Commerce (Trade Descriptions) Regulation 2016 (Cth)

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Commerce (Trade Descriptions) Regulation 2016

made under the

Commerce (Trade Descriptions) Act 1905

Compilation No. 2

Compilation date:11 March 2019

Includes amendments up to:F2018L01726

Registered:12 March 2019

About this compilation

This compilation

This is a compilation of the Commerce (Trade Descriptions) Regulation 2016 that shows the text of the law as amended and in force on 11 March 2019 (the compilation date).

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 the Legislation Register ( 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 the Legislation Register 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.

Editorial changes

For more information about any editorial changes made in this compilation, see 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 the Legislation Register 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If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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 1Preliminary1Name

This is the Commerce (Trade Descriptions) Regulation 2016.

3Authority

This instrument is made under the Commerce (Trade Descriptions) Act 1905.

Note:The Act is incorporated and read as one with the Customs Act 1901: see section 2 of the Act.

5Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) covering;

(b) label;

(c) officer;

(d) trade description.

In this instrument:

Act means the Commerce (Trade Descriptions) Act 1905.

analyst means a person appointed under section 22.

articleincludes quantity of a substance.

drugmeans a substance used as a medicine or in the composition or preparation of a medicine.

examinable goodsmeans:

  1. (a)

    goods to which a trade description is applied; or

  2. (b)

    goods covered by Subdivision B of Division 1 of Part 2 (which is about goods whose import is prohibited unless certain trade descriptions are applied); or

  3. (c)

    goods covered by Subdivision C of Division 1 of Part 2 (which is about goods that may be imported without a trade description).

fibremeans a natural or artificial fibrous material.

food has the same meaning as in the Food Standards Australia New Zealand Act 1991.

Note: Food therefore includes (among other things) anything declared under section 6 of the Food Standards Australia New Zealand Act 1991 by the Minister administering that Act to be food for the purposes of that Act.

packageincludes:

  1. (a)

    a container, wrapper or other thing in which an article is packed, or 2 or more articles are packed, for sale as a single item; and

  2. (b)

    a holder to which an article is attached for the purpose of sale; and

  3. (c)

    a band that is fixed round an article or articles as part of the preparation of that article or those articles for sale.

Note: Paragraph 6(1)(b) affects the meaning of a reference to a package of goods.

prepacked article means an article of goods that are packed in a way in which goods of that kind are commonly packed for sale.

priority food means food other than non‑priority food within the meaning of the Country of Origin Food Labelling Information Standard 2016 as in force or existing from time to time.

shoes: see section 20.

sock lining: see section 20.

sole: see section 20.

textile productsmeans:

  1. (a)

    woven, knitted or felted materials manufactured from fibre; or

  2. (b)

    tops, yarns, threads or lace.

upper: see section 20.

6Interpretation – weights, measures, packages of goods and bundles of articles
  1. (1)

    In this instrument:

    1. (a)

      a reference to the weight or measure of an article is a reference to the weight or measure of the article exclusive of the weight or measure of the package in which it is packed; and

    2. (b)

      a reference to a package of goods is a reference to a package:

      1. (i)

        in which the goods are fully or partly enclosed; or

      2. (ii)

        to which the goods are attached; or

      3. (iii)

        round which the goods are wound.

  2. (2)

    For the purposes of this instrument:

    1. (a)

      2 or more articles of the same kind are taken to be a single article if they are packed together (whether by themselves or with one or more articles of one or more different kinds) for sale as a single article; and

    2. (b)

      a single article of a particular kind is a single article even if it is packed together with one or more articles of one or more different kinds for sale as a single article; and

    3. (c)

      if an article is packed in a way in which it could be sold as a single item, it is taken to be packed for sale as a single item unless the contrary is shown (for example on the packaging of the article).

7This instrument does not apply to ship’s stores or aircraft’s stores

This instrument does not apply to ship’s stores (as defined in section 130C of the Customs Act 1901) or aircraft’s stores (as defined in that section) brought to Australia.

Part 2Trade descriptions of goods importedDivision 1Prohibition of imports without trade descriptionsSubdivision AProhibition8Prohibition of certain imports unless trade description applied
  1. (1)

    A person must not import goods if:

    1. (a)

      the goods are covered by Subdivision B; and

    2. (b)

      the goods are not covered by Subdivision C.

  2. (2)

    Subsection (1) does not apply if a trade description is applied to the goods in accordance with Division 2.

    Note: Section 7 of the Act:

    (a) provides the basis for this section; and

    (b) provides for the forfeiture of goods imported in contravention of this section.

