Commonwealth: US Free Trade Agreement Implementation Act 2004 (Cth)

US Free Trade Agreement Implementation Act 2004 Act No. 120 of 2004 as amended This compilation was prepared on 1 January 2005 [This Act was amended by Act No. 154 of 2004] Amendments from Act No. 154 of 2004 [Schedule 1 (item 42) amended heading to Schedule 9 (item 118); Schedule 1 (items 43–48) amended Schedule 9 (item 118); Schedule 1 (items 49 and 50) amended Schedule 9 (item 119); Schedule 1 (item 51) added note to Schedule 9 (item 119(3)); Schedule 1 (item 52) amended heading to Schedule 9 (item 132); Schedule 1 (items 53–58) amended Schedule 9 (item 132); Schedule 1 (items 59 and 60) amended Schedule 9 (item 133); Schedule 1 (item 61) added note to Schedule 9 (item 133(3)) Schedule 1 (items 42 to 61) commenced immediately after 1 January 2005] Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Customs amendments Part 1—US originating goods Customs Act 1901 Part 2—Verification powers Customs Act 1901 Schedule 2—Agricultural and veterinary chemicals amendments Part 1—Limits on use of information Agricultural and Veterinary Chemicals Code Act 1994 Part 2—Provisions relating to limits on use of information Agricultural and Veterinary Chemicals (Administration) Act 1992 Agricultural and Veterinary Chemicals Code Act 1994 Part 3—Change of name from NRA to APVMA Agricultural and Veterinary Chemicals Code Act 1994 Schedule 3—Australian geographical indications for wine amendments Australian Wine and Brandy Corporation Act 1980 Schedule 4—Life insurance amendments Life Insurance Act 1995 Schedule 5—Foreign acquisitions and takeovers amendments Foreign Acquisitions and Takeovers Act 1975 Schedule 6—Commonwealth authorities and companies amendments Commonwealth Authorities and Companies Act 1997 Schedule 7—Therapeutic goods amendments Therapeutic Goods Act 1989 Schedule 8—Patents amendments Patents Act 1990 Schedule 9—Copyright amendments Part 1—Performers' rights in sound recordings Copyright Act 1968 Part 2—Performers' moral rights Copyright Act 1968 Part 3—Performers' protection Copyright Act 1968 Part 4—Copying and communicating broadcasts of performances Copyright Act 1968 Part 5—Duration of copyright in photographs Copyright Act 1968 Part 6—Duration of copyright in works and other subject‑matter Copyright Act 1968 Part 7—Electronic rights management information Copyright Act 1968 Part 8—Criminal offences Copyright Act 1968 Part 9—Encoded broadcasts Copyright Act 1968 Part 10—Reproductions Copyright Act 1968 Part 11—Limitation on remedies available against carriage service providers Copyright Act 1968 Telecommunications Act 1997 Schedule 10—Broadcasting amendments Broadcasting Services Act 1992 An Act to implement the Australia‑United States Free Trade Agreement, and for other purposes [Assented to 16 August 2004] The Parliament of Australia enacts: 1 Short title This Act may be cited as the US Free Trade Agreement Implementation Act 2004. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 16 August 2004 2. Schedule 1 The later of: (a) 1 January 2005; and (b) the day on which the Australia‑United States Free Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. The Minister for Trade must announce by notice in the Gazette the day on which the Agreement comes into force for Australia. 3. Schedule 2, Parts 1 and 2 At the same time as the provisions covered by table item 2. 4. Schedule 2, Part 3 The later of: (a) immediately after the commencement of Parts 1 and 2 of Schedule 2 to this Act; and (b) immediately after the commencement of item 1 of Schedule 1 to the Agricultural and Veterinary Chemicals Legislation Amendment (Name Change) Act 2004. However, the provision(s) do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur. 5. Schedules 3 to 5 At the same time as the provisions covered by table item 2. 6. Schedule 6 The day on which this Act receives the Royal Assent. 16 August 2004 7. Schedule 7 At the same time as the provisions covered by table item 2. 8. Schedule 8 The day on which this Act receives the Royal Assent. 16 August 2004 9. Schedule 9, Part 1 1 January 2005. 1 January 2005 10. Schedule 9, Part 2 The day on which the WIPO Performances and Phonograms Treaty, done at Geneva on 26 December 1996, comes into force for Australia. The Minister administering the Copyright Act 1968 must announce by notice in the Gazette the day on which the Treaty comes into force for Australia. 11. Schedule 9, Parts 3 and 4 The earlier of the following times: (a) the time at which the provisions covered by table item 2 commence; (b) the time at which the provisions covered by table item 10 commence. (Parts 3 and 4 of Schedule 9 still commence even if one of the times mentioned in paragraph (a) or (b) does not occur.) 12. Schedule 9, items 107 to 112 1 January 2005. 1 January 2005 13. Schedule 9, item 113 The day on which this Act receives the Royal Assent. 16 August 2004 14. Schedule 9, items 114 to 119 1 January 2005. 1 January 2005 15. Schedule 9, item 120 At the same time as the provisions covered by table item 2. However, if that time is the same time as the time at which the provisions covered by table item 12 commence, then item 120 commences immediately after those provisions commence. 16. Schedule 9, item 121 At the same time as the provisions covered by table item 2. 17. Schedule 9, item 122 At the same time as the provisions covered by table item 2. However, if that time is the same time as the time at which the provisions covered by table item 12 commence, then item 122 commences immediately after those provisions commence. 18. Schedule 9, items 123 to 166 At the same time as the provisions covered by table item 2. 19. Schedule 9, item 167 The day on which this Act receives the Royal Assent. 16 August 2004 20. Schedule 9, items 168 to 192 At the same time as the provisions covered by table item 2. 21. Schedule 10 The day on which this Act receives the Royal Assent. 