Australian Wine and Brandy Corporation Amendment Act 2010
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................3
Schedule 1—Amendments relating to the Agreement between Australia and the European Community on trade in wine 4 Part 1—Amendments 4 Australian Wine and Brandy Corporation Act 1980 4 Trade Marks Act 1995 34 Part 2—Application and transitional provisions 38 Schedule 2—Label integrity program 40 Part 1—Amendments 40 Australian Wine and Brandy Corporation Act 1980 40 Part 2—Application and transitional provisions 55 Schedule 3—Compliance 56 Part 1—Main amendments 56 Australian Wine and Brandy Corporation Act 1980 56 Part 2—Amendment contingent on the commencement of Schedule 1 to this Act 64 Australian Wine and Brandy Corporation Act 1980 64 Part 3—Application and transitional provisions 65
An Act to amend the Australian Wine and Brandy Corporation Act 1980, and for related purposes
[Assented to 6 July 2010]
This Act may be cited as the Australian Wine and Brandy Corporation Amendment Act 2010.
(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
Part 2 (a) immediately after the commencement of 2010 the provision(s) covered by table item 4; (paragraph (b) and applies)
(b) the commencement of Schedule 1 to this Act.
6. Schedule 3, At the same time as the provision(s) covered 3 August 2010 Part 3 by table item 4.
Note: This table relates only to the provisions of this Act as originally passed by both Houses of 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.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
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Part 1—Amendments
1 Paragraph 3(1)(e)
Omit “; and”, substitute “and other international agreements;”.
2 Paragraph 3(1)(f)
Repeal the paragraph.
3 Subsection 4(1) (paragraph (a) of the definition of agreement country)
Omit “European Economic Community”, substitute “European Community”.
4 Subsection 4(1)
Insert: country has a meaning affected by subsection (2).
5 Subsection 4(1)
Insert:
designated foreign country has the meaning given by subsection 40K(3).
6 Subsection 4(1) (definition of EC country)
Omit “European Economic Community”, substitute “European Community”.
7 Subsection 4(1) (definition of geographical indication)
Repeal the definition, substitute:
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geographical indication, in relation to wine goods, means an indication that identifies the goods as originating in a country, or in a region or locality in that country, where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin.
8 Subsection 4(1) (definition of modify)
Omit “or other” (wherever occurring).
9 Subsection 4(1)
Insert:
protection date for a registered traditional expression has the meaning given by subsection 40DB(6).
10 Subsection 4(1) (definition of Register)
Repeal the definition, substitute:
Register means the Register of Protected Geographical Indications and Other Terms kept under section 40ZC.
11 Subsection 4(1)
Insert:
registered additional term means a term that is included in Part 4 of the Register.
Repeal the definition.
13 Subsection 4(1) (definition of registered condition)
Repeal the definition.
14 Subsection 4(1)
Insert: registered conditions of use, in relation to:
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(d) a registered quality wine term; or
(e) a registered additional term; means a condition of use included in the Register that is applicable
to the geographical indication, translation, traditional expression, quality wine term or additional term (as the case may be).
15 Subsection 4(1) (definition of registered geographical indication)
Omit all the words after “included”, substitute “in Part 1 of the Register”.
16 Subsection 4(1)
Insert:
registered quality wine term means a term that is included in Part 3 of the Register.
17 Subsection 4(1) (definition of registered traditional expression)
Omit all the words after “included”, substitute “in Part 2 of the Register”.
18 Subsection 4(1)
Insert:
registered translation of a registered geographical indication means a translation, included in Part 1 of the Register, of the registered geographical indication.
19 Subsection 4(1) (definition of registered variety of grapes)
Repeal the definition.
20 Subsection 4(1) (definition of Registrar)
Repeal the definition, substitute:
Registrar means the Registrar of Protected Geographical Indications and Other Terms established under subsection 40ZA(1).
21 Subsection 4(1) (definition of traditional expression)
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Repeal the definition, substitute:
traditional expression, in relation to wine originating in a foreign country, means a traditionally used name referring, in particular, to the method of production or to the quality, colour or type of the wine.
22 Subsection 4(1)
Insert:
World Trade Organization means the body of that name established by the WTO Agreement, done at Marrakesh on 15 April 1994.
Note: The text of the WTO Agreement is set out in Australian Treaty Series 1995 No. 8 ([1995] ATS 8). In 2009, the text of an Agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
23 After subsection 4(1)
Insert:
References to country
(2) For the purposes of this Act, a reference to a country includes a reference to a member of the World Trade Organization.
24 Subsection 4(3)
Omit “European Economic Community”, substitute “European Community”.
Note: The following heading to subsection 4(3) is inserted “Parties to prescribed wine trading agreements”.
25 Section 5C
After “addresses)”, insert “, indications”.
26 Paragraph 8(2)(aa)
Repeal the paragraph, substitute: (aa) to determine any conditions of use that are to be applicable to any registered geographical indications and any registered translations of such indications; and
Note 1: The following heading to subsection 8(1) is inserted “General power”.
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Note 2: The following heading to subsection 8(2) is inserted “Specific powers”.
27 Paragraph 8(2)(ab)
Repeal the paragraph.