8AStrict liability offence

A person commits an offence of strict liability if the person contravenes section 8.

Note: A defendant bears an evidential burden in relation to the matter in subsection 8(2) (see subsection 13.3(3) of the Criminal Code).

Penalty: 50 penalty units.

Subdivision BGoods whose import without trade description is prohibited9General goods

This Subdivision covers the goods specified in the following table.

Goods whose import without trade description is generally prohibited

Item

Goods

1

Food

2

Articles made from china, porcelain, earthenware or enamelled hollowware that are:

(a) commonly used in connection with the serving of food; or

(b) kitchenware or kitchen utensils

3

Each of the following:

(a) textile products;

(b) articles of apparel including shoes

4

Each of the following:

(a) electrical appliances;

(b) electrical apparatus or accessories, including electric incandescent lights

5

Toys

6

Each of the following:

(a) cigars;

(b) cigarettes;

(c) manufactured tobacco;

(d) cigarette papers;

(e) cigarette tubes

7

Fertiliser, including a substance intended for fertilising soil, or commonly used to fertilise soil, other than:

(a) animal or vegetable manure; or

(b) crude material for the manufacture of fertiliser

8

Portland cement

9

Wall, hearth and floor tiles

10

Sanitary and lavatory articles of earthenware, fireclay, vitreous china or similar substances or materials

11

Goods that are imported as prepacked articles and are not covered by another item of a table in this Subdivision

10Goods at least half clad in certain materials

This Subdivision also covers the goods specified in the following table if more than half the outside area of the goods consists of:

  1. (a)

    leather or a material resembling leather; or

  2. (b)

    fibre or a material resembling fibre; or

  3. (c)

    vulcanite or a material resembling vulcanite; or

  4. (d)

    plastic.

Goods at least half clad in certain materials

Item

Goods

1

Attaché cases

2

Belts

3

Bicycle saddles

4

Bridles

5

Brief cases

6

Cases for musical instruments, radios or gramophones

7

Document cases

8

Folio cases

9

Gloves

10

Handbags

11

Harnesses

12

Hat boxes or cases

13

Horse collars

14

Kit bags

15

Leggings

16

Machine belting

17

Pouches

18

Purses

19

Razor strops

20

Saddles

21

Schoolbags

22

School cases

23

Shopping bags

24

Sporting goods, including boxing gloves, footballs, golf bags and punching bags and balls

25

Suitcases

26

Trunks

27

Wallets

Subdivision CGoods whose import without trade description is not prohibited11Goods that may be imported without trade description applied

This Subdivision covers the goods specified in the following table.

Goods that may be imported without trade description applied

Item

Kind of goods

1

Fish bait, other than prawns

2

Hay

3

Each of the following:

(a) garden compost;

(b) tan bark;

(c) farmyard manure;

(d) peatmoss;

(e) leaf mould

4

Each of the following:

(a) toilet preparations in compacts;

(b) refills of those preparations

5

Each of the following:

(a) single application hair dyes or hair bleaches;

(b) single application home permanent hair waving kits

6

Cakes or tablets of toilet or medicinal preparations for use:

(a) in washing; or

(b) as a personal deodorant

7

Fire extinguisher refills

8

Each of the following:

(a) photographic film;

(b) photographic printing paper

9

Rolls of wallpaper

10

Therapeutic goods (within the meaning of the Therapeutic Goods Act 1989) that are:

(a) goods compounded or made to the order of the purchaser of the goods or of a medical practitioner, dentist or veterinary surgeon; or

(b) goods, the supply of which otherwise than on the written prescription of a medical practitioner, dentist or veterinary surgeon is an offence against a law in force in the Australian Capital Territory; or

(c) medicines or medicinal preparations for internal or external use

12Packages of goods that may be imported without trade description applied

This Subdivision also covers goods imported in packages described in the following table.

Packages of goods that may be imported without trade description applied

Item

Packages

1

Packages of goods other than food more than 75 kg in weight or 150 L in capacity

2

Packages of textile products, other similar articles, wearing apparelor hardware that:

(a) are not packed for sale and are not ordinarily sold by weight, measure or number; or

(b) are packed for sale as a single item, one of a pair, a pair or a set

3

Packages:

(a) of less than 9 articles of a kind that are not food and are ordinarily sold by number; and

(b) that are made wholly or partly of a transparent material so that if the package is exposed for sale, the number of articles in the package is clear to a purchaser

4

Sacks of agricultural produce other than food more than 25 kg weight that are customarily sold by weight, such as chaff

5

Bags of clay

6

Packages of liquid colouring materials:

