An Act to
establish an Australian Wine and Brandy Corporation, and for related purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Australian
Wine and Brandy Corporation Act 1980.
2
Commencement [see
Note 1]
(1) Sections 1 and 2 and subsection
13(4) shall come into operation on the date on which this Act receives the Royal
Assent.
(2) The remaining provisions of this Act
shall come into operation on a date to be fixed by Proclamation.
3
Objects
(1) The objects of this Act are:
(a) to promote and control the export
of grape products from Australia; and
(b) to promote and control the sale
and distribution, after export, of Australian grape products; and
(c) to promote trade and commerce in
grape products among the States, between States and Territories and within the
Territories; and
(d) to improve the production of grape
products, and encourage the consumption of grape products, in the Territories;
and
(e) to enable Australia to fulfil its
obligations under prescribed wine‑trading agreements; and
(f) for the purpose of achieving any
of the objects set out in the preceding paragraphs:
(i) to determine the
boundaries of the various regions and localities in Australia in which wine is
produced; and
(ii) to give identifying
names to those regions and localities; and
(iii) to
determine the varieties of grapes that may be used in the manufacture of wine
in Australia;
and this Act shall be construed and administered
accordingly.
(2) The Corporation shall perform its
functions or exercise its powers only for the purpose of achieving an object
specified in subsection (1).
4
Interpretation
(1) In this Act, unless the contrary
intention appears:
agreement country means:
(a) if an agreement relating to trade
in wine is in force between the European Economic Community and Australia—an EC
country; and
(b) if an agreement relating to trade
in wine is in force between a foreign country (other than an EC country) and
Australia and is declared by the regulations to be a prescribed wine‑trading
agreement—that foreign country.
annual general meeting means a meeting that
the Corporation is required to convene under section 29W.
annual operational plan means a plan
developed by the Corporation and approved by the Minister in accordance with
Division 2 of Part VA.
Australia includes all the external
Territories.
blending requirements means requirements
relating to the blending of wines of different varieties, geographical
indications or vintages, or any combination of the above.
Chairperson means the Chairperson of the
Corporation.
commencing date means the date fixed under
subsection 2(2).
corporate plan means a plan developed by the
Corporation and approved by the Minister in accordance with Division 1 of
Part VA.
Corporation means the Australian Wine and
Brandy Corporation established by this Act.
corporation, in Part VIB, means a body
corporate that:
(a) is a foreign corporation within
the meaning of paragraph 51(xx) of the Constitution; or
(b) is a trading corporation within
the meaning of that paragraph that is formed within the limits of Australia; or
(c) is incorporated in a Territory.
Corporation’s component of wine grapes levy
has the meaning given by section 31L.
declared wine grape growers organisation
means an organisation in relation to which a declaration is in force under
section 5B.
declared winemakers organisation means an
organisation declared to be a declared winemakers organisation by a declaration
in force under section 5A.
Deputy Chairperson means the Deputy
Chairperson of the Corporation.
description, in relation to wine, has a
meaning affected by section 5C.
dried grapes means grapes containing less
than 60% of moisture.
EC country means a country that is a member
of the European Economic Community.
export means export from Australia.
Federal Court means the Federal Court of
Australia.
fresh grapes means grapes containing not less
than 60% of moisture.
geographical indication, in relation to wine,
means:
(a) a word or expression used in the
description and presentation of the wine to indicate the country, region or
locality in which the wine originated; or
(b) a word or expression used in the
description and presentation of the wine to suggest that a particular quality,
reputation or characteristic of the wine is attributable to the wine having
originated in the country, region or locality indicated by the word or
expression.
grape product means:
(a) wine manufactured in Australia
from prescribed goods;
(b) brandy distilled in Australia from
any such wine;
(c) grape spirit manufactured in Australia
from prescribed goods and suitable for the fortifying of wine or the
manufacture of brandy; or
(d) a product (being prescribed goods
or a product derived in whole or in part from prescribed goods) declared by the
regulations to be a grape product for the purposes of this Act.
industry means the grape products industry in
Australia.
member means a member of the Corporation and
includes the Chairperson.
modify, in relation to oenological practices
and processes, or compositional or other requirements, includes:
(a) add one or more practices or
processes, or compositional or other requirements; and
(b) vary any one or more of the
practices or processes, or of the compositional or other requirements; and
(c) omit any one or more of the
practices or processes, or of the compositional or other requirements.
national food standard means a national
standard within the meaning of the Imported Food Control Act 1992.
organisation means any body of persons,
whether a body corporate or an unincorporated body.
originate, in relation to wine, has the
meaning given by section 5D.
pending, in relation to an application for
the registration of a trade mark under the Trade Marks Act 1995, has the
meaning given in that Act.
prescribed goods means:
(a) fresh grapes;
(b) dried grapes; and
(c) grape juice, whether single‑strength
or concentrated.
prescribed wine‑trading agreement
means:
(a) an agreement relating to trade in
wine that is in force between the European Economic Community and Australia; or
(b) an agreement relating to trade in
wine that is in force between a foreign country (other than an EC country) and Australia
and is declared by the regulations to be a prescribed wine‑trading
agreement.
presentation, in relation to wine, has a
meaning affected by section 5C.
Register means the Register of Protected
Names kept under section 40ZC.
registered means included in the Register.
registered ancillary protected expression
means a word or expression, other than a geographical indication or traditional
expression, that is included in the Register in relation to a particular
country.
registered condition, in relation to:
(a) a geographical indication, a
traditional expression, or any other word or expression, relating to wine; or
(b) a
variety of grapes for use in the manufacture of wine in Australia;
means a condition included in the Register that is
applicable to the geographical indication, traditional expression or other word
or expression, or is applicable to the description and presentation of wine
manufactured from, or from grapes that include, that variety of grapes, as the case
may be.
registered geographical indication means a
geographical indication that is included in the Register in relation to a
particular country.
registered owner, in relation to a trade
mark, means the person in whose name the trade mark is registered under the Trade
Marks Act 1995.
registered trade mark means a trade mark
whose particulars are entered in the Register of Trade Marks under the Trade
Marks Act 1995.
registered traditional expression means a
traditional expression that is included in the Register in relation to a
particular country.
registered variety of grapes means a variety
of grapes that is included in the Register.
Register of Trade Marks means the register
kept under section 207 of the Trade Marks Act 1995.
Registrar means the Registrar of Protected
Names.
Selection Committee means the Australian Wine
and Brandy Corporation Selection Committee.
sell includes offer, expose or advertise for
sale.
trade mark has the meaning given in the Trade
Marks Act 1995.
traditional expression, in relation to wine,
means a word or expression 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.
wine means an alcoholic beverage produced by
the complete or partial fermentation of fresh grapes or products derived solely
from fresh grapes, or both, and includes a grape product declared by the
regulations to be wine for the purposes of this Act.
wine export charge means charge imposed by
Schedule 13 to the Primary Industries (Customs) Charges Act 1999.
wine grapes levy means levy imposed by
Schedule 26 to the Primary Industries (Excise) Levies Act 1999.
year means a period of 12 months commencing
on 1 July.
(3) If a prescribed wine trading agreement is
in force between the European Economic Community and Australia, each EC country
is taken, for the purposes of this Act, to be a party to the agreement.
Note: For the manner in which the Chairperson and
Deputy Chairperson may be referred to, see section 18B of the Acts
Interpretation Act 1901.
4A
Extension to external Territories
This Act extends to all the external
Territories.
4B
Application of the Criminal Code
Chapter 2 (other than Part 2.5)
of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
5A
Declared winemakers organisations
Where the minister considers that an
organisation is a national organisation which is representative of winemakers,
the Minister may, by notice in writing published in the Gazette, declare
that organisation to be a declared winemakers organisation.
5B
Declared wine grape growers organisation
If the Minister considers that an
organisation is a national organisation that is representative of growers of
wine grapes, the Minister may, by notice published in the Gazette,
declare the organisation to be a declared wine grape growers organisation.
5C
Meaning of description and presentation
In this Act, a reference to the
description and presentation with which wine is sold, exported or imported is a
reference to all names (including business names) or other descriptions,
references (including addresses), signs, designs and trade marks used to
distinguish the wine and appearing:
(a) on the container (including on the
device used to seal the container or on a label affixed to the container), on
any tag attached to the container or, if the container is a bottle, on the
sheathing covering the neck of the bottle; or
(b) on protective wrappings (such as
papers and straw envelopes of all kinds), cartons and cases used in the
packaging of the wine or the transport of the wine; or
(c) in documents relating to the
transport of the wine or in other commercial documents (for example, invoices
or delivery notes) relating to the sale or transport of the wine; or
(d) in advertisements relating to the
wine.
5D
Where wine originates
For the purposes of this Act:
(a) a wine is taken to have originated
in a foreign country or Australia only if the wine is made from grapes grown
within the territory of that country or of Australia, as the case may be; and
(b) a wine is taken to have originated
in a particular region or locality of a foreign country or of Australia only if
the wine is made from grapes grown in that region or locality.
Part II—The Australian Wine and Brandy Corporation
6
Establishment of Corporation
There is established by this Act a
corporation by the name of the Australian Wine and Brandy Corporation.
7
Functions of Corporation
The functions of the Corporation are:
(a) to promote and control the export
of grape products from Australia;
(b) to encourage and promote the
consumption and sale of grape products both in Australia and overseas;
(c) to improve the production of grape
products in Australia;
(d) to conduct, arrange for, and
assist in, research relating to the marketing of grape products; and
(e) such other functions in connection
with grape products as are conferred on the Corporation by this Act or the
regulations.
8 Powers
of Corporation
(1) Subject to this Act, the Corporation has
power to do all things necessary or convenient to be done for, or in connection
with, the performance of its functions.
(2) Without limiting the generality of subsection (1),
the powers of the Corporation referred to in that subsection include power:
(aaa) to do anything for the purpose of
giving effect to a prescribed wine‑trading agreement; and
(aa) to determine any conditions that
are to be applicable to registered geographical indications in relation to
wines manufactured in Australia or an agreement country; and
(ab) to determine any conditions that
are to be applicable to registered traditional expressions in relation to wines
manufactured in Australia or an agreement country; and
(ac) to determine any conditions that
are to be applicable to registered ancillary protected expressions in relation
to wines manufactured in Australia or an agreement country; and
(ad) to determine any geographical
indications or traditional expressions that are to be registered in relation to
a foreign country that is not an agreement country and to determine any
conditions that are to be applicable to those indications or expressions; and
(ae) to determine the varieties of
grapes from which wine may be manufactured in Australia and to determine any
conditions that are to be applicable to the description and presentation of
wine manufactured from grapes of those varieties; and
(a) to control the export of grape
products from Australia by determining the persons, other than the Corporation,
who shall be permitted to export grape products and the conditions under which
such exports will be permitted; and
(b) at the request of a person
engaging, or proposing to engage, in the export of a grape product, to co‑ordinate
activities relating to the promotion of the export of the grape product; and
(c) where a grape product proposed to
be exported from Australia to a foreign country meets the requirements of that
country for importation into that country, issue certificates that the product
meets those requirements; and
(d) to the extent required to promote
the export of grape products from Australia, or the sale of grape products
overseas, by persons other than the Corporation, to buy, sell or otherwise
engage in trade in grape products and do all things necessary or convenient for
engaging in that trade; and
(e) to engage, or make arrangements
with, persons, organisations or companies to perform work, or act as agent, for
the Corporation, whether in Australia or overseas; and
(f) to charge such fees as are fair
and proper to enable the Corporation to meet costs incurred by the Corporation
in administering licensing arrangements relating to the export of grape
products (including costs in relation to the grant or renewal of licences) and
in ensuring that persons who are licensed to export grape products comply with
the conditions under which the export of the grape products is permitted; and
(g) to charge for the provision of
services, or the performance of work, by, or on behalf of, the Corporation; and
(h) to waive the payment of fees and
charges payable to the Corporation.
(2A) A determination under paragraph (2)(aa),
(ab), (ac), (ad) or (ae) is to be in writing under the Corporation’s common
seal.
(2B) When the Corporation makes a determination
referred to in subsection (2A), the Chairperson must cause a notice
stating that the determination has been made and setting out the terms of the
determination to be published in any manner that the Corporation thinks
appropriate.
(2C) The notice must include a statement to the
effect that:
(a) subject to the Administrative
Appeals Tribunal Act 1975, application may be made, by or on behalf of any
person whose interests are affected by the determination, to the Administrative
Appeals Tribunal for review of the determination; and
(b) unless subsection 28(4) of that
Act applies, application may be made in accordance with section 28 of that
Act by or on behalf of the person for a statement in writing setting out the findings
on material questions of fact, referring to the evidence or other material on
which those findings were based and giving the reasons for the determination.
(2D) Any failure to comply with subsection (2C)
in relation to a determination does not affect the validity of the
determination.
(2E) Application may be made to the
Administrative Appeals Tribunal for review of a determination.
(2F) Section 29 of the Administrative
Appeals Tribunal Act 1975 has effect in relation to an application for
review of a determination as if the following subsections were inserted after subsection (1):
“(1A) Despite paragraph (1)(d) and subsection (2),
an application to the Tribunal for review of a determination made under
paragraph 8(2)(aa), (ab), (ac), (ad) or (ae) of the Australian Wine and
Brandy Corporation Act 1980 must be made within 28 days after notice of the
determination is published in accordance with subsection 8(2B) of that Act.
“(1B) Despite subsection (8), an
application under subsection (7) in respect of a determination under
paragraph 8(2)(aa), (ab), (ac), (ad) or (ae) of the Australian Wine and
Brandy Corporation Act 1980 must be made before the time fixed by subsection (1A)
ends.”.
(2G) The Chairperson must give a copy of the
determination to the Registrar so that particulars of the determination can be
included in the Register:
(a) if an application is duly made to
the Administrative Appeals Tribunal for review of the determination—as soon as
practicable after the decision of the Tribunal on the review is given; or
(b) otherwise—as soon as practicable
after the 28th day after notice of the determination is published in accordance
with subsection (2B).
(2H) The determination takes effect on the day
on which particulars of the determination are included in the Register.
(3) Subject to subsection 31K(4), the
Corporation shall endeavour to ensure, to the extent that it is practicable to
do so, that the performance at any time of its functions and the exercise at
any time of its powers is consistent with, and designed to give effect to, the
provisions of any corporate plan and of any annual operational plan in force at
that time.
9
Contracts for carriage of grape products
(1) The Corporation may, by notice published
in the Gazette, approve a person as a carrier for the purposes of the
carriage of a specified grape product to a specified place outside Australia.
(2) The Corporation may, by notice published
in the Gazette, determine that a contract, or a contract included in a
class of contracts, for the carriage of a specified grape product to a
specified place outside Australia shall not be entered into except with the
approval of the Corporation.
(3) An approval under subsection (2)
may00. be given subject to such conditions (if any) as the Corporation
determines.
(4) While an
approval under subsection (1) is in force in relation to a place outside
Australia, a person shall not enter into a contract with another person for the
carriage by that other person of a grape product specified in the notice of
approval to that place unless that other person is approved under that
subsection in relation to that place.
Penalty: $6,000.
(5) A person
other than the Corporation shall not enter into a contract with another person
for the carriage by that other person of a grape product in relation to which a
notice under subsection (2) is in force to a place outside Australia
specified in that notice except with the approval of the Corporation and in
conformity with the conditions (if any) to which that approval is subject.
Penalty: $6,000.
(5A) An offence under subsection (4) or (5)
is an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(6) Subsection (4) does not apply to the
Corporation in relation to any grape product when acting on its own behalf or
as the agent of the owner of the grape product or of a person having the
authority to export the grape product.
(7) A collector or officer for the purposes
of the Customs Act 1901 may require a person who seeks to export
from Australia to a place outside Australia in relation to which a notice under
subsection (2) is in force a grape product specified in the notice, on
making entry of the grape product under that Act and before the entry has been
passed, to satisfy him that:
(a) the contract for the carriage of
the grape product to that place was entered into with the approval of the
Corporation and in conformity with the conditions (if any) to which that
approval is subject; and
(b) the
carrier undertaking the carriage of the grape product to that place is approved
by the Corporation under subsection (1) as a carrier for the purposes of
the carriage to that place of a grape product of a kind to which that contract
relates;
and the collector or officer may refuse to pass the entry
until that person has so satisfied him.
(8) A contract entered into for the carriage
of a grape product to a place outside Australia is not unenforceable, voidable
or void by reason only of the contract having been entered into in contravention
of subsection (4) or (5).
10
Power to enter into arrangements etc.
Without limiting the generality of
section 8, the Corporation may enter into arrangements or agreements with
persons, authorities or organizations in Australia or overseas, or, with the
consent of the Minister, with a State, for the purposes of the Corporation.
11
Committees
(1) The Corporation may appoint a committee
to assist the Corporation in relation to a matter.
(1A) Without limiting subsection (1), the
Corporation may appoint a committee under that subsection to perform the
functions appropriate for an executive committee of the Corporation.
(2) A committee established under this
section shall consist of such persons, including at least 1 member of the
Corporation, as the Corporation thinks fit.
Part III—Constitution and meetings of the Corporation
12
Nature of Corporation
(1) The Corporation:
(a) is a body corporate with perpetual
succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of
real and personal property; and
(d) may sue and be sued in its
corporate name.
