Wine Australia Act 2013

6 Wine Australia

(1) This section applies to the body corporate that was established by section 6 of the Australian Grape and Wine Authority Act 2013 (as in force immediately before the commencement of this section).

That body corporate continues in existence by force of this section as a body corporate, under and subject to the provisions of this Act, under the name Wine Australia.

Note 1: In this Act, Authority means the authority known as Wine Australia—see section 4.

Note 2: Subsection 25B(1) of the Acts Interpretation Act 1901 provides that a body whose name is altered by an Act continues in existence under the new name so that its identity is not affected.

7 Functions of the Authority

The Authority has the following functions:

to investigate and evaluate the requirements for grape or wine research and development;

to coordinate or fund the carrying out of grape or wine research and development activities;

to:

monitor; and

evaluate; and

report to the Parliament, the Minister and the representative organisations on;

grape or wine research and development activities that are coordinated or funded, wholly or partly, by the Authority;

to:

assess; and

report to the Parliament, the Minister and the representative organisations on;

the impact, on the grape industry or wine industry, of grape or wine research and development activities that are coordinated or funded, wholly or partly, by the Authority;

to facilitate the dissemination, adoption and commercialisation of the results of grape or wine research and development;

(ea) to implement, facilitate and administer programs, as directed by the Minister, in relation to:

wine; and

(ii) cider (as defined by A New Tax System (Wine Equalisation Tax) Act 1999); andsection 33-1 of the

international wine tourism, and services, products and experiences that complement international wine tourism;

(eb) to administer grant programs in relation to wine (as defined by A New Tax System (Wine Equalisation Tax) Act 1999), as directed by the Minister;section 33-1 of the

to control the export of grape products from Australia;

to promote the consumption and sale of grape products, both in Australia and overseas;

such other functions as are conferred on the Authority by:

this Act; or

the regulations; or

any other law;

to do anything incidental to, or conducive to, the performance of any of the above functions.

Note: One of the Authority’s functions under the regulations is to establish, maintain and make publicly available a Label Directory.

7A Constitutional limits

The Authority may perform its functions only:

for purposes relating to trade or commerce:

between Australia and places outside Australia; or

among the States; or

within a Territory, between a State and a Territory or between 2 Territories; or

for purposes relating to bounties on the production or export of goods; or

for purposes related to external affairs, including any of the following:

enabling Australia to fulfil its obligations under prescribed wine-trading agreements;

enabling Australia to fulfil its obligations under other international agreements to which Australia is a party;

addressing matters of international concern;

by way of the performance of its functions in a place outside Australia; or

for purposes relating to a corporation to which paragraph 51(xx) of the Constitution applies; or

for purposes relating to the collection of statistics; or

by way of the use of a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or

by way of the making of a grant of financial assistance to a State or Territory; or

for purposes relating to a Territory; or

(h) with respect to a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or

for purposes relating to the implied power of the Parliament to make laws with respect to nationhood; or

for purposes relating to the executive power of the Commonwealth; or

for purposes relating to matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth.

7B Uniformity

A power conferred on any person by this Act must not be exercised in such a manner that bounty would not be uniform throughout the Commonwealth within the meaning of paragraph 51(iii) of the Constitution.

8 Powers of the Authority

General power

Subject to this Act, the Authority has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

Specific powers

Without limiting the generality of subsection (1), the powers of the Authority referred to in that subsection include power:

to do anything for the purpose of giving effect to a prescribed wine-trading agreement; and

to determine any conditions of use that are to be applicable to any registered geographical indications and any registered translations of such indications; and

to determine in relation to a foreign country:

any traditional expressions that are to be registered in relation to wines originating in that country (being traditional expressions that are recognised in the laws and regulations of that country for the purpose of the description and presentation of wine); and

any conditions of use that are to be applicable to any or all of those expressions; and

to determine:

in relation to Australia—any terms that are to be registered as additional terms in relation to wines originating in Australia (being terms that are required to be protected for the purpose of the description and presentation of wine); and

in relation to a foreign country—any terms that are to be registered as additional terms in relation to wines originating in that country (being terms that are recognised in the laws and regulations of that country for the purpose of the description and presentation of wine); and

in relation to a particular wine (regardless of origin)—any terms that are to be registered as additional terms in relation to that wine; and

any conditions of use that are to be applicable to any or all of the terms referred to in subparagraphs (i) to (iii); and

to control the export of grape products from Australia by determining the persons, other than the Authority, who shall be permitted to export grape products and the conditions under which such exports will be permitted; and

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

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

to the extent required to promote the consumption and sale of grape products in Australia or overseas, to buy, sell or otherwise engage in trade in grape products and do all things necessary or convenient for engaging in that trade; and

to engage, or make arrangements with, persons, organisations or companies to perform work, or act as agent, for the Authority, whether in Australia or overseas; and

to charge such fees as are fair and proper to enable the Authority to meet costs incurred by the Authority 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

to charge for the provision of goods or services, or the performance of work, by, or on behalf of, the Authority; and

without limiting paragraph (g), to charge fees for the provision of services, or the performance of work, by or on behalf of:

the Authority; or

the Geographical Indications Committee established by section 40N;

in relation to the determination of geographical indications and translations of such indications by the Geographical Indications Committee (including determinations for the omission of such indications and translations); and

to waive the payment of fees and charges payable to the Authority; and

to make applications, including joint applications, for patents; and

to deal with patents vested in the Authority or in the Authority and other persons; and

to accept gifts, grants, bequests and devises made to the Authority, and act as trustee of money and other property vested in the Authority on trust; and

to join in the formation of a company.

Requirements for determinations by the Authority

A determination under paragraph (2)(aa), (ac) or (ad) is to be in writing under the Authority’s seal.

When the Authority makes a determination referred to in subsection (2A), the Chair 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 Authority thinks appropriate.

The notice must include a statement to the effect that:

(a) subject to the Administrative Review Tribunal Act 2024, application may be made, by or on behalf of any person whose interests are affected by the determination, to the Administrative Review Tribunal for review of the determination; and

the person may, under section 268 of that Act, request a statement of reasons for the determination.

Any failure to comply with subsection (2C) in relation to a determination does not affect the validity of the determination.

Review of determinations

Application may be made to the Administrative Review Tribunal for review of a determination.

(2F) Despite Administrative Review Tribunal Act 2024, an application to the Tribunal for review of a determination made under paragraph 8(2)(aa), (ac) or (ad) of this Act must be made within 28 days after notice of the determination is published in accordance with subsection 8(2B) of this Act.section 18 of the

(2FA) Despite Administrative Review Tribunal Act 2024, an application to the Tribunal to extend the period during which an applicant may apply to the Tribunal in respect of a determination made under paragraph 8(2)(aa), (ac) or (ad) of this Act must be made within 28 days after notice of the determination is published in accordance with subsection 8(2B) of this Act.section 19 of the

Inclusion of particulars in the Register

The Chair must give a copy of the determination to the Registrar so that particulars of the determination can be included in the Register:

if an application is duly made to the Administrative Review Tribunal for review of the determination—as soon as practicable after the decision of the Tribunal on the review is given; or

otherwise—as soon as practicable after the 28th day after notice of the determination is published in accordance with subsection (2B).

The determination takes effect on the day on which particulars of the determination are included in the Register.

Consistency with corporate and operational plans

Subject to subsection 31K(4), the Authority 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.

10 Power to enter into arrangements etc.

Without limiting the generality of the Authority may enter into arrangements or agreements (including arrangements or agreements under which money is, or may become, payable by the Commonwealth) with persons, authorities or organizations in Australia or overseas, or, with the consent of the Minister, with a State, for the purposes of the Authority.section 8,

Note: For a grant of financial assistance to a State relating to grape or wine research and development activities, see section 10C.

10A Agreements for carrying out grape or wine research and development activities by other persons

The Authority may enter into an agreement with a person for the carrying out of grape or wine research and development activities by the person.

The agreement may:

provide for:

the money provided under the agreement; and

any property acquired or goods produced with that money, or with money that includes that money;

to be used for the purposes specified in the agreement; and

provide for the payment by the person to the Authority of an amount equal to the whole, or such part as the Authority determines, of the money provided under the agreement if any of the money, property or goods referred to in paragraph (a) is or are used for a purpose not specified in the agreement; and

make provision with respect to:

assigning inventions and interests in inventions; and

applying for patents for inventions; and

commercially exploiting patented inventions; and

granting licences under patented inventions;

where the inventions are made in the course of undertaking grape or wine research and development activities or doing anything else with that money or with money that includes that money; and

provide for the payment by the person to the Authority of an amount equal to the whole, or such part as the Authority determines, of any net income derived by the person from:

the money, property or goods referred to in paragraph (a); or

patents or interests referred to in paragraph (c); and

provide for the assignment by the person to the Authority of any money, property, goods, patents or interests referred to in paragraph (d); and

provide for the payment by the person to the Authority of an amount of money determined by the Authority in accordance with the agreement in the event of the disposal (otherwise than to the Authority) of any property, goods, patents or interests referred to in paragraph (d).

Subsection (2) does not limit the matters that may be included in the agreement.

This section does not limit section 8.

10B Agreements for carrying out grape or wine research and development activities with other persons

The Authority may enter into an agreement (including a joint venture agreement or a partnership agreement) with a person for grape or wine research and development activities to be carried out by the Authority and the person.

The agreement must specify:

the objectives of the grape or wine research and development activities; and

the expected duration of the grape or wine research and development activities; and

the nature and extent of the contribution to be made by the Authority towards the grape or wine research and development activities; and

the basis for the distribution of profits and other benefits derived from the grape or wine research and development activities.

Subsection (2) does not limit the matters that may be included in the agreement.

This section does not limit section 8.

10C Grants relating to grape or wine research and development activities

The Authority may make a grant of financial assistance to a State if the grant relates to grape or wine research and development activities.

The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Authority and the State.

(3) For the purposes of this section, State includes:

the Australian Capital Territory; and

the Northern Territory.

10D Consultations with persons and organisations

The Authority may make arrangements for consulting:

persons and bodies representative of the grape industry or the wine industry (including any of the representative organisations); and

Commonwealth, State and Territory authorities concerned with the grape industry or the wine industry.

Arrangements made by the Authority under subsection (1) may provide for:

the Authority agreeing to meet travel expenses reasonably incurred by a person in connection with consultations with the Authority; and

subject to written guidelines given to the Authority by the Minister, the Authority agreeing to meet expenses (other than travel expenses) reasonably incurred by a representative organisation, or a member of a representative organisation, in connection with consultations with the Authority.

Subsection (2) does not limit subsection (1).

This section does not limit section 8.

11 Committees

The Authority may appoint a committee to assist the Authority in relation to a matter.