28 Paragraphs 8(2)(ac) and (ad)
Repeal the paragraphs, substitute: (ac) to determine in relation to a foreign country:
all of those expressions; and (ad) to determine:
(iii) in relation to a particular wine (regardless of origin)— any terms that are to be registered as additional terms in relation to that wine; and
(iv) any conditions of use that are to be applicable to any or all of the terms referred to in subparagraphs (i) to (iii); and
29 Paragraph 8(2)(ae)
Repeal the paragraph.
30 After paragraph 8(2)(g)
Insert:
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(ga) without limiting paragraph (g), to charge fees for the provision of services, or the performance of work, by or on behalf of:
section 40N; in relation to the determination of geographical indications and translations of such indications by the Geographical Indications Committee (including determinations for the omission of such indications and translations); and
31 Subsection 8(2A)
Omit “(ab), (ac), (ad) or (ae)”, substitute “(ac) or (ad)”.
Note 1: The following heading to subsection 8(2A) is inserted “Requirements for determinations by the Corporation”.
Note 2: The following heading to subsection 8(2E) is inserted “Review of determinations”.
32 Subsection 8(2F)
Omit “(ab), (ac), (ad) or (ae)” (wherever occurring), substitute “(ac) or (ad)”.
Note 1: The following heading to subsection 8(2G) is inserted “Inclusion of particulars in the Register”.
Note 2: The following heading to subsection 8(3) is inserted “Consistency with corporate and operational plans”.
33 Subsection 38(4)
Omit “(4)”.
34 Subsection 38(4)
After “geographical indications”, insert “, and translations of such indications,”.
35 Part VIB (heading)
Repeal the heading, substitute:
36 Paragraph 40A(a)
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After “agreements”, insert “and other international agreements”.
37 Sections 40C to 40H
Repeal the sections, substitute:
(1) A person commits an offence if:
Penalty: Imprisonment for 2 years.
Note: A court may impose a maximum fine of 120 penalty units instead of, or in addition to, a term of imprisonment. A body corporate that is convicted of an offence may be fined up to 5 times that maximum fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)
(2) The description and presentation may be false even if it indicates the country, region or locality (as the case may be) in which the wine originated.
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country, region or locality in relation to which the geographical indication is registered; or
(c) a registered traditional expression; is included in the description and presentation of wine even if the indication, translation or expression is accompanied by an
expression such as “kind”, “type”, “style”, “imitation”, “method”, or any similar expression.
40DA Circumstances in which description and presentation is not false—general
Inclusion of geographical indication, translation or traditional expression registered for more than one place
(1) If:
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then the description and presentation is not false merely because the indication or term is also a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to another country, region or locality.
Inclusion of common English word or term
(2) If:
then the description and presentation is not false merely because it includes the word or term.
Inclusion of name of individual or address of winery
(3) The description and presentation of wine is not false merely because it includes:
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Inclusion of registered quality wine term
(1) If:
expression is registered; then the description and presentation is not false merely because it includes the registered quality wine term.
Wine originating in non-agreement country
(2) The description and presentation of wine that originates in a foreign country that is not an agreement country is not false merely because it includes a term that is a registered traditional expression if:
Note: The text of the Convention is set out in Australian Treaty Series 1972 No. 12 ([1972] ATS 12). In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Inclusion of trade mark
(3) If:
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trade mark through use in good faith; then the description and presentation is not false merely because it includes that trade mark.
Inclusion of business name
(4) If:
then the description and presentation is not false merely because it includes that business name.
(5) Subsection (4) does not limit subsection 40DA(3).
(6) In this Act, the protection date for a registered traditional expression is:
(a) if the traditional expression is registered in relation to an agreement country under paragraph 40ZD(2A)(a):
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(b) if the traditional expression is registered in relation to a foreign country (whether or not an agreement country) under paragraph 40ZD(2A)(b)—the date on which the traditional expression is registered.
(1) A person commits an offence if:
Penalty: Imprisonment for 2 years.
Note: A court may impose a maximum fine of 120 penalty units instead of, or in addition to, a term of imprisonment. A body corporate that is convicted of an offence may be fined up to 5 times that maximum fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)
(2) The description and presentation may be misleading even if it indicates the country, region or locality (as the case may be) in which the wine originated.
(1) This section has effect for the purposes of section 40E.
Inclusion of geographical indication, translation or traditional expression
(2) Subject to sections 40FA and 40FB, the description and presentation of wine is misleading if:
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way as to be likely to mislead as to the country, region or
locality in which the wine originated; or
(c) it includes a registered traditional expression, and:
(iii) the expression is in a language in relation to which the expression is registered; and
(iv) the expression is used in such a way as to be likely to mislead that the wine originated in a country, region or locality in relation to which the expression is registered or that the wine is in a category of wine in relation to which the expression is registered.
(3) For the purposes of subsection (2):
(c) a registered traditional expression; is included in the description and presentation of wine even if the indication, translation or expression is accompanied by an
expression such as “kind”, “type”, “style”, “imitation”, “method”, or any similar expression.
