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Bills Digest No. 213 1997-98
Trade Practices Amendment (Country of Origin Representations) Bill 1998
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Trade Practices Amendment (Country
of Origin Representations) Bill 1998
Date Introduced: 8 April
1998
House: House of Representatives
Portfolio: Customs and
Consumer Affairs
Commencement: The provisions
relating to country of origin representations in Schedule 1 are to commence
on Proclamation, but not later than six months after this Act receives
Royal Assent. The other miscellaneous amendments to the Trade Practices
Act 1974 contained in Schedule 2 are to commence when this Act receives
Royal Assent.
- To introduce a scheme governing representations
about the country of origin of consumer goods offered for sale in Australia;
- To make a number of other amendments to the Trade Practices Act
1974 which are unrelated to the primary purpose of the Bill. These
are discussed below, in the 'Main Provisions' section of this Digest.
Section 52 of the Trade Practices Act 1974 prohibits
misleading and deceptive conduct in trade or commerce. Section 53(eb)
of the Act makes it unlawful to make a false or misleading representation
about the origin of goods offered for sale in Australia. The Section provides
that:
53. A corporation shall not, in trade or commerce, in connexion with the
supply or possible supply of goods or services or in connexion with the
promotion by any means of the supply or use of goods or services-
(eb) make a false or misleading representation concerning the place of
origin of goods.
All State and Territory Fair Trading legislation contain
equivalent provisions.(1) However, establishing the test in relation to
what is meant by a 'false or misleading representation' concerning the
origin of goods has been a matter of considerable difficulty.
Attempts to establish a test
Case law has provided producers and manufacturers with
some guidance on how the rules of country of origin claims apply to specific
products.(2)
The Federal Court of Australia has considered the meaning
of Section 53(eb) of the Trade Practices Act 1974 in only a small
number of cases. In Thorpe v CA Imports Pty Ltd,(3) the question
of a misleading representation concerning the place of origin of certain
manufactured toy koalas arose. In that case, Justice Sheppherd held that
'the expression "Made in Australia" suggests at least substantial manufacture',
and the fact that the koala casings were cut and sewn in Korea prevented
the statement from being one which correctly described the toy koalas
in question.
Again, in Siddons Pty Ltd v Stanley Works Pty Ltd,(4)
the court held that a metal tool shaped in Taiwan and later modified and
finished in Australia was not made in Australia. The words 'Made in Australia'
in application to a simple tool like a metal spanner meant, in ordinary
language, that most of the processes by which a piece of metal is transformed
into the spanner which was offered for sale have occurred in Australia.
A third case involved a computer modem. In Netcomm
(Aust) Pty Ltd v Dataplex Pty Ltd,(5) the expression 'made in Australia'
was held by Justice Gummow to suggest:
that the steps in the composition or construction of the item, including
the design which makes it the technically proficient equipment it is promoted
to be, were taken in Australia.
In each of these cases the court held that the words
'made in Australia' and other like terms were to be given their ordinary
meaning. The courts have looked at each case according to the facts, and
have applied various tests, depending on the context and nature of the
goods at issue. It is clear, however, that even under the current law,
the Federal Court has not required a product to be completely Australian
in all respects before it can carry the label 'Made in Australia'.(6)
Working Groups on Country of Origin Labelling
of Consumer Products
Since 1992 successive Federal Governments have been working
with industry and consumer groups to develop a scheme to govern representations
about Australian origin of consumer goods. In October 1992 the previous
Government set up two Working Groups to review the extent to which products
currently provide an indication of their country of origin and to develop
descriptors for 'Australian Made' and related terms. The Working Groups
reported together and their Report on Country of Origin Labelling of
Consumer Products was released in May 1993. The Working Groups were
divided in their support for the various options they identified. The
Report's preferred option was to limit the range of terms describing Australian
origin to three, namely 'Made in Australia', 'Product of Australia', and
in the case of unprocessed primary produce, 'Produce of Australia'. The
Report recommended that in order to qualify for these descriptors, the
goods must have acquired their essential character in Australia and that
not less than 85% of the cost of producing the goods must have been incurred
in Australia.(7)
An earlier attempt to legislate
On 23 March 1994 the previous Government introduced the
Trade Practices Amendment (Origin Labelling) Bill 1994 (the 1994 Bill).
