Commonwealth Numbered Acts

AUSTRALIAN WINE AND BRANDY CORPORATION AMENDMENT ACT 1989 No. 144 of 1989 - SECT 7

7. After Part VI of the Principal Act the following Part is inserted:
             "PART VIA-LABEL INTEGRITY PROGRAM"

Division 1-Preliminary Object of Part
''39A. The object of this Part is to advance the objects of this Act by helpin
to ensure the truth, and the reputation for truthfulness, of statements made
on wine labels, or made for commercial purposes in other ways, about the
vintage, variety or region of origin of wine manufactured in Australia.
Operation of Part ''39B. Without prejudice to its effect apart from this
subsection, this Part has the effect it would have if the references in it to
a wine manufacturer were, by express provision, confined to a wine
manufacturer who is:

   (a)  a foreign corporation, within the meaning of paragraph 51 (xx) of the
        Constitution; or

   (b)  a trading or financial corporation formed within the limits of the
        Commonwealth, within the meaning of that paragraph; or

   (c)  a corporation that is controlled by a corporation described by
        paragraph (a) or (b); or

   (d)  a partnership at least one of the partners in which is a corporation
        described by paragraph (a), (b) or (c). Interpretation
''39C. In this Part, unless the contrary intention appears:
'approved' means approved by the Corporation in writing;
'blend' means wine manufactured by blending different wines;
'different wines' means wines that are different because at least one of their
characteristics of vintage, variety or region of origin is different;
'direct sale' means a sale of wine to a consumer visiting a winery or ordering
the wine from its manufacturer;
'examinable document' means:

   (a)  any document required to be kept under this Part; or

   (b)  any wine label or other document relating to the vintage, variety or
        region of origin of wine goods; or

   (c)  any document relating to advertising the vintage, variety or region of
        origin of wine goods;
'geographical area' includes a vineyard, a district and a State, but does not
include Australia or a larger area;
'grape extract' means grape juice, must, or concentrate obtained from grapes;
'inspection power', in relation to wine premises, means:

   (a)  power to search any part of the premises; or

   (b)  power to inspect, examine, take measurements of, or conduct tests
        (including by the taking of samples) concerning, any wine goods or
        other thing on the premises; or

   (c)  power to take extracts from, and make copies of, any examinable
        documents on the premises; or

   (d)  power to take onto the premises such equipment and materials as the
        inspector requires for the purpose of exercising any other inspection
        power on the premises; 'inspector' means a person appointed under
        section 39ZA;
'label claim', in relation to wine goods, means a claim about their vintage,
variety or region of origin made on a wine label, in a commercial document or
in an advertisement, and includes a claim so made about the vintage, variety
or region of origin of wine goods from which they were manufactured;
'label law' means:

   (a)  this Part; or

   (b)  the regulations; or

   (c)  another law of the Commonwealth relating to the description of wine;
        or

   (d)  a law of a State or and internal Territory relating to the description
        of wine;
'label offence' means an offence against a label law;
'made', in relation to a claim, includes implied;
'manufacturer', in relation to wine, means the wine manufacturer who operates
the winery where the wine is made;
'manufacturing wine' includes blending different wines;
'package', in relation to wine, means a container in which the wine is sold or
transferred for sale;
'principal employee' means the person holding the position of principal
employee (however described) of the Corporation;
'region of origin' means:

   (a)  in relation to grapes-any geographical area in which they were grown;
        or

   (b)  in relation to wine or grape extract-any geographical area in which
        the grapes from which it was obtained were grown;
'single wine' means a wine other than a blend;
'supplier', in relation to wine goods received by a wine manufacturer, means:

   (a)  where the wine manufacturer produced them-the wine manufacturer; or

   (b)  where another person produced them-the person who supplied them to the
        wine manufacturer;
'variety', in relation to wine or grape extract, means the variety of the
grapes from which it was obtained;
'vintage' means:

   (a)  in relation to grapes-the year in which they were harvested; or

   (b)  in relation to wine or grape extract-the year in which the grapes from
        which it was obtained were harvested;
'wine' includes a grape product declared by the regulations to be wine for the
purposes of this Part;
'wine goods' means wine, grapes or grape extract;
'wine label' means a label attached to a bottle or other package of wine and
includes that part of a package of wine on which there is writing;
'wine manufacturer' means a person who operates a winery;
'wine premises' means a winery or other premises occupied by a wine
manufacturer, and includes premises at which wine goods or examinable
documents are held on behalf of a wine manufacturer;
'winery' means an establishment at which:

