Bills Digest no. 21 2009–10
Australian Wine and Brandy Corporation Amendment Bill
2009
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
Financial implications
Contact officer & copyright details
Passage history
Date
introduced: 22 June
2009
House: House of Representatives
Portfolio: Agriculture, Fisheries and
Forestry
Commencement:
Sections 1 3: on Royal
Assent.
Schedules 1-2: on a
single day to be fixed by proclamation, or if any of the provision
do not commence within 6 months of Royal Assent, then they commence
on the first day after that period.
Schedule 3 Parts 1 and
3: on 28th day after Royal Assent.
Schedule 3 Part 2: the
latter of immediately after the 28th day after Royal
Assent and the commencement of Schedule 1.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
There is a threefold purpose to
the Australian Wine and Brandy Corporation Amendment Bill 2009 (the
Bill):
- to bring into force the Australia European Community (EC)
Agreement on Trade in Wine (the Agreement)
- to further protect Australia s reputation for the production of
wines of quality and integrity by strengthening the Australian Wine
and Brandy Corporation s (AWBC) Label Integrity Program (LIP)
and
- to correct a number of weaknesses with the compliance
provisions of the Australian Wine and Brandy Corporation Act
1980 (the AWBC Act).[1]
In 1996, the Australian wine sector set as one of its key
targets to achieve annual sales of $4.5 billion by the year 2025.
This figure was actually surpassed in 2005 some 20 years
early.[2]
The Australian wine industry expanded very rapidly between the
mid 1990s and the middle of the present decade stimulated by
significant growth in export markets. Production rebounded in 2007
08 following a very sharp downturn in 2006 07 when wine grape
yields fell nearly 30 per cent on the previous year. However,
another significant yield decline occurred in 2008 09 as a result
of ongoing shortages of water for irrigation in some regions; high
temperatures in late January and early February 2009; and bushfires
in Victoria. Consequently, the 2008 09 harvest was about 13 per
cent lower than the previous year.[3] Further growth in wine grape production is
expected over the next few years but at a more modest rate than
during the boom period. It also remains to be seen what impacts, if
any, will flow from the collapse of managed investment schemes
operated by Timbercorp and Great Southern Plantations.
Export demand has recovered somewhat from the sharp fall seen in
2007 08. However, with only subdued growth in export volumes
anticipated in the medium term, a build up of stocks is
expected.[4]
Summary statistics on the Australian wine industry for recent
years are provided in Table 1 along with figures for 1995 96, which
indicate the magnitude of change that has occurred in the industry
since the mid 1990s. In addition to the industry growth reflected
in Table 1, the number of wine companies in Australian more than
doubled between 1995 96 and 2005 06 from 892 to 2008, while direct
employment almost doubled from 15,743 to 31,000.[5]
Table 1: Australian wine industry summary
statistics
s ABARE estimate f ABARE forecast na not available
Sources: Australian Bureau of Agricultural and Resource
Economics, Australian Commodity Statistics and
Australian Commodities, various issues. Australian Bureau
of Statistics, Sales of Australian Wine and Brandy by
Winemakers, cat. no. 8504.0, June 2009, Canberra, 3 August
2009
http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/DDAE510ADB15F334CA257604001AE23E/$File/85040_jun%202009.pdf
Although Australia exports to over 100 destinations, three
markets have long dominated Australia s wine industry the United
Kingdom (UK), the United States (US) and Canada.[6] For the seven years to 2007 08,
the UK accounted for 35% of exports (in value terms) at an average
$905 million per year. Thirty-two per cent of exports went to the
US, averaging $823 million per year. Canada was the third most
important market with 8 per cent of exports or $218 million per
year on average.[7]
The AWBC is a statutory authority, established in 1981 to
provide strategic support to the Australian wine sector.[8] Its responsibilities
include the matters dealt with by the Bill, namely, international
marketing of wine; the integrity of wine labels and wine making
practices; and compliance. The AWBC s objects, functions and powers
are set out in the AWBC Act and the Australian Wine and Brandy
Corporation Regulations 1981 (the AWBC
Regulations).