The purpose of the 1994 Bill was to insert new provisions into the Trade
Practices Act 1974 to deal with the method of labelling goods which
claimed to be made, manufactured, packed or designed in Australia.(8)
The 1994 Bill incorporated many of the recommendations of the Working
Groups' Report, although a secondary test based on a calculation of the
costs of production incurred in Australia, was abandoned in favour of
a descriptive option for the labelling of consumer goods.
The test used by the 1994 Bill was that goods could be
labelled 'Made in Australia' only if they acquired their essential character
or qualities in Australia. It was stated in the Explanatory Memorandum
to the 1994 Bill that this was the test applied by the Federal Court in
cases brought under the Trade Practices Act provisions prohibiting false
and misleading claims.(9) Senator Meg Lees, in a Question Without Notice,
disputed that the 'essential character' test proposed in the 1994 Bill
was the same as that used by the Federal Court(10) and others have commented
that the court decisions did not actually use the exact words stated in
the Bill.(11)
The 1994 Bill was referred to two separate Parliamentary
Committees.
- The House of Representatives Standing Committee on Industry, Science
and Technology issued its report on the Trade Practices Amendment (Origin
Labelling) Bill in June 1994.(12) The Committee concluded that the approach
taken by the Bill was probably the best in practical terms and recommended
providing additional information and clarifying the definitions used
in the Bill in order to assist industry and consumers.
- The Senate Standing Committee on Legal and Constitutional Affairs
issued a report on 1 September 1994.(13) This report, which contains
two separate dissents, also recommended support for the Bill and for
several amendments that had been foreshadowed. The report canvassed
the views of a large number of producer, consumer and marketing groups
and provides a useful analysis of the various descriptors used to describe
the 'Australian-ness' of goods.
In the event, the 1994 Bill lapsed when Parliament was
prorogued prior to the March 1996 election.
Recent Federal Court decisions on country of
origin labelling
At the same time as the 1994 Bill was being considered
by Parliament, another case concerning Section 53(eb) of the Trade
Practices Act 1974 was before the Federal Court of Australia.
The Trade Practices Commission v QSVD Holdings Pty
Ltd (trading as Bush Friends Australia)(14) (the Bush Friends
Case) again concerned koala soft toys. The koalas were manufactured partly
in China and partly in Australia and all of the components, with the exception
of the filling, were produced overseas. The toys carried a label containing
the statement 'Made in Australia' in large capital letters. Underneath
those words, in smaller print were the words 'with some imported components'.
The claims on the label were the subject of the litigation.
In his decision (which was later approved by the Full
Court of the Federal Court of Australia), Justice Davies considered the
possible bases on which an evaluation of whether the koalas had been 'made
in Australia' could be made. He considered both the use of qualitative
tests such as 'essential character' or 'substantial transformation', and
quantitative measures such as a comparison of the costs incurred in each
country where something had been done to produce the end product. He expressly
rejected the 'essential character' test laid down in the 1994 Bill and
held that the words 'Made in Australia' and other terms were to be given
their common meaning.(15) In the second Bush Friends decision,
Justice Nicholson said that he regarded the 'ordinary meaning' test as
'a legitimate technique of statutory construction'.(16) He justified the
subjective nature of this approach in the following way:
While it is true that the application of the ordinary meaning of the words
leaves the judge deciding the effect of those words on consumers, it is
in fact the impression of the words which is critical to the determination
of whether they are, in the circumstances as found, misleading and deceptive
either generally or in relation to the origin of the goods.(17)
Some commentators on the Bush Friends case have
seen the decision as establishing a definitive precedent for the appropriate
test to be applied in the case of 'Made in Australia' claims. The General
Editor of the Australian & New Zealand Trade Practices Law Bulletin,
Warren Pengilley wrote that:
It [the case] puts to rest the argument that the answer to the question
of whether a produce is 'Made in Australia' should be determined by a
comparative costing exercise or by an applications of customs law. The
test involves neither of these issues. It is solely a question of assessing
the effect of the representation on Australian consumers.(18)
In the Explanatory Memorandum to the current Bill
the Government describes the decision in the Bush Friends case
as being restrictive and says that it has resulted in many firms being
potentially excluded from labelling their products as Australian made
for fear of litigation.(19)
A more recent case [Australian Competition and Consumer
Commission v Lovelock Luke Pty Ltd (1997)](20) concerned air conditioners
which consisted of a number of component parts, one of which (the compressor)
was made overseas. The air conditioners carried labels and a logo, and
were advertised by various combinations of words meaning made in Australia.
