US Free Trade Agreement Implementation Act 2004 (as amended by Act No. 154 of 2004), أستراليا, WIPO Lex

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بالإنكليزية US Free Trade Agreement Implementation Act 2004 (as amended by Act No. 154 of 2004)

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US Free Trade Agreement Implementation Act 2004 (as amended by Act No. 154 of 2004)

US Free Trade Agreement Implementation Act 2004

Act No. 120 of 2004 as amended

This compilation was prepared on 1 January 2005

[This Act was amended by Act No. 154 of 2004]

Amendments from Act No. 154 of 2004

[Schedule 1 (item 42) amended heading to Schedule 9 (item 118); Schedule 1 (items 43–48) amended Schedule 9 (item 118); Schedule 1 (items 49 and 50) amended Schedule 9 (item 119); Schedule 1 (item 51) added note to Schedule 9 (item 119(3)); Schedule 1 (item 52) amended heading to Schedule 9 (item 132); Schedule 1 (items 53–58) amended Schedule 9 (item 132); Schedule 1 (items 59 and 60) amended Schedule 9 (item 133); Schedule 1 (item 61) added note to Schedule 9 (item 133(3)) Schedule 1 (items 42 to 61) commenced immediately after 1 January 2005]

Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra

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Contents 1 Short title ......................................................................................7

2 Commencement .............................................................................7

3 Schedule(s)..................................................................................10

Schedule 1—Customs amendments 11

Part 1—US originating goods 11

Customs Act 1901 11

Part 2—Verification powers 26

Customs Act 1901 26

Schedule 2—Agricultural and veterinary chemicals amendments 36

Part 1—Limits on use of information 36

Agricultural and Veterinary Chemicals Code Act 1994 36

Part 2—Provisions relating to limits on use of information 46

Agricultural and Veterinary Chemicals (Administration) Act 1992 46

Agricultural and Veterinary Chemicals Code Act 1994 46

Part 3—Change of name from NRA to APVMA 52

Agricultural and Veterinary Chemicals Code Act 1994 52

Schedule 3—Australian geographical indications for wine amendments 53

Australian Wine and Brandy Corporation Act 1980 53

Schedule 4—Life insurance amendments 72

Life Insurance Act 1995 72

Schedule 5—Foreign acquisitions and takeovers amendments 79

Foreign Acquisitions and Takeovers Act 1975 79

Schedule 6—Commonwealth authorities and companies amendments 88

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iii

Commonwealth Authorities and Companies Act 1997 88

Schedule 7—Therapeutic goods amendments 90

Therapeutic Goods Act 1989 90

Schedule 8—Patents amendments 98

Patents Act 1990 98

Schedule 9—Copyright amendments 99

Part 1—Performers’ rights in sound recordings 99

Copyright Act 1968 99

Part 2—Performers’ moral rights 111

Copyright Act 1968 111

Part 3—Performers’ protection 137

Copyright Act 1968 137

Part 4—Copying and communicating broadcasts of performances 144

Copyright Act 1968 144

Part 5—Duration of copyright in photographs 149

Copyright Act 1968 149

Part 6—Duration of copyright in works and other subject-matter 154

Copyright Act 1968 154

Part 7—Electronic rights management information 159

Copyright Act 1968 159

Part 8—Criminal offences 165

Copyright Act 1968 165

Part 9—Encoded broadcasts 169

Copyright Act 1968 169

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Part 10—Reproductions 176

Copyright Act 1968 176

Part 11—Limitation on remedies available against carriage service providers 178

Copyright Act 1968 178

Telecommunications Act 1997 184

Schedule 10—Broadcasting amendments 185

Broadcasting Services Act 1992 185

US Free Trade Agreement Implementation Act 2004

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An Act to implement the Australia-United States Free Trade Agreement, and for other purposes

[Assented to 16 August 2004]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the US Free Trade Agreement Implementation Act 2004.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

16 August 2004

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Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

2. Schedule 1 The later of: (a) 1 January 2005; and (b) the day on which the Australia-United

States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

The Minister for Trade must announce by notice in the Gazette the day on which the Agreement comes into force for Australia.

3. Schedule 2, Parts 1 and 2

At the same time as the provisions covered by table item 2.

4. Schedule 2, Part 3

The later of: (a) immediately after the commencement of

Parts 1 and 2 of Schedule 2 to this Act; and

(b) immediately after the commencement of item 1 of Schedule 1 to the Agricultural and Veterinary Chemicals Legislation Amendment (Name Change) Act 2004.

However, the provision(s) do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur.

5. Schedules 3 to 5

At the same time as the provisions covered by table item 2.

6. Schedule 6 The day on which this Act receives the Royal Assent.

16 August 2004

7. Schedule 7 At the same time as the provisions covered by table item 2.

8. Schedule 8 The day on which this Act receives the Royal Assent.

16 August 2004

9. Schedule 9, Part 1

1 January 2005. 1 January 2005

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Commencement information

Column 1

Provision(s)

10. Schedule 9, Part 2

11. Schedule 9, Parts 3 and 4

12. Schedule 9, items 107 to 112

Column 2

Commencement

The day on which the WIPO Performances and Phonograms Treaty, done at Geneva on 26 December 1996, comes into force for Australia.

The Minister administering the Copyright Act 1968 must announce by notice in the Gazette the day on which the Treaty comes into force for Australia.

The earlier of the following times: (a) the time at which the provisions covered

by table item 2 commence; (b) the time at which the provisions covered

by table item 10 commence.

(Parts 3 and 4 of Schedule 9 still commence even if one of the times mentioned in paragraph (a) or (b) does not occur.)

1 January 2005.

Column 3

Date/Details

1 January 2005

13. Schedule 9, item 113

The day on which this Act receives the Royal Assent.

16 August 2004

14. Schedule 9, items 114 to 119

1 January 2005. 1 January 2005

15. Schedule 9, item 120

At the same time as the provisions covered by table item 2. However, if that time is the same time as the time at which the provisions covered by table item 12 commence, then item 120 commences immediately after those provisions

16. Schedule 9, item 121

At the same time as the provisions covered by table item 2.

17. Schedule 9, item 122

At the same time as the provisions covered by table item 2. However, if that time is the same time as the time at which the provisions covered by table item 12 commence, then item 122 commences immediately after those provisions

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Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

18. Schedule 9, items 123 to 166

At the same time as the provisions covered by table item 2.

19. Schedule 9, item 167

The day on which this Act receives the Royal Assent.

16 August 2004

20. Schedule 9, items 168 to 192

At the same time as the provisions covered by table item 2.

21. Schedule 10 The day on which this Act receives the Royal Assent.

16 August 2004

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

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.

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Customs amendments Schedule 1 US originating goods Part 1

Schedule 1—Customs amendments

Part 1—US originating goods

Customs Act 1901

1 After Division 1B of Part VIII

Insert:

Division 1C—US originating goods

Subdivision A—Preliminary

153Y Simplified outline

The following is a simplified outline of this Division:

• This Division defines US originating goods. Preferential rates of customs duty under the Customs Tariff Act 1995 apply to US originating goods that are imported into Australia.

• Subdivision B provides that goods are US originating goods if they are wholly obtained or produced entirely in the US.

• Subdivision C provides that goods are US originating goods if they are produced entirely in the US, or in the US and Australia, exclusively from originating materials.

• Subdivision D sets out when goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from non-originating materials and originating materials, are US originating goods.

• Subdivision E sets out when goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from

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non-originating materials and originating materials, are US originating goods.

• Subdivision F sets out when accessories, spare parts or tools (imported with other goods) are US originating goods.

• Subdivision G deals with how the packaging materials or containers in which goods are packaged affects whether the goods are US originating goods.

• Subdivision H deals with how the consignment of goods affects whether the goods are US originating goods.

153YA Interpretation

Definitions

(1) 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.

Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.

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.

Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 30. In 2004 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world-wide web site.

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

fuel has its ordinary meaning.

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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.

Example: This example illustrates goods produced from originating materials and non-originating materials.

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Schedule 1 Customs amendments Part 1 US originating goods

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.

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Customs amendments Schedule 1 US originating goods Part 1

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

(3) 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.

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

Regulations

(5) 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.

Subdivision B—Goods wholly obtained or produced entirely in the US

153YB Goods wholly obtained or produced entirely in the US

(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:

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Schedule 1 Customs amendments Part 1 US originating goods

(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.

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Customs amendments Schedule 1 US originating goods Part 1

Subdivision C—Goods produced entirely in the US or in the US and Australia exclusively from originating materials

153YC Goods produced entirely in the US or in the US and Australia exclusively from originating materials

Goods are US originating goods if they are produced entirely in the US, or entirely in the US and Australia, exclusively from originating materials.

Subdivision D—Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials

153YD Simplified outline

The following is a simplified outline of this Subdivision:

• This Subdivision sets out when goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from non-originating materials and originating materials, are US originating goods.

• The goods may be US originating goods under section 153YE (which applies to all goods except clothing and textiles).

• The goods may also be US originating goods under section 153YF (which applies only to goods that are chemicals, plastics or rubber).

153YE Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials

(1) Goods are US originating goods if:

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(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

First requirement

(2) 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)).

