In this Division:

Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.

Australian originating goods means goods that are Australian originating goods under a law of the US that implements the Agreement.

Convention means the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983.

customs value, in relation to goods, has the meaning given by section 159.

fuel has its ordinary meaning.

Harmonized System means the Harmonized Commodity Description and Coding System (as in force from time to time) that is established by or under the Convention.

Harmonized US Tariff Schedule means the Harmonized Tariff Schedule of the United States (as in force from time to time).

indirect materials means:

(a) goods used in the production, testing or inspection of other goods, but that are not physically incorporated in the other goods; or

(b) goods used in the operation or maintenance of buildings or equipment associated with the production of other goods;

including:

(c) fuel; and

(d) tools, dies and moulds; and

(e) lubricants, greases, compounding materials and other similar goods; and

(f) gloves, glasses, footwear, clothing, safety equipment and supplies for any of these things; and

(g) catalysts and solvents.

Interpretation Rules means the General Rules for the Interpretation of the Harmonized System provided for by the Convention.

national of the US has the meaning given by Annex 1-A to Chapter 1 of the Agreement.

non-originating materials means goods that are not originating materials.

originating materials means:

(a) goods that are used in the production of other goods and that are US originating goods; or

(b) goods that are used in the production of other goods and that are Australian originating goods; or

(c) indirect materials.

Pork sausages are produced in the US from US cereals, Hungarian frozen pork meat and Brazilian spices.

The US cereals are originating materials since they are goods used in the production of other goods (the sausages) and they are US originating goods under Subdivision B.

The Hungarian frozen pork meat and Brazilian spices are non-originating materials since they are produced in countries other than the US and Australia.

produce means grow, raise, mine, harvest, fish, trap, hunt, manufacture, process, assemble or disassemble. Producer and production have corresponding meanings.

recovered goods means goods in the form of individual parts that:

(a) have resulted from the complete disassembly of goods which have passed their useful life or which are no longer useable due to defects; and

(b) have been cleaned, inspected or tested (as necessary) to bring them into reliable working condition.

remanufactured goods means goods that:

(a) are produced entirely in the US; and

(b) are classified to:

(i) Chapter 84, 85 or 87 (other than heading 8418, 8516 or 8701 to 8706), or to heading 9026, 9031 or 9032 of Chapter 90, of the Harmonized System; or

(ii) any other tariff classification prescribed by the regulations; and

(c) are entirely or partially comprised of recovered goods; and

(d) have a similar useful life, and meet the same performance standards, as new goods:

(i) that are so classified; and

(ii) that are not comprised of any recovered goods; and

(e) have a producer’s warranty similar to such new goods.

Schedule 1 tariff table means the table in Schedule 1 to the Customs (Australia-United States Free Trade Agreement) Regulations 2004.

Schedule 2 tariff table means the table in Schedule 2 to the Customs (Australia-United States Free Trade Agreement) Regulations 2004.

US means the United States of America.

used means used or consumed in the production of goods.

US originating goods means goods that, under this Division, are US originating goods.

Value of goods

(2) The value of goods for the purposes of this Division is to be worked out in accordance with the regulations. The regulations may prescribe different valuation rules for different kinds of goods.

Tariff classifications

In specifying tariff classifications for the purposes of this Division, the regulations may refer to the following:

(a) the Harmonized System;

(b) the Harmonized US Tariff Schedule.

Subsection 4(3A) does not apply for the purposes of this Division.

Regulations

For the purposes of this Division, the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time.

(1) Goods are US originating goods if they are wholly obtained or produced entirely in the US.

(2) Goods are wholly obtained or produced entirely in the US if, and only if, the goods are:

(a) minerals extracted in the US; or

(b) plants grown in the US, or in the US and Australia, or products obtained from such plants; or

(c) live animals born and raised in the US, or in the US and Australia, or products obtained from such animals; or

(d) goods obtained from hunting, trapping, fishing or aquaculture conducted in the US; or

(e) fish, shellfish or other marine life taken from the sea by ships registered or recorded in the US and flying the flag of the US; or

(f) goods produced exclusively from goods referred to in paragraph (e) on board factory ships registered or recorded in the US and flying the flag of the US; or

(g) goods taken from the seabed, or beneath the seabed, outside the territorial waters of the US by the US or a national of the US, but only if the US has the right to exploit that part of the seabed; or

(h) goods taken from outer space by the US or a national of the US; or

(i) waste and scrap that:

(i) has been derived from production operations in the US; or

(ii) has been derived from used goods that are collected in the US and that are fit only for the recovery of raw materials; or

(j) recovered goods derived in the US and used in the US in the production of remanufactured goods; or

(k) goods produced entirely in the US exclusively from goods referred to in paragraphs (a) to (i) or from their derivatives.

