previously endorsed active constituent on the commencement of this Division;

(b) an application for the variation of the relevant particulars or conditions of the approval of an active constituent for a chemical product;

(c) an application for the registration of a companion animal product each active constituent for which was a previously endorsed active constituent at the time of the preliminary assessment of the application under section 11A;

(d) an application for variation of the relevant particulars or conditions of the registration of a companion animal product;

(e) an application for the approval of a label for a container for a companion animal product each active constituent of which was a previously endorsed active constituent at the time of the preliminary assessment of the application under section 11A;

(f) an application for variation of the relevant particulars or conditions of the approval of a label for a container for a companion animal product.

34E Further rules about public interest exception

(1) This section applies if the NRA is satisfied under subsection 34D(3) that it is in the public interest to use information that section 34C would otherwise prohibit the NRA from using for making a decision:

(a) under section 14 or 29 about an application; or

(b) under section 34 about a reconsideration of an approval or registration.

(2) As soon as practicable after becoming satisfied, the NRA must give written notice of its satisfaction to:

(a) the applicant, an approved person or the interested person for the approval or registration; and

(b) the person whom the NRA believes is the authorising party for the information.

(3) Section 168 provides for additional matters to be included in the notice.

(4) The NRA must not make the decision using the information before the end of 28 days after the day on which the notice is given.

(5) However, subsections (3) and (4) do not apply if:

(a) the NRA believes it is necessary to make the decision before the end of 28 days after the notice is given, to prevent imminent risk to public health or occupational health or safety; and

(b) states that belief in the notice.

Subdivision D—Period of limit on use of information

34F Period of limit on future use of information relied on in granting application

(1) Subsection 34C(1) prohibits the NRA from using, during the period described in an item of the following table, information that:

(a) was given to the NRA by the applicant or an approved person in connection with an application described in the item; and

(b) was given as required by the NRA or section 160A; and

The period starts when the application was granted.

Period for which the NRA must not use the information
	Application	Period
1	Application made under section 10 for approval of an active constituent (for a proposed or existing chemical product) that was not a previously endorsed active constituent on the commencement of this Division	8 years
2	Application made under section 10 for: (a) registration of a chemical product at least one of whose active constituents was not a previously endorsed active constituent when the application was acknowledged; or (b) approval of a label for a container for a chemical product at least one of whose active constituents was not a previously endorsed active constituent when the application was acknowledged	8 years
3	Application (except one covered by item 2) made under section 10 for: (a) registration of an agricultural chemical product; or (b) approval of a label for a container for an agricultural chemical product	5 years
4	Application (except one covered by item 2) made under section 10 for: (a) registration of a veterinary chemical product; or (b) approval of a label for a container for a veterinary chemical product	3 years
5	Application made under section 27 for variation of the relevant particulars or conditions of: (a) the registration of an agricultural chemical product; or (b) the approval of a label for a container for an agricultural chemical product	5 years
6	Application made under section 27 for variation of the relevant particulars or conditions of: (a) the registration of a veterinary chemical product; or (b) the approval of a label for a container for a veterinary chemical product	3 years

Note 1: This section has effect for the purposes of item 3 of the table in subsection 34C(1) (and not for any of the other items in that table).

Note 2: This section is not relevant to information if section 34D provides an exception to the prohibition in subsection 34C(1) on the NRA using the information.

Extension of 8-year limits

(2) The period mentioned in item 1 or 2 of the table in subsection (1) in relation to:

(a) an application for an approval of an active constituent (a key constituent); or

(b) an application for registration of a chemical product containing an active constituent (also a key constituent) that had not been approved when the application was acknowledged; or

(c) an application for approval of a label for a container for a chemical product containing an active constituent (also a key constituent) that had not been approved when the application was acknowledged;

is extended by 1 year for each 5 distinct uses that meet the requirements in subsections (3), (4) and (5).