Note 1: Paragraph (2)(b) relates to Article 5.2 (De Minimis) of the Agreement.

Note 2: The value of the non-originating materials is to be worked out in accordance with the regulations: see subsection 153YA(2).

(3) 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

(4) 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.

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The second requirement is that the goods satisfy that regional value content requirement.

(5) 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.

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

Third requirement

(7) 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

(8) 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).

Note 1: Paragraph (8)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement.

Note 2: Subsection (8) operates in a recursive manner: a non-originating material may satisfy the transformation test in its own right, or it may satisfy it because each non-originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non-originating material used to produce the material does so), and so on.

153YF Goods that are chemicals, plastics or rubber

Goods are US originating goods if:

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(a) 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

(b) they are goods that are classified to any of Chapters 28 to 40 of the Harmonized System; and

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

(d) before the tariff classifications in column 2 of that table in relation to Chapter 28 or 39 of the Harmonized System, the regulations specify particular rules in column 3 of that table; and

(e) those rules apply in relation to the final classification for the goods; and

(f) the goods satisfy those rules.

Subdivision E—Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non-originating materials

153YG Simplified outline

The following is a simplified outline of this Subdivision:

• This Subdivision sets out when goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non-originating materials only, or from non-originating materials and originating materials, are US originating goods.

• The goods may be US originating goods under section 153YH (which applies to all clothing and textiles).

• The goods may also be US originating goods under section 153YI (which applies only to clothing and textiles classified to Chapter 62 of the Harmonized System).

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153YH Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non-originating materials

(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

Note: Subsection (5) sets out a qualification for goods put up in a set for retail sale.

First requirement

(2) 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)).

Note: Paragraph (2)(b) relates to paragraphs 6 and 7 (De Minimis) of Article 4.2 of the Agreement.

(3) 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

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(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

(4) 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

(5) 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:

(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.

Note: The value of the goods in the set is to be worked out in accordance with the regulations: see subsection 153YA(2).

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

Example: A skirt and a belt are put up in a set for retail sale. The skirt and the belt have been classified under Rule 3 of the Interpretation Rules according to the tariff classification applicable to skirts.

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

(7) A non-originating material satisfies the transformation test if:

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(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

Note 1: Paragraph (7)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement.

Note 2: Subsection (7) operates in a recursive manner: a non-originating material may satisfy the transformation test in its own right, or it may satisfy it because each non-originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non-originating material used to produce the material does so), and so on.

153YI Goods that are clothing and textiles classified to Chapter 62 of the Harmonized System

Goods are US originating goods if: (a) 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

(b) they are goods that are classified to Chapter 62 of the Harmonized System; and

Chapter 62 that is set out in the Schedule 2 tariff table; or

(ii) in the case of goods that are classified to subheading 6205.20 or 6205.30 of Chapter 62 of the Harmonized System—the goods satisfy the subheading rule for that subheading that is set out in the Schedule 2 tariff table.

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Subdivision F—Other US originating goods

153YJ Standard accessories, spare parts and tools

(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.

(2) 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.

Note: The value of the accessories, spare parts or tools is to be worked out in accordance with the regulations: see subsection 153YA(2).

Subdivision G—Packaging materials and containers

153YK Packaging materials and containers

(1) 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).

(2) 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.

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Note: The value of the packaging material or container is to be worked out in accordance with the regulations: see subsection 153YA(2).

Subdivision H—Consignment

153YL Consignment

(1) 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).

(2) This section applies despite any other provision of this Division.

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Schedule 1 Customs amendments Part 2 Verification powers

Part 2—Verification powers

Customs Act 1901

2 At the end of subsection 4C(1)

Add “or is a verification officer for the purposes of Subdivision JA of Division 1 of Part XII”.

3 Paragraph 4C(2)(b)

Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.

4 Subsection 4C(3)

Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.

5 Subsection 4C(5)

Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.

6 After Division 4A of Part VI

Insert:

Division 4B—Exportation of textile and clothing goods to the US

126AE Authorised officer may request records or ask questions

(1) If textile and clothing goods are exported to the US, an authorised officer may request a person who:

(a) is the exporter or producer of the goods; or (b) is involved in the transportation of the goods from Australia to

the US;

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to produce particular records, or to answer questions put by the officer, in relation to the export, production or transportation of the goods.

(2) The person is not obliged to comply with the request.

Disclosing records or answers to US

(3) An authorised officer may disclose any records so produced, or disclose any answers to such questions, to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.

Definitions

(4) In this section:

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

Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.

Harmonized System has the same meaning as in section 153YA.

textile and clothing goods means goods that are classified to: (a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of

Chapter 42 of the Harmonized System; or (b) any of Chapters 50 to 63 of the Harmonized System; or (c) heading 7019 of Chapter 70 of the Harmonized System; or (d) subheading 9409.90 of Chapter 94 of the Harmonized

System.

US means the United States of America.

US customs official means a person representing the customs administration of the US.

7 Subdivision J of Division 1 of Part XII (heading)

Repeal the heading, substitute:

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Subdivision J—General powers to monitor and audit

8 After Subdivision J of Division 1 of Part XII

Insert:

Subdivision JA—Powers to monitor and audit— Australia-United States Free Trade Agreement

214BAA Simplified outline

The following is a simplified outline of this Subdivision:

• This Subdivision allows certain officers (verification officers) to enter premises, and to exercise certain powers (AUSFTA verification powers) in or on the premises, for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.

• However, verification officers may only enter premises under this Subdivision with the occupier’s consent.

• In entering premises and exercising AUSFTA verification powers, verification officers may be accompanied by US customs officials, but only with the occupier’s consent.

214BAB Definitions

In this Subdivision:

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

Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.

AUSFTA verification powers has the meaning given by section 214BAC.

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Harmonized System has the same meaning as in section 153YA.

occupier of premises includes a person who is apparently in charge of the premises.

textile and clothing goods means goods that are classified to: (a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of

System.

US means the United States of America.

US customs official means a person representing the customs administration of the US.

verification officer means a person authorised under section 214BAD to enter premises and to exercise AUSFTA verification powers.

214BAC AUSFTA verification powers

(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);

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(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.

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214BAD Appointment of verification officers

(1) 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

(2) 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

(3) 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

(4) 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.

214BAE Verification officers may enter premises and exercise AUSFTA verification powers with consent

(1) 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.

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Occupier’s consent required

(2) 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.

(3) 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

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

(5) 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.

(6) 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

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

Consent to be voluntary

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

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Consent, or withdrawal of consent, to be in writing

(9) 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

(10) 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

(11) 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.

214BAF US customs officials may accompany verification officers

Occupier’s consent required

(1) 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.

(2) 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

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

Consent to be voluntary

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

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Consent, or withdrawal of consent, to be in writing

(5) 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.

214BAG Availability of assistance in exercising AUSFTA verification powers

In entering premises and exercising AUSFTA verification powers, a verification officer may obtain such assistance as is necessary and reasonable in the circumstances.

214BAH Verification officer may ask questions

(1) 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.

(2) The occupier is not obliged to comply with the request.

214BAI Verification officer may ask for assistance

(1) 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.

(2) The occupier is not obliged to comply with the request.

214BAJ Verification officer may disclose information to US

A verification officer may disclose any information obtained in exercising AUSFTA verification powers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.

214BAK Operation of electronic equipment at premises

A person may operate electronic equipment at premises in order to exercise a power under this Subdivision only if he or she believes on

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reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

214BAL Compensation for damage to electronic equipment

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purposes of subsection (1):

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

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Schedule 2—Agricultural and veterinary chemicals amendments

Part 1—Limits on use of information

Agricultural and Veterinary Chemicals Code Act 1994

1 After Division 4 of Part 2 of the Schedule

Insert:

Division 4A—Limits on use of information

Subdivision A—Preliminary

34B Explanation of Division

(1) 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.

(2) 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.

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(3) 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.

Subdivision B—Limits on use of information

34C NRA must not use some information during some periods for some purposes

(1) 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.

Limits on use of information

The NRA must not use this During this period: For this purpose: information:

1 Information that the applicant or an approved person gives the NRA: (a) in connection with an

application under section 10 or 27; and

(b) before the NRA makes a preliminary assessment under section 11A or 28A of the application

2 Information that the applicant or an approved person gives the NRA: (a) in connection with an

application under section 10 or 27; and

(b) as required by the NRA or section 160A

The period: (a) starting when the

information is given; and

(b) ending when the NRA makes the preliminary assessment

The period: (a) starting when the NRA

makes a preliminary assessment under section 11A or 28A of the application; and

(b) ending when the NRA treats the application as having been withdrawn or grants or refuses the application

Making a decision under section 14, 29 or 34 (except a decision on the application)

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Limits on use of information

The NRA must not use this information:

During this period: For this purpose:

3 Information that: (a) was given to the NRA by

the applicant or an approved person in connection with an

The relevant period described in section 34F

Making a decision under section 14, 29 or 34

application under section 10 or 27; and

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

4 Information that the interested person for a registered chemical product gives the NRA under section 161 in connection with the product

The period: (a) starting when the person

gives the NRA the information; and

(b) ending 5 years later if the product is an agricultural chemical product or 3 years later if the product is a veterinary chemical product

Making a decision under section 14, 29 or 34

Note 1: Section 34D sets out exceptions to this subsection.