In dismissing the case brought by the ACCC, Justice Lockhart held that
'(w)hether an article of commerce is "Made in Australia" must be determined
by reference to the circumstances of each case'.(21) Following the line
of reasoning taken by Justice Sackville in the second Bush Friends
case (the appeal),(22) Justice Lockhart said:
In my opinion, the expression 'place of origin' of goods in s53(eb) focuses
attention on the finished product, that is the goods which the public
sees and buys, the place where the goods acquire their essential character
as articles of commerce, the place where the major processes of manufacture
occur which transform the various component parts into a finished product,
the place where the goods are given their essential function, shape or
appearance. This is substantially the approach taken in the Trade Practices
Amendment (Origin Labelling) Bill 1994 which has lapsed. It is a test
appropriate to the goods in question in this case.(23)
According to the Explanatory Memorandum, this
second case has compounded the uncertainty already created by the Bush
Friends case. This is because the court:
expressly avoided setting down strict criteria for determining the validity
of origin claims. The Court held that such cases should be resolved on
a case-by-case basis. This represents a considerable impediment to compliance.(24)
In his Second Reading Speech, the Minister for Customs
and Consumer Affairs, Hon Warren Truss MP, said that the recent court
decisions have created confusion about the meaning of such terms as 'Made
in Australia', and as a result, 'the market value of Australian origin
claims has been eroded, to the point that producers and manufacturers
are wary of making claims and many consumers are losing confidence in
labelling altogether'.(25)
The current Bill
The purpose of the current Bill is to introduce a scheme
governing representations about the origin of consumer goods supplied
in Australia. This purpose is to be accomplished by inserting a new Division
1AA into Part V of the Trade Practices Act 1974. The Government's
intention in introducing the scheme is to overcome the perceived uncertainty
caused by recent Federal Court decisions, to encourage Australian industry
to label products which have their origin in Australia, and to give consumers
a reliable means of identifying Australian products.
The chief features of the scheme are as follows:
- It is voluntary and will apply only where a manufacturer or supplier
chooses to represent that Australia or another country is the place
of origin of goods;
- It covers goods produced for the Australian market and goods produced
overseas and sold in Australia;
- It deals with representations that goods are 'Made in', or are 'Produced
in' or are a 'Product of' Australia or another country;
- The scheme consists of a primary and a secondary test:
- The primary test is a qualitative measure, that the goods are 'substantially
transformed' in a country if they undergo a fundamental change in
form, appearance or nature such that the goods existing after the change
are new and different goods from those existing before the change.
- The secondary test is a quantitative measure, and refers to the costs
of production or manufacture incurred in Australia and other
countries. For example, goods which claim to be 'Made in Australia',
must have incurred 50% or more of their total manufacturing costs in
Australia. Goods which claim to be a 'Product of Australia' or 'Produced
in Australia' must have 'all or virtually all' Australian ingredients
or inputs, and 'all or virtually all' of the steps in the production
process must have occurred in Australia.
- The scheme covers representations made in words and by means of prescribed
logos.
- The scheme provides a defence against prosecution for breach of Section
53(eb) of the Trade Practices Act 1974. This defence is not extended
to regional descriptors such as 'Made in Queensland' or 'Product of
Tasmania'.(26)
The Bill sets out the framework for the scheme. The details
of a number of aspects are to be worked out in regulations. Some additional
points are covered in the Explanatory Memorandum, including that
- the Australian and New Zealand Food Standards Council will be asked
to determine the need for any additional regulations for food; and
- the proposed legislative framework will be reviewed after five years
or when the World Trade Organisation's international rules of origin
are finalised.(27)
The test proposed by the current Bill
'Substantial transformation'
In the United States, the system used under trade law
for determining the origin of a product centres around the 'substantial
transformation test'. This test is a judge-made rule and it is not defined
in legislation. The test, simply stated, is whether the good has emerged
from a given process with a 'distinctive name, character or use' in a
particular country. For a product to be from a particular country, it
must be substantially transformed there. To prevent a product from having
multiple countries of origin, the good is a product of the country where
it last underwent such transformation.