Note: The Commonwealth Authorities and Companies
Act 1997 applies to the Corporation. That Act deals with matters relating
to Commonwealth authorities, including reporting and accountability, banking
and investment, and conduct of officers.
(2) All courts, judges and persons acting
judicially shall take judicial notice of the common seal of the Corporation
affixed to a document and shall presume that it was duly affixed.
13
Membership of Corporation
(1) The Corporation shall consist of:
(a) a Chairperson; and
(c) 7 other members.
(2) The members shall be appointed by the
Minister in writing.
(3) The members shall be appointed as part‑time
members.
(4) The Minister must not appoint a person to
be a member referred to in paragraph (1)(c) unless the Minister is
satisfied that the person has knowledge of, or experience in, one or more of
the following:
(a) winemaking;
(b) grape growing;
(c) marketing;
(d) finance;
(e) business management and
administration;
(f) government policy processes and
public administration.
(5) The members referred to in paragraph (1)(c)
shall be appointed from persons nominated by the Selection Committee in
accordance with section 29F.
(6) A member holds office on such terms and
conditions (in respect of matters not provided for by this Act) as are
determined by the Minister in writing.
(7) The performance of the functions and the
exercise of the powers of the Corporation are not affected by reason only of
there being a vacancy or vacancies in the membership of the Corporation.
14
Term of office of members
(1) Subject to this Act, the Chairperson or a
member referred to in paragraph 13(1)(c) holds office for such period, not
exceeding 3 years, as is specified in the instrument of appointment, but he or
she is eligible for re‑appointment.
(5) Whenever a vacancy occurs in the office
of Chairperson or of a member referred to in paragraph 13(1)(c) before the
expiration of the person’s term of office, the Minister may, in accordance
with, and subject to, section 13, appoint a person to the office for the
remainder of that period.
15
Deputy Chairperson
(1) The Minister shall, by writing signed by
the Minister, appoint a member other than the Chairperson to be Deputy
Chairperson of the Corporation.
(2) The Minister shall not appoint a member
as the Deputy Chairperson unless the Minister has consulted with the
Chairperson and the Presiding Member of the Selection Committee concerning the
appointment.
(3) Subject to this Act, the Deputy
Chairperson holds office for such period as is specified in the instrument of
appointment, but he or she is eligible for re‑appointment.
(4) The Minister may, at any time, terminate
an appointment under subsection (1).
(5) A member holding office as Deputy
Chairperson may resign that office by writing signed by him or her and
delivered to the Minister.
(6) A member holding office as Deputy
Chairperson ceases to hold that office if he or she ceases to be a member.
(7) Whenever a vacancy occurs in the office
of Deputy Chairperson before the expiration of the period of his or her
appointment, the Minister may, in accordance with this section, appoint another
member to hold that office for the remainder of that period.
(8) While the office of Chairperson is vacant
or the Chairperson is absent from Australia or is, for any other reason, unable
to perform the functions of the office of Chairperson and the Deputy
Chairperson is available to perform the functions of the office of Chairperson,
the Deputy Chairperson has and may exercise all the powers, and shall perform
all the functions, of the Chairperson under this Act.
16
Leave of absence
(1) The Minister may grant leave of absence
to the Chairperson from a meeting or meetings of the Corporation.
(2) The Chairperson may grant leave of
absence to another member from a meeting or meetings of the Corporation.
17
Resignation of members
A member may resign from the office of
member by writing signed by the member delivered to the Minister.
20
Termination of appointments
(1) The Minister may terminate the
appointment of a member by reason of the misbehaviour, or the physical or
mental incapacity, of the member.
(4) If a member:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit;
(b) fails, without reasonable excuse,
to comply with his or her obligations under section 27F or 27J of the Commonwealth
Authorities and Companies Act 1997;
(c) being a member to whom subsection
40(7) applies, fails, without reasonable excuse, to comply with the condition
referred to in that subsection; or
(d) is absent from 3 consecutive meetings
of the Corporation otherwise than:
(i) on business of the
Corporation undertaken with the approval of the Corporation or of a committee
of the Corporation; or
(ii) on
leave of absence granted under section 16;
the Minister shall terminate the appointment of the
member.
21
Disclosure of interests by members of Corporation
(4) For the purposes of sections 27F and
27J of the Commonwealth Authorities and Companies Act 1997, a member who
is a winemaker or a grape grower is not taken to have a material personal
interest in a matter being considered or about to be considered by the
Corporation by reason only of being a winemaker or a grape grower.
22
Meetings of Corporation
(1) Subject to this section, meetings of the
Corporation shall be held at such times and places as the Corporation from time
to time determines.
(2) The Chairperson may at any time convene a
meeting of the Corporation.
(3) At a meeting of the Corporation, 5
members constitute a quorum.
(4) The Chairperson shall preside at all
meetings of the Corporation at which the Chairperson is present.
(5) If the Chairperson is not present, but
the Deputy Chairperson is present, at a meeting of the Corporation, the Deputy
Chairperson shall preside at that meeting.
(6) If neither the Chairperson nor the Deputy
Chairperson is present at a meeting of the Corporation, the members present
shall elect one of their number to preside at that meeting.
(7) A question arising at a meeting of the
Corporation shall be decided by a majority of the votes of the members present
and voting.
(8) The member presiding at a meeting of the
Corporation has a deliberative vote and, in the event of an equality of votes,
has a casting vote.
(9) The Corporation shall keep minutes of its
proceedings.
(10) Subject to the preceding provisions of
this section, the procedure at meetings of the Corporation shall be as
determined by the Corporation.
(11) The Corporation may invite a person to
attend a meeting of the Corporation for the purpose of advising or informing
the Corporation on any matter.
(12) A person referred to in subsection (11)
shall be paid such fees, allowances and expenses (if any) as the Corporation
determines in respect of the person’s attendance at a meeting of the
Corporation.
Part IVA—Australian Wine and Brandy Corporation Selection Committee
29AA
Interpretation
In this Part:
Committee means the Australian Wine and
Brandy Corporation Selection Committee.
Presiding Member means the Presiding Member
of the Committee.
29A
Establishment of Committee
A Committee by the name of the
Australian Wine and Brandy Corporation Selection Committee is established.
29B
Functions of Committee
The functions of the Committee are:
(a) to select persons to be nominated
for appointment as members of the Corporation referred to in paragraph 13(1)(c);
and
(b) to nominate persons so selected to
the Minister for appointment as members of the Corporation.
29C
Powers of Committee
The Committee has power to do all things
that are necessary or convenient to be done for, or in connection with, the
performance of its functions.
29D
Minister may request nominations
The Minister may, by notice in writing
given to the Presiding Member, request the Committee to give to the Minister,
within the period specified in the notice:
(a) written nominations of persons for
appointment as members of the Corporation referred to in paragraph 13(1)(c); or
(b) where a casual vacancy occurs in
the office of a member of the Corporation referred to in paragraph (a)—a
written nomination of a person for appointment to that office.
29E
Selection of persons by Committee
(1) The Committee shall not nominate a person
for appointment as a member of the Corporation unless the person possesses one
or more of the qualifications referred to in subsection 13(4).
(2) The Committee shall not nominate a person
for appointment as a member of the Corporation if:
(a) the person is a member of the
Committee; or
(b) the person has been a member of
the Committee within 12 months of the day on which the nomination is given to
the Minister.
29F
Nomination
(1) Where the Minister gives a request to the
Presiding Member under section 29D:
(a) the Committee shall, before the
end of the period specified in the notice, select a person or persons to be
nominated for appointment to the office or offices concerned; and
(b) the Presiding Member shall, on
behalf of the Committee, before the end of that period, give to the Minister
the written nomination or nominations concerned.
(2) The Committee shall give to the Minister
only one nomination in respect of each appointment to be made by the Minister.
(3) Where the Committee proposes to nominate
a person for appointment as a member of the Corporation, the Presiding Member
shall cause to be prepared and attached to the nomination a statement setting
out:
(a) details of the person’s
qualifications and experience; and
(b) such other information relating to
the person as the Committee thinks will assist the Minister in considering
whether to appoint the person.
(4) The Committee may nominate a person for
appointment even though the Minister has previously rejected a nomination of
that person or the Committee has previously decided not to nominate the person
for appointment.
29G
Minister may reject nominations
Where the Minister is not satisfied that
a person nominated by the Committee for appointment as a member of the
Corporation should be appointed as such a member, the Minister may, by notice
in writing given to the Presiding Member, reject the nomination and may include
in that notice a further request under section 29D for a nomination of a
person for appointment to the office concerned.
29H
Membership of Committee
(1) The Committee shall consist of the
following members:
(a) a Presiding Member; and
(b) such other number of members as is
determined by the Minister.
(2) The members of the Committee shall be
appointed in writing by the Minister and, subject to this Act, hold office for
such period, not exceeding 3 years, as is specified in the instrument of appointment,
but are eligible for re‑appointment.
(3) Each member of the Committee referred to
in paragraph (1)(b) shall be a person who has been nominated by a declared
winemakers organisation.
(4) All members of the Committee shall be
appointed as part‑time members.
(5) A person who is a member of the
Corporation is not eligible to be appointed under subsection (2) as a
member of the Committee.
(6) The appointment of a member of the
Committee is not invalidated, and shall not be called in question, because of a
defect or irregularity in or in connection with the member’s nomination or
appointment.
(7) The exercise of a power or the
performance of a function by the Committee is not invalidated because of a
vacancy or vacancies in the membership of the Committee.
29J
Acting Presiding Member
(1) The Minister may appoint a person to act
as Presiding Member:
(a) during a vacancy in the office of
Presiding Member (whether or not an appointment has previously been made to the
office); or
(b) during
any period, or during all periods, when the Presiding Member is absent from
Australia or is, for any other reason, unable to perform the functions of the
office of Presiding Member;
but a person appointed to act during a vacancy shall not
continue to act for more than 12 months.
(2) An appointment of a person under subsection (1)
may be expressed to have effect only in such circumstances as are specified in
the instrument of appointment.
(3) The Minister may determine the terms and
conditions of appointment, including remuneration and allowances, of a person
acting as the Presiding Member.
(4) The Minister may terminate an appointment
made under subsection (1) at any time.
(5) Where a person is acting as Presiding
Member in accordance with paragraph (1)(b) and the office of Presiding
Member becomes vacant while the person is so acting, then, subject to subsection (2),
the person may continue to act until the Minister otherwise directs, the
vacancy is filled or a period of 12 months from the day on which the vacancy
occurred expires, whichever first happens.
(6) The appointment of a person to act as
Presiding Member ceases to have effect if the person resigns the appointment by
writing signed by the person and delivered to the Minister.
(7) While a person is acting as Presiding
Member, the person has and may exercise all the powers, and shall perform all
the functions, of the Presiding Member under this Act.
(8) Anything done by or in relation to a
person purporting to act under subsection (1) is not invalid on the ground
that:
(a) the occasion for the person’s
appointment had not arisen;
(b) there is a defect or irregularity
in connection with the person’s appointment;
(c) the person’s appointment had
ceased to have effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
29K
Casual vacancy
Where a member of the Committee ceases
to hold office before the expiration of the term of office of the member of the
Committee:
(a) in the case of the Presiding
Member—the Minister may appoint a person to be the Presiding Member until the
expiration of that term; or
(b) in the case of any other member of
the Committee—the Minister may appoint a person to be a member until the
expiration of that term.
29L
Remuneration and allowances of members of Committee
(1) A member of the Committee shall be paid
such remuneration as is determined by the Remuneration Tribunal, but, if no
determination of that remuneration by the Tribunal is in operation, the member
shall be paid such remuneration as is prescribed.
(2) A member shall be paid such allowances as
are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973, other than subsections 7(9) and (13) of that Act.
29M
Leave of absence
(1) The Minister may grant leave of absence
to the Presiding Member from a meeting of the Committee.
(2) The Presiding Member may grant leave of
absence to another member of the Committee from a meeting of the Committee.
29N
Resignation
A member of the Committee may resign
from office by writing signed by the member and delivered to the Minister.
29P
Termination of appointment of members of Committee
(1) The Minister may terminate the
appointment of a member of the Committee by reason of misbehaviour or physical
or mental incapacity.
(2) If a member of the Committee:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit;
(b) fails, without reasonable excuse,
to comply with his or her obligations under section 29Q; or
(c) is
absent, without leave of absence under section 29M, from 3 consecutive
meetings of the Committee;
the Minister shall terminate the appointment of the member
of the Committee.
29Q
Disclosure of interests by members of Committee
(1) A member of the Committee who has a
direct or indirect pecuniary interest in a matter being considered or about to
be considered by the Committee shall, as soon as possible after the relevant
facts have come to the knowledge of the member, disclose the nature of that
interest at a meeting of the Committee.
(2) A disclosure under subsection (1)
shall be recorded in the minutes of the meeting of the Committee and the member
shall not, unless the Minister or the Committee otherwise determines:
(a) be present during any deliberation
of the Committee with respect to that matter; or
(b) take part in any decision of the
Committee with respect to that matter.
(3) For the purpose of the making of a
determination by the Committee under subsection (2) in relation to a
member who has made a disclosure under subsection (1), a member who has a
direct or indirect pecuniary interest in the matter to which the disclosure
relates shall not:
(a) be present during any deliberation
of the Committee for the purpose of making the determination; or
(b) take part in the making by the
Committee of the determination.
(4) A member of the Committee who has a
direct or indirect pecuniary interest in a matter being considered or about to
be considered by the Committee in accordance with section 29S shall, as
soon as practicable after the relevant facts have come to the knowledge of the
member, disclose the nature of that interest to the Minister.
(5) A member of the Committee who is required
to make a disclosure under subsection (4) in respect of a matter shall
not, unless the Minister otherwise determines, sign a document with respect to
that matter in accordance with section 29S.
(6) A member of the Committee who is a
winemaker shall not be taken to have a pecuniary interest in a matter being
considered or about to be considered by the Committee by reason only of being a
winemaker.
29R
Meetings of Committee
(1) Meetings of the Committee shall be held
at such times and places as the Committee from time to time determines.
(2) A meeting of the Committee may be called
by the Presiding Member.
(3) At a meeting of the Committee, a number
one less than the number of members of the Committee constitutes a quorum.
(4) The Presiding Member shall preside at all
meetings of the Committee at which the Presiding Member is present.
(5) If the Presiding Member is not present at
a meeting of the Committee, the members of the Committee who are present shall
elect one of their number to preside at the meeting.
(6) A question arising at a meeting of the
Committee shall be decided by a majority of the votes of the members of the
Committee present and voting.
(7) The member of the Committee presiding at
a meeting of the Committee has a deliberative vote and, in the event of an
equality of votes, also has a casting vote.
(8) The Committee shall keep minutes of its
proceedings.
29S
Resolutions without meetings
Where:
(a) a copy of a document setting out a
proposed resolution of the Committee comes into the possession of the number of
members of the Committee constituting a quorum; and
(b) a
majority of those members sign a copy of the document;
a resolution of the Committee in the terms set out in the
document shall be deemed to have been passed at a meeting of the Committee on
the day on which the copies of the document were signed or, if the members of
the Committee who signed the copies of the document did not sign on the same
day, on the latest day on which a copy of the document was signed by such a
member.
29T
Staff and consultants
(1) The Presiding Member may, on behalf of
the Committee, engage persons to perform administrative and clerical services
in connection with the performance of its functions.
(2) The Presiding Member may, on behalf of
the Committee, engage persons having suitable qualifications and experience as
consultants to the Committee to assist the Committee in identifying persons
suitable for nomination to the Minister.
(3) The terms and conditions of engagement of
persons engaged under subsection (1) or (2) shall be such as are
determined by the Committee.
29TA
Annual report
(1) The Committee must, as soon as
practicable after 30 June in each year, prepare and give to the Minister a
report of the operations of the Committee (if any) during the financial year
that ended on that 30 June.
(2) A report for a financial year may,
subject to agreement between the Presiding Member and the Chairperson, be
included, as a discrete part, in the annual report for the Corporation for that
financial year.
Note: The annual reporting obligations for the
Corporation are contained in the Commonwealth Authorities and Companies Act
1997.
(3) If subsection (2) does not apply to
a report under this section, the Minister must cause a copy of the report to be
laid before each House of the Parliament within 15 sitting days of that House
after the Minister has received the report.
Part IVB—Annual general meeting of the industry
29U
Interpretation
(1) In this Part, unless the contrary
intention appears:
eligible producer, in relation to a year,
means a person on the list of producers prepared in that year.
list of producers means a list of persons
prepared under section 29V.
old Charge Act means the repealed Wine
Export Charge Act 1997.
old Levy Act means the repealed Wine
Grapes Levy Act 1979.
(2) For the purposes of this Part and of
regulations made for the purposes of this Part, where 2 or more persons become
liable to pay wine grapes levy, wine export charge or levy imposed under the
old Levy Act, because they are members of a partnership or are the trustees of
a trust estate, that partnership or trust estate shall be taken to be the
person liable to pay that levy or charge.
(3) Where, under this Part, rights are conferred
upon a body corporate, a partnership or a trust estate to participate at an
annual general meeting, those rights shall be exercised by a natural person
appointed, in writing, for the purpose by the body corporate, the members of
the partnership or the trustees of the trust estate, as the case may be.