(1) Goods are US originating goods if:

(a) a tariff classification (the final classification) that is specified in column 2 of the Schedule 1 tariff table applies to the goods; and

(b) they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

(c) if any of the following 3 requirements apply in relation to the goods—that requirement is satisfied.

First requirement

Subject to subsection (3), the first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods. The first requirement is that:

(a) each of the non-originating materials satisfies the transformation test (see subsection (8)); or

(b) the following are satisfied:

(i) the total value of all the non-originating materials does not exceed 10% of the customs value of the goods;

(ii) if one or more of the non-originating materials are prescribed for the purposes of this paragraph—each of those non-originating materials satisfies the transformation test (see subsection (8)).

However, the first requirement does not apply if:

(a) an alternative requirement to the change in tariff classification is also specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; and

(b) that alternative requirement is satisfied.

Second requirement

Subject to subsection (5), the second requirement applies only if a regional value content requirement is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods. The second requirement is that the goods satisfy that regional value content requirement.

However, the second requirement does not apply if:

(a) an alternative requirement to the regional value content requirement is also specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; and

(b) that alternative requirement is satisfied.

The regulations may prescribe different regional value content requirements for different kinds of goods.

Third requirement

The third requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 1 tariff table opposite the final classification for the goods.

Transformation test

A non-originating material satisfies the transformation test if:

(a) it satisfies the change in tariff classification that is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; or

(b) it does not satisfy the change in tariff classification mentioned in paragraph (a), but it was produced entirely in the US, or entirely in the US and Australia, from other non-originating materials, and each of those materials satisfies the transformation test (including by one or more applications of this subsection).

(1) Subject to subsection (5), goods are US originating goods if:

(a) a tariff classification (the final classification) that is specified in column 2 of the Schedule 2 tariff table applies to the goods; and

(b) they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

(c) if any of the following 2 requirements apply in relation to the goods—that requirement is satisfied.

First requirement

The first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 2 tariff table opposite the final classification for the goods. The first requirement is that:

(a) subject to subsection (3), each of the non-originating materials satisfies the transformation test (see subsection (7)); or

(b) the following are satisfied:

(i) the total weight of all the non-originating materials does not exceed 7% of the total weight of the goods;

(ii) if one or more of the non-originating materials are prescribed for the purposes of this paragraph—each of those non-originating materials satisfies the transformation test (see subsection (7)).

In relation to goods classified to Chapter 61, 62 or 63 of the Harmonized System, paragraph (2)(a) is to be applied by applying:

(a) for goods covered by Chapter 61 of the Harmonized System—Chapter Rule 2 for Chapter 61 that is set out in the Schedule 2 tariff table; and

(b) for goods covered by Chapter 62 of the Harmonized System—Chapter Rule 3 for Chapter 62 that is set out in the Schedule 2 tariff table; and

(c) for goods covered by Chapter 63 of the Harmonized System—Chapter Rule 1 for Chapter 63 that is set out in the Schedule 2 tariff table.

Second requirement

The second requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 2 tariff table opposite the final classification for the goods.

Goods put up in a set for retail sale

However, if:

(a) the goods are put up in a set for retail sale; and

(b) the goods are classified in accordance with Rule 3 of the Interpretation Rules;

the goods are US originating goods only if:

(c) all of the goods in the set are US originating goods under this Division; or

(d) the total value of the goods in the set that are not US originating goods under this Division does not exceed 10% of the customs value of the set of goods.

In applying paragraph (5)(c), assume the goods were not part of a set.

The effect of subsection (6) is that the origin of the belt must now be determined according to the tariff classification applicable to belts.

Transformation test

A non-originating material satisfies the transformation test if:

(a) it satisfies the change in tariff classification that is specified in column 3 of the Schedule 2 tariff table opposite the final classification for the goods; or

(b) it does not satisfy the change in tariff classification mentioned in paragraph (a), but it was produced entirely in the US, or entirely in the US and Australia, from other non-originating materials, and each of those materials satisfies the transformation test (including by one or more applications of this subsection).

(1) If goods (the underlying goods) are imported into Australia with standard accessories, standard spare parts or standard tools, then the accessories, spare parts or tools are US originating goods if:

(a) the underlying goods are US originating goods; and

(b) the accessories, spare parts or tools are not invoiced separately from the underlying goods; and

(c) the quantities and value of the accessories, spare parts or tools are the usual quantities and value in relation to the underlying goods.

In working out if the underlying goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the accessories, spare parts or tools to be taken into account for the purposes of that requirement.

If:

(a) goods are packaged for retail sale in packaging material or a container; and

(b) the packaging material or container is classified with the goods in accordance with Rule 5 of the Interpretation Rules;

then the packaging material or container is to be disregarded for the purposes of this Division (with 1 exception).