Without limiting subsection (1), the Authority may appoint a committee under that subsection to perform the functions appropriate for an executive committee of the Authority.

A committee established under this section shall consist of such persons, including at least 1 director of the Authority, as the Authority thinks fit.

11A Authority does not have privileges and immunities of the Crown

The Authority does not have the privileges and immunities of the Crown in right of the Commonwealth.

12 Constitution of the Authority

The Authority:

is a body corporate with perpetual succession; and

must have a seal; and

may acquire, hold and dispose of real and personal property; and

may sue and be sued in its corporate name.

Note: The Public Governance, Performance and Accountability Act 2013 applies to the Authority. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.

The seal of the Authority is to be kept in such custody as the Authority directs and must not be used except as authorised by the Authority.

All courts, judges and persons acting judicially must:

take judicial notice of the imprint of the seal of the Authority appearing on a document; and

presume that the document was duly sealed.

13 Membership of the Authority

The Authority consists of the following directors:

a Chair;

at least 5, and not more than 7, other directors.

14 Appointment of directors of the Authority

Each director of the Authority is to be appointed by the Minister by written instrument.

Note: The director of the Authority is eligible for reappointment: see the Acts Interpretation Act 1901.

A person is not eligible for appointment as a director of the Authority unless the Minister is satisfied that the person is suitably qualified for appointment because of expertise in one or more of the following fields:

grape growing;

winemaking;

marketing;

finance;

business management and administration;

government policy processes and public administration;

strategic management;

administration of research and development;

technology;

law;

human resource management;

communications.

A person is not eligible for appointment as a director of the Authority if the person is a member of the executive of a representative organisation.

The directors of the Authority (other than the Chair) are to be appointed from persons:

nominated by the Authority Selection Committee in accordance with section 27G; or

included on a list, given to the Minister under subparagraph 27G(1)(b)(ii), of persons the Authority Selection Committee considers suitable for nomination.

Before appointing the Chair of the Authority, the Minister must consult:

if there are already one or more directors of the Authority (other than the Chair)—those directors; and

in any case—each representative organisation.

In appointing directors of the Authority, the Minister must have regard to whether the directors of the Authority will collectively possess:

an appropriate balance of expertise in as many as possible of the fields referred to in subsection (2); and

experience in board affairs; and

appropriate diversity.

A director of the Authority holds office on a part-time basis.

15 Period of appointment for directors of the Authority

A director of the Authority holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

Note: For reappointment, see the Acts Interpretation Act 1901.

A director of the Authority must not be reappointed on more than one occasion.

16 Acting directors of the Authority

Acting Chair of the Authority

The Minister may appoint a person to act as the Chair of the Authority:

during a vacancy in the office of the Chair of the Authority (whether or not an appointment has previously been made to the office); or

during any period, or during all periods, when the Chair of the Authority:

is absent from duty or Australia; or

is, for any reason, unable to perform the duties of the office.

Acting director of the Authority (other than the Chair of the Authority)

The Minister may appoint a person to act as a director of the Authority (other than the Chair of the Authority):

during a vacancy in the office of a director of the Authority (other than the Chair of the Authority), whether or not an appointment has previously been made to the office; or

during any period, or during all periods, when a director of the Authority (other than the Chair of the Authority):

is absent from duty or Australia; or

is, for any reason, unable to perform the duties of the office.

Eligibility

A person is not eligible for appointment to act as:

the Chair of the Authority; or

a director of the Authority (other than the Chair of the Authority);

unless the person is eligible for appointment as a director of the Authority.

Note 1: See subsections 14(2) and (3).

Note 2: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

17 Deputy Chair

The Authority may, in writing, appoint a director (other than the Chair) to be the Deputy Chair of the Authority for such period as is specified in the instrument of appointment.

The Deputy Chair holds office until:

his or her term of office as Deputy Chair expires; or

he or she ceases to be a director of the Authority; or

the Authority terminates the appointment;

whichever first happens.

Resignation

A director of the Authority may resign an appointment as Deputy Chair by giving the Chair a written notice of resignation.

The resignation takes effect on the day it is received by the Chair or, if a later day is specified in the resignation, on that later day.

18 Remuneration

A director of the Authority is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, a director of the Authority is to be paid the remuneration that is prescribed by the regulations.

A director of the Authority is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

19 Disclosure of interests

For the purposes of Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests), a director who is a grape grower or a winemaker is not taken to have a material personal interest that relates to the affairs of the Authority by reason only of being a grape grower or a winemaker.section 29 of the

20 Outside employment

A director of the Authority must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.

For the purposes of this Division, paid employment as a grape grower or a winemaker is taken not to be paid employment that conflicts with the proper performance of duties.

21 Leave of absence

The Chair of the Authority may grant leave of absence to a director of the Authority on the terms and conditions that the Chair determines.

22 Resignation

A director of the Authority may resign his or her appointment by giving the Minister a written resignation.

The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

23 Termination of appointment

The Minister may terminate the appointment of a director of the Authority if the director is unable to perform the duties of his or her office because of physical or mental incapacity.

The Minister may terminate the appointment of a director of the Authority if:

the director:

becomes bankrupt; or

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

compounds with his or her creditors; or

makes an assignment of his or her remuneration for the benefit of his or her creditors; or

the director engages in paid employment that conflicts or may conflict with the proper performance of his or her duties (see section 20); or

the Minister is satisfied that the performance of the director has been unsatisfactory for a significant period; or

the director is absent, except on leave of absence, from 3 consecutive meetings of the Authority.

Note: The appointment of a director may also be terminated under Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).section 30 of the

The Minister must terminate the appointment of a director of the Authority if the director becomes a member of the executive of a representative organisation.

24 Other terms and conditions

A director of the Authority holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

25 Holding of meetings

The Authority is to hold such meetings as are necessary for the performance of its functions.

The Chair of the Authority may convene a meeting at any time.

26 Presiding at meetings

The Chair of the Authority presides at all meetings at which he or she is present.

If the Chair of the Authority is not present at a meeting:

the Deputy Chair must preside; or

if the Deputy Chair is not present—the directors of the Authority present must appoint one of themselves to preside.

26A Quorum

At a meeting of the Authority, a quorum is constituted by a majority of directors.

However, if:

(a) a director of the Authority is required by rules made for the purposes of Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Authority with respect to a particular matter; andsection 29 of the

when the director leaves the meeting concerned there is no longer a quorum present;

the remaining directors at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.

26B Voting at meetings etc.

At a meeting of the Authority, a question is decided by a majority of the votes of directors of the Authority present and voting.

The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

26C Conduct of meetings

The Authority may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note: Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.

The Authority may invite a person to attend a meeting of the Authority for the purpose of advising or informing the Authority on any matter.

A person referred to in subsection (2) is to be paid such fees, allowances and expenses (if any) as the Authority determines in respect of the person’s attendance at a meeting of the Authority.

26D Minutes

The Authority must keep minutes of its meetings.

27A Simplified outline of this Part

• This Part deals with the Authority Selection Committee.

• The functions of the Committee are:

to select persons to be nominated for appointment as directors of the Authority (other than the Chair); and

to nominate persons so selected to the Minister for appointment as directors of the Authority; and

to give the Minister a list of other persons the Authority Selection Committee considers suitable for nomination and the details of their qualifications and experience.

27B Authority Selection Committee

(1) This section applies to the committee that was established by section 27B of the Australian Grape and Wine Authority Act 2013 (as in force immediately before the commencement of this section).

That committee continues in existence by force of this section as a committee, under and subject to the provisions of this Act, under the name Wine Australia Selection Committee.

Note 1: In this Act, Authority Selection Committee means the Wine Australia Selection Committee—see section 4.

Note 2: Subsection 25B(1) of the Acts Interpretation Act 1901 provides that a body whose name is altered by an Act continues in existence under the new name so that its identity is not affected.

27C Functions of the Authority Selection Committee

The functions of the Authority Selection Committee are:

to select persons to be nominated for appointment as directors of the Authority (other than the Chair); and

to nominate persons so selected to the Minister for appointment as directors of the Authority; and

to give the Minister a list of other persons the Authority Selection Committee considers suitable for nomination and the details of their qualifications and experience.

27D Powers of the Authority Selection Committee

The Authority Selection 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.

27E Minister may request nominations

The Minister may, by written notice given to the Presiding Member of the Authority Selection Committee, request the Authority Selection Committee to give to the Minister, within the period specified in the notice, a specified number of written nominations of persons for appointment as a director or directors of the Authority (other than the Chair).

27F Selection of persons by the Authority Selection Committee

The Authority Selection Committee must not nominate a person for appointment as a director of the Authority unless the person is eligible for that appointment.

The Authority Selection Committee must not nominate a person for appointment as a director of the Authority if:

the person is a member of the Authority Selection Committee; or

the person has been a member of the Authority Selection Committee at any time during the 12-month period preceding the nomination.

27G Nominations

If the Minister gives a request to the Presiding Member of the Authority Selection Committee under section 27E:

the Authority Selection Committee must, before the end of the period specified in the notice, select persons to be nominated for appointment to the office or offices concerned; and

the Presiding Member of the Authority Selection Committee must, on behalf of the Authority Selection Committee, before the end of that period:

give to the Minister the number of nominations specified in the request; and

make a list of any other persons the Authority Selection Committee considers suitable for nomination (and the details of their qualifications and experience) and give the list to the Minister.

The Authority Selection Committee must not include a person on the list given to the Minister under subparagraph (1)(b)(ii) unless, within the 12-month period preceding the giving of the list:

the Committee considered the person suitable for nomination; and

the person was not so nominated.

If the Authority Selection Committee proposes to nominate a person for appointment as a director of the Authority, the Presiding Member of the Authority Selection Committee must cause to be prepared and attached to the nomination a statement setting out:

details of the person’s qualifications and experience; and

such other information relating to the person as the Authority Selection Committee thinks will assist the Minister in considering whether to appoint the person.

The Authority Selection Committee may nominate a person for appointment even though:

the Minister has previously rejected a nomination of that person; or

the Authority Selection Committee has previously decided not to nominate the person for appointment.

27H Minister may reject nominations

If the Minister is not satisfied that a person nominated by the Authority Selection Committee for appointment as a director of the Authority, or any person included on the list given to the Minister under subparagraph 27G(1)(b)(ii), should be appointed as such a director, the Minister may make a further request under section 27E for a specified number of nominations of persons for appointment to the office concerned.

27J Membership of the Authority Selection Committee

The Authority Selection Committee consists of the following members:

a Presiding Member;

not more than 4 other members.

27K Appointment of members of the Authority Selection Committee

Each member of the Authority Selection Committee is to be appointed by the Minister by written instrument.