(3) The first requirement is that the uses are uses of a chemical product (an extension product) for which the following conditions are met:

(a) the key constituent is an active constituent for the product;

(b) the product was registered as a result of an application that:

(i) was made by the applicant mentioned in subsection (1); and

(ii) was acknowledged before the approval of the key constituent.

(4) The second requirement is that each of the uses is included in an approved label for a container for an extension product as a result of an application that:

(a) is for:

(i) the approval of the label; or

(ii) the variation of the relevant particulars or conditions of approval of the label; and

(b) was made by the applicant mentioned in subsection (1) or by the interested person in relation to the approval of the key constituent; and

(c) was acknowledged before the end of 6 years after the date of the approval of the key constituent as a result of an application by the applicant mentioned in subsection (1).

(5) The third requirement is that all 5 of the uses are prescribed by the regulations at the latest time an application described in subsection (4) is granted.

(6) However, the period mentioned in item 1 or 2 of the table in subsection (1) cannot be extended so that it exceeds 11 years.

Subdivision E—Ancillary provisions

34G Identifying information relied on in advice NRA relied on

(1) This section has effect if:

(a) the NRA made a decision under subsection 14(1) or 29(1) to grant an application made after the commencement of this section; and

(b) in making the decision, the NRA relied on advice given by a person, body or Government the NRA consulted under section 8 or 8A of the Agricultural and Veterinary Chemicals (Administration) Act 1992.

(2) The NRA must cause to be published a summary of the advice.

(3) The summary must:

(a) identify the information that the person, body or Government relied on in giving the advice; and

(b) include the matters (if any) prescribed by the regulations.

Part 2—Provisions relating to limits on use of information

Agricultural and Veterinary Chemicals (Administration) Act 1992

2 Paragraph 69EX(a)

After “Part”, insert “or after the commencement of Division 4A of Part 2 of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994”.

Agricultural and Veterinary Chemicals Code Act 1994

3 Section 3 of the Schedule

Insert:

acknowledge an application made under section 10 or 27 has the meaning given in the table:

Acknowledgment of an application
	If:	The application is acknowledged when:
1	The NRA gives notice under subsection 11A(2) (applying of its own force or because of section 28A) that the application has passed a preliminary assessment and will be given a full evaluation in due course	The NRA gives the notice
2	The NRA is satisfied that defects in the application have been rectified as required by a notice given under paragraph 11A(3)(a) (applying of its own force or because of section 28A)	The NRA becomes satisfied
3	The NRA starts to consider the application after deferring the consideration under subparagraph 11A(3)(b)(i) (applying of its own force or because of section 28A)	The NRA starts to consider the application

4 Section 3 of the Schedule

Insert:

authorising party for information means a person who would be entitled to bring an action for breach of an obligation of confidence if the information were disclosed by someone else to the NRA for the purposes of this Code without the person’s permission.

5 Section 3 of the Schedule

Insert:

companion animal product means a veterinary chemical product solely for administration or application to animals that:

(a) are not food-producing species; and

(b) are not prescribed by the regulations.

6 Section 3 of the Schedule

Insert:

previously endorsed active constituent for a chemical product at a particular time means a substance that:

(a) before that time, had been approved or registered (however described) under a law of the Commonwealth or a State or Territory as an active constituent for a chemical product; or

(b) was an active constituent for a chemical product that, before that time, had been approved or registered (however described) under a law of the Commonwealth or a State or Territory as a chemical product;

whether or not the approval or registration was a result of an application by a particular person.

7 After section 11A of the Schedule

Insert:

11B NRA to publish summary of application

(1) As soon as practicable after an application is acknowledged, the NRA must cause to be published a summary of the application.

(2) The summary must include the details relating to the application that are prescribed by the regulations (if any).