These objectives are set out in section 3 of the AWBC Act and
include:
- promoting and controlling the export of grape products from
Australia
- promoting and controlling the sale and distribution, after
export, of Australian grape products
- promoting trade and commerce in grape products among the
States; between States and Territories; and within the
Territories
- improving the production of grape products, and encouraging the
consumption of grape products, in the Territories
- enabling Australia to fulfil its international obligations
under prescribed wine-trading agreements
- for the purpose of achieving any of the objects set out in the
preceding paragraphs:
- determining the boundaries of the various regions and
localities in Australia in which wine is produced
- giving identifying names to those regions and localities,
and
- determining the varieties of grapes that may be used in the
manufacture of wine in Australia
- advancing the objects of the AWBC Act by helping to ensure the
truth and the reputation for truthfulness, of statements made on
wine labels, or made for commercial purposes in other ways, about
the vintage, variety or geographical indication of wine
manufactured in Australia, and
- regulating the sale, export and import of wine:
- for the purpose of enabling Australia to fulfil its obligations
under prescribed wine-trading agreements, and
- for certain other purposes for which the Parliament has power
to make laws.
The AWBC s functions relate to defined grape products that
comprise Australian wine, brandy, grape spirit and products derived
in whole or in part from grapes that have been declared by the AWBC
Regulations to be grape products.
Under section 7 of the AWBC Act, the AWBC s functions are:
- promoting and controlling the export of grape products from
Australia
- encouraging and promoting the consumption and sale of grape
products both in Australia and overseas
- improving the production of grape products in Australia
- conducting, arranging for, and assisting in, research relating
to the marketing of grape products, and
- other functions in connection with grape products as are
conferred on the AWBC by the AWBC Act or the AWBC Regulations.
The Geographical Indications Committee s (the GIC s) functions
are set out in section 40P of the AWBC Act and include making
determinations of geographical indications (GIs) for wine in
relation to regions and localities in Australia.
Under section 8 of the AWBC Act, the AWBC has power to do all
things necessary to be done in connection with the performance of
its functions.
On 1 December 2008, Stephen Smith, Minister for Foreign Affaits
and Trade, formally signed the Agreement. The European Union (the
EU) signatory was Mariann Fisher-Boel, the EU Commissioner for
Agriculture and Rural Development. The Agreement had been
initialled in Canberra in June 2007 and replaces the first such
agreement signed in 1994 (the initial Agreement).
Under the EC/Australia Bilateral Wine
Agreement, which came into effect on 1 March 1994, Australia gained
improved access to the EC market through the lowering of technical
barriers to Australia's wines in return for the Australian wine
industry phasing out its use of European geographical indications.
The use of some names such as Hock and White Bordeaux is being
phased out and further negotiations will be held to establish
phase-out arrangements for European names in widespread use in
Australia such as Chablis and Champagne.
The Australian industry will in future use
varietal, regional and brand names to market its wines. There will
also be a need to develop replacement names where protected EC
names have entered into common use, such as Sherry.[9]
In effect, the Agreement is the finalisation of negotiations on
outstanding issues from the initial Agreement, especially on GIs
and traditional expressions (TEs).
The Agreement ensures winemakers have continued access to
Australia s largest export market. During 2007 08, Australia
exported 397 million litres of wine to the EC worth $1.3 billion;
and imported 18 million litres from Europe, valued at $212 million.
The EC accounted for just over half of all Australian wine exports
during that time.
The main benefits to Australian wine producers from the
Agreement are:
European recognition of an additional 16
Australian winemaking techniques
simpler arrangements for approving winemaking
techniques that may be developed in the future
simplified labelling requirements
protection within Europe for Australia s 112
registered GIs
wholesalers will have five years to sell stock
labelled with an EC GI and retailers will be able to sell all their
stock and
defined use of a number of quality terms used
in the presentation and description of wine.[10]
Australia has agreed to:
protect more than 2,500 registered European
GIs; including from member states who have joined the EC since
1994
protect 12 sensitive European GIs that have
previously been used to describe Australian wines
prevent Australian producers from using a range
of European TEs in the language specified in the agreement and
phase out the use of the term Tokay to describe
Australian fortified wines within 10 years.[11]
Negotiation of the Agreement was a long-standing bilateral issue
between Australia and the EU, where expectations that the matter
would have been concluded much earlier were not realised. In
November 2002, for example, then Agriculture Minister the Hon.