29V
List of producers
(1) As soon as practicable after each 30 September,
the Department must prepare and give to the Corporation a list of the persons
who the Department, at the time of the preparation of the list, knows became
liable to pay:
(aa) wine grapes levy; and
(ab) wine export charge; and
(a) levy imposed under the old Levy
Act; and
(b) charge imposed under the old
Charge Act;
in respect of the year that ended on 30 June
immediately preceding that 30 September.
(2) The Corporation must not use a list of
persons prepared under this section except for the purposes of this Part.
29W
Corporation to convene annual general meeting
(1) The Corporation shall, within 3 months
after the annual report of the Corporation is laid before a House of the
Parliament or after the list of producers is prepared in the year immediately
following the year to which the annual report relates, whichever occurs last,
or within such longer period as is approved by the Minister, but not earlier
than 42 days after the preparation of that list, cause an annual general
meeting of the industry to be convened at a time and place determined by the
Corporation.
(2) The Corporation shall, not later than 42
days before the intended day of an annual general meeting in a year, send to
each eligible producer for that year:
(a) a notice of the day, time and
place of the meeting; and
(b) a copy of the most recent annual
report of the Corporation.
29X
Purpose of annual general meeting
The purpose of an annual general meeting
is to provide an opportunity for eligible producers:
(a) to consider the most recent annual
report of the Corporation;
(b) to receive an address by the
Chairperson with respect to the performance of the Corporation in the year to
which the annual report relates and with respect to the economic outlook for
the industry, and the intended activities of the Corporation, in the year next
following that year;
(c) to question the members of the
Corporation concerning any aspect of the Corporation’s activities during the
year to which the annual report relates and any aspect of the intended
activities of the Corporation; and
(d) to debate, and vote upon, any
motion relating to a matter within the responsibilities of the Corporation.
29Y
Conduct of annual general meeting
(1) An annual general meeting may be attended
by:
(a) the members of the Corporation;
(b) eligible producers for the year in
which the meeting is held;
(c) persons invited by the Corporation
to attend the meeting; and
(d) such members of the staff of the
Corporation as the Chairperson determines to be appropriate having regard to
the business of the meeting.
(2) The Chairperson shall preside at an
annual general meeting at which he or she is present.
(3) The Corporation shall cause a record to
be kept of the proceedings of an annual general meeting of the industry.
29ZA
Minister to be notified of resolutions
The Corporation shall, when making a
recommendation referred to in subclause 9(1) of Schedule 26 to the Primary
Industries (Excise) Levies Act 1999 or subclause 5(1) of Schedule 13
to the Primary Industries (Customs) Charges Act 1999, notify the
Minister of any resolution relating to the recommendation passed or defeated at
the most recent annual general meeting, of the number of votes cast for the
resolution and of the number of votes cast against the resolution.
Part V—Staff
30
Employees
(1) The Corporation may engage such employees
as it thinks necessary for the purposes of this Act.
(2) The terms and conditions of employment
(including remuneration) of the person holding the position of principal
employee (however described) of the Corporation shall be such as are determined
by the Corporation.
(3) The terms and conditions of employment
(including remuneration) of an employee, other than the employee referred to in
subsection (2), shall be such as are determined by the Corporation.
Part VA—Operation of Corporation
Division 1—Corporate plans
31
Corporation to develop corporate plans
(1) The Corporation shall, in accordance with
this section, develop, for the purpose of the more effective performance by the
Corporation of its functions, a plan:
(a) defining what, in the opinion of
the Corporation, should be the principal objectives of the Corporation;
(b) giving a broad outline of the
strategies that should, in the opinion of the Corporation, be pursued in
achieving those objectives;
(c) setting out the Corporation’s
assessment, for the period to which the plan relates, of the market outlook and
the economic outlook for the industry.
(2) The first corporate plan shall relate to
such period, being a period commencing on 1 November 1986 or such later day as the Minister approves and ending on 30 June 1989, 30 June 1990 or 30 June 1991, as the Corporation determines.
(3) Each subsequent corporate plan shall
relate to such period, being a period of 3, 4 or 5 years commencing on the 1 July
immediately following the end of the period to which the previous plan related,
as the Corporation determines.
31A
Agreement to corporate plans
(1) The Corporation shall cause a copy of a
corporate plan prepared under section 31 to be given to the Minister:
(a) in the case of the first plan—on
or before 1 October 1986 or such later day as the Minister approves; or
(b) in any other case—at least 3
months before the commencement of the period to which the plan relates.
(2) Where a copy of a corporate plan is given
to the Minister, the Minister may, by notice in writing given to the Corporation:
(a) agree to the plan; or
(b) if the Minister is of the opinion
that, in the interests of the industry or of a particular sector of the
industry, the plan should be revised in some respect—request the Corporation to
revise the plan appropriately.
(3) The Minister shall include in the notice
of request under paragraph (2)(b) a statement setting out the Minister’s
reasons for making the request.
(4) Where the Corporation receives a request
under paragraph (2)(b), the Corporation shall consider the request and
statement of reasons, make such revision of the corporate plan as it considers
appropriate and re‑submit the revised plan to the Minister for the
Minister’s agreement.
(5) A corporate plan comes into force:
(a) at the commencement of the period
to which the plan relates; or
(b) on
the day on which the Corporation receives notice of the Minister’s agreement;
whichever is the later.
31B
Variation of corporate plans by Corporation
(1) Subject to subsection (4), the
Corporation shall not vary a corporate plan of its own motion except with the
agreement of the Minister.
(2) Where the Corporation wishes to vary a
corporate plan, the Corporation shall prepare written proposals for the
variations and give a copy of the proposals to the Minister together with a
statement setting out the Corporation’s reasons for making the proposals.
(3) The Minister may, after considering
proposals for variation of a corporate plan submitted under subsection (2)
and the reasons for making those proposals, by notice in writing given to the
Corporation, agree to or reject the proposals.
(4) Nothing in this section prevents the
Corporation making variations of a minor nature to a corporate plan.
31C
Variations of corporate plans at request of Minister
(1) The Minister may, by notice in writing
given to the Corporation, request the Corporation to vary a corporate plan in
the manner set out in the notice of request.
(2) Where the Minister makes a request under subsection (1),
the Minister shall include in the notice of request a statement setting out the
Minister’s reasons for making the request.
(3) Where the Corporation receives a request
under subsection (1), the Corporation shall consider the request and
statement of reasons, prepare written proposals for such variation of the plan
as the Corporation considers appropriate and submit those proposals to the
Minister for the Minister’s agreement.
(4) The Minister may, after considering
proposals for variation of a corporate plan submitted under subsection (3),
by notice in writing given to the Corporation, agree to or reject the
proposals.
31D
Date of effect of variations
Where:
(a) a corporate plan has come into
force; and
(b) a
variation to the plan is agreed to by the Minister under section 31B or
31C or the Corporation makes a variation of a minor nature to the plan;
the plan shall continue in force on and after the day on
which the Corporation receives notice of the Minister’s agreement or the day on
which the Corporation makes the variation of a minor nature, as the case may
be, as if the Minister had originally agreed to the plan as so varied.
31E
Notice of variation of corporate plans
Where a variation of a corporate plan is
agreed to by the Minister in accordance with section 31B or 31C,
particulars of the variation shall be included in the annual report of the
Corporation for the year in which the variation was made.
Division 2—Annual operational plans
31F
Corporation to develop annual operational plans
(1) Subject to subsection (2), the
Corporation shall, in relation to each financial year of a period to which a
corporate plan relates or to which an intended corporate plan will relate,
develop an annual operational plan setting out particulars of the action that
the Corporation intends to take in order to give effect to or further, during
that year, the matters set out in that corporate plan.
(2) The first annual operational plan shall
relate to the period commencing on the day on which the first corporate plan
comes into force and ending on the first 30 June after that day and, for
the purposes of the operation of subsection (1) in relation to that first
annual operational plan, references in that subsection to a financial year
shall be read as references to the period to which that first plan relates.
(3) Each subsequent annual operational plan
shall relate to the financial year commencing immediately after the end of the
period to which the previous annual operational plan related.
31G
Agreement to annual operational plans
(1) The Corporation shall cause a copy of an
annual operational plan prepared under section 31F to be given to the
Minister:
(a) in the case of the first plan—on
or before 1 October 1986 or such later day as the Minister approves; or
(b) in any other case—at least 2
months before the commencement of the period to which the plan relates.
(2) Where a copy of an annual operational
plan is given to the Minister, the Minister may, by notice in writing given to
the Corporation:
(a) agree to the plan; or
(b) if the Minister is of the opinion
that the plan is inconsistent with the provisions of the corporate plan that
relates, or the intended corporate plan that will relate, to a period that
includes, or will include, the period to which the first‑mentioned plan
will relate—request the Corporation to revise the first‑mentioned plan
appropriately.
(3) The Minister shall include in the notice
of a request under paragraph (2)(b) a statement setting out the Minister’s
reasons for making the request.
(4) Where the Corporation receives a request
under paragraph (2)(b), the Corporation shall consider the request and
statement of reasons, make such revision of the annual operational plan as it
considers appropriate and re‑submit the revised plan to the Minister for
the Minister’s agreement.
(5) An annual operational plan comes into
force:
(a) at the commencement of the period
to which the plan relates; or
(b) on
the day on which the Corporation receives notice of the Minister’s agreement;
whichever is the later.
31H
Variation of annual operational plans
(1) Sections 31B, 31C and 31D apply to
annual operational plans in the same manner as those sections apply to
corporate plans.
(2) Where, if a proposed variation of a
corporate plan were to be agreed to by the Minister, a relevant annual operational
plan would not be consistent with the provisions of the corporate plan, the
Corporation shall, at the time of submitting to the Minister for agreement
proposals for variation to the corporate plan, also submit to the Minister
proposals for appropriate variations of that annual operational plan.
31J
Notice of variation of annual operational plan
Where a variation of an annual
operational plan is agreed to by the Minister in accordance with section 31H,
particulars of the variation shall be included in the annual report of the
Corporation for the year in which the variation was made.
Division 3—Directions
31K
Directions to Corporation and Geographical Indications Committee
(1) Except as provided by this section and
the Commonwealth Authorities and Companies Act 1997, the Corporation is
not subject to direction by or on behalf of the Commonwealth Government.
(2) Subject to this section, where the
Minister is satisfied that, because of the existence of exceptional
circumstances, it is necessary to give a direction to the Corporation in order
to ensure that the performance of the functions, or the exercise of the powers,
of the Corporation does not conflict with major government policies, the
Minister may, by notice in writing to the Corporation, give the direction to
the Corporation with respect to the performance of its functions and the
exercise of its powers.
(3) The Minister shall not give a direction
under subsection (2) unless and until the Minister has given the
Chairperson:
(a) notice in writing that the
Minister is contemplating giving the direction; and
(b) an adequate opportunity to discuss
with the Minister the need for the proposed direction.
(4) The Corporation shall comply with any
direction given under subsection (2).
(5) Where the Minister gives a direction to
the Corporation under subsection (2):
(a) the Minister shall cause a notice
in writing setting out particulars of the direction to be published in the Gazette
as soon as practicable after giving the direction;
(b) the Minister shall cause a copy of
that notice to be laid before each House of the Parliament within 15 sitting
days of the House after giving the direction;
(c) particulars of the direction shall
be included in the annual report of the Corporation for the year in which the
direction was given; and
(d) that report shall include
particulars of the impact of that direction on the operations of the
Corporation.
(6) This section applies in relation to the
Geographical Indications Committee in the same way as it applies in relation to
the Corporation.
(7) For the purposes of this section as it so
applies in relation to the Geographical Indications Committee:
(a) references (other than the
reference in paragraph (5)(c)) to the Corporation are taken to be references
to that Committee; and
(b) the reference in subsection (3)
to the Chairperson is taken to be a reference to the Presiding Member of that
Committee.
Part VI—Finance
31L
Corporation’s component of wine grapes levy
For the purposes of this Act, the Corporation’s
component of wine grapes levy is an amount of levy covered by paragraph
7(1)(a) of Schedule 26 to the Primary Industries (Excise) Levies Act
1999.
32
Payments to Corporation
There shall be paid to the Corporation
out of the Consolidated Revenue Fund, which is appropriated accordingly,
amounts equal to:
(aa) amounts received by the
Commonwealth as the Corporation’s component of wine grapes levy; and
(ab) so much of the amounts (if any)
received by the Commonwealth under section 15 of the Primary Industries
Levies and Charges Collection Act 1991 as is attributable to non‑payment
of the Corporation’s component of wine grapes levy; and
(ac) amounts received by the
Commonwealth as wine export charge; and
(ad) so much of the amounts (if any)
received by the Commonwealth under section 15 of the Primary Industries
Levies and Charges Collection Act 1991 as is attributable to non‑payment
of wine export charge; and
(a) so much of the amounts from time
to time received by the Commonwealth as levy under the repealed Wine Grapes
Levy Act 1979 as is so received by virtue of subsection 6(1), other than
paragraph 6(1)(b) of that Act; and
(b) so much of the amounts (if any)
received by the Commonwealth under section 5 of the repealed Wine
Grapes Levy Collection Act 1979 or section 15 of the Primary
Industries Levies and Charges Collection Act 1991 as is attributable to non‑payment
of levy referred to in subsection 6(1), other than paragraph 6(1)(b), of the
repealed Wine Grapes Levy Act 1979; and
(c) so much of the amounts from time
to time received by the Commonwealth as charge under the repealed Wine
Export Charge Act 1997 as is received because of section 6 of that
Act; and
(d) so much of the amounts (if any)
received by the Commonwealth under section 15 of the Primary Industries
Levies and Charges Collection Act 1991 as is attributable to non‑payment
of charge referred to in section 6 of the repealed Wine Export Charge
Act 1997.
33
Payments by Corporation to Commonwealth
(1) Where a refund is made by the
Commonwealth in accordance with section 7 of the repealed Wine Grapes
Levy Collection Act 1979 or section 18 of the Primary Industries
Levies and Charges Collection Act 1991 in respect of an amount that has
been paid or overpaid to the Commonwealth by way of an amount of levy that is
payable to the Commonwealth by virtue of subsection 6(1), other than paragraph 6(1)(b),
of the repealed Wine Grapes Levy Act 1979, the Corporation shall pay to
the Commonwealth an amount equal to the amount of the refund.
(2) If a refund is made by the Commonwealth
in accordance with section 18 of the Primary Industries Levies and
Charges Collection Act 1991 in respect of an amount that has been paid or
overpaid to the Commonwealth by way of an amount of charge that is payable to
the Commonwealth because of section 6 of the repealed Wine Export
Charge Act 1997, the Corporation must pay to the Commonwealth an amount
equal to the amount of the refund.
(3) If:
(a) a refund is made by the
Commonwealth under section 18 of the Primary Industries Levies and
Charges Collection Act 1991 in respect of an amount; and
(b) the amount has been paid or
overpaid to the Commonwealth by way of wine export charge;
the Corporation must pay to the Commonwealth an amount
equal to the amount of the refund.
(4) If:
(a) a refund is made by the
Commonwealth under section 18 of the Primary Industries Levies and
Charges Collection Act 1991 in respect of an amount; and
(b) the amount has been paid or
overpaid to the Commonwealth by way of the Corporation’s component of wine
grapes levy;
the Corporation must pay to the Commonwealth an amount
equal to the amount of the refund.
34
Borrowing
(1) The Corporation may, with the approval of
the Minister:
(a) borrow money otherwise than from
the Commonwealth; or
(b) raise money otherwise than by
borrowing;
on terms and conditions that are specified in, or
consistent with, the approval.
(2) Without limiting the generality of subsection (1),
the Corporation may, under that subsection, borrow money, or raise money
otherwise than by borrowing, by dealing with securities.
(3) A borrowing of money, or a raising of
money otherwise than by borrowing, under subsection (1), may be made, in
whole or in part, in a currency other than Australian currency.
(4) An approval may be given under subsection (1)
in relation to a particular transaction or in relation to transactions included
in a class of transactions.
(5) An approval under subsection (1)
shall be given in writing.
(6) For the purposes of this section:
(a) the issue by the Corporation of an
instrument acknowledging a debt in consideration of:
(i) the payment or deposit
of money; or
(ii) the
provision of credit;
otherwise than in relation to a
transaction that is in the ordinary course of the day‑to‑day
operations of the Corporation shall be deemed to be a raising by the
Corporation, otherwise than by borrowing, of an amount of money equal to the
amount of the money paid or deposited or the value of the credit provided, as
the case may be; and
(b) the obtaining of credit by the
Corporation otherwise than in relation to a transaction that is in the ordinary
course of the day‑to‑day operations of the Corporation shall be
deemed to be a raising by the Corporation, otherwise than by borrowing, of an
amount of money equal to the value of the credit so obtained.
(7) In this section, securities
includes stocks, debentures, debenture stocks, notes, bonds, promissory notes,
bills of exchange and similar instruments or documents.
(8) A reference in this section to dealing
with securities includes a reference to:
(a) creating, executing, entering
into, drawing, making, accepting, indorsing, issuing, discounting, selling,
purchasing or re‑selling securities;
(b) creating, selling, purchasing or
re‑selling rights or options in respect of securities; and
(c) entering into agreements or other
arrangements relating to securities.
