An Act relating to Commerce with other Countries
Part I—Preliminary
1 Short title and commencement
This Act may be cited as the Commerce (Trade Descriptions) Act 1905 and shall commence on a day to be fixed by proclamation not being earlier than six months after the passing of this Act.
1A General administration of Act in relation to imports
The Comptroller‑General of Customs has the general administration of this Act in so far as it relates to imports.
2 Incorporation
This Act shall be incorporated and read as one with the Customs Act 1901.
Note: Chapter 2 of the Criminal Code applies to this Act in the way described in section 5AA of the Customs Act 1901.
3 Interpretation
In this Act, unless the contrary intention appears:
Comptroller‑General of Customs means the person who is the Comptroller‑General of Customs in accordance with subsection 11(3) or 14(2) of the Australian Border Force Act 2015.
Officer means an officer of Customs.
Trade description, in relation to any goods, means any description, statement, indication, or suggestion, direct or indirect:
(a) as to the nature, number, quantity, quality, purity, class, grade, measure, gauge, size, or weight of the goods; or
(b) as to the country or place in or at which the goods were made or produced; or
(c) as to the manufacturer or producer of the goods or the person by whom they were selected, packed, or in any way prepared for the market; or
(d) as to the mode of manufacturing, producing, selecting, packing, or otherwise preparing the goods; or
(e) as to the material or ingredients of which the goods are composed, or from which they are derived; or
(f) as to the goods being the subject of an existing patent, privilege, or copyright;
and includes an import entry relating to goods; and any mark which according to the custom of the trade or common repute is commonly taken to be an indication of any of the above matters shall be deemed to be a trade description within the meaning of this Act.
False trade description means a trade description which, by reason of anything contained therein or omitted therefrom, is false or likely to mislead in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, which makes the description false or likely to mislead in a material respect.
4 Application of trade description
(1) A false trade description shall be deemed to be applied to goods if:
(a) it is applied to the goods themselves; or
(b) it is applied to any covering, label, reel, or thing used in connexion with the goods; or
(c) it is used in any manner likely to lead to the belief that it describes or designates the goods.
(1A) A trade description which is required by the regulations to be applied to any goods shall be deemed to be applied to the goods if:
(a) it is applied to the goods themselves; or
(b) it is used in relation to the goods in the manner prescribed.
(2) Covering includes any stopper, glass, bottle, vessel, box, capsule, case, frame, or wrapper; and label includes any band or ticket.
Part II—Inspection of imports and exports
5 Inspection of imports and exports
(1) An officer may inspect and examine goods that are, or that the officer reasonably believes are, goods prescribed by the regulations 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.
(2) The officer may where practicable take samples of any goods inspected by him or her pursuant to this section, and the samples so taken shall be dealt with as prescribed.
(3) For the purposes of this section an officer may enter any ship, wharf or place, and may open any packages, and may do all things necessary to enable him or her to carry out his or her powers and duties under this section.
(4) The Comptroller‑General of Customs may, by writing, give directions concerning:
(a) the circumstances in which the powers under this section may be exercised; and
(b) the officers of Customs who are entitled to exercise those powers; and
(c) the manner and frequency of reporting to the Comptroller‑General of Customs concerning the exercise of those powers.
(5) A direction given for the purposes of subsection (4) is a legislative instrument.
6 Notice of intention to export
(1) Every person who intends to export any goods of a kind or class required under this Act to be inspected or examined by an officer, shall, if required to do so by regulation, before the goods are shipped, give notice, in accordance with the regulations, to an officer of his or her intention to export the goods and of the place where the goods may be inspected.
Penalty: 10 penalty units.
(2) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that the notice required to be given is notice in accordance with the regulations.
Note: For strict liability, see section 6.1 of the Criminal Code.
Part III—Imports
7 Prohibition of imports not bearing prescribed trade description
(1) The regulations may prohibit the importation or introduction into Australia of any goods unless there is applied to them a trade description of such character, relating to such matters, and applied in such manner, as is prescribed.
(2) Subject to subsection (3), goods imported in contravention of any regulation made for the purposes of subsection (1) are forfeited to the Crown.
(3) If the Comptroller‑General of Customs is satisfied that the contravention was not intentional or reckless:
(a) the Comptroller‑General of Customs may, by notice in writing given to the owner or importer of the goods concerned, require the owner or importer:
(i) to apply the prescribed trade description; or
(ii) to export the goods;
within a period specified in the notice; and
(b) if the owner or importer complies with the notice, subsection (2) does not apply in respect of the goods.
(3A) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an information standard as in force or existing from time to time.
(3B) For the purposes of subsection (3A), an information standard is an information standard made under section 134, or declared under section 135, of Schedule 2 to the Competition and Consumer Act 2010.
(4) No regulations made for the purposes of this section shall take effect until after the expiration of not less than three months from notification in the Gazette.
8 Imported goods found in Australia without prescribed trade description
All imported goods to which a trade description is by the regulations required to be applied, and which are found in Australia without the prescribed trade description, shall until the contrary is proved be deemed, subject to the regulations, to have been imported in contravention of the regulations.
9 Importation of falsely marked goods
(1) A person shall not import any goods to which a false trade description is applied.
Penalty: 100 penalty units.
(2) In a prosecution for an offence against subsection (1) it is a defence if the defendant proves that he or she did not intentionally import the goods in contravention of that subsection.
Note: For rules about representations as to the country of origin of goods, see section 10AA.