Note: A member of the Authority Selection Committee is eligible for reappointment: see the Acts Interpretation Act 1901.

A member of the Authority Selection Committee holds office on a part-time basis.

A member of the Authority Selection Committee (other than the Presiding Member) must be a person who has been nominated by a representative organisation.

A person who is a director of the Authority is not eligible to be appointed as a member of the Authority Selection Committee.

27L Period of appointment for members of the Authority Selection Committee

A member of the Authority Selection Committee holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

Note: For reappointment, see the Acts Interpretation Act 1901.

27M Acting Presiding Member of the Authority Selection Committee

The Minister may appoint a person to act as the Presiding Member of the Authority Selection Committee:

during a vacancy in the office of the Presiding Member of the Authority Selection Committee (whether or not an appointment has previously been made to the office); or

during any period, or during all periods, when the Presiding Member of the Authority Selection Committee:

is absent from duty or Australia; or

is, for any reason, unable to perform the duties of the office.

27N Remuneration

A member of the Authority Selection Committee is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, a member of the Authority Selection Committee is to be paid the remuneration that is prescribed by the regulations.

A member of the Authority Selection Committee is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

27P Disclosure of interests to the Minister

A member of the Authority Selection Committee must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member’s functions.

27Q Disclosure of interests to the Authority Selection Committee

A member of the Authority Selection Committee who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Authority Selection Committee must disclose the nature of the interest to a meeting of the Authority Selection Committee.

The disclosure must be made as soon as possible after the relevant facts have come to the knowledge of the member of the Authority Selection Committee.

The disclosure must be recorded in the minutes of the meeting of the Authority Selection Committee.

Unless the Authority Selection Committee otherwise determines, the member of the Authority Selection Committee:

must not be present during any deliberation by the Authority Selection Committee on the matter; and

(b) must not take part in any decision of the Authority Selection Committee with respect to the matter.

For the purposes of making a determination under subsection (4), the member of the Authority Selection Committee:

(a) must not be present during any deliberation of the Authority Selection Committee for the purpose of making the determination; and

must not take part in making the determination.

A determination under subsection (4) must be recorded in the minutes of the meeting of the Authority Selection Committee.

A member of the Authority Selection Committee who is a grape grower or a winemaker is taken not to have an interest (pecuniary or otherwise) in a matter being considered or about to be considered by the Authority Selection Committee by reason only of being a grape grower or a winemaker.

27R Outside employment

A member of the Authority Selection Committee must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.

For the purposes of this Division, paid employment as a grape grower or a winemaker is taken not to be paid employment that conflicts with the proper performance of duties.

27S Leave of absence

The Minister may grant leave of absence to the Presiding Member of the Authority Selection Committee on the terms and conditions that the Minister determines.

The Presiding Member of the Authority Selection Committee may grant leave of absence to a member of the Authority Selection Committee on the terms and conditions that the Presiding Member determines.

27T Resignation

A member of the Authority Selection Committee may resign his or her appointment by giving the Minister a written resignation.

The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

27U Termination of appointment

The Minister may terminate the appointment of a member of the Authority Selection Committee if the member is unable to perform the duties of his or her office because of physical or mental incapacity.

The Minister may terminate the appointment of a member of the Authority Selection Committee if:

the member:

becomes bankrupt; or

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

compounds with his or her creditors; or

makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the member fails, without reasonable excuse, to comply with section 27P or 27Q; or

the member engages in paid employment that conflicts or may conflict with the proper performance of his or her duties (see section 27R); or

the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority Selection Committee.

27V Other terms and conditions

A member of the Authority Selection Committee holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

27W Holding of meetings

The Authority Selection Committee is to hold such meetings as are necessary for the performance of its functions.

The Presiding Member of the Authority Selection Committee may convene a meeting at any time.

27X Presiding at meetings

The Presiding Member of the Authority Selection Committee presides at all meetings at which he or she is present.

If the Presiding Member of the Authority Selection Committee is not present at a meeting, the members of the Authority Selection Committee present must appoint one of themselves to preside.

27Y Quorum

At a meeting of the Authority Selection Committee, 2 members of the Authority Selection Committee constitute a quorum.

27Z Voting at meetings etc.

At a meeting of the Authority Selection Committee, a question is decided by a majority of the votes of members of the Authority Selection Committee present and voting.

The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

27ZA Conduct of meetings

The Authority Selection Committee may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note: Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.

27ZB Minutes

The Authority Selection Committee must keep minutes of its meetings.

27ZC Staff and consultants

The Presiding Member of the Authority Selection Committee may, on behalf of the Authority Selection Committee, engage persons to perform administrative and clerical services in connection with the performance of its functions.

The Presiding Member of the Authority Selection Committee may, on behalf of the Authority Selection Committee, engage persons having suitable qualifications and experience as consultants to the Authority Selection Committee.

The terms and conditions of engagement of persons engaged under subsection (1) or (2) are as determined by the Authority Selection Committee.

27ZE Definitions

In this Part:

Chair means the Chair of the Authority.

director means a director of the Authority, and includes the Chair.

31 Corporate plans—5-year periods

The Authority must:

prepare a corporate plan for each designated 5-year period; and

give it to the Minister.

Note 1: For designated 5-year period, see subsection (11).

Note 2: The Authority is not required to give a corporate plan under Public Governance, Performance and Accountability Act 2013 (see subsection (13) of this section).section 35 of the

The plan must include details of the following matters:

the principal objectives of the Authority;

the strategies and policies that are to be followed by the Authority in order to achieve those objectives;

the objectives and priorities of the Authority relating to grape or wine research and development;

the strategies and policies that are to be followed by the Authority in order to achieve those objectives and priorities;

such other matters (if any) as the Minister requires.

The plan must set out the Authority’s assessment, for the period to which the plan relates, of the market outlook and the economic outlook for the grape industry and the wine industry.

A corporate plan prepared under this section is of no effect unless the plan has been approved in writing by the Minister.

Varying a corporate plan

The Authority may vary a corporate plan that was prepared under this section.

A variation of such a corporate plan is of no effect unless the variation has been approved in writing by the Minister.

Other matters

The Chair must keep the Minister informed about matters that might significantly affect the achievement of the objectives or priorities set out in a corporate plan that was prepared under this section.

The Minister may give the Chair written guidelines that are to be used by the Chair in deciding whether a matter is covered by paragraph (2)(e) or subsection (7).

Before preparing or varying a corporate plan under this section, the Authority must consult each representative organisation.

None of the following is a legislative instrument:

a requirement under paragraph (2)(e) that is in writing;

an approval under subsection (4);

an approval under subsection (6);

a guideline given under subsection (8).

(11) For the purposes of this section, each of the following is a designated 5-year period:

the 5-year period beginning on 1 July 2015;

each succeeding 5-year period.

The Authority must ensure that the first corporate plan it prepares under this section is given to the Minister before 1 May 2015.

(13) Section 35 of the Public Governance, Performance and Accountability Act 2013 (which deals with corporate plans) does not apply to the Authority.

31A Corporate plan—initial period

The Authority must:

prepare a corporate plan within 3 months after the commencement of this subsection; and

give it to the Minister.

The plan must cover the period:

beginning when the plan takes effect; and

ending at the end of 30 June 2015.

The plan must include details of the following matters:

the principal objectives of the Authority;

the strategies and policies that are to be followed by the Authority in order to achieve those objectives;

the objectives and priorities of the Authority relating to grape or wine research and development;

the strategies and policies that are to be followed by the Authority in order to achieve those objectives and priorities;

such other matters (if any) as the Minister requires.

The plan must set out the Authority’s assessment, for the period to which the plan relates, of the market outlook and the economic outlook for the grape industry and the wine industry.

The plan is of no effect unless it has been approved in writing by the Minister.

Varying the corporate plan

The Authority may vary the plan.

A variation of the plan is of no effect unless the variation has been approved in writing by the Minister.

Other matters

The Chair must keep the Minister informed about matters that might significantly affect the achievement of the objectives or priorities set out in the plan.

The Minister may give the Chair written guidelines that are to be used by the Chair in deciding whether a matter is covered by paragraph (3)(e) or subsection (8).

None of the following is a legislative instrument:

a requirement under paragraph (3)(e) that is in writing;

an approval under subsection (5);

an approval under subsection (7);

a guideline given under subsection (9).

31F Authority to develop annual operational plans

Subject to subsection (2), the Authority 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 Authority intends to take in order to give effect to or further, during that year, the matters set out in that corporate plan.

The Authority must ensure that the first annual operational plan is developed within 3 months after the commencement of this subsection.

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.

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.

31K Directions to Authority and Geographical Indications Committee

(1) Except as provided by this section and the Public Governance, Performance and Accountability Act 2013, the Authority is not subject to direction by or on behalf of the Australian Government.

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 Authority in order to ensure that the performance of the functions, or the exercise of the powers, of the Authority does not conflict with major government policies, the Minister may, by notice in writing to the Authority, give the direction to the Authority with respect to the performance of its functions and the exercise of its powers.

The Minister shall not give a direction under subsection (2) unless and until the Minister has given the Chair:

notice in writing that the Minister is contemplating giving the direction; and

an adequate opportunity to discuss with the Minister the need for the proposed direction.

The Authority shall comply with any direction given under subsection (2).

Where the Minister gives a direction to the Authority 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;

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;

particulars of the direction shall be included in the annual report of the Authority for the year in which the direction was given; and

that report shall include particulars of the impact of that direction on the operations of the Authority.

This section applies in relation to the Geographical Indications Committee in the same way as it applies in relation to the Authority.

For the purposes of this section as it so applies in relation to the Geographical Indications Committee:

references (other than the reference in paragraph (5)(c)) to the Authority are taken to be references to that Committee; and

the reference in subsection (3) to the Chair is taken to be a reference to the Presiding Member of that Committee.

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.

Note: The Federal Court may grant an injunction under section 44AB if a person has engaged, is engaging or proposes to engage in conduct that contravenes this Part.

39B Operation of Part

Without prejudice to its effect apart from this section, this Part has the effect it would have if the references in it to a person (the record keeper) to whom this Part applies were, by express provision, confined to:

(a) a record keeper who is one of the following (a constitutional corporation or partnership):

a foreign corporation, within the meaning of paragraph 51(xx) of the Constitution;

a trading or financial corporation formed within the limits of the Commonwealth, within the meaning of that paragraph;

a corporation that is controlled by a corporation described in subparagraph (i) or (ii);

a partnership in which at least one of the partners is a corporation described in subparagraph (i), (ii) or (iii); or

a record keeper by or through whom a constitutional corporation or partnership carries out its business functions and activities; or

a record keeper who (whether directly or indirectly) supplies wine goods to a constitutional corporation or partnership.