34A
Corporation may give security
The Corporation may give security over
the whole or any part of its land or other assets for:
(a) the repayment by the Corporation
of money borrowed by the Corporation under paragraph 34(1)(a) and the payment
by the Corporation of interest (including any interest on that interest) on
money so borrowed; or
(b) the payment by the Corporation of
amounts (including any interest) that the Corporation is liable to pay with
respect to money raised by the Corporation under paragraph 34(1)(b).
34B
Borrowings not otherwise permitted
The Corporation shall not borrow money,
or raise money otherwise than by borrowing, except in accordance with section 34.
35
Application of money of Corporation
(1) The moneys of the Corporation may be
applied only:
(a) in payment or discharge of the
expenses, charges, obligations and liabilities incurred or undertaken by the
Corporation in or in connection with the performance of its functions, or the
exercise of its powers, under this Act;
(aa) in payment or discharge of the
expenses, charges, obligations and liabilities incurred or undertaken by the
Presiding Member of the Selection Committee or the Selection Committee in or in
connection with the performance of the functions, or the exercise of the
powers, of the Selection Committee under this Act;
(ab) in payment to the Commonwealth of
amounts equal to the expenses incurred by the Commonwealth in relation to:
(i) the collection or
recovery of amounts referred to in paragraph 32(aa), (ab), (ac), (ad), (a) or
(b); or
(ii) the administration of
section 32;
(b) in payment of any remuneration,
allowances, fees or expenses payable under this Act; and
(c) in making any other payments that
the Corporation is authorized or required to make under this Act.
(2) Subsection (1) does not prevent
investment of surplus money of the Corporation under section 19 of the Commonwealth
Authorities and Companies Act 1997.
38
Extra matters to be included in annual report
(4) The report prepared by the members under
section 9 of the Commonwealth Authorities and Companies Act 1997 on
the operations of the Corporation during a year must include a report of the
operations of the Geographical Indications Committee during the year and must
set out all final determinations of geographical indications made by the
Committee during the year.
39
Liability to taxation
(1) The Corporation is subject to taxation
(other than income tax) under the laws of the Commonwealth.
(2) Subject to subsection (3), the
Corporation is not subject to taxation under a law of a State or Territory.
(3) The regulations may provide that subsection (2)
does not apply in relation to taxation under a specified law.
Part VIA—Label integrity program
Division 1—Preliminary
39A
Object of Part
The object of this Part is to advance
the objects of this 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.
39B
Operation of Part
Without prejudice to its effect apart
from this subsection, this Part has the effect it would have if the references
in it to a wine manufacturer were, by express provision, confined to a wine
manufacturer who is:
(a) a foreign corporation, within the
meaning of paragraph 51(xx) of the Constitution; or
(b) a trading or financial corporation
formed within the limits of the Commonwealth, within the meaning of that
paragraph; or
(c) a corporation that is controlled
by a corporation described by paragraph (a) or (b); or
(d) a partnership at least one of the
partners in which is a corporation described by paragraph (a), (b) or (c).
39C
Interpretation
In this Part, unless the contrary
intention appears:
approved means approved by the Corporation in
writing.
blend means wine manufactured by blending
different wines.
different wines means wines that are
different because at least one of their characteristics of vintage, variety or
geographical indication is different.
direct sale means a sale of wine to a
consumer visiting a winery or ordering the wine from its manufacturer.
examinable document means:
(a) any document required to be kept
under this Part; or
(b) any wine label or other document
relating to the vintage, variety or geographical indication of wine goods; or
(c) any document relating to
advertising the vintage, variety or geographical indication of wine goods; or
(d) any other document that is
relevant to monitoring or enforcing compliance with a label law.
geographical area includes a vineyard, a
district and a State, but does not include Australia or a larger area.
grape extract means grape juice, must, or
concentrate obtained from grapes.
inspection power, in relation to wine
premises, means:
(a) power to search any part of the
premises; or
(b) power to inspect, examine, take
measurements of, or conduct tests (including by the taking of samples)
concerning, any wine goods or other thing on the premises; or
(c) power to take extracts from, and
make copies of, any examinable documents on the premises; or
(d) power to take onto the premises
such equipment and materials as the inspector requires for the purpose of
exercising any other inspection power on the premises.
inspector means a person appointed under
section 39ZA.
label claim, in relation to wine goods, means
a claim about their vintage, variety or geographical indication made on a wine
label, in a commercial document or in an advertisement, and includes a claim so
made about the vintage, variety or geographical indication of wine goods from
which they were manufactured.
label law means:
(a) this Part; or
(b) the regulations; or
(c) another law of the Commonwealth
relating to the description of wine; or
(d) a law of a State or an internal
Territory relating to the description of wine.
label offence means an offence against a
label law.
made, in relation to a claim, includes
implied.
manufacturer, in relation to wine, means the
wine manufacturer who operates the winery where the wine is made.
manufacturing wine includes blending
different wines.
package, in relation to wine, means a
container in which the wine is sold or transferred for sale.
principal employee means the person holding
the position of principal employee (however described) of the Corporation.
single wine means a wine other than a blend.
supplier, in relation to wine goods received
by a wine manufacturer, means:
(a) where the wine manufacturer
produced them—the wine manufacturer; or
(b) where another person produced
them—the person who supplied them to the wine manufacturer.
variety, in relation to wine or grape
extract, means the variety of the grapes from which it was obtained.
vintage means:
(a) in relation to grapes—the year in
which they were harvested; or
(b) in relation to wine or grape
extract—the year in which the grapes from which it was obtained were harvested.
wine goods means wine, grapes or grape
extract.
wine label means a label attached to a bottle
or other package of wine and includes that part of a package of wine on which
there is writing.
wine manufacturer means a person who operates
a winery.
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.
winery means
an establishment at which:
(a) wine is manufactured for
commercial purposes; or
(b) grape
extract is manufactured for use in the manufacture of wine for commercial
purposes;
and, in relation to a wine manufacturer, means a winery
operated by the manufacturer.
39D
Sales with a label claim
(1) For the purposes of this Part, wine is
sold with a label claim if a label claim is made in relation to the wine when
or before it is sold.
(2) For the purposes of this Part, where a
blend is sold with a label claim, the claim not only relates to the blend but
also relates to a wine used in the blend unless:
(a) the claim is one that the blend,
or wine used in the blend, has a particular characteristic; and
(b) the first‑mentioned wine
does not have, but another wine used in the blend does have, that
characteristic.
39E
Penalties
(1) Penalties of $15,000 specified in this
Part are for offences committed by corporations.
(2) Where a natural person is convicted of
any offence against this Part for which such a penalty is specified, the
maximum penalty for the offence is $3,000.
39EA
Time for bringing prosecutions
Despite section 15B of the Crimes
Act 1914, a prosecution for an offence against section 39ZAAA may be
brought at any time within 7 years after the requirement to make the relevant
record arose.
Division 2—Records relating to label claims
39F
Wine manufacturers to keep records of receipt of wine goods
A wine manufacturer who receives wine
goods for processing at the manufacturer’s winery must make and keep a record
in writing of their receipt showing:
(a) the date of their receipt; and
(b) their quantity; and
(c) their vintage, variety and
geographical indication; and
(d) the identity of their supplier.
39G
Wine manufacturers to keep records of manufacture of certain single wines
(1) This section applies to a single wine if
its manufacturer:
(a) intends to sell the wine with a
label claim; or
(b) where the wine was manufactured on
behalf of another person—knows that that person intends to sell the wine with a
label claim; or
(c) intends to use the wine in
manufacturing a blend on the manufacturer’s behalf and sell the blend with a
label claim relating to the wine; or
(d) intends to use the wine in
manufacturing a blend on behalf of another person and knows that that person
intends to sell the blend with a label claim relating to the wine.
(2) A wine manufacturer who manufactures a
single wine to which this section applies must make and keep a record in
writing of its manufacture showing:
(a) the date of its manufacture; and
(b) its quantity; and
(c) such of its characteristics and
other details as are required by section 39W.
39H
Wine manufacturers to keep records of manufacture of certain blends
(1) This section applies to a blend if its
manufacturer:
(a) intends to sell the blend with a
label claim; or
(b) where the blend was manufactured
on behalf of another person—knows that that person intends to sell the blend
with a label claim.
(2) A wine manufacturer who manufactures a
blend to which this section applies must make and keep a record in writing of
its manufacture showing:
(a) the date of its manufacture; and
(b) its quantity; and
(c) such of its characteristics and
other details as are required by section 39W.
39J
Wine manufacturers to keep records of sales of certain wine
(1) This section applies to the sale of wine
by a wine manufacturer if the manufacturer makes a label claim in relation to
the wine.
(2) A wine manufacturer who sells wine in a
sale to which this section applies must make and keep a record in writing of
the sale showing:
(a) subject to section 39L, the
date of the sale; and
(b) subject to section 39L, the
wine’s quantity; and
(c) such of the wine’s characteristics
and other details as are required by section 39W; and
(d) subject to subsections (3)
and (4), the identity of the purchaser.
(3) Where:
(a) a wine manufacturer sells wine
packaged for sale to consumers; and
(b) the
package has a wine label showing that the wine was made by, and setting out the
name and address of, the manufacturer;
the manufacturer is not required to make and keep a record
of the identity of the purchaser.
(4) Where a wine manufacturer sells wine in a
direct sale, the manufacturer is not required to make and keep a record of the
identity of the purchaser.
39K
Wine manufacturers to keep records of disposals of certain wine
(1) Where a wine manufacturer:
(a) manufactures wine on behalf of
another person at the manufacturer’s winery; and
(b) disposes
of the wine in accordance with the instructions of that person;
this section applies to the disposal if the manufacturer:
(c) makes a label claim in relation to
the wine; or
(d) knows that that person intends to
sell the wine with a label claim.
(2) A wine manufacturer who disposes of wine
by a disposal to which this section applies must make and keep a record in
writing of the disposal showing:
(a) subject to section 39L, the
date of the disposal; and
(b) subject to section 39L, the
wine’s quantity; and
(c) such of the wine’s characteristics
and other details as are required by section 39W; and
(d) the identity of that person; and
(e) subject to subsections (3)
and (4), where it is disposed of by being delivered to a person other than that
person—the identity of the person to whom it is delivered.
(3) Where:
(a) a wine manufacturer disposes of
wine by delivering the wine to a person other than the person on whose behalf
it was manufactured; and
(b) the wine is packaged for sale to
consumers; and
(c) the
package has a wine label showing that the wine was made by, and setting out the
name and address of, the manufacturer;
the manufacturer is not required to make and keep a record
of the identity of the person to whom it is delivered.
(4) Where a wine manufacturer disposes of
wine in a direct sale, the manufacturer is not required to make and keep a
record of the identity of the person to whom it is delivered.
39L
Direct sales
Where wine manufactured at a winery is
sold in direct sales, then, in respect of such wine:
(a) in relation to which identical
label claims are made by the wine manufacturer who operates the winery; and
(b) sold
during a particular period (not being longer than a year);
the manufacturer may, instead of making and keeping a
record of the date of sales and quantities, make and keep a record of the
period and of the total quantity of the wine sold in the period.
39M Wine
manufacturers to keep records of transfers of certain wine
(1) Where a wine manufacturer transfers wine
from a winery of the manufacturer to another winery of the manufacturer for use
in manufacturing a blend, this section applies to the transfer if the
manufacturer:
(a) makes a label claim in relation to
the wine; or
(b) intends to sell the blend with a
label claim relating to the wine; or
(c) where the blend is to be
manufactured on behalf of another person—knows that that person intends to sell
the blend with a label claim relating to the wine.
(2) A wine manufacturer who transfers wine in
a transfer to which this section applies must make and keep a record in writing
of the transfer showing:
(a) the date of the transfer; and
(b) the wine’s quantity; and
(c) the winery from which the wine is
transferred; and
(d) the winery to which the wine is
transferred; and
(e) such of the wine’s characteristics
and other details as are required by section 39W.
39N
Wine manufacturers to keep records of production of certain grape extract
(1) Where grape extract is produced by a wine
manufacturer at a winery of the manufacturer for use in the manufacture of wine
at another winery of the manufacturer, this section applies to the extract if
the manufacturer:
(a) where the wine is to be a single
wine made on the manufacturer’s behalf—intends to sell the wine with a label
claim; or
(b) where the wine is to be a blend
made on the manufacturer’s behalf—intends to sell the blend with a label claim
relating to wine manufactured from the extract; or
(c) where the wine is to be a single
wine made on behalf of another person—knows that that person intends to sell
the wine with a label claim; or
(d) where the wine is to be a blend
made on behalf of another person—knows that that person intends to sell the
blend with a label claim relating to wine manufactured from the extract.
(2) Where grape extract is produced by a wine
manufacturer at a winery of the manufacturer for use in the manufacture of wine
at a winery of another person, this section applies to the extract if the
manufacturer makes a label claim relating to the extract.
(3) A wine manufacturer who produces grape
extract to which this section applies must make and keep a record in writing of
its production showing:
(a) the date of its production; and
(b) its quantity; and
(c) such of its characteristics and
other details as are required by section 39W.
39P
Wine manufacturers to keep records of sales of certain grape extract
(1) Where grape extract produced by a wine
manufacturer at the manufacturer’s winery is sold by the manufacturer for use
in manufacturing wine, this section applies to the extract if the manufacturer
makes a label claim in relation to the extract.
(2) A wine manufacturer who sells grape
extract in a sale to which this section relates must make and keep a record in
writing of the sale showing:
(a) the date of the sale; and
(b) the extract’s quantity; and
(c) such of the extract’s
characteristics and other details as are required by section 39W; and
(d) the identity of the purchaser.
39Q
Wine manufacturers to keep records of disposal of certain grape extract
(1) Where a wine manufacturer:
(a) produces grape extract at the
manufacturer’s winery on behalf of another person; and
(b) disposes
of the extract in accordance with the instructions of that person;
this section applies to the disposal if the manufacturer
makes a label claim in relation to the extract.
(2) A wine manufacturer who disposes of grape
extract by a disposal to which this section applies must make and keep a record
in writing of the disposal showing:
(a) the date of the disposal; and
(b) the extract’s quantity; and
(c) such of the extract’s
characteristics and other details as are required by section 39W; and
(d) the identity of that person; and
(e) where the extract is disposed of
by being delivered to yet another person—the identity of the person to whom it
is delivered.
39R
Wine manufacturers to keep records of transfers of certain grape extract
(1) Where a wine manufacturer transfers grape
extract from a winery of the manufacturer to another winery of the manufacturer
for use in manufacturing wine, this section applies to the transfer if the
manufacturer:
(a) where the wine is to be a single
wine—intends to sell the wine with a label claim; or
(b) where the wine is to be a
blend—intends to sell the blend with a label claim relating to wine
manufactured from the extract.
(2) Where a wine manufacturer transfers grape
extract from a winery of the manufacturer to a winery of another person for use
in manufacturing wine, this section applies to the transfer if the manufacturer
makes a label claim in relation to the extract.
(3) A wine manufacturer who transfers grape
extract in a transfer to which this section applies must make and keep a record
in writing of:
(a) the date of the transfer; and
(b) the extract’s quantity; and
(c) the winery from which the extract
is transferred; and
(d) the winery to which the extract is
transferred; and
(e) such of its characteristics and
other details as are required by section 39W.
39S
Making of records
(1) A requirement of this Division to make a
record is a requirement to make the record not later than 3 months after the
happening of the event, circumstance or state of affairs required to be
recorded.
(2) A reference in this Part to the time when
a requirement to make a record arose is a reference to the end of the period of
3 months that, under subsection (1), is applicable to the requirement.
39T
Records to relate to a winery
A requirement of this Division (other
than sections 39M and 39R) to make a record includes a requirement to make
a record that shows the winery to which the record relates.
39U
Keeping of records
A requirement of this Division to keep a
record is a requirement to keep the record for 7 years, or a shorter approved
period, after the record is made.
39V
Record of person
For the purposes of this Division, a
record of the identity of a person is a record of particulars of the person’s
name and address that are enough to identify the person.
39W
Characteristics to be recorded
(1) Where, under section 39G, 39H, 39J,
39K, 39M, 39N, 39P, 39Q, or 39R, a record relating to wine or grape extract is
to show such characteristics of the wine or extract as are required by this
section, the requirement is for the record to show:
(a) where the section requiring the
record applies because of a claim about vintage—the vintage of the wine or
extract; or
(b) where that section applies because
of a claim about variety—the variety of the wine or extract; or
(c) where that section applies because
of a claim about region of origin—the geographical indication of the wine or
extract.
(2) Also, the record must show details of
every step the wine manufacturer who must make the record took, in
manufacturing the wine or extract, that changed or affected:
(a) if the section requiring the
record applies because of a claim about vintage—the vintage of the wine or
extract; or
(b) if that section applies because of
a claim about variety—the variety of the wine or extract; or
(c) if that section applies because of
a claim about region of origin—the geographical indication of the wine or
extract; or
(d) in any case—the tank or other
place or thing in which the wine or extract was stored; or
(e) in any case—the volume of the wine
or extract stored in any such tank, place or thing.
(3) The details required under subsection (2)
in relation to a wine or extract must be in a form that allows an audit trail
containing its history of the wine’s manufacture to be readily traced from the
record. It must be possible for the 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.