The exception is that in working out if the goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the packaging material or container to be taken into account for the purposes of that requirement.

Goods are not US originating goods under this Division if:

(a) they are transported through a country or place other than the US or Australia; and

(b) they undergo any process of production in that country or place (other than unloading, reloading, any operation to preserve them in good condition or any operation that is necessary for them to be transported to Australia).

This section applies despite any other provision of this Division.

(1) For the purposes of this Subdivision, the following are the AUSFTA verification powers:

(a) the power to search premises;

(b) the power to take photographs (including a video recording), or make sketches, of premises or anything at premises;

(c) the power to inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of, anything in or on premises;

(d) the power to inspect any document or record in or on premises;

(e) the power to take extracts from, or make copies of, any document or record in or on premises;

(f) the power to take into or onto premises any equipment or material reasonably necessary for the purpose of exercising a power under paragraph (a), (b), (c), (d) or (e);

(g) the power to test and operate record-keeping, accounting, computing or other operating systems of any kind that are at premises and may be used to generate or record information or documents of a kind that may be communicated to Customs;

(h) the powers in subsections (2) and (3).

Operation of equipment

(2) For the purposes of this Subdivision, the AUSFTA verification powers include the power to operate equipment at premises to see whether:

(a) the equipment; or

(b) a disk, tape or other storage device that:

(i) is at the premises; and

(ii) can be used with the equipment or is associated with it;

contains information that is relevant to the verification of information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

Removing documents and disks etc.

(3) For the purposes of this Subdivision, the AUSFTA verification powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

(a) the power to operate equipment or other facilities at the premises to put the information in documentary form and remove the documents so produced;

(b) the power to operate equipment or other facilities at the premises to transfer the information to a disk, tape or other storage device:

(i) that is brought to the premises for the exercise of the power; or

(ii) that is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises;

and to remove the disk, tape or other storage device from the premises.

The CEO may, by writing, authorise an officer to enter premises, and to exercise AUSFTA verification powers in or on premises, for the purposes of this Subdivision.

Who may be authorised to be a verification officer

The CEO must not do so unless the CEO is satisfied that the officer is suitably qualified, because of the officer’s abilities and experience, to exercise AUSFTA verification powers.

Form of authorisation

An authorisation may apply:

(a) generally; or

(b) during a specified period; or

(c) in or on specified premises; or

(d) during a specified period in or on specified premises.

AUSFTA verification powers to be used only as authorised

This Subdivision does not allow:

(a) an officer who is authorised to enter premises and exercise AUSFTA verification powers during a specified period to enter the premises or exercise the powers at a time outside that period; or

(b) an officer who is authorised to enter specified premises and to exercise AUSFTA verification powers in or on the premises to enter other premises or to exercise the powers in or on the other premises.

A verification officer may enter premises, and exercise AUSFTA verification powers in or on the premises, to the extent that it is reasonably necessary for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

Occupier’s consent required

However, a verification officer must not enter premises under this section unless the occupier of the premises consents to the officer entering the premises and exercising AUSFTA verification powers in or on the premises.

Before obtaining a consent under subsection (2), a verification officer must give to the occupier of the premises a written notice stating:

(a) that the officer wishes to enter the premises and exercise AUSFTA verification powers in or on the premises; and

(b) the period during which the officer wishes to exercise the powers; and

(c) the name of any US customs official who the officer proposes will accompany the officer.

Before obtaining a consent under subsection (2), a verification officer must tell the occupier of the premises that the occupier may refuse consent.

An occupier of premises may express a consent to be limited to entry to the premises, and to the exercise of AUSFTA verification powers in or on the premises, during a particular period unless the occupier withdraws the consent before the end of that period.

An occupier’s consent that is not so limited has effect in relation to any entry to the premises, and to any exercise of AUSFTA verification powers in or on the premises, until the occupier withdraws the consent.

Verification officer must leave premises if consent withdrawn

A verification officer must leave the premises if the occupier withdraws the consent.

Consent to be voluntary

A consent of a person does not have effect for the purposes of this section unless it is voluntary.

Consent, or withdrawal of consent, to be in writing

A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.

Notice setting out the occupier’s rights and obligations

Before exercising AUSFTA verification powers in respect of premises, a verification officer must give to the occupier of the premises a written notice setting out the occupier’s rights and obligations under this Subdivision.

Production of identity card

Before a verification officer enters premises or exercises any AUSFTA verification powers, he or she must produce his or her identity card to the occupier.

In entering premises and exercising AUSFTA verification powers, a verification officer may be accompanied by one or more US customs officials, but only if the officer obtains the consent of the occupier of the premises to those officials accompanying the officer.