Warren Truss:
welcomed the breaking of a deadlock [this week]
between Australian and European Commission officials on proposed
changes to the European Union (EU)/Australian Wine Agreement
and was
hopeful that a revised Wine Agreement can be
concluded in the first half of 2003.[12]
Somewhat previously, the then Deputy Prime Minister and Minister
for Trade, Tim Fischer MP announced that he and Sir Leon Brittan,
the EC Commissioner, had resolved jointly in April 1999 to try to
finalise all outstanding issues at a meeting in June that
year.[13]
At the time of signing, it had been expected that the new
Agreement would take effect in mid-2009, but there has obviously
been some slippage of this timetable.[14]
The signing of the Agreement has been welcomed by the Winemakers
Federation of Australia (WFA), which noted that benefits would
include:
recognition of all existing winemaking
techniques used in Australian production of wine and a simplified
procedure to authorise the approval of new winemaking
techniques.
The WFA also considers:
this agreement ushers in a new era of
cooperation with the European Union, which will bring mutual
benefits, not just to our respective wine industries, but will help
cement wider relations.[15]
The
Explanatory Memorandum states that, in relation to the Bill as a
whole:
The AWBC, as the responsible authority,
requested the amendments. The amendments are supported by the
Winemakers Federation of Australia (WFA), the national
representative body for winemakers with voluntary membership
representing more than 95 per cent of the wine produced in
Australia. The amendments have been discussed at, and are supported
by the Legislation Review Committee (LRC) of the AWBC. The LRC
consists of representatives from WFA, an independent lawyer and the
major wine companies.
A representative of Wine Grape Growers
Australia (WGGA) also attended the LRC and supports the amendments
including the requirement that wine grape growers keep a record of
the geographical indication in which the grapes were grown.[16]
Label Integrity Program
The wine industry LIP was introduced at the request of industry
in 1989, under the provisions of the Australian Wine and Brandy
Corporation Amendment Act 1989. The LIP has its origins in the
first (1981 82) and second Annual General Meetings of the AWBC. At
these forums, the wine industry gave the AWBC permission to
recommend to the Minister that legislation be enacted for an
industry wide system of record keeping to substantiate label claims
in respect of vintage, variety and region of origin. The permission
and subsequent recommendation stemmed from concerns within the
industry over a number of scandals in New South Wales involving
wine additives and the potential effect that further scandals could
have on wine exports.[17]
The regulations covering the LIP require winemakers to keep
records to substantiate label claims and are set out in the AWBC
Act (Part VIA, sections 39A - 39ZL).
The LIP was introduced for the 1990 vintage and
is now the basis of the Australian label-claim system in respect of
vintage, variety and geographical indication Winemakers are not
required to make a label claim about the wine vintage, (grape)
variety or region of origin of the grapes, but must keep an audit
trail if they do. The LIP prescribes what events must be recorded,
but not how records must be kept.
A label claim includes claims made on a wine
label, in a commercial document or in an advertisement, about the
vintage, variety or geographical indication of wine goods or of the
wine goods from which they were manufactured. Generic name wines,
such as Moselle, Claret, Dry Red, Dry White etc., which make no
reference in a label statement as to vintage, variety or
geographical indication, are not included.[18]
The AWBC s 2007 08 Annual Report states:
The Corporation s auditors monitor the industry
for compliance with the LIP provisions of the AWBC Act through an
audit program that checks that the origin of a wine can be traced
from the grapevine through to the despatch of an export consignment
or to the domestic retailer s shelf. A total of 133 LIP audits were
conducted throughout Australia in 2007 08 with 76 wineries visited
in South Australia, 19 in Victoria, 19 in New South Wales and seven
in Tasmania.
Wine sector compliance continues to be very
high. Nevertheless, the export licences of two wine producers were
suspended during the year due to non-compliance with the LIP
provisions. The Corporation is involved in the ongoing prosecution
of a wine producer over allegations of false label integrity
records.[19]
As the current LIP is limited to wine manufacturers, other
players in the wine supply chain are not covered. These include
wineries that only perform a limited range of grape juice
processing procedures, agents, growers, wholesalers and retailers.