9A Imported goods found in Australia with false trade description
All imported goods found in Australia which bear a false trade description shall, until the contrary is proved, be deemed to have been imported in contravention of this Act.
Note: For rules about representations as to the country of origin of goods, see section 10AA.
10 Forfeiture of falsely marked goods
(1) Goods to which a false trade description is applied are prohibited to be imported.
Note: For rules about representations as to the country of origin of goods, see section 10AA.
(2) Subject to subsection (3), goods imported in contravention of subsection (1) are forfeited to the Crown.
(3) If the Comptroller‑General of Customs is satisfied that the contravention was not intentional or reckless:
(a) the Comptroller‑General of Customs may, by notice in writing given to the owner or importer of the goods concerned, require the owner or importer to correct the false trade description within a period specified in the notice; and
(b) if the owner or importer complies with the notice, subsection (2) does not apply in respect of the goods.
10AA Country of origin representations do not contravene certain provisions
(1) For the purposes of sections 9, 9A and 10, goods:
(a) do not have a false trade description applied to them; and
(b) do not bear a false trade description;
only by the making of a representation of a kind referred to in an item in the first column of the table in subsection 255(1) of Schedule 2 to the Competition and Consumer Act 2010, if the requirements of the corresponding item in the second column are met.
(2) Subsections 255(2), (5), (7), (8) and (9) of Schedule 2 to the Competition and Consumer Act 2010 apply in relation to subsection (1) of this section in a way corresponding to the way in which they apply in relation to subsection 255(1) of that Schedule.
(3) Regulations made for the purposes of subsection 255(3) of Schedule 2 to the Competition and Consumer Act 2010 apply in relation to subsection 255(2) of that Schedule (as applied by subsection (2) of this section) in a way corresponding to the way in which they apply in relation to subsection 255(2) of that Schedule.
Part IV—Exports
10A Application of Part
This Part does not apply in relation to goods that are prescribed goods within the meaning of the Export Control Act 1982.
11 Prohibition of exports not bearing the prescribed trade description
(1) The regulations may prohibit the exportation of any goods, unless there is applied to them a trade description of such character, relating to such matters, and applied in such manner, as is prescribed.
(2) Subject to subsection (3), goods to which the prescribed trade description has not been applied that are entered for export, put on board any ship for export or brought to any wharf or place for export, are forfeited to the Crown.
(3) If the Comptroller‑General of Customs is satisfied that the entry for export, putting on board a ship for export, or bringing to a wharf or place for export, of goods to which the prescribed trade description had not been applied was not intentional or reckless:
(a) the Comptroller‑General of Customs may, by notice in writing given to the owner or exporter of the goods concerned, require the owner or exporter:
(i) to apply the prescribed trade description to the goods before the exportation of the goods and within a period specified in the notice; or
(ii) to withdraw that entry, to remove the goods from that ship, or to remove the goods from that wharf or place, as the case requires, within the period so specified; and
(b) if the owner or exporter complies with the notice, subsection (2) does not apply in respect of the goods.
12 Penalty for applying false trade description to exports
(1) No person shall:
(a) intentionally apply any false trade description to any goods intended or entered for export or put on any ship or boat for export, or brought to any wharf or place for the purpose of export; or
(b) intentionally export or enter for export or put on any ship or boat for export any goods to which a false trade description is applied.
(2) A person who contravenes subsection (1) commits an offence and is punishable on conviction by a fine not exceeding 100 penalty units.
13 Exportation of falsely marked goods
(1) Goods to which any false trade description is applied are prohibited to be exported.
(2) Subject to subsection (3), goods to which a false trade description has been applied that are entered for export, put on board any ship for export or brought to any wharf or place for export, are forfeited to the Crown.
(3) If the Comptroller‑General of Customs is satisfied that entry for export, putting on board a ship for export or bringing to a wharf or place for export, of goods to which a false trade description has been applied was not intentional or reckless:
(a) the Comptroller‑General of Customs may, by notice in writing given to the owner or exporter of the goods concerned, require the owner or exporter:
(i) to correct the false trade description before the exportation of those goods and within a period specified in the notice; or
(ii) to withdraw that entry, to remove the goods from that ship, or to remove the goods from that wharf or place, as the case requires, within the period so specified; and
(b) if the owner or exporter complies with the notice, subsection (2) does not apply in respect of the goods.
14 Marking of goods for export
Any goods intended for export which have been inspected in pursuance of this Act may in manner prescribed be marked with the prescribed trade description.
Part V—Miscellaneous
15 Review of decisions
(1) Applications can be made to the Administrative Appeals Tribunal for review of decisions of the Comptroller‑General of Customs under subsection 7(3), 10(3), 11(3) or 13(3).
(2) In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
Note: Subsection 3(3) of the Administrative Appeals Tribunal Act 1975 extends the ordinary meaning of decision.
16 Trade description disclosing trade secrets
The regulations under sections seven and eleven of this Act shall not prescribe a trade description which discloses trade secrets of manufacture or preparation, unless in the opinion of the Minister the disclosure is necessary for the protection of the health or welfare of the public.
17 Regulations
(1) The Governor‑General may make regulations not inconsistent with this Act prescribing all matters and things required or permitted by this Act to be prescribed or which are necessary and convenient to be prescribed for carrying out or giving effect to this Act, and particularly for the analysis of samples taken under this Act, and the extent to which certificates of analysis shall be prima facie evidence in proceedings under this Act of the facts therein stated.
(2) Without limiting subsection (1), the regulations may prescribe penalties, not exceeding 50 penalty units, for offences against the regulations.