Before obtaining such a consent, a verification officer must tell the occupier of the premises that the occupier may refuse consent.

US customs officials must leave premises if consent withdrawn

The US customs officials must leave the premises if the occupier withdraws the consent.

Consent to be voluntary

A consent of a person does not have effect for the purposes of this section unless it is voluntary.

Consent, or withdrawal of consent, to be in writing

A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.

If a verification officer is in or on premises that he or she entered under this Subdivision, the officer may request the occupier to answer any questions put by the officer.

The occupier is not obliged to comply with the request.

If a verification officer is in or on premises that he or she entered under this Subdivision, then, while the officer is entitled to remain in or on the premises, the officer may request the occupier to provide reasonable assistance to the officer for the purpose of the officer’s exercise of AUSFTA verification powers in or on the premises.

The occupier is not obliged to comply with the request.

This section applies if:

(a) as a result of equipment being operated as mentioned in section 214BAC:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

Compensation is payable out of money appropriated by the Parliament.

For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or addition of other data.

Schedule 2—Agricultural and veterinary chemicals amendments

This Division limits for a period the use the NRA can make of information given to it:

(a) in connection with an application under section 10 or 27 relating to:

(i) approval of an active constituent for a chemical product; or

(ii) registration of a chemical product; or

(iii) approval of a label for a container for a chemical product; or

(b) under section 161 in connection with a registered chemical product.

During the period, the NRA cannot use the information for granting another application, or for a reconsideration of an approval or registration, unless:

(a) the NRA is given a written statement made by a person who can authorise the use of the information consenting to the use; or

(b) certain other conditions are met.

The object of limiting use of the information in this way is to encourage innovation by making it easier for a person who made an investment in finding out the information to get a return on that investment.

During the period described in an item of the table, the NRA must not use information described in the item for a purpose described in the item.

This section applies only to information given to the NRA:

(a) in connection with an application made after the commencement of this section; or

(b) under section 161 in connection with a chemical product that was registered as a result of an application made after the commencement of this section.

The use of information in contravention of subsection (1) for making a decision does not affect the validity of the decision.

An action or proceeding does not lie against any of the following for any loss directly or indirectly sustained because of the use of information in contravention of subsection (1):

(a) the Commonwealth;

(b) the NRA;

(c) a person who is or has been:

(i) a director of the NRA; or

(ii) the Chief Executive Officer of the NRA; or

(iii) a delegate of the NRA; or

(iv) a member of the staff of the NRA.

Section 34C does not prevent the NRA from using information for making a decision:

(a) under section 14 or 29 about an application; or

(b) under section 34 about a reconsideration of an approval or registration;

if a condition in subsection (2), (3), (4), (5) or (6) of this section is met.

Evidence of consent for use

One condition is that the applicant, an approved person or the interested person for the approval or registration gives the NRA a written statement by the authorising party of that party’s consent to the NRA using the information for making the decision. This condition is met even if the authorising party:

(a) later states that it has not consented; or

(b) withdraws the consent (whether before or after the NRA is given the statement of consent).

Use in the public interest

Another condition is that the NRA is satisfied, having regard to the criteria (if any) prescribed by the regulations, that the use of the information is in the public interest.

Information does not favour the applicant or interested person

Another condition is that:

(a) the decision relates to:

(i) a proposed or existing approval of an active constituent for a proposed or existing chemical product; or

(ii) a proposed or existing registration of a proposed or existing chemical product; and

(b) the information meets a condition in paragraph 160A(4)(b) or (c) or 161(2)(b) or (c) (which are about showing that use or dealing with the product may have adverse effects or that the product may be ineffective), whether or not the information was given to the NRA under section 160A or 161.

Identical information whose use is not limited

Another condition is that the NRA is satisfied that there is identical information, or information to the same effect, whose use is not prevented by section 14B or 34C or Part 3.

Information given to NRA in connection with certain applications

Another condition is that the application mentioned in subsection 34C(1) was one of the following:

(a) an application for approval, as an active constituent for a chemical product, of a substance that was a previously endorsed active constituent on the commencement of this Division;

(b) an application for the variation of the relevant particulars or conditions of the approval of an active constituent for a chemical product;

(c) an application for the registration of a companion animal product each active constituent for which was a previously endorsed active constituent at the time of the preliminary assessment of the application under section 11A;

(d) an application for variation of the relevant particulars or conditions of the registration of a companion animal product;

(e) an application for the approval of a label for a container for a companion animal product each active constituent of which was a previously endorsed active constituent at the time of the preliminary assessment of the application under section 11A;

(f) an application for variation of the relevant particulars or conditions of the approval of a label for a container for a companion animal product.