In the Bush Friends case Judge Davies considered
the substantial transformation test. He concluded that, as a test under
customs legislation, it was relevant to a determination of who should
obtain a benefit or drawback in a tariff preference context, but it was
not necessarily relevant in evaluating where a manufacturing process had
occurred. Accordingly, he decided that the substantial transformation
test, though firmly established under customs regulations, was a different
test to that under the Trade Practices Act 1974. This was because
the Trade Practices Act 1974 test had to relate to the question
of whether consumers in Australia would be misled or deceived or would
be likely to be misled or deceived, and whether there had been a misleading
representation in Australia as to the place of origin of the goods. Justice
Davies did say, however, that if a substantial transformation test was
applied in the Bush Friends case, he would hold that the component
parts were transformed into a toy koala in Australia and that, prior to
their transformation in Australia, they were merely component parts.(28)
In the context of discussing the substantial transformation
test, Justice Davies referred to the approach taken by Joseph A LaNasa
III from the Harvard Law School in an article published in 1993 in the
Harvard International Law Journal.(29) The article discusses
the use of the substantial transformation test in the application of customs
legislation in the United States. The author was critical of the test
saying that it:
Gives customs officials the freedom to apply the standard on a highly
subjective, case by case basis that often results in seemingly arbitrary
decisions. In reviewing these origin determinations, courts have had a
great deal of trouble discerning the point at which a processing operation
causes a product to be substantially transformed, and, as a result, they
have developed a variety of inconsistently applied criteria. Not only
have the courts failed to develop a uniform set of criteria for substantial
transformation, but they have also applied the test inconsistently in
similar situations depending upon the purpose of the determination.(30)
In his Second Reading Speech, the Minister for Customs
and Consumer Affairs, Hon Warren Truss MP, said that 'the use of the substantial
transformation test will align Australian law with international practice'.(31)
The Explanatory Memorandum to the Bill states that '"substantial
transformation" will form the basis for the WTO's [World Trade Organisation]
international rules of origin and is widely utilised overseas'.(32) For
a discussion of country of origin labelling requirements in other countries,
the reader is referred to the Report of the Working Groups on Country
of Origin Labelling of Consumer Products (May 1993, pages 10-11),
and 'It ain't necessarily so: country of origin labelling' (Department
of the Parliamentary Library, Current Issues Brief 20/1994, pages
4-6).
Comparative costs of production
The issues here include the specified percentage of local
costs, what components and processes are to be included in calculating
the costs of production, and the period over which costs are to be calculated.
The Working Groups on Country of Origin Labelling recommended
that, where the Australian input exceeded 85% of the cost of production,
goods might be labelled 'Made in Australia' without qualification.(33)
The Senate Standing Committee on Legal and Constitutional Affairs received
submissions suggesting percentages of Australian input of between 85%
and 95%. The Committee also received evidence that many Australian consumers
believe that 'Made in Australia' means close to 100% Australian ingredients
and processing.(34) The Minister for Customs and Consumer Affairs has
explained the adoption of a figure of 50% by saying that a higher threshold
would disadvantage many local industries which have always been considered
to be producing Australian products. He went on to say:
These firms employ Australians and invest in Australia's future. Who would
tell a person working at General Motors-Holden or Ford that the cars they
are making are not Australian, just because some of their components are
imported? Our trading partners do not hesitate to recognise these products
as Australia; nor should we.(35)
The Minister foreshadowed a public education campaign
to make Australian consumers aware of the meaning of country of origin
representations.
On the question of what is to be included in measuring
the costs of production, the Working Groups recommended a system based
on the practice of the Australian Customs Service which would include
the cost of Australian materials received into the factory, manufacturing
wages, factory overhead expenses, research and development, and the cost
of internal containers. Sales tax, import duty, insurance charges, outer
packaging, distribution and advertising costs would be excluded from the
calculation.(36) The current Bill appears to follow this recommendation
although the details of how costs are to be attributed throughout the
production chain have yet to be spelt out.
The issue of the comparative cost of production also
came up in the Bush Friends case. Comparative cost figures were
given to the court but the court regarded them as unhelpful. Judge Davies
noted that there was a considerable difficulty in using a comparison of
labour costs because wages in China were so much lower than wages in Australia.
Accordingly, he held that a mere comparison of cost figures did not accurately
indicate the extent of the work done in one country as against that carried
out in another.(37)
General comments on country of origin labelling
Country of origin rules were first introduced to gather
statistics to assist in determining supply and demand. Subsequently, countries
entered into tariff arrangements and it became important to label goods
so that a differentiation could be made for tariff and quota purposes.
