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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Trade
Practices Amendment (Country of Origin Representations) Bill
1998
No. ,
1998
(Customs and Consumer
Affairs)
A Bill for an Act to amend the
Trade Practices Act 1974, and for related purposes
9805020—747/6.4.1998—(50/97) Cat.
No. 97 2991 1 ISBN 0644 519746
Contents
Part 1—Insertion of new
Division 0644519746.html
Part 2—Consequential
amendments 0644519746.html
A Bill for an Act to amend the Trade Practices Act
1974, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Trade Practices Amendment (Country of
Origin Representations) Act 1998.
(1) Subject to subsections (2) and (3), this Act commences on the day on
which it receives the Royal Assent.
(2) Subject to subsection (3), Schedule 1 commences on a day to be fixed
by Proclamation.
(3) If Schedule 1 does not commence under subsection (2) within the period
of 6 months beginning on the day on which this Act receives the Royal Assent, it
commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Part
1—Insertion of new
Division
1 After Division 1 of Part
V
Insert:
This Division provides that certain country of origin representations
made about goods do not contravene section 52 (which deals with misleading or
deceptive conduct) or paragraph 53(eb) (which deals with false or misleading
representations as to place of origin).
If:
(a) a corporation makes a representation as to the country of origin of
goods; and
(b) the goods have been substantially transformed in that country;
and
(c) 50% or more of the cost of producing or manufacturing the goods (as
the case may be) is attributable to production or manufacturing processes that
occurred in that country; and
(d) the representation is not a representation to which section 65AC
(product of/produce of representations) or section 65AD (prescribed logo
representations) applies;
the corporation does not contravene section 52 or paragraph 53(eb) by
reason only of making the representation.
If:
(a) a corporation makes a representation that goods are the produce of a
particular country (whether the representation uses the words “product
of”, “produce of” or any other grammatical variation of the
word “produce”); and
(b) the country was the country of origin of each significant ingredient
or significant component of the goods; and
(c) all, or virtually all, processes involved in the production or
manufacture happened in that country;
the corporation does not contravene section 52 or paragraph 53(eb) by
reason only of making the representation.
(1) If:
(a) a corporation makes a representation as to the country of origin of
goods by means of a logo specified in regulations made under subsection (2);
and
(b) the goods have been substantially transformed in the country
represented by the logo as the country of origin of the goods; and
(c) the prescribed percentage of the cost of producing or manufacturing
the goods (as the case may be) is attributable to production or manufacturing
processes that occurred in that country;
the corporation does not contravene section 52 or paragraph 53(eb) by
reason only of making the representation.
(2) The regulations may, in relation to a specified logo, prescribe a
percentage in the range of 51% to 100% as the percentage applicable to goods for
the purposes of paragraph (1)(c).
(1) For the purposes of this Division, goods are substantially
transformed in a country if they undergo a fundamental change in that
country in form, appearance or nature such that the goods existing after the
change are new and different goods from those existing before the
change.
(2) Without limiting subsection (1), the regulations may prescribe changes
(whether in relation to particular classes of goods or otherwise) that are not
fundamental changes for the purposes of subsection (1).
For the purposes of this Division, the cost of producing or manufacturing
goods is to be worked out under Subdivision B.
In this Subdivision:
inner container includes any container into which goods are
packed, other than a shipping or airline container, pallet or other similar
article.
materials, in relation to goods, means:
(a) if the goods are unmanufactured raw products—those products;
and
(b) if the goods are manufactured goods—all matter or substances
used or consumed in the manufacture of the goods (other than matter or
substances that are treated as overheads); and
(c) in either case—the inner containers in which the goods are
packed.
The cost of producing or manufacturing goods means the sum of:
(a) the expenditure on materials in respect of the goods, worked out under
section 65AJ; and
(b) the expenditure on labour in respect of the goods, worked out under
section 65AK; and
(c) the expenditure on overheads in respect of the goods, worked out under
section 65AL.
Calculation of expenditure on materials
(1) Expenditure on materials in respect of goods means the cost of
materials:
(a) incurred by the producer or manufacturer of the goods (as the case may
be); and
(b) that are used in the production or manufacture of the goods;
and
(c) that has not been prescribed under paragraph (2)(a).
Regulations may prescribe materials that are not allowable
(2) The regulations may prescribe, for the purposes of subsection
(1):
(a) the cost of a particular material, or a part of such a cost, that is
not allowable in respect of goods, or classes of goods; and
(b) the manner of working out the cost of a material, or part of the
cost.