This section applies if the NRA is satisfied under subsection 34D(3) that it is in the public interest to use information that section 34C would otherwise prohibit the NRA from using for making a decision:

(a) under section 14 or 29 about an application; or

(b) under section 34 about a reconsideration of an approval or registration.

As soon as practicable after becoming satisfied, the NRA must give written notice of its satisfaction to:

(a) the applicant, an approved person or the interested person for the approval or registration; and

(b) the person whom the NRA believes is the authorising party for the information.

Section 168 provides for additional matters to be included in the notice.

The NRA must not make the decision using the information before the end of 28 days after the day on which the notice is given.

However, subsections (3) and (4) do not apply if:

(a) the NRA believes it is necessary to make the decision before the end of 28 days after the notice is given, to prevent imminent risk to public health or occupational health or safety; and

(b) states that belief in the notice.

Subsection 34C(1) prohibits the NRA from using, during the period described in an item of the following table, information that:

(a) was given to the NRA by the applicant or an approved person in connection with an application described in the item; and

(b) was given as required by the NRA or section 160A; and

(c) was relied on by the NRA to grant the application.

The period starts when the application was granted.

Extension of 8-year limits

The period mentioned in item 1 or 2 of the table in subsection (1) in relation to:

(a) an application for an approval of an active constituent (a key constituent); or

(b) an application for registration of a chemical product containing an active constituent (also a key constituent) that had not been approved when the application was acknowledged; or

(c) an application for approval of a label for a container for a chemical product containing an active constituent (also a key constituent) that had not been approved when the application was acknowledged;

is extended by 1 year for each 5 distinct uses that meet the requirements in subsections (3), (4) and (5).

(3) The first requirement is that the uses are uses of a chemical product (an extension product) for which the following conditions are met:

(a) the key constituent is an active constituent for the product;

(b) the product was registered as a result of an application that:

(i) was made by the applicant mentioned in subsection (1); and

(ii) was acknowledged before the approval of the key constituent.

The second requirement is that each of the uses is included in an approved label for a container for an extension product as a result of an application that:

(a) is for:

(i) the approval of the label; or

(ii) the variation of the relevant particulars or conditions of approval of the label; and

(b) was made by the applicant mentioned in subsection (1) or by the interested person in relation to the approval of the key constituent; and

(c) was acknowledged before the end of 6 years after the date of the approval of the key constituent as a result of an application by the applicant mentioned in subsection (1).

The third requirement is that all 5 of the uses are prescribed by the regulations at the latest time an application described in subsection (4) is granted.

However, the period mentioned in item 1 or 2 of the table in subsection (1) cannot be extended so that it exceeds 11 years.

This section has effect if:

(a) the NRA made a decision under subsection 14(1) or 29(1) to grant an application made after the commencement of this section; and

(b) in making the decision, the NRA relied on advice given by a person, body or Government the NRA consulted under Agricultural and Veterinary Chemicals (Administration) Act 1992.section 8 or 8A of the

The NRA must cause to be published a summary of the advice.

The summary must:

(a) identify the information that the person, body or Government relied on in giving the advice; and

(b) include the matters (if any) prescribed by the regulations.

(1) This Division deals with determining the omission from the Register of geographical indications (Australian GIs) determined under Division 4.

The grounds for omission are that an Australian GI is not in use (see Subdivision B) or is no longer required (see Subdivision C).

(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 Corporation for the making of such an application.

The Corporation may waive the fee.

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

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.

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:

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

(b) that the GI has not been used during the period of 3 years before the date of the notice under section 40ZAE (see subsection (3));

(c) that no special circumstances exist in relation to the region or locality indicated by the GI that would preclude the making of a determination to omit the GI from the Register (see subsection (4)).

Meaning of GI not been used

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

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

(b) wine originating in the region or locality indicated by the GI has not been described and presented for sale within Australia, or for export, using that GI.

Meaning of special circumstances

(4) For the purposes of paragraph (2)(c), special circumstances exist if:

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

(b) as a result of being so affected, there has not been a production of wine for commercial use originating in the region or locality indicated by the GI during the period of 3 years immediately before the date of the notice under section 40ZAE.

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

(2) Despite paragraph 29(1)(d) and subsection 29(2) of the Administrative Appeals Tribunal Act 1975, an application to the Tribunal for review of a determination under section 40ZAF must be made within 28 days after notice of the determination is published in accordance with section 40ZAG.

(3) Despite subsection 29(8) of the Administrative Appeals Tribunal Act 1975, an application under subsection 29(7) of that Act in respect of a determination under section 40ZAF must be made before the time fixed by subsection (2) of this section ends.

