Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the International Arbitration Amendment Bill 2010 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Airports (On-Airport Activities Administration) Validation Bill 2010

The Airports (On-Airport Activities Administration) Validation Bill 2010 will validate potentially invalid infringement notices and other matters done by persons not validly authorised under the Airports (Control of On-Airport Activities) Regulations 1997 in relation to certain activities at the following Commonwealth leased airports:

Adelaide, Alice Springs, Archerfield, Bankstown, Brisbane, Camden, Canberra, Darwin, Essendon, Gold Coast, Hobart, Jandakot, Launceston, Melbourne (Tullamarine), Moorabbin, Mount Isa, Parafield, Perth, Sydney (Kingsford-Smith), Tennant Creek and Townsville.

Under the Airports (Control of On-Airport Activities) Regulations, ‘authorised persons,’ who must be appointed by the Secretary of the Department or the Secretary’s delegate, are empowered to issue infringement notices for contraventions of certain rules relating to the airport including parking infringement notices.

In addition, authorised persons may perform certain other actions and exercise certain other powers.

For example, under regulation 110, an authorised person for an airport may direct a driver of a vehicle used at the airport in contravention of a parking control to move the vehicle.

Following an examination of parking infringement notices issued at certain airports and other authorisations recently, it has become apparent that the appointment of authorised persons at a number of airports has not been kept up to date, going as far back as 2004.

In some cases, this was due to the administrative oversight by the Department and, in some cases, that of the airports.

As a consequence, parking infringement notices issued and other actions performed by persons without a valid authorisation may be invalid and of no legal effect.

Payment of a parking infringement notice provides a person with immunity from prosecution for an alleged offence at the relevant airport.

This significantly reduces the potential penalty which a driver may be required to pay for committing the parking offence.

A driver may face a penalty five times the amount of the parking infringement notice should the matter be taken to court and the driver found to have committed the offence.

This legislation will confirm immunity from prosecution from the relevant offences of persons who received the infringement notices and paid the corresponding amount.

It is therefore important for the Government to act quickly to bring forward this legislation.

The Bill will validate all actions performed and powers exercised under the Regulations, including the issuance of parking infringement notices, at any current or former leased federal airport up until the Bill commences, to the extent that those actions or powers were performed or exercised by persons not validly authorised.

The Bill will provide the necessary legal certainty that each parking infringement notice and relevant other action are valid and legally effective.

On my instruction, the Department took immediate steps to address this oversight prospectively, by seeking advice from each airport and appointing as authorised persons the appropriate persons at each airport.

The Department is undertaking a full review of all processes and procedures relating to its administration of the Parking Infringement Notices Scheme and the Regulations more broadly in order to meet the standard required by the Government.

The authorisations are now all up to date and all parking infringement notices issued since 25 March of this year are valid. In the interim, this legislation is required to address the uncertainty about the validity of parking infringement notices issued prior to 25 March.

Australian Wine and Brandy Corporation Amendment Bill 2009

The Australian Wine and Brandy Corporation Amendment Bill 2009 amends the Australian Wine and Brandy Corporation Act 1980 (AWBC Act) to allow the Australia-European Community Agreement on Trade in Wine to enter into force, improve the Label Integrity Program and update the compliance provisions of the act.

The agreement was signed on 1 December 2008 in Brussels by the Minister for Foreign Affairs, Stephen Smith, and the European Commissioner for Agriculture, Mariann Fischer Boel, who said ‘the agreement achieves a balanced result for Europe and Australia’.

It is a significant improvement on the first wine agreement between Australia and the European Community signed in 1994 which left several items of negotiation unresolved and exposed a number of loopholes. These have been addressed in the replacement agreement through protracted negotiations over the last 14 years and extensive consultations with the Department of Foreign Affairs and Trade, the Attorney-General’s Department, IP Australia and the Australian Government Solicitor, all of whom support the amendment bill. In particular the Australian wine industry played a key role in the negotiating process and are keen to realise the benefits of the agreement.

Most notably, the agreement clarifies the original intention of the agreement by redefining, expanding and strengthening a number of provisions, the most notable intention being that of ensuring Australia’s reputation as a producer of wines of quality and integrity is preserved whilst promoting and enhancing access to this large and valuable market.