8 After section 14A of the Schedule

Insert:

14B NRA not to use information for registration of new agricultural chemical product to approve a similar product after disclosure

(1) This section applies if:

(a) information was given to the NRA in connection with an application made after the commencement of this section for registration of an agricultural chemical product (the first product) containing an active constituent that was not a previously endorsed active constituent at the time of registration of the first product; and

(b) the information related to the first product or the active constituent and a matter that:

(i) is described in paragraph 14(3)(e) (except subparagraph 14(3)(e)(iv)) or paragraph 14(3)(f); or

(ii) is prescribed by the regulations; and

(i) by the Commonwealth, a State or a Territory; or

(ii) by an authority of the Commonwealth, a State or a Territory (including the NRA); or

(iii) by anyone acting on behalf of the Commonwealth, a State, a Territory or an authority of the Commonwealth, a State or a Territory; and

(d) the information was not publicly available before the disclosure; and

(e) as a result of the disclosure, the interested person, or an approved person, for an application for registration of an agricultural chemical product (the second product) that is the same as, or similar to, the first product, seeks to have the NRA use the information in granting the application.

(2) For 10 years after the first day on which the first product was registered, the NRA must not use the information to grant the application for registration of the second product if:

(a) the registration of the second product would be commercially unfair; and

(b) the authorising party for the information does not consent to the use.

(3) The use of information in contravention of subsection (2) for granting the application for registration of the second product does not affect the validity of the grant or of the registration of the second product.

(4) An action or proceeding does not lie against any of the following for any loss directly or indirectly sustained because of the use of information in contravention of subsection (2):

(a) the Commonwealth;

(b) the NRA;

(i) a director of the NRA; or

(ii) the Chief Executive Officer of the NRA; or

(iii) a delegate of the NRA; or

(iv) a member of the staff of the NRA.

(5) This section has effect in addition to Division 4A.

9 Subparagraph 15(1)(a)(i) of the Schedule

Repeal the subparagraph, substitute:

(i) the NRA also grants or has granted an application for approval of each active constituent for the product; and

10 After section 28 of the Schedule

Insert:

28A Preliminary assessment of application

Section 11A applies to an application lodged under section 28 and compliance with subsection 28(1) in the same way as it applies to an application lodged under section 11 and compliance with subsection 11(1).

28B NRA to publish summary of application

(1) As soon as practicable after an application is acknowledged, the NRA must cause to be published a summary of the application, unless satisfied that the variation applied for does not relate to use of or dealing with a proposed or existing chemical product.

(2) The summary must include the details relating to the application that are prescribed by the regulations (if any).

11 Subsection 58(1) of the Schedule

After “in”, insert “section 14B, Division 4A of Part 2 and”.

12 After paragraph 167(1)(b) of the Schedule

Insert:

(ba) a decision under section 28A that the application does not comply with subsection 28(1);

(bb) a decision under section 28A:

(i) to defer consideration of an application to vary the relevant particulars, or the conditions, of an approval or registration; or

(ii) to treat such an application as having been withdrawn; or

(iii) to reject such an application;

(bc) a decision under section 28A refusing to extend a period;

13 After paragraph 167(1)(e) of the Schedule

Insert:

(ea) a decision (the information decision) under subsection 34D(3) that the NRA is satisfied that it is in the public interest to use information that section 34C would otherwise prohibit the NRA from using for making a decision (the substantive decision):

(a) under section 14 or 29 about an application; or

(b) under section 34 about a reconsideration of an approval or registration;

14 After subsection 167(2) of the Schedule

Insert:

(2A) Despite paragraph (1)(ea), an application may not be made to the Administrative Appeals Tribunal for review of the information decision if the NRA stated in the notice of that decision given under section 34E that the NRA believed it was necessary to make the substantive decision before the end of 28 days after giving the notice, to prevent imminent risk to public health or occupational health or safety.

Part 3—Change of name from NRA to APVMA

Agricultural and Veterinary Chemicals Code Act 1994

15 Section 3 of the Schedule (definition of acknowledge)

Omit “NRA” (wherever occurring), substitute “APVMA”.

16 Section 3 of the Schedule (definition of authorising party)

Omit “NRA”, substitute “APVMA”.

