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Commerce (Trade Descriptions) Act 1905

Authoritative Version
  • - C2015C00415
  • In force - Superseded Version
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Act No. 16 of 1905 as amended, taking into account amendments up to Customs and Other Legislation Amendment (Australian Border Force) Act 2015
An Act relating to Commerce with other Countries
Administered by: Immigration and Border Protection
Registered 14 Aug 2015
Start Date 01 Jul 2015
End Date 04 Mar 2016

Commerce (Trade Descriptions) Act 1905

No. 16, 1905

Compilation No. 7

Compilation date:                              1 July 2015

Includes amendments up to:            Act No 41, 2015

Registered:                                         14 August 2015

 

About this compilation

This compilation

This is a compilation of the Commerce (Trade Descriptions) Act 1905 that shows the text of the law as amended and in force on 1 July 2015 (the compilation date).

This compilation was prepared on 23 July 2015.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part I—Preliminary                                                                                                              1

1............ Short title and commencement............................................................. 1

1A......... General administration of Act in relation to imports............................ 1

2............ Incorporation....................................................................................... 1

3............ Interpretation....................................................................................... 1

4............ Application of trade description.......................................................... 2

Part II—Inspection of imports and exports                                                           4

5............ Inspection of imports and exports....................................................... 4

6............ Notice of intention to export................................................................ 4

Part III—Imports                                                                                                                   6

7............ Prohibition of imports not bearing prescribed trade description.......... 6

8............ Imported goods found in Australia without prescribed trade description 6

9............ Importation of falsely marked goods................................................... 7

9A......... Imported goods found in Australia with false trade description.......... 7

10.......... Forfeiture of falsely marked goods..................................................... 7

Part IV—Exports                                                                                                                   8

10A....... Application of Part.............................................................................. 8

11.......... Prohibition of exports not bearing the prescribed trade description..... 8

12.......... Penalty for applying false trade description to exports........................ 9

13.......... Exportation of falsely marked goods................................................... 9

14.......... Marking of goods for export............................................................. 10

Part V—Miscellaneous                                                                                                      11

15.......... Review of decisions.......................................................................... 11

16.......... Trade description disclosing trade secrets......................................... 11

17.......... Regulations....................................................................................... 11

Endnotes                                                                                                                                    12

Endnote 1—About the endnotes                                                                            12

Endnote 2—Abbreviation key                                                                                14

Endnote 3—Legislation history                                                                             15

Endnote 4—Amendment history                                                                           17


An Act relating to Commerce with other Countries

Part IPreliminary

  

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 IIInspection of imports and exports

  

5  Inspection of imports and exports

             (1)  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.

             (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 disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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:  $1,000.

             (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 IIIImports

  

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.

             (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:  $10,000.

             (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.

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.

10  Forfeiture of falsely marked goods

             (1)  Goods to which a false trade description is applied are prohibited to be imported.

             (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.

Part IVExports

  

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) is guilty of an offence and is punishable on conviction by a fine not exceeding $10,000.

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 VMiscellaneous

  

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 Governor‑General the disclosure is necessary for the protection of the health or welfare of the public.

17  Regulations

                   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.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

 

A = Act

o = order(s)

ad = added or inserted

Ord = Ordinance

am = amended

orig = original

amdt = amendment

par = paragraph(s)/subparagraph(s)

c = clause(s)

    /sub‑subparagraph(s)

C[x] = Compilation No. x

pres = present

Ch = Chapter(s)

prev = previous

def = definition(s)

(prev…) = previously

Dict = Dictionary

Pt = Part(s)

disallowed = disallowed by Parliament

r = regulation(s)/rule(s)

Div = Division(s)

Reg = Regulation/Regulations

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislative Instruments

rep = repealed

gaz = gazette

rs = repealed and substituted

LI = Legislative Instrument

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Commerce (Trade Descriptions) Act 1905

16, 1905

8 Dec 1905

8 June 1906 (see Gazette 1906, p. 131)

 

Commerce (Trade Descriptions) Act 1926

37, 1926

11 Aug 1926

11 Aug 1926

Commerce (Trade Descriptions) Act 1930

15, 1930

18 July 1930

18 July 1930

Commerce (Trade Descriptions) Act 1933

13, 1933

24 July 1933

24 July 1933

Statute Law Revision Act 1950

80, 1950

16 Dec 1950

31 Dec 1950

s 16 and 17

Statute Law Revision (Decimal Currency) Act 1966

93, 1966

29 Oct 1966

1 Dec 1966

Statute Law Revision Act 1973

216, 1973

19 Dec 1973

31 Dec 1973

s 9(1) and 10

Statute Law Revision Act 1981

61, 1981

12 June 1981

Part VIII (s 22, 23): 12 June 1981 (s 2(1))

s 23(2)