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

(a) if an application is made to the Administrative Appeals Tribunal under section 40ZAH for review of the determination—as soon as practicable after the decision of the Tribunal on the review is given; or

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

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

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

(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) a declared winemakers’ organisation (if any);

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

(c) the organisation or organisations representing winemakers in a State or Territory wholly or partly covered by the region or locality in Australia indicated by the GI;

(d) the organisation or organisations representing growers of wine grapes in a State or Territory wholly or partly covered by the region or locality in Australia indicated by the GI.

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

The Corporation may waive the fee.

If:

(a) the application is not accompanied by the fee, and the fee is not waived by the Corporation; or

(b) the application is not accompanied by the statements referred to in subsection (2);

then the application is taken never to have been made.

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).

(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.

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 Chairperson of the Corporation.

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

Schedule 4—Life insurance amendments

Life Insurance Act 1995

1 After Part 2A

Insert:

A performer’s right of attribution of performership in respect of a recorded performance continues in force until copyright ceases to subsist in the recorded performance.

A performer’s right not to have performership falsely attributed in respect of a recorded performance continues in force until copyright ceases to subsist in the recorded performance.

A performer’s right of integrity of performership in respect of a recorded performance continues in force until the performer dies.

If a performer in a live performance or recorded performance dies, the performer’s moral rights in respect of the performance may be exercised and enforced by his or her legal personal representative.

If the affairs of a performer in a live performance or recorded performance are lawfully administered by another person (except under a law for the relief of bankrupt or insolvent debtors), the performer’s moral rights may be exercised and enforced by the person administering his or her affairs.

Subject to this section, a moral right in respect of a live performance or recorded performance is not transmissible by assignment, by will, or by devolution by operation of law.

If there are 2 or more performers in a live performance or recorded performance, then the performers may enter into a written co-performership agreement by which each of them agrees not to exercise his or her right of integrity of performership in respect of the live performance or recorded performance, as the case may be, except jointly with the other performer or performers.

A co-performership agreement has effect according to its terms.

46 Before section 195AO

Insert:

This section has effect subject to this Subdivision.

A person infringes a performer’s right of integrity of performership in respect of a live performance or recorded performance if the person subjects the performance, or authorises the performance to be subjected, to derogatory treatment.

If a live performance, as affected by derogatory treatment, has become a recorded performance, then a person infringes a performer’s right of integrity of performership in respect of the live performance if the person does any of the following in respect of the recorded performance:

(a) makes a copy record of the recorded performance;

(b) communicates the recorded performance to the public;

(c) causes the recorded performance to be heard in public.

If a recorded performance has been subjected to derogatory treatment, then a person infringes a performer’s right of integrity of performership in respect of the recorded performance if the person does any of the following in respect of the recorded performance (as affected by the derogatory treatment):

(a) makes a copy record of the recorded performance;

(b) communicates the recorded performance to the public;

(c) causes the recorded performance to be heard in public.

A person who does, or authorises the doing of, an attributable act in respect of a live performance or recorded performance does not, because a performer in the performance is not identified, infringe the performer’s right of attribution of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances not to identify the performer.

The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify a performer in a live performance or recorded performance include the following:

(a) the nature of the performance;

(b) the purpose for which the performance is used;

(c) the manner in which the performance is used;

(d) the context in which the performance is used;

(e) any practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;

(f) any practice contained in a voluntary code of practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;

(g) any difficulty or expense that would have been incurred as a result of identifying the performer;

(h) whether the performer participated in the performance in the course of the employment of the performer.

A person does not, by subjecting a live performance or recorded performance to derogatory treatment, or by authorising a live performance or recorded performance to be subjected to derogatory treatment, infringe a performer’s right of integrity of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances to subject the performance to the treatment.

The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances to subject a live performance or recorded performance to derogatory treatment include the following:

(a) the nature of the performance;

(b) the purpose for which the performance is used;

(c) the manner in which the performance is used;

(d) any practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;

(e) any practice contained in a voluntary code of practice, in the industry in which the performance is used, that is relevant to the performance or to the use of the performance;

(f) whether the performer who alleges that the treatment was derogatory participated in the performance in the course of the employment of the performer;

(g) whether the treatment was required by law or was otherwise necessary to avoid a breach of any law.

A person who:

(a) does an act referred to in subsection 195AXC(3) in respect of a live performance that has been subjected to derogatory treatment; or

(b) does an act referred to in subsection 195AXC(4) in respect of a recorded performance that has been subjected to derogatory treatment;

does not, by doing that act, infringe a performer’s right of integrity of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances to do that act.

A performer’s moral right in respect of a live performance or recorded performance is infringed by a person who imports an article into Australia for the purpose of dealing with the article if the importer knew, or ought reasonably to have known, that, if the article had been made in Australia, it would have been an infringing article.

In subsection (1):

dealing with does not include distributing except where the proposed distribution is for the purposes of sale.