17 Sections 11B and 14B of the Schedule

Omit “NRA” (wherever occurring), substitute “APVMA”.

Note: The headings to sections 11B and 14B of the Schedule are altered by omitting “NRA” and substituting “APVMA”.

18 Subparagraph 15(1)(a)(i) of the Schedule

Omit “NRA”, substitute “APVMA”.

19 Subsection 28B(1) of the Schedule

Omit “NRA”, substitute “APVMA”.

Note: The heading to section 28B of the Schedule is altered by omitting “NRA” and substituting “APVMA”.

20 Division 4A of Part 2 of the Schedule

Omit “NRA” (wherever occurring), substitute “APVMA”.

Note: The headings to sections 34C and 34G of the Schedule are altered by omitting “NRA” and substituting “APVMA”.

21 Section 167 of the Schedule

Omit “NRA” (wherever occurring), substitute “APVMA”.

Schedule 3—Australian geographical indications for wine amendments

Australian Wine and Brandy Corporation Act 1980

1 Subsection 4(1)

Insert:

Federal Court means the Federal Court of Australia.

2 Subsection 4(1)

Insert:

pending, in relation to an application for the registration of a trade mark under the Trade Marks Act 1995, has the meaning given in that Act.

3 Subsection 4(1)

Insert:

registered owner, in relation to a trade mark, means the person in whose name the trade mark is registered under the Trade Marks Act 1995.

4 Subsection 4(1)

Insert:

registered trade mark means a trade mark whose particulars are entered in the Register of Trade Marks under the Trade Marks Act 1995.

5 Subsection 4(1)

Insert:

Register of Trade Marks means the register kept under section 207 of the Trade Marks Act 1995.

6 Subsection 4(1)

Insert:

trade mark has the meaning given in the Trade Marks Act 1995.

7 Subsection 40P(1)

Repeal the subsection, substitute:

(1) The functions of the Committee are:

(a) to deal with applications for the determination of geographical indications for wine in relation to regions and localities in Australia (Australian GIs) in accordance with this Part; and

(b) to make determinations of Australian GIs in accordance with this Part; and

(d) any other functions conferred on the Committee under this Part.

8 Subsection 40P(2)

Omit “function”, substitute “functions”.

9 Before section 40Q in Division 4 of Part VIB

Insert:

Subdivision A—What this Division is about

40PA What this Division is about

(1) This Division deals with the determining of geographical indications (GIs) in relation to a region or locality in Australia.

Note: Geographical indications in relation to wine manufactured in an agreement country are not determined under this Division. They are determined in the agreement between Australia and the agreement country.

(2) Subdivisions B and C deal with the powers of the Committee and applications for the determination of GIs. Subdivision D deals with objections to the determination of a GI on the basis of pre-existing trade mark rights. GIs are determined under Subdivision E.

Subdivision B—Powers of Committee to determine geographical indications

10 After section 40Q

Insert:

40QA Committee must await decisions under Subdivision D

The Committee must not do a thing under Subdivision E in respect of a proposed GI unless the requirements of Subdivision D have been complied with.

Subdivision C—Applications for determinations of geographical indications

11 After section 40R

Insert:

Subdivision D—Objections to determination of geographical indications based on pre-existing trade mark rights

40RA Notice to be given of proposed geographical indication

(1) The Presiding Member of the Committee must cause a notice under subsection (2) to be published if:

(a) an application under section 40R has been made for the determination of a geographical indication (the proposed GI); or

(b) the Committee is considering determining a geographical indication (the proposed GI) on its own initiative under section 40Q; or

(c) after an application under section 40R has been made, the Committee is considering, under paragraph 40T(3)(b), determining a geographical indication (the proposed GI) that is different from the GI proposed in the application.

