Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

asked the Minister for Agriculture, Fisheries and Forestry, upon notice, on 22 November 2012:

(1) Which organisations were consulted when the department undertook work relating to the amendment of the Australian Wine and Brandy Corporation Act 1980 that resulted in the adoption of section 40DA(2).

(2) What government agencies, Australian Wine and Brandy Corporation (AWBC) representative bodies and private companies were consulted in relation to amendments to the Act, and what process of consultation was used by AWBC.

(3) Is the department committed to consulting all bodies that have legal standing to launch prosecutions for offences under the Act.

(4) Were any Australian wine producers consulted during deliberations on making these changes to the Act; if not, why not.

(5) How does the department meet the needs of: (a) grape producers; and (b) those involved in marketing wine.

(6) Given that Articles 25 and 26 of the Agreement Between Australia And The European Community On Trade In Wine maintain the protection of geographical indicators, what steps have been taken to ensure that this achieved.

(7) What proactive actions has the department taken to protect geographic indicators.

(8) Did the department consider whether the amendment that resulted in the adoption of section 40DA(2) was consistent with the AWBC Act; if not, why not.

(9) What action has AWBC taken to check the legality of 'The Orange Tree' label; if no action has been taken, on what basis was that decision made.

(10) Is the onus on the producer to satisfy AWBC in regard to the legality of their name, or on the AWBC to make the assessment that a producer can use a geographical name.

(11) Given that a press release issued by the AWBC Compliance Manager, Mr Steve Guy, on 31 August 2010 coincided with the announcement of changes to the Act, why was no mention made of the planned changes to the Act that resulted in section 40DA(2).

(12) How many vignerons in Australia pay the Wine Grapes Levy.

(13) Have implications arising from the 'Feet First' case been discussed with the European Union; if so, did these discussions occur prior to the legislative change was finalised.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The answer to the senator's question is as follows:

(1) and (2) The Australia-European Community Agreement on Trade in Wine (the Wine Agreement) was implemented by the Australian Wine and Brandy Corporation Amendment Act 2010 (the Amendment Act). Section 40DA(2) was introduced in the Amendment Act. The government consulted with industry through the Winemakers' Federation of Australia (WFA) during the negotiation of the Agreement and drafting of the Amendment Act.

WFA supported the amendments, stating "The Australian Wine and Brandy Corporation Amendment Bill 2009 has the full support of WFA. 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 Department of Agriculture, Fisheries and Forestry (DAFF) was the lead agency in the drafting of the Amendment Act. In preparing the amendments it consulted with the Department of Foreign Affairs and Trade, IP Australia, the Attorney-General's Department and the Australian Wine and Brandy Corporation (AWBC) (in 2010 the Australian Wine and Brandy Corporation was renamed the Wine Australia Corporation).

Wine Australia provided advice to the government during the Wine Agreement negotiations and the development of the Amendment Act. Wine Australia established market access advisory and legislation review committees, with industry membership, to advise on the Wine Agreement negotiations and the Amendment Act.

(3) Section 40K of the Wine Australia Act 1980 (previously the Australian Wine and Brandy Corporation Act) identifies categories of persons and organisations that may institute a prosecution, including Wine Australia, winemakers, grape growers, Australian and international organisations involved in wine promotion, wine manufacture and consumer protection. As section 40K does not identify individual organisations the department is unable to identify and consult with all bodies that have legal standing to launch prosecutions under the Act.

(4) As noted above, DAFF consulted with WFA. DAFF understands that WFA consulted with its members.

(5) The role of DAFF is to develop and implement policies and programs that ensure Australia's agricultural, fisheries, food and forestry industries remain competitive, profitable and sustainable.

The needs of wine grape producers and wine marketers are considered in the development of these policies and programs.

On 8 May 2012, in the budget the government announced three initiatives to support the wine industry:

i. $0.425m to the Australian Bureau of Statistics (ABS) to continue quarterly and annual wine surveys in 2012-13 and 2013-14.

ii. $0.340m to the Australian Bureau of Agricultural and Resource Economics and Sciences to conduct a benchmarking survey of the wine grape growing industry in 2012-13.

iii. $2.1m to Wine Australia for new marketing activities in 2012-13 and in 2013-14.

(6) Part VIB of the Wine Australia Corporation Act provides protection of geographical indications. That part of the Act makes it an offence to describe and present a wine using a registered geographical indication if the wine did not originate in the country, region or locality in relation to which the geographical indication is registered.

The Consolidated European Community Declaration to the Wine Agreement provides that common English words can be used for the description and presentation of Australian wines.

Section 40DA(2) and section 40FA(2) of the Wine Australia Corporation Act implement the common English word provision. They provide that the use, in good faith, of common English words, which also include a word or term that is a registered GI in relation to a country, region or locality in the description and presentation of wine is not false or misleading merely because it includes the word or term.

(7) The department does not take proactive action to protect geographical indications.

(8) The Amendment Act implemented the Wine Agreement. The amendments are in line with Australian government policy on the protection of geographical indications.

(9) Wine Australia has reviewed 'The Orange Tree' label and does not believe it breaches the Wine Australia Corporation Act 1980 relying on subsection 40DA(2) which provides as follows:

If:

(a) The description and presentation of wine includes a word or term that is a registered geographical indication, a registered translation of such an indication, or a registered traditional expression, in relation to a country, region or locality; and

(b) The word or term is a common English word or term; and

(c) The word or term is not used in such a way as to indicate that the wine originated in the country, region or locality in relation to which the geographical indication, translation or traditional expression is registered; and

(d) The description and presentation indicates the country, region or locality in which the wine originated; and

(e) The word or term is used in good faith

Then the description and presentation is not false merely because it includes the word or term.

Wine Australia advises that in its view, although 'Orange' is a registered geographical indication, it is also a common English word as it also describes a fruit and a colour. Wine Australia considers that the word orange is not being used in this instance to indicate that the wine originated in the registered geographical indication of 'Orange' and the label includes the registered geographical indication of South Eastern Australia which indicates its source. Wine Australia considers the word orange is being used in good faith as part of a registered trade mark and is not inferring any connection with the registered geographical indication of 'Orange'.

(10) Wine Australia no longer routinely reviews wine labels as part of the export review process. A person who believes that a wine label breaches the Wine Australia Act can bring it to the attention of Wine Australia who will review the label. Under section 40K of the Act a person may launch a prosecution if they believe the description and presentation of a wine label breaches the Act.

(11) Wine Australia advise that the 31 August 2010 press release is focussed on the Wine Agreement rather than the amendments to the Wine Australia Act and that it focuses on the key issues such as the market access gains for Australian wines and concessions to the European Union in the form of the protection provided to European geographical indications and traditional expressions.

In presentations to industry regarding the regulatory regime Wine Australia regularly mentions that common English words can be used to describe and present a wine even when the word is included in a geographical indication.

(12) 2044 wineries paid the wine grape levy for the 2010-11 year.

(13) The department understands that Feet First was not discussed by officials of the European Union. However, in negotiations over the wine agreement the EU accepted that GIs that also have a common English word do not conflict with trademarks.