(a) that include directions to mix the entire contents of the package, or a stated portion of the contents, with a stated volume of paint (including enamel paint, but not including a 2‑pack paint or artists’ paint) of a type specified in the directions; and

(b) where the measure of the contents of the package, or of the stated portion, is not more than 10% of that stated volume

7

Packages of yarns less than 15 g

8

Packages of one or more articles of a kind that is not food and is ordinarily sold by number, if the number of those articles in the package is marked on:

(a) the package; or

(b) a label that is attached to the package

9

Packages of goods other than food on which is set out a direction that the whole of the contents of the package, or each of a stated number of smaller packages in the package, is to be diluted to a stated weight or volume, such as packages of:

(a) agricultural and horticultural chemicals; or

(b) legume seed inoculants

10

Packages containing paper that is packed in a quantity of more than 5 kg

11

Packages of goods (other than drugs and food) less than 25 g or 25 ml

12

Packages of textile products that are packed for sale by:

(a) weight in packages of more than 4 kg; or

(b) length in packages of more than 25 m; or

(c) area in packages of more than 25 m2

Note: References in the table to particular numbers of kilograms or grams are to those numbers of kilograms or grams net: see paragraph 6(1)(a).

Division 2Trade description15Trade description of goods to except them from prohibition on import

This Division sets out requirements for the character and manner of application of a trade description for goods to be excepted from the prohibition in section 8 on importing them.

16Content of trade description – source country
  1. (1)

    The trade description must include, in prominent and legible characters:

    1. (a)

      the name of the country in which the goods were made or produced; or

    2. (b)

      if the goods are food imported in a package—a statement of the country of origin of the food (determined in accordance with the Country of Origin Food Labelling Information Standard 2016, as in force or existing from time to time); or

    3. (c)

      if the goods are food from more than one country imported in a package—a statement that indicates that the food is of multiple origins or that it is comprised of imported ingredients.

  2. (2)

    Neither paragraph (1)(b) nor paragraph (1)(c) prevents paragraph (1)(a) from applying in relation to goods that are food and are imported before 1 July 2018.

  3. (3)

    Paragraph (1)(a) does not apply to the trade description of goods that are food and are imported after 30 June 2018.

Format of statement about priority food imported as prepacked articles

  1. (4)

    A statement described in paragraph (1)(b) or (c) about priority food imported as prepacked articles must be written in a clearly defined text box.

17Content of trade description – true description of goods
  1. (1)

    The trade description must include a true description of the goods, in prominent and legible characters.

  2. (2)

    Subsection (1) does not apply to goods specified in item 2, 5, 8, 9 or 10 of the table in section 9.

18English language trade description

The trade description must be in the English language.

19Manner of applying trade description

Goods imported as prepacked articles

  1. (1)

    For goods imported as prepacked articles, the trade description must be marked on:

    1. (a)

      the packages in which the goods are packed; or

    2. (b)

      a label attached to the package.

Other goods

  1. (2)

    For goods imported other than as prepacked articles the trade description must be in the form of a principal label or brand (including a mark, device, name, word, letter, numeral or symbol and a combination of 2 or more of those things) attached in a prominent position, and as permanently as practicable, to:

    1. (a)

      the goods; or

    2. (b)

      if attachment to the goods is impracticable—the principal coverings containing the goods for wholesale or retail.

Trade description not to be contradicted or obscured by other matter

  1. (3)

    A matter included on the label, brand or package must not contradict or obscure the trade description.

20Extra rules about trade description of shoes

Statement about composition of sole, upper and quarter lining

  1. (1)

    The trade description of a shoe must include a true statement of the composition of each of the sole, upper and quarter lining of the shoe, indicating which one of those parts of the shoe that statement describes and according with whichever of the following paragraphs is relevant:

    1. (a)

      the words “all leather”;

    2. (b)

      if the part consists partly of leather—a statement of the materials composing the relevant part of the shoe;

    3. (c)

      the word “synthetic” or “non‑leather”.

  2. (2)

    For the purposes of subsection (1), a sole is taken to consist entirely of leather if the only material in the sole, other than leather, consists of one or more of the following:

    1. (a)

      ordinary fillers of cork or waterproof felt;

    2. (b)

      canvas used to reinforce the inner sole of the shoe;

    3. (c)

      shanks made entirely of leather board, fibreboard, wood, metal or plastic, or a combination of such materials if the shanks are used only for strengthening the sole of the shoe at the waist;

    4. (d)

      wood, plastic or metal used in the heel of the shoe;

    5. (e)

      stiffening made entirely of leather board, fibreboard, metal, plastic, canvas or other similar substance, glue or other similar substance, or a combination of such materials, if the stiffening is used only to support the upper of the shoe at the heel or toe.