The key benefits to the Australian industry from the agreement include:

• European recognition of 16 Australian winemaking practices;
• a simpler and improved process for the approval of winemaking techniques that may be developed in the future;
• European protection of 112 Australian registered geographical indications including the Hunter, South Burnett, McLaren Vale and Bendigo;
• labelling requirements for Australian wine sold in European markets; and
• an effective dispute resolution system for trade related disputes.

In broad terms, the implications of these benefits mean that Australian producers will have to make fewer changes and concessions to sell their wine in the European Community through the easing of trade barriers that previously existed. It also means that the European Community implicitly recognises the provenance and prestige of Australian wines, which means our wines do not need to hide behind European names; they can market themselves independently.

To bring the agreement to fruition, a number of proposed amendments were essential to the AWBC Act, and the Trade Marks Act, to realign our domestic legislation with our new international obligations. The first set of amendments is required to implement the agreement. The second set is a range of changes (non-agreement related) to update and modernise the act by making the provisions more clear and comprehensive thus enabling the industry to operate more efficiently and effectively.

Schedule 1 of the bill amends the AWBC Act so that Australia’s domestic laws comply with the agreement. The bill provides rules for the protection of geographical indications (GIs), translations of foreign country GIs and traditional expressions.

A geographical indication identifies a good where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin, for example Champagne.

The bill also resolves issues around the meaning of false, misleading and deceptive practices in relation to GIs, traditional expressions and protected terms. This includes providing exceptions from the false and misleading provisions relating to the sale, export or import of wine, as they relate to GIs, for common English words.

The bill amends the Trade Marks Act 1995 so that its interpretation is consistent with that of the AWBC Act. This will entail amending common definitions relevant to the agreement and provide circumstances in which the Registrar of Trade Marks can amend the representation of a trademark or an application to register a trademark. The bill will clarify that trademarks which include a common English word that coincides with a geographical indication can be registered.

Some geographical indications are also common English words. Under the current system, using such words to present and describe a wine, even with their common meaning, may leave the owner open to prosecution in Australia. This is despite the fact that it would be unlikely consumers would be misled about the origin of the wine.

The AWBC Act and the Trade Marks Act are being amended so that this situation is avoided. The amendments will make it possible for common English words that are also geographical indications to be used as parts of the description and presentation of a wine, including in a trademark, as long as the use does not deceive or mislead the public as to the origin of the goods.

To give effect to our agreement obligations, the amendments provide a scheme to prevent the use of translations of registered geographical indications. The amendments provide for the registration of these translations on the new Register of Protected Geographical Indications and Other Terms so that Australian winemakers know the words they need to avoid using. For example, Burgundy, the translation of Bourgogne, will be registered.

Australia’s protection of geographical indications mean that registered trademarks containing a word or expression that is a registered geographical indication are in some circumstances not able to be used in the description and presentation of a wine. With additional geographical indications to be protected, more trademarks may be affected.

Currently, where a registered trademark contains a word or expression that is to be protected:

• as a registered geographical indication,
• as a registered translation of a registered geographical indication, or
• as a registered additional term
• the trademark may in some circumstances not be used in the description and presentation of a wine.

Consequently, the Trade Marks Act is also being amended to enable trademark owners to amend their marks without the need to apply for a new trademark. They will be able to remove the protected word or expression or substitute another term for it.

Minor changes are also being made to align the Trade Marks Act with the relevant provisions in the AWBC Act including the revised definition of geographical indications.

The act will provide the opportunity for producers in all foreign countries to register geographical indications and translations of those indications in Australia. The bill clarifies that the AWBC Act gives effect to Australia’s obligation, under other relevant international agreements, not to discriminate between countries—the most favoured nation obligation.

Geographical indications are determined by the Geographical Indications Committee (GIC), an independent statutory committee under the AWBC Act.

This bill extends the powers of the GIC to enable it to determine geographical indications, and translations of such indications, from foreign countries, regions and localities, while also providing the power to omit foreign geographical indications from the register.

The procedure for the determination of foreign country geographical indications and translations will be provided for in the Australian Wine and Brandy Corporation Regulations 1981.