What was a relatively simple process, when countries were both the producer
and exporter of the finished product, has now become very complex. The
increased globalisation of business and the economic interdependence of
countries have made the identification of the nationality of a product
very difficult. Products today contain parts or ingredients from, or have
undergone manufacturing processes in many countries before ending up on
our shelves. The situation is not confined to technical goods but also
applies to food manufacture where minor but important ingredients (such
as colouring agents, concentrates and other additives) may be imported
and added to the product for domestic consumption.
The World Trade Organisation recognises rules of origin
used by Member countries in applications such as government procurement
and trade statistics. Reports of surveys indicate that a majority of Australian
consumers believe that buying Australian made products helps to support
Australian industry, enterprise and employment.(38) Since 1986 Australian
governments have supported the Australian Made campaign to encourage consumers
to purchase locally made products in preference to imported goods, where
quality and price were comparable. The financial allocation in 1994/95
(the last year in which the Australian Made campaign was financed by the
Commonwealth Government) was $1.5 million. The Australian Made campaign
was evaluated in 1994 by Marsden Jacob Associates. It was found to have
had success in creating new jobs and in increasing Australian manufacturing
output.(39)
The Commonwealth owns the Australian Made certification
mark (logo), a green and gold triangle containing a representation of
a bounding kangaroo. The logo has been available under licence to manufacturers
for inclusion on their product.
Schedule 1
Proposed section 65AB establishes the general
test for country of origin representations. The test to be adopted is
that the goods were 'substantially transformed' (as set out in proposed
section 65AE) and that 50% or more of the cost of producing or manufacturing
the goods (as determined under Subdivision B of Part 1 of this Bill) occurred
in the country to which a representation of origin is being made.
The effect of proposed section 65AC is to establish
a test for representations that goods are the 'Product of' or 'Produce
of' a country. Those descriptors may only be used if each of the significant
ingredients or components of the goods come from the country of representation
and virtually all of the production or manufacturing processes associated
with the goods occur in that country.
The purpose of proposed section 65AD is to enable
a stricter test to apply to goods licensed to carry a prescribed logo.
Subsection 65AD(2) enables regulations to be made which may prescribe
a higher than 51% component of the costs of production or manufacture
for goods carrying a specified logo.
Proposed section 65AE defines the term 'substantially
transformed'. According to this definition, for a substantial transformation
to occur, goods must undergo a fundamental change which alters their appearance,
purpose or how they work. The effect of proposed subsection 65AE(2)
is to enable regulations to be made which specify when a change is not
a 'fundamental change'.
Proposed subdivision B provides for the method
to be used when calculating the costs of production or manufacture. The
total costs of producing or manufacturing a good is defined as the sum
of the expenditure on materials (as determined under proposed section
65AJ), the sum of expenditure on labour (determined under proposed
section 65AK), and the sum of expenditure on overheads (determined
under proposed section 65AL). 'Materials' is defined in proposed
section 65AG to include unmanufactured raw products, manufactured
inputs, and the retail packaging in which the product is offered for sale.
The retail packaging is defined as the 'inner container' to distinguish
it from the outer packaging used when goods are transported. An example
is given of a tin of tomatoes. The tin is included in the calculation
of production costs under the definition of an 'inner container'. The
cardboard box in which the tins are packed for storage or transport is
not.
Proposed sections 65AJ, 65AK, and 65AL provide
a legislative framework for what can be included in the calculation of
production costs.
All the costs of materials used in the production or
manufacture of goods may be counted (proposed section 65AJ) with
the exception of costs, or a portion of the costs, that may be disallowed
by regulation (proposed paragraph 65AJ(2)(a)). Under proposed
paragraph 65AJ(2)(b) the Minister is also able to make regulations
prescribing the manner in which the cost of a material may be worked out.
The Minister is given these powers to make regulations in order to address
any possible uncertainty about how costs are to be attributed throughout
the production chain.
The effect of proposed section 65AK is to include
all labour costs that can be 'reasonably allocated' (the term is not defined
in the Bill) to the production or manufacture of products in the calculation
of production costs. Again the Minister is able to prescribe in regulations
a manner for determining the cost of labour, and to disallow particular
labour costs (proposed subsection 65AK(2).