Note 2: Section 161 may require an interested person for an approved active constituent to give the NRA information in connection with the constituent, even though this table does not deal with that requirement.

(2) 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.

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

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(4) 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.

Subdivision C—Exceptions to limits on use of information

34D Exceptions

(1) 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

(2) 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).

Note: Chapter 7 of the Criminal Code creates offences relating to false and misleading statements and forgery.

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Use in the public interest

(3) 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.

Note: Section 34E sets out other rules that are relevant to the exception based on this condition.

Information does not favour the applicant or interested person

(4) 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

(5) 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

(6) 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;

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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.

34E Further rules about public interest exception

(1) 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.

(2) 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.

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

(4) 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.

(5) 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

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(b) states that belief in the notice.

Subdivision D—Period of limit on use of information

34F Period of limit on future use of information relied on in granting application

(1) 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.

Period for which the NRA must not use the information

Application Period

1 Application made under section 10 for approval of an active constituent (for a proposed or existing chemical product) that was not a previously endorsed active constituent on the commencement of this Division

8 years

2 Application made under section 10 for: (a) registration of a chemical product at least one of whose active

constituents was not a previously endorsed active constituent when the application was acknowledged; or

(b) approval of a label for a container for a chemical product at least one of whose active constituents was not a previously endorsed active constituent when the application was acknowledged

8 years

3 Application (except one covered by item 2) made under section 10 for: (a) registration of an agricultural chemical product; or (b) approval of a label for a container for an agricultural chemical

product

5 years

4 Application (except one covered by item 2) made under section 10 for: (a) registration of a veterinary chemical product; or (b) approval of a label for a container for a veterinary chemical

product

3 years

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Period for which the NRA must not use the information

Application Period

5 Application made under section 27 for variation of the relevant particulars or conditions of: (a) the registration of an agricultural chemical product; or (b) the approval of a label for a container for an agricultural

chemical product

5 years

6 Application made under section 27 for variation of the relevant particulars or conditions of: (a) the registration of a veterinary chemical product; or (b) the approval of a label for a container for a veterinary

chemical product

3 years

Note 1: This section has effect for the purposes of item 3 of the table in subsection 34C(1) (and not for any of the other items in that table).

Note 2: This section is not relevant to information if section 34D provides an exception to the prohibition in subsection 34C(1) on the NRA using the information.

Extension of 8-year limits

(2) 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:

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

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

(4) 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).

(5) 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.

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

Subdivision E—Ancillary provisions

34G Identifying information relied on in advice NRA relied on

(1) 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 section 8 or 8A of the Agricultural and Veterinary Chemicals (Administration) Act 1992.

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

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(3) 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.

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Part 2—Provisions relating to limits on use of information

Agricultural and Veterinary Chemicals (Administration) Act 1992

2 Paragraph 69EX(a)

After “Part”, insert “or after the commencement of Division 4A of Part 2 of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994”.

Agricultural and Veterinary Chemicals Code Act 1994

3 Section 3 of the Schedule

Insert:

acknowledge an application made under section 10 or 27 has the meaning given in the table:

Acknowledgment of an application

If: The application is acknowledged when:

1 The NRA gives notice under subsection The NRA gives the 11A(2) (applying of its own force or notice because of section 28A) that the application has passed a preliminary assessment and will be given a full evaluation in due course

2 The NRA is satisfied that defects in the The NRA becomes application have been rectified as required satisfied by a notice given under paragraph 11A(3)(a) (applying of its own force or because of section 28A)

3 The NRA starts to consider the application The NRA starts to after deferring the consideration under consider the subparagraph 11A(3)(b)(i) (applying of its application own force or because of section 28A)

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4 Section 3 of the Schedule

Insert:

authorising party for information means a person who would be entitled to bring an action for breach of an obligation of confidence if the information were disclosed by someone else to the NRA for the purposes of this Code without the person’s permission.

5 Section 3 of the Schedule

Insert:

companion animal product means a veterinary chemical product solely for administration or application to animals that:

(a) are not food-producing species; and (b) are not prescribed by the regulations.

6 Section 3 of the Schedule

Insert:

previously endorsed active constituent for a chemical product at a particular time means a substance that:

(a) before that time, had been approved or registered (however described) under a law of the Commonwealth or a State or Territory as an active constituent for a chemical product; or

(b) was an active constituent for a chemical product that, before that time, had been approved or registered (however described) under a law of the Commonwealth or a State or Territory as a chemical product;

whether or not the approval or registration was a result of an application by a particular person.

7 After section 11A of the Schedule

Insert:

11B NRA to publish summary of application

(1) As soon as practicable after an application is acknowledged, the NRA must cause to be published a summary of the application.

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(2) The summary must include the details relating to the application that are prescribed by the regulations (if any).

8 After section 14A of the Schedule

Insert:

14B NRA not to use information for registration of new agricultural chemical product to approve a similar product after disclosure

(1) This section applies if: (a) information was given to the NRA in connection with an

application made after the commencement of this section for registration of an agricultural chemical product (the first product) containing an active constituent that was not a previously endorsed active constituent at the time of registration of the first product; and

(b) the information related to the first product or the active constituent and a matter that:

(i) is described in paragraph 14(3)(e) (except subparagraph 14(3)(e)(iv)) or paragraph 14(3)(f); or

(ii) is prescribed by the regulations; and (c) the information was disclosed:

(i) by the Commonwealth, a State or a Territory; or (ii) by an authority of the Commonwealth, a State or a

Territory (including the NRA); or (iii) by anyone acting on behalf of the Commonwealth, a

State, a Territory or an authority of the Commonwealth, a State or a Territory; and

(d) the information was not publicly available before the disclosure; and

(e) as a result of the disclosure, the interested person, or an approved person, for an application for registration of an agricultural chemical product (the second product) that is the same as, or similar to, the first product, seeks to have the NRA use the information in granting the application.

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(2) For 10 years after the first day on which the first product was registered, the NRA must not use the information to grant the application for registration of the second product if:

(a) the registration of the second product would be commercially unfair; and

(b) the authorising party for the information does not consent to the use.

(3) The use of information in contravention of subsection (2) for granting the application for registration of the second product does not affect the validity of the grant or of the registration of the second product.

(4) 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 (2):

(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.

(5) This section has effect in addition to Division 4A.

9 Subparagraph 15(1)(a)(i) of the Schedule

Repeal the subparagraph, substitute: (i) the NRA also grants or has granted an application for

approval of each active constituent for the product; and

10 After section 28 of the Schedule

Insert:

28A Preliminary assessment of application

Section 11A applies to an application lodged under section 28 and compliance with subsection 28(1) in the same way as it applies to

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an application lodged under section 11 and compliance with subsection 11(1).

28B NRA to publish summary of application

(1) As soon as practicable after an application is acknowledged, the NRA must cause to be published a summary of the application, unless satisfied that the variation applied for does not relate to use of or dealing with a proposed or existing chemical product.

(2) The summary must include the details relating to the application that are prescribed by the regulations (if any).

11 Subsection 58(1) of the Schedule

After “in”, insert “section 14B, Division 4A of Part 2 and”.

12 After paragraph 167(1)(b) of the Schedule

Insert: (ba) a decision under section 28A that the application does not

comply with subsection 28(1); (bb) a decision under section 28A:

(i) to defer consideration of an application to vary the relevant particulars, or the conditions, of an approval or registration; or

(ii) to treat such an application as having been withdrawn; or (iii) to reject such an application;

(bc) a decision under section 28A refusing to extend a period;

13 After paragraph 167(1)(e) of the Schedule

Insert: (ea) a decision (the information decision) under subsection

34D(3) that the NRA is satisfied that it is in the public interest to use information that section 34C would otherwise prohibit the NRA from using for making a decision (the substantive decision): (a) under section 14 or 29 about an application; or (b) under section 34 about a reconsideration of an approval

or registration;

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14 After subsection 167(2) of the Schedule

Insert:

(2A) Despite paragraph (1)(ea), an application may not be made to the Administrative Appeals Tribunal for review of the information decision if the NRA stated in the notice of that decision given under section 34E that the NRA believed it was necessary to make the substantive decision before the end of 28 days after giving the notice, to prevent imminent risk to public health or occupational health or safety.

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Schedule 2 Agricultural and veterinary chemicals amendments Part 3 Change of name from NRA to APVMA

Part 3—Change of name from NRA to APVMA

Agricultural and Veterinary Chemicals Code Act 1994

15 Section 3 of the Schedule (definition of acknowledge)

Omit “NRA” (wherever occurring), substitute “APVMA”.

16 Section 3 of the Schedule (definition of authorising party)

Omit “NRA”, substitute “APVMA”.

17 Sections 11B and 14B of the Schedule

Omit “NRA” (wherever occurring), substitute “APVMA”.

Note: The headings to sections 11B and 14B of the Schedule are altered by omitting “NRA” and substituting “APVMA”.

18 Subparagraph 15(1)(a)(i) of the Schedule

Omit “NRA”, substitute “APVMA”.

19 Subsection 28B(1) of the Schedule

Omit “NRA”, substitute “APVMA”.