(2) The notice must:

(a) set out the proposed GI; and

(b) invite persons to make written objections to the Registrar of Trade Marks in relation to the proposed GI on a ground set out in section 40RB; and

40RB Grounds of objection to the determination of a geographical indication

Registered owner of a registered trade mark

(1) The registered owner of a registered trade mark may object to the determination of a proposed GI on one of the following grounds:

(a) that the trade mark consists of a word or expression that is identical to the proposed GI;

(b) that:

(i) the trade mark consists of a word or expression; and

(ii) the proposed GI is likely to cause confusion with that word or expression;

(i) the trade mark contains a word or expression; and

(ii) the proposed GI is likely to cause confusion with that word or expression; and

(iii) the owner has trade mark rights in that word or expression.

(2) The owner may object on the ground specified in paragraph (1)(c) even if there are conditions or limitations entered on the Register of Trade Marks suggesting that the owner does not have trade mark rights to that word or expression.

Trade mark pending

(3) If a person has an application pending for the registration of a trade mark under the Trade Marks Act 1995, the person may object to the determination of a proposed GI on one of the following grounds:

(a) that:

(i) the application was made in good faith; and

(ii) the trade mark consists of a word or expression that is identical to the proposed GI; and

(iii) prima facie, the requirements under the Trade Marks Act 1995 for accepting an application for registration of a trade mark would be satisfied in respect of the trade mark applied for;

(b) that:

(i) the application was made in good faith; and

(ii) the trade mark consists of a word or expression; and

(iii) the proposed GI is likely to cause confusion with that word or expression; and

(iv) prima facie, the requirements under the Trade Marks Act 1995 for accepting an application for registration of a trade mark would be satisfied in respect of the trade mark applied for;

(i) the application was made in good faith; and

(ii) the trade mark contains a word or expression; and

(iii) the proposed GI is likely to cause confusion with that word or expression; and

(iv) prima facie, the requirements under the Trade Marks Act 1995 for accepting an application for registration of a trade mark would be satisfied in respect of the trade mark applied for; and

(v) after registration, the applicant would have trade mark rights in the word or expression.

Trade mark not registered

(4) If a person claims to have trade mark rights in a trade mark that is not registered, the person may object to the determination of a proposed GI on one of the following grounds:

(a) that:

(i) the trade mark consists of a word or expression that is identical to the proposed GI; and

(ii) the person has trade mark rights in that word or expression; and

(iii) the rights were acquired through use in good faith;

(b) that:

(i) the trade mark consists of or contains a word or expression; and

(ii) the proposed GI is likely to cause confusion with that word or expression; and

(iii) the person has trade mark rights in that word or expression; and

(iv) the rights were acquired through use in good faith.

40RC Consideration of objections

Notice of objection to be given to Committee

(1) If:

(a) the Registrar of Trade Marks receives an objection in relation to the proposed GI on a ground set out in section 40RB; and

(b) the objection is received within the period stated in the notice under section 40RA;

the Registrar of Trade Marks must in writing notify the Committee of the receipt and terms of the objection.

Registrar of Trade Marks to make decision on whether ground made out or not

(2) If an objection is notified to the Committee under subsection (1), the Registrar of Trade Marks must decide in writing whether the ground of objection is or is not made out.

Registrar may make recommendation to Committee to determine a GI

(3) If:

(a) the Registrar of Trade Marks decides that the ground of objection is made out; and

(b) the Registrar of Trade Marks is satisfied that it is reasonable in the circumstances to recommend to the Committee that the proposed GI be determined despite the objection having been made out;

the Registrar of Trade Marks may make the recommendation. The recommendation must be in writing.

Note 1: For example, it may be reasonable for the Registrar of Trade Marks to make such a recommendation if the Registrar of Trade Marks is satisfied that the proposed GI was in use before the trade mark rights arose.

Note 2: If a recommendation is made under subsection (3), the Committee may determine the GI (see subsection 40SA(4)).

(4) In determining under paragraph (3)(b) whether it is reasonable in the circumstances to make the recommendation to the Committee, the Registrar of Trade Marks must have regard to Australia’s international obligations.

Regulations

(5) Regulations may set out the procedure to be followed in making a decision under subsection (2) or (3). The procedures may include the charging of fees, the holding of hearings and the taking of evidence.