However, it is clear that this increased level of responsibility for the GIC represents an increase in the amount of work that it has to do. Therefore, this bill amends the act to allow the AWBC to charge cost based fees in relation to the work of the GIC.

The AWBC already has the capacity to recover costs in relation to determining Australian geographical indications, so this extension of the corporation’s ability to charge fees does not mark a significant change in operating procedures.

Traditional expressions are words or expressions used in the description and presentation of the wine to refer to the method of production, or to the quality, colour or type, of the wine; for example, claret.

While protection of these terms was agreed in the 1994 agreement, the new agreement clarifies the nature and extent of the protection provided.

Since 1994, industry and government have developed a greater understanding of what constitutes a traditional expression and agree it is not a concept that Australia wishes to use with relation to Australian wine. The provision for Australian traditional expressions has been removed from the new agreement and consequently the amendments remove it from the act.

The amendments implement Australia’s commitment in the agreement to protect European Community traditional expressions. Traditional expressions get a lower level of protection than geographical indications so:

business owners and trademark owners can continue to use, in Australia, business names and trademarks that contain or consist of a protected traditional expression and

producers from countries not party to this agreement can use traditional expressions under certain conditions.

Currently Australia protects geographical indications, traditional expressions and other terms through the Register of Protected Names. This bill replaces the existing register with a new Register of Geographical Indications and Other Terms that is structured to meet the needs of the Australian wine industry. It will include geographical indications, translations of geographical indications, traditional expressions, quality wine terms and additional terms.

Quality wine terms are terms that Australia would not otherwise be able to use because they are European traditional expressions. For example, makers of fortified wines can use the term vintage, which the Portuguese claim as a traditional expression for fortified wine.

Additional terms are words which will only be able to be used in accordance with registered conditions of use.

As for geographical indications, and in line with our other international obligations, the act will provide the opportunity for producers in all foreign countries to register traditional expressions and additional terms.

The bill also amends the offence provisions in schedule 1 to make it an offence to sell, export or import wine and be reckless to the fact that the wine has a false or misleading description and presentation. The purpose of this change is to ensure that the geographical indications, traditional expressions, quality wine terms and other terms that are protected under the agreement have adequate protection against misuse. The amendment also brings the offence provisions in line with the Criminal Code Act 1995.

To elaborate, under the current system the penalty provision for selling a wine with a false or misleading description and presentation is subject to the mental element of intention. The mental element of intention could allow a person to avoid liability by giving incontestable evidence that they had no intention to mislead. This barrier to prosecution has been the catalyst for this change.

Of course, this offence provision applies to all elements of the supply chain. However, the risk of prosecution for those who conduct their business in accordance with the rules and act in good faith is negligible.

For example, if a small wine retailer bought a bottle of wine with a false or misleading description and presentation, in good faith, from a wholesaler and sold that wine in their store, I am advised that they are unlikely to be liable for prosecution under the amended provision. To be liable for prosecution under the amended provision, the small wine retailer would need to be aware of a substantial risk that the wine from the wholesaler had a false and misleading description and presentation, and irrespective of that risk, sold the bottle of wine with that description anyway.

Schedule 2 of the bill amends the AWBC Act to strengthen the provisions of the Label Integrity Program (LIP).

The bill extends record-keeping requirements for those members of the grape and wine supply chain whose actions are captured by the Label Integrity Program. The amendments will benefit both consumers and the Australian wine industry by helping to ensure that Australian wine labels are truthful and accurate with regard to their origin and their characteristics.

Australian wine is known for the clarity and integrity of its labelling. The government is ensuring that this effective marketing advantage is retained by implementing a more robust LIP.

As there is no objective way to test wine to determine its origin, variety or vintage, the only way to give confidence to consumers that what they are getting is as displayed on the label is to have the information recorded.

The current LIP is limited to wine manufacturers and does not cover other players in the wine supply chain, such as people who crush grapes on behalf of others, people who bottle wine on behalf of others, agents, growers, wholesalers and retailers.

The current LIP does not ensure adequate traceability through the wine supply chain. This bill contains amendments to rectify this situation.

The bill aims to ensure that the AWBC can verify wine label claims by requiring people in the supply chain to make and keep records of the supply and receipt of wine goods and changes to wine goods (including volume or storage changes), ensuring an auditable trail along the supply chain from harvested grapes to the sale of the wine.