The practical consequence of this limitation became evident when
the AWBC investigated an alleged fraud. The LIP s focus on the wine
manufacturer did not allow it to investigate the activities where
the alleged fraud occurred and thus it does not currently ensure
adequate traceability through the wine supply chain.[20]
The objective of the amendments is:
to ensure that the Label Integrity Program
enables the AWBC to verify wine label claims by tracing the supply
chain from grape to the sale of the wine.[21]
The Government expects that the proposed changes will achieve
that objective by requiring all those involved in the production,
distribution and sale of wine and grapes used to make wine, to
record the specified information to ensure a traceable trail
throughout the wine production process.[22]
The Government does not expect the new LIP arrangements to add
to the administrative workload of growers, winemakers and
deliverers who use delivery dockets. Nor is it expected to add to
the workload of wholesalers and retailers.[23]
The Government advises there are no financial implications for
the Commonwealth as a result of the Bill.[24]
Australian Wine Brandy and Corporation Act
1980
Items 1 69 of Schedule 1 in the Bill propose
amendments to the AWBC Act. Item 1 clarifies that
an objective of the Act is to enable Australia to fulfil its
obligations under all relevant international agreements to which
Australia is a party (proposed subsection
3(1)(e)).
Item 7 amends the definition of the term
geographical indication (GI) consistent with the
definition set out in Article 22.2 of the 1994 World Trade
Organisation Agreement on Trade Related Aspects of Intellectual
property Rights. A GI is basically a name or sign used on
certain products, which corresponds to a specific geographical
location or origin (for example, a town, region, or country). The
significance of using a particular GI is that it may act as an
indication or signal that the product in question possesses a
certain quality, or reputation, on account of its geographical
origin. In simple terms, GI law operates to restrict the use of a
GI for the purpose of identifying a certain product, unless the
product or its constituent materials actually come from the region
in question or meet certain standards.
It is noteworthy that Australia has removed the capacity to
register varieties of grapes on the Register of Protected
Geographical Indications and Other Terms, hence the definition of
registered variety of grapes has been repealed (Item
19).
Item 12 repeals the definition of
registered ancillary protected condition in
subsection 4(1); it is replaced by the term registered
conditions of use (item 14), where in
relation to:
- a registered geographical indication; or
- a registered translation of such an indication; or
- a registered traditional expression; or
- a registered quality wine term; or
- 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).
This definition is used by proposed section 40G
(item 37), which creates an offence to sell,
import or export wine in contravention of those conditions of
registered use.
Item 16 defines a registered quality
wine term, as one which is included in Part 3 of the
Register of Protected Geographical Indications and Other Terms
(subsection 4(1)).
As noted earlier, the Agreement benefits Australian winemakers
by improving access to the European markets. One way that this is
achieved, is by defining the use of a number of quality terms used
in the presentation and description of wine. The Agreement allows
Australia to be able to continue to use a variety of EC-claimed
traditional expressions (TEs), which it otherwise could not use on
wines exported to Europe.[25] In the Australian context, TEs will however, be
referred to as quality wine terms.
Item 25 broadens the definition of
description and presentation to include the term
indications (proposed section 5C).
Item 26 gives the AWBC the power to determine
the conditions of use for registered GIs, independently of the GIC
(proposed paragraph 8(2)(aa)).
Items 28 gives the AWBC the power to determine
TEs and conditions of use for those TEs registered in relation to
wine originating from a foreign country (proposed paragraph
8(2)(ac)); and also to determine additional terms and
conditions of use for those additional terms (proposed
paragraph 8(2)(ad)). Item 31 provides
that these determinations must be in writing under the common seal
(proposed subsection 8(2A)).
Item 30 recognises that the GIC s increased
level of responsibility entails a greater workload and therefore
enables the AWBC to charge cost-based fees in relation to the work
of the GIC in determining GIs and translating those determinations
(proposed paragraph 8(2)(ga)).
Item 34 mandates that the AWBC must include in
its annual report, the number of translations of geographical
indications that the GIC determined during the reporting year
(proposed subsection 38(4)).
