Industry, Technology and Commerce Legislation Amendment Act 1992

Administered by Department of Education, Science and Training

Legislation au C2004A04459 Not in force Act

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Industry, Technology and Commerce Legislation Amendment Act 1992

No. 168 of 1992

An Act to amend various Acts relating to matters dealt with by the Department of Industry, Technology and Commerce, and for related purposes

[Assented to 11 December 1992]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Industry, Technology and Commerce Legislation Amendment Act 1992.

Commencement

2.(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2) Part 5 is taken to have commenced on 30 July 1975.

PART 2—AMENDMENTS OF THE AUSTRALIAN INSTITUTE OF MARINE SCIENCE ACT 1972

Principal Act

3. In this Part, Principal Act means the Australian Institute of Marine Science Act 19721.

Interpretation

4. Section 5 of the Principal Act is amended by adding at the end the following subsection:

(2) The question whether a company is a subsidiary of the Institute is to be determined in the same way as the question whether a corporation is a subsidiary of another corporation is determined for the purposes of the Corporations Law..

5. Section 9 of the Principal Act is repealed and the following section is substituted:

Functions of Institute

9.(1) The functions of the Institute are:

(a)     to carry out research and development in relation to marine science and marine technology; and

(b)     to encourage and facilitate the application and use of the results of research and development of that kind; and

(c)     to arrange for carrying out research and development of that kind; and

(d)     to co-operate with other institutions and persons in carrying out research and development of that kind; and

(e)     to provide any other institution or person with facilities for carrying out research and development of that kind; and

(0 to collect and disseminate information relating to marine science and marine technology and, in particular, to publish reports and other papers; and

(g) to provide and sell goods (whether produced by the Institute or purchased or otherwise acquired by the Institute) and services in connection with matters related to its research and development activities in marine science and marine technology; and

(h) to make available to other persons, on a commercial basis, the knowledge, expertise, equipment and facilities of the Institute; and

(i) to do anything incidental or conducive to the performance of any of the functions in paragraphs (a) to (h).

(2) The Institute may perform its functions only:

(a)     in so far as it is appropriate for its functions to be performed by the Institute on behalf of the Government of the Commonwealth as the national Government; or

(b)     for the purposes for which it is appropriate for the Parliament as the national Parliament of Australia to authorise the Institute to perform functions; or

(c)     by way of expenditure or money that is available for the purposes of the Institute in accordance with an appropriation made by the Parliament; or

(d)     in the course of, and in relation to, trade and commerce with other countries, among the States, between Territories or between a Territory and a State; or

(e) for purposes related to external affairs; or

(f) for purposes in relation to a Territory..

Powers of Institute

6. Section 10 of the Principal Act is amended:

(a) by omitting paragraphs (2)(a) and (b) and substituting the following paragraphs:

(a) to enter into contracts;

(b) to acquire, hold and dispose of personal property;

(u)         to take on hire, or to accept on loan, equipment (including vessels) or other goods needed for the purposes of the Institute;

(v)         to lend or to hire out equipment (including vessels) or other goods that are the property of the Institute;;

(b) by omitting paragraphs (2)(f) and (g) and substituting the following paragraphs:

(f) to participate in partnerships, trusts, unincorporated joint ventures and other arrangements for sharing profits;

(g) to subscribe for and to purchase shares in, and debentures and other securities of, companies;

(h) to form, and to participate in the formation of companies;

(i) to appoint agents and attorneys, and to act as agents for other persons;

(j) to accept anything given or transmitted to the Institute whether on trust or otherwise, and to act as trustee of money or other property vested in the Institute on trust;

(k) to arrange for displaying material and giving lectures, to the public or otherwise, in respect of matters relating to marine science and marine technology..

7. After section 10 insert the following section in Part II:

Limitation of formation of companies etc.

10AA.(1) The Institute must not, without written approval by the Minister:

(a)     subscribe for, or purchase, shares in, or debentures or other securities of, a company: or

(b)     form or participate in the formation of a company that would, on its formation, be a subsidiary of the Institute.