40RD Notice to be given of decision

Notice to be given by Registrar of Trade Marks

(1) After the Registrar of Trade Marks has made a decision under section 40RC in relation to the proposed GI, the Registrar of Trade Marks must, in writing, inform the following of the outcome of the decision and of any recommendation that has been made under subsection 40RC(3):

(a) the person who proposed the GI, if there was an application under section 40R for the GI;

(b) the person who objected to the determination of the proposed GI;

Notice to be given by Committee

(2) After receiving notice of a decision under subsection (1), the Presiding Member must cause a notice to be published:

(a) setting out the proposed GI; and

(b) stating that a decision of the Registrar of Trade Marks has been made in relation to the proposed GI; and

(c) setting out the terms of the decision and any recommendation made under subsection 40RC(3) in relation to the proposed GI.

(3) The notice under subsection (2) is to be published in the manner that the Committee thinks appropriate.

40RE Decision that ground of objection no longer exists

(1) If:

(a) a decision has been made that a ground of objection to a proposed GI has been made out; and

(b) a person applies in writing to the Registrar of Trade Marks for a decision that circumstances have changed since that decision was made such that the ground of objection no longer exists;

the Registrar of Trade Marks may, in writing, make a decision that the ground of objection no longer exists.

Note: If the Registrar of Trade Marks makes a decision under this section, the Committee may determine the GI (see subsection 40SA(5)).

(2) Regulations may set out the procedure to be followed in making a decision under subsection (1). The procedures may include the charging of fees, the holding of hearings and the taking of evidence.

40RF Appeals

(1) An appeal lies to the Federal Court against a decision of the Registrar of Trade Marks, made under:

(a) subsection 40RC(2) (a decision that a ground of objection is or is not made out); and

(b) subsection 40RC(3) (a recommendation that a proposed GI be determined or a refusal to make such a recommendation); and

(2) The jurisdiction of the Federal Court to hear and determine appeals against decisions of the Registrar of Trade Marks under this Act is exclusive of the jurisdiction of any other court except the jurisdiction of the High Court under section 75 of the Constitution.

(3) On hearing an appeal against a decision of the Registrar of Trade Marks under this Act, the Federal Court may do any one or more of the following:

(a) admit further evidence orally, or on affidavit or otherwise;

(b) permit the examination and cross-examination of witnesses, including witnesses who gave evidence before the Registrar of Trade Marks;

(d) affirm, reverse or vary the Registrar of Trade Marks’s decision;

(e) give any judgment, or make any order, that, in all the circumstances, it thinks fit;

(f) order a party to pay costs to another party.

(4) The Registrar of Trade Marks may appear and be heard at the hearing of an appeal to the Federal Court against a decision of the Registrar of Trade Marks.

(5) Except with the leave of the Federal Court, an appeal does not lie to the Full Court of the Federal Court against a decision of a single judge of the Federal Court in the exercise of its jurisdiction to hear and determine appeals from decisions of the Registrar of Trade Marks.

(6) The regulations may make provision about the practice and procedure of the Federal Court in a proceeding under this section, including provision:

(a) prescribing the time for starting the action or proceeding or for doing any other act or thing; or

(b) for an extension of that time.

40RG Decisions made under this Division not to affect rights under Trade Marks Act

A decision made under this Division does not:

(a) create or affect a right under the Trade Marks Act 1995 or at common law in respect of a trade mark; or

(b) in any way pre-empt or affect a decision of the Registrar of Trade Marks under the Trade Marks Act 1995 in respect of a pending application for the registration of a trade mark.

Subdivision E—Determinations of geographical indications

12 Before section 40S

Insert:

40SA When may a determination be made under this Subdivision?

(1) If an objection was made to a proposed geographical indication (GI) under section 40RB, the Committee may only determine the GI in the circumstances set out in this section.