A performer’s moral right in respect of a live performance or recorded performance is infringed by a person who, in Australia, deals with an article if the person knew, or ought reasonably to have known, that the article was an infringing article or, in respect of an imported article, would, if it had been made in Australia, have been an infringing article.

In subsection (1):

deals with does not include:

(a) distributes, except where the distribution is for the purposes of sale; or

(b) deals with by means of a dealing covered by paragraph 195AHB(5)(b) or (6)(b).

It is not an infringement of a performer’s moral right in respect of a live performance or recorded performance to do, or omit to do, something if the act or omission is within the scope of a written consent given by the performer or a person representing the performer.

A consent may be given in relation to all or any acts or omissions occurring before or after the consent is given.

A consent may be given in relation to:

(a) a specified performance or specified performances occurring before the consent is given; or

(b) a performance or performances of a particular description:

(i) that have not yet occurred; or

(ii) that are in the course of occurring.

A consent may be given by an employee for the benefit of his or her employer in relation to all performances in which the employee is to be a performer in the course of his or her employment.

A consent given for the benefit of the owner or prospective owner of copyright in the recorded performance or recorded performances to which the consent relates is presumed, unless the contrary intention appears in the consent instrument, to extend to his or her licensees and successors in title, and to any persons who are authorised by the owner or prospective owner, or by such a licensee or successor in title, to do acts comprised in the copyright.

Subsections (2) to (5), inclusive, do not limit the operation of subsection (1).

If a person applies duress to a performer or, if a performer is represented by a person, to the person representing the performer, in connection with the giving of a consent for the purposes of section 195AXJ, the consent does not have any effect.

If:

(a) a person makes a statement to another person; and

(b) the person makes the statement knowing:

(i) that the statement is false or misleading in a material particular; or

(ii) that a matter or thing has been omitted from the statement without which the statement is false or misleading in a material particular; and

(c) the person makes the statement with the intention of persuading the other person to give, or not to give, a consent for the purposes of section 195AXJ;

the consent does not have any effect.

In this Subdivision:

action means a proceeding of a civil nature between parties, and includes a counterclaim.

In the application of this Subdivision in relation to a counterclaim, references to the defendant are taken to be references to the plaintiff.

Subject to section 203, the relief that a court may grant in an action for an infringement of any of a performer’s moral rights in respect of a live performance or recorded performance includes any one or more of the following:

(a) an injunction (subject to any terms that the court thinks fit);

(b) damages for loss resulting from the infringement;

(c) a declaration that a moral right of the performer has been infringed;

(d) an order that the defendant make a public apology for the infringement;

(e) an order that any false attribution of performership, or derogatory treatment, of the performance be removed or reversed.

In exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following:

(a) whether the defendant was aware, or ought reasonably to have been aware, of the performer’s moral rights;

(b) the effect on the performer’s reputation resulting from any damage to the performance;

(c) the number, and categories, of people who have heard the performance;

(d) anything done by the defendant to mitigate the effects of the infringement;

(e) if the moral right that was infringed was a right of attribution of performership—any cost or difficulty that would have been associated with identifying the performer;

(f) any cost or difficulty in removing or reversing any false attribution of performership, or derogatory treatment, of the performance.

In deciding whether or not to grant an injunction under subsection (1), the court must consider whether the parties have made any attempt to negotiate a settlement of the action and whether it should adjourn the hearing or further hearing of the action for the purpose of giving the parties an appropriate opportunity to negotiate a settlement, whether through a process of mediation or otherwise.

If, after the death of a performer, in respect of an act done in a live performance or recorded performance, damages are recovered under this section by the legal personal representative of the performer, those damages devolve as if they formed part of the performer’s estate and as if the right of action in respect of the doing of the act had subsisted, and had been vested in the performer, immediately before his or her death.

In an action brought under this Part for an infringement of a moral right in respect of a recorded performance, if copyright is presumed or proved to have subsisted in the recorded performance when the infringement is alleged to have occurred, then the moral right is presumed to have subsisted in the recorded performance at that time.

This section has effect subject to subsection 195ANA(3).

If a name purporting to be the name of a performer appears on a record embodying a performance so as to indicate that the person was a performer in the performance, then, in an action brought under this Part, the person whose name so appeared is, if it was his or her true name or a name by which he or she was commonly known, presumed, unless the contrary is established, to be a performer in the performance.

If a name purporting to be the name of a group of performers appears on a record embodying a performance so as to indicate that the group performed in the performance, then, in an action brought under this Part, the group whose name so appeared is, if it was a name by which the group was commonly known, presumed, unless the contrary is established, to have performed in the performance.

Subject to this section, this Part does not affect any right of action or other remedy, whether civil or criminal, in proceedings brought otherwise than under this Part.