(2) An approval under subsection (1):

(a)     may be of general application or may relate to a particular company or proposed company; and

(b)     may be given subject to conditions or restrictions set out in the instrument of approval.

(3) Subject to subsection (4), if the Institute subscribes for or purchases shares in, or debentures or other securities of, a company, the Minister must:

(a)     cause to be prepared a statement setting out particulars of, and the reasons for, the subscription or purchase; and

(b)     cause a copy of the statement to be laid before each House of the Parliament within 15 sitting days of that House:

(i) after the subscription or purchase took place; or

(ii) if the Minister is of the opinion that disclosure of the subscription or purchase would adversely affect the commercial interests of the Institute, after the Minister ceases to be of that opinion.

(4) If the Institute holds a controlling interest in a company, the Institute must ensure that the company does not do anything that the Institute is not itself empowered to do..

 

PART 3—AMENDMENT OF THE AUTOMOTIVE INDUSTRY AUTHORITY ACT 1984

Principal Act

8. In this Part, Principal Act means the Automotive Industry Authority Act 19842.

Termination of Act

9. Section 32 of the Principal Act is amended by omitting 1992and substituting 2000.

PART 4—AMENDMENTS OF THE COMMERCE (TRADE DESCRIPTIONS) ACT 1905

Principal Act

10. In this Part, Principal Act means the Commerce (Trade Descriptions) Act 19053.

Notice of intention to import

11. Section 6 of the Principal Act is amended by omitting Forty dollars and substituting $1,000.

Importation of falsely marked goods

12. Section 9 of the Principal Act is amended by omitting from subsection (1) Two hundred dollars and substituting $10,000.

Penalty for applying false trade description to exports

13. Section 12 of the Principal Act is amended by omitting from subsection (2) $200 and substituting $10,000.

 

PART 5—AMENDMENT OF THE DESIGNS ACT 1906

Principal Act

14. In this Part, Principal Act means the Designs Act 19064.

Design may include functional features or be of indefinite dimension

15. Section 18 of the Principal Act is amended by adding at the end the following subsections:

(2) An application for registration of a design must not be refused, and a registered design is not invalid, by reason only that an article or a part of an article is of indefinite extent in one or 2 dimensions.

(3) If, on or after 30 July 1991 but before this Act receives the Royal Assent, a person availed himself or herself (or took definite steps, by way of contract or otherwise, to avail himself or herself) of a registered design in the belief that because of a decision referred to in subsection (4) the registration of the design was invalid, such provisions as are prescribed have effect for the protection or compensation of that person.

(4) For the purposes of subsection (3), the decisions referred to in this subsection are:

(a)     the decision of the Full Court of the Federal Court in Bondor Ply Ltd and Others v National Panels Ply Ltd 102 ALR 65; and

(b)     the decision of the Federal Court in Brisbane Aluminium Fabricators and Supplies Ptv Ltd v Techni Interiors Pty Ltd 23 IPR 107..

PART 6—AMENDMENTS OF THE NATIONAL MEASUREMENT ACT 1960

Principal Act

16. In this Part, Principal Act means the National Measurement Act 19605.

Interpretation

17. Section 3 of the Principal Act is amended by inserting in subsection (1) the following definitions:

certified measuring instrument means a measuring instrument that has been certified by a certifying body under the regulations;

certified reference material means a reference material that has been certified by a certifying body under the regulations;

certifying body means a certifying body established by the regulations;

measuring instrument with an approved pattern means a measuring instrument a pattern of which has been approved under this Act;

reference material means a material whose properties are used for the calibration of measuring instruments, the assessment of a measuring method or for assigning values to materials;.

Measurements to be ascertained in accordance with appropriate standards of measurement, certified reference materials or certified measuring instruments

18. Section 10 of the Principal Act is amended by omitting paragraphs (e) and (f), and substituting the following paragraphs:

(e) an appropriate reference standard of measurement;

(f) 2 or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e);

(g) a certified reference material;

(h) a certified measuring instrument;

(i) one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e) and a certified reference material;

(j) one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e) and a certified measuring instrument; or

(k) one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e), a certified reference material and a certified measuring instrument;.