16 August 2004 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Customs amendments Part 1—US originating goods Customs Act 1901 1 After Division 1B of Part VIII Insert: Division 1C—US originating goods Subdivision A—Preliminary 153Y Simplified outline The following is a simplified outline of this Division: • This Division defines US originating goods. Preferential rates of customs duty under the Customs Tariff Act 1995 apply to US originating goods that are imported into Australia. • Subdivision B provides that goods are US originating goods if they are wholly obtained or produced entirely in the US. • Subdivision C provides that goods are US originating goods if they are produced entirely in the US, or in the US and Australia, exclusively from originating materials. • Subdivision D sets out when goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating materials and originating materials, are US originating goods. • Subdivision E sets out when goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating materials and originating materials, are US originating goods. • Subdivision F sets out when accessories, spare parts or tools (imported with other goods) are US originating goods. • Subdivision G deals with how the packaging materials or containers in which goods are packaged affects whether the goods are US originating goods. • Subdivision H deals with how the consignment of goods affects whether the goods are US originating goods. 153YA Interpretation Definitions (1) In this Division: Agreement means the Australia‑United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time. Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade. Australian originating goods means goods that are Australian originating goods under a law of the US that implements the Agreement. Convention means the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983. Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 30. In 2004 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department's world‑wide web site. customs value, in relation to goods, has the meaning given by section 159. fuel has its ordinary meaning. Harmonized System means the Harmonized Commodity Description and Coding System (as in force from time to time) that is established by or under the Convention. Harmonized US Tariff Schedule means the Harmonized Tariff Schedule of the United States (as in force from time to time). indirect materials means: (a) goods used in the production, testing or inspection of other goods, but that are not physically incorporated in the other goods; or (b) goods used in the operation or maintenance of buildings or equipment associated with the production of other goods; including: (c) fuel; and (d) tools, dies and moulds; and (e) lubricants, greases, compounding materials and other similar goods; and (f) gloves, glasses, footwear, clothing, safety equipment and supplies for any of these things; and (g) catalysts and solvents. Interpretation Rules means the General Rules for the Interpretation of the Harmonized System provided for by the Convention. national of the US has the meaning given by Annex 1‑A to Chapter 1 of the Agreement. non‑originating materials means goods that are not originating materials. originating materials means: (a) goods that are used in the production of other goods and that are US originating goods; or (b) goods that are used in the production of other goods and that are Australian originating goods; or (c) indirect materials. Example: This example illustrates goods produced from originating materials and non‑originating materials. Pork sausages are produced in the US from US cereals, Hungarian frozen pork meat and Brazilian spices. The US cereals are originating materials since they are goods used in the production of other goods (the sausages) and they are US originating goods under Subdivision B. The Hungarian frozen pork meat and Brazilian spices are non‑originating materials since they are produced in countries other than the US and Australia. produce means grow, raise, mine, harvest, fish, trap, hunt, manufacture, process, assemble or disassemble. Producer and production have corresponding meanings. recovered goods means goods in the form of individual parts that: (a) have resulted from the complete disassembly of goods which have passed their useful life or which are no longer useable due to defects; and (b) have been cleaned, inspected or tested (as necessary) to bring them into reliable working condition. remanufactured goods means goods that: (a) are produced entirely in the US; and (b) are classified to: (i) Chapter 84, 85 or 87 (other than heading 8418, 8516 or 8701 to 8706), or to heading 9026, 9031 or 9032 of Chapter 90, of the Harmonized System; or (ii) any other tariff classification prescribed by the regulations; and (c) are entirely or partially comprised of recovered goods; and (d) have a similar useful life, and meet the same performance standards, as new goods: (i) that are so classified; and (ii) that are not comprised of any recovered goods; and (e) have a producer's warranty similar to such new goods. Schedule 1 tariff table means the table in Schedule 1 to the Customs (Australia‑United States Free Trade Agreement) Regulations 2004. Schedule 2 tariff table means the table in Schedule 2 to the Customs (Australia‑United States Free Trade Agreement) Regulations 2004. US means the United States of America. used means used or consumed in the production of goods. US originating goods means goods that, under this Division, are US originating goods. Value of goods (2) The value of goods for the purposes of this Division is to be worked out in accordance with the regulations. The regulations may prescribe different valuation rules for different kinds of goods. Tariff classifications (3) In specifying tariff classifications for the purposes of this Division, the regulations may refer to the following: (a) the Harmonized System; (b) the Harmonized US Tariff Schedule. (4) Subsection 4(3A) does not apply for the purposes of this Division. Regulations (5) For the purposes of this Division, the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time. Subdivision B—Goods wholly obtained or produced entirely in the US 153YB Goods wholly obtained or produced entirely in the US (1) Goods are US originating goods if they are wholly obtained or produced entirely in the US. (2) Goods are wholly obtained or produced entirely in the US if, and only if, the goods are: (a) minerals extracted in the US; or (b) plants grown in the US, or in the US and Australia, or products obtained from such plants; or (c) live animals born and raised in the US, or in the US and Australia, or products obtained from such animals; or (d) goods obtained from hunting, trapping, fishing or aquaculture conducted in the US; or (e) fish, shellfish or other marine life taken from the sea by ships registered or recorded in the US and flying the flag of the US; or (f) goods produced exclusively from goods referred to in paragraph (e) on board factory ships registered or recorded in the US and flying the flag of the US; or (g) goods taken from the seabed, or beneath the seabed, outside the territorial waters of the US by the US or a national of the US, but only if the US has the right to exploit that part of the seabed; or (h) goods taken from outer space by the US or a national of the US; or (i) waste and scrap that: (i) has been derived from production operations in the US; or (ii) has been derived from used goods that are collected in the US and that are fit only for the recovery of raw materials; or (j) recovered goods derived in the US and used in the US in the production of remanufactured goods; or (k) goods produced entirely in the US exclusively from goods referred to in paragraphs (a) to (i) or from their derivatives. Subdivision C—Goods produced entirely in the US or in the US and Australia exclusively from originating materials 153YC Goods produced entirely in the US or in the US and Australia exclusively from originating materials Goods are US originating goods if they are produced entirely in the US, or entirely in the US and Australia, exclusively from originating materials. Subdivision D—Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non‑originating materials 153YD Simplified outline The following is a simplified outline of this Subdivision: • This Subdivision sets out when goods (except clothing and textiles) that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating materials and originating materials, are US originating goods. • The goods may be US originating goods under section 153YE (which applies to all goods except clothing and textiles). • The goods may also be US originating goods under section 153YF (which applies only to goods that are chemicals, plastics or rubber). 153YE Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non‑originating materials (1) Goods are US originating goods if: (a) a tariff classification (the final classification) that is specified in column 2 of the Schedule 1 tariff table applies to the goods; and (b) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating materials and originating materials; and (c) if any of the following 3 requirements apply in relation to the goods—that requirement is satisfied. First requirement (2) Subject to subsection (3), the first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods. The first requirement is that: (a) each of the non‑originating materials satisfies the transformation test (see subsection (8)); or (b) the following are satisfied: (i) the total value of all the non‑originating materials does not exceed 10% of the customs value of the goods; (ii) if one or more of the non‑originating materials are prescribed for the purposes of this paragraph—each of those non‑originating materials satisfies the transformation test (see subsection (8)). Note 1: Paragraph (2)(b) relates to Article 5.2 (De Minimis) of the Agreement. Note 2: The value of the non‑originating materials is to be worked out in accordance with the regulations: see subsection 153YA(2). (3) However, the first requirement does not apply if: (a) an alternative requirement to the change in tariff classification is also specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; and (b) that alternative requirement is satisfied. Second requirement (4) Subject to subsection (5), the second requirement applies only if a regional value content requirement is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods. The second requirement is that the goods satisfy that regional value content requirement. (5) However, the second requirement does not apply if: (a) an alternative requirement to the regional value content requirement is also specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; and (b) that alternative requirement is satisfied. (6) The regulations may prescribe different regional value content requirements for different kinds of goods. Third requirement (7) The third requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 1 tariff table opposite the final classification for the goods. Transformation test (8) A non‑originating material satisfies the transformation test if: (a) it satisfies the change in tariff classification that is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods; or (b) it does not satisfy the change in tariff classification mentioned in paragraph (a), but it was produced entirely in the US, or entirely in the US and Australia, from other non‑originating materials, and each of those materials satisfies the transformation test (including by one or more applications of this subsection). Note 1: Paragraph (8)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement. Note 2: Subsection (8) operates in a recursive manner: a non‑originating material may satisfy the transformation test in its own right, or it may satisfy it because each non‑originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non‑originating material used to produce the material does so), and so on. 153YF Goods that are chemicals, plastics or rubber Goods are US originating goods if: (a) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating materials and originating materials; and (b) they are goods that are classified to any of Chapters 28 to 40 of the Harmonized System; and (c) a tariff classification (the final classification) that is specified in column 2 of the Schedule 1 tariff table applies to the goods; and (d) before the tariff classifications in column 2 of that table in relation to Chapter 28 or 39 of the Harmonized System, the regulations specify particular rules in column 3 of that table; and (e) those rules apply in relation to the final classification for the goods; and (f) the goods satisfy those rules. Subdivision E—Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non‑originating materials 153YG Simplified outline The following is a simplified outline of this Subdivision: • This Subdivision sets out when goods that are clothing or textiles that are produced entirely in the US, or in the US and Australia, from non‑originating materials only, or from non‑originating materials and originating materials, are US originating goods. • The goods may be US originating goods under section 153YH (which applies to all clothing and textiles). • The goods may also be US originating goods under section 153YI (which applies only to clothing and textiles classified to Chapter 62 of the Harmonized System). 