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Trade Practices Amendment (Country of Origin Representations) Bill 1998
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Trade Practices Amendment (Country of Origin Representations) Bill 1998
Commencement: The provisions relating to country of origin representations in Schedule 1 are to commence on Proclamation, but not later than six months after this Act receives Royal Assent. The other miscellaneous amendments to the Trade Practices Act 1974 contained in Schedule 2 are to commence when this Act receives Royal Assent.
â¢ To introduce a scheme governing representations about the country of origin of consumer goods offered for sale in Australia;
â¢ To make a number of other amendments to the Trade Practices Act 1974 which are unrelated to the primary purpose of the Bill. These are discussed below, in the ‘Main Provisions’ section of this Digest.
Section 52 of the Trade Practices Act 1974 prohibits misleading and deceptive conduct in trade or commerce. Section 53(eb) of the Act makes it unlawful to make a false or misleading representation about the origin of goods offered for sale in Australia. The Section provides that:
53. A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services-
(eb) make a false or misleading representation concerning the place of origin of goods.
All State and Territory Fair Tra ding legislation contain equivalent provisions.(1) However, establishing the test in relation to what is meant by a ‘false or misleading representation’ concerning the origin of goods has been a matter of considerable difficulty.
Case law has provided producers and manufacturers with some guidance on how the rules of country of origin claims apply to specific products.(2)
The Federal Court of Australia has considered the meaning of Section 53(eb) of the Trade Practices Act 1974 in only a small number of cases. In Thorpe v CA Imports Pty Ltd ,(3) the question of a misleading representation concerning the place of origin of certain manufactured toy koalas arose. In that case, Justice Sheppherd held that ‘the expression “Made in Australia” suggests at least substantial manufacture’, and the fact that the koala casings were cut and sewn in Korea prevented the statement from being one which correctly described the toy koalas in question.
Again, in Siddons Pty Ltd v Stanley Works Pty Ltd ,(4) the court held that a metal tool shaped in Taiwan and later modified and finished in Australia was not made in Australia. The words ‘Made in Australia’ in application to a simple tool like a metal spanner meant, in ordinary language, that most of the processes by which a piece of metal is transformed into the spanner which was offered for sale have occurred in Australia.
A third case involved a computer modem. In Netcomm (Aust) Pty Ltd v Dataplex Pty Ltd,(5) the expression ‘made in Australia’ was held by Justice Gummow to suggest:
that the steps in the composition or construction of the item, including the design which makes it the technically proficient equipment it is promoted to be, were taken in Australia.
In each of these cases the court held that the words ‘made in Australia’ and other like terms were to be given their ordinary meaning. The courts have looked at each case according to the facts, and have applied various tests, depending on the con text and nature of the goods at issue. It is clear, however, that even under the current law, the Federal Court has not required a product to be completely Australian in all respects before it can carry the label ‘Made in Australia’.(6)
Since 1992 successive Federal Governments have been working with industry and consumer groups to develop a scheme to govern representations about Australian origin of consumer goods. In October 1992 the pre vious Government set up two Working Groups to review the extent to which products currently provide an indication of their country of origin and to develop descriptors for ‘Australian Made’ and related terms. The Working Groups reported together and their Report on Country of Origin Labelling of Consumer Products was released in May 1993. The Working Groups were divided in their support for the various options they identified. The Report’s preferred option was to limit the range of terms describing Australian origin to three, namely ‘Made in Australia’, ‘Product of Australia’, and in the case of unprocessed primary produce, ‘Produce of Australia’. The Report recommended that in order to qualify for these descriptors, the goods must have acquired their essential character in Australia and that not less than 85% of the cost of producing the goods must have been incurred in Australia.(7)
On 23 March 1994 the previous Government introduced the Trade Practices Amendment (Origin L abelling) Bill 1994 (the 1994 Bill). The purpose of the 1994 Bill was to insert new provisions into the Trade Practices Act 1974 to deal with the method of labelling goods which claimed to be made, manufactured, packed or designed in Australia.(8) The 1994 Bill incorporated many of the recommendations of the Working Groups’ Report, although a secondary test based on a calculation of the costs of production incurred in Australia, was abandoned in favour of a descriptive option for the labelling of consumer goods.