39C Persons to whom this Part applies

This Part applies to the following persons, except as provided by subsection (3):

a person who grows grapes that are wine goods;

a manufacturer of wine goods;

a person who supplies or receives wine goods (including a person who sells the wine goods wholesale or retail or who exports the wine goods);

a person specified by the regulations for the purposes of this section;

an agent who takes possession of wine goods on behalf of a person mentioned in any of paragraphs (a) to (d).

Note: This Part applies only to the extent that the wine goods originate in Australia (see subsection (4)).

For the purposes of paragraph (1)(d), the regulations may specify:

a class of person to whom this Part applies; or

circumstances in which this Part applies to a specified class of person.

The regulations may specify that, despite subsection (1), this Part does not apply to:

a specified class of person; or

a specified class of person in specified circumstances.

This Part applies only to the extent that the wine goods originate in Australia.

39F Obligation to keep records

(1) A person (the record keeper) to whom this Part applies (under section 39C) must keep written records that show the following details in relation to wine goods:

the identity of the record keeper;

the kind of wine goods to which the record relates;

the date the record keeper receives the wine goods;

the identity of the person from whom the wine goods are received by the record keeper;

the quantity of the wine goods received by the record keeper;

the vintage, variety and prescribed geographical indication of the wine goods received by the record keeper;

details of steps taken by the record keeper that changed or affected any of the following:

the vintage, variety or prescribed geographical indication of the wine goods;

the tank or other place or thing in which the wine goods were stored;

the volume of the wine goods stored in any such tank, place or thing;

the date the record keeper supplies the wine goods;

the identity of the person to whom the wine goods are supplied by the record keeper;

the quantity of the wine goods that are supplied by the record keeper;

the vintage, variety and prescribed geographical indication of the wine goods supplied by the record keeper;

any other details in relation to the wine goods that are prescribed by the regulations for the purposes of this section.

Note 1: Records are required to be kept only to the extent that wine goods originate in Australia (see subsection 39C(4)).

Note 2: See section 39G (which deals with when certain details are not required to be kept) and section 39H (which deals with details required under section 39F).

Note 3: A person commits an offence if the person fails to keep a record in accordance with this subsection (see section 39J).

Period for keeping records

A record must be kept under subsection (1) for the period:

beginning:

when the event, circumstance or state of affairs that is required to be recorded occurs; or

if a record is required to be made before it can be kept—at the end of 3 days after the day that such an event, circumstance or state of affairs occurs; and

ending 7 years after that time.

Note: A person commits an offence if the person fails to keep a record in accordance with this subsection (see section 39J).

Requirement to provide and keep a copy of a record in relation to supply of wine goods

A person who is required to keep a record under subsection (1) must, on the day the person supplies the wine goods, provide a copy of the record kept under paragraphs (1)(h), (j) and (k) to the person to whom the wine goods are supplied.

Note: A person commits an offence if the person fails to provide a copy of a record in accordance with this subsection (see section 39K).

A person to whom wine goods are supplied must keep the copy of the record provided under subsection (3) for the period:

beginning on the day the person receives the copy; and

ending 7 years after that time.

Note: A person commits an offence if the person fails to keep a copy of a record in accordance with this subsection (see section 39K).

To avoid doubt, the same copy of a record may be kept for the purposes of paragraphs (1)(c), (e) and (f) and subsection (4).

39G When certain details are not required to be kept

Grape growers not required to keep certain records

A person who grows grapes is not required to keep a record showing details required under paragraphs 39F(1)(c) to (f) in relation to the grapes grown.

Suppliers and receivers, and their agents, not required to keep certain records

If:

a person:

supplies or receives wine goods that are packaged in a container for the purpose of sale of the wine goods to a consumer; or

is an agent who, on behalf of a person covered by subparagraph (i), takes possession of wine goods that are packaged in a container for the purpose of sale of the wine goods to a consumer; and

before the wine goods are sold to a consumer, the person has not taken any steps to change or affect any label claims made about the wine goods;

the person is not required to keep a record showing details required under paragraphs 39F(1)(e) to (l) in relation to that supply, receipt or taking possession of the wine goods.

39H Details required under section 39F

Variety of wines

Details required under paragraph 39F(1)(f) or (k) or subparagraph 39F(1)(g)(i) may show any name by which a variety of wine goods is known (if the variety is known by more than one name).

Identity of a person

(2) Details required under paragraph 39F(1)(a), (d) or (i) must include:

sufficient particulars of a person’s name and address to identify the person; and

if the person receives wine goods from or at, or supplies wine goods from or to, a winery—sufficient particulars of the name and address of the winery to identify the winery.

Manufacturing wine

Details required under paragraph 39F(1)(g) in relation to wine goods must be in a form that allows:

an audit trail containing a history of the changes to the wine goods to be readily traced from the record; and

details of the steps taken and the results of the steps to be readily checked for discrepancies by following the sequence of the steps recorded.

Blends

(4) Details required under subsection 39F(1) in relation to wine that is a blend of wines (the blended wines) of different vintages, varieties or prescribed geographical indications, must show:

what proportions of the blend are represented by each blended wine; and

the vintage, variety or prescribed geographical indication of each blended wine.

Grape extract

Details required under subsection 39F(1) in relation to grape extract derived from grapes of different vintages, varieties or prescribed geographical indications must show:

what proportions of the wine goods are derived from each kind of grape; and

the vintage, variety or prescribed geographical indication of each kind of grape.

39J Offences relating to record-keeping requirements

Failure to keep a record in accordance with requirements

A person commits an offence if:

the person is a person to whom this Part applies; and

the person is required to keep records in relation to wine goods under subsections 39F(1) and (2); and

the person has not kept a record in accordance with subsection 39F(1) or (2), or section 39H, in relation to the wine goods.

Penalty: 2 years imprisonment.

Label claims not supported by records

A person commits an offence if:

the person is a person to whom this Part applies; and

the person is required to keep records in relation to wine goods under subsections 39F(1) and (2); and

the person makes a label claim in relation to the wine goods; and

either:

a record kept by the person under those subsections in relation to the wine goods conflicts with the label claim; or

the records kept by the person under those subsections are inadequate to support the label claim.

Penalty: 2 years imprisonment.

Keeping a false or misleading record

A person commits an offence if:

the person is a person to whom this Part applies; and

the person is required to keep records under subsections 39F(1) and (2) in relation to wine goods; and

a record kept by the person under those subsections is false or misleading; and

the person knows the record is false or misleading.

Penalty: 2 years imprisonment.

Subsection (3) does not apply if the record is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4). (See subsection 13.3(3) of the Criminal Code.)

39K Offences relating to requirement to provide and keep a copy of a record in relation to the supply of wine goods

Failure to provide a copy of a record in relation to the supply of wine goods

A person commits an offence if:

the person is a person to whom this Part applies; and

the person is required to provide a copy of a record in relation to wine goods under subsection 39F(3); and

the person does not provide a copy in accordance with that subsection in relation to the wine goods.

Penalty: 2 years imprisonment.

Failure to keep a copy of a record in relation to the supply of wine goods

A person commits an offence if:

the person is a person to whom this Part applies; and

the person is provided with a copy of a record in relation to wine goods under subsection 39F(4); and

the person does not keep the copy in accordance with that subsection in relation to the wine goods.

Penalty: 2 years imprisonment.

39L Time for bringing prosecutions

Despite Crimes Act 1914, a prosecution for an offence under:section 15B of the

section 39J may be brought at any time within 7 years after the requirement to keep the relevant record arose; and

section 39K may be brought at any time within 7 years after the requirement to provide or keep a copy of the relevant record arose.

39M Single wines and blends etc.

The prosecution does not have to prove, in relation to wine goods, that the wine goods are:

a blend; or

grape extract derived from grapes of different vintages, varieties or prescribed geographical indications;

in order to prove an offence under section 39J if the prosecution proves that, in either case, the defendant would have committed an offence against that section.

39ZAA Authority may require records

The Authority may give a written notice to a person requiring the person, within a specified period and in a specified manner, to do either or both of the following:

(a) if the person’s name and address appears on a wine label as the supplier (within the meaning of the Australia New Zealand Food Standards Code (as defined by the Food Standards Australia New Zealand Act 1991)) of the wine—provide specified information in relation to records that this Division requires to be kept;

if the Authority has reason to believe that the person holds or controls a record that this Division requires to be kept—produce the record to the Authority.

The period specified in the notice must not be less than 14 days from the day on which it is served.

The notice must set out the effects of section 39ZAB.

39ZAB Failure to comply with section 39ZAA notice

A person commits an offence if:

the person is given a notice under section 39ZAA; and

the person refuses or fails to comply with the notice.

Penalty: 2 years imprisonment.

Subsection (1) does not apply if complying with the notice would tend to incriminate the person.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2). (See subsection 13.3(3) of the Criminal Code.)

39ZAC Authority may retain records

If a record is produced to the Authority under section 39ZAA:

the Authority 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

the Authority may inspect the record and may make and retain copies of all or part of it; and

while the Authority has possession of the record, the Authority must:

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 Authority’s possession; and

allow such a person to make a copy of the record.

39ZA Appointment of inspectors

The principal employee may, on behalf of the Authority:

appoint an eligible person to be an inspector; or

appoint a class of eligible persons to be inspectors.

The appointment of an inspector ceases if he or she ceases to be an eligible person.

For the purposes of this section, the following are eligible persons:

employees of the Authority;

officers and employees of the Commonwealth or of authorities of the Commonwealth;

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;

officers and employees of a local government body whom the body has agreed may be appointed as inspectors.

39ZB Identity cards

The principal employee may cause an identity card to be issued to an inspector.

An identity card must:

contain a recent photograph of the inspector to whom it is issued; and

be in a form approved by the Authority.

An inspector whose appointment ceases must, as soon as practicable, return his or her identity card to the Authority.

Penalty: 1 penalty unit.

An offence under subsection (3) is an offence of strict liability.

Note: For strict liability, see Criminal Code.section 6.1 of the

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.

Note: An inspector may also exercise powers under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).

39ZD Monitoring warrants

An inspector may apply to a magistrate for a warrant under this section in relation to particular wine premises.

Note 1: An inspector may apply for a warrant under this section by telephone or fax under section 39ZI.

Note 2: An inspector may also apply for a warrant under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).

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.

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.

The warrant must:

authorise an inspector (whether or not named in the warrant), with such assistance and by such force as is necessary and reasonable:

to enter the premises; and

to exercise inspection powers on the premises; and

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

specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

state the purpose for which the warrant is issued.

39ZE Offence powers of inspectors—exercised with consent

An inspector may enter wine premises if:

the inspector has reasonable grounds for suspecting that there is on the premises a particular thing that may afford evidence of the commission of a label offence; and

the inspector has produced his or her identity card for inspection by the occupier of the premises; and

the occupier of the premises has consented to the entry.