The proposed changes will:

amend the LIP to provide that those involved in the production, distribution and sale of wine and grapes used to make wine must keep a record of the date of receipt, quantity, vintage, variety, geographical indication and the identity of the supplier of those goods. Similar records must be made upon despatch of those goods, thus ensuring a traceable trail throughout the wine production process, and

create a new offence applying to a person who makes a claim relating to vintage, variety or geographical indication of wine goods when that claim is not supported by their records.

A retailer or other person making a direct sale to a consumer is not required to keep a record of the person to whom the sale was made but must keep records including details of the total quantity and the vintage, variety and geographical indication of the wine goods sold.

The LIP only requires people in the wine supply chain to keep a record of the delivery to them and the supply from them. This information will allow the AWBC to audit the supply chain.

The changes to the LIP are significant but they will not place onerous requirements on the industry. Under current legislation, for every wine grape delivery the grower should be asked to declare the vintage, variety and geographical indication of the grapes because the wine manufacturer has to record that information.

While many wine grape growers make and keep their own records, the standard grape delivery docket issued by receiving wineries to wine grape growers and standard payment records provided by wineries will in most instances be sufficient record in themselves.

I do not expect that the amended LIP provisions will add to the administrative workload of growers, winemakers and others required to keep records but they will significantly enhance the ability of the AWBC to verify label claims.

Growers will be required to keep records for seven years. The records will typically be in the form of a grape delivery docket which is already kept by growers or their accountants for tax purposes.

Wholesalers and retailers typically keep the required records through bar codes or on paper. Most billable material should contain the information. Therefore, it is expected that the amended LIP provisions will not add to the administrative workload of wholesalers and retailers.

Schedule 3 of the bill amends the compliance provisions of the AWBC Act. The bill includes changes to the compliance provisions which will strengthen the AWBC’s ability to stop a person from engaging in action that may be contrary to the AWBC Act.

In particular the changes will expand the injunction powers so that the AWBC can apply for an injunction to stop or to direct a person engaging in action that may be contrary to:

• the label integrity program,
• the provisions relating to the protection of geographical indications and other terms,
• the export control offence provision, or
• the regulations made for the purposes of these provisions.

These amendments also align the penalties in the AWBC Act with government policy regarding offence provisions and the use of penalty units as a replacement for fixed dollar amounts.

The Australian wine industry is an incredible success story. It is an industry which has become increasingly export focused with more than 714 million litres of wine (about 60 per cent of production) exported in 2007-08 at a value of $2.67 billion by approximately 1,800 licensed exporters of Australian wine.

In the global marketplace, Australian wine is in demand because of its reputation for quality and value for money.

Europe is Australia’s largest export market and accounted for over half of all of Australia’s wine exports in 2007-2008. In fact, more wine is exported to Europe than any other Australian commodity (over and above dairy, meat and other horticultural products).

The Australia-European Community Agreement on Trade in Wine will protect and improve market access to our major wine export market and the Australian wine industry is eager to see the agreement enter into force.

The Joint Standing Committee on Treaties has recently reported on the wine agreement and recommended that binding treaty action be taken. The chair of the committee, the member for Wills, said ‘Accession to the agreement would strengthen trade between Australia and the European Community and will provide Australian winemakers with greater, and more secure, access to European wine markets.’

This bill is an essential step in the process of Australia acceding to the treaty and the Australian industry obtaining those benefits.

The industry will benefit from the enhanced Label Integrity Program and improved compliance provisions that will help prevent fraud that has damaged wine industries in other countries.

This bill has been developed in consultation with the Winemakers Federation of Australia and industry representatives on the Australian Wine and Brandy Corporation’s Legislation Review Committee.

The Winemakers Federation supports the agreement and the bill, and has written to me to express its view by stating, ‘The wine agreement will significantly improve market access to one of our key export markets and the Australian wine industry is keen to see the entry into force of the agreement.’

The Legislation Review Committee also supports the bill and has advised that ‘the industry will derive considerable benefit from the enhanced Label Integrity Program and improved compliance provisions that will assist in preserving Australia’s reputation as a producer of wines of quality and integrity’.

I commend this bill to the Senate.