Grounds of objection not made out

(2) The Committee may determine a GI that was the subject of a decision under subsection 40RC(2), if:

(a) all appeals against, or reviews of, the decision (if any) in relation to the GI have been finalised; and

(b) the decision standing after the appeals and reviews have been finalised is that a ground of objection has not been made out in relation to the GI.

If grounds for objection made out and person agrees to determination of GI

(3) The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if the person who objected to the determination of the GI has agreed, by notice in writing given to the Committee, to the determination of the GI.

If grounds for objection made out and a recommendation is made under subsection 40RC(3)

(4) The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if:

(a) a recommendation has been made to the Committee under subsection 40RC(3) that the GI should be determined despite the ground of objection having been made out; and

(b) all appeals against, or reviews of, the decision that the GI should be determined (if any) have been finalised; and

If grounds for objection made out and a decision is made under section 40RE

(5) The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if:

(a) a decision has been made under section 40RE that the ground of objection no longer exists; and

(b) all appeals against, or reviews of, the decision that the ground no longer exists (if any) have been finalised; and

13 At the end of section 40T

Add:

(4) In determining a geographical indication, the Committee must not consider any submission to the extent that the submission asserts a trade mark right in respect of the proposed geographical indication.

14 At the end of subsection 40X(2)

Add:

; and (c) if a decision has been made under section 40RC before the final determination, no application to the Administrative Appeals Tribunal may be made in respect of that decision under section 40RC. An appeal lies to the Federal Court under section 40RF from a decision under section 40RC.

15 At the end of subsection 40Y(1)

Add:

Note: Under section 40RF, an appeal lies to the Federal Court from a decision under section 40RC.

16 Application

The amendments made by items 1 to 15 of this Schedule apply to applications for determination of geographical indications that have not been finally determined under section 40W of the Australian Wine and Brandy Corporation Act 1980 on the day this item commences.

17 After Division 4 of Part VIB

Insert:

Division 4A—Omission of registered geographical indications

Subdivision A—What this Division is about

40ZAA What this Division is about

(1) This Division deals with determining the omission from the Register of geographical indications (Australian GIs) determined under Division 4.

(2) The grounds for omission are that an Australian GI is not in use (see Subdivision B) or is no longer required (see Subdivision C).

Note: Subsection 40ZD(3) also deals with changes to the Register.

Subdivision B—Omission of Australian GIs for non-use

40ZAB Power of Committee to determine that an Australian GI should be omitted from the Register

The Committee may, either on its own initiative or on an application made in accordance with section 40ZAC, determine that an Australian GI is to be omitted from the Register on the ground that the GI is not in use.

40ZAC Application

(1) A person (the applicant) may apply in the prescribed form to the Committee to omit an Australian GI from the Register on the ground that the GI is not in use.

(2) The application must be accompanied by such fee (if any) charged by the Corporation for the making of such an application.

(3) The Corporation may waive the fee.

(4) If the application is not accompanied by the fee, and the fee is not waived by the Corporation, the application is treated as having never been made.

40ZAD Further information concerning an application

(1) For the purposes of determining the application, the Committee may, by notice in writing, require the applicant to provide such further information as the Committee directs, within the period specified in the notice.

(2) If the applicant does not comply with this requirement, the application is taken to have been withdrawn.

(3) A notice must include a statement about the effect of the above.

40ZAE Notice by Committee

If the Committee:

(a) receives an application under section 40ZAC; or

(b) proposes on its own initiative that an Australian GI should be omitted from the Register on the ground that the GI is not in use;

the Presiding Member of the Committee must cause a notice to be published in the manner that the Committee thinks appropriate:

(d) stating that an application under section 40ZAC has been made, or that the Committee is proposing to make a determination to omit the GI on its own initiative; and

(e) inviting persons to make written submissions to the Committee in relation to the application or proposal within the period of not less than one month that is stated in the notice.

40ZAF Determination by Committee

(1) After considering any submissions made to it in response to a notice under section 40ZAE, the Committee must determine whether to omit the Australian GI on the ground that the GI is not in use.