153YH Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non‑originating materials (1) Subject to subsection (5), goods are US originating goods if: (a) a tariff classification (the final classification) that is specified in column 2 of the Schedule 2 tariff table applies to the goods; and (b) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating materials and originating materials; and (c) if any of the following 2 requirements apply in relation to the goods—that requirement is satisfied. Note: Subsection (5) sets out a qualification for goods put up in a set for retail sale. First requirement (2) The first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 2 tariff table opposite the final classification for the goods. The first requirement is that: (a) subject to subsection (3), each of the non‑originating materials satisfies the transformation test (see subsection (7)); or (b) the following are satisfied: (i) the total weight of all the non‑originating materials does not exceed 7% of the total weight of the goods; (ii) if one or more of the non‑originating materials are prescribed for the purposes of this paragraph—each of those non‑originating materials satisfies the transformation test (see subsection (7)). Note: Paragraph (2)(b) relates to paragraphs 6 and 7 (De Minimis) of Article 4.2 of the Agreement. (3) In relation to goods classified to Chapter 61, 62 or 63 of the Harmonized System, paragraph (2)(a) is to be applied by applying: (a) for goods covered by Chapter 61 of the Harmonized System—Chapter Rule 2 for Chapter 61 that is set out in the Schedule 2 tariff table; and (b) for goods covered by Chapter 62 of the Harmonized System—Chapter Rule 3 for Chapter 62 that is set out in the Schedule 2 tariff table; and (c) for goods covered by Chapter 63 of the Harmonized System—Chapter Rule 1 for Chapter 63 that is set out in the Schedule 2 tariff table. Second requirement (4) The second requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 2 tariff table opposite the final classification for the goods. Goods put up in a set for retail sale (5) However, if: (a) the goods are put up in a set for retail sale; and (b) the goods are classified in accordance with Rule 3 of the Interpretation Rules; the goods are US originating goods only if: (c) all of the goods in the set are US originating goods under this Division; or (d) the total value of the goods in the set that are not US originating goods under this Division does not exceed 10% of the customs value of the set of goods. Note: The value of the goods in the set is to be worked out in accordance with the regulations: see subsection 153YA(2). (6) In applying paragraph (5)(c), assume the goods were not part of a set. Example: A skirt and a belt are put up in a set for retail sale. The skirt and the belt have been classified under Rule 3 of the Interpretation Rules according to the tariff classification applicable to skirts. The effect of subsection (6) is that the origin of the belt must now be determined according to the tariff classification applicable to belts. Transformation test (7) A non‑originating material satisfies the transformation test if: (a) it satisfies the change in tariff classification that is specified in column 3 of the Schedule 2 tariff table opposite the final classification for the goods; or (b) it does not satisfy the change in tariff classification mentioned in paragraph (a), but it was produced entirely in the US, or entirely in the US and Australia, from other non‑originating materials, and each of those materials satisfies the transformation test (including by one or more applications of this subsection). Note 1: Paragraph (7)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement. Note 2: Subsection (7) operates in a recursive manner: a non‑originating material may satisfy the transformation test in its own right, or it may satisfy it because each non‑originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non‑originating material used to produce the material does so), and so on. 153YI Goods that are clothing and textiles classified to Chapter 62 of the Harmonized System Goods are US originating goods if: (a) they are produced entirely in the US, or entirely in the US and Australia, from non‑originating materials only or from non‑originating materials and originating materials; and (b) they are goods that are classified to Chapter 62 of the Harmonized System; and (c) either: (i) in any case—the goods satisfy Chapter Rule 2 for Chapter 62 that is set out in the Schedule 2 tariff table; or (ii) in the case of goods that are classified to subheading 6205.20 or 6205.30 of Chapter 62 of the Harmonized System—the goods satisfy the subheading rule for that subheading that is set out in the Schedule 2 tariff table. Subdivision F—Other US originating goods 153YJ Standard accessories, spare parts and tools (1) If goods (the underlying goods) are imported into Australia with standard accessories, standard spare parts or standard tools, then the accessories, spare parts or tools are US originating goods if: (a) the underlying goods are US originating goods; and (b) the accessories, spare parts or tools are not invoiced separately from the underlying goods; and (c) the quantities and value of the accessories, spare parts or tools are the usual quantities and value in relation to the underlying goods. (2) In working out if the underlying goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the accessories, spare parts or tools to be taken into account for the purposes of that requirement. Note: The value of the accessories, spare parts or tools is to be worked out in accordance with the regulations: see subsection 153YA(2). Subdivision G—Packaging materials and containers 153YK Packaging materials and containers (1) If: (a) goods are packaged for retail sale in packaging material or a container; and (b) the packaging material or container is classified with the goods in accordance with Rule 5 of the Interpretation Rules; then the packaging material or container is to be disregarded for the purposes of this Division (with 