Inclusion of word resembling geographical indication, translation or traditional expression
(4) Subject to sections 40FA and 40FB, the description and presentation of wine is misleading if:
(i) it includes a term that so resembles a registered traditional expression as to be likely to mislead that the
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wine originated in a country, region or locality in relation to which the expression is registered or that the wine is in a category of wine in relation to which the expression is registered;
(ii) the wine originated in a foreign country that is not an agreement country.
Inclusion of name of individual or address of winery
(5) The description and presentation of wine is misleading if:
Not in accordance with prescribed provisions
(6) The description and presentation of wine is misleading if it is not in accordance with any provisions relating to the description and presentation of wine as are prescribed for the purposes of this subsection.
Ordinary meaning of misleading not affected
(7) Subsections (2), (3), (4), (5) and (6) do not limit what, apart from those subsections, is a misleading description and presentation of wine.
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Inclusion of geographical indication, translation or traditional expression registered for more than one place
(1) If:
originated in that country, region or locality; then the description and presentation is not misleading merely because the indication or term is, or resembles, a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to another country, region or locality.
Inclusion of common English word or term
(2) If:
then the description and presentation is not misleading merely because it includes the word or term.
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Inclusion of registered quality wine term
(1) If:
expression is registered; then the description and presentation is not misleading merely because it includes the registered quality wine term.
Inclusion of trade mark
(2) If:
trade mark through use in good faith; then the description and presentation is not misleading merely because it includes that trade mark.
Inclusion of business name
(3) If:
(a) the description and presentation of wine includes a business name; and
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then the description and presentation is not misleading merely because it includes that business name.
(4) Subsection (3) does not limit subsection 40F(5).
(1) A person commits an offence if:
Penalty: Imprisonment for 1 year.
Note: A court may impose a maximum fine of 60 penalty units instead of, or in addition to, a term of imprisonment. A body corporate that is convicted of an offence may be fined up to 5 times that maximum fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)
Indication or term registered for more than one place
(2) Subsection (1) does not apply if:
(a) the indication or term is registered in one or more Parts of the Register in relation to one or more countries, regions or localities; and
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Note: The defendant bears an evidential burden in relation to the matters in this subsection. (See subsection 13.3(3) of the Criminal Code.)
Indication or term is registered additional term for particular wine
(3) Subsection (1) also does not apply if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. (See subsection 13.3(3) of the Criminal Code.)
38 Subsection 40J(1) (definition of the offence provisions)
Repeal the definition, substitute:
the offence provisions means subsections 40C(1), 40E(1) and 40G(1).
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39 Subsection 40K(1)
Omit “, 40G or 40H”, substitute “or 40G”.
40 Paragraphs 40K(1)(b) and (c)
Omit “an agreement country”, substitute “a designated foreign country”.
41 At the end of section 40K
Add:
(3) In this Act:
designated foreign country means a foreign country in relation to which a geographical indication, translation of such an indication, traditional expression, or additional term is registered.
42 Subsection 40M(1)
Repeal the subsection, substitute:
National food standard modified
(1) A national food standard that applies to wine has effect, in relation to wine that originates in any foreign country, as if any requirement in the standard to comply with particular oenological practices or processes, or compositional requirements, in relation to wine were replaced by a requirement to comply with the replacement practices, processes or requirements under either subsection (1A) or (1B).
Practices, processes and requirements set out in wine-trading
agreements
(1A) The replacement practices, processes or requirements under this subsection are:
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practices or processes, or compositional requirements, as so modified.
Practices, processes and requirements prescribed by the
regulations
(1B) The replacement practices, processes or requirements under this subsection are the oenological practices or processes, or compositional requirements, prescribed by the regulations in relation to wine originating in any foreign country.
(1C) Regulations made for the purposes of subsection (1B):
Note: The heading to section 40M is altered by omitting “agreement” and substituting “foreign”.
43 Subsection 40M(2)
Omit “or other”.
Note: The following heading to subsection 40M(2) is inserted “Minister may suspend operation of section”.
44 Paragraph 40P(1)(b)
After “Part”, insert “(including determining any conditions of use
applicable to such GIs)”.
45 At the end of paragraph 40P(1)(d)
Add “or under the regulations”.
46 Subsection 40PA(1) (note)
Repeal the note, substitute:
Schedule 1 Amendments relating to the Agreement between Australia and the European Community on trade in wine Part 1 Amendments
Note: Geographical indications, and translations of such indications, in relation to wine originating in a foreign country are not determined under this Division. They are determined by the Committee under regulations made for the purposes of Division 4B (unless they are in a prescribed wine-trading agreement).
47 At the end of section 40PA
Add:
(3) The regulations may modify the operation of this Division to remove any inconsistency with the operation of regulations made for the purposes of Division 4B.
48 Section 40RB
Omit “word or expression” (wherever occurring), substitute “word, expression or other indication”.
49 Paragraph 40T(1)(b)
Omit “word or expression”, substitute “indication”.
50 At the end of subsection 40T(1)
Add: ; and (c) determine any conditions of use that are to be applicable to the geographical indication.
51 Paragraph 40T(3)(b)
Omit “a word or expression” (wherever occurring), substitute “an indication”.