Item 37 repeals sections 40C 40H, which deal
with provisions relating to sale, import and export of wine, and
replaces them as follows.
The current operation of section 40C, which makes it an offence
to sell, export or import wine[26] with a false description and presentation,
requires the fault element of intention to be made out for all
elements of the offence, thus making successful prosecution of
offenders difficult. However, in relation to the false or
misleading description and presentation element, under
proposed section 40C, it will only be necessary to prove
that only that the relevant was reckless as whether the description
and presentation was false.[27] However, the intention
element is retained for selling, exporting or importing element of
the offence. The existing maximum penalty is unchanged: 2 years
imprisonment.[28]
Proposed section 40D sets out the meaning of
false descriptions and presentations for the
purpose of its application to proposed section 40C. However, this
is subject to proposed sections 40DA and
40DB.
Proposed section 40DA sets out the
circumstances in which a description or presentation is not false.
In general, these circumstances are: the inclusion of a GI,
translation or traditional expression registered for more than one
place; inclusion of a common English word or term; and the
inclusion of the name of an individual or address of winery.
Proposed section 40DB provides details of
circumstances in which description and presentation is not false
with regard to TEs. In general, these circumstances are: the
inclusion of a registered quality wine term; where the wine in
question originates in a non-agreement country; the inclusion of a
trade mark, subject to certain conditions; and the inclusion of a
business name, also subject to certain conditions.
Proposed section 40E details the offence
provisions relating to the sale, export or import of wine with a
misleading description and presentation. The use of recklessness as
a fault element in paragraph (1) (b) mirrors the rationale and
approach in proposed section 40C.
Proposed section 40F sets out the meaning of
misleading descriptions and presentations for the
purposes of proposed section 40E. Basically, the
description and presentation of a wine is misleading where it
includes a registered GI or a registered translation of a
registered GI, and the indication or translation is used in a way
which is likely to mislead a consumer as to the country, region or
locality in which the wine originated (proposed paragraphs
40F(2)(a) and (b)). It is also misleading
where:
- it includes a registered TE in the language in relation to
which the expression is registered;
- the wine is not in the category of wine in relation to which
the expression is registered;
- the wine is not a wine in relation to which the expression is
registered;
- 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 (proposed paragraph
40F(2)(c))
Proposed subsection 40F(3) provides that a
registered GI, a registered translation of a registered GI, or a
registered TE accompanied by an expression, such as kind , type ,
style , imitation , method , or any other similar expression used
in the description and presentation of a wine, is subject to the
misleading provisions of proposed subsection
40F(2).
In general, the description and presentation of a wine may also
be misleading if it includes: a word resembling a GI, translation
or TE (proposed subsection 40F(4)); a name of an
individual; or the name or address of a winery (proposed
subsection 40F(5)), and the use of these names are likely
to mislead as to the country, region or locality in which the wine
originated.
There are circumstances where the description and presentation
of wine will not, in general, be misleading for the purposes of
section 40E and 40F.
Proposed subsection 40FA(1) provides that where
the description and presentation of a wine includes an indication
or term that is a registered GI; a registered translation of such
GI; or a registered TE in relation to a country, region or
locality; and the wine originated from that country, region or
locality, as indicated in the description and presentation that
description and presentation is not misleading merely because the
indication or term either resembles or is a registered GI; a
registered translation of such GI; or a registered TE in relation
to another place. It will also depend on whether usage occurs in
accordance with authorised conditions of use of those terms that
differentiate one term from another.
Proposed subsection 40FA(2) provides that where
the description and presentation of a wine includes a word or a
term that is also a registered GI, translation of a registered GI,
or a registered TE, then the description and presentation is not
misleading merely because:
- the word or term is a common English word or term
- the word or term is not used in such a way as to indicate that
the wine originated in the country, region or locality in relation
to which the GI, translation or TE is registered, and
- the word or term is used in good faith.
It is also recognised that under defined circumstances, a
description and presentation of a wine is not misleading merely
because of the following are included in that description and
presentation: a registered quality wine term (proposed
subsection 40FB(1)); a trade mark (proposed
subsection 40FB(2)); or a business name (proposed
subsection 40FB(3)).