Calculation of expenditure on labour
(1) Expenditure on labour in respect of goods means the sum of each labour
cost:
(a) that is incurred by the producer or manufacturer of the goods (as the
case may be); and
(b) that relates to the production or manufacture of the goods;
and
(c) that can reasonably be allocated to the production or manufacture of
the goods; and
(d) that has not been prescribed under paragraph (2)(a).
Regulations may prescribe labour costs that are not
allowable
(2) The regulations may prescribe, for the purposes of subsection
(1):
(a) a particular labour cost, or a part of a labour cost, that is not
allowable in respect of goods, or classes of goods; and
(b) the manner of working out a labour cost, or part of the
cost.
Calculation of expenditure on overheads
(1) Expenditure on overheads in respect of goods means the sum of each
overhead cost:
(a) that is incurred by the producer or manufacturer of the goods (as the
case may be); and
(b) that relates to the production or manufacture of the goods;
and
(c) that can reasonably be allocated to the production or manufacture of
the goods; and
(d) that has not been prescribed under paragraph (2)(a).
Regulations may prescribe overhead costs that are not
allowable
(2) The regulations may prescribe, for the purposes of subsection
(1):
(a) a particular overhead cost, or a part of an overhead cost, that is not
allowable in respect of goods, or classes of goods; and
(b) the manner of working out an overhead cost, or part of the
cost.
(1) Subject to subsection (2), the regulations may prescribe rules for
determining the percentage of the total cost of production or manufacture of
goods attributable to production or manufacturing processes that occurred in a
particular country.
Note: Section 65AH deals with the cost of production or
manufacture of goods.
(2) Rules prescribed under subsection (1) must not discriminate (whether
favourably or unfavourably) between countries or classes of countries.
(1) If:
(a) proceedings are brought against a person in respect of section 52 or
paragraph 53(eb); and
(b) the person seeks to rely on a provision of this Division, or of a
regulation made under this Division, in the proceedings;
the person bears an evidential burden in relation to the matters set out in
the provision on which the person seeks to rely.
(2) In this section:
evidential burden, in relation to a matter, means the burden
of adducing or pointing to evidence that suggests a reasonable possibility that
the matter exists or does not exist.
Part
2—Consequential
amendments
2 Subsection 5(1)
Omit “Parts IV, IVA and V”, substitute “Part IV, Part IVA
and Part V (other than Division 1AA)”.
3 Subsection 6(3)
Omit “and 1A”, substitute “, 1A and 1AA”.
4 Subsection 6(4)
Omit “Division 1 of Part V (other than sections 53A, 55 and
61)”, substitute “Division 1 (other than sections 53A, 55 and 61)
and Division 1AA of Part V”.
5 At the end of section 52
Add:
Note: For rules relating to representations as to the
country of origin of goods, see Division 1AA (sections 65AA to
65AN).
6 At the end of section 53
Add:
Note: For rules relating to representations as to the
country of origin of goods, see Division 1AA (sections 65AA to
65AN).
7 Paragraph 75AS(b)
Omit “or 1A”, substitute “, 1A or 1AA”.
8 Subsection 86(2)
Omit “or 1A”, substitute “, 1A or 1AA”.
9 Paragraph 86A(1)(b)
Omit “or 1A”, substitute “, 1A or 1AA”.
10 Paragraph 86A(4)(b)
Omit “or 1A”, substitute “, 1A or 1AA”.
11 Paragraph 86A(5)(b)
Omit “or 1A”, substitute “, 1A or 1AA”.
12 Paragraph 86B(1)(b)
Omit “or 1A”, substitute “, 1A or
1AA”.
1 Subsection 7(3)
Repeal the subsection, substitute:
(3) Before the Governor-General appoints a person as a member of the
Commission or as Chairperson, the Minister must:
(a) be satisfied that the person qualifies for the appointment because of
the person’s knowledge of, or experience in, industry, commerce,
economics, law, public administration or consumer protection; and
(b) consider whether the person has knowledge of, or experience in, small
business matters; and
(c) if there is at least one fully-participating jurisdiction—be
satisfied that a majority of such jurisdictions support the
appointment.
2 Subsection 34(1)
Omit “Attorney-General”, substitute
“Minister”.
3 Subsection 87(1B)
After “Part”, insert “IV,”.
4 Subsection 163(3)
Repeal the subsection.
Note: Subsection 163(3) deals with procedures relating to
offence provisions which were repealed in 1989. The subsection no longer has any
effect.
Subsection 87(1B) of the Trade Practices Act 1974 as amended by item
3 applies to conduct in contravention of a provision of Part IV whether engaged
in before or after the commencement of that item.