Functions of the Commission

19. Section 18 of the Principal Act is amended by inserting after paragraph (1)(e) the following paragraph:

(ea) to take appropriate steps to ascertain whether measuring instruments with an approved pattern are in accordance with the pattern;.

Patterns of instruments

20. Section 19A of the Principal Act is amended:

(a) by omitting paragraph (1)(b) and substituting the following paragraph:

(b) the approval and verification of patterns of measuring instruments as patterns of measuring instruments suitable for:

(i) use for trade; and

(ii) any other legal purpose;;

(b)     by inserting in paragraph (1)(c) and verification after approval;

(c)     by omitting subsection (5);

(d)     by inserting after subsection (6) the following subsection:

(6A) The Commission may not make under subsection (6) any recommendation that is inconsistent with a specification published by the International Organisation of Legal Metrology regarding the examination and approval of patterns of measuring instruments unless the Commission is of the opinion that:

(a)       it is in the national interest to do so; or

(b)       because of particular circumstances applying in Australia, it is not practicable to comply with that specification..

21. After section 19A of the Principal Act the following sections are inserted:

Tolerances

19AAA.(1) The regulations may provide that a certificate issued under paragraph 19A(1)(c) in respect of a pattern of a measuring instrument (original instrument) must specify:

(a) the limits of error that may be tolerated in a measuring instrument of the same kind as the original instrument:

(i) when the instrument is tested for the purposes of this Act; and

(ii) if a law of a State or Territory requires that, at verification or re-verification of the instrument, it must operate within the limits of error that may be tolerated under this Act

at verification or re-verification—when the instrument is verified or re-verified for the purposes of that law; and

(b) the procedures to be followed to ascertain whether the instrument operates within those limits of error.

(2) If a certificate issued under paragraph 19A(1)(c) and in force immediately before the commencement of this section specifies an amount as the amount of error that may be tolerated when an instrument of the same kind as the original instrument is verified for the purposes of a law referred to in subparagraph (1)(a)(ii). the certificate has effect after the commencement of this section as if the amount were specified as being the limits of error that may be tolerated when the instrument is:

(a)     verified for the purposes of that law; or

(b)     tested for the purposes of this Act.

Measuring instrument—accordance with pattern

19AAB.(1) The regulations may provide for:

(a)     the requirements that are to be satisfied before a measuring instrument with an approved pattern is taken for the purposes of this Act, to be in accordance with the pattern; and

(b)     the procedures to be followed to ascertain whether measuring instruments with an approved pattern are in accordance with the pattern.

(2) The regulations may provide that the procedures referred to in paragraph (1)(b) may be carried out:

(a)     by the Commission; or

(b)     by another person, or a Department of State of the Commonwealth, on behalf of the Commission.

(3) The Commission may. after consulting with appropriate State authorities, make recommendations to the Minister with respect to any regulations to be made for the purposes of subsection (1).

(4) Before making regulations for the purpose of subsection (1) the Governor-General must take into consideration any relevant recommendation made by the Commission under subsection (3).

(5) Any regulations made under this section must provide adequate safeguards for the rights of persons affected..

Regulations

22. Section 20 of the Principal Act is amended:

(a)     by inserting at the end of paragraph (aa) and;

(b)    by adding at the end the following word and paragraphs:

: and (c) providing for the certification of reference materials; and

(d)     providing for the certification of measuring instruments; and

(e)      providing for or in relation to the issuing of certificates in respect of the certification of reference materials or measuring instruments, for the reception in evidence of a document purporting to be such a certificate and for such a certificate to be evidence of the matters stated in it; and

(f)      providing for the establishment of certifying bodies.

 

PART 7—AMENDMENT OF THE SCIENCE AND INDUSTRY RESEARCH ACT 1949

Principal Act

23. In this Part, Principal Act means the Science and Industry Research Act 19496.

Appointment of Chief Executive etc.

24. Section 10B of the Principal Act is amended by omitting from subsection (4) Governor-General and substituting Minister.