39X
Record of variety
(1) For the purposes of this Division, where
there is uncertainty about the variety of wine goods, a record showing their
variety is a record showing whichever variety the wine manufacturer making the
record considers on reasonable grounds most likely to be their variety.
(2) For the purposes of this Division, where
a variety of wine goods is known by more than one name, a record showing the
variety is a record showing any one of those names.
39Y
Record of geographical indication
For the purposes of this Division, a
record showing the geographical indication of wine goods is a record showing
the name or description of any geographical area that is a geographical
indication of the goods.
39Z
Record of blends etc.
(1) For the purposes of this Division, where:
(a) a wine manufacturer makes only one
label claim about wine; and
(b) the
wine is a blend manufactured by blending wine with the characteristic claimed
and other wine;
a record showing the characteristic of the blend required
because of the claim is a record showing what proportion of the blend is
represented by wine with the characteristic claimed.
(2) For the purposes of this Division, where:
(a) a wine manufacturer makes label
claims about 2 or more of the characteristics of wine; and
(b) the
wine is a blend manufactured by blending wine with all the characteristics
claimed and other wine;
a record showing the characteristics of the blend required
because of the claims is a record showing what proportion of the blend is
represented by wine with the characteristics claimed.
(3) Subject to subsections (1) and (2),
for the purposes of this Division, a record showing the vintage, variety or
geographical indication of a blend is:
(a) a record showing what proportions
of the blend are represented by each different wine in the blend; and
(b) a record, in respect of each of
those wines, showing its vintage, variety or geographical indication, as the
case may be.
(4) For the purposes of this Division, a
record showing the vintage, variety or geographical indication of grape extract
derived from grapes of different vintages, varieties or geographical
indications is:
(a) a record showing what proportions
of the goods are derived from each kind of grape; and
(b) a record, in respect of each kind
of grape, showing its vintage, variety or geographical indication, as the case
may be.
39ZAAA
Offences in relation to record‑keeping
(1) If a wine manufacturer who is required by
this Division to make and keep a record of a matter:
(a) intentionally fails to make or
keep the record as required by this Division; or
(b) intentionally
makes or keeps a record of the matter that is false, misleading or incomplete
in a material particular;
the manufacturer is guilty
of an offence.
Penalty: $15,000.
(2) In proceedings for an offence against
this section, if the prosecution:
(a) does not prove whether the wine
concerned was a single wine or a blend; but
(b) does prove that, in either case,
the defendant would have committed an offence against this section;
the prosecution does not have to prove whether the wine
was a single wine or a blend in order to prove the offence.
39ZAA
Corporation may require records
(1) If the Corporation has reason to believe
that a wine manufacturer or other person holds or controls a record required by
this Division to be made and kept, the Corporation may, by notice in writing
served on the person, require the person to produce the record to the
Corporation, within the period and in the manner specified in the notice.
(2) The period specified in the notice must
not be less than 14 days from the day on which it is served.
(3) The notice must set out the effects of
section 39ZAB.
39ZAB
Failure to comply with section 39ZAA notice
(1) A person must not refuse or fail to comply
with a notice under section 39ZAA.
Penalty: $15,000.
(1A) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal
Code.
(2) It is a reasonable excuse for a person to
refuse or fail to comply with a notice if complying would tend to incriminate
the person.
(3) In subsection (1), strict liability
applies to the physical element of circumstance, that the notice is under
section 39ZAA.
Note: For strict liability, see section 6.1 of
the Criminal Code.
39ZAC
Corporation may retain records
If a record is produced to the
Corporation under section 39ZAA:
(a) the Corporation may keep it for 60
days, or, if a prosecution for a label offence of whose commission the record
may be evidence is instituted within that period, until the completion of the
proceedings for the offence and of any appeal from the decision in relation to
the proceedings; and
(b) the Corporation may inspect the
record and may make and retain copies of all or part of it; and
(c) while the Corporation has
possession of the record, the Corporation must:
(i) allow the record to be
inspected at any reasonable time by a person who would be entitled to inspect
it if it were not in the Corporation’s possession; and
(ii) allow such a person to
make a copy of the record.
Division 3—Inspection
39ZA
Appointment of inspectors
(1) The principal employee may, on behalf of
the Corporation:
(a) appoint an eligible person to be
an inspector; or
(b) appoint a class of eligible
persons to be inspectors.
(2) The appointment of an inspector ceases if
he or she ceases to be an eligible person.
(3) For the purposes of this section, the
following are eligible persons:
(a) employees of the Corporation;
(b) officers and employees of the
Commonwealth or of authorities of the Commonwealth;
(c) officers and employees of a State
or internal Territory whom a Minister of the Crown of the State, or Minister of
the Territory, has agreed may be appointed as inspectors;
(d) officers and employees of a local
government body whom the body has agreed may be appointed as inspectors.
39ZB
Identity cards
(1) The principal employee may cause an
identity card to be issued to an inspector.
(2) An identity card must:
(a) contain a recent photograph of the
inspector to whom it is issued; and
(b) be in an approved form.
(3) An
inspector whose appointment ceases must, as soon as practicable, return his or
her identity card to the Corporation.
Penalty: $100.
(4) An offence under subsection (3) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
39ZC
Monitoring powers of inspectors—exercised with consent
For the purpose of finding out whether
label laws are being complied with, an inspector may, with the consent of, and
after producing the inspector’s identity card for inspection by, the occupier
of wine premises, enter, and exercise inspection powers on, the premises.
39ZD
Monitoring warrants
(1) An inspector may apply to a magistrate
for a warrant under this section in relation to particular wine premises.
(2) Subject to subsection (3), the
magistrate may issue the warrant if the magistrate is satisfied, by information
on oath, that it is reasonably necessary that the inspector should have access
to the premises for the purpose of finding out whether label laws are being
complied with.
(3) The magistrate must not issue the warrant
unless the inspector or some other person has given to the magistrate, either
orally or by affidavit, such further information (if any) as the magistrate
requires concerning the grounds on which the issue of the warrant is being
sought.
(4) The warrant must:
(a) authorise an inspector (whether or
not named in the warrant), with such assistance and by such force as is
necessary and reasonable:
(i) to enter the premises;
and
(ii) to exercise inspection
powers on the premises; and
(b) state whether the entry is
authorised to be made at any time of the day or night or during specified hours
of the day or night; and
(c) specify the day (not more than 6
months after the issue of the warrant) on which the warrant ceases to have
effect; and
(d) state the purpose for which the
warrant is issued.
39ZE
Offence powers of inspectors—exercised with consent
(1) Where an inspector has reasonable grounds
for suspecting that there is on wine premises a particular thing that may
afford evidence of the commission of a label offence, the inspector may, with
the consent of, and after producing the inspector’s identity card for
inspection by, the occupier of the premises, enter, and exercise inspection
powers on, the premises.
(2) An inspector who has entered premises
under subsection (1) must leave them if requested to do so by their
occupier.
39ZF
Offence related warrants
(1) An inspector may apply to a magistrate
for a warrant under this section in relation to particular wine premises.
(2) Subject to subsection (3), the
magistrate may issue the warrant if the magistrate is satisfied, by information
on oath, that there are reasonable grounds for suspecting that there is, or
there may be within the next 72 hours, on the premises a particular thing that
may afford evidence of the commission of a label offence.
(3) The magistrate must not issue the warrant
unless the inspector or some other person has given to the magistrate, either
orally or by affidavit, such further information (if any) as the magistrate
requires concerning the grounds on which the issue of the warrant is being
sought.
(4) The warrant must:
(a) state the name of the inspector;
and
(b) authorise the inspector, with such
assistance and by such force as is necessary and reasonable:
(i) to enter the place;
and
(ii) to exercise inspection
powers on the premises; and
(iii) to seize the thing
that might afford evidence; and
(c) state whether the entry is
authorised to be made at any time of the day or night or during specified hours
of the day or night; and
(d) specify the day (not more than 7
days after the issue of the warrant) on which the warrant ceases to have
effect; and
(e) state the purpose for which the
warrant is issued.
39ZG
Discovery of evidence
(1) Where an inspector enters wine premises
under a warrant under section 39ZF and finds the thing (in this section
called the evidence) that may afford evidence of the commission
of a label offence and which the inspector entered to find:
(a) the inspector may seize the
evidence; and
(b) the inspector may keep the
evidence for 60 days, or, if a prosecution for a label offence in the
commission of which the evidence may have been used or otherwise involved is
instituted within that period, until the completion of the proceedings for the
offence and of any appeal from the decision in relation to the proceedings; and
(c) if the evidence is a book, record
or document—while the inspector has possession of the evidence, the inspector
must:
(i) allow the evidence to
be inspected at any reasonable time by a person who would be entitled to
inspect it if it were not in the inspector’s possession; and
(ii) allow such a person to
make a copy of the evidence.
(2) If, in the course of searching wine
premises entered under section 39ZE or a warrant under section 39ZF,
the inspector:
(a) finds a thing that the inspector
believes, on reasonable grounds to be:
(i) a thing (other than
the evidence) that will afford evidence of the commission of the label offence
mentioned in subsection (1); or
(ii) a thing that will
afford evidence of the commission of another label offence; and
(b) the
inspector believes, on reasonable grounds, that it is necessary to seize the
thing to prevent its concealment, loss or destruction;
subsection (1) applies to the thing as if it were the
evidence.
39ZH
Power to require persons to answer questions and produce documents
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:
(a) answer any questions put by the
inspector; and
(b) produce any examinable documents
requested by the inspector.
(2) A person
must not refuse or fail to comply with a requirement under subsection (1).
Penalty: $3,000.
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2A). See subsection 13.3(3) of the Criminal
Code.
(2B) An offence under subsection (2) is an
offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) It is a reasonable excuse for a person to
refuse or fail to answer a question or produce a document if answering the
question, or producing the document would tend to incriminate the person.
Division 4—Use of records and results of inspection
39ZJ
Corporation to assist enforcement of laws on description of wine
(1) For the purpose of achieving the object
of this Part, the Corporation may give information obtained under this Part or
section 42, and other assistance, to:
(a) the Australian Competition and
Consumer Commission; or
(b) a Department of, or an authority
or other body established for a public purpose by, the Commonwealth, a State or
a Territory with responsibilities relating to the labelling, description or
quality of wine; or
(c) a person prosecuting, or taking
other proceedings against, or proposing to prosecute or take other proceedings
against, a person in relation to the false description of the vintage, variety
or geographical indication of any wine.
(2) This section does not limit any powers
and duties of the Corporation.
39ZK
Proceedings not to lie against Corporation etc.
No proceedings lie against:
(a) the Corporation; or
(b) a member of the Corporation; or
(c) an employee of the Corporation; or
(d) an
inspector;
in relation to any loss incurred or damage suffered
because of information or assistance given under section 39ZJ.
39ZL
Corporation may assist in relation to levy
(1) The purpose of this section is to:
(a) assist; and
(b) achieve administrative savings in
connection with;
the calculation and collection of:
(ba) wine grapes levy; or
(bb) wine export charge; or
(c) levy imposed by the repealed Wine
Grapes Levy Act 1979; or
(d) levy imposed by the repealed Grape
Research Levy Act 1986; or
(e) charge imposed by the repealed Wine
Export Charge Act 1997.
(1A) The Corporation may, with the consent of a
wine manufacturer or wine exporter, give
to an Agency (within the meaning of the Public Service Act 1999), with
responsibilities relating to the levy or charge, information kept by, or held
on behalf of, the manufacturer that is obtained by the Corporation under this
Part or under section 42.
(2) A wine manufacturer is to be taken to
have consented to the giving of information under subsection (1A) where
the occupier of the wine premises where the information is kept or held gave
such consent.
Part VIB—Protection of certain names and expressions
Division 1—Preliminary
40
Interpretation
In this Part:
Committee means the Geographical Indications
Committee.
40A
Object of Part
The object of this Part is to regulate
the sale, export and import of wine:
(a) for the purpose of enabling Australia
to fulfil its obligations under prescribed wine‑trading agreements; and
(b) for
certain other purposes for which the Parliament has power to make laws;
and this Part is to be interpreted and administered
accordingly.
40B
Additional operation of Part
(1) Without prejudice to its effect apart
from this subsection, this Part also has the effect that it would have if any
reference to a person were a reference to a corporation.
(2) Without prejudice to its effect apart
from this subsection, this Part also has the effect that it would have if any
reference to trade or commerce were, by express provision, confined to trade or
commerce:
(a) between Australia and places
outside Australia; or
(b) among the States; or
(c) within a Territory; or
(d) between a State and a Territory;
or
(e) between 2 Territories.
Division 2—Provisions relating to sale, export or import of wine
40C
Sale, export or import of wine with a false description and presentation
(1) A person must not, in trade or commerce,
intentionally sell wine with a false description and presentation.
(2) A person must not, in trade or commerce,
intentionally export wine with a false description and presentation.
(3) A person must not, in trade or commerce,
intentionally import wine with a false description and presentation.
(4) It is not
a defence to a prosecution for an offence against subsection (1), (2) or
(3) that the description and presentation indicated the country, region or
locality, as the case may be, in which the wine originated.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If, as is the case for an offence against section 40C, the
maximum term of imprisonment is 2 years, the maximum fine that may be imposed
is 120 penalty units. The current value of a penalty unit is fixed by section 4AA
of that Act. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
40D
Meaning of false description and presentation
(1) This section has effect for the purposes
of section 40C.
(2) Subject to this section, the description
and presentation of wine is false if:
(a) it includes the name of a country,
or any other indication that the wine originated in a particular country, and
the wine did not originate in that country; or
(b) it includes a registered
geographical indication and the wine did not originate in a country, region or
locality in relation to which the geographical indication is registered; or
(c) it includes a registered
traditional expression and the wine did not originate in a country, region or
locality in relation to which the expression is registered; or
(d) it includes a registered ancillary
protected expression and the wine did not originate in a country, region or
locality in relation to which the expression is registered; or
(e) it is not in accordance with such
provisions (if any) relating to the description and presentation of wine as are
prescribed for the purposes of this paragraph.
(3) Subsection (2) does not limit what,
apart from that subsection, is a false description and presentation of wine.
(4) For the purposes of subsection (2),
a registered geographical indication, a registered traditional expression or a
registered ancillary protected expression is taken to be included in the
description and presentation of wine even if the indication or expression is
accompanied by another word or expression such as “kind”, “type”, “style”,
“imitation” or “method”, or any similar word or expression.
(5) If:
(a) the description and presentation
of wine includes a word or expression that is a registered geographical
indication, a registered traditional expression, or a registered ancillary
protected expression, in relation to a country, region or locality; and
(b) the wine originated in that
country, region or locality; and
(c) the
description and presentation indicates that the wine originated in that country,
region or locality;
the description and presentation is not false merely
because the word or expression included in the description and presentation is
also a registered geographical indication, a registered traditional expression,
or a registered ancillary protected expression, in relation to another country,
region or locality.
(6) The description and presentation of wine
is not false merely because it includes:
(a) the name of an individual who
manufactured, sold, exported or imported the wine; or
(b) if an individual who manufactured,
sold, exported or imported the wine lawfully carries on business under the name
of another individual who previously carried on the business—the name of that
other individual; or
(c) the address of the winery at which
the wine was manufactured.
40E
Sale, export or import of wine with a misleading description and presentation
(1) A person must not, in trade or commerce,
intentionally sell wine with a misleading description and presentation.
(2) A person must not, in trade or commerce,
intentionally export wine with a misleading description and presentation.
(3) A person
must not, in trade or commerce, intentionally import wine with a misleading
description and presentation.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If, as is the case for an offence against section 40E, the
maximum term of imprisonment is 2 years, the maximum fine that may be imposed
is 120 penalty units. The current value of a penalty unit is fixed by section 4AA
of that Act. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
40F
Meaning of misleading description and presentation
(1) This section has effect for the purposes
of section 40E.
(2) Subject to subsection (7), the
description and presentation of wine is misleading if:
(a) it includes a registered
geographical indication, a registered traditional expression or a registered
ancillary protected expression; and
(b) the indication or expression is
used in such a way in the description and presentation as to be likely to
mislead as to the country, region or locality in which the wine originated.
(3) Subject to subsection (7), the
description and presentation of wine is misleading if:
(a) it includes a translation of a
registered geographical indication, of a registered traditional expression or
of a registered ancillary protected expression; and
(b) the inclusion of the translation
is likely to mislead as to the country, region or locality in which the wine
originated.
(4) Subject to subsection (7), the
description and presentation of wine is misleading if:
(a) it includes a word or expression
that so resembles a registered geographical indication, a registered
traditional expression or a registered ancillary protected expression as to be
likely to be mistaken for the registered geographical indication, the
registered traditional expression or the registered ancillary protected
expression, as the case may be; and
(b) the wine did not originate in the
country, region or locality in relation to which the indication or expression
is registered.
(5) The description and presentation of wine
is misleading if:
(a) it includes:
(i) the name of an
individual who manufactured, sold, exported or imported the wine; or
(ii) if an individual who
manufactured, sold, exported or imported the wine lawfully carried on business
under the name of another individual who previously carried on the business—the
name of that other individual; or
(iii) the name or address of
the winery at which the wine was manufactured; and
(b) the name or address, as the case
may be, is used in such a way in the description and presentation as to be
likely to mislead as to the country, region or locality in which the wine
originated.