Proposed section 40G deals with offences
relating to the sale, export or import of wine in contravention of
registered conditions of use.
Item 40 amends paragraphs
40K(1)(b) and (c) so as to expand the
category of people who may commence a proceeding under specified
offence provisions, to include people from countries in relation to
which a GI, translation of a registered GI, or a TE is
registered.[29]
Item 42 amends subsection 40M(1) so that
basically, a national food standard as set out in the prescribed
wine-trading agreement (as in force, or as existing from time to
time) has effect, in relation to wine that comes from any foreign
country (proposed 40M(1A)).
Also, replacement practices, processes or requirements must, in
general, be the oenological (or winemaking) practices or processes
or compositional requirements, prescribed by the regulations in
relation to wine originating in any foreign country
(proposed 40M(1B)). Such prescribed oenological
practices or processes or compositional requirements must apply to
wine under the laws and regulations of the foreign country in
question.
Item 44 extends the GIC s function to
determining conditions of use for Australian GIs (proposed
paragraph 40P(1)(b)). In accordance with the regulations,
the GIC is also given additional powers: to deal with applications
for the determination of GIs; translations of GIs; and any
conditions of use applicable to such GIs and translations of GIs in
relation to wine originating in a foreign country (see
items 45 and 55). Where
authorised by regulations, the GIC may also make determinations for
the omission from the Register of Protected GIs and Other Terms
(the proposed Register) of registered GIs and registered
translations of such GIs in relation to a foreign country, region,
or locality in a foreign country (see items 45 and
53). Such determinations are reviewable by the
Administrative Appeals Tribunal (item 55 proposed
subsection 40ZAQ(2)).
Objections to the Registrar of Trade Marks in relation to
determination of foreign country GIs and their translations, and
the grounds for such objection, will also be the subject of
regulatory powers. In addition, the regulations may also enable the
Registrar of Trade Marks to make recommendations to the GIC in
relation to the determination of proposed foreign country GIs and
their translations (proposed paragraph
40ZAQ(3)(d)).
The regulations may also prescribe when appeals against
decisions made by the Registrar of Trade Marks may be made to the
Federal Court (proposed subsection 40ZAR(1)).
However, a decision made under this subsection, or under
regulations made for the purposes of proposed section
40ZAQ does not create or affect a statutory right under
the Trade Marks Act 1995 (the Trade Marks Act) or a common
law right in respect of a trade mark; or in any way pre-empt or
affect a decision of the Registrar of Trade Marks under the Trade
Marks Actin respect of a pending application for the registration
of a trade mark (proposed section 40ZAS).
Item 62 updates the proposed Register of
Protected Geographical Indications and Other Terms.[30] Proposed
subsection 40ZD(1) divides the proposed Register into four
parts:
- Part 1: GIs in relation to wines originating in Australia and
any conditions of use applicable to those indications; as well as
GIs in relation to wines originating in a foreign country, any
translations thereof, and any conditions of use applicable to those
indications and translations
- Part 2: TEs in relation to wines originating in a foreign
country, and any conditions of use applicable to those
expressions
- Part 3: quality wine terms in relation to wines originating in
Australia and any conditions of use applicable to those terms,
and
- Part 4: other terms (not being GIs, translations of GIs, TEs or
quality wine terms) in relation to wines, and any conditions
applicable to those other terms.
Proposed subsections 40ZD(2)
(2C) set out the particulars that must be included in
Parts 1 4 of the proposed Register.
Trade Marks Act 1995
Items 70 76 of Schedule 1 in the Bill propose
amendments to the Trade Marks Act.
Item 71 amends the definition of GI to bring it
in closer alignment with Article 3 of the Agreement
on Trade Related Aspects of Intellectual Property Rights
(proposed section 6).
Item 75 proposes a new reason for which an
opposition to the registration of a trade mark, on the grounds
stated in subsection 61(1) of the Trade Marks Act, will fail. This
is in the case of a registered GI that is also a common English
word and it is not being used in a manner that is likely to deceive
or confuse members of the public as to the origin of the goods
(proposed subsection 61(4)). This proposed
amendment is designed to dovetail with proposed subsection
40DA(2) of the AWBC Act (as discussed above).
