US Free Trade Agreement Implementation Act 2004 (120 of 2004)

Schedule 3   Australian geographical indications for wine amendments

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.

40ZAC Application

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

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

(3) The Corporation may waive the fee.

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

40ZAD Further information concerning an application

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

(2) If the applicant does not comply with this requirement, the application is taken to have been withdrawn.

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

40ZAE Notice by Committee

If the Committee:

(a) receives an application under section 40ZAC; or

(b) proposes on its own initiative that an Australian GI should be omitted from the Register on the ground that the GI is not in use;

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

(c) setting out the Australian GI; and

(d) stating that an application under section 40ZAC has been made, or that the Committee is proposing to make a determination to omit the GI on its own initiative; and

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

40ZAF Determination by Committee

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

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

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

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

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

Meaning of GI not been used

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

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

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

Meaning of special circumstances

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

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

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

40ZAG Notice of determination

The Presiding Member of the Committee must cause:

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

(b) if the determination made is to omit the Australian GI from the Register - a notice setting out the terms of the determination to be published in the manner that the Committee thinks appropriate.

40ZAH AAT review of a determination

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

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

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

40ZAI Date of effect of determination to omit GI

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

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

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

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

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

Subdivision C - Omission of Australian GIs because no longer required

40ZAJ Application

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

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

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

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

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

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

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

(4) The Corporation may waive the fee.

(5) If:

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

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

then the application is taken never to have been made.

40ZAK Further information concerning an application

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

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

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

40ZAL Notice by Committee

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

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

(b) inviting:

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

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

(iii) the organisations referred to in subsection 40ZAJ(2);

to object to the omission of the GI from the Register by making written submissions to the Committee within the period of not less than one month that is stated in the notice.

40ZAM Meaning of interested person

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

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

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

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

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

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

(d) a person who:

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

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

40ZAN Determination by Committee

No submission made

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

Submission made

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

40ZAO Notice of determination

The Presiding Member of the Committee must cause:

(a) notice to be given of the Committee's determination to the applicant; and

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

40ZAP Date of effect of determination to omit Australian GI

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

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

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