52 Division 4A of Part VIB (heading)
Repeal the heading, substitute:
53 At the end of subsection 40ZAA(1)
Add:
Note: Determinations for the omission of geographical indications, and translations of such indications, in relation to wine originating in a foreign country are not made under this Division. They are made by the Committee under regulations made for the purposes of Division 4B.
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54 At the end of section 40ZAA
Add:
(3) The regulations may modify the operation of this Division to remove any inconsistency with the operation of regulations made for the purposes of Division 4B.
55 After Division 4A of Part VIB
Insert:
(1) The regulations may make provision for and in relation to the determination of geographical indications, and translations of geographical indications, in relation to wine originating in a foreign country.
Role of Committee
(2) Without limiting subsection (1), the regulations may:
Role of Registrar of Trade Marks
(3) Without limiting subsection (1), the regulations may also:
(a) provide for objections to be made to the Registrar of Trade Marks in relation to the determination of proposed
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geographical indications, and translations of such indications, in relation to wine originating in a foreign country or a region or locality in a foreign country; and
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judge of the Federal Court in the exercise of its jurisdiction to hear and determine appeals against prescribed decisions.
(6) The regulations may make provision about the practice and procedure of the Federal Court in a proceeding under this section, including provision:
A decision made under section 40ZAR, or under regulations made for the purposes of section 40ZAQ, does not:
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56 Division 5 of Part VIB (heading)
Repeal the heading, substitute:
Division 5—Register of Protected Geographical Indications and Other Terms
57 Subsection 40ZA(1)
Repeal the subsection, substitute:
(1) There is to be a Registrar of Protected Geographical Indications and Other Terms.
58 Paragraph 40ZB(a)
Omit “Register of Protected Names”, substitute “Register of Protected Geographical Indications and Other Terms”.
59 Paragraph 40ZB(b)
Omit “enter”, substitute “include”.
60 Paragraph 40ZB(e)
Repeal the paragraph, substitute:
(e) in accordance with the directions of the Corporation or the Committee, to notify authorities and organisations in foreign countries of the geographical indications, translations of such indications, traditional expressions and additional terms included in the Register.
61 Subsection 40ZC(1)
Omit “Register of Protected Names”, substitute “Register of Protected Geographical Indications and Other Terms”.
Note: The heading to section 40ZC is replaced by the heading “Register of Protected Geographical Indications and Other Terms”.
62 Subsections 40ZD(1) and (2)
Repeal the subsections, substitute:
Parts of the Register
(1) The Register is to be divided into 4 parts as follows:
(a) Part 1 is to include:
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Particulars that must be included in Part 1 of the Register
(2) The Registrar must include in Part 1 of the Register (geographical indications), in accordance with the directions of the Corporation, the following particulars:
(i) each geographical indication that, under a prescribed wine-trading agreement to which that country is a party, is a geographical indication in relation to wines originating in that country; and
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(ii) any translation, recognised by that wine-trading agreement, of each such geographical indication; and
(iii) any region or locality in relation to which each such geographical indication is to be registered; and
(iv) any conditions of use applicable to a geographical indication referred to in subparagraph (i) or a translation referred to in subparagraph (ii);
(c) in relation to a foreign country (whether or not an agreement country):
(iii) any region or locality in relation to which each such geographical indication is determined; and
(iv) any conditions of use applicable to a geographical indication referred to in subparagraph (i) or a translation referred to in subparagraph (ii).
Particulars that must be included in Part 2 of the Register
(2A) The Registrar must include in Part 2 of the Register (traditional expressions), in accordance with the directions of the Corporation, the following particulars:
(a) in relation to an agreement country:
(iii) each category of wine that is listed in that wine-trading agreement in relation to each such traditional expression; and
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(b) in relation to a foreign country (whether or not an agreement country):
(iii) each category of wine that is listed in those laws and regulations in relation to such a traditional expression; and
Particulars that must be included in Part 3 of the Register
(2B) The Registrar must include in Part 3 of the Register (quality wine terms), in accordance with the directions of the Corporation, the following particulars:
Particulars that must be included in Part 4 of the Register
(2C) The Registrar must include in Part 4 of the Register (additional terms), in accordance with the directions of the Corporation, the following particulars:
(a) in relation to Australia:
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(iii) any region or locality in relation to which a term referred to in subparagraph (i) or (ii) is to be registered; and
(iv) any conditions of use applicable to a term referred to in subparagraph (i) or (ii);
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63 Paragraph 40ZD(3)(a)
After “Division 4”, insert “or under regulations made for the purposes of Division 4B”.
64 Clause 1 of the Schedule (definition of nominated member)
Omit “or (c)”, substitute “, (c) or (d)”.
65 Subclause 2(1) of the Schedule
Omit “3 members as follows”, substitute “the following members”.
66 At the end of subclause 2(1) of the Schedule
Add: ; (d) any other member prescribed by the regulations for the purposes of this paragraph.
67 At the end of subclause 10(3) of the Schedule
Add:
Note: A different quorum may be prescribed by the regulations if the Committee has more than 3 members. (See subclause (10).)
