Commonwealth of Australia Explanatory Memoranda

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DESIGNS AMENDMENT (ADVISORY COUNCIL ON INTELLECTUAL PROPERTY RESPONSE) BILL 2020

                                     2019-2020-2021



          THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                        SENATE




      DESIGNS AMENDMENT (ADVISORY COUNCIL ON INTELLECTUAL
                  PROPERTY RESPONSE) BILL 2020




              ADDENDUM TO THE EXPLANATORY MEMORANDUM




(Circulated by authority of the Minister for Industry, Science and Technology the Hon Karen
                                        Andrews MP)
      DESIGNS AMENDMENT (ADVISORY COUNCIL ON INTELLECTUAL
                  PROPERTY RESPONSE) BILL 2020

OUTLINE

This addendum to the explanatory memorandum to the Designs Amendment (Advisory
Council on Intellectual Property Response) Bill 2020 provides further explanation of the
provisions of the Bill.

This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills, in Scrutiny Digest No. 18 of 2020, dated 9 December 2020.




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       DESIGNS AMENDMENT (ADVISORY COUNCIL ON INTELLECTUAL
                   PROPERTY RESPONSE) BILL 2020

ADDITIONAL NOTES ON CLAUSE

Schedule 6 - Formal requirements

Item 4: At the end of Part 6 of Chapter 11

Section 149A

New subsection 149A(3) of the Bill provides that a formal requirements determination under
new subsection 149A(1) is not a legislative instrument. The determination would not be a
legislative instrument under the definition in section 8 of the Legislation Act 2003
(Legislation Act). Subsection 149(3) confirms - for the benefit of readers, and the avoidance
of doubt - what would be the case in any event. It does not have the effect of declaring the
instrument is not legislative when it otherwise would be.

Subsection 8(4) of the Legislation Act provides that an instrument is legislative if it has the
effect of determining the law or altering its content, rather than determining particular
circumstances in which the law is to apply (i.e. is administrative in character).

The power to make a determination of formal requirements is similar to the power to
prescribe or approve a form, which is expressly non-legislative under item 6 of regulation 6
of the Legislation (Exemptions and Other Matters) Regulations 2015.

The formal requirements ensure that applications are made in a suitable form to be registered.
They do not materially determine the law regarding registration of a design. The substantive
requirements for a design to be registrable are determined by the Designs Act 2003 (Designs
Act) and Designs Regulations 2004 (Designs Regulations).

While a failure to comply with the formal requirements determination could result in an
application not being registered under sections 39 and 40 of the Designs Act, a design
applicant would have an opportunity to amend their application under section 28 to resolve
the issue before this occurred.

Under the Designs Act, the Registrar of Designs has existing powers to make non-legislative
determinations of formal and procedural matters, including under sections 144A, 144B and
144C. These powers are closely analogous to the proposed power to make a determination of
formal requirements in the Bill.

Further, the Commissioner of Patents has the power to determine formalities requirements for
patent applications by the Parliament: section 229 of the Patents Act 1990, inserted by the
Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other
Measures) Act 2018. The new power in section 149A is analogous to this power to make a
non-legislative determination.

Viewed in the context of existing powers in Intellectual Property legislation and the
provisions of the Legislation Act, the determination under the proposed section 149A is non-
legislative. The specification that it is non-legislative is a clarification to assist the reader.
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