The test used by the 1994 Bill was that goods could be labelled ‘Made in Australia’ only if they acquired their essential character or qualities in Australia. It was stated in the Explanatory Memorandum to the 1994 Bill that this was the test applied by the Federal Court in cases brought under the Trade Practices Act provisions prohibiting false and misleading claims.(9) Senator Meg Lees, in a Question Without Notice, disputed that the ‘essential character’ test proposed in the 1994 Bill was the same as that used by the Federal Court(10) and others have commented that the court decisions did not actually use the exact words stated in the Bill.(11)
The 1994 Bill was referred to two separate Parliamentary Committees.
â¢ The House of Representatives St anding Committee on Industry, Science and Technology issued its report on the Trade Practices Amendment (Origin Labelling) Bill in June 1994.(12) The Committee concluded that the approach taken by the Bill was probably the best in practical terms and recommended providing additional information and clarifying the definitions used in the Bill in order to assist industry and consumers.
â¢ The Senate Standing Committee on Legal and Constitutional Affairs issued a report on 1 September 1994.(13) This report, which contains two separate dissents, also recommended support for the Bill and for several amendments that had been foreshadowed. Th e report canvassed the views of a large number of producer, consumer and marketing groups and provides a useful analysis of the various descriptors used to describe the ‘Australian-ness’ of goods.
In the event, the 1994 Bill lapsed when Parliament was pror ogued prior to the March 1996 election.
At the same time as the 1994 Bill was being considered by Parliament, another case concerning Section 53(eb) of the Trade Practices Act 1974 was before the Federal Court of Australia.
The Trade Practices Commission v QSVD Holdings Pty Ltd (trading as Bush Friends Australia)(14) (the Bush Friends Case) again concerned koala soft toys. The koalas were manufactured partly in China and partly in Australia and all of the components, with the exception of the filling, were produced overseas. The toys carried a label containing the statement ‘Made in Australia’ in large capital letters. Underneath those words, in smaller print were the words ‘with some imported components’. The claims on the label were the subject of the litigation.
In his decision (which was later approved by the Full Court of the Federal Court of Australia), Justice Davies considered the possible bases on which an evaluation of whether the koalas had been ‘made in Australia’ could be made. He considered both the use of qualitative tests such as ‘essential character’ or ‘substantial transformation’, and quantitative measures such as a comparison of the costs incurred in each country where something had been done to produce the end product. He expressly rejected the ‘essential character’ test laid down in the 1994 Bill and held that the words ‘Made in Australia’ and other terms were to be given their common meaning.(15) In the second Bush Friends decision, Justice Nicholson said that he regarded the ‘ordinary meaning’ test as ‘a legitimate technique of statutory construction’.(16) He justified the subjective nature of this approach in the following way:
While it is true that the application of the ordinary meaning of the words leaves the judge deciding the effect of those words on consumers, it is in fact the impression of the words which is critical to the determination of whether they are, in the circumstances as found, misleading and deceptive either generally or in relation to the origin of the goods.(17)
Some commentators on the Bush Friends case have seen the decision as establishing a definitive precedent for the appropriate test to be applied in the case of ‘Made in Australia’ claims. The General Editor of the Australian & New Zealand Trade Practices Law Bulletin , Warren Pengilley wrote that:
It [the case] puts to rest the argument that the answer to the question of whether a produce is ‘Made in Australia’ should be determined by a comparative costing exercise or by an applications of customs law. The test involves neither of these issues. It is solely a question of assessing the effect of the representation on Australian consumers.(18)
In the Explanatory Memorandum to the current Bill the Government describes the decision in the Bush Friends case as being restrictive and says that it has resulted in many firms being potentially excluded from labelling their products as Australian made for fear of litigation.(19)
A more recent case [ Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd (1997)](20) concerned air conditioners which consisted of a number of component parts, one of which (the compressor) was made overseas. The air conditioners carried labels and a logo, and were advertised by various combinations of words meaning made in Australia. In dismissing the case brought by the ACCC, Justice Lockhart held that ‘(w)hether an article of commerce is “Made in Australia” must be determined by reference to the circumstances of each case’.(21) Following the line of reasoning taken by Justice Sackville in the second Bush Friends case (the appeal),(22) Justice Lockhart said:
In my opinion, the expression ‘place of origin’ of goods in s53(eb) focuses attention on the finished product, that is the goods which the public sees and buys, the place where the goods acquire their essential character as articles of commerce, the place where the major processes of manufacture occur which transform the various component parts into a finished product, the place where the goods are given their essential function, shape or appearance. This is substantially the approach taken in the Trade Practices Amendment (Origin Labelling) Bill 1994 which has lapsed. It is a test appropriate to the goods in question in this case.(23)
According to the Explanatory Memorandum , this second case has compounded the uncertainty already created by the Bush Friends case. This is because the court:
expressly avoided setting down strict criteria for determining the validity of origin claims. The Court held that such cases should be resolved on a case-by-case basis. This represents a considerable impediment to compliance.(24)
In his Second Reading Speech, the Minister for Customs and Consumer Affairs, Hon Warren Truss MP, said that the recent court decisions have created confusion about the meaning of such terms as ‘Made in Australia’, and as a result, ‘the market value of Australian origin claims has been eroded, to the point that producers and manufacturers are wary of making claims and many consumers are losing confidence in labelling altogether’.(25)
The purpose of the current Bill is to introdu ce a scheme governing representations about the origin of consumer goods supplied in Australia. This purpose is to be accomplished by inserting a new Division 1AA into Part V of the Trade Practices Act 1974 . The Government's intention in introducing the scheme is to overcome the perceived uncertainty caused by recent Federal Court decisions, to encourage Australian industry to label products which have their origin in Australia, and to give consumers a reliable means of identifying Australian products.
The chief features of the scheme are as follows:
â¢ It is voluntary and will apply only where a manufacturer or supplier chooses to represent that Australia or another country is the place of origin of goods;
â¢ It covers goods produced for the Australian mark et and goods produced overseas and sold in Australia;
â¢ It deals with representations that goods are ‘Made in’, or are ‘Produced in’ or are a ‘Product of’ Australia or another country;
â¢ The scheme consists of a primary and a secondary test:
- The primary test is a qualitative measure, that the goods are ‘substantially transformed’ in a country if they undergo a fundamental change in form, appearance or nature such that the goods existing after the change are new and different goods from those existing before the change.
- The secondary test is a quantitative measure, and refers to the costs of production or manufacture incurred in Australia and other countries. For example, goods which claim to be ‘Made in Australia’, must have incurred 50% or more of their total manufacturing costs in Australia. Goods which claim to be a ‘Product of Australia’ or ‘Produced in Australia’ must have ‘all or virtually all’ Australian ingredients or inputs, and ‘all or virtually all’ of the steps in the production process must have occurred in Australia.
â¢ The scheme covers representations made in words and by means of prescribed logos.
â¢ The scheme provides a defence against prosecution for breach of Section 53(eb) of the Trade Practices Act 1974 . This defence is not extended to regional descriptors such as ‘Made in Queensland’ or ‘Product of Tasmania’.(26)
The Bill sets out the framework for the scheme. The details of a number of aspects are to be worked out in regulations. Some additional points are covered in the Explanatory Memorandum , including that:
â¢ the Australian and New Zealand Food Standards Council will be asked to determine the need for any additional regulations for food; and
â¢ the proposed legislative framework will be reviewed after five years or when the Worl d Trade Organisation’s international rules of origin are finalised.(27)
In the United States, the system used under trade law for determining the origin of a product centres around the ‘substantial transformation test’. This test is a judge-made rule and it is not defined in legislation. The test, simply stated, is whether the good has emerged from a given process with a ‘distinctive name, character or use’ in a particular country. For a product to be from a particular country, it must be substantially transformed there. To prevent a product from having multiple countries of origin, the good is a product of the country where it last underwent such transformation.