Note: The heading to section 28B of the Schedule is altered by omitting “NRA” and substituting “APVMA”.

20 Division 4A of Part 2 of the Schedule

Omit “NRA” (wherever occurring), substitute “APVMA”.

Note: The headings to sections 34C and 34G of the Schedule are altered by omitting “NRA” and substituting “APVMA”.

21 Section 167 of the Schedule

Omit “NRA” (wherever occurring), substitute “APVMA”.

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Schedule 3—Australian geographical indications for wine amendments

Australian Wine and Brandy Corporation Act 1980

1 Subsection 4(1)

Insert:

Federal Court means the Federal Court of Australia.

2 Subsection 4(1)

Insert:

pending, in relation to an application for the registration of a trade mark under the Trade Marks Act 1995, has the meaning given in that Act.

3 Subsection 4(1)

Insert:

registered owner, in relation to a trade mark, means the person in whose name the trade mark is registered under the Trade Marks Act 1995.

4 Subsection 4(1)

Insert:

registered trade mark means a trade mark whose particulars are entered in the Register of Trade Marks under the Trade Marks Act 1995.

5 Subsection 4(1)

Insert:

Register of Trade Marks means the register kept under section 207 of the Trade Marks Act 1995.

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6 Subsection 4(1)

Insert:

trade mark has the meaning given in the Trade Marks Act 1995.

7 Subsection 40P(1)

Repeal the subsection, substitute:

(1) The functions of the Committee are: (a) to deal with applications for the determination of geographical

indications for wine in relation to regions and localities in Australia (Australian GIs) in accordance with this Part; and

(b) to make determinations of Australian GIs in accordance with this Part; and

(d) any other functions conferred on the Committee under this Part.

8 Subsection 40P(2)

Omit “function”, substitute “functions”.

9 Before section 40Q in Division 4 of Part VIB

Insert:

Subdivision A—What this Division is about

40PA What this Division is about

(1) This Division deals with the determining of geographical indications (GIs) in relation to a region or locality in Australia.

Note: Geographical indications in relation to wine manufactured in an agreement country are not determined under this Division. They are determined in the agreement between Australia and the agreement country.

(2) Subdivisions B and C deal with the powers of the Committee and applications for the determination of GIs. Subdivision D deals with objections to the determination of a GI on the basis of pre-existing trade mark rights. GIs are determined under Subdivision E.

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Subdivision B—Powers of Committee to determine geographical indications

10 After section 40Q

Insert:

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

11 After section 40R

Insert:

Subdivision D—Objections to determination of geographical indications based on pre-existing trade mark rights

40RA Notice to be given of proposed geographical indication

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

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

(b) the Committee is considering determining a geographical indication (the proposed GI) on its own initiative under section 40Q; or

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

(2) The notice must: (a) set out the proposed GI; and

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(b) invite persons to make written objections to the Registrar of Trade Marks in relation to the proposed GI on a ground set out in section 40RB; and

40RB Grounds of objection to the determination of a geographical indication

Registered owner of a registered trade mark

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

(a) that the trade mark consists of a word or expression that is identical to the proposed GI;

(b) that: (i) the trade mark consists of a word or expression; and

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

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

(iii) the owner has trade mark rights in that word or expression.

(2) The owner may object on the ground specified in paragraph (1)(c) even if there are conditions or limitations entered on the Register of Trade Marks suggesting that the owner does not have trade mark rights to that word or expression.

Trade mark pending

(3) If a person has an application pending for the registration of a trade mark under the Trade Marks Act 1995, the person may object to the determination of a proposed GI on one of the following grounds:

(a) that: (i) the application was made in good faith; and

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(ii) the trade mark consists of a word or expression that is identical to the proposed GI; and

(iii) prima facie, the requirements under the Trade Marks Act 1995 for accepting an application for registration of a trade mark would be satisfied in respect of the trade mark applied for;

(b) that: (i) the application was made in good faith; and

(ii) the trade mark consists of a word or expression; and (iii) the proposed GI is likely to cause confusion with that

word or expression; and (iv) prima facie, the requirements under the Trade Marks Act

1995 for accepting an application for registration of a trade mark would be satisfied in respect of the trade mark applied for;

(ii) the trade mark contains a word or expression; and (iii) the proposed GI is likely to cause confusion with that

word or expression; and (iv) prima facie, the requirements under the Trade Marks Act

1995 for accepting an application for registration of a trade mark would be satisfied in respect of the trade mark applied for; and

(v) after registration, the applicant would have trade mark rights in the word or expression.

Trade mark not registered

(4) If a person claims to have trade mark rights in a trade mark that is not registered, the person may object to the determination of a proposed GI on one of the following grounds:

(a) that: (i) the trade mark consists of a word or expression that is

identical to the proposed GI; and (ii) the person has trade mark rights in that word or

expression; and (iii) the rights were acquired through use in good faith;

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(b) that: (i) the trade mark consists of or contains a word or

expression; and (ii) the proposed GI is likely to cause confusion with that

word or expression; and (iii) the person has trade mark rights in that word or

expression; and (iv) the rights were acquired through use in good faith.

40RC Consideration of objections

Notice of objection to be given to Committee

(1) If: (a) the Registrar of Trade Marks receives an objection in relation

to the proposed GI on a ground set out in section 40RB; and (b) the objection is received within the period stated in the notice

under section 40RA; the Registrar of Trade Marks must in writing notify the Committee of the receipt and terms of the objection.

Registrar of Trade Marks to make decision on whether ground made out or not

(2) If an objection is notified to the Committee under subsection (1), the Registrar of Trade Marks must decide in writing whether the ground of objection is or is not made out.

Registrar may make recommendation to Committee to determine a GI

(3) If: (a) the Registrar of Trade Marks decides that the ground of

objection is made out; and (b) the Registrar of Trade Marks is satisfied that it is reasonable

in the circumstances to recommend to the Committee that the proposed GI be determined despite the objection having been made out;

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the Registrar of Trade Marks may make the recommendation. The recommendation must be in writing.

Note 1: For example, it may be reasonable for the Registrar of Trade Marks to make such a recommendation if the Registrar of Trade Marks is satisfied that the proposed GI was in use before the trade mark rights arose.

Note 2: If a recommendation is made under subsection (3), the Committee may determine the GI (see subsection 40SA(4)).

(4) In determining under paragraph (3)(b) whether it is reasonable in the circumstances to make the recommendation to the Committee, the Registrar of Trade Marks must have regard to Australia’s international obligations.

Regulations

(5) Regulations may set out the procedure to be followed in making a decision under subsection (2) or (3). The procedures may include the charging of fees, the holding of hearings and the taking of evidence.

40RD Notice to be given of decision

Notice to be given by Registrar of Trade Marks

(1) After the Registrar of Trade Marks has made a decision under section 40RC in relation to the proposed GI, the Registrar of Trade Marks must, in writing, inform the following of the outcome of the decision and of any recommendation that has been made under subsection 40RC(3):

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

(b) the person who objected to the determination of the proposed GI;

Notice to be given by Committee

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

(a) setting out the proposed GI; and

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

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

(3) The notice under subsection (2) is to be published in the manner that the Committee thinks appropriate.

40RE Decision that ground of objection no longer exists

(1) If: (a) a decision has been made that a ground of objection to a

proposed GI has been made out; and (b) a person applies in writing to the Registrar of Trade Marks

for a decision that circumstances have changed since that decision was made such that the ground of objection no longer exists;

the Registrar of Trade Marks may, in writing, make a decision that the ground of objection no longer exists.

Note: If the Registrar of Trade Marks makes a decision under this section, the Committee may determine the GI (see subsection 40SA(5)).

(2) Regulations may set out the procedure to be followed in making a decision under subsection (1). The procedures may include the charging of fees, the holding of hearings and the taking of evidence.

40RF Appeals

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

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

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

(2) The jurisdiction of the Federal Court to hear and determine appeals against decisions of the Registrar of Trade Marks under this Act is

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exclusive of the jurisdiction of any other court except the jurisdiction of the High Court under section 75 of the Constitution.

(3) On hearing an appeal against a decision of the Registrar of Trade Marks under this Act, the Federal Court may do any one or more of the following:

(a) admit further evidence orally, or on affidavit or otherwise; (b) permit the examination and cross-examination of witnesses,

including witnesses who gave evidence before the Registrar of Trade Marks;

decision; (e) give any judgment, or make any order, that, in all the

circumstances, it thinks fit; (f) order a party to pay costs to another party.

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

(5) Except with the leave of the Federal Court, an appeal does not lie to the Full Court of the Federal Court against a decision of a single judge of the Federal Court in the exercise of its jurisdiction to hear and determine appeals from decisions of the Registrar of Trade Marks.

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

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

(b) for an extension of that time.

40RG Decisions made under this Division not to affect rights under Trade Marks Act

A decision made under this Division does not: (a) create or affect a right under the Trade Marks Act 1995 or at

common law in respect of a trade mark; or

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(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

12 Before section 40S

Insert:

40SA When may a determination be made under this Subdivision?

(1) If an objection was made to a proposed geographical indication (GI) under section 40RB, the Committee may only determine the GI in the circumstances set out in this section.