Any damages recovered in proceedings brought under this Part are to be taken into account in assessing damages in proceedings brought otherwise than under this Part and arising out of the same event or transaction.

Any damages recovered in proceedings brought otherwise than under this Part are to be taken into account in proceedings brought under this Part and arising out of the same event or transaction.

The jurisdiction of the Supreme Court of a State or Territory in a matter arising under this Part is to be exercised by a single Judge of the Court.

Subject to subsection (3), a decision of a court of a State or Territory (however constituted) under this Part is final.

An appeal lies from a decision of a court of a State or Territory under this Part:

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court, to the High Court.

The Federal Court of Australia has jurisdiction with respect to matters arising under this Part.

The Federal Magistrates Court has jurisdiction with respect to matters arising under this Part.

57 Before section 195AZH

Insert:

This section applies to a live performance or recorded performance that has more than one performer.

A performer’s right of attribution of performership in respect of the performance is a right of the performer to be identified as a performer.

An act of false attribution of performership in respect of the performance infringes each performer’s right not to have performership falsely attributed.

The right of integrity of performership in respect of the performance is a right of each performer.

The consent of one performer to any act or omission affecting his or her moral rights in respect of the performance does not affect the moral rights of any other performer in respect of the performance.

Moral rights in respect of a live performance only subsist in a live performance that occurs after the commencement of this section.

Moral rights in respect of a recorded performance only subsist if the live performance concerned occurs after the commencement of this section.

The purpose of this Division is to limit the remedies that are available against carriage service providers for infringements of copyright that relate to the carrying out of certain online activities by carriage service providers. A carriage service provider must satisfy certain conditions to take advantage of the limitations.

This Division does not limit the operation of provisions of this Act outside this Division in relation to determining whether copyright has been infringed.

A carriage service provider must satisfy the relevant conditions set out in Subdivision D before the limitations in this section apply.

General limitations

For infringements of copyright that occur in the course of carrying out any of the categories of activities set out in Subdivision B, a court must not grant relief against a carriage service provider that consists of:

(a) damages or an account of profits; or

(b) additional damages; or

(c) other monetary relief.

Category specific limitations

For an infringement of copyright that occurs in the course of the carrying out of a Category A activity, the relief that a court may grant against a carriage service provider is limited to one or more of the following orders:

(a) an order requiring the carriage service provider to take reasonable steps to disable access to an online location outside Australia;

(b) an order requiring the carriage service provider to terminate a specified account.

For an infringement of copyright that occurs in the course of the carrying out of a Category B, C or D activity, the relief that a court may grant against a carriage service provider is limited to one or more of the following orders:

(a) an order requiring the carriage service provider to remove or disable access to infringing copyright material, or to a reference to infringing copyright material;

(b) an order requiring the carriage service provider to terminate a specified account;

(c) some other less burdensome but comparably effective non-monetary order if necessary.

Relevant matters

In deciding whether to make an order of a kind referred to in subsection (3) or (4), a court must have regard to:

(a) the harm that has been caused to the owner or exclusive licensee of the copyright; and

(b) the burden that the making of the order will place on the carriage service provider; and

(c) the technical feasibility of complying with the order; and

(d) the effectiveness of the order; and

(e) whether some other comparably effective order would be less burdensome.

The court may have regard to other matters it considers relevant.

This table sets out the conditions for each of the categories of activities.

Nothing in the conditions is to be taken to require a carriage service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1).

The regulations may provide that a carriage service provider is not liable for damages or any other civil remedy as a result of action taken in good faith to comply with a condition.

The regulations may provide civil remedies for conduct by relevant parties in relation to conditions.

The regulations may prescribe offences for conduct by persons issuing notices under the regulations, and prescribe penalties for offences against those regulations. The penalties must not exceed 50 penalty units.

Telecommunications Act 1997

192 At the end of section 115

Add:

(4) The rule in subsection (1) does not apply to an industry code made for the purposes of Copyright Act 1968.Division 2AA of Part V of the

Schedule 10—Broadcasting amendments

Broadcasting Services Act 1992

1 At the end of section 122

Add:

(5) The ABA must ensure that, at all times after the commencement of this subsection, there is in force under subsection (1) a standard that is, or has the same effect as, the standard in Broadcasting Services (Australian Content) Standard 1999 as in force on 4 August 2004.section 9 of the

(6) The ABA must ensure that, at all times after the commencement of this subsection, there is in force under subsection (1) a standard that is, or has the same effect as, the standard in Television Program Standard 23—Australian Content in Advertising as in force on 4 August 2004.section 5 of

[Minister’s second reading speech made in—

House of Representatives on 23 June 2004

Senate on 3 August 2004]

(110/04)