1 exception). (2) The exception is that in working out if the goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the packaging material or container to be taken into account for the purposes of that requirement. Note: The value of the packaging material or container is to be worked out in accordance with the regulations: see subsection 153YA(2). Subdivision H—Consignment 153YL Consignment (1) Goods are not US originating goods under this Division if: (a) they are transported through a country or place other than the US or Australia; and (b) they undergo any process of production in that country or place (other than unloading, reloading, any operation to preserve them in good condition or any operation that is necessary for them to be transported to Australia). (2) This section applies despite any other provision of this Division. Part 2—Verification powers Customs Act 1901 2 At the end of subsection 4C(1) Add "or is a verification officer for the purposes of Subdivision JA of Division 1 of Part XII". 3 Paragraph 4C(2)(b) Omit "or monitoring officer", substitute ", monitoring officer or verification officer". 4 Subsection 4C(3) Omit "or monitoring officer", substitute ", monitoring officer or verification officer". 5 Subsection 4C(5) Omit "or monitoring officer", substitute ", monitoring officer or verification officer". 6 After Division 4A of Part VI Insert: Division 4B—Exportation of textile and clothing goods to the US 126AE Authorised officer may request records or ask questions (1) If textile and clothing goods are exported to the US, an authorised officer may request a person who: (a) is the exporter or producer of the goods; or (b) is involved in the transportation of the goods from Australia to the US; to produce particular records, or to answer questions put by the officer, in relation to the export, production or transportation of the goods. (2) The person is not obliged to comply with the request. Disclosing records or answers to US (3) An authorised officer may disclose any records so produced, or disclose any answers to such questions, to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement. Definitions (4) In this section: Agreement means the Australia‑United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time. Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade. Harmonized System has the same meaning as in section 153YA. textile and clothing goods means goods that are classified to: (a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or (b) any of Chapters 50 to 63 of the Harmonized System; or (c) heading 7019 of Chapter 70 of the Harmonized System; or (d) subheading 9409.90 of Chapter 94 of the Harmonized System. US means the United States of America. US customs official means a person representing the customs administration of the US. 7 Subdivision J of Division 1 of Part XII (heading) Repeal the heading, substitute: Subdivision J—General powers to monitor and audit 8 After Subdivision J of Division 1 of Part XII Insert: Subdivision JA—Powers to monitor and audit—Australia‑United States Free Trade Agreement 214BAA Simplified outline The following is a simplified outline of this Subdivision: • This Subdivision allows certain officers (verification officers) to enter premises, and to exercise certain powers (AUSFTA verification powers) in or on the premises, for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US. • However, verification officers may only enter premises under this Subdivision with the occupier's consent. • In entering premises and exercising AUSFTA verification powers, verification officers may be accompanied by US customs officials, but only with the occupier's consent. 214BAB Definitions In this Subdivision: Agreement means the Australia‑United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time. Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade. AUSFTA verification powers has the meaning given by section 214BAC. Harmonized System has the same meaning as in section 153YA. occupier of premises includes a person who is apparently in charge of the premises. textile and clothing goods means goods that are classified to: (a) subheading 4202.12, 4202.22, 4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or (b) any of Chapters 50 to 63 of the Harmonized System; or (c) heading 7019 of Chapter 70 of the Harmonized System; or (d) subheading 9409.90 of Chapter 94 of the Harmonized System. US means the United States of America. US customs official means a person representing the customs administration of the US. verification officer means a person authorised under section 214BAD to enter premises and to exercise AUSFTA verification powers. 214BAC AUSFTA verification powers (1) For the purposes of this Subdivision, the following are the AUSFTA verification powers: (a) the power to search premises; (b) the power to take photographs (including a video recording), or make sketches, of premises or anything at premises; (c) the power to inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of, anything in or on premises; (d) the power to inspect any document or record in or on premises; (e) the power to take extracts from, or make copies of, any document or record in or on premises; (f) the power to take into or onto premises any equipment or material reasonably necessary for the purpose of exercising a power under paragraph (a), (b), (c), (d) or (e); (g) the power to test and operate record‑keeping, accounting, computing or other operating systems of any kind that are at premises and may be used to generate or record information or documents of a kind that may be communicated to Customs; (h) the powers in subsections (2) and (3). Operation of equipment (2) For the purposes of this Subdivision, the AUSFTA verification powers include the power to operate equipment at premises to see whether: (a) the equipment; or (b) a disk, tape or other storage device that: (i) is at the premises; and (ii) can be used with the equipment or is associated with it; contains information that is relevant to the verification of information relating to the export, production or transportation of textile and clothing goods that are exported to the US. Removing documents and disks etc. (3) For the purposes of this Subdivision, the AUSFTA verification powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection: (a) the power to operate equipment or other facilities at the premises to put the information in documentary form and remove the documents so produced; (b) the power to operate equipment or other facilities at the premises to transfer the information to a disk, tape or other storage device: (i) that is brought to the premises for the exercise of the power; or (ii) that is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises; and to remove the disk, tape or other storage device from the premises. 