68 At the end of subclause 10(7) of the Schedule
Add:
Note: A different process for resolving questions may be prescribed by the regulations if the Committee has more than 3 members. (See subclause (10).)
69 At the end of clause 10 of the Schedule
Add:
(10) If one or more members are prescribed by the regulations for the purposes of paragraph 2(1)(d):
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Trade Marks Act 1995
70 Section 6
Before “In this Act”, insert “(1)”.
71 Section 6 (definition of geographical indication)
Repeal the definition, substitute:
geographical indication, in relation to goods, means a sign that identifies the goods as originating in a country, or in a region or locality in that country, where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin.
72 Section 6
Insert:
World Trade Organization means the body of that name established by the WTO Agreement, done at Marrakesh on 15 April 1994.
Note: The text of the WTO Agreement is set out in Australian Treaty Series 1995 No. 8 ([1995] ATS 8). In 2009, the text of an Agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
73 At the end of section 6
Add:
(2) For the purposes of this Act, a reference to a country includes a reference to a member of the World Trade Organization.
74 After paragraph 61(2)(a)
Insert: (aa) the sign is not recognised as a geographical indication for the designated goods in the country in which the designated goods originated; or
75 At the end of section 61 (before the notes)
Add:
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(4) An opposition on a ground referred to in subsection (1) also fails if the applicant establishes that:
76 At the end of Subdivision A of Division 1 of Part 8
Add:
83A Amendment of registered trade mark—inconsistency with international agreements
Note: In certain circumstances the Registrar need not advertise a request under this subsection (see subsection (7)).
(4) A person may, as prescribed, oppose the granting of the request for the amendment on the ground that, if the amendment is made, the
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trade mark will be substantially identical with, or deceptively similar to:
Note: In certain circumstances a person cannot oppose the granting of a request under this subsection (see subsection (7)).
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to the Federal Court from a decision of the Registrar under this section.
Schedule 1 Amendments relating to the Agreement between Australia and the European Community on trade in wine Part 2 Application and transitional provisions
Part 2—Application and transitional provisions
77 Application of item 37
78 Application of items 39 to 41
The amendments made by items 39 to 41 of this Schedule do not apply in relation to proceedings for an offence against section 40C, 40E or 40G of the Australian Wine and Brandy Corporation Act 1980 (as in force before the commencement of this Schedule) constituted by conduct engaged in before the commencement of this Schedule.
79 Application of items 44 and 50
The amendments made by items 44 and 50 of this Schedule apply in relation to determinations of geographical indications that are made on or after the commencement of this Schedule, whether the application for the determination was made before, on or after that commencement.
80 Appointment of Registrar unaffected
The amendment of section 40ZA of the Australian Wine and Brandy Corporation Act 1980, made by item 57 of this Schedule, does not affect the validity of an appointment under that section that is in force immediately before the commencement of this Schedule.
81 Application of items 71, 74 and 75
The amendments made by items 71, 74 and 75 of this Schedule apply in relation to:
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(c) applications under section 88 of the Trade Marks Act 1995 that are made on or after that commencement in respect of trade marks registered before, on or after that commencement.
82 Application of item 76
The amendment made by item 76 of this Schedule applies in relation to trade marks registered before, on or after the commencement of this Schedule.
Schedule 2 Label integrity program Part 1 Amendments
Australian Wine and Brandy Corporation Act 1980
1 Subsection 4(1)
Insert:
blend means wine manufactured by blending wines of different vintages, varieties or geographical indications.
2 Subsection 4(1)
Insert: direct sale means a sale of wine goods to a consumer.
3 Subsection 4(1)
Insert: examinable document means:
4 Subsection 4(1)
Insert:
grape extract means grape juice, must, or concentrate obtained from grapes.
5 Subsection 4(1)
Label integrity program Schedule 2 Amendments Part 1
Insert:
inspection power, in relation to wine premises, means:
6 Subsection 4(1)
Insert:
inspector means a person appointed under section 39ZA.
7 Subsection 4(1)
Insert:
label claim, in relation to wine goods:
8 Subsection 4(1)
Insert:
label law means:
(a) in relation to Part VIA:
(i) that Part; and
Schedule 2 Label integrity program Part 1 Amendments
(ii) regulations made for the purposes of that Part; and
(iii) another law of the Commonwealth relating to the description of wine goods; and
(iv) a law of a State or an internal Territory relating to the description of wine goods; and
9 Subsection 4(1)
Insert:
label offence means:
10 Subsection 4(1)
Insert:
manufacture wine includes making a blend.
11 Subsection 4(1)
Insert:
manufacturer of wine goods means a person who operates an establishment at which:
12 Subsection 4(1) (definition of originate)
Label integrity program Schedule 2 Amendments Part 1
After “wine”, insert “or grape extract that is used or intended to be used in manufacturing wine”.
13 Subsection 4(1)
Insert:
package, in relation to wine, means a container in which the wine
is sold or transferred for sale.
14 Subsection 4(1)
Insert:
prescribed geographical indication means a geographical indication that is prescribed by the regulations for the purposes of this definition.
15 Subsection 4(1)
Insert:
principal employee means the person holding the position of
principal employee (however described) of the Corporation.
