EXPLANATORY STATEMENT
TRADE MARKS ACT 1955
TRADE MARKS (NORFOLK ISLAND) REGULATIONS
STATUTORY RULES 1989 NO. 208
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SCIENCE, CUSTOMS AND SMALL BUSINESS
Section 147 of the Trade Marks Act 1955 (the Act) provides in part that “The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act …”
Under section 6 of the Act, “Australia” is defined to include Norfolk Island and by virtue of section 8 of the Act, the Trade Marks Act 1955 is expressed to extend to Norfolk Island. Sections 103 and 104 of the Act are both concerned with the importation of goods which infringe Australian trade marks, and thus reference is made to the Customs Act 1901 and the Comptroller-General of Customs. However, unlike the Trade Marks Act 1955, the Customs Act 1901 itself does not extend to Norfolk Island. The only powers therefore that the Comptroller-General may exercise in relation to the administration of sections 103 and 104 in Norfolk Island are those set out in sections 103 and 104 themselves. As Norfolk Island has its own Customs regime set out in the Customs Ordinance 1913, it has been requested by the Norfolk Island Government that the references to the Customs Act 1901 and the Comptroller-General in those two sections be replaced with references to the Customs Ordinance 1913 and the Collector of Customs for Norfolk Island, so that the importation of goods to Norfolk Island which infringe Australian Trade Marks might be controlled and administered by the Customs regime of Norfolk Island.
These Statutory Rules effect the necessary modifications of sections 103 and 104, pursuant to the head of power in section 105 of the Act.
Details of the Statutory Rules are as follows:
Regulation 1: is a machinery provision which provides for the citation of these Regulations as the “Trade Marks (Norfolk Island) Regulations”.
Regulation 2: is a machinery provision which provides that when interpreting these Regulations, unless the contrary intention appears, a reference to “the Act” means a reference to the Trade Marks Act 1955.
Regulation 3: provides that the details of the modifications of sections 103 and 104 of the Trade Marks Act 1955 in their application to Norfolk Island may be found in the Schedule to the Regulations.
The Schedule: As a consequence of the need to recognise that the Norfolk Island authorities, and legislation which applies in Norfolk Island, will now be relied upon to control the infringement of trade marks under the Trade Marks Act 1955, numerous technical amendments to sections 103 and 104 are required, as follows:
Part I
• references to the “Administration” and “Administrator” are defined to have the same meanings as in the Norfolk Island Act 1979 (subsection 103(1));
• references to “Collector” mean the Collector of Customs in the Customs Ordinance 1913 (subsection 103(1));
• the definition of “owner” is now that found in section 4A of the Customs Ordinance 1913 rather than that in section 36 of the Customs Act 1901 (subsection 103(1));
• references to the Customs Act 1901 are replaced with references to the Customs Ordinance 1913 (paragraph 103(3)(a));
• the equivalent of the control of the Customs under the Customs Act 1901 is the control of the Collector under the Customs Ordinance 1913 and so this change is made in paragraph 103(3)(a);
• wherever the term “Commonwealth” appears in subsection 103(4), 103(22) and 103(24) the term Administration is now replaced;
• the powers in subsections 103(9) and 103(20), which at present vest in the Comptroller-General, are now to be transferred to “the Administrator in accordance with such instructions as the Minister administering the Norfolk Island Act 1979 gives to the Administrator”. This device allows for goods which infringe trademark to continue to be forfeited to the Commonwealth, with provision being made for the disposal of these goods by the Administrator in Norfolk Island in such manner as the Minister for the Department of the Arts, Sport, the Environment, Tourism and Territories directs.
• subsection 103(18) is amended by replacing the phrase “law of the Commonwealth” with “law in force in the Territory of Norfolk Island”, as not all Commonwealth laws apply in Norfolk Island, and Norfolk Island itself has its own laws.
• subsection 103(25) is amended by deleting the phrase “for the purposes of the Customs Act 1901” and replacing it with the phrase “or employee within the meaning of the Public Service Ordinance 1979”. Subsection 103(25) provides a power of delegation, and as it is the Collector in Norfolk Island who is given the substantive powers under section 103 as modified, consistent with recent delegation powers that the potential class of delegates be restricted, in this instance, the class of delegates are those persons who are officers or employees under the Norfolk Island Public Service Ordinance 1979.
• subsection 104(1) is amended to make clear that in the context of the Norfolk Island modifications, the phrase “officer of Customs” means an officer of Customs acting under the Customs Ordinance 1913 rather than the Commonwealth Customs Act 1901.
Part II
• provides for the replacement of the term “Comptroller-General of Customs” and “Comptroller-General” wherever occurring in sections 103 and 104 with references to “Collector”, to take account of the change of responsibilities insofar as the application of sections 103 and 104 in Norfolk Island is concerned.