Grounds of objection not made out

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

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

(b) the decision standing after the appeals and reviews have been finalised is that a ground of objection has not been made out in relation to the GI.

If grounds for objection made out and person agrees to determination of GI

(3) The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if the person who objected to the determination of the GI has agreed, by notice in writing given to the Committee, to the determination of the GI.

If grounds for objection made out and a recommendation is made under subsection 40RC(3)

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

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(a) a recommendation has been made to the Committee under subsection 40RC(3) that the GI should be determined despite the ground of objection having been made out; and

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

If grounds for objection made out and a decision is made under section 40RE

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

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

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

13 At the end of section 40T

Add:

(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.

14 At the end of subsection 40X(2)

Add: ; and (c) if a decision has been made under section 40RC before the

final determination, no application to the Administrative Appeals Tribunal may be made in respect of that decision under section 40RC. An appeal lies to the Federal Court under section 40RF from a decision under section 40RC.

15 At the end of subsection 40Y(1)

Add:

Note: Under section 40RF, an appeal lies to the Federal Court from a decision under section 40RC.

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16 Application

The amendments made by items 1 to 15 of this Schedule apply to applications for determination of geographical indications that have not been finally determined under section 40W of the Australian Wine and Brandy Corporation Act 1980 on the day this item commences.

17 After Division 4 of Part VIB

Insert:

Division 4A—Omission of registered geographical indications

Subdivision A—What this Division is about

40ZAA What this Division is about

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

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

Note: Subsection 40ZD(3) also deals with changes to the Register.

Subdivision B—Omission of Australian GIs for non-use

40ZAB Power of Committee to determine that an Australian GI should be omitted from the Register

The Committee may, either on its own initiative or on an application made in accordance with section 40ZAC, determine that an Australian GI is to be omitted from the Register on the ground that the GI is not in use.

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40ZAC Application

(1) A person (the applicant) may apply in the prescribed form to the Committee to omit an Australian GI from the Register on the ground that the GI is not in use.

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

(3) The Corporation may waive the fee.

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

40ZAD Further information concerning an application

(1) For the purposes of determining the application, the Committee may, by notice in writing, require the applicant to provide such further information as the Committee directs, within the period specified in the notice.

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

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

40ZAE Notice by Committee

If the Committee: (a) receives an application under section 40ZAC; or (b) proposes on its own initiative that an Australian GI should be

omitted from the Register on the ground that the GI is not in use;

the Presiding Member of the Committee must cause a notice to be published in the manner that the Committee thinks appropriate:

made, or that the Committee is proposing to make a determination to omit the GI on its own initiative; and

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(e) inviting persons to make written submissions to the Committee in relation to the application or proposal within the period of not less than one month that is stated in the notice.

40ZAF Determination by Committee

(1) After considering any submissions made to it in response to a notice under section 40ZAE, the Committee must determine whether to omit the Australian GI on the ground that the GI is not in use.

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

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

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

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

Meaning of GI not been used

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

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

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

Meaning of special circumstances

(4) For the purposes of paragraph (2)(c), special circumstances exist if: (a) the region or locality indicated by the GI has been affected by

fire, drought or some other disaster; and (b) as a result of being so affected, there has not been a

production of wine for commercial use originating in the

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region or locality indicated by the GI during the period of 3 years immediately before the date of the notice under section 40ZAE.

40ZAG Notice of determination

The Presiding Member of the Committee must cause: (a) a notice to be given of the Committee’s determination to the

applicant (if any); and (b) if the determination made is to omit the Australian GI from

the Register—a notice setting out the terms of the determination to be published in the manner that the Committee thinks appropriate.

40ZAH AAT review of a determination

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

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

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

40ZAI Date of effect of determination to omit GI

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

(a) if an application is made to the Administrative Appeals Tribunal under section 40ZAH for review of the

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determination—as soon as practicable after the decision of the Tribunal on the review is given; or

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

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

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

Subdivision C—Omission of Australian GIs because no longer required

40ZAJ Application

(1) A person (the applicant) may apply in the prescribed form to the Committee to omit an Australian GI from the Register on the ground that the GI is no longer required.

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

(a) a declared winemakers’ organisation (if any); (b) a declared wine grape growers’ organisation (if any); (c) the organisation or organisations representing winemakers in a

State or Territory wholly or partly covered by the region or locality in Australia indicated by the GI;

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

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

(4) The Corporation may waive the fee.

(5) If: (a) the application is not accompanied by the fee, and the fee is

not waived by the Corporation; or

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

then the application is taken never to have been made.

40ZAK Further information concerning an application

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

(3) A notice must include a statement about the effect of subsection (2).

40ZAL Notice by Committee

After receiving an application under section 40ZAJ, the Presiding Member of the Committee must cause a notice to be published in the manner that the Committee thinks appropriate:

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

(b) inviting: (i) interested persons in relation to the GI (see

section 40ZAM); and (ii) members of the organisations referred to in subsection

40ZAJ(2); and (iii) the organisations referred to in subsection 40ZAJ(2); to object to the omission of the GI from the Register by making written submissions to the Committee within the period of not less than one month that is stated in the notice.

40ZAM Meaning of interested person

For the purposes of subparagraph 40ZAL(b)(i), an interested person in relation to an Australian GI is a person who the Committee is satisfied is:

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

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

locality indicated by the GI; and (ii) capable of being used to grow grapes for commercial

wine production; or (d) a person who:

(i) has a mortgage, lien or other commercial interest over, or in relation to, a vineyard or other property used in the production of wine that is situated in the region or locality indicated by the GI; and

(ii) has the agreement of the owner of the property to that person making a submission to the Committee under section 40ZAL.

40ZAN Determination by Committee

No submission made

(1) If no submissions have been made to the Committee in response to the notice under section 40ZAL, the Committee must make a determination in writing to omit the Australian GI from the Register on the grounds that the GI is no longer required.

Submission made

(2) If a submission has been made to the Committee, the Committee must make a determination in writing not to omit the GI from the Register.

40ZAO Notice of determination

The Presiding Member of the Committee must cause: (a) notice to be given of the Committee’s determination to the

applicant; and

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(b) a notice setting out the terms of the determination to be published in any manner that the Committee thinks appropriate.

40ZAP Date of effect of determination to omit Australian GI

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

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

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

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Schedule 4—Life insurance amendments

Life Insurance Act 1995

1 After Part 2A

Insert:

Part 2B—Special provisions relating to Australian branches of foreign life insurance companies

16ZD Eligible foreign life insurance company

(1) A body corporate is an eligible foreign life insurance company if: (a) it is a foreign corporation within the meaning of paragraph

51(xx) of the Constitution; and (b) it is authorised in a foreign country, or part of a foreign

country, to carry on life insurance business; and (c) it has established, or proposes to establish, an Australian

branch; and (d) it is not an existing life company that is registered under this

Act; and (e) the conditions specified in the regulations are satisfied in

relation to the body corporate.

(2) The conditions specified in the regulations for the purposes of paragraph (1)(e) may include either or both of the following kinds of conditions:

(a) a condition that the body corporate be authorised to carry on life insurance business in a specified country, or a specified part of a foreign country;

(b) a condition that the body corporate be incorporated in a specified country, or a specified part of a foreign country.

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Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(3) Subsection (2) does not limit the regulations that may be made for the purposes of paragraph (1)(e).

(4) In this section:

Australian branch, in relation to a body corporate, means a permanent establishment (as defined in subsection 6(1) of the Income Tax Assessment Act 1936) in Australia through which the body corporate carries on or proposes to carry on life insurance business.

16ZE Act does not apply to foreign life insurance business of eligible foreign life insurance company

This Act does not apply in relation to life insurance business carried on outside Australia by an eligible foreign life insurance company.

16ZF Compliance Committee of eligible foreign life insurance company

(1) A committee is the Compliance Committee of an eligible foreign life insurance company if:

(a) the members of the committee have powers of management in relation to the Australian branch of the company that carries out life insurance business in Australia; and

(b) those powers of management are sufficient to enable those members to ensure that the company complies with this Act; and

(2) The prudential standards may set out the following requirements in relation to the establishment and operation of Compliance Committees:

(a) requirements relating to the composition of Compliance Committees;

(b) requirements relating to the resignation of members of Compliance Committees;

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(d) requirements relating to the termination of appointment of members of Compliance Committees;

(e) requirements relating to the residency in Australia of members of Compliance Committees.

(3) Subsection (2) does not limit the requirements that may be set out in the prudential standards for the purposes of paragraph (1)(c).

(4) An eligible foreign life insurance company that is a life company must establish and operate a Compliance Committee.

16ZG Address for service of eligible foreign life insurance companies

(1) A document or notice required or permitted to be served on, or given to, an eligible foreign life insurance company for the purposes of this Act may be served or given by:

(a) leaving it at its address for service (see subsection (2)); or (b) sending it by registered post to that address.

(2) An address becomes the address for service for the eligible foreign life insurance company when written notice of the address is given to APRA. (The address continues to be the address for service until APRA is given written notice of another address.)

2 Paragraph 31(c)

After “outside Australia”, insert “(other than an eligible foreign life insurance company)”.