Broadcasting Legislation Amendment (Digital Television) Bill 2010

The Broadcasting Legislation Amendment (Digital Television) Bill 2010 amends the Broadcasting Services Act 1992 and related legislation to address areas of digital television signal deficiency, or black spots, and to enable the provision of all free-to-air television services to every Australian.

On 5 January 2010, the Minister for Broadband, Communications and the Digital Economy announced that the Government would fund a new satellite service to bring digital television to all Australians who cannot adequately receive terrestrial digital television services.

The new satellite service is intended to deliver the same number of digital television channels to these areas that are available in the metropolitan markets. In addition the service will provide regional viewers with access to the local news currently broadcast in their local terrestrial licence areas via a dedicated news channel.

This Bill introduces a legislative framework for the implementation of the new satellite service.

The amendments will create three new commercial television licence areas specifically for the new satellite service. These are:

Northern Australia which will encompass the Northern Territory and Queensland;

South Eastern Australia which will encompass the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria; and Western Australia.

There will be one new commercial satellite service licence per satellite licence area. Initially, only existing remote commercial television broadcasting licensees will be eligible to apply for the licences.

The satellite service will encompass both national and commercial channels, delivered over a common satellite platform. Access will be through a satellite dish and a set-top-box.

Satellite delivery of the national broadcasting services, the ABC and SBS, will be available to any viewer in Australia in their local time zone through the new satellite service. The main standard definition services offered by the national broadcasters, ABC1 and SBS ONE, would be delivered on an individual state and territory basis, with the exception of the Australian Capital Territory which would be served by the News South Wales services.

Access to commercial channels will be managed by a conditional access system administered by regional broadcasters, and overseen by the Australian Communications and Media Authority. All Australians living in remote television licence areas will have access to the new commercial satellite service. Any Australians in non-remote regional or metropolitan television licence areas, and who do not receive adequate terrestrial digital television, will also have access.

From the commencement of the satellite service, the licensee of the satellite service will be required to provide a service that offers an equivalent number of commercial digital television channels as is enjoyed in metropolitan markets – that is, three main channels, three standard definition multi-channels, and three high definition multi-channels.

It is expected that the commercial digital television channels on the new satellite service will be provided by existing remote commercial television broadcasting licensees using affiliation and supply arrangements agreed with metropolitan networks. To allow the licensee of each satellite service to meet its licence conditions in the absence of such arrangements, this Bill places an obligation on remote commercial television broadcasters to supply their digital television channels to the relevant satellite service licensee. There is then a corresponding requirement on the satellite licensee to broadcast them.

If, at the commencement of the satellite service, a remote commercial television licensee is unable to provide one or more digital television multi-channels, the satellite service licensee will be required to provide equivalent replacement channels from a metropolitan television broadcasting licensee.

Metropolitan commercial television broadcasting licensees will also be required to make their programming content available on the satellite service if requested by a satellite service licensee.

Satellite service licensees will not be required to provide identical programming to that provided in metropolitan areas. The satellite licensee will have the flexibility to adjust or substitute programming subject to commercial agreement, for example, to show sporting events or advertising that may be more relevant to the local audience served by the satellite service.

Importantly, the new satellite service will provide news and information sourced from the regional commercial television broadcasters operating in the relevant satellite licence area.

In the South Eastern Australia and Northern Australia satellite licence areas, the regional news service will be delivered via a dedicated channel that will aggregate local news content from the relevant regional commercial broadcasters. In Western Australia, a separate news channel is not required, as the satellite licence area will be geographically the same as the existing remote licence area. Hence the satellite licensee will be able to provide local news and information through the main channels of the relevant Western Australian remote broadcasters provided on the satellite service.

To support the news channel, regional commercial television broadcasting licensees will be required to make available local news and information program material to the relevant satellite service licensee. The satellite service licensee will be required to provide that local news on the satellite service as soon as practicable after the regional licensee begins to broadcast the program in the regional licence area. This addresses the cyclical nature of local news and information provided by regional broadcasters.

The Government expects that commercial agreements between broadcasters will underpin the delivery of programming to the satellite service licensee. In circumstances where appropriate commercial agreements are not in place, the Bill introduces amendments to enable the continued provision of television services. The Bill will insert a statutory licensing scheme into the