(5A) The description and presentation of wine is
misleading if it is not in accordance with such provisions (if any) relating to
the description and presentation of wine as are prescribed for the purposes of
this subsection.
(6) Subsections (2), (3), (4), (5) and
(5A) do not limit what, apart from those subsections, is a misleading
description and presentation of wine.
(7) If:
(a) the description and presentation
of wine includes a word or expression that:
(i) is a registered
geographical indication, a registered traditional expression, or a registered
ancillary protected expression, in relation to a country, region or locality;
or
(ii) is a translation of an
indication or expression referred to in subparagraph (i); or
(iii) resembles an
indication or expression referred to in subparagraph (i); and
(b) the wine originated in that
country, region or locality; and
(c) the
description and presentation indicates that the wine originated in that
country, region or locality;
the description and presentation is not misleading merely
because the indication or expression referred to in subparagraph (a)(i) is
also registered in relation to another country, region or locality.
40G Sale,
export or import of wine in contravention of certain registered conditions
(1) If any registered conditions are
applicable to a registered geographical indication, a registered traditional
expression or a registered ancillary protected expression, a person must not,
in trade or commerce, sell, export or import wine with a description and
presentation that includes that geographical indication, traditional expression
or ancillary protected expression and does not comply with those conditions if
the person knows:
(a) that the wine is sold, exported or
imported with that description and presentation; and
(b) that the description and
presentation does not comply with those conditions.
(2) If a variety or varieties of grapes are
included in the Register, a person must not, in trade or commerce, sell or
export wine manufactured in Australia if the person knows that the wine is not
manufactured exclusively from grapes of that variety or one or more of those
varieties.
(3) If:
(a) a variety of grapes is included in
the Register; and
(b) any
registered conditions are applicable to the description and presentation of
wine manufactured from, or from grapes that include, that variety of grapes;
a person must not, in trade or commerce, sell or export
wine that is manufactured in Australia from, or from grapes that include, that
variety of grapes and the description and presentation of which does not comply
with those conditions if the person knows:
(c) that the wine is manufactured in Australia
from, or from grapes that include, that variety of grapes; and
(d) that the wine is sold or exported with
that description and presentation; and
(e) that the description and
presentation does not comply with those conditions.
(4) For the purposes of establishing a
contravention of subsection (1), (2) or (3), if, having regard to:
(a) a person’s abilities, experience,
qualifications and other attributes; and
(b) all
the circumstances surrounding the alleged contravention of that subsection;
the person ought reasonably
to have known a particular matter referred to in that subsection, the person is
taken to have known that matter.
Penalty: Imprisonment for 1 year.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If, as is the case for an offence against section 40G, the
maximum term of imprisonment is 1 year, the maximum fine that may be imposed is
60 penalty units. The current value of a penalty unit is fixed by section 4AA
of that Act. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
40H
Blending requirements, oenological practices and processes and compositional or
other requirements
(1) If the regulations make provision for or
in relation to blending requirements applicable to the manufacture of wine, a
person must not, in trade or commerce, sell, export or import wine to which
those blending requirements are applicable if the person knows that the wine
was not manufactured in accordance with those requirements.
(2) If the regulations make provision for or
in relation to oenological practices or processes, or compositional or other
requirements, applicable to the manufacture of wine in Australia, a person must
not, in trade or commerce, intentionally export wine to which those practices
or processes, or those compositional or other requirements, are applicable if
the person knows that the wine was not manufactured in accordance with those
practices or processes, or those compositional or other requirements, as the
case may be.
(3) For the purposes of establishing a
contravention of subsection (1) or (2), if, having regard to:
(a) a person’s abilities, experience,
qualifications and other attributes; and
(b) all
the circumstances surrounding the alleged contravention of that subsection;
the person ought reasonably
to have known a particular matter referred to in that subsection, the person is
taken to have known that matter.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If, as is the case for an offence against section 40H, the
maximum term of imprisonment is 2 years, the maximum fine that may be imposed
is 120 penalty units. The current value of a penalty unit is fixed by section 4AA
of that Act. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
40J
Exception for certain wines
(1) In this
section:
small quantities, in relation to wines, means
quantities declared by the regulations to be small quantities of wines for the
purposes of this section.
the offence provisions means subsections
40C(1), (2) and (3), section 40E and subsections 40G(1), (2) and (3) and
40H(1) and (2).
(2) The offence provisions do not apply in
relation to wines manufactured before the commencement of this Part.
(3) The offence provisions do not apply in
relation to wines that are in transit through Australia.
(4) The offence provisions do not apply in
relation to wines that:
(a) originate in Australia or an
agreement country; and
(b) are consigned in small quantities
between Australia and an agreement country under the conditions, and in
accordance with the procedures, prescribed by the regulations.
(5) The regulations may exempt wines referred
to in the regulations from the operation of any one or more of the offence
provisions, either generally or for such periods, in such circumstances, and
subject to such conditions, as are set out in the regulations.
40K
Prosecution of offences
(1) To avoid doubt, it is declared that any
of the following may institute a proceeding for an offence against section 40C,
40E, 40G or 40H:
(a) the Corporation;
(b) a person engaged in the
manufacture of wine or the growing of wine grapes in Australia or in an
agreement country;
(c) an organisation established under
the law of Australia or of an agreement country whose objects or purposes
include any of the following:
(i) the promotion of the
manufacture of wine, the growing of wine grapes or the marketing of wine;
(ii) the promotion or
protection of the interests of persons engaged in the manufacture of wine, the
growing of wine grapes or the marketing of wine;
(iii) the promotion or
protection of the interests of consumers of wine.
(2) This section does not limit the operation
of section 13 of the Crimes Act 1914.
40L
Injunctions
(1) If a person has engaged, is engaging or
proposes to engage in any conduct in contravention of this Division, the
Federal Court of Australia may grant an injunction:
(a) restraining the person from
engaging in the conduct; and
(b) if the Court thinks it desirable
to do so—requiring the person to do a particular act.
(2) An application for an injunction may be
made by, or on behalf of, an interested person.
(3) The following are interested persons for
the purposes of subsection (2):
(a) the Corporation;
(b) a declared wine makers
organisation;
(c) a declared wine grape growers
organisation;
(d) a person who is a manufacturer of
wine, or a grower of wine grapes, in Australia or an agreement country;
(e) an organisation established under
the law of Australia or of an agreement country whose objects or purposes
include any of the following:
(i) the promotion of the
manufacture of wine, the growing of wine grapes or the marketing of wine;
(ii) the promotion or
protection of the interests of persons engaged in the manufacture of wine, the
growing of wine grapes or the marketing of wine;
(iii) the promotion or
protection of the interests of consumers of wine.
(4) The Court may grant an interim injunction
pending a determination of an application for an injunction.
(5) The Court may discharge or vary an
injunction granted under this section.
(6) The power of the Court to grant an
injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
Court that the person intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has
previously engaged in conduct of that kind.
(7) The powers conferred on the Federal Court
of Australia by this section are in addition to, and not in derogation of, any
other powers of the Court.
40M
Application of national food standards to wines imported from agreement
countries
(1) A national food standard applying to wine
has effect in relation to wine that originated in an agreement country as if
any requirement in the standard to comply with particular oenological practices
or processes, or compositional or other requirements, in relation to wine were
replaced by a requirement to comply with:
(a) subject to paragraph (b), the
oenological practices and processes, and the compositional and other
requirements, set out in the prescribed wine‑trading agreement to which
Australia and that country are parties; or
(b) if that agreement has been amended
so as to modify any of those practices or processes or compositional or other
requirements—those practices or processes, or compositional or other
requirements, as so modified from time to time.
(2) The Minister may suspend the operation of
this section in relation to wine of a particular kind or description if the
Minister is satisfied that there are reasonable grounds for believing that
continued compliance with an oenological practice or process, or a
compositional or other requirement, that was used in the manufacture of the
wine would endanger human health.
(3) A suspension under subsection (2):
(a) must be by written notice signed
by the Minister and published in the Gazette; and
(b) takes effect on a day stated in
the notice that is not earlier than the day following the date of publication;
and
(c) remains in force, unless sooner
revoked, for one year.
Division 3—Establishment, function and powers of Geographical
Indications Committee
40N
Establishment of Committee
A committee to be known as the
Geographical Indications Committee is established.
40P
Function and powers of Committee
(1) The functions of the Committee are:
(a) to deal with applications for the
determination of geographical indications for wine in relation to regions and
localities in Australia (Australian GIs) in accordance with this
Part; and
(b) to make determinations of
Australian GIs in accordance with this Part; and
(c) to make determinations for the
omission of Australian GIs in accordance with this Part; and
(d) any other functions conferred on
the Committee under this Part.
(2) The Committee has power to do all things
that are necessary or convenient to be done by, or in connection with, the
performance of its functions.
Division 4—Australian geographical indications
Subdivision A—What this Division is about
40PA
What this Division is about
(1) This Division deals with the determining
of geographical indications (GIs) in relation to a region or
locality in Australia.
Note: Geographical indications in relation to wine
manufactured in an agreement country are not determined under this Division.
They are determined in the agreement between Australia and the agreement country.
(2) Subdivisions B and C deal with the powers
of the Committee and applications for the determination of GIs. Subdivision D
deals with objections to the determination of a GI on the basis of pre‑existing
trade mark rights. GIs are determined under Subdivision E.
Subdivision B—Powers of Committee to determine geographical indications
40Q
Power of Committee to determine geographical indications
(1) The Committee may, either on its own
initiative or on an application made to it in accordance with section 40R,
determine a geographical indication in relation to a region or locality in Australia.
(2) A determination by the Committee is to be
in writing signed by the Presiding Member of the Committee.
40QA
Committee must await decisions under Subdivision D
The Committee must not do a thing under
Subdivision E in respect of a proposed GI unless the requirements of
Subdivision D have been complied with.
Subdivision C—Applications for determinations of geographical indications
40R
Applications for determinations
Any of the following may apply in
writing to the Committee for the determination of a geographical indication in
relation to a region or locality in Australia:
(a) a declared winemakers
organisation;
(b) a declared wine grape growers
organisation;
(c) an organisation representing
winemakers in a State or Territory;
(d) an organisation representing
growers of wine grapes in a State or Territory;
(e) a winemaker;
(f) a grower of wine grapes.
Subdivision D—Objections to determination of geographical indications
based on pre‑existing trade mark rights
40RA
Notice to be given of proposed geographical indication
(1) The Presiding Member of the Committee
must cause a notice under subsection (2) to be published if:
(a) an application under section 40R
has been made for the determination of a geographical indication (the proposed
GI); or
(b) the Committee is considering
determining a geographical indication (the proposed GI) on its
own initiative under section 40Q; or
(c) after an application under section 40R
has been made, the Committee is considering, under paragraph 40T(3)(b),
determining a geographical indication (the proposed GI) that
is different from the GI proposed in the application.
(2) The notice must:
(a) set out the proposed GI; and
(b) invite persons to make written
objections to the Registrar of Trade Marks in relation to the proposed GI on a
ground set out in section 40RB; and
(c) invite those objections to be made
within the period of not less than one month stated in the notice.
40RB
Grounds of objection to the determination of a geographical indication
Registered owner of a registered trade mark
(1) The registered owner of a registered
trade mark may object to the determination of a proposed GI on one of the
following grounds:
(a) that the trade mark consists of a
word or expression that is identical to the proposed GI;
(b) that:
(i) the trade mark
consists of a word or expression; and
(ii) the proposed GI is likely
to cause confusion with that word or expression;
(c) that:
(i) the trade mark
contains a word or expression; and
(ii) the proposed GI is
likely to cause confusion with that word or expression; and
(iii) the owner has trade
mark rights in that word or expression.
(2) The owner may object on the ground
specified in paragraph (1)(c) even if there are conditions or limitations
entered on the Register of Trade Marks suggesting that the owner does not have
trade mark rights to that word or expression.
Trade mark pending
(3) If a person has an application pending for
the registration of a trade mark under the Trade Marks Act 1995, the
person may object to the determination of a proposed GI on one of the following
grounds:
(a) that:
(i) the application was
made in good faith; and
(ii) the trade mark
consists of a word or expression that is identical to the proposed GI; and
(iii) prima facie, the
requirements under the Trade Marks Act 1995 for accepting an application
for registration of a trade mark would be satisfied in respect of the trade
mark applied for;
(b) that:
(i) the application was
made in good faith; and
(ii) the trade mark
consists of a word or expression; and
(iii) the proposed GI is likely
to cause confusion with that word or expression; and
(iv) prima facie, the
requirements under the Trade Marks Act 1995 for accepting an application
for registration of a trade mark would be satisfied in respect of the trade
mark applied for;
(c) that:
(i) the application was
made in good faith; and
(ii) the trade mark
contains a word or expression; and
(iii) the proposed GI is likely
to cause confusion with that word or expression; and
(iv) prima facie, the
requirements under the Trade Marks Act 1995 for accepting an application
for registration of a trade mark would be satisfied in respect of the trade mark
applied for; and
(v) after registration, the
applicant would have trade mark rights in the word or expression.
Trade mark not registered
(4) If a person claims to have trade mark
rights in a trade mark that is not registered, the person may object to
the determination of a proposed GI on one of the following grounds:
(a) that:
(i) the trade mark
consists of a word or expression that is identical to the proposed GI; and
(ii) the person has trade
mark rights in that word or expression; and
(iii) the rights were
acquired through use in good faith;
(b) that:
(i) the trade mark
consists of or contains a word or expression; and
(ii) the proposed GI is likely
to cause confusion with that word or expression; and
(iii) the person has trade
mark rights in that word or expression; and
(iv) the rights were
acquired through use in good faith.
40RC
Consideration of objections
Notice of objection to be given to Committee
(1) If:
(a) the Registrar of Trade Marks
receives an objection in relation to the proposed GI on a ground set out in
section 40RB; and
(b) the objection is received within
the period stated in the notice under section 40RA;
the Registrar of Trade Marks must in writing notify the
Committee of the receipt and terms of the objection.
Registrar of Trade Marks to make decision on whether
ground made out or not
(2) If an objection is notified to the
Committee under subsection (1), the Registrar of Trade Marks must decide
in writing whether the ground of objection is or is not made out.
Registrar may make recommendation to Committee to
determine a GI
(3) If:
(a) the Registrar of Trade Marks
decides that the ground of objection is made out; and
(b) the Registrar of Trade Marks is
satisfied that it is reasonable in the circumstances to recommend to the
Committee that the proposed GI be determined despite the objection having been
made out;
the Registrar of Trade Marks may make the recommendation.
The recommendation must be in writing.
Note 1: For example, it may be reasonable for the
Registrar of Trade Marks to make such a recommendation if the Registrar of
Trade Marks is satisfied that the proposed GI was in use before the trade mark
rights arose.
Note 2: If a recommendation is made under subsection (3),
the Committee may determine the GI (see subsection 40SA(4)).
(4) In determining under paragraph (3)(b)
whether it is reasonable in the circumstances to make the recommendation to the
Committee, the Registrar of Trade Marks must have regard to Australia’s
international obligations.
Regulations
(5) Regulations may set out the procedure to
be followed in making a decision under subsection (2) or (3). The
procedures may include the charging of fees, the holding of hearings and the
taking of evidence.
40RD
Notice to be given of decision
Notice to be given by Registrar of Trade Marks
(1) After the Registrar of Trade Marks has
made a decision under section 40RC in relation to the proposed GI, the
Registrar of Trade Marks must, in writing, inform the following of the outcome
of the decision and of any recommendation that has been made under subsection
40RC(3):
(a) the person who proposed the GI, if
there was an application under section 40R for the GI;
(b) the person who objected to the
determination of the proposed GI;
(c) the Committee.
Notice to be given by Committee
(2) After receiving notice of a decision
under subsection (1), the Presiding Member must cause a notice to be
published:
(a) setting out the proposed GI; and
(b) stating that a decision of the
Registrar of Trade Marks has been made in relation to the proposed GI; and
(c) setting out the terms of the
decision and any recommendation made under subsection 40RC(3) in relation to
the proposed GI.
(3) The notice under subsection (2) is
to be published in the manner that the Committee thinks appropriate.
40RE
Decision that ground of objection no longer exists
(1) If:
(a) a decision has been made that a
ground of objection to a proposed GI has been made out; and
(b) a person applies in writing to the
Registrar of Trade Marks for a decision that circumstances have changed since
that decision was made such that the ground of objection no longer exists;
the Registrar of Trade Marks may, in writing, make a
decision that the ground of objection no longer exists.
Note: If the Registrar of Trade Marks makes a
decision under this section, the Committee may determine the GI (see subsection
40SA(5)).
(2) Regulations may set out the procedure to
be followed in making a decision under subsection (1). The procedures may
include the charging of fees, the holding of hearings and the taking of
evidence.
40RF
Appeals
(1) An appeal lies to the Federal Court
against a decision of the Registrar of Trade Marks, made under:
(a) subsection 40RC(2) (a decision
that a ground of objection is or is not made out); and
(b) subsection 40RC(3) (a
recommendation that a proposed GI be determined or a refusal to make such a
recommendation); and
(c) section 40RE (a decision that
a ground of objection no longer exists or a refusal to make such a decision).