3 Subparagraph 31(d)(ii)

Omit “this Act.”, substitute “this Act; and”.

4 At the end of paragraph 31(d)

Add: (iii) the company is not an eligible foreign life insurance

company.

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5 At the end of section 76

Add:

(3) This section does not apply in relation to an eligible foreign life insurance company.

6 At the end of section 92

Add:

(5) In this section:

director, in relation to a life company that is an eligible foreign life insurance company, means a member of the Compliance Committee of the company.

7 At the end of section 113

Add:

(3) To avoid doubt, if the life company is an eligible foreign life insurance company, the investigation need not cover the financial condition of the company to the extent that the financial condition relates to life insurance business carried on outside Australia by the company (see section 16ZE).

8 At the end of section 165

Add:

(3) To avoid doubt, if the life company is an eligible foreign life insurance company, paragraphs (1)(c) and (d) do not apply to the extent that the management of the company, or of the business, relates to life insurance business carried on outside Australia by the company (see section 16ZE).

9 At the end of section 230B

Add:

(10) In this section:

director, in relation to a life company that is an eligible foreign life insurance company, means a member of the Compliance Committee of the company.

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10 At the end of subsection 230F(5)

Add:

Note: Officer would include a member of the Compliance Committee of an eligible foreign life insurance company.

11 After subsection 235(1)

Insert:

(1A) If a life company that is an eligible foreign life insurance company has engaged, is engaging, or proposes to engage, in any conduct in contravention of this Act, of a direction given under this Act or of a condition imposed on the registration of the company, the Court may grant an injunction:

(a) restraining a member or members of the Compliance Committee of the company from doing anything that would result in the company engaging in the conduct; or

(b) if the Court thinks it desirable to do so, requiring a member or members of the Compliance Committee of the company to do a particular act.

12 After subsection 235(2)

Insert:

(2A) If a life company that is an eligible foreign life insurance company has refused or failed, or is proposing to refuse or fail, to do an act that the company is required by this Act to do, the Court may grant an injunction requiring a member or members of the Compliance Committee of the company to take action to ensure that the company does the act.

13 Subsection 235(3)

Omit “(1) or (2)”, substitute “(1), (1A), (2) or (2A)”.

14 Subsection 235(5)

Omit “(1) or (2)”, substitute “(1), (1A), (2) or (2A)”.

15 Subsection 235(7)

After “life company”, insert “or other person”.

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16 Paragraph 235(7)(a)

After “the company”, insert “or person”.

17 Paragraph 235(7)(b)

After “the company”, insert “or person”.

18 Subsection 235(8)

Omit “person” (wherever occurring), substitute “company or person”.

19 After subsection 242(1)

Insert:

(1A) This section does not apply in relation to an eligible foreign life insurance company.

20 At the end of section 245

Add:

(8) In this section:

director, in relation to a life company that is an eligible foreign life insurance company, means a member of the Compliance Committee of the company.

21 Schedule (paragraph (b) of the definition of company)

Omit “Territory.”, substitute “Territory; or”.

22 Schedule (at the end of the definition of company)

Add: (c) an eligible foreign life insurance company.

23 Schedule

Insert:

Compliance Committee, in relation to an eligible foreign life insurance company, has the meaning given by subsection 16ZF(1).

24 Schedule

Insert:

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director, in relation to an eligible foreign life insurance company, includes a member of the Compliance Committee of the company.

25 Schedule

Insert:

eligible foreign life insurance company has the meaning given by section 16ZD.

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Foreign acquisitions and takeovers amendments Schedule 5

Schedule 5—Foreign acquisitions and takeovers amendments

Foreign Acquisitions and Takeovers Act 1975

1 Subsection 5(1)

Insert:

foreign government investor has the meaning given by section 17F.

2 Subsection 5(1)

Insert:

prescribed foreign government investor has the meaning given by section 17G.

3 Subsection 5(1)

Insert:

prescribed foreign investor has the meaning given by section 17E.

4 Subsection 5(1)

Insert:

prescribed sensitive sector has the meaning given by section 17H.

5 Subsection 13B(1)

Omit “In determining whether a corporation is an exempt corporation in relation to the application of section 18 or 26, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a corporation is an exempt corporation, in relation to the application of section 18 or 26, the value of a corporation’s total assets”.

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6 Subsection 13B(4)

Omit “In determining whether a business is an exempt business in relation to the application of section 19, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a business is an exempt business, in relation to the application of section 19, the value of a business’ total assets”.

7 Subsection 13B(5)

Omit “In determining whether a corporation is an exempt corporation in relation to the application of section 20, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a corporation is an exempt corporation, in relation to the application of section 20, the value of a corporation’s total assets”.

8 Subsection 13B(6)

Omit “In determining whether a business is an exempt business in relation to the application of section 21, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a business is an exempt business, in relation to the application of section 21, the value of a business’ total assets”.

9 After Part I

Insert:

Part IA—Exempt foreign investments

17A Exempt foreign investments in prescribed corporations etc.

(1) Section 18 applies in relation to a prescribed corporation as if neither of the following were a foreign person for the purposes of that section:

(a) a prescribed foreign investor that is covered by subsection 17B(1) or (2) in relation to the corporation;

(b) a prescribed foreign government investor that is covered by subsection 17C(1) in relation to the corporation.

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(2) Section 20 applies in relation to an Australian corporation as if neither of the following were a foreign person for the purposes of that section:

(a) a prescribed foreign investor that is covered by subsection 17B(1) or (2) in relation to the corporation;

(b) a prescribed foreign government investor that is covered by subsection 17C(1) in relation to the corporation.

(3) Sections 19 and 21 apply in relation to a business as if neither of the following were a foreign person for the purposes of those sections:

(a) a prescribed foreign investor that is covered by subsection 17B(3) in relation to the business;

(b) a prescribed foreign government investor that is covered by subsection 17C(2) in relation to the business.

(4) Section 26 applies in relation to an Australian corporation as if neither of the following were a person covered by that section:

(a) a prescribed foreign investor that is covered by subsection 17B(1) or (2) in relation to the corporation;

(b) a prescribed foreign government investor that is covered by subsection 17C(1) in relation to the corporation.

(5) In applying section 18, 19, 20, 21 or 26 in relation to an entity that is neither a prescribed foreign investor nor a prescribed foreign government investor, do not apply subsection (1), (2), (3) or (4) for the purposes of:

(a) determining whether 2 or more persons (whether or not those persons are associates) hold an aggregate controlling interest in a corporation; or

(b) determining whether 2 or more persons (whether or not those persons are associates) together are in a position to control an amount of the voting power in a corporation; or

(c) determining whether 2 or more persons (whether or not those persons are associates) together hold interests in the issued shares in a corporation; or

(d) determining whether 2 or more persons (whether or not those persons are associates) together are in a position to determine the policy of a business or corporation.

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17B Asset thresholds for exempt foreign investments in prescribed corporations etc.—prescribed foreign investors

(1) A prescribed foreign investor is covered by this subsection in relation to a corporation if:

(a) the corporation, or a subsidiary of the corporation, carries on a business wholly or partly in a prescribed sensitive sector in relation to the prescribed foreign investor; and

(b) for a corporation covered by paragraph 13(1)(a), (b), (c), (g) or (h)—the value of the corporation’s total assets, determined under section 13B, does not exceed the amount ascertained in accordance with regulations made for the purposes of this paragraph; and

(c) for a corporation covered by paragraph 13(1)(d), (e) or (f) because the corporation, or another corporation or other corporations, held certain assets on a particular date—the value of those assets on that date, determined in accordance with section 13, does not exceed the amount ascertained in accordance with regulations made for the purposes of this paragraph.

(2) A prescribed foreign investor is covered by this subsection in relation to a corporation if:

(a) neither the corporation, nor a subsidiary of the corporation, carries on a business wholly or partly in a prescribed sensitive sector in relation to the prescribed foreign investor; and

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(3) A prescribed foreign investor is covered by this subsection in relation to a business if:

(a) both of the following conditions are satisfied: (i) the business is wholly or partly in a prescribed sensitive

sector in relation to the prescribed foreign investor; (ii) the value of the total assets of the business, determined

under section 13B, does not exceed the amount ascertained in accordance with regulations made for the purposes of this subparagraph; or

(b) both of the following conditions are satisfied: (i) the business is neither wholly nor partly in a prescribed

sensitive sector in relation to the prescribed foreign investor;

(ii) the value of the total assets of the business, determined under section 13B, does not exceed the amount ascertained in accordance with regulations made for the purposes of this subparagraph.

(4) Regulations made for the purposes of a particular provision of this section may provide for different amounts for different prescribed foreign investors, depending on all or any of the following:

(a) the kind of prescribed foreign investor concerned; (b) in relation to subsection (1) or paragraph (3)(a)—the kind of

prescribed sensitive sector concerned; (c) in relation to subsection (1) or (2)—the kind of corporation

concerned; (d) in relation to subsection (3)—the kind of business concerned; (e) any other matter.

(5) Regulations made for the purposes of a particular provision of this section may provide for a method for indexing an amount.

(6) Subsections (4) and (5) do not limit the regulations that may be made for the purposes of this section.