   (a)  wine is manufactured for commercial purposes; or

   (b)  grape extract is manufactured for use in the manufacture of wine for
        commercial purposes; and, in relation to a wine manufacturer, means a
        winery operated by the manufacturer. Sales with a label claim
''39D. (1) For the purposes of this Part, wine is sold with a label claim if a
label claim is made in relation to the wine when or before it is sold.
''(2) For the purposes of this Part, where a blend is sold with a label claim,
the claim not only relates to the blend but also relates to a wine used in the
blend unless:

   (a)  the claim is one that the blend, or wine used in the blend, has a
        particular characteristic; and

   (b)  the first-mentioned wine does not have, but another wine used in the
        blend does have, that characteristic. Penalties
''39E. (1) Penalties of $15,000 specified in this Part are for offences
committed by corporations.
''(2) Where a natural person is convicted of any offence against this Part for
which such a penalty is specified, the maximum penalty for the offence is
$3,000.
''Division 2-Records relating to Label Claims Wine manufacturers to keep
records of receipt of wine goods
''39F. A wine manufacturer who receives wine goods for processing at the
manufacturer's winery must make and keep a record in writing of their receipt
showing:

   (a)  the date of their receipt; and

   (b)  their quantity; and

   (c)  their vintage, variety and region of origin; and

   (d)  the identity of their supplier.
Penalty: $15,000. Wine manufacturers to keep records of manufacture of certain
single wines
''39G. (1) This section applies to a single wine if its manufacturer:

   (a)  intends to sell the wine with a label claim; or

   (b)  where the wine was manufactured on behalf of another person-knows that
        that person intends to sell the wine with a label claim; or

   (c)  intends to use the wine in manufacturing a blend on the manufacturer's
        behalf and sell the blend with a label claim relating to the wine; or

   (d)  intends to use the wine in manufacturing a blend on behalf of another
        person and knows that that person intends to sell the blend with a
        label claim relating to the wine.
''(2) A wine manufacturer who manufactures a single wine to which this section
applies must make and keep a record in writing of its manufacture showing:

   (a)  the date of its manufacture; and

   (b)  its quantity; and

   (c)  such of its characteristics as are required by section 39W.
Penalty: $15,000. Wine manufacturers to keep records of manufacture of certain
blends

"39H. (1) This section applies to a blend if its manufacturer:

   (a)  intends to sell the blend with a label claim; or

   (b)  where the blend was manufactured on behalf of another person-knows
        that that person intends to sell the blend with a label claim.
''(2) A wine manufacturer who manufactures a blend to which this section
applies must make and keep a record in writing of its manufacture showing:

   (a)  the date of its manufacture; and

   (b)  its quantity; and

   (c)  such of its characteristics as are required by section 39W.
Penalty: $15,000. Wine manufacturers to keep records of sales of certain wine
''39J. (1) This section applies to the sale of wine by a wine manufacturer if
the manufacturer makes a label claim in relation to the wine.
''(2) A wine manufacturer who sells wine in a sale to which this section
applies must make and keep a record in writing of the sale showing:

   (a)  subject to section 39L, the date of the sale; and

   (b)  subject to section 39L, the wine's quantity; and

   (c)  such of the wine's characteristics as are required by section 39W; and

   (d)  subject to subsections (3) and (4), the identity of the purchaser.
Penalty: $15,000.
''(3) Where:

   (a)  a wine manufacturer sells wine packaged for sale to consumers; and

   (b)  the package has a wine label showing that the wine was made by, and
        setting out the name and address of, the manufacturer
the manufacturer is not required to make and keep a record of the identity of
the purchaser.
''(4) Where a wine manufacturer sells wine in a direct sale, the manufacturer
is not required to make and keep a record of the identity of the purchaser.
Wine manufacturers to keep records of disposals of certain wine
''39K. (1) Where a wine manufacturer:

   (a)  manufactures wine on behalf of another person at the manufacturer's
        winery; and