Commerce (Trade Descriptions) Amendment Act 1981

151, 1981

26 Oct 1981

26 Oct 1981

Export Control (Miscellaneous Amendments) Act 1982

48, 1982

9 June 1982

1 Jan 1983 (s 2 and gaz 1982, No G48)

Customs Administration (Transitional Provisions and Consequential Amendments) Act 1985

39, 1985

29 May 1985

10 June 1985 (s 2 and gaz 1985, No S194)

s 4

Customs Administration (Transitional Provisions and Consequential Amendments) Act 1986

10, 1986

13 May 1986

13 May 1986 (s 2(1))

s 2(2) and 4

Industry, Technology and Commerce Legislation Amendment Act 1992

168, 1992

11 Dec 1992

Part 5 (s 14, 15): 30 July 1975 (s 2(2))
Remainder: 11 Dec 1992 (s 2(1))

Customs, Excise and Bounty Legislation Amendment Act 1995

85, 1995

1 July 1995

Sch 3 (items 1–7): 1 July 1995 (s 2(5))
s 18, 20 and Sch 9 (items 48–50): 1 July 1995 (s 2(1) item 2(1))

s 18 and 20

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001

24, 2001

6 Apr 2001

s 4(1), (2) and Sch 7: 24 May 2001 (s 2(1)(a))

s 4(1) and (2)

Statute Law Revision Act 2008

73, 2008

3 July 2008

Sch (items 160–164): 4 July 2008 (s 2(1) item 64)

Acts and Instruments (Framework Reform) Act 2015

10, 2015

5 Mar 2015

Sch 3 (items 67, 348, 349): awaiting commencement (s 2(1) item 2)

Sch 3 (items 348, 349)

Customs and Other Legislation Amendment (Australian Border Force) Act 2015

41, 2015

20 May 2015

Sch 2 (items 2, 3, 8), Sch 5 (items 24‑26), Sch 6 (items 18‑22) and Sch 9: 1 July 2015 (s 2(1) items 2, 7)

Sch 2 (item 8), Sch 5 (item 26), Sch 6 (item 22) and Sch 9

Endnote 4—Amendment history

Provision affected

How affected

Part I

 

Heading to Part I.................

ad. No. 216, 1973

Heading preceding s. 1........

rep. No. 216, 1973

s. 1A...................................

ad. No. 39, 1985

 

am. No. 85, 1995; No 41, 2015

Note to s. 2.........................

ad. No. 24, 2001

s. 3......................................

am. No. 15, 1930; No. 13, 1933; No. 80, 1950; No. 216, 1973; No. 48, 1982; No. 85, 1995; No 41, 2015

s. 4......................................

am. No. 15, 1930

Part II

 

Heading to Part II................

ad. No. 216, 1973

Heading preceding s. 5........

rep. No. 216, 1973

s. 5......................................

am. No. 15, 1930; No. 85, 1995; No. 73, 2008; No 10, 2015; No 41, 2015

s. 6......................................

am. No. 15, 1930; No. 13, 1933; No. 80, 1950; No. 93, 1966; No. 216, 1973; No. 48, 1982; No. 168, 1992; No. 24, 2001; No. 73, 2008; No 41, 2015

Part III

 

Heading to Part III...............

ad. No. 216, 1973

Heading preceding s. 7........

rep. No. 216, 1973

s. 7......................................

am. No. 15, 1930; No. 216, 1973; No. 10, 1986; No. 85, 1995; No 41, 2015

s. 8......................................

am. No. 15, 1930

s. 9......................................

am. No. 93, 1966

 

rs. No. 216, 1973

 

am. No. 168, 1992; No. 24, 2001; No. 73, 2008

s. 9A...................................

ad. No. 15, 1930

s. 10....................................

am. No. 216, 1973; No. 10, 1986; No. 85, 1995

 

rs. No. 85, 1995

 

am No 41, 2015

Part IV

 

Heading to Part IV...............

ad. No. 216, 1973

s. 10A.................................

ad. No. 48, 1982

Heading preceding s. 11......

rep. No. 216, 1973

s. 11....................................

am. No. 15, 1930; No. 13, 1933; No. 80, 1950; No. 216, 1973; No. 48, 1982; No. 85, 1995; No 41, 2015

s. 12....................................

am. No. 93, 1966; No. 151, 1981; No. 48, 1982; No. 168, 1992; No. 24, 2001

s. 13....................................

am. No. 15, 1930; No. 13, 1933; No. 80, 1950; No. 216, 1973; No. 48, 1982; No. 85, 1995

 

rs. No. 85, 1995

 

am No 41, 2015

Part V

 

Heading to Part V................

ad. No. 216, 1973

s. 15....................................

am. No. 37, 1926

 

rep. No. 15, 1930

 

ad. No. 61, 1981

 

am. No. 48, 1982; No. 10, 1986; No. 85, 1995

 

rs. No. 85, 1995

 

am No 41, 2015

Heading preceding s. 17......

rep. No. 216, 1973

s. 18....................................

rep. No. 80, 1950