 

PART 8—AMENDMENTS OF THE TRADE MARKS ACT 1955

Principal Act

25. In this Part, Principal Act means the Trade Marks Act 19557.

Forgery etc. of trade marks

26. Section 98 of the Principal Act is amended:

(a)     by omitting from subsection (1) paragraphs (a) and (b) of the statement of the Penalty and substituting Imprisonment for 2 years;

(b)     by omitting subsection (2).

27. Sections 99, 100 and 101 of the Principal Act are repealed and the following sections are substituted:

Selling etc. goods with false marks

99.(1) A person must not:

(a)     sell; or

(b)     expose for sale; or

(c)     have in his or her possession for sale or for the purpose of trade or manufacture;

goods, if the person knows that the goods are goods to which a forgery of a registered trade mark is applied, or to which a registered trade mark is falsely applied.

(2) A contravention by a person of subsection (1) is an offence punishable on conviction by a fine not exceeding $500 for each item of goods to which the offence relates or imprisonment for a period not exceeding 2 years, or both.

(3) If a fine is imposed on a person because of subsection (2) in relation to an offence committed by the person and there are 2 or more items of goods to which the offence relates, the fine imposed in respect of that offence must not exceed $50,000.

(4) For the purposes of establishing a contravention of subsection (1), if, having regard to:

(a)     a persons abilities, experience, qualifications and other attributes; and

(b)     all the circumstances surrounding the alleged contravention of that subsection;

the person ought reasonably to have known that the goods are goods of a kind referred to in that subsection, the person is taken to have known that the goods are goods of that kind.

Importing goods with false marks

100.(1) A person must not import into Australia goods for the purpose of trade or manufacture if the person knows that the goods are goods to which:

(a)     a forged registered trade mark is applied; or

(b)     a registered trade mark is falsely applied.

(2) A contravention by a person of subsection (1) is an offence punishable on conviction by a fine not exceeding $500 for each item of goods to which the offence relates or imprisonment for a period not exceeding 2 years, or both.

(3) If a fine is imposed on a person because of subsection (2) in relation to an offence committed by the person and there are 2 or more items of goods to which the offence relates, the fine imposed in respect of that offence must not exceed $50,000.

(4) For the purposes of establishing a contravention of subsection (1), if, having regard to:

(a)     a persons abilities, experience, qualifications and other attributes; and

(b)     all the circumstances surrounding the alleged contravention of that subsection;

the person ought reasonably to have known that the goods are goods of a kind referred to in that subsection, the person is taken to have known that the goods are goods of that kind..

What taken to be forgery of trade mark

28. Section 106 of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsection:

(1) A person is taken to forge a registered trade mark:

(a)     if the person knows that the trade mark is a registered trade mark; and

(b)     the person:

(i) without the agreement of the registered proprietor of the trade mark or of a registered user of the trade mark, or the authority of this Act, makes the trade mark, the trade mark with additions or alterations not substantially affecting its identity or a mark substantially identical with it; or

(ii) falsifies the registered trade mark, whether by alteration, addition, effacement or otherwise.;

(b) by adding at the end the following subsection:

(3) For the purposes of establishing a contravention of subsection (1), if, having regard to:

(a)     a persons abilities, experience, qualifications and other attributes; and

(b)     all of the circumstances surrounding the alleged contravention of that subsection;

the person ought reasonably to have known that the trade mark is a registered trade mark, the person is taken to have known that the trade mark is a registered trade mark..

29. After section 107 of the Principal Act the following section is inserted:

Forfeiture orders under the Proceeds of Crime Act 1987

107A. If a person other than the Director of Public Prosecutions has instituted proceedings for trial of another person in respect of an indictable offence against this Part, Division 2 of Part 2 of the Proceeds of Crime Act 1987 applies as if a reference in that Division to the Director of Public Prosecutions includes a reference to the first-mentioned person..

30. Section 118A of the Principal Act is repealed and the following section is substituted:

Subsections 99(1) and 100(1) may be dealt with summarily in certain circumstances

118A.(1) Despite an offence against subsection 99(1) or 100(1) being an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is

 

satisfied that it is proper to do so and the defendant and the prosecutor consent.