   (b)  disposes of the wine in accordance with the instructions of that
        person;
this section applies to the disposal if the manufacturer:

   (c)  makes a label claim in relation to the wine; or

   (d)  knows that that person intends to seel the wine with a label claim.
''(2) A wine manufacturer who disposes of wine by a disposal to which this
section applies must make and keep a record in writing of the disposal
showing: (a) subject to section 39L, the date of the disposal; and

   (b)  subject to section 39L, the wine's quantity; and

   (c)  such of the wine's characteristics as are required by section 39W; and

   (d)  the identity of that person; and

   (e)  subject to subsections (3) and (4), where it is disposed of by being
        delivered to a person other than that person-the identity of the
        person to whom it is delivered.
Penalty: $15,000.
''(3) Where:

   (a)  a wine manufacturer disposes of wine by delivering the wine to a
        person other than the person on whose behalf it was manufactured; and

   (b)  the wine is packaged for sale to consumers; and

   (c)  the package has a wine label showing that the wine was made by, and
        setting out the name and address of, the manufacturer;
the manufacturer is not required to make and keep a record of the identity of
the person to whom it is delivered.
''(4) Where a wine manufacturer disposes of wine in a direct sale, the
manufacturer is not required to make and keep a record of the identity of the
person to whom it is delivered. Direct sales
''39L. Where wine manufactured at a winery is sold in direct sales, then, in
respect of such wine:

   (a)  in relation to which identical label claims are made by the wine
        manufacturer who operates the winery; and

   (b)  sold during a particular period (not being longer than a year); the
        manufacturer may, instead of making and keeping a record of the date
        of sales and quantities, make and keep a record of the period and of
        the total quantity of the wine sold in the period. Wine manufacturers
        to keep records of transfers of certain wine
''39M. (1) Where a wine manufacturer transfers wine from a winery of the
manufacturer to another winery of the manufacturer for use in manufacturing a
blend, this section applies to the transfer if the manufacturer:

   (a)  makes a label claim in relation to the wine; or

   (b)  intends to sell the blend with a label claim relating to the wine; or

   (c)  where the blend is to be manufactured on behalf of another
        person-knows that that person intends to sell the blend with a label
        claim relating to the wine.
''(2) A wine manufacturer who transfers wine in a transfer to which this
section applies must make and keep a record in writing of the transfer
showing:

   (a)  the date of the transfer; and

   (b)  the wine's quantity; and

   (c)  the winery from which the wine is transferred; and

   (d)  the winery to which the wine is transferred; and

   (e)  such of the wine's characteristics as are required by section 39W.
Penalty: $15,000. Wine manufacturers to keep records of production of certain
grape extract
''39N. (1) Where grape extract is produced by a wine manufacturer at a winery
the manufacturer for use in the manufacture of wine at another winery of the
manufacturer, this section applies to the extract if the manufacturer:

   (a)  where the wine is to be a single wine made on the manufacturer's
        behalf-intends to sell the wine with a label claim; or

   (b)  where the wine is to be a blend made on the manufacturer's
        behalf-intends to sell the blend with a label claim relating to wine
        manufactured from the extract; or

   (c)  where the wine is to be a single wine made on behalf of another
        person-knows that that person intends to sell the wine with a label
        claim; or

   (d)  where the wine is to be a blend made on behalf of another person-knows
        that that person intends to sell the blend with a label claim relating
        to wine manufactured from the extract.
''(2) Where grape extract is produced by a wine manufacturer at a winery of
the manufacturer for use in the manufacture of wine at a winery of another
person, this section applies to the extract if the manufacturer makes a label
claim relating to the extract.
''(3) A wine manufacturer who produces grape extract to which this section
applies must make and keep a record in writing of its production showing:

   (a)  the date of its production; and

   (b)  its quantity; and

   (c)  such of its characteristics as are required by section 39W.
Penalty: $15,000. Wine manufacturers to keep records of sales of certain grape
extract
''39P. (1) Where grape extract produced by a wine manufacturer at the
manufacturer's winery is sold by the manufacturer for use in manufacturing
wine, this section applies to the extract if the manufacturer makes a label
claim in relation to the extract.
''(2) A wine manufacturer who sells grape extract in a sale to which this
section relates must make and keep a record in writing of the sale showing:

   (a)  the date of the sale; and

   (b)  the extract's quantity; and

   (c)  such of the extract's characteristics as are required by section 39W;
        and

   (d)  the identity of the purchaser.
Penalty: $15,000. Wine manufacturers to keep records of disposal of certain
grape extract
''39Q. (1) Where a wine manufacturer:

   (a)  produces grape extract at the manufacturer's winery on behalf of
        another person; and

   (b)  disposes of the extract in accordance with the instructions of that
        person;
this section applies to the disposal if the manufacturer makes a label claim
in relation to the extract.
''(2) A wine manufacturer who disposes of grape extract by a disposal to which
this section applies must make and keep a record in writing of the disposal
showing:

   (a)  the date of the disposal; and

   (b)  the extract's quantity; and

   (c)  such of the extract's characteristics as are required by section 39W;
        and

   (d)  the identity of that person; and

   (e)  where the extract is disposed of by being delivered to yet another
        person-the identity of the person to whom it is delivered.
Penalty: $15,000. Wine manufacturers to keep records of transfers of certain
grape extract
''39R. (1) Where a wine manufacturer transfers grape extract from a winery of
the manufacturer to another winery of the manufacturer for use in
manufacturing wine, this section applies to the transfer if the manufacturer:
  (a) where the wine is to be a single wine-intends to sell the wine    with a
label claim; or

   (b)  where the wine is to be a blend-intends to sell the blend with a label
        claim relating to wine manufactured from the extract.
''(2) Where a wine manufacturer transfers grape extract from a winery of the
manufacturer to a winery of another person for use in manufacturing wine, this
section applies to the transfer if the manufacturer makes a label claim in
relation to the extract.
''(3) A wine manufacturer who transfers grape extract in a transfer to which
this section applies must make and keep a record in writing of:

   (a)  the date of the transfer; and

   (b)  the extract's quantity; and

   (c)  the winery from which the extract is transferred; and

   (d)  the winery to which the extract is transferred; and

   (e)  such of its characteristics as are required by section 39W.
Penalty: $15,000. Making of records
''39S. A requirement of this Division to make a record is a requirement to
make the record as soon as it is practicable to do so. Records to relate to a
winery
''39T. A requirement of this Division (other than sections 39M and 39R) to
make a record includes a requirement to make a record that shows the winery to
which the record relates. Keeping of records
''39U. A requirement of this Division to keep a record is a requirement to
keep the record for 7 years, or a shorter approved period, after the record is
made. Record of person
''39V. For the purposes of this Division, a record of the identity of a person
is a record of particulars of the person's name and address that are enough to
identify the person. Characteristics to be recorded
''39W. Where, under section 39G, 39H, 39J, 39K, 39M, 39N, 39P, 39Q, or 39R, a
record relating to wine or grape extract is to show such characteristics of
the wine or extract as are required by this section, the requirement is for
the record to show:

   (a)  where the section requiring the record applies because of a claim
        about vintage-the vintage of the wine or extract; or

   (b)  where that section applies because of a claim about variety-the
        variety of the wine or extract; or

   (c)  where that section applies because of a claim about region of
        origin-the region of origin of the wine or extract. Record of variety
''39X. (1) For the purposes of this Division, where there is uncertainty about
the variety of wine goods, a record showing their variety is a record showing
whichever variety the wine manufacturer making the record considers on
reasonable grounds most likely to be their variety.
''(2) For the purposes of this Division, where a variety of wine goods is
known by more than one name, a record showing the variety is a record showing
any one of those names. Record of region of origin
''39Y. For the purposes of this Division, a record showing the region of
origin of wine goods is a record showing the name or description of any
geographical area that is a region of origin of the goods. Record of blends
etc.
''39Z. (1) For the purposes of this Division, where:

   (a)  a wine manufacturer makes only one label claim about wine; and

   (b)  the wine is a blend manufactured by blending wine with the
        characteristic claimed and other wine;
a record showing the characteristic of the blend required because of the claim
is a record showing what proportion of the blend is represented by wine with
the characteristic claimed.
''(2) For the purposes of this Division, where:

   (a)  a wine manufacturer makes label claims about 2 or more of the
        characteristics of wine; and

