ANDREAS CLARK IS wrong in stating that “protection afforded to registered geographical indications [GI’s] for wines in Australia remains as strong as ever.” (Grapegrower & Winemaker, September 2013, Page 96).
Read Section 40DA of the Wine Australia Act and you will see that this section is capable of being used to render some GI’s names valueless They are no longer “protected”.
Mr Clark gives us the “good news” story of how sensible and reasonable are some exceptions to what he describes as “a very strict rule”. Such as the “homonymous” ‘la Principaute d’Orange; a surname on a label; a word such as “port”, all of which may use a registered GI or expression that they are normally not entitled to use.
We have no argument with such exceptions as long as they do not undermine the integrity of our GI system, a legal construct that protects consumers and producers of wine and adds great commercial value to our wines.
Unfortunately it is clear to us that the “very strict rule” has been “hollowed out”.
Our experience over the last 10 years is that protection afforded our GI’s has not been strong. Somehow during that period our “guardian/regulators” lost their way.
As an example in 2005 we protested to AWBC about a South Australian label “Orange Lane”. It was removed from the market and we were thanked for alerting AWBC to this breach of the Act. In contrast in 2012 we raised concerns with Wine Australia [WA] concerning the label “The Orange Tree”. The response of Steve Guy, General Manager [Compliance & Trade] was: “I draw your attention to section 40DA[2[ of the Wine Australia Corporation Act and suggest, therefore, there is no action required in relation to this matter”. [email 7 Sept 2012]- end of message.
The very existence of this amendment 40DAto our industry legislation came as a disturbing surprise. We quickly realized that what was illegal in 2005 was now legal in 2012 according to WA. The protection afforded our Orange GI had evaporated, contrary to Mr Clark’s naive belief. What happened to “our strong protection”?, to our “very strict rule”?
Mr Clark’s assertion in his final paragraph that WA supported “vigilant enforcement through WA’s auditing programme” isn’t borne out by our experience with “The Orange Tree”. In an email on 8 Sept. 2012 to Mr Guy we stated: “….It is contestable whether or not 40DA applies. If the producer is acting lawfully the onus is on them to invoke 40DA and prove that the advertisement and label satisfies[sic] the tests required. To not investigate the matter thoroughly and act to protect a GI would be a breach of AWBC’s [sic] responsibilities under Article 25 of the Australia-EU Agreement.”
Mr Guy’s final response by email on 12 Sept 2012 was: “Refer to my earlier email. This correspondence is closed”. It appears the auditing process couldn’t accommodate our request. We haven’t heard from him since. Unlike our 2005 foray we were not thanked for our vigilance.
Acting Chief Executive Clark describes a pithy trimmed down version of the “hoops” a wine label that includes a word that is a “common English word” has to “jump through”. His paraphrased version of 40DA sounds reasonable and fair but it is misleading. He has sanitized it. As a piece of legislation it poorly drafted and we can find no justification for its enactment in the text of the 2010 Australia-EU Agreement”.
Maybe Mr Clark can enlighten us on this matter? Where in the Australia-EU Agreement 2008 are we to find the basis for 40DA?
Although WA refuses to conduct an audit we have done our own audit of “The Orange Tree” against the 40DA tests sub-sections [a], [b], [c], [d], and [e] are as follows:
40DA [a] The description and presentation of wine prominently displays the protected word “orange”. So far, so good.
40DA[b] “orange” is not just a common English word but is also a Proper noun, “Orange”, and the sole word identifying a registered Protected name, “Orange”. Sect.40A[a] requires we give effect to Article 25 of the A’lia-EU Agreement, meaning “orange” cannot be treated like a “common English” word and avoid proscription. WA has an obligation under the Agreement to protect a GI by placing the onus of proof on those using a protected name to prove they are not breaching the Act.
40DA[c] The word is used in this label to give the impression that the wine originated in the Orange GI. This is given weight by the graphic which is not of a tree solely “orange” in colour [an adjective]. So it is not an orange coloured tree. The tree is yellow, orange and green, i.e. autumnal. The City of Orange is promoted for tourism as “Colour City”. The Orange Tree graphic would fit nicely as a “Colour City” promotion. Nor is the graphic and wording portraying a tree with “oranges” hanging from it so it isn’t an “orange fruit tree”. So it is not an orange fruit or coloured tree, it is the ORANGE tree.
This graphic and wording conveys the message that this is a tree “of Orange” and therefore is used in a way to indicate that the wine originated in Orange GI.
It must be conceded that unless a GI is strictly protected against all “pretenders”, allowing for subjectively determined exceptions is a recipe for confusion and disintegration of the GI System.
40DA[d] “South Eastern Australia” which includes Victoria and NSW and South East Queensland. Nevertheless Article 13[a] of the Agreement provides that “protection applies”, even if the “true origin of the wine is indicated”. So having “South Eastern Australia” on the label doesn’t get it off the hook.
40DA[e] How do the producers in this case prove their “good faith” or is the onus of proof on us, Orange GI vignerons, to prove lack of “good faith”? This sub-clause is a meaningless palliative to make it look like those breaching the objects of the Act are acting legitimately. It is almost impossible to disprove, and legally, very costly.
In addition Senator Stephens[ALP, NSW] representing the Minister for Agriculture in 2010 in the second reading speech in the Senate indicated that the “good faith” wording would be dropped as “unenforceable nonsense”, so how did it survive to be inserted in section 40DA[e]?
As far as we are aware WA is refusing to carry out its statutory and treaty obligations to audit “The Orange Tree” even though Mr Clark is a champion of the “vigilant audit” as stated in his article in the G &W. Why?
Finally, the most disturbing aspect of this matter is the way WA officers have handled these legislative changes. The lack of transparency, the lack of consultation, the lack of explanation provided the vignerons of this country cannot be allowed to continue as the “norm”. We are entitled to participate in the progress of our industry but we can only to that if we are properly consulted.
We are still waiting for answers. Why was 40DA drafted, by whom, when?
This matter will not go away until a full explanation is provided and the 2010 amendments revisited with the aim to amend the Act to honour the 2008 Agreement with the EC and fully protect all our registered and protected Australian and EC GI’s, including those that use a “common English word”.
Contact: David Bell, Owner/Director, Dindima Wines. Phone: 61 2 6365 3388. Email: firstname.lastname@example.org