16 Subsection 4(1)
Insert: relevant agency has the meaning given by section 39ZL.
17 Subsection 4(1)
Insert:
variety, in relation to wine or grape extract, means the variety of
the grapes from which the wine or grape extract was obtained.
18 Subsection 4(1)
Insert: vintage means:
Schedule 2 Label integrity program Part 1 Amendments
in which the grapes from which the wine or extract was
manufactured or obtained were harvested.
19 Subsection 4(1)
Insert: wine goods means:
20 Subsection 4(1)
Insert:
wine label means a label attached to, or writing or other sign
appearing on, a bottle or other package of wine.
21 Subsection 4(1)
Insert:
wine premises means any premises, place or conveyance where it is reasonable to assume that wine goods or examinable documents are or might be located.
22 Subsection 4(1) (at the end of the definition of year)
Add:
Note: This definition does not apply in relation to the definition of vintage (see that definition and subsection (2A)).
23 Before subsection 4(3)
Insert:
Harvesting grapes
(2A) For the purposes of the definition of vintage, grapes that are harvested on or after 1 July in a calendar year, and before or on 31 December of that calendar year, are taken to have been harvested in the next calendar year.
24 Section 5D
Repeal the section, substitute:
Label integrity program Schedule 2 Amendments Part 1
5D Where wine or grape extract originates
For the purposes of this Act:
25 Subsection 30(2)
Omit “person holding the position of principal employee (however described) of the Corporation shall”, substitute “principal employee are to”.
26 Subsection 30(3)
Omit “employee referred to in subsection (2), shall”, substitute “principal employee, are to”.
27 Sections 39B to 39EA
Repeal the sections, substitute:
39B Operation of Part
Without prejudice to its effect apart from this section, this Part has the effect it would have if the references in it to a person (the record keeper) to whom this Part applies were, by express provision, confined to:
(a) a record keeper who is one of the following (a constitutional corporation or partnership):
(iii) a corporation that is controlled by a corporation described in subparagraph (i) or (ii);
Schedule 2 Label integrity program Part 1 Amendments
(iv) a partnership in which at least one of the partners is a corporation described in subparagraph (i), (ii) or (iii); or
39C Persons to whom this Part applies
(1) This Part applies to the following persons, except as provided by subsection (3):
Note: This Part applies only to the extent that the wine goods originate in Australia (see subsection (4)).
28 Sections 39F to 39ZAAA
Repeal the sections, substitute:
Label integrity program Schedule 2 Amendments Part 1
39F Obligation to keep records
(1) A person (the record keeper) to whom this Part applies (under section 39C) must keep written records that show the following details in relation to wine goods:
Note 1: Records are required to be kept only to the extent that wine goods originate in Australia (see subsection 39C(4)).
Note 2: See sections 39G and 39H for additional rules relating to the requirements of this section.
Note 3: A person commits an offence if the person fails to keep a record in accordance with this subsection (see section 39J).
Period for keeping records
(2) A record must be kept under subsection (1) for the period:
Schedule 2 Label integrity program Part 1 Amendments
Note: A person commits an offence if the person fails to keep a record in accordance with this subsection (see section 39J).
Requirement to provide and keep a copy of a record in relation to supply of wine goods
(3) A person who is required to keep a record under subsection (1) must, on the day the person supplies the wine goods, provide a copy of the record kept under paragraphs (1)(h), (j) and (k) to the person to whom the wine goods are supplied (except as provided by subsection 39G(2)).
Note: A person commits an offence if the person fails to provide a copy of a record in accordance with this subsection (see section 39K).
(4) A person to whom wine goods are supplied must keep the copy of the record provided under subsection (3) for the period:
Note: A person commits an offence if the person fails to keep a copy of a record in accordance with this subsection (see section 39K).
(5) To avoid doubt, the same copy of a record may be kept for the purposes of paragraphs (1)(c), (e) and (f) and subsection (4).
39G When certain details are not required to be kept
Grape growers not required to keep certain records
(1) A person who grows grapes is not required to keep a record showing details required under paragraphs 39F(1)(c) to (f) in relation to the grapes grown.
Label integrity program Schedule 2 Amendments Part 1
Direct sales
(2) A person is not required to keep a record showing details required under paragraphs 39F(1)(h) to (k) in relation to wine goods that are sold by the person in direct sales. However, if the person does not keep such a record, the person must instead keep a record showing:
those wine goods sold by the person during the period. A copy of a record kept in accordance with this section is not required to be provided under subsection 39F(3).
(3) The period referred to in paragraph (2)(a) of this section must not be longer than one year.
39H Details required under section 39F
Variety of wines
(1) Details required under paragraph 39F(1)(f) or (k) or subparagraph 39F(1)(g)(i) may show any name by which a variety of wine goods is known (if the variety is known by more than one name).
Identity of a person
(2) Details required under paragraph 39F(1)(a), (d) or (i) must include:
Manufacturing wine
(3) Details required under paragraph 39F(1)(g) in relation to wine goods must be in a form that allows:
(a) an audit trail containing a history of the changes to the wine goods to be readily traced from the record; and
Schedule 2 Label integrity program Part 1 Amendments
(b) details of the steps taken and the results of the steps to be readily checked for discrepancies by following the sequence of the steps recorded.
