62. The representative of Australia said that, like Canada, his delegation was ready to discuss how the joint proposal's legal effects would be implemented in Australia and what the obligation to consult would entail, how it would genuinely assist GI right holders in obtaining protection and how it would help a variety of decision makers, including courts, trademark authorities and those who administered wine legislation, in arriving at correct decisions. This offer was on the table.
63. As regards the Chair's second question, if there were an obligation to consult the register, then under Australian administrative law, a decision maker would have to give due regard to the information on the register and take it into account properly. This might be what the representative of the European Communities had been referring to, when saying that some Members of the Joint Proposal Group had explained it without putting it in writing. He said that this was a different point as it resulted from an operation of administrative law that ensured proper decision making. Indeed, it was the objective of ensuring proper domestic decision-making that lay behind his delegation's concerns with the extraterritorial effect of the presumptions that had been proposed by the European Communities, and similarly in the Hong Kong, China proposal.
64. He said that there was an important element in the Hong Kong, China proposal that remained more nebulous in the TN/C/W/52 proposal, namely that the information on the register be taken as prima facie evidence that a term met the definition of a GI. As Hong Kong, China, like Australia, had a common law system, he would invite the delegation of Hong Kong, China to explain why it felt this would make no substantive difference and leave domestic decision-making procedures intact. As the definition of a GI contained subjective elements and elements that were bounded by time and place, it was important that, for an element to meet the definition of a GI, it had to indicate an origin. When reading the 2000-odd names on the wine GI list of the bilateral agreement between the European Communities and his country, most Australians had never heard of the great majority of them and those terms might connote nothing in Australia. This would also be a matter for a decision maker to take into account. It would seem inappropriate to be required to treat as proven that a particular word had any meaning at all on the basis of a decision taken in another Member.
