Bills Digest No. 121, 2017–18
PDF version [205KB]
Jonathan Mills
Law and Bills Digest Section
18
June 2018
Date introduced: 28
March 2018
House: House of Representatives
Portfolio: Law
Enforcement and Cybersecurity
Commencement: Sections 1 to 3 will commence on Royal
Assent. Schedule 1 commences the day after Royal Assent. Schedule 2 will
commence on proclamation or six months after Royal Assent, whichever is
sooner.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2018.
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Purpose of
the Bill
The purpose of the Commerce (Trade Descriptions) Amendment
Bill 2018 (the Bill) is to amend the Commerce (Trade
Descriptions) Act 1905 (the CTD Act) to introduce into the trade
descriptions regime the same protections for certain types of country of origin
representations as those that already exist under the Australian Consumer Law in
Schedule 2 of the Competition
and Consumer Act 2010 (Australian Consumer Law). This will bring
the regulation of false trade descriptions relating to country of origin claims
for importing goods into line with the regulation of goods under the Australian
Consumer Law.
Structure
of the Bill
This Bill is divided into two Schedules.
Schedule 1 amends the CTD Act to introduce the
exceptions for country of origin representations that are available under the Australian
Consumer Law, into the control of trade descriptions under the CTD Act.
Schedule 2 amends the CTD Act to permit information
standards made under the Australian Consumer Law, as in force from time
to time, to be incorporated into regulations made under the CTD Act.
Background
The CTD Act regulates the trade descriptions
applied to goods imported to and exported from Australia. Relevantly to the
present Bill, the CTD Act prohibits the importation of goods bearing a
false trade description.[1]
The current provisions in the CTD Act do not contain the exceptions for
certain country of origin claims that are contained in the Australian
Consumer Law.
The Australian Consumer Law contains provisions preventing
a person from engaging in misleading or deceptive conduct or making false or
misleading representations.[2]
Part 5-3 of the Australian Consumer Law provides that certain country of
origin representations made about goods do not contravene those provisions. This
Part of the Australian Consumer Law sets out the tests used to assess
whether claims that certain goods are from a particular country of origin are
justified.
A broad prohibition against false country of origin
representations first appeared on the Australian statute books with the Trade Practices
Act 1974 and exceptions or ‘safe harbours’ were introduced by
the Trade
Practices Amendment (Country of Origin Representations) Act 1998, with the
current form of section 255 being introduced into the Australian Consumer
Law by the Competition
and Consumer Amendment (Country of Origin) Act 2017.[3]
In particular, the first column of the table in subsection
255(1) sets out the specific country of origin representations that will not be
considered to contravene the listed provisions of the Australian Consumer
Law so long as the requirements specified in the second column are met. The
table is extracted below:
Table 1 – Country of origin representations in subsection
255(1) of the Australian Consumer Law
Country of origin representations |
Item |
Representation |
Requirements to be met |
1
|
A representation that goods were grown in a particular
country
|
(a)each significant ingredient or significant component
of the goods was grown in that country; and
(b) all, or virtually all, processes involved in the
production or manufacture of the goods happened in that country.
|
2
|
A representation that goods are the produce of a particular
country
|
(a) the country was the country of origin of each
significant ingredient or significant component of the goods; and
(b) all, or virtually all, processes involved in the
production or manufacture of the goods happened in that country.
|
3
|
A representation that goods were made or manufactured
in, or otherwise originate in, a particular country
|
(a) the goods were last substantially transformed in
that country; and
(b) the representation is not a representation to which
item 1 or 2 of this table applies.
|
4
|
A representation in the form of a mark specified in an
information standard relating to country of origin labelling of goods
|
the requirements under the information standard relating
to the use of that mark.[4]
|
Source: Australian
Consumer Law, subsection 255(1).
The remaining subsections of section 255 provide
interpretation for the terms used in the table.
Committee
consideration
Senate Selection
of Bills Committee
The Selection of Bills Committee recommended that the Bill
not be referred to a committee for inquiry.[5]
Senate
Standing Committee for the Scrutiny of Bills
The Committee had no comment on the Bill.[6]
Policy
position of non-government parties/independents
At the time of writing no non-government parties or independents
had expressed a position on the Bill.