Blends
(4) Details required under subsection 39F(1) in relation to wine that is a blend of wines (the blended wines) of different vintages, varieties or prescribed geographical indications, must show:
Grape extract
(5) Details required under subsection 39F(1) in relation to grape extract derived from grapes of different vintages, varieties or prescribed geographical indications must show:
39J Offences relating to record-keeping requirements
Failure to keep a record in accordance with requirements
(1) A person commits an offence if:
Penalty: 2 years imprisonment.
Label claims not supported by records
(2) A person commits an offence if:
(a) the person is a person to whom this Part applies; and
Label integrity program Schedule 2 Amendments Part 1
Penalty: 2 years imprisonment.
Keeping a false or misleading record
(3) A person commits an offence if:
Penalty: 2 years imprisonment.
(4) Subsection (3) does not apply if the record is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4). (See subsection 13.3(3) of the Criminal Code.)
39K Offences relating to requirement to provide and keep a copy of a record in relation to the supply of wine goods
Failure to provide a copy of a record in relation to the supply of wine goods
(1) A person commits an offence if:
Schedule 2 Label integrity program Part 1 Amendments
(c) the person does not provide a copy in accordance with that subsection in relation to the wine goods.
Penalty: 2 years imprisonment.
Failure to keep a copy of a record in relation to the supply of wine goods
(2) A person commits an offence if:
Penalty: 2 years imprisonment.
39L Time for bringing prosecutions
Despite section 15B of the Crimes Act 1914, a prosecution for an offence under:
39M Single wines and blends etc.
The prosecution does not have to prove, in relation to wine goods, that the wine goods are:
varieties or prescribed geographical indications; in order to prove an offence under section 39J if the prosecution proves that, in either case, the defendant would have committed an offence against that section.
29 Subsection 39ZAA(1)
Repeal the subsection, substitute:
Label integrity program Schedule 2 Amendments Part 1
(1) The Corporation may give a written notice to a person requiring the person, within a specified period and in a specified manner, to do either or both of the following:
30 Section 39ZAB
Repeal the section, substitute:
39ZAB Failure to comply with section 39ZAA notice
(1) A person commits an offence if:
Penalty: 2 years imprisonment.
(2) Subsection (1) does not apply if complying with the notice would tend to incriminate the person.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). (See subsection 13.3(3) of the Criminal Code.)
31 Paragraph 39ZB(2)(b)
Omit “an approved form”, substitute “a form approved by the Corporation”.
32 Paragraph 39ZJ(1)(c)
Repeal the paragraph, substitute:
(c) a person who is prosecuting (or proposing to prosecute), or taking (or proposing to take) other proceedings against, a person under section 39J or 39K.
33 Subsections 39ZL(1A) and (2)
Repeal the subsections, substitute:
Schedule 2 Label integrity program Part 1 Amendments
relevant agency means an Agency (within the meaning of the Public Service Act 1999) with responsibilities relating to the levy or charge.
34 Section 40ZF
Repeal the section, substitute:
40ZF Inspection powers
The provisions of Part VIA relating to inspections, including Division 4 of that Part, apply in relation to this Part in the same way as they apply in relation to Part VIA.
35 Subsection 44(2)
Repeal the subsection, substitute:
(2) The provisions of Part VIA relating to inspections, including Division 4 of that Part, apply in relation to this section in the same way as they apply in relation to that Part.
Label integrity program Schedule 2 Application and transitional provisions Part 2
Part 2—Application and transitional provisions
36 Application of amendments
37 Preservation of instruments
The amendment made by the item of this Schedule listed in column 1 of the table does not affect the continuity of any instrument listed in column 2 of the table that is in force under the Australian Wine and Brandy Corporation Act 1980 immediately before the commencement of this Schedule.
Continuity of instruments | ||
---|---|---|
Item | Column 1 | Column 2 |
Item of this Schedule | Instrument | |
1 | Item 25 | Terms and conditions determined under subsection 30(2) |
2 | Item 26 | Terms and conditions determined under subsection 30(3) |
3 | Item 29 | A notice given under section 39ZAA |
4 | Item 31 | A form approved by the Australian Wine and Brandy Corporation under paragraph 39ZB(2)(b) |
Schedule 3 Compliance Part 1 Main amendments
Australian Wine and Brandy Corporation Act 1980
1 Section 9
Repeal the section.
2 At the end of section 39A
Add:
Note: The Federal Court may grant an injunction under section 44AB if a person has engaged, is engaging or proposes to engage in conduct that contravenes this Part.
3 Subsection 39ZB(3) (penalty)
Repeal the penalty, substitute: Penalty: 1 penalty unit.
4 At the end of section 39ZC
Add:
Note: An inspector may also exercise powers under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).
5 At the end of subsection 39ZD(1)
Add:
Note 1: An inspector may apply for a warrant under this section by telephone or fax under section 39ZI.
Note 2: An inspector may also apply for a warrant under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).
6 Section 39ZE
Repeal the section, substitute:
39ZE Offence powers of inspectors—exercised with consent
(1) An inspector may enter wine premises if:
Compliance Schedule 3 Main amendments Part 1
Note: An inspector may also exercise powers under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).