Note: An inspector may also exercise powers under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).

Consent

Before obtaining the consent of the occupier for the purposes of paragraph (1)(c), an inspector must inform that occupier that he or she may refuse consent.

A consent has no effect unless the consent is voluntary.

Inspector’s powers while on premises

The inspector may do the following while on the premises:

exercise inspection powers;

secure a thing pending the obtaining of a warrant under section 39ZF to seize it if the inspector has reasonable grounds for suspecting that the thing may afford evidence of the commission of a label offence.

Withdrawal of consent

The inspector may exercise powers under paragraph (4)(b) even if the occupier’s consent is withdrawn after being given. Otherwise, the inspector must leave the premises if the occupier’s consent is withdrawn after being given.

39ZF Offence related warrants

An inspector may apply to a magistrate for a warrant under this section in relation to particular wine premises.

Note 1: An inspector may apply for a warrant under this section by telephone or fax under section 39ZI.

Note 2: An inspector may also apply for a warrant under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).

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.

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.

The warrant must:

state the name of the inspector; and

authorise the inspector, with such assistance and by such force as is necessary and reasonable:

to enter the place; and

to exercise inspection powers on the premises; and

to seize the thing that might afford evidence; and

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

specify the day (not more than 7 days after the issue of the warrant) on which the warrant ceases to have effect; and

state the purpose for which the warrant is issued.

39ZG Discovery of evidence

(1) Where an inspector enters wine premises under a warrant under evidence) that may afford evidence of the commission of a label offence and which the inspector entered to find:section 39ZF and finds the thing (in this section called the

the inspector may seize the evidence; and

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

if the evidence is a book, record or document—while the inspector has possession of the evidence, the inspector must:

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

allow such a person to make a copy of the evidence.

If, in the course of searching wine premises entered under section 39ZE or a warrant under section 39ZF, the inspector:

finds a thing that the inspector believes, on reasonable grounds to be:

a thing (other than the evidence) that will afford evidence of the commission of the label offence mentioned in subsection (1); or

a thing that will afford evidence of the commission of another label offence; and

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:

answer any questions put by the inspector; and

produce any examinable documents requested by the inspector.

Note: An inspector may also exercise powers under this section for the purposes of Parts VIB and VII (see sections 40ZF and 44).

A person commits an offence if:

the person is required to answer a question or produce an examinable document under subsection (1); and

the person refuses or fails to comply with the requirement.

Penalty: 30 penalty units.

Subsection (2) does not apply if the answer to the question, or the producing of the document, would tend to incriminate the person.

Note: The defendant bears an evidential burden in relation to the matter in subsection (3). (See subsection 13.3(3) of the Criminal Code.)

39ZI Search warrants by telephone and other electronic means

Application for warrant

If, in an urgent case, an inspector considers it necessary to do so, the inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 39ZD or 39ZF in relation to particular wine premises.

Voice communication

The magistrate may require communication by voice to the extent that it is practicable in the circumstances.

Information

Before applying for the warrant, the inspector must prepare an information of the kind mentioned in subsection 39ZD(2) or 39ZF(2) in relation to the wine premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.

Issue of warrant

If the magistrate is satisfied:

after having considered the terms of the information; and

after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same form of warrant that would be issued under section 39ZD or 39ZF (as the case requires).

Notification

If the magistrate completes and signs the warrant, the magistrate must inform the applicant, by telephone, fax or other electronic means, of:

the terms of the warrant; and

the day on which and the time at which the warrant was signed; and

the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect.

Form of warrant

The applicant must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

Completed form of warrant to be given to magistrate

The applicant must also, not later than the day after the day the warrant is executed, or expires (if the warrant has not been executed first), send to the magistrate:

the form of warrant completed by the applicant; and

the information referred to in subsection (3), which must have been duly sworn or affirmed.

Attachment

The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.

Authority of warrant

A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.

If:

it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

39ZIA Offences relating to warrants by telephone and other electronic means

Offence for stating incorrect names in warrants by telephone and other electronic means

A person commits an offence if:

the person states a name of a magistrate in a document; and

the document purports to be a form of warrant under section 39ZI; and

the name is not the name of the magistrate who issued the warrant.

Penalty: Imprisonment for 2 years.

Offence for unauthorised form of warrant

A person commits an offence if:

the person states a matter in a form of warrant under section 39ZI; and

the matter departs in a material particular from the form authorised by the magistrate.

Penalty: Imprisonment for 2 years.

Offence for execution etc. of unauthorised form of warrant

A person commits an offence if:

the person executes a document or presents a document to a person; and

the document purports to be a form of warrant under section 39ZI; and

the document:

has not been approved by a magistrate under that section; or

departs in a material particular from the terms authorised by the magistrate under that section.

Penalty: Imprisonment for 2 years.

Offence for giving unexecuted form of warrant

A person commits an offence if:

the person gives a magistrate a form of warrant under section 39ZI; and

the document is not the form of warrant that the person executed.

Penalty: Imprisonment for 2 years.

39ZJ Authority to assist enforcement of laws on description of wine

For the purpose of achieving the object of this Part, the Authority may give information obtained under this Part, and other assistance, to:

the Australian Competition and Consumer Commission; or

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

a person who is prosecuting (or proposing to prosecute), or taking (or proposing to take) other proceedings against, a person under section 39J or 39K.

This section does not limit any powers and duties of the Authority.

39ZK Proceedings not to lie against Authority etc.

No proceedings lie against:

the Authority; or

a director of the Authority; or

an employee of the Authority; or

an inspector;

in relation to any loss incurred or damage suffered because of information or assistance given under section 39ZJ.

39ZL Authority may assist in relation to levy

The purpose of this section is to:

assist; and

achieve administrative savings in connection with;

the calculation and collection of:

wine grapes levy; or

wine export charge; or

grapes research levy.

The Authority may, with a person’s consent, give to a relevant agency information that is:

kept by, or held on behalf of, the person; and

obtained by the Authority under this Part.

A person is taken to have consented to giving information under subsection (2) if the occupier of the wine premises where the information is kept or held gave such consent.

In this Act:

relevant agency means an Agency (within the meaning of the Public Service Act 1999) with responsibilities relating to the levy or charge.

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:

for the purpose of enabling Australia to fulfil its obligations under prescribed wine-trading agreements and other international agreements; and

for certain other purposes for which the Parliament has power to make laws;

and this Part is to be interpreted and administered accordingly.

Note: The Federal Court may grant an injunction under section 44AB if a person has engaged, is engaging or proposes to engage in conduct that contravenes this Part.

40B Additional operation of Part

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.

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:

between Australia and places outside Australia; or

among the States; or

within a Territory; or

between a State and a Territory; or

between 2 Territories.

40C Offence—sale, export or import of wine with a false description and presentation

A person commits an offence if:

the person sells, exports or imports wine; and

the wine is sold, exported or imported by the person:

in trade or commerce; and

with a false description and presentation.

Penalty: Imprisonment for 2 years.

Note: A court may impose a maximum fine of 120 penalty units instead of, or in addition to, a term of imprisonment. A body corporate that is convicted of an offence may be fined up to 5 times that maximum fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)

The description and presentation may be false even if it indicates the country, region or locality (as the case may be) in which the wine originated.

40D False descriptions and presentations

This section has effect for the purposes of section 40C.

Subject to sections 40DA and 40DB, the description and presentation of wine is false if:

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

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

it includes a registered translation of 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

it includes a registered traditional expression, and:

the wine is not a wine in relation to which the expression is registered; and

the wine is in a category of wine in relation to which the expression is registered; and

the expression is in a language in relation to which the expression is registered; or

it is not in accordance with any provisions relating to the description and presentation of wine as are prescribed for the purposes of this paragraph.

Subsection (2) does not limit what, apart from that subsection, is a false description and presentation of wine.

For the purposes of paragraphs (2)(b), (c) and (d):

a registered geographical indication; or

a registered translation of such an indication; or

a registered traditional expression;

is included in the description and presentation of wine even if the indication, translation or expression is accompanied by an expression such as “kind”, “type”, “style”, “imitation”, “method”, or any similar expression.

40DA Circumstances in which description and presentation is not false—general

Inclusion of geographical indication, translation or traditional expression registered for more than one place

If:

the description and presentation of wine includes an indication or term that is a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to a country, region or locality; and

the wine originated in that country, region or locality; and

the description and presentation indicates that the wine originated in that country, region or locality;

then the description and presentation is not false merely because the indication or term is also a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to another country, region or locality.

Inclusion of common English word or term

If:

the description and presentation of wine includes a word or term that is a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to a country, region or locality; and

the word or term is a common English word or term; and

the word or term is not used in such a way as to indicate that the wine originated in the country, region or locality in relation to which the geographical indication, translation or traditional expression is registered; and

the description and presentation indicates the country, region or locality in which the wine originated; and

the word or term is used in good faith;

then the description and presentation is not false merely because it includes the word or term.

Inclusion of name of individual or address of winery

The description and presentation of wine is not false merely because it includes:

the name of an individual who manufactured, sold, exported or imported the wine; or

if a person who manufactured, sold, exported or imported the wine is, apart from this subsection, lawfully permitted to use the name of an individual who previously manufactured, sold, exported or imported the wine—the name of that individual; or

the address of the winery at which the wine was manufactured.

40DB Circumstances in which description and presentation is not false—inclusion of registered traditional expressions

Inclusion of registered quality wine term

If:

the description and presentation of wine includes a registered quality wine term; and

the wine originated in Australia; and

the description and presentation indicates that the wine originated in Australia or in a region or locality in Australia; and

the registered quality wine term is also a registered traditional expression; and

the wine is in a category of wine in relation to which the expression is registered;

then the description and presentation is not false merely because it includes the registered quality wine term.

Wine originating in non-agreement country

The description and presentation of wine that originates in a foreign country that is not an agreement country is not false merely because it includes a term that is a registered traditional expression if:

the term is not used in such a way as to be likely to mislead as to the country, region or locality in which the wine originated; and

the description and presentation indicates the country, region or locality in which the wine originated; and

(c) the inclusion of the term in the description and presentation does not constitute unfair competition within the meaning of Article 10bis of the Paris Convention for the Protection of Industrial Property of 20 March 1883 as amended.

Note: The text of the Convention is set out in Australian Treaty Series 1972 No. 12 ([1972] ATS 12). In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Inclusion of trade mark

If:

the description and presentation of wine includes a trade mark; and

the trade mark contains or consists of a registered traditional expression; and

before the protection date for the traditional expression:

the trade mark had been entered in good faith in the Register of Trade Marks; or

the owner of the trade mark had acquired rights in the trade mark through use in good faith;

then the description and presentation is not false merely because it includes that trade mark.