(2) The Committee may, in writing, make a determination to omit the GI on that ground if the Committee is satisfied of the following matters:

(a) that the GI has been registered for a period of more than 5 years before the date of the notice under section 40ZAE;

(b) that the GI has not been used during the period of 3 years before the date of the notice under section 40ZAE (see subsection (3));

(c) that no special circumstances exist in relation to the region or locality indicated by the GI that would preclude the making of a determination to omit the GI from the Register (see subsection (4)).

Meaning of GI not been used

(3) For the purposes of paragraph (2)(b), an Australian GI has not been used if:

(a) there has not been a production of wine for commercial use originating in the region or locality indicated by the GI; and

(b) wine originating in the region or locality indicated by the GI has not been described and presented for sale within Australia, or for export, using that GI.

Meaning of special circumstances

(4) For the purposes of paragraph (2)(c), special circumstances exist if:

(a) the region or locality indicated by the GI has been affected by fire, drought or some other disaster; and

(b) as a result of being so affected, there has not been a production of wine for commercial use originating in the region or locality indicated by the GI during the period of 3 years immediately before the date of the notice under section 40ZAE.

40ZAG Notice of determination

The Presiding Member of the Committee must cause:

(a) a notice to be given of the Committee’s determination to the applicant (if any); and

(b) if the determination made is to omit the Australian GI from the Register—a notice setting out the terms of the determination to be published in the manner that the Committee thinks appropriate.

40ZAH AAT review of a determination

(1) Application may be made to the Administrative Appeals Tribunal for review of the determination made under section 40ZAF.

(2) Despite paragraph 29(1)(d) and subsection 29(2) of the Administrative Appeals Tribunal Act 1975, an application to the Tribunal for review of a determination under section 40ZAF must be made within 28 days after notice of the determination is published in accordance with section 40ZAG.

(3) Despite subsection 29(8) of the Administrative Appeals Tribunal Act 1975, an application under subsection 29(7) of that Act in respect of a determination under section 40ZAF must be made before the time fixed by subsection (2) of this section ends.

40ZAI Date of effect of determination to omit GI

(1) If the determination made by the Committee under section 40ZAF is a determination to omit the Australian GI from the Register, the Presiding Member must give a copy of the determination to the Registrar so that particulars of the determination can be omitted from the Register:

(a) if an application is made to the Administrative Appeals Tribunal under section 40ZAH for review of the determination—as soon as practicable after the decision of the Tribunal on the review is given; or

(b) otherwise—as soon as practicable after the 28th day after notice of the determination is published in accordance with section 40ZAG.

(2) When the Presiding Member gives a copy of the determination to the Registrar, the Presiding Member must also give a copy to the Chairperson of the Corporation.

(3) The determination of the Committee takes effect on the day on which particulars of the GI are omitted from the Register.

Subdivision C—Omission of Australian GIs because no longer required

40ZAJ Application

(1) A person (the applicant) may apply in the prescribed form to the Committee to omit an Australian GI from the Register on the ground that the GI is no longer required.

(2) The application must be accompanied by a written statement from each of the following organisations supporting the application:

(a) a declared winemakers’ organisation (if any);

(b) a declared wine grape growers’ organisation (if any);

(c) the organisation or organisations representing winemakers in a State or Territory wholly or partly covered by the region or locality in Australia indicated by the GI;

(d) the organisation or organisations representing growers of wine grapes in a State or Territory wholly or partly covered by the region or locality in Australia indicated by the GI.

(3) The application must also be accompanied by such fee (if any) charged by the Corporation for the making of such an application.

(4) The Corporation may waive the fee.

(5) If:

(a) the application is not accompanied by the fee, and the fee is not waived by the Corporation; or

(b) the application is not accompanied by the statements referred to in subsection (2);

then the application is taken never to have been made.

40ZAK Further information concerning an application

(2) If the applicant does not comply with this requirement, the application is taken to have been withdrawn.

(3) A notice must include a sta

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