214BAD Appointment of verification officers (1) The CEO may, by writing, authorise an officer to enter premises, and to exercise AUSFTA verification powers in or on premises, for the purposes of this Subdivision. Who may be authorised to be a verification officer (2) The CEO must not do so unless the CEO is satisfied that the officer is suitably qualified, because of the officer's abilities and experience, to exercise AUSFTA verification powers. Form of authorisation (3) An authorisation may apply: (a) generally; or (b) during a specified period; or (c) in or on specified premises; or (d) during a specified period in or on specified premises. AUSFTA verification powers to be used only as authorised (4) This Subdivision does not allow: (a) an officer who is authorised to enter premises and exercise AUSFTA verification powers during a specified period to enter the premises or exercise the powers at a time outside that period; or (b) an officer who is authorised to enter specified premises and to exercise AUSFTA verification powers in or on the premises to enter other premises or to exercise the powers in or on the other premises. 214BAE Verification officers may enter premises and exercise AUSFTA verification powers with consent (1) A verification officer may enter premises, and exercise AUSFTA verification powers in or on the premises, to the extent that it is reasonably necessary for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US. Occupier's consent required (2) However, a verification officer must not enter premises under this section unless the occupier of the premises consents to the officer entering the premises and exercising AUSFTA verification powers in or on the premises. (3) Before obtaining a consent under subsection (2), a verification officer must give to the occupier of the premises a written notice stating: (a) that the officer wishes to enter the premises and exercise AUSFTA verification powers in or on the premises; and (b) the period during which the officer wishes to exercise the powers; and (c) the name of any US customs official who the officer proposes will accompany the officer. (4) Before obtaining a consent under subsection (2), a verification officer must tell the occupier of the premises that the occupier may refuse consent. (5) An occupier of premises may express a consent to be limited to entry to the premises, and to the exercise of AUSFTA verification powers in or on the premises, during a particular period unless the occupier withdraws the consent before the end of that period. (6) An occupier's consent that is not so limited has effect in relation to any entry to the premises, and to any exercise of AUSFTA verification powers in or on the premises, until the occupier withdraws the consent. Verification officer must leave premises if consent withdrawn (7) A verification officer must leave the premises if the occupier withdraws the consent. Consent to be voluntary (8) A consent of a person does not have effect for the purposes of this section unless it is voluntary. Consent, or withdrawal of consent, to be in writing (9) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing. Notice setting out the occupier's rights and obligations (10) Before exercising AUSFTA verification powers in respect of premises, a verification officer must give to the occupier of the premises a written notice setting out the occupier's rights and obligations under this Subdivision. Production of identity card (11) Before a verification officer enters premises or exercises any AUSFTA verification powers, he or she must produce his or her identity card to the occupier. 214BAF US customs officials may accompany verification officers Occupier's consent required (1) In entering premises and exercising AUSFTA verification powers, a verification officer may be accompanied by one or more US customs officials, but only if the officer obtains the consent of the occupier of the premises to those officials accompanying the officer. (2) Before obtaining such a consent, a verification officer must tell the occupier of the premises that the occupier may refuse consent. US customs officials must leave premises if consent withdrawn (3) The US customs officials must leave the premises if the occupier withdraws the consent. Consent to be voluntary (4) A consent of a person does not have effect for the purposes of this section unless it is voluntary. Consent, or withdrawal of consent, to be in writing (5) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing. 214BAG Availability of assistance in exercising AUSFTA verification powers In entering premises and exercising AUSFTA verification powers, a verification officer may obtain such assistance as is necessary and reasonable in the circumstances. 214BAH Verification officer may ask questions (1) If a verification officer is in or on premises that he or she entered under this Subdivision, the officer may request the occupier to answer any questions put by the officer. (2) The occupier is not obliged to comply with the request. 214BAI Verification officer may ask for assistance (1) If a verification officer is in or on premises that he or she entered under this Subdivision, then, while the officer is entitled to remain in or on the premises, the officer may request the occupier to provide reasonable assistance to the officer for the purpose of the officer's exercise of AUSFTA verification powers in or on the premises. (2) The occupier is not obliged to comply with the request. 214BAJ Verification officer may disclose information to US A verification officer may disclose any information obtained in exercising AUSFTA verification powers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement. 214BAK Operation of electronic equipment at premises A person may operate electronic equipment at premises in order to exercise a power under this Subdivision only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. 