Proposed section 65AL deals with the calculation
of expenditure on overheads. All overheads that can 'reasonably be allocated'
to the production or manufacture of the goods may be included, except
where explicitly disallowed by virtue of a regulation made under proposed
paragraph 65Al(2)(a). The Minister is given the power to make regulations
prescribing the manner in which the costs of overheads may be determined.
Proposed section 65AM enables the Minister to
make regulations prescribing general rules to be followed when dividing
the total costs of production between different countries. The same rules
are to be used to allocate the costs of production to Australian and to
overseas businesses in the production chain. This power to make regulations
will enable the Minister to fine tune the working of the production cost
test.
The effect of proposed subdivision C (Evidentiary
matters) is to confirm that a person who seeks to rely in court on
the defences provided by the proposed new Division 1AA (Country of Origin
Representations), bears the usual onus of proof.
Part 2 of Schedule 1 contains a number of amendments
that are consequential on the inclusion of proposed new Division 1AA.
The effect of Item 2 is to limit the application of country of
origin representations to goods sold or made available for retail sale
in Australia. The proposed new Division 1AA has no extra-territorial application.
Items 3-12 insert references to the new Division 1AA in the Trade
Practices Act 1974 thereby ensuring consistency.
Schedule 2
Schedule 2 of the Bill includes five other amendments
to the Trade Practices Act 1974 which have no connection with country
of origin representations. Item 1 concerns the appointment of Commissioners
to the Australian Competition and Consumer Commission (ACCC). The effect
of the proposed amendment is to include consideration of small business
experience as a relevant factor in appointing ACCC Commissioners. The
second change brought about by Item 1 is to require the Minister to be
satisfied that all the factors outlined in the subsection have been met
before the Governor-General appoints an ACCC Commissioner.
The effect of Item 2 is to require the Minister,
rather than the Attorney-General, to appoint a Deputy President or Acting
Deputy President to the position of Acting President of the Australian
Competition Tribunal should a vacancy occur.
Item 3 enables the ACCC to take representative
actions on matters of alleged contravention of Part IV (Restrictive Trade
Practices) of the Trade Practices Act 1974. At present the ACCC's
powers to take such actions under subsection 87(1B) are limited to Part
IVA (Unconscionable Conduct) and Part V (Consumer Protection). Item
5 is retrospective legislation. It extends the rights granted under
Item 3 to include conduct committed before this amendment is passed.
- A list of Commonwealth, State and Territory legislative requirements
for country of origin labelling as at May 1993 is included in the Report
of the Working Groups on Country of Origin Labelling of Consumer Products,
Canberra, 1993, Attachment A.
- The Trade Practices Commission also published draft guidelines on
'Made in Australia' labelling, Australian Trade Practices Reporter,
CCH, Sydney, 1986, para. 30-361.
- Thorpe v C A Imports Pty Ltd (1990) ATPR 40-996.
- Siddons Pty Ltd v Stanley Works Pty Ltd (1990-91) 99 ALR 499.
- Netcomm (Aust) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101.
- Bailey, Brendan, It Ain't necessarily so: country of origin labelling,
Department of the Parliamentary Library, Canberra, 1994 (Current issues
brief, Law and Public Administration Group 20/1994), 9.
- Report of the Working Groups on country of origin labelling of
consumer products, Federal Bureau of Consumer Affairs, Canberra,
1993.
- Bini, Marco, Trade Practices Amendment (Origin Labelling) Bill
1994, Department of the Parliamentary Library, Canberra, 1994 (Bills
Digest 60/1994).
- Explanatory memorandum, Trade Practices Amendment (Origin Labelling)
Bill 1994, 5
- Senate, Debates, 2 March 1995, 1281-2.
- Bailey, Brendan, op cit, 9.
-
The Trade Practices Amendment (Origin Labelling) Bill 1994,
House of Representatives, Standing Committee on Industry, Science
and Technology, Canberra, 1994
- The Trade Practices Amendment (Origin Labelling) Bill 1994,
Senate Standing Committee on Legal and Constitutional Affairs, Canberra,
1994.
- Trade Practices Commission v QDSV Holdings Pty Ltd (trading as
Bush Friends Australia) (1994) 128 ALR 551.
- Ibid, 558.
- QSVD Holdings Pty Ltd (t/as Bush Friends Australia) v Trade Practices
Commission (1995), 131 ALR 493 (at 513).