In the Bush Friends case Judge Davies considered the substantial transformation test. He concluded that, as a test under customs legislation, it was relevant to a determination of who should obtain a benefit or drawback in a tariff preference context, but it was not necessarily relevant in evaluating where a manufacturing process had occurred. Accordingly, he decided that the substantial transformation test, though firmly established under customs regulations, was a different test to that under the Trade Practices Act 1974 . This was because the Trade Practices Act 1974 test had to relate to the question of whether consumers in Australia would be misled or deceived or would be likely to be misled or deceived, and whether there had been a misleading representation in Australia as to the place of origin of the goods. Justice Davies did say, however, that if a substantial transformation test was applied in the Bush Friends case, he would hold that the component parts were transformed into a toy koala in Australia and that, prior to their transformation in Australia, they were merely component parts.(28)
In the context of discussing the substantial transformation test, Justice Davies referred to the approach taken by Joseph A LaNasa III from the Harvard Law School in an article published in 1993 in the Harvard International Law Journal .(29) The article discusses the use of the substantial transformation test in the application of customs legislation in the United States. The author was critical of the test saying that it:
Gives customs officials the freedom to apply the standard on a highly subjective, case by case basis that often results in seemingly arbitrary decisions. In reviewing these origin determinations, courts have had a great deal of trouble discerning the point at which a processing operation causes a product to be substantially transformed, and, as a result, they have developed a variety of inconsistently applied criteria. Not only have the courts failed to develop a uniform set of criteria for substantial transformation, but they have also applied the test inconsistently in similar situations depending upon the purpose of the determination.(30)
In his Second Reading Speech, the Minister for Customs and Consumer Affairs, Hon Warren Truss MP, said that ‘the use of the substantial transformation test will align Australian law with international practice’.(31) The Explanatory Memorandum to the Bill states that ‘“substantial transformation” will form the basis for the WTO’s [World Trade Organisation] international rules of origin and is widely utilised overseas’.(32) For a discussion of country of origin labelling requirements in other countries, the reader is referred to the Report of the Working Groups on Country of Origin Labelling of Consumer Products (May 1993, pages 10-11), and ‘It ain’t necessarily so: country of origin labelling’ (Department of the Parliamentary Library, Current Issues Brief 20/1994, pages 4-6).
Comparative costs of production
The issues here include the specified percentage of local costs, what components and processes are to be included in calculating the costs of productio n, and the period over which costs are to be calculated.
The Working Groups on Country of Origin Labelling recommended that, where the Australian input exceeded 85% of the cost of production, goods might be labelled ‘Made in Australia’ without qualification.(33) The Senate Standing Committee on Legal and Constitutional Affairs received submissions suggesting percentages of Australian input of between 85% and 95%. The Committee also received evidence that many Australian consumers believe that ‘Made in Australia’ means close to 100% Australian ingredients and processing.(34) The Minister for Customs and Consumer Affairs has explained the adoption of a figure of 50% by saying that a higher threshold would disadvantage many local industries which have always been considered to be producing Australian products. He went on to say:
These firms employ Australians and invest in Australia’s future. Who would tell a person working at General Motors-Holden or Ford that the cars they are making are not Australian, just because some of their components are imported? Our trading partners do not hesitate to recognise these products as Australia; nor should we.(35)
The Minister foreshadowed a public education campaign to make Australian consumers aware of the meaning of country of origin representations.
On the question of what is to be inclu ded in measuring the costs of production, the Working Groups recommended a system based on the practice of the Australian Customs Service which would include the cost of Australian materials received into the factory, manufacturing wages, factory overhead expenses, research and development, and the cost of internal containers. Sales tax, import duty, insurance charges, outer packaging, distribution and advertising costs would be excluded from the calculation.(36) The current Bill appears to follow this recommendation although the details of how costs are to be attributed throughout the production chain have yet to be spelt out.
The issue of the comparative cost of production also came up in the Bush Friends case. Comparative cost figures were given to the court but the court regarded them as unhelpful. Judge Davies noted that there was a considerable difficulty in using a comparison of labour costs because wages in China were so much lower than wages in Australia. Accordingly, he held that a mere comparison of cost figures did not accurately indicate the extent of the work done in one country as against that carried out in another.(37)
Country of origin rules were first introduced to gather statistics to assis t in determining supply and demand. Subsequently, countries entered into tariff arrangements and it became important to label goods so that a differentiation could be made for tariff and quota purposes. What was a relatively simple process, when countries were both the producer and exporter of the finished product, has now become very complex. The increased globalisation of business and the economic interdependence of countries have made the identification of the nationality of a product very difficult. Products today contain parts or ingredients from, or have undergone manufacturing processes in many countries before ending up on our shelves. The situation is not confined to technical goods but also applies to food manufacture where minor but important ingredients (such as colouring agents, concentrates and other additives) may be imported and added to the product for domestic consumption.