Application of trade description

  1. (3)

    The trade description must be impressed or embossed on the shoe in legible letters not less than 2.5 mm in height in one of the following positions:

    1. (a)

      on the waist of the outer sole of the shoe;

    2. (b)

      on the inside of the upper above the waist of the shoe;

    3. (c)

      on the heel seat or waist area of the sock lining or, if there is no sock lining, on the heel seat or waist area of the inner sole;

    4. (d)

      on the tongue of the shoe.

  2. (4)

    However, if the material of the shoe does not reasonably allow the trade description to be impressed or embossed on it, the trade description must be:

    1. (a)

      impressed or embossed on a label of rubber, plastic, durable cloth or another durable material; and

    2. (b)

      attached to the shoe by vulcanisation, adhesion or another secure means.

This section does not apply to ski boots

  1. (5)

    This section does not apply to ski boots if the boots:

    1. (a)

      are designed to fit ski bindings; and

    2. (b)

      have moulded plastic uppers and rigid soles; and

    3. (c)

      do not have a replaceable sole section.

Definitions

  1. (6)

    In this instrument:

shoesmeans boots, shoes, sandals or other footwear but does not include socks, stockings or other hose.

sock liningmeans the thin slip of leather, paper or material that is attached to the upper surface of the inner sole of a shoe.

sole of a shoe means the part of the shoe (including the heel) that is under the foot of a person when the shoe is worn, other than:

  1. (a)

    the inner sole; or

  2. (b)

    the sock lining; or

  3. (c)

    thread, wax, rivets, pegs, nails, toe plates, heel plates, heel tips or heel caps.

upper of a shoe means the outer covering of the part of the shoe above the inner sole, but does not include a thread, lace, eyelet, buckle, button or other decoration.

Part 3Inspection and analysis21Goods that may be inspected, examined and sampled by officers

Examinable goods are prescribed for the purposes of subsection 5(1) of the Act (which allows an officer to inspect and examine prescribed goods that are imported or being prepared for export).

22Appointment of analysts

The Minister may appoint persons who have the necessary qualifications to be analysts for the purposes of this instrument.

23Analysis and examination of samples of examinable goods
  1. (1)

    An analyst may analyse or examine samples of examinable goods that are taken by an officer under the Act.

  2. (2)

    In proceedings under the Act or this instrumentrelating to examinable goods, a certificate given by an analyst of the results of an examination or analysis of a sample of those goods is prima facie evidence of the matters stated in the certificate.

    Note:The Act is incorporated and read as one with the Customs Act 1901: see section 2 of the Act.

Part 4Transitional matters24Commerce (Imports) Regulations 1940 – transition
  1. (1)

    Section 8 applies to goods imported on or after the commencement of this instrument.

  2. (2)

    If:

    1. (a)

      a thing was done for a particular purpose under the Commerce (Imports) Regulations 1940 as in force immediately before those Regulations were repealed; and

    2. (b)

      the thing could be done for that purpose under this instrument;

the thing has effect for the purposes of this instrument as if it had been done under this instrument.

  1. (3)

    A reference in subsection (2) to a thing being done includes a reference to an appointment, certificate or other instrument being made or given.

Endnotes

Endnote 1About 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

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.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

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 2Abbreviation key

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

/sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

commenced or to be commenced

Endnote 3Legislation history

Name

Registration

Commencement

Application, saving and transitional provisions

Commerce (Trade Descriptions) Regulation 2016

12 Dec 2016 (F2016L01907)

1 Apr 2017 (s 2(1) item 1)

Trade and Customs Legislation Amendment (Miscellaneous Measures) Regulations 2018

3 Apr 2018 (F2018L00459)

Sch 1: 3 July 2018 (s 2(1) item 2)

—

Commerce (Trade Descriptions) Amendment (Incorporation of Information Standards) Regulations 2018

11 Dec 2018 (F2018L01726)

11 Mar 2019 (s 2(1) item 1)

—

Endnote 4Amendment history

Provision affected

How affected

Part 1

s 2.............................................

rep LA s 48D

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

rep LA s 48C

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

am F2018L01726

Part 2

Division 1

Subdivision A

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

rs F2018L00459

s 8A...........................................

ad F2018L00459

Subdivision C

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

rep 1 July 2018 (s 13(2))

s 14............................................

rep 1 July 2018 (s 14(2))

Division 2

s 16............................................

am F2018L01726

Schedule 1..................................

rep LA s 48C

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