Item 76 enables the registered owner of a
registered trade mark to request an amendment to their trade mark
or particulars, as they appear on the Trade Marks Register, in
particular circumstances (proposed subsections
83A(1) and (2)). This is to enable
compliance with the new obligations in so far as they phase out the
use of certain terms (Burgundy, Chablis, Champagne, Graves,
Manzanilla, Marsala, Moselle, Port, Sauteme, Sherry and White
Burgundy) and would thus expose the owner of a trademark with any
of those terms, to prosecution under the AWBC Act. Proposed
subsection 83A(5) provides for the considerations that the
Registrar of Trade Marks must take in account when making a
decision to allow such amendment .
Amendments proposed to the AWBC Act in Schedule 2 of the Bill
relate to the LIP under that Act.
In relation to the operation of the LIP, Schedule 2 defines a
number of key terms including: blend , direct sale , examinable
document , label claim , manufacture , originate (see, in
particular, items 1 23).
Item 27 provides that the persons to whom the
LIP applies includes:
- record keepers by or through whom constitutional corporations
or partnerships carry out their business functions and activities;
and
- record keepers who supply wine goods to certain constitutional
corporations or partnerships (proposed sections
39B ).
In addition, item 27 provides
that the LIP also applies to people who grow grapes that are wine
products; manufacturers, suppliers and receivers of wine products;
whoever is prescribed by regulations for such purpose; as well as
agents of the above listed persons (proposed section
39C). However, regulations may exclude a class of persons
from LIP obligations, or exclude class of persons in specified
circumstances.
Item 28 provides that there is an obligation to
keep written records; and sets out type of the information required
to be retained by the record keeper and the circumstances under
which these records are to be kept (proposed sections 39F
39H). Proposed sections 39J 39M include
offence provisions and set out certain prosecution requirements in
relation to such offences. Maximum penalties now included
imprisonment (up to 2 years) current penalties for LIP-related
record-keeping offences do not appear to include imprisonment.
Item 29 provides that the AWBC may require a
person whose name and address appears on a wine label as the
supplier of the wine to provide specified information in relation
to records required to be kept under Part VIA Division 2 of the Act
and, in some case, to produce the record itself (proposed
39ZAA(1)).
Amendments proposed in Schedule 3 of the Bill relate to
addressing inadequacies in monitoring and enforcing compliance with
requirements under the AWBC Act.
Item 6 gives inspectors a right of entry; and
the power to inspect and secure evidence pending a warrant
application, where the inspector enters wine premises with the
voluntary and informed consent of the wine manufacturer (see
proposed subsections 39ZE(1) (4). Note that when
consent is subsequently withdrawn, although an inspector may
continue to secure evidence pending a warrant application, the
inspector cannot exercise any other power and must otherwise leave
the premises (proposed subsection 39ZE(5).
Item 8 removes does away with reasonable excuse
as a ground for not providing documents to an inspector. However, a
person retains the right to refuse or fail to answer a question or
produce a document if doing so would tend to incriminate the person
(proposed subsection 39ZH(3)).
Proposed section 39ZI enables an inspector to
obtain a search warrant by telephone or other electronic means.
Proposed section 39ZIA provides for offences in
relation to obtaining a warrant by telephone or other electronic
means.
Both of these proposed amendments are consistent with sections
3R and 3ZU respectively of the Crimes Act 1914, which
serves as a model template for such offences.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2404.
[25]. TEs are
words or expressions used in the description and presentation of
the wine to refer to the method of production, or to the quality,
colour or type, of the wine : Department of Agriculture, Fisheries
and Forestry, Australia - European Community Agreement on Trade
in Wine signed 1 December 2008-frequently asked questions, op.
cit. Please note that Australia has agreed to use different
definitions (for the terms cream, ruby, tawny and vintage) for the
domestic market versus the export market. Without this, Australian
wines would be precluded from using these terms to describe wine
destined for export to the EC.
Peter Hicks
Juli Tomaras
21 August 2009
Bills Digest Service
Parliamentary Library
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