Position of
major interest groups
At the time of writing no major interest groups had
expressed a position on the Bill.
Financial
implications
The Explanatory Memorandum states that there will be no
financial impact from this Bill.[7]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is does not engage any of the rights or
freedoms.[8]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered
that the Bill did not raise any human rights concerns.[9]
Key issues
and provisions
Schedule 1 amends the control of trade descriptions
under the CTD Act to introduce for imported goods, by reference, the same
requirements and exceptions for making country of origin representations as are
found in the Australian Consumer Law. The country of origin requirements
under the Australian Consumer Law are discussed above in the Background
section.
Item 4 inserts proposed section 10AA to
provide that, for the purposes of sections 9, 9A and 10 of the CTD Act,[10]
goods are not taken to have or bear a false trade description if they make a country
of origin representation of a kind listed in column 1 of the table in
subsection 255(1) of the Australian Consumer Law, provided they meet the
corresponding requirements in column 2 of that table.
Proposed subsection 10AA(2) further provides that
subsections 255(2), (5), (7), (8) and (9) of the Australian Consumer Law
apply to proposed subsection 10AA(1) in a corresponding way to their
application to subsection 255(1). These subsections provide further details of
the form and application of the country of origin claims.
Item 5 provides that proposed section 10AA applies
to goods imported on or after commencement of the item.
Schedule 2 amends the CTD Act to permit
information standards made under the Australian Consumer Law as in force
from time to time, to be incorporated by reference in regulations made under
the CTD Act, specifically the Commerce (Trade
Descriptions) Regulation 2016.
Item 1 of Schedule 2 inserts proposed subsection
7(3A) into the CTD Act to provide that, despite subsection 14(2) of
the Legislation Act 2003, regulations made under section 7 may apply,
adopt or incorporate ‘any matter contained in an information standard as in
force or existing from time to time.’
This express provision is necessary to override subsection
14(2) of the Legislation
Act 2003, which states:
(2) Unless the contrary intention appears, the
legislative instrument or notifiable instrument may not make provision in
relation to a matter by applying, adopting or incorporating any matter
contained in an instrument or other writing as in force or existing from time
to time.
Item 1 also inserts proposed subsection 7(3B)
to clarify that, for the purposes of subsection 7(3A), an information
standard is one made under section 134 or declared under section 135 of
the Australian Consumer Law.
The intent of subsection 14(2) of the Legislation Act is
twofold—to avoid uncertainty in the law (as people may have difficulty
determining the current version of the incorporated instrument) and to limit
the circumstances in which the law can change without parliamentary scrutiny
(due to a change in the incorporated instrument). However, as the instruments
to be incorporated are legislative instruments made under Commonwealth legislation,[11]
the approach seems to have raised little concern in this instance.
[1]. Commerce (Trade
Descriptions) Act 1905, sections 9-10.
[2]. Competition and
Consumer Act 2010, Schedule 2-The Australian Consumer Law (Australian Consumer Law), sections 18, 29(1)(a)
and (k) and 151(1)(a) and (k).
[3]. For
a history and overview of the country of origin provisions in the Australian
Consumer Law, see: P Pyburne, Competition
and Consumer Amendment (Country of Origin) Bill 2016, Bills Digest, 9,
2016–17, Parliamentary Library, Canberra, 2016.
[4]. Australian
Consumer Law, subsection 255(1).
[5]. Senate
Selection of Bills Committee, Report,
5, 2018, The Senate, 10 May 2018, p. 4.
[6]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2018, The Senate, 9 May 2018, p. 12.
[7]. Explanatory
Memorandum, Commerce (Trade Descriptions) Amendment Bill 2018, p. 3.
[8]. The
Statement of Compatibility with Human Rights can be found at pages 11 to 13 of
the Explanatory
Memorandum to the Bill.
[9]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 2018, The Senate, 8 May 2018, p. 96.
[10]. These
are the sections of the CTD Act that prohibit the importation of goods
bearing false trade descriptions.
[11]. See
paragraph 131E(1)(i) of the Competition and
Consumer Act 2010.
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