(2) The jurisdiction of the Federal Court to
hear and determine appeals against decisions of the Registrar of Trade Marks
under this Act is exclusive of the jurisdiction of any other court except the
jurisdiction of the High Court under section 75 of the Constitution.
(3) On hearing an appeal against a decision
of the Registrar of Trade Marks under this Act, the Federal Court may do any
one or more of the following:
(a) admit further evidence orally, or
on affidavit or otherwise;
(b) permit the examination and cross‑examination
of witnesses, including witnesses who gave evidence before the Registrar of
Trade Marks;
(c) order an issue of fact to be tried
as it directs;
(d) affirm, reverse or vary the
Registrar of Trade Marks’s decision;
(e) give any judgment, or make any
order, that, in all the circumstances, it thinks fit;
(f) order a party to pay costs to
another party.
(4) The Registrar of Trade Marks may appear
and be heard at the hearing of an appeal to the Federal Court against a
decision of the Registrar of Trade Marks.
(5) Except with the leave of the Federal
Court, an appeal does not lie to the Full Court of the Federal Court against a
decision of a single judge of the Federal Court in the exercise of its
jurisdiction to hear and determine appeals from decisions of the Registrar of
Trade Marks.
(6) The regulations may make provision about
the practice and procedure of the Federal Court in a proceeding under this
section, including provision:
(a) prescribing the time for starting
the action or proceeding or for doing any other act or thing; or
(b) for an extension of that time.
40RG
Decisions made under this Division not to affect rights under Trade Marks Act
A decision made under this Division does
not:
(a) create or affect a right under the
Trade Marks Act 1995 or at common law in respect of a trade mark; or
(b) in any way pre‑empt or
affect a decision of the Registrar of Trade Marks under the Trade Marks Act
1995 in respect of a pending application for the registration of a trade
mark.
Subdivision E—Determinations of geographical indications
40SA
When may a determination be made under this Subdivision?
(1) If an objection was made to a proposed
geographical indication (GI) under section 40RB, the
Committee may only determine the GI in the circumstances set out in this
section.
Grounds of objection not made out
(2) The Committee may determine a GI that was
the subject of a decision under subsection 40RC(2), if:
(a) all appeals against, or reviews
of, the decision (if any) in relation to the GI have been finalised; and
(b) the decision standing after the
appeals and reviews have been finalised is that a ground of objection has not
been made out in relation to the GI.
If grounds for objection made out and person agrees to
determination of GI
(3) The Committee may determine a GI that is
the subject of a decision that a ground of objection has been made out, if the
person who objected to the determination of the GI has agreed, by notice in
writing given to the Committee, to the determination of the GI.
If grounds for objection made out and a recommendation
is made under subsection 40RC(3)
(4) The Committee may determine a GI that is
the subject of a decision that a ground of objection has been made out, if:
(a) a recommendation has been made to
the Committee under subsection 40RC(3) that the GI should be determined despite
the ground of objection having been made out; and
(b) all appeals against, or reviews
of, the decision that the GI should be determined (if any) have been finalised;
and
(c) the decision standing after the
appeals and reviews have been finalised is that the GI should be determined.
If grounds for objection made out and a decision is
made under section 40RE
(5) The Committee may determine a GI that is
the subject of a decision that a ground of objection has been made out, if:
(a) a decision has been made under
section 40RE that the ground of objection no longer exists; and
(b) all appeals against, or reviews
of, the decision that the ground no longer exists (if any) have been finalised;
and
(c) the decision standing after the
appeals and reviews have been finalised is that the ground no longer exists.
40S
Consultation by the Committee
In determining a geographical
indication, the Committee:
(a) must consult any declared
winemakers organisation and any declared wine grape growers organisation; and
(b) may consult any other
organisations or persons it thinks appropriate.
40T
Making of determinations
(1) In determining a geographical indication,
the Committee must:
(a) identify in the determination the
boundaries of the area or areas in the region or locality to which the
determination relates; and
(b) determine the word or expression
to be used to indicate that area or those areas.
(2) If the regulations prescribe criteria for
use by the Committee in determining a geographical indication, the Committee is
to have regard to those criteria.
(3) When making a determination as a result
of an application, the Committee may do either or both of the following:
(a) determine an area or areas having
boundaries different from those stated in the application;
(b) determine a word or expression to
be used to indicate the area or areas constituting the geographical indication
that is different from a word or expression proposed in the application.
(4) In determining a geographical indication,
the Committee must not consider any submission to the extent that the
submission asserts a trade mark right in respect of the proposed geographical
indication.
40U
Interim determination
(1) A determination by the Committee is to be
an interim determination in the first instance.
(2) An interim determination does not have
effect as a determination of a geographical indication.
40V
Publication of notice of interim determination
(1) The Presiding Member of the Committee
must cause a notice stating that the interim determination has been made and
setting out the terms of the determination to be published in any manner that
the Committee thinks appropriate.
(2) The notice must invite persons to make
written submissions to the Committee in relation to the determination within a
period of not less than one month that is stated in the notice.
40W
Final determination
After considering any submissions made
to it, the Committee may make a final determination.
40X
Publication of notice of final determination
(1) The Presiding Member must cause a notice
stating that a final determination has been made and setting out the terms of
the determination to be published in any manner that the Committee thinks appropriate.
(2) The notice must include a statement to
the effect that:
(a) subject to the Administrative
Appeals Tribunal Act 1975, application may be made, by or on behalf of any
person whose interests are affected by the determination, to the Administrative
Appeals Tribunal for review of the determination; and
(b) unless subsection 28(4) of that
Act applies, application may be made in accordance with section 28 of that
Act by or on behalf of that person for a statement in writing setting out the
findings on material questions of fact, referring to the evidence or other
material on which those findings were based and giving the reasons for the
determination; and
(c) if a decision has been made under
section 40RC before the final determination, no application to the
Administrative Appeals Tribunal may be made in respect of that decision under
section 40RC. An appeal lies to the Federal Court under section 40RF
from a decision under section 40RC.
(3) Any failure to comply with subsection (2)
in relation to a determination does not affect the validity of the
determination.
40Y
Review of final determination
(1) Application may be made to the
Administrative Appeals Tribunal for review of a final determination.
Note: Under section 40RF, an appeal lies to the
Federal Court from a decision under section 40RC.
(2) Section 29 of the Administrative
Appeals Tribunal Act 1975 has effect in relation to an application for
review of a final determination as if the following subsections were inserted
after subsection (1):
“(1A) Despite paragraph (1)(d) and subsection (2),
an application to the Tribunal for review of a final determination under Part VIB
of the Australian Wine and Brandy Corporation Act 1980 must be made
within 28 days after notice of the determination is published in accordance
with section 40X of that Act.
“(1B) Despite subsection (8), an
application under subsection (7) in respect of a final determination under
Part VIB of the Australian Wine and Brandy Corporation Act 1980
must be made before the time fixed by subsection (1A) ends.”.
40Z
Date of effect of final determination
(1) The Presiding Member must give a copy of
the final determination to the Registrar so that particulars of the
determination can be included in the Register:
(a) if an application is duly made to
the Administrative Appeals Tribunal for review of the determination—as soon as
practicable after the decision of the Tribunal on the review is given; or
(b) otherwise—as soon as practicable
after the 28th day after notice of the determination is published in accordance
with section 40X.
(2) When the Presiding Member gives a copy of
a final determination to the Registrar, the Presiding Member must also give a
copy to the Chairperson of the Corporation.
(3) A final determination of the Committee
takes effect on the day on which particulars of the determination are included
in the Register.
Division 4A—Omission of registered geographical indications
Subdivision A—What this Division is about
40ZAA
What this Division is about
(1) This Division deals with determining the
omission from the Register of geographical indications (Australian GIs)
determined under Division 4.
(2) The grounds for omission are that an
Australian GI is not in use (see Subdivision B) or is no longer required (see Subdivision
C).
Note: Subsection 40ZD(3) also deals with changes to
the Register.
Subdivision B—Omission of Australian GIs for non‑use
40ZAB
Power of Committee to determine that an Australian GI should be omitted from
the Register
The Committee may, either on its own
initiative or on an application made in accordance with section 40ZAC,
determine that an Australian GI is to be omitted from the Register on the
ground that the GI is not in use.
40ZAC
Application
(1) A person (the applicant)
may apply in the prescribed form to the Committee to omit an Australian GI from
the Register on the ground that the GI is not in use.
(2) The application must be accompanied by
such fee (if any) charged by the Corporation for the making of such an
application.
(3) The Corporation may waive the fee.
(4) If the application is not accompanied by
the fee, and the fee is not waived by the Corporation, the application is
treated as having never been made.
40ZAD
Further information concerning an application
(1) For the purposes of determining the
application, the Committee may, by notice in writing, require the applicant to
provide such further information as the Committee directs, within the period
specified in the notice.
(2) If the applicant does not comply with
this requirement, the application is taken to have been withdrawn.
(3) A notice must include a statement about
the effect of the above.
40ZAE
Notice by Committee
If the Committee:
(a) receives an application under
section 40ZAC; or
(b) proposes on its own initiative
that an Australian GI should be omitted from the Register on the ground that
the GI is not in use;
the Presiding Member of the Committee must cause a notice
to be published in the manner that the Committee thinks appropriate:
(c) setting out the Australian GI; and
(d) stating that an application under
section 40ZAC has been made, or that the Committee is proposing to make a
determination to omit the GI on its own initiative; and
(e) inviting persons to make written
submissions to the Committee in relation to the application or proposal within
the period of not less than one month that is stated in the notice.
40ZAF
Determination by Committee
(1) After considering any submissions made to
it in response to a notice under section 40ZAE, the Committee must
determine whether to omit the Australian GI on the ground that the GI is not in
use.
(2) The Committee may, in writing, make a
determination to omit the GI on that ground if the Committee is satisfied of
the following matters:
(a) that the GI has been registered
for a period of more than 5 years before the date of the notice under section 40ZAE;
(b) that the GI has not been used
during the period of 3 years before the date of the notice under section 40ZAE
(see subsection (3));
(c) that no special circumstances
exist in relation to the region or locality indicated by the GI that would
preclude the making of a determination to omit the GI from the Register (see subsection (4)).
Meaning of GI not been used
(3) For the purposes of paragraph (2)(b),
an Australian GI has not been used if:
(a) there has not been a production of
wine for commercial use originating in the region or locality indicated by the
GI; and
(b) wine originating in the region or
locality indicated by the GI has not been described and presented for sale
within Australia, or for export, using that GI.
Meaning of special circumstances
(4) For the purposes of paragraph (2)(c),
special circumstances exist if:
(a) the region or locality indicated
by the GI has been affected by fire, drought or some other disaster; and
(b) as a result of being so affected,
there has not been a production of wine for commercial use originating in the
region or locality indicated by the GI during the period of 3 years immediately
before the date of the notice under section 40ZAE.
40ZAG
Notice of determination
The Presiding Member of the Committee
must cause:
(a) a notice to be given of the
Committee’s determination to the applicant (if any); and
(b) if the determination made is to
omit the Australian GI from the Register—a notice setting out the terms of the
determination to be published in the manner that the Committee thinks
appropriate.
40ZAH
AAT review of a determination
(1) Application may be made to the
Administrative Appeals Tribunal for review of the determination made under
section 40ZAF.
(2) Despite paragraph 29(1)(d) and subsection
29(2) of the Administrative Appeals Tribunal Act 1975, an application to
the Tribunal for review of a determination under section 40ZAF must be
made within 28 days after notice of the determination is published in
accordance with section 40ZAG.
(3) Despite subsection 29(8) of the Administrative
Appeals Tribunal Act 1975, an application under subsection 29(7) of that
Act in respect of a determination under section 40ZAF must be made before
the time fixed by subsection (2) of this section ends.
40ZAI
Date of effect of determination to omit GI
(1) If the determination made by the
Committee under section 40ZAF is a determination to omit the Australian GI
from the Register, the Presiding Member must give a copy of the determination
to the Registrar so that particulars of the determination can be omitted from
the Register:
(a) if an application is made to the
Administrative Appeals Tribunal under section 40ZAH for review of the
determination—as soon as practicable after the decision of the Tribunal on the
review is given; or
(b) otherwise—as soon as practicable
after the 28th day after notice of the determination is published in accordance
with section 40ZAG.
(2) When the Presiding Member gives a copy of
the determination to the Registrar, the Presiding Member must also give a copy
to the Chairperson of the Corporation.
(3) The determination of the Committee takes
effect on the day on which particulars of the GI are omitted from the Register.
Subdivision C—Omission of Australian GIs because no longer required
40ZAJ
Application
(1) A person (the applicant)
may apply in the prescribed form to the Committee to omit an Australian GI from
the Register on the ground that the GI is no longer required.
(2) The application must be accompanied by a
written statement from each of the following organisations supporting the
application:
(a) a declared winemakers’
organisation (if any);
(b) a declared wine grape growers’ organisation
(if any);
(c) the organisation or organisations
representing winemakers in a State or Territory wholly or partly covered by the
region or locality in Australia indicated by the GI;
(d) the organisation or organisations
representing growers of wine grapes in a State or Territory wholly or partly
covered by the region or locality in Australia indicated by the GI.
(3) The application must also be accompanied
by such fee (if any) charged by the Corporation for the making of such an
application.
(4) The Corporation may waive the fee.
(5) If:
(a) the application is not accompanied
by the fee, and the fee is not waived by the Corporation; or
(b) the application is not accompanied
by the statements referred to in subsection (2);
then the application is taken never to have been made.
40ZAK
Further information concerning an application
(1) For the purposes of determining the
application, the Committee may, by notice in writing, require the applicant to
provide such further information as the Committee directs, within the period
specified in the notice.
(2) If the applicant does not comply with
this requirement, the application is taken to have been withdrawn.
(3) A notice must include a statement about
the effect of subsection (2).
40ZAL
Notice by Committee
After receiving an application under
section 40ZAJ, the Presiding Member of the Committee must cause a notice
to be published in the manner that the Committee thinks appropriate:
(a) stating that an application under
section 40ZAJ has been made and setting out the Australian GI; and
(b) inviting:
(i) interested persons in
relation to the GI (see section 40ZAM); and
(ii) members of the
organisations referred to in subsection 40ZAJ(2); and
(iii) the organisations
referred to in subsection 40ZAJ(2);
to object to the omission of the
GI from the Register by making written submissions to the Committee within the
period of not less than one month that is stated in the notice.
40ZAM
Meaning of interested person
For the purposes of subparagraph
40ZAL(b)(i), an interested person in relation to an Australian GI is a person
who the Committee is satisfied is:
(a) a winemaker who makes wine for
commercial purposes from grapes grown in the region or locality indicated by
the GI; or
(b) a grower of grapes who grows wine
grapes in the region or locality indicated by the GI; or
(c) a person who owns or leases a
tract of land that is:
(i) 5 hectares or more in
size and situated in the region or locality indicated by the GI; and
(ii) capable of being used
to grow grapes for commercial wine production; or
(d) a person who:
(i) has a mortgage, lien
or other commercial interest over, or in relation to, a vineyard or other
property used in the production of wine that is situated in the region or
locality indicated by the GI; and
(ii) has the agreement of
the owner of the property to that person making a submission to the Committee
under section 40ZAL.
40ZAN
Determination by Committee
No submission made
(1) If no submissions have been made to the
Committee in response to the notice under section 40ZAL, the Committee
must make a determination in writing to omit the Australian GI from the
Register on the grounds that the GI is no longer required.
Submission made
(2) If a submission has been made to the Committee,
the Committee must make a determination in writing not to omit the GI from the
Register.
40ZAO
Notice of determination
The Presiding Member of the Committee
must cause:
(a) notice to be given of the
Committee’s determination to the applicant; and
(b) a notice setting out the terms of
the determination to be published in any manner that the Committee thinks
appropriate.
40ZAP
Date of effect of determination to omit Australian GI
(1) If the determination made by the
Committee under section 40ZAN is a determination to omit the Australian GI
from the Register, the Presiding Member must give a copy of the determination
to the Registrar so that particulars of the determination can be omitted from
the Register as soon as is practicable.
(2) When the Presiding Member gives a copy of
the determination to the Registrar, the Presiding Member must also give a copy
to the Chairperson of the Corporation.
(3) The determination of the Committee takes
effect on the day on which particulars of the GI are omitted from the Register.
Division 5—Register of Protected Names
40ZA
Registrar
(1) There is to be a Registrar of Protected
Names.
(2) The Registrar is to be an employee of the
Corporation.
(3) The Corporation must ensure that, at all
times when the person appointed as Registrar is absent from duty or from
Australia or is, for any other reason, unable to perform the duties of the
Registrar, another employee is appointed to act as Registrar.
40ZB
Functions of Registrar
The Registrar has the following functions:
(a) to keep the Register of Protected
Names;
(b) to enter particulars in the
Register in accordance with section 40ZD;
(c) to provide administrative
assistance to the Committee;
(d) in accordance with the directions
of the Committee, to prepare and cause to be published maps or other documents
showing the boundaries of regions and localities in relation to which
geographical indications have been determined by the Committee;
(e) in accordance with the directions
of the Committee, to notify authorities and organisations in foreign countries
of the geographical indications and traditional expressions included in the
Register in relation to wines manufactured in Australia.
40ZC
Register of Protected Names
(1) The Registrar is to keep a register to be
known as the Register of Protected Names.