214BAL Compensation for damage to electronic equipment (1) This section applies if: (a) as a result of equipment being operated as mentioned in section 214BAC: (i) damage is caused to the equipment; or (ii) the data recorded on the equipment is damaged; or (iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and (b) the damage or corruption occurs because: (i) insufficient care was exercised in selecting the person who was to operate the equipment; or (ii) insufficient care was exercised by the person operating the equipment. (2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on. (3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines. (4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. (5) Compensation is payable out of money appropriated by the Parliament. (6) For the purposes of subsection (1): damage, in relation to data, includes damage by erasure of data or addition of other data. Schedule 2—Agricultural and veterinary chemicals amendments Part 1—Limits on use of information Agricultural and Veterinary Chemicals Code Act 1994 1 After Division 4 of Part 2 of the Schedule Insert: Division 4A—Limits on use of information Subdivision A—Preliminary 34B Explanation of Division (1) This Division limits for a period the use the NRA can make of information given to it: (a) in connection with an application under section 10 or 27 relating to: (i) approval of an active constituent for a chemical product; or (ii) registration of a chemical product; or (iii) approval of a label for a container for a chemical product; or (b) under section 161 in connection with a registered chemical product. (2) During the period, the NRA cannot use the information for granting another application, or for a reconsideration of an approval or registration, unless: (a) the NRA is given a written statement made by a person who can authorise the use of the information consenting to the use; or (b) certain other conditions are met. (3) The object of limiting use of the information in this way is to encourage innovation by making it easier for a person who made an investment in finding out the information to get a return on that investment. Subdivision B—Limits on use of information 34C NRA must not use some information during some periods for some purposes (1) During the period described in an item of the table, the NRA must not use information described in the item for a purpose described in the item. Limits on use of information The NRA must not use this information: During this period: For this purpose: 1 Information that the applicant or an approved person gives the NRA: The period: Making a decision under section 14, 29 or 34 (except a decision on the application) (a) in connection with an application under section 10 or 27; and (a) starting when the information is given; and (b) before the NRA makes a preliminary assessment under section 11A or 28A of the application (b) ending when the NRA makes the preliminary assessment 2 Information that the applicant or an approved person gives the NRA: The period: Making a decision under section 14, 29 or 34 (except a decision on the application) (a) in connection with an application under section 10 or 27; and (a) starting when the NRA makes a preliminary assessment under section 11A or 28A of the application; and (b) as required by the NRA or section 160A (b) ending when the NRA treats the application as having been withdrawn or grants or refuses the application 3 Information that: The relevant period described in section 34F Making a decision under section 14, 29 or 34 (a) was given to the NRA by the applicant or an approved person in connection with an application under section 10 or 27; and (b) was given as required by the NRA or section 160A; and (c) was relied on by the NRA to grant the application 4 Information that the interested person for a registered chemical product gives the NRA under section 161 in connection with the product The period: Making a decision under section 14, 29 or 34 (a) starting when the person gives the NRA the information; and (b) ending 5 years later if the product is an agricultural chemical product or 3 years later if the product is a veterinary chemical product Note 1: Section 34D sets out exceptions to this subsection. Note 2: Section 161 may require an interested person for an approved active constituent to give the NRA information in connection with the constituent, even though this table does not deal with that requirement. (2) This section applies only to information given to the NRA: (a) in connection with an application made after the commencement of this section; or (b) under section 161 in connection with a chemical product that was registered as a result of an application made after the commencement of this section. (3) The use of information in contravention of subsection (1) for making a decision does not affect the validity of the decision. (4) An action or proceeding does not lie against any of the following for any loss directly or indirectly sustained because of the use of information in contravention of subsection (1): (a) the Commonwealth; (b) the NRA; (c) a person who is or has been: (i) a director of the NRA; or (ii) the Chief Executive Officer of the NRA; or (iii) a delegate of the NRA; or (iv) a member of the staff of the NRA. Subdivision C—Exceptions to limits on use of information 34D Exceptions (1) Section 34C does not prevent the NRA from using information for making a decision: (a) under section 14 or 29 about an application; or (b) under section 34 about a reconsideration of an approval or registration; if a condition in subsection (2), (3), (4), (5) or (6) of this section is met. Evidence of consent for use (2) One condition is that the applicant, an approved person or the interested person for the approval or registration gives the NRA a written statement by the authorising party of that party's consent to the NRA using the information for making the decision. This condition is met even if the authorising party: (a) later states that it has not consented; or (b) withdraws the consent (whether before or after the NRA is given the statement of consent). Note: Chapter 7 of the Criminal Code creates offences relating to false and misleading statements and forgery. Use in the public interest (3) Another condition is that the NRA is satisfied, having