The World Trade Organisation recognises rules of origin used by Member countries in applications such as government procurement and trade statistics. Reports of surveys indicate that a majority of Australian consumers believe that buying Australian made products helps to support Australian industry, enterprise and employment.(38) Since 1986 Australian governments have supported the Australian Made campaign to encourage consumers to purchase locally made products in preference to imported goods, where quality and price were comparable. The financial allocation in 1994/95 (the last year in which the Australian Made campaign was financed by the Commonwealth Government) was $1.5 million. The Australian Made campaign was evaluated in 1994 by Marsden Jacob Associates. It was found to have had success in creating new jobs and in increasing Australian manufacturing output.(39)
The Commonwealth owns the Australian Made certification mark (logo), a green and gold triangle containing a representation of a bounding kangaroo. The logo has been available under licence to manufacturers for inclusion on their product.
Proposed section 65AB establishes the general test for country of origin representations. The test to be adopted is that the goods were ‘substantially transformed’ (as set out in proposed section 65AE ) and that 50% or more of the cost of producing or manufacturing the goods (as determined under Subdivision B of Part 1 of this Bill) occurred in the country to which a representation of origin is being made.
The effect of proposed section 65AC is to establish a test for representations that goods are the ‘Product of’ or ‘Produce of’ a country. Those descriptors may only be used if each of the significant ingredients or components of the goods come from the country of representation and virtually all of the production or manufacturing processes associated with the goods occur in that country.
The purpose of proposed section 65AD is to enable a stricter test to apply to goods licensed to carry a prescribed logo. Subsection 65AD(2) enables regulations to be made which may prescribe a higher than 51% component of the costs of production or manufacture for goods carrying a specified logo.
Proposed section 65AE defines the term ‘substantially transformed’. According to this definition, for a substantial transformation to occur, goods must undergo a fundamental change which alters their appearance, purpose or how they work. The effect of proposed subsection 65AE(2) is to enable regulations to be made which specify when a change is not a ‘fundamental change’.
Proposed subdivision B provides for the method to be used when calculating the costs of production or manufacture. The total costs of producing or manufacturing a good is defined as the sum of the expenditure on materials (as determined under proposed section 65AJ ), the sum of expenditure on labour (determined under proposed section 65AK ), and the sum of expenditure on overheads (determined under proposed section 65AL ). ‘Materials’ is defined in proposed section 65AG to include unmanufactured raw products, manufactured inputs, and the retail packaging in which the product is offered for sale. The retail packaging is defined as the ‘inner container’ to distinguish it from the outer packaging used when goods are transported. An example is given of a tin of tomatoes. The tin is included in the calculation of production costs under the definition of an ‘inner container’. The cardboard box in which the tins are packed for storage or transport is not.
Proposed sections 65AJ, 65AK, and 65AL provide a legislative framework for what can be included in the calculation of production costs.
All the costs of materials used in the production or manufacture of goods may be counted ( proposed section 65AJ ) with the exception of costs, or a portion of the costs, that may be disallowed by regulation ( proposed paragraph 65AJ(2)(a) ). Under proposed paragraph 65AJ(2)(b) the Minister is also able to make regulations prescribing the manner in which the cost of a material may be worked out. The Minister is given these powers to make regulations in order to address any possible uncertainty about how costs are to be attributed throughout the production chain.
The effect of proposed section 65AK is to include all labour costs that can be ‘reasonably allocated’ (the term is not defined in the Bill) to the production or manufacture of products in the calculation of production costs. Again the Minister is able to prescribe in regulations a manner for determining the cost of labour, and to disallow particular labour costs ( proposed subsection 65AK(2) .
