House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Hon. Peter Dutton MP)

Schedule 7 - Trade descriptions

Commerce (Trade Descriptions) Act 1905

Background

87. The Commerce (Trade Descriptions) Act deals with the importation and exportation of goods without a prescribed trade description and the importation and exportation of goods to which a false trade description has been applied.

88. The Commerce (Trade Descriptions) Act contains a number of offence provisions that impose penalties. Section 6 imposes a penalty on a person in respect of his or her failure to give notice to an officer of his or her intention to export goods. Section 9 imposes a penalty in relation to the importation of goods bearing a false trade description. Section 12 contains a penalty for applying a false trade description to exports.

Item 1 - Subsection 5(1)

89. Subsection 5(1) of the Commerce (Trade Descriptions) Act currently provides that an officer may inspect and examine all prescribed goods which are imported, or which are entered for export or brought for export to any wharf or place or are in course of manufacture or preparation for export.

90. The Regulations made under section 17 of the Commerce (Trade Descriptions) Act. prescribe the goods that an officer may inspect and examine under section 5.

91. This item amends subsection 5(1) so that the reasonable belief of an officer is an element of the power to inspect and examine goods, as opposed to forming part of the description of the goods that can be inspected and examined. New subsection 5(1) provides, in relation to imported goods, that an officer may inspect and examine goods that are, or that the officer reasonably believes are, goods prescribed by the regulations which are imported. This amendment better reflects current drafting practice.

Item 2 - Section 16

92. Section 16 of the Commerce (Trade Descriptions) Act currently provides that the regulations under sections 7 and 11 of this Act shall not prescribe a trade description which discloses trade secrets of manufacture or preparation, unless in the opinion of the Governor-General the disclosure is necessary for the protection of the health or welfare of the public.

93. The effect of this amendment is that the Minister, rather than the Governor-General, will form an opinion that the disclosure of a trade description that discloses trade secrets of manufacture or preparation is necessary for the protection of the health or welfare of the public. The provision reflects current drafting practice, which recognises that the Minister is responsible for forming opinions and the Governor-General acts on the advice of the relevant Minister.

Item 2 - Section 17

94. This is a consequential amendment to the amendment made by item 3 below, which adds a new subsection 17(2) to the Commerce (Trade Descriptions) Act.

Item 3 - At the end of section 17

95. Section 17 of the Commerce (Trade Descriptions) Act currently provides that the Governor-General may make regulations prescribing all matters and things required or permitted by the Act to be prescribed or which are necessary and convenient to be prescribed for carrying out or giving effect to the Act.

96. This item amends section 17 of the Commerce (Trade Descriptions) Act so that it provides that the regulations may prescribe penalties, not exceeding 50 penalty units, for offences against the CI Regulations. The new power will not limit the general regulation-making power in new subsection 17(1) of the Commerce (Trade Descriptions) Act.

Item 4 - Transitional provision

97. This item preserves the CI Regulations that were made under section 17 of the Commerce (Trade Descriptions) Act before commencement. This provision is necessary as the above amendments will split current section 17 into two separate subsections.