Inclusion of business name

If:

the description and presentation of wine includes a business name; and

the business name contains or consists of a registered traditional expression; and

(c) before the protection date for the traditional expression, the business name was registered in good faith under the law of a State or Territory or on the Business Names Register established and maintained under Business Names Registration Act 2011;section 22 of the

then the description and presentation is not false merely because it includes that business name.

Subsection (4) does not limit subsection 40DA(3).

Definition of protection date

(6) In this Act, the protection date for a registered traditional expression is:

if the traditional expression is registered in relation to an agreement country under paragraph 40ZD(2A)(a):

unless subparagraph (ii) applies—the date on which the prescribed wine-trading agreement to which that country is a party was signed; or

if that agreement is modified after that date to include the traditional expression and paragraph (b) does not apply—the date on which the agreement is so modified; or

if the traditional expression is registered in relation to a foreign country (whether or not an agreement country) under paragraph 40ZD(2A)(b)—the date on which the traditional expression is registered.

Subdivision B—Sale, export or import of wine with a misleading description and presentation

40E Sale, export or import of wine with a misleading description and presentation

A person commits an offence if:

the person sells, exports or imports wine; and

the wine is sold, exported or imported by the person:

in trade or commerce; and

with a misleading description and presentation.

Penalty: Imprisonment for 2 years.

Note: A court may impose a maximum fine of 120 penalty units instead of, or in addition to, a term of imprisonment. A body corporate that is convicted of an offence may be fined up to 5 times that maximum fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)

The description and presentation may be misleading even if it indicates the country, region or locality (as the case may be) in which the wine originated.

40F Misleading descriptions and presentations

This section has effect for the purposes of section 40E.

Inclusion of geographical indication, translation or traditional expression

Subject to sections 40FA and 40FB, the description and presentation of wine is misleading if:

it includes a registered geographical indication, and the indication is used in such a way as to be likely to mislead as to the country, region or locality in which the wine originated; or

it includes a registered translation of a registered geographical indication, and the translation is used in such a way as to be likely to mislead as to the country, region or locality in which the wine originated; or

it includes a registered traditional expression, and:

the wine is not a wine in relation to which the expression is registered; and

the wine is not in a category of wine in relation to which the expression is registered; and

the expression is in a language in relation to which the expression is registered; and

the expression is used in such a way as to be likely to mislead that the wine originated in a country, region or locality in relation to which the expression is registered or that the wine is in a category of wine in relation to which the expression is registered.

For the purposes of subsection (2):

a registered geographical indication; or

a registered translation of such an indication; or

a registered traditional expression;

is included in the description and presentation of wine even if the indication, translation or expression is accompanied by an expression such as “kind”, “type”, “style”, “imitation”, “method”, or any similar expression.

Inclusion of word resembling geographical indication, translation or traditional expression

Subject to sections 40FA and 40FB, the description and presentation of wine is misleading if:

it includes an indication or term that so resembles a registered geographical indication as to be likely to mislead that the wine originated in a country, region or locality in relation to which the indication is registered; or

it includes a term that so resembles a registered translation of a registered geographical indication as to be likely to mislead that the wine originated in a country, region or locality in relation to which the indication is registered; or

both of the following apply:

it includes a term that so resembles a registered traditional expression as to be likely to mislead that the wine originated in a country, region or locality in relation to which the expression is registered or that the wine is in a category of wine in relation to which the expression is registered;

the wine originated in a foreign country that is not an agreement country.

Inclusion of name of individual or address of winery

The description and presentation of wine is misleading if:

it includes:

the name of an individual who manufactured, sold, exported or imported the wine; or

if a person who manufactured, sold, exported or imported the wine is, apart from this subsection, lawfully permitted to use the name of an individual who previously manufactured, sold, exported or imported the wine—the name of that individual; or

the name or address of the winery at which the wine was manufactured; and

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.

Not in accordance with prescribed provisions

The description and presentation of wine is misleading if it is not in accordance with any provisions relating to the description and presentation of wine as are prescribed for the purposes of this subsection.

Ordinary meaning of misleading not affected

Subsections (2), (3), (4), (5) and (6) do not limit what, apart from those subsections, is a misleading description and presentation of wine.

40FA Circumstances in which description and presentation is not misleading—general

Inclusion of geographical indication, translation or traditional expression registered for more than one place

If:

the description and presentation of wine includes an indication or term that is a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to a country, region or locality; and

the wine originated in that country, region or locality; and

the description and presentation indicates that the wine originated in that country, region or locality;

then the description and presentation is not misleading merely because the indication or term is, or resembles, a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to another country, region or locality.

Inclusion of common English word or term

If:

the description and presentation of wine includes a word or term that is a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to a country, region or locality; and

the word or term is a common English word or term; and

the word or term is not used in such a way as to indicate that the wine originated in the country, region or locality in relation to which the geographical indication, translation or traditional expression is registered; and

the description and presentation indicates the country, region or locality in which the wine originated; and

the word or term is used in good faith;

then the description and presentation is not misleading merely because it includes the word or term.

40FB Circumstances in which description and presentation is not misleading—inclusion of registered traditional expressions

Inclusion of registered quality wine term

If:

the description and presentation of wine includes a registered quality wine term; and

the wine originated in Australia; and

the description and presentation indicates that the wine originated in Australia or in a region or locality in Australia; and

the registered quality wine term is also a registered traditional expression; and

the wine is in a category of wine in relation to which the expression is registered;

then the description and presentation is not misleading merely because it includes the registered quality wine term.

Inclusion of trade mark

If:

the description and presentation of wine includes a trade mark; and

the trade mark contains or consists of a registered traditional expression; and

before the protection date for the traditional expression:

the trade mark had been entered in good faith in the Register of Trade Marks; or

the owner of the trade mark had acquired rights in the trade mark through use in good faith;

then the description and presentation is not misleading merely because it includes that trade mark.

Inclusion of business name

If:

the description and presentation of wine includes a business name; and

the business name contains or consists of a registered traditional expression; and

(c) the business name was registered in good faith under the law of a State or Territory or on the Business Names Register established and maintained under Business Names Registration Act 2011 before the protection date for the traditional expression;section 22 of the

then the description and presentation is not misleading merely because it includes that business name.

Subsection (3) does not limit subsection 40F(5).

Subdivision C—Other provisions relating to sale, export or import of wine

40G Sale, export or import of wine in contravention of registered conditions of use

A person commits an offence if:

the person sells, exports or imports wine; and

the wine is sold, exported or imported by the person in trade or commerce with a description and presentation that:

includes an indication or term that is a registered geographical indication, a registered translation of such an indication, a registered traditional expression, a registered quality wine term or a registered additional term; and

does not comply with any registered conditions of use applicable to that geographical indication, translation, traditional expression, quality wine term or additional term (as the case may be).

Penalty: Imprisonment for 1 year.

Note: A court may impose a maximum fine of 60 penalty units instead of, or in addition to, a term of imprisonment. A body corporate that is convicted of an offence may be fined up to 5 times that maximum fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)

Indication or term registered for more than one place

Subsection (1) does not apply if:

the indication or term is registered in one or more Parts of the Register in relation to one or more countries, regions or localities; and

the description and presentation complies with the registered conditions of use applicable to the indication or term as registered in one of those Parts for one of those countries, regions or localities; and

the wine originated in that country, region or locality; and

the description and presentation indicates that the wine originated in that country, region or locality.

Note: The defendant bears an evidential burden in relation to the matters in this subsection. (See subsection 13.3(3) of the Criminal Code.)

Indication or term is registered additional term for particular wine

Subsection (1) also does not apply if:

the indication or term is a registered additional term for a particular wine and is also either or both of the following:

a registered additional term for another particular wine;

registered in one or more Parts of the Register in relation to one or more countries, regions or localities; and

the description and presentation complies with the registered conditions of use that are applicable to the indication or term as registered:

for one of those particular wines; or

in one of those Parts for one of those countries, regions or localities; and

either:

if subparagraph (b)(i) applies—the wine is the particular wine; or

if subparagraph (b)(ii) applies—the wine originated in that country, region or locality, and the description and presentation indicates that the wine originated in that country, region or locality.

Note: The defendant bears an evidential burden in relation to the matters in this subsection. (See subsection 13.3(3) of the Criminal Code.)

40J Exception for certain wines

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), 40E(1) and 40G(1).

The offence provisions do not apply in relation to wines manufactured before the commencement of this Part.

The offence provisions do not apply in relation to wines that are in transit through Australia.

The offence provisions do not apply in relation to wines that:

originate in Australia or an agreement country; and

are consigned in small quantities between Australia and an agreement country under the conditions, and in accordance with the procedures, prescribed by the regulations.

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

To avoid doubt, it is declared that any of the following may institute a proceeding for an offence against section 40C, 40E or 40G:

the Authority;

a person engaged in the manufacture of wine or the growing of wine grapes in Australia or in a designated foreign country;

an organisation established under the law of Australia or of a designated foreign country whose objects or purposes include any of the following:

the promotion of the manufacture of wine, the growing of wine grapes or the marketing of wine;

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;

the promotion or protection of the interests of consumers of wine.

(2) This section does not limit the operation of Crimes Act 1914.section 13 of the

In this Act:

designated foreign country means a foreign country in relation to which a geographical indication, translation of such an indication, traditional expression, or additional term is registered.

40M Application of national food standards to wines imported from foreign countries

National food standard modified

A national food standard that applies to wine has effect, in relation to wine that originates in any foreign country, as if any requirement in the standard to comply with particular oenological practices or processes, or compositional requirements, in relation to wine were replaced by a requirement to comply with the replacement practices, processes or requirements under either subsection (1A) or (1B).

Practices, processes and requirements set out in wine-trading agreements

The replacement practices, processes or requirements under this subsection are:

subject to paragraph (b), the oenological practices or processes, or compositional requirements, set out in a prescribed wine-trading agreement as in force or existing from time to time; or

if, in accordance with such an agreement, Australia has been notified of the authorisation of modifications of the oenological practices or processes, or compositional requirements, set out in the agreement—the oenological practices or processes, or compositional requirements, as so modified.

Practices, processes and requirements prescribed by the regulations

The replacement practices, processes or requirements under this subsection are the oenological practices or processes, or compositional requirements, prescribed by the regulations in relation to wine originating in any foreign country.

Regulations made for the purposes of subsection (1B):

must not prescribe oenological practices or processes, or compositional requirements, in relation to wine originating in any foreign country unless the oenological practices or processes, or compositional requirements, apply to wine under the laws and regulations of a foreign country; and

may prescribe oenological practices or processes, or compositional requirements, by applying, adopting or incorporating (with or without modification) a written instrument or other document:

as in force or existing at a particular time; or

as in force or existing from time to time.