(2) If, in accordance with subsection (1), a court of summary jurisdiction convicts a person of an offence against subsection 99(1) or 100(1), the penalty that the court may impose is a fine not exceeding $500 for each item of goods to which the offence relates or imprisonment for a period not exceeding 12 months, or both.

(3) If a fine is imposed on a person because of subsection (2) in relation to an offence committed by the person and there are 2 or more items of goods to which the offence relates, the fine imposed in respect of that offence must not exceed $10,000..

NOTES

1. No. 55, 1972, as amended. For previous amendments, see Nos. 61 and 216, 1973; No. 36, 1978; No. 65, 1985; Nos. 76 and 168, 1986; No. 141, 1987; and Nos. 122 and 199, 1991.

2. No. 106, 1984, as amended. For previous amendments, see Nos. 33 and 166, 1985; No. 76, 1986; No. 141, 1987; and Nos. 122 and 199, 1991.

3. No. 16, 1905, as amended. For previous amendments, see No. 37, 1926; No. 15, 1930; No. 13, 1933; No. 80, 1950; No. 93, 1966; No. 216, 1973; No. 61. 1981; No. 151, 1981; No. 48. 1982; No. 39, 1985; and No. 10, 1986.

4. No. 4, 1906, as amended. For previous amendments, see No. 19, 1910; No. 14, 1912; Nos. 53 and 70, 1932; No. 36. 1933; Nos. 42 and 45, 1934; No. 80, 1950; No. 93, 1966; No. 108. 1967; No. 64, 1968; No. 216, 1973; No. 37, 1976; No. 19, 1979; No. 42, 1981 (as amended by No. 176, 1981); Nos. 65 and 193, 1985; No. 23, 1987; Nos. 28 and 91, 1989; and Nos. 10 and 83, 1990.

5. No. 64, 1960, as amended. For previous amendments, see No. 6, 1964; No. 93, 1966; No. 216, 1973 (as amended by No. 20, 1974); No. 158, 1978; No. 77, 1984; No. 65, 1985; No. 76. 1986; No. 141, 1987; No. 91, 1989; and Nos. 66 and 199, 1991.

6. No. 13, 1949, as amended. For previous amendments, see No. 78, 1959; No. 93, 1966; Nos. 7 and 52, 1968; No. 216, 1973; No. 91, 1976; Nos. 36 and 143, 1978; No. 80, 1982; No. 65, 1985; No. 121, 1986; and Nos. 66, 122 and 199, 1991.

7. No. 20, 1955, as amended. For previous amendments, see No. 42, 1958; No. 93, 1966; No. 216, 1973; Nos. 37, 91 and 163, 1976; No. 130. 1978; No. 19, 1979; Nos. 43 and 61, 1981; No. 80. 1982; No. 72, 1984; Nos. 65 and 193, 1985; No. 23, 1987; Nos. 91 and 96, 1989; and No. 10, 1990.

[Ministers second reading speech made in

Senate on 25 June 1992

House of Representatives on 13 October 1992]

Overview

The Industry, Technology and Commerce Legislation Amendment Act 1992 (No. 168 of 1992) was enacted by the Parliament of Australia to address various legislative gaps and issues within the framework of the Department of Industry, Technology and Commerce. The Act was assented to on 11 December 1992 and aims to amend existing Acts to ensure they align with current industry needs and standards. Among the primary objectives of the Act are updating the Australian Institute of Marine Science Act 1972 to clarify the functions and limitations of the Institute, extending the Automotive Industry Authority Act 1984 to ensure continued support for the automotive industry, increasing penalties under the Commerce (Trade Descriptions) Act 1905 to deter false trade descriptions, and enhancing the Designs Act 1906 to accommodate functional designs and indefinite dimensions. Furthermore, the Act seeks to update the National Measurement Act 1960 to incorporate certified measuring instruments and reference materials, and to amend the Trade Marks Act 1955 to strengthen the penalties and enforcement against counterfeit trade marks. This comprehensive legislative amendment reflects the evolving landscape of Australian industry and commerce, aiming to foster innovation, protect intellectual property, and maintain high standards in research and trade practices.