Proposed section 65AL deals with the calculation of expenditure on overheads. All overheads that can ‘reasonably be allocated’ to the production or manufacture of the goods may be included, except where explicitly disallowed by virtue of a regulation made under proposed paragraph 65Al(2)(a) . The Minister is given the power to make regulations prescribing the manner in which the costs of overheads may be determined.
Proposed section 65AM enables the Minister to make regulations prescribing general rules to be followed when dividing the total costs of production between different countries. The same rules are to be used to allocate the costs of production to Australian and to overseas businesses in the production chain. This power to make regulations will enable the Minister to fine tune the working of the production cost test.
The effect of proposed subdivision C (Evidentiary matters) is to confirm that a person who seeks to rely in court on the defences provided by the proposed new Division 1AA (Country of Origin Representations), bears the usual onus of proof.
Part 2 of Schedule 1 contains a number of amendments that are consequential on the inclusion of proposed new Division 1AA. The effect of Item 2 is to limit the application of country of origin representations to goods sold or made available for retail sale in Australia. The proposed new Division 1AA has no extra-territorial application. Items 3-12 insert references to the new Division 1AA in the Trade Practices Act 1974 thereby ensuring consistency.
Schedule 2 of the Bill includes five other amendments to the Trade Practices Act 1974 which have no connection with country of origin representations. Item 1 concerns the appointment of Commissioners to the Australian Competition and Consumer Commission (ACCC). The effect of the proposed amendment is to include consideration of small business experience as a relevant factor in appointing ACCC Commissioners. The second change brought about by Item 1 is to require the Minister to be satisfied that all the factors outlined in the subsection have been met before the Governor-General appoints an ACCC Commissioner.
The effect of Item 2 is to require the Minister, rather than the Attorney-General, to appoint a Deputy President or Acting Deputy President to the position of Acting President of the Australian Competition Tribunal should a vacancy occur.
Item 3 enables the ACCC to take representative actions on matters of alleged contravention of Part IV (Restrictive Trade Practices) of the Trade Practices Act 1974 . At present the ACCC’s powers to take such actions under subsection 87(1B) are limited to Part IVA (Unconscionable Conduct) and Part V (Consumer Protection). Item 5 is retrospective legislation. It extends the rights granted under Item 3 to include conduct committed before this amendment is passed.
1. A list of Commonwealth, State and Territory legislative requirements for country of origin labelling as at May 1993 is included in the Report of the Working Groups on Country of Origin Labelling of Consumer Products , Canberra, 1993, Attachment A.
2. The Trade Practices Commission also published draft guidelines on ‘Made in Australia’ labelling, Australian Trade Practices Reporter , CCH, Sydney, 1986, para. 30-361.
3. Thorpe v C A Imports Pty Ltd (1990) ATPR 40-996.
4. Siddons Pty Ltd v Stanley Works Pty Ltd (1990-91) 99 ALR 499.
5. Netcomm (Aust) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101.
6. Bailey, Brendan, It Ain’t necessarily so: country of origin labelling , Department of the Parliamentary Library, Canberra, 1994 (Current issues brief, Law and Public Administration Group 20/1994), 9.
7. Report of the Working Groups on country of origin labelling of consumer products , Federal Bureau of Consumer Affairs, Canberra, 1993.
8. Bini, Marco, Trade Practices Amendment (Origin Labelling) Bill 1994 , Department of the Parliamentary Library, Canberra, 1994 (Bills Digest 60/1994).
9. Explanatory memorandum , Trade Practices Amendment (Origin Labelling) Bill 1994, 5
10. Senate, Debates , 2 March 1995, 1281-2.
11. Bailey, Brendan, op cit, 9.
12. The Trade Practices Amendment (Origin Labelling) Bill 1994 , House of Representatives, Standing Committee on Industry, Science and Technology, Canberra, 1994
13. The Trade Practices Amendment (Origin Labelling) Bill 1994 , Senate Standing Committee on Legal and Constitutional Affairs, Canberra, 1994.
14. Trade Practices Commission v QDSV Holdings Pty Ltd (trading as Bush Friends Australia) (1994) 128 ALR 551.
15. Ibid, 558.
16. QSVD Holdings Pty Ltd (t/as Bush Friends Australia) v Trade Practices Commission (1995), 131 ALR 493 (at 513).
17. Ibid, 513.
18. Pengilley, Warren, ‘Toy koalas and country of origin: the Trade Practices Act and ‘small print’ exclusions’, Australian and New Zealand trade practices law bulletin, ,v.10 (9), March 1995, 102.