- Ibid, 513.
- Pengilley, Warren, 'Toy koalas and country of origin: the Trade Practices
Act and 'small print' exclusions', Australian and New Zealand trade
practices law bulletin, ,v.10 (9), March 1995, 102.
- Explanatory Memorandum, Trade Practices Amendment (Country
of Origin Representations) Bill 1998, 2.
- Australian Competition and Consumer Commission v Lovelock Luke
Pty Ltd [1977] 1100 FCA (24 October 1977), 39 IPR, 439.
- Ibid, 445.
- QSVD Holdings Pty Ltd (t/as Bush Friends Australia) v Trade Practices
Commission (1995), 131 ALR 493 (at 310-313).
- Australian Competition and Consumer Commission v Lovelock Luke
Pty Ltd [1977] 1100 FCA (24 October 1977).
- Explanatory Memorandum, op cit, 2.
- Second Reading Speech, Trade Practices Amendment (Country of
Origin Representations) Bill 1998, House of Representatives, Debates,
8 April 1998, 1917.
- A number of Australian States or regions have attempted to foster
consumer awareness of their local products by creating regional 'brands'.
The 1994 Bill was criticised, particularly by State Governments and
industry, for effectively prohibiting the use of local representations
such as 'Product of Tasmania' or 'Made in Queensland'. The Bill did
this by prohibiting the use of any alternatives to the defined terms
'Product of Australia' or 'Made in Australia'. Under the 1994 Bill,
if manufacturers or suppliers wished to identify the town, city, region
or State of origin of goods, they could only do so by adding an alternative
identification to the authorised words, such as 'Proudly Tasmanian'
or 'Made in Australia at Bendigo'. The current Bill contains no such
restrictions. However, if a manufacturer chooses to label a good, for
example, both 'Made in Australia' and 'Product of Tasmania', the manufacturer
will know with certainty what 'Made in Australia' will mean under the
current Bill, but will have no certainty under this legislation about
the meaning of the term 'Product of Tasmania'. Such local representations
will be subject to testing under Section 52 of the Trade Practices
Act 1974 and/or under the equivalent provisions of State Fair Trading
laws.
- Explanatory Memorandum, op cit, 11.
- Trade Practices Commission v QDSV Holdings Pty Ltd (trading as
Bush Friends Australia) (1994) 128 ALR 551 (at 558).
- LaNasa, Joseph A, 'Rules of origin under the North American Free Trade
Agreement: a substantial transformation into objectively transparent
protectionism', Harvard International Law Journal, v.34, no.2,
Spring 1993, 381-443.
- LaNasa, ibid, 385.
- Second Reading Speech, op cit, 1917.
- Explanatory Memorandum, op cit, 6. See also Agreement on
rules of origin, World Trade Organisation, [n.d.], available on
the Internet at http://www.wto.org/
- Report of the Working Groups on Country of Origin Labelling of
Consumer Products, op cit, ii.
- Senate Standing Committee on Legal and Constitutional Affairs, op
cit, 10 and footnote 31 on that page. This issue is further discussed
in the Dissenting Report by Senator Sid Spindler, [33-34].
- Second Reading Speech, op cit, 1917.
- Report of the Working groups on Country of Origin Labelling of
Consumer Products, op cit, ii.
- Trade Practices Commission v QDSV Holdings Pty Ltd (trading as
Bush Friends Australia) (1994) 128 ALR 551 (at 556).
- For example, the Advance Australia Foundation reported on a survey
conducted by the Tavener Research Company in May 1995 which stated that
'79% of consumers recognise buying Australian Made helps the economy
and balance of trade', and '95% of consumers agree that buying Australian
Made products in preference to imports creates jobs for Australians'.
The survey also suggested that the Australian Made campaign had been
successful in encouraging more Australian consumers to purchase goods
carrying the Australian Made logo. In May 1995 86% of consumers said
they had purchased products carrying the green and gold symbol, compared
with only 62% of consumers surveyed in May 1988. Australian Made,
Advance Australia Foundation, Melbourne, July 1955, 1.
- The Australian Made Campaign: relevance, rationale and general
equilibrium effects in unemployment and full employment, Marsden
Jacob Associates, Camberwell, Vic., 28 March 1994.
Rosemary Bell
14 May 1998
Bills Digest Service
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