Minister may suspend operation of section

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 requirement, that was used in the manufacture of the wine would endanger human health.

A suspension under subsection (2):

(a) must be by written notice signed by the Minister and published in the Gazette; and

takes effect on a day stated in the notice that is not earlier than the day following the date of publication; and

remains in force, unless sooner revoked, for one year.

40N Establishment of Committee

A committee to be known as the Geographical Indications Committee is established.

40P Function and powers of Committee

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

to make determinations of Australian GIs in accordance with this Part (including determining any conditions of use applicable to such GIs); and

to make determinations for the omission of Australian GIs in accordance with this Part; and

any other functions conferred on the Committee under this Part or under the regulations.

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.

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, and translations of such indications, in relation to wine originating in a foreign country are not determined under this Division. They are determined by the Committee under regulations made for the purposes of Division 4B (unless they are in a prescribed wine-trading agreement).

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.

The regulations may modify the operation of this Division to remove any inconsistency with the operation of regulations made for the purposes of Division 4B.

Subdivision B—Powers of Committee to determine geographical indications

40Q Power of Committee to determine geographical indications

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.

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 declared winemakers organisation;

a declared wine grape growers organisation;

an organisation representing winemakers in a State or Territory;

an organisation representing growers of wine grapes in a State or Territory;

a winemaker;

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

The Presiding Member of the Committee must cause a notice under subsection (2) to be published if:

(a) an application under proposed GI); orsection 40R has been made for the determination of a geographical indication (the

(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 proposed GI) that is different from the GI proposed in the application.section 40R has been made, the Committee is considering, under paragraph 40T(3)(b), determining a geographical indication (the

The notice must:

set out the proposed GI; and

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

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

The registered owner of a registered trade mark may object to the determination of a proposed GI on one of the following grounds:

that the trade mark consists of a word, expression or other indication that is identical to the proposed GI;

that:

the trade mark consists of a word, expression or other indication; and

(ii) the proposed GI is likely to cause confusion with that word, expression or other indication;

that:

the trade mark contains a word, expression or other indication; and

the proposed GI is likely to cause confusion with that word, expression or other indication; and

the owner has trade mark rights in that word, expression or other indication.

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, expression or other indication.

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:

that:

the application was made in good faith; and

the trade mark consists of a word, expression or other indication 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;

that:

the application was made in good faith; and

the trade mark consists of a word, expression or other indication; and

(iii) the proposed GI is likely to cause confusion with that word, expression or other indication; 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;

that:

the application was made in good faith; and

the trade mark contains a word, expression or other indication; and

(iii) the proposed GI is likely to cause confusion with that word, expression or other indication; 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

after registration, the applicant would have trade mark rights in the word, expression or other indication.

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:

that:

the trade mark consists of a word, expression or other indication that is identical to the proposed GI; and

the person has trade mark rights in that word, expression or other indication; and

the rights were acquired through use in good faith;

that:

the trade mark consists of or contains a word, expression or other indication; and

(ii) the proposed GI is likely to cause confusion with that word, expression or other indication; and

the person has trade mark rights in that word, expression or other indication; and

the rights were acquired through use in good faith.

40RC Consideration of objections

Notice of objection to be given to Committee

If:

the Registrar of Trade Marks receives an objection in relation to the proposed GI on a ground set out in section 40RB; and

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

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

If:

the Registrar of Trade Marks decides that the ground of objection is made out; and

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)).

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

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

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):

the person who proposed the GI, if there was an application under section 40R for the GI;

the person who objected to the determination of the proposed GI;

the Committee.

Notice to be given by Committee

After receiving notice of a decision under subsection (1), the Presiding Member must cause a notice to be published:

setting out the proposed GI; and

stating that a decision of the Registrar of Trade Marks has been made in relation to the proposed GI; and

setting out the terms of the decision and any recommendation made under subsection 40RC(3) in relation to the proposed GI.

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

If:

a decision has been made that a ground of objection to a proposed GI has been made out; and

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)).

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

An appeal lies to the Federal Court against a decision of the Registrar of Trade Marks, made under:

subsection 40RC(2) (a decision that a ground of objection is or is not made out); and

subsection 40RC(3) (a recommendation that a proposed GI be determined or a refusal to make such a recommendation); and

section 40RE (a decision that a ground of objection no longer exists or a refusal to make such a decision).

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.

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:

admit further evidence orally, or on affidavit or otherwise;

permit the examination and cross-examination of witnesses, including witnesses who gave evidence before the Registrar of Trade Marks;

order an issue of fact to be tried as it directs;

affirm, reverse or vary the Registrar of Trade Marks’s decision;

give any judgment, or make any order, that, in all the circumstances, it thinks fit;

order a party to pay costs to another party.

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.

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.

The regulations may make provision about the practice and procedure of the Federal Court in a proceeding under this section, including provision:

prescribing the time for starting the action or proceeding or for doing any other act or thing; or

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

The Committee may determine a GI that was the subject of a decision under subsection 40RC(2), if:

all appeals against, or reviews of, the decision (if any) in relation to the GI have been finalised; and

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

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)

The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if:

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

all appeals against, or reviews of, the decision that the GI should be determined (if any) have been finalised; and

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

The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if:

a decision has been made under section 40RE that the ground of objection no longer exists; and

all appeals against, or reviews of, the decision that the ground no longer exists (if any) have been finalised; and

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:

must consult any declared winemakers organisation and any declared wine grape growers organisation; and

may consult any other organisations or persons it thinks appropriate.

40T Making of determinations

In determining a geographical indication, the Committee must:

identify in the determination the boundaries of the area or areas in the region or locality to which the determination relates; and

determine the indication to be used to indicate that area or those areas; and

determine any conditions of use that are to be applicable to the geographical indication.

If the regulations prescribe criteria for use by the Committee in determining a geographical indication, the Committee is to have regard to those criteria.

When making a determination as a result of an application, the Committee may do either or both of the following:

determine an area or areas having boundaries different from those stated in the application;

determine an indication to be used to indicate the area or areas constituting the geographical indication that is different from an indication 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

A determination by the Committee is to be an interim determination in the first instance.

An interim determination does not have effect as a determination of a geographical indication.

40V Publication of notice of interim determination

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.

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

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.

The notice must include a statement to the effect that:

(a) subject to the Administrative Review Tribunal Act 2024, application may be made, by or on behalf of any person whose interests are affected by the determination, to the Administrative Review Tribunal for review of the determination; and

(b) the person may, under Administrative Review Tribunal Act 2024, request a statement of reasons for the determination; andsection 268 of the

if a decision has been made under section 40RC before the final determination, no application to the Administrative Review 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.

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

Application may be made to the Administrative Review 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) Despite Administrative Review Tribunal Act 2024, an application to the Tribunal for review of a final determination must be made within 28 days after notice of the final determination is published in accordance with section 40X of this Act.section 18 of the

(3) Despite Administrative Review Tribunal Act 2024, an application to the Tribunal to extend the period during which an applicant may apply to the Tribunal in respect of a final determination must be made within 28 days after notice of the final determination is published in accordance with section 40X of this Act.section 19 of the

40Z Date of effect of final determination

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:

if an application is duly made to the Administrative Review Tribunal for review of the determination—as soon as practicable after the decision of the Tribunal on the review is given; or

otherwise—as soon as practicable after the 28th day after notice of the determination is published in accordance with section 40X.

When the Presiding Member gives a copy of a final determination to the Registrar, the Presiding Member must also give a copy to the Chair of the Authority.

A final determination of the Committee takes effect on the day on which particulars of the determination are included in the Register.

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.

Note: Determinations for the omission of geographical indications, and translations of such indications, in relation to wine originating in a foreign country are not made under this Division. They are made by the Committee under regulations made for the purposes of Division 4B.

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.

The regulations may modify the operation of this Division to remove any inconsistency with the operation of regulations made for the purposes of Division 4B.

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.

The application must be accompanied by such fee (if any) charged by the Authority for the making of such an application.

The Authority may waive the fee.

If the application is not accompanied by the fee, and the fee is not waived by the Authority, the application is treated as having never been made.

40ZAD Further information concerning an application

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.

If the applicant does not comply with this requirement, the application is taken to have been withdrawn.

A notice must include a statement about the effect of the above.

40ZAE Notice by Committee

If the Committee:

receives an application under section 40ZAC; or

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:

setting out the Australian GI; and

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

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

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.

The Committee may, in writing, make a determination to omit the GI on that ground if the Committee is satisfied of the following matters:

that the GI has been registered for a period of more than 5 years before the date of the notice under section 40ZAE;

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));

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

For the purposes of paragraph (2)(b), an Australian GI has not been used if:

there has not been a production of wine for commercial use originating in the region or locality indicated by the GI; and

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:

the region or locality indicated by the GI has been affected by fire, drought or some other disaster; and

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 notice to be given of the Committee’s determination to the applicant (if any); and

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 Administrative Review Tribunal review of a determination

Application may be made to the Administrative Review Tribunal for review of the determination made under section 40ZAF.

(2) Despite Administrative Review Tribunal Act 2024, an application to the Tribunal for review of a determination under section 40ZAF of this Act must be made within 28 days after notice of the determination is published in accordance with section 40ZAG of this Act.section 18 of the

(3) Despite Administrative Review Tribunal Act 2024, an application to the Tribunal to extend the period during which an applicant may apply to the Tribunal in respect of a determination under section 40ZAF must be made within 28 days after notice of the determination is published in accordance with section 40ZAG of this Act.section 19 of the

40ZAI Date of effect of determination to omit GI

If the determination made by the Committee under the Registrar so that particulars of the determination can be omitted from the Register:section 40ZAF is a determination to omit the Australian GI from the Register, the Presiding Member must give a copy of the determination to

if an application is made to the Administrative Review 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

otherwise—as soon as practicable after the 28th day after notice of the determination is published in accordance with section 40ZAG.

When the Presiding Member gives a copy of the determination to the Registrar, the Presiding Member must also give a copy to the Chair of the Authority.

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.

The application must be accompanied by a written statement from each of the following organisations supporting the application:

a declared winemakers’ organisation (if any);

a declared wine grape growers’ organisation (if any);

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;

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.

The application must also be accompanied by such fee (if any) charged by the Authority for the making of such an application.

The Authority may waive the fee.

If:

the application is not accompanied by the fee, and the fee is not waived by the Authority; or

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

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.

If the applicant does not comply with this requirement, the application is taken to have been withdrawn.