19. Explanatory Memorandum , Trade Practices Amendment (Country of Origin Representations) Bill 1998, 2.
20. Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd  1100 FCA (24 October 1977), 39 IPR, 439.
21. Ibid, 445.
22. QSVD Holdings Pty Ltd (t/as Bush Friends Australia) v Trade Practices Commission (1995), 131 ALR 493 (at 310-313).
23. Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd  1100 FCA (24 October 1977).
24. Explanatory Memorandum , op cit, 2.
25. Second Reading Speech , Trade Practices Amendment (Country of Origin Representations) Bill 1998, House of Representatives, Debates , 8 April 1998, 1917.
26. A number of Australian States or regions have attempted to foster consumer awareness of their local products by creating regional ‘brands’. The 1994 Bill was criticised, particularly by State Governments and industry, for effectively prohibiting the use of local representations such as ‘Product of Tasmania’ or ‘Made in Queensland’. The Bill did this by prohibiting the use of any alternatives to the defined terms ‘Product of Australia’ or ‘Made in Australia’. Under the 1994 Bill, if manufacturers or suppliers wished to identify the town, city, region or State of origin of goods, they could only do so by adding an alternative identification to the authorised words, such as ‘Proudly Tasmanian’ or ‘Made in Australia at Bendigo’. The current Bill contains no such restrictions. However, if a manufacturer chooses to label a good, for example, both ‘Made in Australia’ and ‘Product of Tasmania’, the manufacturer will know with certainty what ‘Made in Australia’ will mean under the current Bill, but will have no certainty under this legislation about the meaning of the term ‘Product of Tasmania’. Such local representations will be subject to testing under Section 52 of the Trade Practices Act 1974 and/or under the equivalent provisions of State Fair Trading laws.
27. Explanatory Memorandum , op cit, 11.
28. Trade Practices Commission v QDSV Holdings Pty Ltd (trading as Bush Friends Australia) (1994) 128 ALR 551 (at 558).
29. LaNasa, Joseph A, ‘Rules of origin under the North American Free Trade Agreement: a substantial transformation into objectively transparent protectionism’, Harvard International Law Journal , v.34, no.2, Spring 1993, 381-443.
30. LaNasa, ibid, 385.
31. Second Reading Speech , op cit, 1917.
32. Explanatory Memorandum , op cit, 6. See also Agreement on rules of origin , World Trade Organisation, [n.d.], available on the Internet at http://www.wto.org/
33. Report of the Working Groups on Country of Origin Labelling of Consumer Products , op cit, ii.
34. Senate Standing Committee on Legal and Constitutional Affairs, op cit, 10 and footnote 31 on that page. This issue is further discussed in the Dissenting Report by Senator Sid Spindler, [33-34].
35. Second Reading Speech , op cit, 1917.
36. Report of the Working groups on Country of Origin Labelling of Consumer Products , op cit, ii.
37. Trade Practices Commission v QDSV Holdings Pty Ltd (trading as Bush Friends Australia) (1994) 128 ALR 551 (at 556).
38. For example, the Advance Australia Foundation reported on a survey conducted by the Tavener Research Company in May 1995 which stated that ‘79% of consumers recognise buying Australian Made helps the economy and balance of trade’, and ‘95% of consumers agree that buying Australian Made products in preference to imports creates jobs for Australians’. The survey also suggested that the Australian Made campaign had been successful in encouraging more Australian consumers to purchase goods carrying the Australian Made logo. In May 1995 86% of consumers said they had purchased products carrying the green and gold symbol, compared with only 62% of consumers surveyed in May 1988. Australian Made , Advance Australia Foundation, Melbourne, July 1955, 1.
39. The Australian Made Campaign: relevance, rationale and general equilibrium effects in unemployment and full employment , Marsden Jacob Associates, Camberwell, Vic., 28 March 1994.
14 May 1998
Bills Digest Service
Information and Research Services
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