Consent
Inspector’s powers while on premises
(4) The inspector may do the following while on the premises:
Withdrawal of consent
(5) The inspector may exercise powers under paragraph (4)(b) even if the occupier’s consent is withdrawn after being given. Otherwise, the inspector must leave the premises if the occupier’s consent is withdrawn after being given.
7 At the end of subsection 39ZF(1)
Add:
Note 1: An inspector may apply for a warrant under this section by telephone or fax under section 39ZI.
Note 2: An inspector may also apply for a warrant under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).
8 Section 39ZH
Repeal the section, substitute:
Schedule 3 Compliance Part 1 Main amendments
39ZH Power to require persons to answer questions and produce documents
(1) An inspector who is on wine premises that the inspector has entered under a warrant issued under section 39ZD or 39ZF may require any person on the premises to:
Note: An inspector may also exercise powers under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).
(2) A person commits an offence if:
Penalty: 30 penalty units.
(3) Subsection (2) does not apply if the answer to the question, or the producing of the document, would tend to incriminate the person.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3). (See subsection 13.3(3) of the Criminal Code.)
39ZI Search warrants by telephone and other electronic means
Application for warrant
(1) If, in an urgent case, an inspector considers it necessary to do so, the inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 39ZD or 39ZF in relation to particular wine premises.
Voice communication
(2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances.
Information
(3) Before applying for the warrant, the inspector must prepare an information of the kind mentioned in subsection 39ZD(2) or 39ZF(2) in relation to the wine premises that sets out the grounds
Compliance Schedule 3 Main amendments Part 1
on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.
Issue of warrant
(4) If the magistrate is satisfied:
that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same form of warrant that would be issued under section 39ZD or 39ZF (as the case requires).
Notification
(5) If the magistrate completes and signs the warrant, the magistrate must inform the applicant, by telephone, fax or other electronic means, of:
Form of warrant
(6) The applicant must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must also, not later than the day after the day the warrant is executed, or expires (if the warrant has not been executed first), send to the magistrate:
Schedule 3 Compliance Part 1 Main amendments
Attachment
(8) The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.
Authority of warrant
of the power is not produced in evidence; the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.
39ZIA Offences relating to warrants by telephone and other electronic means
Offence for stating incorrect names in warrants by telephone and other electronic means
(1) A person commits an offence if:
Penalty: Imprisonment for 2 years.
Offence for unauthorised form of warrant
(2) A person commits an offence if:
Compliance Schedule 3 Main amendments Part 1
Penalty: Imprisonment for 2 years.
Offence for execution etc. of unauthorised form of warrant
(3) A person commits an offence if:
Penalty: Imprisonment for 2 years.
Offence for giving unexecuted form of warrant
(4) A person commits an offence if:
Penalty: Imprisonment for 2 years.
9 Subsection 39ZJ(1)
Omit “or section 42”.
10 Subsection 39ZL(1A)
Omit “or under section 42”.
11 At the end of section 40A
Add:
Note: The Federal Court may grant an injunction under section 44AB if a person has engaged, is engaging or proposes to engage in conduct that contravenes this Part.
12 Section 40L
Repeal the section.
Schedule 3 Compliance Part 1 Main amendments
13 Section 42
Repeal the section.
14 Subsections 44(1) and (1A)
Repeal the subsections, substitute:
(1) A person commits an offence if:
Penalty: Imprisonment for 6 months.
Note: The Federal Court may grant an injunction under section 44AB if a person has engaged, is engaging or proposes to engage in conduct that contravenes this section.
15 After section 44AA
Insert:
44AB Injunctions
Compliance Schedule 3 Main amendments Part 1
(iii) the promotion or protection of the interests of consumers of wine.
16 Subparagraph 46(1)(h)(i)
Omit “$1,000”, substitute “50 penalty units”.
17 Subparagraph 46(1)(h)(ii)
Omit “$5,000”, substitute “250 penalty units”.
Schedule 3 Compliance Part 2 Amendment contingent on the commencement of Schedule 1 to this Act
Part 2—Amendment contingent on the commencement of Schedule 1 to this Act
Australian Wine and Brandy Corporation Act 1980
18 Paragraphs 44AB(3)(d) and (e)
Omit “an agreement”, substitute “a designated foreign”.
Compliance Schedule 3 Application and transitional provisions Part 3
Part 3—Application and transitional provisions
19 Preservation of injunctions
The repeal of section 40L of the Australian Wine and Brandy Corporation Act 1980 by item 12 of this Schedule does not affect the continuity of any injunction that is in force under that section immediately before the commencement of this Part.
20 Application of item 14
The amendment made by item 14 of this Schedule applies to the export of a grape product from Australia after the commencement of this Part.
21 Application of item 15
The amendment made by item 15 of this Schedule applies to conduct engaged in, or proposed to be engaged in, after the commencement of this Part.
[Minister’s second reading speech made in— House of Representatives on 22 June 2009 Senate on 15 June 2010]
(95/09)
Schedule 3 Compliance Part 3 Application and transitional provisions