regard to the criteria (if any) prescribed by the regulations, that the use of the information is in the public interest. Note: Section 34E sets out other rules that are relevant to the exception based on this condition. Information does not favour the applicant or interested person (4) Another condition is that: (a) the decision relates to: (i) a proposed or existing approval of an active constituent for a proposed or existing chemical product; or (ii) a proposed or existing registration of a proposed or existing chemical product; and (b) the information meets a condition in paragraph 160A(4)(b) or (c) or 161(2)(b) or (c) (which are about showing that use or dealing with the product may have adverse effects or that the product may be ineffective), whether or not the information was given to the NRA under section 160A or 161. Identical information whose use is not limited (5) Another condition is that the NRA is satisfied that there is identical information, or information to the same effect, whose use is not prevented by section 14B or 34C or Part 3. Information given to NRA in connection with certain applications (6) Another condition is that the application mentioned in subsection 34C(1) was one of the following: (a) an application for approval, as an active constituent for a chemical product, of a substance that was a previously endorsed active constituent on the commencement of this Division; (b) an application for the variation of the relevant particulars or conditions of the approval of an active constituent for a chemical product; (c) an application for the registration of a companion animal product each active constituent for which was a previously endorsed active constituent at the time of the preliminary assessment of the application under section 11A; (d) an application for variation of the relevant particulars or conditions of the registration of a companion animal product; (e) an application for the approval of a label for a container for a companion animal product each active constituent of which was a previously endorsed active constituent at the time of the preliminary assessment of the application under section 11A; (f) an application for variation of the relevant particulars or conditions of the approval of a label for a container for a companion animal product. 34E Further rules about public interest exception (1) This section applies if the NRA is satisfied under subsection 34D(3) that it is in the public interest to use information that section 34C would otherwise prohibit the NRA from using for making a decision: (a) under section 14 or 29 about an application; or (b) under section 34 about a reconsideration of an approval or registration. (2) As soon as practicable after becoming satisfied, the NRA must give written notice of its satisfaction to: (a) the applicant, an approved person or the interested person for the approval or registration; and (b) the person whom the NRA believes is the authorising party for the information. (3) Section 168 provides for additional matters to be included in the notice. (4) The NRA must not make the decision using the information before the end of 28 days after the day on which the notice is given. (5) However, subsections (3) and (4) do not apply if: (a) the NRA believes it is necessary to make the decision before the end of 28 days after the notice is given, to prevent imminent risk to public health or occupational health or safety; and (b) states that belief in the notice. Subdivision D—Period of limit on use of information 34F Period of limit on future use of information relied on in granting application (1) Subsection 34C(1) prohibits the NRA from using, during the period described in an item of the following table, information that: (a) was given to the NRA by the applicant or an approved person in connection with an application described in the item; and (b) was given as required by the NRA or section 160A; and (c) was relied on by the NRA to grant the application. The period starts when the application was granted. Period for which the NRA must not use the information Application Period 1 Application made under section 10 for approval of an active constituent (for a proposed or existing chemical product) that was not a previously endorsed active constituent on the commencement of this Division 8 years 2 Application made under section 10 for: 8 years (a) registration of a chemical product at least one of whose active constituents was not a previously endorsed active constituent when the application was acknowledged; or (b) approval of a label for a container for a chemical product at least one of whose active constituents was not a previously endorsed active constituent when the application was acknowledged 3 Application (except one covered by item 2) made under section 10 for: 5 years (a) registration of an agricultural chemical product; or (b) approval of a label for a container for an agricultural chemical product 4 Application (except one covered by item 2) made under section 10 for: 3 years (a) registration of a veterinary chemical product; or (b) approval of a label for a container for a veterinary chemical product 5 Application made under section 27 for variation of the relevant particulars or conditions of: 5 years (a) the registration of an agricultural chemical product; or (b) the approval of a label for a container for an agricultural chemical product 6 Application made under section 27 for variation of the relevant particulars or conditions of: 3 years (a) the registration of a veterinary chemical product; or (b) the approval of a label for a container for a veterinary chemical product Note 1: This section has effect for the purposes of item 3 of the table in subsection 34C(1) (and not for any of the other items in that table). Note 2: This section is not relevant to information if section 34D provides an exception to the prohibition in subsection 34C(1) on the NRA using the information. Extension of 8‑year limits (2) The period mentioned in item 1 or 2 of the table in subsection (1) in relation to: (a) an application for an approval of an active constituent (a key constituent); or (b) an application for registration of a chemical product containing an active constituent (also a key constituent) that had not been approved when the application was acknowledged; or (c) an application for approval of a lab