(2) The Register may be kept wholly or partly
by means of a computer.
40ZD
Contents of Register
(1) The Register is to be divided into the
following parts:
(a) a part containing geographical
indications in relation to wines manufactured in Australia and the conditions
(if any) applicable to those indications;
(b) a part containing traditional
expressions in relation to wines manufactured in Australia and the conditions
(if any) applicable to those expressions;
(c) a part containing geographical
indications in relation to wines manufactured in an agreement country and the
conditions (if any) applicable to those indications;
(d) a part containing traditional
expressions in relation to wines manufactured in an agreement country and the
conditions (if any) applicable to those expressions;
(e) a part containing words or
expressions, other than geographical indications or traditional expressions, in
relation to wines manufactured in an agreement country and the conditions (if
any) applicable to those words or expressions;
(f) a part containing the names of
varieties of grapes for use in the manufacture of wines in Australia and the
conditions (if any) applicable to the description and presentation of wines manufactured
in Australia from grapes of those varieties;
(g) a part containing geographical
indications in relation to wines manufactured in foreign countries that are not
agreement countries and the conditions (if any) applicable to those
indications;
(h) a part containing traditional
expressions in relation to wines manufactured in foreign countries that are not
agreement countries and the conditions (if any) applicable to those traditional
expressions.
(2) The Registrar is to enter in the
appropriate part of the Register, in accordance with the directions of the
Corporation, the following particulars:
(a) in relation to Australia—the
following geographical indications:
(i) Australia;
(ii) Australian;
(iii) the name of each State
and internal Territory;
(iv) each
geographical indication determined by the Committee under Division 4;
and the conditions (if any)
applicable to those indications;
(b) in relation to Australia—each word
or expression that, under a prescribed wine‑trading agreement, is a traditional
expression in relation to wines manufactured in Australia and the conditions
(if any) applicable to those traditional expressions;
(c) in relation to an agreement
country—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 manufactured in that country and the conditions (if any)
applicable to those indications;
(d) in relation to an agreement
country—each word or expression that, under a prescribed wine‑trading
agreement to which that country is a party, is a traditional expression in
relation to wines manufactured in that country and the conditions (if any)
applicable to those traditional expressions;
(e) in relation to an agreement country—each
word or expression (other than a word or expression to which paragraph (c)
or (d) applies) that, under a prescribed wine‑trading agreement to which
that country is a party, is required to be protected in relation to wines
manufactured in that country and the conditions (if any) applicable to those
words or expressions;
(f) particulars of varieties of
grapes that may be used in the manufacture of wine in Australia and the
conditions (if any) applicable to the description and presentation of wines
manufactured in Australia from grapes of those varieties;
(g) in relation to a foreign country
that is not an agreement country—geographical indications in relation to wines
manufactured in that country and the conditions (if any) applicable to those
indications;
(h) in relation to a foreign country
that is not an agreement country—traditional expressions in relation to wines
manufactured in that country and the conditions (if any) applicable to those
expressions.
(3) If:
(a) it appears to the Corporation
that:
(i) an entry in the
Register is not, or has ceased to be, necessary; or
(ii) an entry in the
Register is included in the wrong part of the Register;
and the inclusion of the entry
in the Register, or in that part of the Register, did not result from a
determination made by the Committee under Division 4; or
(b) it appears to the Corporation that
an entry should not have been included in the Register, or an entry in the
Register is incorrect, because of a clerical or similar error;
the Corporation may direct the Registrar to omit the entry
from the Register, to omit the entry from that part of the Register and insert
it in the correct part, or to correct the entry, as the case requires.
(4) In subsection (3):
entry includes a part of an entry.
(5) The Registrar must comply with a
direction given under subsection (3).
40ZE
Inspection of Register
(1) The Registrar must ensure that the
Register is available for inspection at the office of the Registrar by any
person during ordinary hours of business of that office.
(2) To the extent that the Register is kept
by use of a computer, subsection (1) is complied with by giving members of
the public access to a computer terminal that they can use to inspect the
particulars constituting the Register, either on a screen or in the form of a
computer print‑out.
(3) The Registrar may supply a copy of the
Register or part of the Register to a person on payment of the prescribed fee.
Division 6—Inspection
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, with the
following modifications:
(a) references in that Part to label
laws are treated as references to the requirements of this Part and of
regulations made for the purposes of this Part;
(b) references in that Part to label
offences are treated as references to offences against this Part and
against regulations made for the purposes of this Part.
Part VII—Miscellaneous
41A
Remuneration and allowances of members of Corporation etc.
(1) This section applies to a person who is:
(a) a member; or
(b) a member of the Geographical
Indications Committee established by section 40N; or
(c) a member of a committee
constituted under section 11 other than a member of the Corporation.
(2) Subject to this section, a person to whom
this section applies shall be paid such remuneration as is determined by the
Remuneration Tribunal, but, if no determination of that remuneration by the
Tribunal is in operation, the person shall be paid such remuneration as is
prescribed.
(3) Subject to this section, a person to whom
this section applies shall be paid such allowances as are prescribed.
(4) Subsections (2) and (3) have effect
subject to the Remuneration Tribunal Act 1973.
(5) Payments under this section shall be made
out of the funds of the Corporation.
(6) If:
(a) a person to whom this section
applies is also a member of, or a candidate for election to, the Parliament of
a State; and
(b) under
the law of that State the person would not be eligible to remain, or to be
elected as, a member of that Parliament if he or she were entitled to
remuneration under this Act;
the person shall not be paid remuneration or allowances
under this Act but shall be reimbursed such expenses as the person reasonably
incurs because of the person’s performing the functions of the office under
this Act held by the person.
(7) If a person to whom this section applies
is also:
(a) a member of the Parliament of a
State (other than a State referred to in subsection (6)); or
(b) in
the service or employment of a State or an authority of a State, or holds or
performs the duties of any office or position established by or under a law of
a State, on a full‑time basis;
it is a condition of the person’s holding the office under
this Act held by the person that the person pay to the State, within one month
of receiving an amount of remuneration under this Act, an amount equal to that
first‑mentioned amount, and the person:
(c) shall not be paid allowances under
this Act; and
(d) shall be reimbursed such expenses
as the person reasonably incurs because of the person’s performing the
functions of the office under this Act held by the person.
(8) An amount payable to a State by a person
under subsection (7) is a debt due to the State and the State may recover
that amount by action against the person in a court of competent jurisdiction.
(9) In this section:
Parliament, in relation to the Northern Territory,
means the Legislative Assembly of the Northern Territory.
State includes the Northern Territory.
42
Corporation may require information
(1) The Corporation may, by notice in writing
given, or sent by post, to a person, require the person to furnish, within such
time as is specified in the notice not being less than 14 days, such
information, in addition to any other information that the person is required
to furnish under this Act or any other Act, in relation to the production of
prescribed goods or grape products to matters relating to the description of
wine, other than matters about which records are required to be kept under Part VIA,
or to prescribed goods or grape products owned by the person or under the
person’s control as is specified in the notice.
(2) A person shall not fail or neglect duly
to furnish information that the person is required to furnish by virtue of a
notice given, or sent by post, to the person under subsection (1).
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2A). See subsection 13.3(3) of the Criminal
Code.
(2B) An offence under subsection (2) is an
offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) A person is not excused from furnishing
information that the person is required to furnish by virtue of a notice given,
or sent by post, to the person under subsection (1) on the ground that the
information might tend to incriminate the person or make the person liable to a
penalty, but any information so furnished is not admissible in evidence against
the person in proceedings other than proceedings for an offence against subsection (4).
(4) A person
shall not furnish to the Corporation information that the person knows is false
or misleading in a material particular.
Penalty:
(a) in the case of a natural
person—imprisonment for 6 months; or
(b) in the case of a body
corporate—$5,000.
43
Delegation
(1) The Corporation may, either generally or
as otherwise provided by the instrument of delegation, by writing under its
common seal, delegate to a person or to a committee established under section 11
any of its powers under this Act, other than its powers under subsection 30(2)
or this power of delegation.
(2) A power so delegated, when exercised by
the delegate, shall, for the purposes of this Act, be deemed to have been
exercised by the Corporation.
(3) A delegation under this section does not
prevent the exercise of a power by the Corporation.
44
Offences in relation to export of grape products
(1) A person shall not export a grape product
from Australia in contravention of the regulations.
Penalty:
(a) in the case of a natural
person—$6,000; or
(b) in the case of a body
corporate—$10,000.
(1A) An offence under subsection (1) is an
offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(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, with the
following modifications:
(a) references in that Part to label
laws are treated as references to the requirements of the regulations
relating to the export of grape products from Australia;
(b) references in that Part to label
offences are treated as references to offences against this section.
44AA
Time for bringing prosecutions
Despite section 15B of the Crimes
Act 1914, a prosecution for an offence against section 44 of this Act
that is committed after the commencement of this section may be brought at any
time within 7 years after the commission of the offence.
44A
Conduct by directors, servants or agents
(1) Where, in proceedings for an offence
against this Act, it is necessary to establish the state of mind of a body
corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a director, servant or agent of the body corporate within the scope of his or
her actual or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate by a director, servant or agent of the body corporate within the
scope of his or her actual or apparent authority is to be taken, for the
purposes of a prosecution for an offence against this Act, to have been engaged
in also by the body corporate unless the body corporate establishes that it
took reasonable precautions to avoid the conduct.
(3) Where, in proceedings for an offence
against this Act, it is necessary to establish the state of mind of a natural
person in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a servant or agent of the person within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
state of mind.
(4) Any conduct engaged in on behalf of a
natural person by a servant or agent of the person within the scope of his or
her actual or apparent authority is to be taken, for the purposes of a
prosecution for an offence against this Act, to have been engaged in also by
the first‑mentioned person unless the first‑mentioned person
establishes that the first‑mentioned person took reasonable precautions
to avoid the conduct.
(5) Where:
(a) a natural person is convicted of
an offence; and
(b) the
person would not have been convicted of the offence if subsections (3) and
(4) had not been enacted;
the person is not liable to be punished by imprisonment
for that offence.
(6) A reference in subsection (1) or (3)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
(7) A reference in this section to a director
of a body corporate includes a reference to a constituent member of a body
corporate incorporated for a public purpose by a law of the Commonwealth, of a
State or of a Territory.
(8) A reference in this section to engaging
in conduct includes a reference to failing or refusing to engage in conduct.
(9) A reference in this section to an offence
against this Act includes a reference to:
(a) an offence created by the
regulations; and
(b) an offence against section 6
of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal
Code, that relates to this Act or the regulations.
45
Operation of certain laws not restricted
Nothing in this Act or the regulations
restricts the operation of the Customs Act 1901, the Commerce (Trade
Descriptions) Act 1905 or the Export Control Act 1982, or of any
regulations made under any one or more of those Acts.
46
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters required
or permitted by this Act to be prescribed or necessary or convenient to be
prescribed for carrying out or giving effect to this Act, and, in particular:
(a) making provision with respect to
annual general meetings including, in particular, provisions in respect of:
(i) the giving of notice
of motions to be moved at such meetings; and
(ii) the moving of motions
at such meetings by the Corporation; and
(iii) the procedure at such
meetings; and
(iv) the appointment by
persons entitled to attend such meetings of other persons to be their proxies
at such meetings; and
(iva) the method of
determining the number of votes that an eligible producer (within the meaning
of section 29U) may cast at such meetings; and
(v) the means of
determining whether or not motions voted upon at such meetings have been
passed; and
(vi) the confidentiality of
voting at such meetings; and
(b) requiring the doing of acts or
things necessary to be done for the purpose of giving effect to a prescribed
wine‑trading agreement; and
(c) prohibiting the export of a grape
product from Australia except subject to and in accordance with prescribed
conditions, including, in particular:
(i) conditions requiring
an exporter to be the holder of a licence to export the grape product;
(ii) conditions requiring
an exporter to obtain the approval of the Corporation for particular exports of
the grape product;
(iii) conditions requiring
the purchaser of the grape product, or the person to whom the grape product is
consigned as an agent or representative of the purchaser or exporter in the
country to which the grape product is consigned, to be a person approved by the
Corporation; or
(iv) conditions relating to
the price, or form of consignment, of the grape product; and
(d) making provision with respect to:
(i) the grant, suspension
or cancellation by the Corporation, or a person authorized by it, of licences
to export a grape product from Australia; and
(ii) the issuing or
revocation by the Corporation, or by a person authorized by it, in respect of
particular exports of a grape product, of certificates as to compliance with
the conditions subject to which the grape product may be exported; and
(e) providing for the period for which
a licence, or a licence included in a class of licences, granted under the
regulations remains in force; and
(f) authorizing the Corporation, or a
person authorized by it:
(i) to determine prices or
other matters for the purposes of the regulations; or
(ii) to give to the holder
of a licence to export a grape product granted under the regulations
directions, in writing, with respect to the quantities of the grape product
that may be exported by the holder of the licence either generally or otherwise
as provided in the regulations; and
(g) requiring persons to furnish
returns and information necessary for the purposes of this Act; and
(h) providing for a penalty of:
(i) if the person is a
natural person, a fine not exceeding $1,000; or
(ii) if
the person is a body corporate, a fine not exceeding $5,000;
for offences against the
regulations.
Part VIII—Repeal of certain Acts and consequent transitional
provisions
47
Interpretation
In this Part, Board means
the Australian Wine Board established by the Wine Overseas Marketing Act
1929.
49
Rights etc. of Board to vest in Corporation etc.
(1) Upon the commencing date:
(a) any rights, property or assets
that, immediately before that date, were vested in the Board are, by force of
this subsection, vested in the Corporation; and
(b) the Corporation becomes, by force
of this subsection, liable to pay and discharge any debts, liabilities or
obligations of the Board that existed immediately before that date.
(2) An arrangement or contract entered into
by or on behalf of the Board as a party and in force immediately before the
commencing date continues in force, notwithstanding the repeal of the Acts
specified in the Schedule, but that arrangement or contract has effect, on and
after the commencing date, as if:
(a) the Corporation were substituted
for the Board as a party to the arrangement or contract; and
(b) any reference in the arrangement
or contract to the Board were (except in relation to matters that occurred
before that date) a reference to the Corporation.
(3) Where, immediately before the commencing
date, proceedings to which the Board was a party were pending in any court, the
Corporation is, by force of this subsection, substituted for the Board as a
party to the proceedings and has the same rights in the proceedings as the
party for which it is substituted.
50
Instrument etc. not liable to stamp duty etc.
An instrument or document that the
Secretary to the Department of Primary Industry or an officer of that
Department authorized by him in writing for the purpose of this section
certifies to have been made, executed or given by reason of, or for a purpose
connected with or arising out of, the operation of this Part is not liable to
stamp duty or other tax under a law of the Commonwealth or of a State or
Territory.
51
Application of moneys of Corporation
The moneys of the Corporation may be
applied in payment or discharge of the debts, liabilities and obligations
referred to in paragraph 49(1)(b).
52
Moneys to be paid to Corporation in respect of levy etc.
There shall be paid to the Corporation
out of the Consolidated Revenue Fund, which is appropriated accordingly, an
amount equal to the aggregate of any amounts received by the Commonwealth,
before the commencing date:
(a) as charge under the Wine Grapes
Charges Act 1929 (including that Act in its application by virtue of
subsection 3(2) of the Wine Grapes Charges (Repeal) Act 1979;
(b) as levy under the Wine Grapes
Levy Act 1979; or
(c) as
penalties under section 5 of the Wine Grapes Levy Collection Act 1979;
that have not been taken into account in making a payment
to the Board under subsection 21(1) of the Wine Overseas Marketing Act 1929,
less an amount equal to the aggregate of any amounts to be paid by the
Commonwealth by way of refund under section 7 of the Wine Grapes Levy
Collection Act 1979 in respect of any amounts so received.
53
Employees of Board
(1) A person who, immediately before the
commencing date, was employed by the Board shall, by virtue of this subsection,
be deemed to be, on that date, engaged as an employee of the Corporation under
section 30.
(2) Terms and conditions of employment
applicable to a person referred to in subsection (1) immediately before
the commencing date shall, by virtue of this subsection, be deemed to be terms
and conditions of employment determined under subsection 30(2), but those terms
and conditions may, at any time after the commencing date, be varied under that
subsection.
54
Report on operations of Board
(1) The Corporation shall, not later than 6
months after the commencing date, prepare and submit to the Minister a report
on the operation of the Wine Overseas Marketing Act 1929 during the
period that:
(a) commenced immediately after the
expiration of the last period in respect of which a report was submitted by the
Board to the Minister in pursuance of section 29 of that Act; and
(b) ended immediately before the
commencing date.
(2) The Minister shall cause a copy of the
report, together with a statement by the Minister regarding the operation of
the Wine Overseas Marketing Act 1929 during the period to which the
report relates, to be laid before each House of the Parliament within 15 sitting
days of that House after the receipt of the report by the Minister.
(3) The persons who, immediately before the
commencing date, were members of the Board shall furnish to the Corporation
such information as is necessary to enable the Corporation to prepare the
report.
55
Regulations
The regulations may make provision for
and in relation to the continued effect, for the purposes of the regulations,
of licences and certificates in force, immediately before the commencing date,
under regulations made for the purposes of the Wine Overseas
Marketing Act 1929.