Scope and Application

The Industry, Technology and Commerce Legislation Amendment Act 1992 (C2004A04459) applies to various industries and entities by amending several Acts to enhance regulation and governance. Specifically, the Act amends the Australian Institute of Marine Science Act 1972 to redefine the functions and powers of the Institute, including limitations on forming subsidiaries without ministerial approval. The Automotive Industry Authority Act 1984 is amended to extend the Act's duration until 2000. Amendments to the Commerce (Trade Descriptions) Act 1905 increase penalties for offences related to false trade descriptions on imports and exports. The Designs Act 1906 is updated to clarify that designs may include functional features or be of indefinite dimension and to protect individuals who used designs in good faith before the Act's Royal Assent. The National Measurement Act 1960 is amended to incorporate certified reference materials and measuring instruments and to set out the functions of the Commission regarding these materials and instruments. The Science and Industry Research Act 1949 is altered to change the appointment process of the Chief Executive. Amendments to the Trade Marks Act 1955 increase penalties for offences involving forged or falsely applied registered trademarks and clarify the definition of forging a trademark. The Act extends to the Commonwealth of Australia and its territories and applies to entities and persons involved in the specified industries and activities. Subordinate instruments may further extend or restrict the application of the Act.

Key Provisions

The Industry, Technology and Commerce Legislation Amendment Act 1992 (Act) introduces several amendments to various Acts, primarily concerning the Australian Institute of Marine Science, automotive industry, trade descriptions, designs, national measurement, science and industry research, and trade marks. The Act modifies the functions, powers, and operational constraints of these entities and sets forth new obligations, penalties, and enforcement mechanisms. Sections 5 and 9 of the Australian Institute of Marine Science Act 1972 (Principal Act) are amended to clarify the scope of the Institute’s functions, including research and development in marine science and technology, the facilitation and application of research results, and cooperation with other institutions. The Act also introduces new restrictions on the Institute's ability to subscribe for shares or form subsidiaries without the Minister’s written approval (section 10AA). Additionally, the Institute is required to ensure that any company in which it holds a controlling interest does not engage in activities beyond the Institute's own empowered scope (section 10AA(4)). The Act further amends the powers of the Institute by specifying permissible activities such as entering into contracts, acquiring and disposing of property, and forming partnerships or companies (sections 6 and 10). The Automotive Industry Authority Act 1984 is amended to extend its termination date from 1992 to 2000 (section 32). Amendments to the Commerce (Trade Descriptions) Act 1905 increase the notice fee for importing goods from $40 to $1,000 (section 11) and raise the penalties for importing falsely marked goods and applying false trade descriptions to exports from $200 to $10,000 (sections 12 and 13). The Designs Act 1906 is amended to allow designs that include functional features or are of indefinite dimension, and to protect individuals who relied on a previously held belief in the invalidity of such designs (section 18). The National Measurement Act 1960 is revised to incorporate the use of certified reference materials and measuring instruments for ensuring accurate measurements, with specific provisions for the certification process and the tolerance limits for measuring instruments (sections 17, 18, 19AAA, and 19AAB). Under the Science and Industry Research Act 1949, the appointment of the Chief Executive is shifted from the Governor-General to the Minister (section 10B). The Trade Marks Act 1955 is amended to redefine the penalty for forgery and false application of registered trade marks as imprisonment for up to 2 years (section 26). It also introduces new offences for selling or importing goods with false trade marks, with fines and imprisonment up to 2 years per item (sections 99 and 100). Furthermore, section 107A applies the provisions of the Proceeds of Crime Act 1987 to private prosecutions for trade mark offences. The Act imposes several obligations on the parties it governs, such as obtaining approval for certain corporate actions, adhering to measurement standards, and ensuring compliance with trade mark laws. Non-compliance with these provisions can result in significant penalties, including fines up to $10,000 per item of goods for offences related to false trade marks (sections 99 and 100), and imprisonment for up to 2 years for forgery of registered trade marks (section 26). Additionally, the Minister's oversight and the requirement for written approvals add layers of administrative compliance that entities must navigate.

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