   (b)  the wine is a blend manufactured by blending wine with all the
        characteristics claimed and other wine; a record showing the
        characteristics of the blend required because of the claims is a
        record showing what proportion of the blend is represented by wine
        with the characteristics claimed.
''(3) Subject to subsections (1) and (2), for the purposes of this Division, a
record showing the vintage, variety or region of origin of a blend is:
  (a) a record showing what proportions of the blend are represented    by
each different wine in the blend; and

   (b)  a record, in respect of each of those wines, showing its vintage,
        variety or region of origin, as the case may be.
''(4) For the purposes of this Division, a record showing the vintage, variety
or region of origin of grape extract derived from grapes of different
vintages, varieties or regions of origin is:

   (a)  a record showing what proportions of the goods are derived from each
        kind of grape; and

   (b)  a record, in respect of each kind of grape, showing its vintage,
        variety or region of origin, as the case may be.
                  ''Division 3-Inspection"
Appointment of inspectors
''39ZA. (1) The principal employee may, on behalf of the Corporation:

   (a)  appoint an eligible person to be an inspector; or

   (b)  appoint a class of eligible persons to be inspectors.
''(2) The appointment of an inspector ceases if he or she ceases to be an
eligible person.
''(3) For the purposes of this section, the following are eligible persons:

   (a)  employees of the Corporation;

   (b)  officers and employees of the Commonwealth or of authorities of the
        Commonwealth;

   (c)  officers and employees of a State or internal Territory whom a
        Minister of the Crown of the State, or Minister of the Territory, has
        agreed may be appointed as inspectors;

   (d)  officers and employees of a local government body whom the body has
        agreed may be appointed as inspectors. Identity cards
''39ZB. (1) The principal employee may cause an identity card to be issued to
an inspector.
''(2) An identity card must:

   (a)  contain a recent photograph of the inspector to whom it is issued; and

   (b)  be in an approved form.
''(3) An inspector whose appointment ceases must, as soon as practicable,
return his or her identity card to the Corporation.
Penalty: $100. Monitoring powers of inspectors-exercised with consent
''39ZC. For the purpose of finding out whether label laws are being complied
with, an inspector may, with the consent of, and after producing the
inspector's identity card for inspection by, the occupier of wine premises,
enter, and exercise inspection powers on, the premises. Monitoring warrants
''39ZD. (1) An inspector may apply to a magistrate for a warrant under this
section in relation to particular wine premises.
''(2) Subject to subsection (3), the magistrate may issue the warrant if the
magistrate is satisfied, by information on oath, that it is reasonably
necessary that the inspector should have access to the premises for the
purpose of finding out whether label laws are being complied with.
''(3) The magistrate must not issue the warrant unless the inspector or some
other person has given to the magistrate, either orally or by affidavit, such
further information (if any) as the magistrate requires concerning the grounds
on which the issue of the warrant is being sought.
''(4) The warrant must:

   (a)  authorise an inspector (whether or not named in the warrant), with
        such assistance and by such force as is necessary and reasonable:

        (i)    to enter the premises; and

        (ii)   to exercise inspection powers on the premises; and

   (b)  state whether the entry is authorised to be made at any time of the
        day or night or during specified hours of the day or night; and

   (c)  specify the day (not more than 6 months after the issue of the
        warrant) on which the warrant ceases to have effect; and

   (d)  state the purpose for which the warrant is issued. Offence powers of
        inspectors-exercised with consent
''39ZE. (1) Where an inspector has reasonable grounds for suspecting that ther
is on wine premises a particular thing that may afford evidence of the
commission of a label offence, the inspector may, with the consent of, and
after producing the inspector's identity card for inspection by, the occupier
of the premises, enter, and exercise inspection powers on, the premises.
''(2) An inspector who has entered premises under subsection (1) must leave
them if requested to do so by their occupier. Offence related warrants
''39ZF. (1) An inspector may apply to a magistrate for a warrant under this
section in relation to particular wine premises.
''(2) Subject to subsection (3), the magistrate may issue the warrant if the
magistrate is satisfied, by information on oath, that there are reasonable
grounds for suspecting that there is, or there may be within the next 72
hours, on the premises a particular thing that may afford evidence of the
commission of a label offence.
''(3) The magistrate must not issue the warrant unless the inspector or some
other person has given to the magistrate, either orally or by affidavit, such
further information (if any) as the magistrate requires concerning the grounds
on which the issue of the warrant is being sought.
''(4) The warrant must:

   (a)  state the name of the inspector; and

   (b)  authorise the inspector, with such assistance and by such force as is
        necessary and reasonable:

        (i)    to enter the place; and

        (ii)   to exercise inspection powers on the premises; and

        (iii)  to seize the thing that might afford evidence; and

   (c)  state whether the entry is authorised to be made at any time of the
        day or night or during specified hours of the day or night; and

   (d)  specify the day (not more than one month after the issue of the
        warrant) on which the warrant ceases to have effect; and

   (e)  state the purpose for which the warrant is issued. Discovery of
        evidence
''39ZG. (1) Where an inspector enters wine premises under a warrant under
section 39ZF and finds the thing (in this section called the 'evidence') that
may afford evidence of the commission of a label offence and which the
inspector entered to find:

   (a)  the inspector may seize the evidence; and

   (b)  the inspector may keep the evidence for 60 days, or, if a prosecution
        for a label offence in the commission of which the evidence may have
        been used or otherwise involved is instituted within that period,
        until the completion of the proceedings for the offence and of any
        appeal from the decision in relation to the proceedings; and
  (c) if the evidence is a book, record or document-while the inspect   or has
possession of the evidence, the inspector must allow it to be inspected at any
reasonable time by a person who would be entitled to inspect it if it were not
in the inspector's possession.
''(2) If, in the course of searching wine premises entered under section 39ZE
or a warrant under section 39ZF, the inspector:

   (a)  finds a thing that the inspector believes, on reasonable grounds to
        be:

        (i)    a thing (other than the evidence) that will afford evidence of
               the commission of the label offence mentioned in subsection
               (1); or

        (ii)   a thing that will afford evidence of the commission of another
               label offence; and

   (b)  the inspector believes, on reasonable grounds, that it is necessary to
        seize the thing to prevent its concealment, loss or destruction,
        subsection (1) applies to the thing as if it were the evidence. Power
        to require persons to answer questions and produce documents
''39ZH. An inspector who is on wine premises that the inspector has entered
under a warrant issued under section 39ZD or 39ZF may require any person on
the premises to:

   (a)  answer any questions put by the inspector; and

   (b)  produce any examinable documents requested by the inspector.
''(2) A person must not, without reasonable excuse, refuse or fail to comply
with a requirement under subsection (1).
Penalty: $3,000.
''(3) It is a reasonable excuse for a person to refuse or fail to answer a
question or produce a document if answering the question, or producing the
document would tend to incriminate the person.
''Division 4-Use of Records and Results of Inspection Corporation to assist
enforcement of laws on description of wine
''39ZJ. (1) For the purpose of achieving the object of this Part, the
Corporation may give information obtained under this Part or section 42, and
other assistance, to:

   (a)  the Trade Practices Commission; or

   (b)  a Department of, or an authority or other body established for a
        public purpose by, the Commonwealth, a State or a Territory with
        responsibilities relating to the labelling, description or quality of
        wine; or

   (c)  a person prosecuting, or taking other proceedings against, or
        proposing to prosecute or take other proceedings against, a person in
        relation to the false description of the vintage, variety or region of
        origin of any wine.
''(2) This section does not limit any powers and duties of the Corporation.
Proceedings not to lie against Corporation etc.
''39ZK. No proceedings lie against:

   (a)  the Corporation; or

   (b)  a member of the Corporation; or

   (c)  an employee of the Corporation; or

   (d)  an inspector;
in relation to any loss incurred or damage suffered because of information or
assistance given under section 39ZH. Corporation may assist in relation to
levy
''39ZL. (1) For the purpose of assisting, and achieving administrative savings
in connection with, the calculation and collection of levy imposed by the
Wine Grapes Levy Act 1979 or the Grape Research Levy Act 1986, the Corporation
may, with the consent of a wine manufacturer, give to a Department of the
Commonwealth with responsibilities relating to the levy information kept by,
or held on behalf of, the manufacturer that is obtained by the Corporation
under this Part or under section 42.
''(2) A wine manufacturer is to be taken to have consented to the giving of
information under subsection (1) where the occupier of the wine premises where
the information is kept or held gave such consent.''.