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17C Asset thresholds for exempt foreign investments in prescribed corporations etc.—prescribed foreign government investors

(1) A prescribed foreign government investor is covered by this subsection in relation to a corporation if:

(a) for a corporation covered by paragraph 13(1)(a), (b), (c), (g) or (h)—the value of the corporation’s total assets, determined under section 13B, does not exceed the amount ascertained in accordance with regulations made for the purposes of this paragraph; and

(b) for a corporation covered by paragraph 13(1)(d), (e) or (f) because the corporation, or another corporation or other corporations, held certain assets on a particular date—the value of those assets on that date, determined in accordance with section 13, does not exceed the amount ascertained in accordance with regulations made for the purposes of this paragraph.

(2) A prescribed foreign government investor is covered by this subsection in relation to a business if the value of the total assets of the business, determined under section 13B, does not exceed the amount ascertained in accordance with regulations made for the purposes of this subsection.

(3) Regulations made for the purposes of a particular provision of this section may provide for different amounts for different prescribed foreign government investors, depending on all or any of the following:

(a) the kind of prescribed foreign government investor concerned; (b) in relation to subsection (1)—the kind of corporation

concerned; (c) in relation to subsection (2)—the kind of business concerned; (d) any other matter.

(4) Regulations made for the purposes of a particular provision of this section may provide for a method for indexing an amount.

(5) Subsections (3) and (4) do not limit the regulations that may be made for the purposes of this section.

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17D Exempt foreign investments in financial sector companies etc.

(1) Section 18 applies in relation to a financial sector company as if a prescribed foreign investor covered by subsection (3) were not a foreign person for the purposes of that section.

(2) Section 26 applies in relation to a financial sector company as if a prescribed foreign investor covered by subsection (3) were not a person covered by that section.

(3) A prescribed foreign investor is covered by this subsection if the conditions specified in the regulations are satisfied in relation to the prescribed foreign investor.

(4) In applying section 18 or 26 in relation to an entity that is not a prescribed foreign investor covered by subsection (3), do not apply subsection (1) or (2) for the purposes of:

(a) determining whether 2 or more persons (whether or not those persons are associates) hold an aggregate controlling interest in a corporation; or

(b) determining whether 2 or more persons (whether or not those persons are associates) together are in a position to control an amount of the voting power in a corporation; or

(c) determining whether 2 or more persons (whether or not those persons are associates) together hold interests in the issued shares in a corporation; or

(d) determining whether 2 or more persons (whether or not those persons are associates) together are in a position to determine the policy of a business or corporation.

(5) In this section:

financial sector company has the same meaning as in the Financial Sector (Shareholdings) Act 1998.

17E Prescribed foreign investor

(1) An entity is a prescribed foreign investor if: (a) the conditions specified in the regulations are satisfied in

relation to the entity; and (b) the entity is not a foreign government investor.

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(2) The conditions specified in the regulations for the purposes of subsection (1) may include any or all of the following kinds of conditions:

(a) a condition that the entity be a national of a specified foreign country;

(b) a condition that the entity be incorporated under the law of a specified foreign country, or a specified part of a foreign country;

(c) a condition that the entity be constituted or organised under the law of a specified foreign country, or a specified part of a foreign country.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(3) Subsection (2) does not limit the regulations that may be made for the purposes of subsection (1).

(4) In this section:

entity includes an individual.

17F Foreign government investor

An entity is a foreign government investor if: (a) the entity is:

(i) a body politic of a foreign country; or (ii) a body politic of part of a foreign country; or

(iii) a part of a body politic mentioned in subparagraph (i) or (ii); or

(b) the entity is controlled by an entity mentioned in paragraph (a); or

(c) an entity mentioned in paragraph (a) holds an interest in the entity that satisfies the conditions specified in the regulations.

17G Prescribed foreign government investor

An entity is a prescribed foreign government investor if: (a) the entity is a foreign government investor; and

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(b) the conditions specified in the regulations are satisfied in relation to the entity.

17H Prescribed sensitive sector

A kind of business activity is a prescribed sensitive sector in relation to a prescribed foreign investor if:

(a) the conditions specified in the regulations are satisfied in relation to the prescribed foreign investor; and

(b) the conditions specified in the regulations are satisfied in relation to the kind of business activity.

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Schedule 6 Commonwealth authorities and companies amendments

Schedule 6—Commonwealth authorities and companies amendments

Commonwealth Authorities and Companies Act 1997

1 After section 47

Insert:

47A Compliance with government procurement requirements

(1) This section applies to Commonwealth authorities, and wholly-owned Commonwealth companies, specified in the regulations for the purposes of this section.

(2) Subject to subsection (3), the Finance Minister may, in writing, give directions to the directors of an authority or a company to which this section applies on matters related to the procurement of property or services.

(3) The Finance Minister must not give a direction that is inconsistent with Australia’s obligations under any international agreement that deals with government procurement (whether or not the agreement also deals with other matters).

(4) Without limiting the generality of subsection (2), directions permitted by subsection (2) may apply, adopt or incorporate, with or without modifications, all or any of the Commonwealth Procurement Guidelines, as in force from time to time.

(5) The directors must ensure that the directions are complied with by the authority or company.

(6) The directors must also ensure, as far as practicable, that the directions are complied with by the subsidiaries of the authority or company.

(7) In this section:

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Commonwealth Procurement Guidelines means the guidelines relating to procurement issued under the Financial Management and Accountability Regulations 1997.

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Schedule 7 Therapeutic goods amendments

Schedule 7—Therapeutic goods amendments

Therapeutic Goods Act 1989

1 Subsection 25(3)

Repeal the subsection, substitute:

(3) If: (a) the therapeutic goods are therapeutic devices; and (b) the evaluation of the goods for registration has been

completed; the Secretary must:

(c) notify the applicant in writing of his or her decision on the evaluation within 28 days of the making of the decision and, in the case of a decision not to register the goods, of the reasons for the decision; and

(d) if the decision is to register the goods—include the goods in the Register and give the applicant a certificate of registration.

(4) If: (a) the therapeutic goods are not therapeutic devices; and (b) the evaluation of the goods for registration has been

completed; the Secretary must:

(d) if the decision is to register the goods: (i) notify the applicant in writing that the goods will be

included in the Register if the applicant gives the Secretary the certificate required under subsection 26B(1); and

(ii) include the goods in the Register and give the applicant a certificate of registration if the applicant gives the

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Secretary the certificate required under subsection 26B(1).

To avoid doubt, if the applicant gives the Secretary the certificate required under subsection 26B(1), the Secretary must include the goods in the Register under subparagraph (d)(ii) without inquiring into the correctness of the certificate.

(4A) Civil proceedings do not lie against the Secretary (or a delegate of the Secretary) in respect of loss, damage or injury of any kind suffered by another person as a result of the Secretary (or the delegate) including therapeutic goods in the Register in reliance on a certificate required under subsection 26B(1).

2 After paragraph 26(1)(a)

Insert: (aa) if goods are not therapeutic devices—the application is

accompanied by the certificate required under subsection 26B(1); and

3 After subsection 26(1)

Insert:

(1A) To avoid doubt, if: (a) an application is made for the listing of therapeutic goods in

relation to a person in accordance with section 23; and (b) the application is accompanied by the certificate required

under subsection 26B(1); and (c) the other requirements in subsection (1) are met;

the Secretary must list the goods under subsection (1) without inquiring into the correctness of the certificate.

(1B) Civil proceedings do not lie against the Secretary (or a delegate of the Secretary) in respect of loss, damage or injury of any kind suffered by another person as a result of the Secretary (or the delegate) listing therapeutic goods in relation to a person in reliance on a certificate required under subsection 26B(1).

4 After paragraph 26A(1)(a)

Insert:

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(b) the application is accompanied by the certificate required under subsection 26B(1); and

5 After subsection 26A(1)

Insert:

(1A) To avoid doubt, if: (a) an application is made for the listing of a medicine in relation

to a person in accordance with section 23; and (b) the application is accompanied by the certificate required

under subsection 26B(1); and (c) the other requirements in subsection (1) are met;

the Secretary must list the medicine under subsection (1) without inquiring into the correctness of the certificate.

(1B) Civil proceedings do not lie against the Secretary (or a delegate of the Secretary) in respect of loss, damage or injury of any kind suffered by another person as a result of the Secretary (or the delegate) listing a medicine in relation to a person in reliance on a certificate required under subsection 26B(1).

6 After section 26A

Insert:

26B Certificates required in relation to patents

(1) The certificate required by this subsection is either: (a) a certificate to the effect that the applicant, acting in good

faith, believes on reasonable grounds that it is not marketing, and does not propose to market, the therapeutic goods in a manner, or in circumstances, that would infringe a valid claim of a patent that has been granted in relation to the therapeutic goods; or

(b) a certificate to the effect that: (i) a patent has been granted in relation to the therapeutic

goods; and (ii) the applicant proposes to market the therapeutic goods

before the end of the term of the patent; and

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(iii) the applicant has given the patentee notice of the application for registration or listing of the therapeutic goods under section 23.

The certificate must be signed by, or on behalf of, the applicant and must be in a form approved by the Secretary.