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:

stating that an application under section 40ZAJ has been made and setting out the Australian GI; and

inviting:

interested persons in relation to the GI (see section 40ZAM); and

members of the organisations referred to in subsection 40ZAJ(2); and

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 winemaker who makes wine for commercial purposes from grapes grown in the region or locality indicated by the GI; or

a grower of grapes who grows wine grapes in the region or locality indicated by the GI; or

a person who owns or leases a tract of land that is:

5 hectares or more in size and situated in the region or locality indicated by the GI; and

capable of being used to grow grapes for commercial wine production; or

a person who:

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

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 make a determination in writing to omit the Australian GI from the Register on the grounds that the GI is no longer required.section 40ZAL, the Committee must

Submission made

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:

notice to be given of the Committee’s determination to the applicant; and

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

If the determination made by the Committee under the Registrar so that particulars of the determination can be omitted from the Register as soon as is practicable.section 40ZAN is a determination to omit the Australian GI from the Register, the Presiding Member must give a copy of the determination to

When the Presiding Member gives a copy of the determination to the Registrar, the Presiding Member must also give a copy to the Chair of the Authority.

The determination of the Committee takes effect on the day on which particulars of the GI are omitted from the Register.

40ZAQ Determination of foreign geographical indications and translations

The regulations may make provision for and in relation to the determination of geographical indications, and translations of geographical indications, in relation to wine originating in a foreign country.

Role of Committee

Without limiting subsection (1), the regulations may:

provide for the Committee to deal with applications for the determination of geographical indications, and translations of such indications, in relation to wine originating in a foreign country or a region or locality in a foreign country; and

provide for the Committee to make determinations of such indications and translations (including determining any conditions of use applicable to such indications and translations); and

set out criteria for use by the Committee in making such determinations; and

provide for review by the Administrative Review Tribunal of such determinations.

Role of Registrar of Trade Marks

Without limiting subsection (1), the regulations may also:

provide for objections to be made to the Registrar of Trade Marks in relation to the determination of proposed geographical indications, and translations of such indications, in relation to wine originating in a foreign country or a region or locality in a foreign country; and

set out the grounds on which such objections may be made; and

set out the procedure to be followed in dealing with such objections (including the charging of fees, the holding of hearings and the taking of evidence); and

provide for the Registrar of Trade Marks to make recommendations to the Committee in relation to the determination of the proposed indications and translations.

Timing of applications for review to the Administrative Review Tribunal

(4) Regulations made for the purposes of subsection (1) may modify the operation of sections 18 and 19 of the Administrative Review Tribunal Act 2024 (which deal with when applications for review may be made) as they apply in relation to a determination made under those regulations.

40ZAR Appeals against decisions of Registrar of Trade Marks

An appeal lies to the Federal Court against such decisions of the Registrar of Trade Marks as are prescribed by the regulations (being decisions under regulations made for the purposes of subsection 40ZAQ(3)).

The jurisdiction of the Federal Court to hear and determine appeals against prescribed decisions is exclusive of the jurisdiction of any other court except the jurisdiction of the High Court under section 75 of the Constitution.

On hearing an appeal against a prescribed decision, the Federal Court may do any one or more of the following:

admit further evidence orally, or on affidavit or otherwise;

permit the examination and cross-examination of witnesses, including witnesses who gave evidence before the Registrar of Trade Marks;

order an issue of fact to be tried as it directs;

affirm, reverse or vary the prescribed decision;

give any judgment, or make any order, that, in all the circumstances, it thinks fit;

order a party to pay costs to another party.

The Registrar of Trade Marks may appear and be heard at the hearing of an appeal to the Federal Court against a prescribed decision.

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 against prescribed decisions.

The regulations may make provision about the practice and procedure of the Federal Court in a proceeding under this section, including provision:

prescribing the time for starting the action or proceeding or for doing any other act or thing; or

for an extension of that time.

40ZAS Decisions not to affect rights under Trade Marks Act

A decision made under section 40ZAR, or under regulations made for the purposes of section 40ZAQ, 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.

40ZAT Determinations for the omission from the Register of foreign geographical indications and translations

The regulations may make provision for and in relation to the omission from the Register of registered geographical indications, and registered translations of such indications, in relation to a foreign country or a region or locality in a foreign country.

Without limiting subsection (1), the regulations may:

provide for the Committee to deal with applications for the omission from the Register of registered geographical indications, and registered translations of such indications, in relation to a foreign country or a region or locality in a foreign country; and

provide for the Committee to make determinations for the omission from the Register of such indications and translations; and

set out the grounds on which such determinations may be made; and

provide for review by the Administrative Review Tribunal of such determinations.

Timing of applications for review to the Administrative Review Tribunal

(3) Regulations made for the purposes of subsection (1) may modify the operation of sections 18 and 19 of the Administrative Review Tribunal Act 2024 (which deal with when applications for review may be made) as they apply in relation to a determination made under those regulations.

40ZA Registrar

There is to be a Registrar of Protected Geographical Indications and Other Terms.

The Registrar is to be an employee of the Authority.

The Authority 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:

to keep the Register of Protected Geographical Indications and Other Terms;

to include particulars in the Register in accordance with section 40ZD;

to provide administrative assistance to the Committee;

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;

in accordance with the directions of the Authority or the Committee, to notify authorities and organisations in foreign countries of the geographical indications, translations of such indications, traditional expressions and additional terms included in the Register.

40ZC Register of Protected Geographical Indications and Other Terms

The Registrar is to keep a register to be known as the Register of Protected Geographical Indications and Other Terms.

The Register may be kept wholly or partly by means of a computer.

40ZD Contents of Register

Parts of the Register

The Register is to be divided into 4 parts as follows:

Part 1 is to include:

geographical indications in relation to wines originating in Australia, and any conditions of use applicable to those indications; and

geographical indications in relation to wines originating in a foreign country, any translations of those indications, and any conditions of use applicable to those indications or translations;

Part 2 is to include traditional expressions in relation to wines originating in a foreign country, and any conditions of use applicable to those expressions;

Part 3 is to include quality wine terms in relation to wines originating in Australia, and any conditions of use applicable to those terms;

Part 4 is to include other terms (not being geographical indications, translations of geographical indications, traditional expressions, or terms referred to in paragraph (c)), in relation to wines, and any conditions of use applicable to those terms.

Particulars that must be included in Part 1 of the Register

The Registrar must include in Part 1 of the Register (geographical indications), in accordance with the directions of the Authority, the following particulars:

in relation to Australia:

Australia; and

the name of each State and internal Territory; and

any geographical indication determined by the Committee under Division 4 to be a geographical indication in relation to wines originating in Australia; and

any region or locality in relation to which such a geographical indication is determined; and

any conditions of use applicable to such a geographical indication;

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 originating in that country; and

any translation, recognised by that wine-trading agreement, of each such geographical indication; and

any region or locality in relation to which each such geographical indication is to be registered; and

any conditions of use applicable to a geographical indication referred to in subparagraph (i) or a translation referred to in subparagraph (ii);

in relation to a foreign country (whether or not an agreement country):

any geographical indication determined by the Committee, under regulations made for the purposes of Division 4B, to be a geographical indication in relation to wines originating in that country; and

any translation determined by the Committee, under regulations made for the purposes of Division 4B, to be a translation of such a geographical indication; and

any region or locality in relation to which each such geographical indication is determined; and

any conditions of use applicable to a geographical indication referred to in subparagraph (i) or a translation referred to in subparagraph (ii).

Particulars that must be included in Part 2 of the Register

The Registrar must include in Part 2 of the Register (traditional expressions), in accordance with the directions of the Authority, the following particulars:

in relation to an agreement country:

each traditional expression that is listed in relation to wines originating in that country in a prescribed wine-trading agreement to which that country is a party; and

each wine originating in that country that is listed in that wine-trading agreement in relation to each such traditional expression; and

each category of wine that is listed in that wine-trading agreement in relation to each such traditional expression; and

each language that is listed in that wine-trading agreement in relation to each such traditional expression; and

any conditions of use applicable to each such traditional expression;

in relation to a foreign country (whether or not an agreement country):

each traditional expression that is listed in the laws and regulations of that country for the purpose of the description and presentation of wines originating in that country, and that is determined by the Authority; and

each wine originating in that country that is listed in those laws and regulations in relation to such a traditional expression; and

each category of wine that is listed in those laws and regulations in relation to such a traditional expression; and

each language that is listed in those laws and regulations in relation to such a traditional expression; and

any conditions of use applicable to each such traditional expression.

Particulars that must be included in Part 3 of the Register

The Registrar must include in Part 3 of the Register (quality wine terms), in accordance with the directions of the Authority, the following particulars:

(a) each term (a quality wine term) that, under a prescribed wine-trading agreement to which Australia is a party, is a quality wine term in relation to wines originating in Australia;

any region or locality in relation to which each such term is to be registered;

any conditions of use applicable to each such term.

Particulars that must be included in Part 4 of the Register

The Registrar must include in Part 4 of the Register (additional terms), in accordance with the directions of the Authority, the following particulars:

in relation to Australia:

each term (other than a geographical indication or a quality wine term) that, under a prescribed wine-trading agreement to which Australia is a party, is required to be protected for the purpose of the description and presentation of wine originating in Australia; and

any other term that the Authority has determined is required to be protected for the purpose of the description and presentation of wine originating in Australia; and

any region or locality in relation to which a term referred to in subparagraph (i) or (ii) is to be registered; and

any conditions of use applicable to a term referred to in subparagraph (i) or (ii);

in relation to an agreement country:

each term (other than a geographical indication, a translation of a geographical indication, or a traditional expression) that, under a prescribed wine-trading agreement to which that country is a party, is required to be protected for the purpose of the description and presentation of wine originating in that country; and

any region or locality in relation to which each such term is to be registered; and

any conditions of use applicable to each such term;

in relation to a foreign country (whether or not an agreement country):

each term (other than a geographical indication, a translation of a geographical indication, or a traditional expression) that is recognised in the laws and regulations of that country for the purpose of the description and presentation of wine originating in that country, and that is determined by the Authority; and

any region or locality in relation to which each such term is to be registered; and

any conditions of use applicable to each such term;

any other term (not being a geographical indication, a translation of a geographical indication, a traditional expression or a quality wine term) that the Authority has determined is required to be protected in relation to particular wines, and any conditions of use applicable to those terms.

If:

it appears to the Authority that:

an entry in the Register is not, or has ceased to be, necessary; or

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 under regulations made for the purposes of Division 4B; or

it appears to the Authority 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 Authority 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.

In subsection (3):

entry includes a part of an entry.

The Registrar must comply with a direction given under subsection (3).

40ZE Inspection of Register

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.

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.

The Registrar may supply a copy of the Register or part of the Register to a person on payment of the prescribed fee.

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.