(2) A person is guilty of an offence if: (a) the person gives a certificate required under subsection (1);

and (b) the certificate is false or misleading in a material particular.

Maximum penalty: 1,000 penalty units.

(3) For the purposes of this section, a patent is taken to have been granted in relation to therapeutic goods if marketing the goods without the authority of the patentee would constitute an infringement of the patent.

(4) In this section:

patent has the same meaning as in the Patents Act 1990.

26C Certificates required in relation to patent infringement proceedings

(1) This section applies if: (a) a person gives a certificate required under subsection 26B(1)

in relation to therapeutic goods; and (b) another person (the second person) intends to commence

proceedings under the Patents Act 1990 against the person referred to in paragraph (1)(a) for infringement of a patent that has been granted in relation to the therapeutic goods (the proceedings).

(2) The second person, before the date upon which the proceedings are commenced, must give to the Secretary and to the person referred to in paragraph (1)(a) the certificate required by subsection (3).

(3) The certificate required by this subsection is a certificate to the effect that the proceedings:

(a) are to be commenced in good faith; and

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(b) have reasonable prospects of success; and (c) will be conducted without unreasonable delay.

The certificate must be signed by, or on behalf of, the second person and must be in a form approved by the Secretary.

(4) For the purpose of paragraph (3)(b), proceedings have reasonable prospects of success if:

(a) the second person had reasonable grounds in all the circumstances known to the second person, or which ought reasonably to have been known to the second person (in addition to the fact of grant of the patent), for believing that he or she would be entitled to be granted final relief by the court against the person referred to in paragraph (1)(a) for infringement by that person of the patent; and

(b) the second person had reasonable grounds in all the circumstances known to the second person, or which ought reasonably to have been known to the second person (in addition to the fact of grant of the patent), for believing that each of the claims, in respect of which infringement is alleged, is valid; and

(5) The person referred to in paragraph (1)(a), with leave of the court, or the Attorney-General, may apply to a prescribed court for an order that the second person pay to the Commonwealth a pecuniary penalty if the second person gives a certificate required under subsection (3) and:

(a) the certificate is false or misleading in a material particular; or (b) the second person breaches an undertaking given in the

certificate.

Maximum penalty: $10,000,000.

(6) When determining the extent of a pecuniary penalty to be ordered pursuant to subsection (5), the court must take into account:

(a) any profit obtained by the second person; and (b) any loss or damage suffered by any person;

by reason of the second person exploiting the patent during the proceedings.

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(7) For the avoidance of doubt, subsection (6) does not limit the matters the court may take into account when determining a pecuniary penalty ordered pursuant to subsection (5).

(8) If: (a) the second person has sought and obtained in the proceedings

an interlocutory injunction restraining the person referred to in paragraph (1)(a) from infringing a patent; and

(b) section 26D does not apply; and (c) a prescribed court declares that the second person has given a

certificate required under subsection (3); and (d) a prescribed court declares that:

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

(ii) the second person has breached an undertaking given in the certificate;

the prescribed court may, pursuant to this section, order that the second person pay to the Commonwealth, a State or a Territory compensation for any damages sustained or costs incurred by the Commonwealth, a State or a Territory as a result of the grant of the interlocutory injunction.

(9) In this section:

prescribed court has the same meaning as in the Patents Act 1990.

26D Requirements for interlocutory injunction

(1) This section applies where: (a) an applicant gives notice to a patentee in accordance with

subparagraph 26B(1)(b)(iii); and (b) the patentee and/or its exclusive licensee (in this section the

party or parties is or are referred to as the patentee) applies to a prescribed court for an interlocutory injunction to restrain the applicant from marketing the therapeutic goods the subject of the application on the ground that such conduct will constitute an infringement of its patent.

(2) An application for interlocutory relief in accordance with subsection (1) may not be instituted unless the patentee has first notified the

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Attorney-General of the Commonwealth, or of a State or of a Territory, in writing of the application.

(3) The Attorney-General of the Commonwealth shall be deemed to be a party to any proceedings commenced in accordance with subsection (1) unless the Attorney-General gives written notice to the prescribed court that he or she does not desire to be a party.

(4) If an interlocutory injunction is granted pursuant to an application made as described in subsection (1) and:

(a) the patentee subsequently discontinues the principal proceedings without the consent of the other parties thereto; or

(b) the principal proceedings are dismissed; and (c) in either case, the prescribed court declares that:

(i) the patentee did not have reasonable grounds, in all the circumstances known to the patentee or which ought reasonably have been known to the patentee:

(A) to believe that it would be granted final relief by the prescribed court against the applicant referred to in paragraph (1)(a) for infringement by that person of the patent; or

(B) (in addition to the fact of grant of the patent), for believing that each of the claims, in respect of which infringement is alleged in the proceedings, would have a reasonable prospect of being held to be valid if challenged by the applicant referred to in paragraph (1)(a); or

(ii) the application for the interlocutory injunction was otherwise vexatious or not reasonably made or pursued;

the prescribed court may, in addition to any other relief which it believes should be granted to any person, make any of the orders described in subsection (5).

(5) If the prescribed court makes a declaration pursuant to paragraph (4)(c), the prescribed court may, pursuant to the usual undertaking as to damages given by the patentee to the prescribed court to obtain the interlocutory injunction:

(a) assess and award compensation to the applicant referred to in paragraph (1)(a) against whom the interlocutory injunction was made:

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(i) on the basis of an account of the gross profits of the patentee arising from the sale by it in Australia of the therapeutic goods the subject of the interlocutory injunction, during the period of the interlocutory injunction, without requiring the said applicant to establish or quantify its actual loss; or

(ii) on such other basis as the court determines to be appropriate; and

(b) award to the Commonwealth compensation for any damages sustained, or costs incurred, by it as a result of the grant of the interlocutory injunction; and

(c) award to a State or a Territory compensation for any damages sustained, or costs incurred, by it as a result of the grant of the interlocutory injunction.

(6) In this section:

prescribed court has the same meaning as in the Patents Act 1990.

7 Application of amendments

(1) The amendments made by this Schedule apply to applications for registration or listing under section 23 of the Therapeutic Goods Act 1989 made on or after the day on which this Schedule commences.

(2) The amendments made by item 6 apply to legal proceedings commenced on or after the day on which this Schedule commences.

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Schedule 8 Patents amendments

Schedule 8—Patents amendments

Patents Act 1990

1 Paragraph 59(b)

Omit all the words after “patentable invention”.

2 Paragraph 59(d)

Repeal the paragraph.

3 Application of amendments of section 59 of the Patents Act 1990

The amendments of section 59 of the Patents Act 1990 made by this Schedule apply in relation to each patent application for a standard patent:

(a) made after the commencement of this Schedule; or (b) made before the commencement of this Schedule, but for

which a patent has not been granted by the commencement of this Schedule.

4 Subsection 104(3)

Repeal the subsection.

5 Paragraph 138(3)(c)

Repeal the paragraph.

US Free Trade Agreement Implementation Act 2004

ComLaw C2005C00021

Schedule 9—Copyright amendments

Part 1—Performers’ rights in sound recordings

Copyright Act 1968

1 Paragraph 22(3)(a)

After “sound recording”, insert “, other than a sound recording of a live performance,”.

Note 1: The following heading to subsection 22(1) is inserted “Literary, dramatic, musical or artistic works”.

Note 2: The following heading to subsection 22(3) is inserted “Sound recordings”.

2 After subsection 22(3)

Insert:

(3A) For the purposes of this Act, the makers of a sound recording of a live performance are:

(a) the person or persons who, at the time of the recording, own the record on which the recording is made; and

(b) the performer or performers who performed in the performance (other than a performer who is already covered by paragraph (a)).

Note: A performer might be liable to pay compensation under section 116AAA to a person who owns the record on which the recording is made.

(3B) If: (a) a sound recording of a live performance is made; and (b) a performer performs in that performance under the terms of

his or her employment by another person (the employer) under a contract of service or apprenticeship;

then, for the purposes of paragraph (3A)(b), the employer is taken to be a maker instead of that performer.

(3C) Subsection (3B) may be excluded or modified by agreement between the performer and the employer.

US Free Trade Agreement Implementation Act 2004

ComLaw C2005C00021

Schedule 9 Copyright amendments Part 1 Performers’ rights in sound recordings

Note 1: The following heading to subsection 22(4) is inserted “Cinematograph films”.

Note 2: The following heading to subsection 22(5) is inserted “Broadcasts and other communications”.

3 At the end of section 22

Add:

Definitions

(7) In this section:

live performance means: (a) a performance (including an improvisation) of a dramatic

work, or part of such a work, including such a performance given with the use of puppets; or

(b) a performance (including an improvisation) of a musical work or part of such a work; or

(c) the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

(d) a performance of a dance; or (e) a performance of a circus act or a variety act or any similar

presentation or show; or (f) a performance of an expression of folklore;

being a live performance, whether in the presence of an audience or otherwise.

performer in a live performance: (a) means each person who contributed to the sounds of the

performance; and (b) if the performance includes a performance of a musical

work—includes the conductor.

sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.

4 Section 84

Repeal the section, substitute:

US Free Trade Agreement Implementation Act 2004

ComLaw C2005C00021

100

84 Definitions

In this Part: