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UNITED STATES - AUSTRALIA FREE TRADE AGREEMENT [ Index > Chapters > 1-13 > 14-23 > ] COMPETITION-RELATED MATTERS ARTICLE 14.1 : OBJECTIVES Recognizing that the conduct subject to this Chapter has the potential to restrict bilateral trade and investment, the Parties believe that proscribing such conduct, implementing policies that promote economic efficiency and consumer welfare, and cooperating on matters covered by this Chapter will help secure the benefits of this Agreement. ARTICLE 14.2 : COMPETITION LAW AND ANTICOMPETITIVE BUSINESS CONDUCT 1. Each Party shall maintain or adopt measures to proscribe anticompetitive business conduct and take appropriate action with respect thereto, recognizing that such measures will help realise the objectives of this Agreement. To this end, the Parties shall consult from time to time about the effectiveness of measures that a Party has undertaken. Each Party shall ensure that a person subject to the imposition of a sanction or remedy for violation of such measures is provided with the opportunity to be heard and to present evidence, and to seek review of such sanction or remedy in a court or independent tribunal of that Party. 2. Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws. The enforcement policy of each Party’s central government authorities responsible for the enforcement of such laws includes treating non-nationals no less favourably than nationals in like circumstances, and each Party’s authorities intend to maintain this policy, in that regard. 3. The Parties recognize the importance of cooperation and coordination between their respective authorities to further effective competition law enforcement in the free trade area. The Parties shall cooperate in relation to the enforcement of competition laws and policy, including through mutual assistance, notification, consultation, and exchange of information.
4. To further advance their cooperation, the Parties shall examine the scope for strengthening support for, and minimizing legal impediments to, the effective enforcement of each other’s competition laws and policies. The Parties shall establish a joint working group with the goal of seeking to reach a common view, by the first meeting of the Joint Committee established pursuant to Chapter 21 (Institutional Arrangements and Dispute Settlement), of appropriate steps to enhance their respective legal and regulatory regimes in that regard. ARTICLE 14.3 : DESIGNATED MONOPOLIES 1. Recognizing that designated monopolies should not operate in a manner that creates obstacles to trade and investment, each Party shall ensure that any privately-owned monopoly that it designates after the date of entry into force of this Agreement and any government monopoly that it designates or has designated:
2. Nothing in this Chapter shall be construed as preventing a Party from designating a monopoly. 3. This Article does not apply to government procurement. ARTICLE 14.4 : STATE ENTERPRISES AND RELATED MATTERS 1. The Parties recognize that state enterprises should not operate in a manner that creates obstacles to trade and investment. In that light, each Party shall ensure that any state enterprise that it establishes or maintains:
2. The United States shall ensure that anticompetitive activities by sub-federal state enterprises are not excluded from the reach of its national antitrust laws solely by reason of their status as sub-federal state enterprises, to the extent that their activities are not protected by the State Action Doctrine. 3. Australia shall take reasonable measures, including through its policy of competitive neutrality, to ensure that its governments at all levels do not provide any competitive advantage to any government businesses simply because they are government-owned. This paragraph applies to the business activities of government businesses and not to their non-business, non-commercial activities. Australia shall ensure that its competitive neutrality complaints offices treat complaints lodged by the United States, or persons of the United States, no less favourably than complaints lodged by persons or government bodies of Australia. ARTICLE 14.5 : DIFFERENCES IN PRICING Articles 14.3 and 14.4 shall not be construed as preventing a monopoly or state enterprise from charging different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions. ARTICLE 14.6 : CROSS BORDER CONSUMER PROTECTION 1. The Parties recognize the importance of cooperation and coordination on matters related to their consumer protection laws in order to enhance consumer welfare in the free trade area. Accordingly, the Parties shall cooperate in the enforcement of their consumer protection laws. 2. The Parties recognize the existing mechanisms for cooperation in relation to consumer protection, including:
3. The Parties shall further strengthen cooperation and coordination among their respective agencies, including the U.S. Federal Trade Commission (FTC) and the Australian Competition and Consumer Commission (ACCC) in areas of mutual concern, in particular fraudulent and deceptive commercial practices against consumers:
4. Nothing in this Article shall limit the discretion of the FTC or ACCC to decide whether to take action on particular requests by the other agency, or shall preclude either agency from taking action with respect to particular cases. 5. In addition, the Parties shall identify, in areas of mutual concern and consistent with their important interests, obstacles to effective cross-border cooperation in the enforcement of consumer protection laws, and shall consider changing their domestic frameworks to overcome such obstacles and enhance the ability of the Parties to cooperate, share information, and assist in the enforcement of each other’s consumer protection laws, including, if appropriate, adopting or amending national legislation to overcome such obstacles. ARTICLE 14.7 : RECOGNITION AND ENFORCEMENT OF MONETARY JUDGMENTS 1. The Parties recognize the importance of civil proceedings by the FTC, U.S. Securities and Exchange Commission, U.S. Commodity Futures Trading Commission, Australian Securities and Investments Commission, and the ACCC to provide monetary restitution to consumers, investors, or customers who have suffered economic harm as a result of being deceived, defrauded, or misled. The Parties further recognize the importance of facilitating cross-border recognition and enforcement of monetary judgments obtained for such purposes. 2. When an agency listed in paragraph 1 obtains a civil monetary judgment from a judicial authority of a Party for the purpose of providing monetary restitution to consumers, investors, or customers who have suffered economic harm as a result of being deceived, defrauded, or misled, a judicial authority of the other Party generally should not disqualify such a monetary judgment from recognition or enforcement on the ground that it is penal or revenue in nature or based on other foreign public law, including where such judgment contains provisions for recovery of monies or other disposition in the event that restitution is impractical or for payment of expenses related to the collection or distribution of such a monetary judgment. 3. The judicial authorities of a Party should consider the recognition or enforcement of provisions for monetary judgments described in paragraph 2 separately from other provisions of the judgment, to the extent such other provisions are deemed to be penal or revenue in nature orbased on other foreign public law for the purposes of recognition or enforcement. 4. Nothing in this Article is intended to affect whether any other category of law or judgment is appropriately viewed as penal or revenue in nature or based on other foreign public law for the purposes of the recognition or enforcement of foreign judgments. 5. Each Party’s agencies listed in paragraph 1 should cooperate with the relevant agencies of the other Party, where feasible and appropriate, in facilitating the identification of consumers,investors, and customers described in paragraph 2 and on other matters relating to payment of monetary judgments. 6. The Parties shall work together to examine the scope for establishing greater bilateral recognition of foreign judgments of their respective judicial authorities obtained for the benefit of consumers, investors, or customers who have suffered economic harm as a result of being deceived, defrauded, or misled; and shall report on the feasibility and appropriateness of, and progress toward, greater recognition of such foreign judgments at the first meeting of the Joint Committee. ARTICLE 14.8 : TRANSPARENCY 1. The Parties recognize the value of transparency in their competition policies. 2. On request of a Party, each Party shall make available to the other Party public information concerning:
ARTICLE 14.9 : COOPERATION The Parties recognize that policies related to matters covered by this Chapter can be a force for open and competitive markets domestically and internationally. They also recognize that such policies can have an effect on investment and on the extent to which enterprises of a Party can compete with, sell goods and services to, and purchase good and services from enterprises of the other Party. Accordingly, the Parties shall cooperate, including in the manner provided for in Articles 14.2.3 and 14.6, to promote policies related to matters covered by this Chapter that foster free trade and investment and competitive markets. ARTICLE 14.10 : CONSULTATIONS 1. To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, on request of the other Party, enter into consultations regarding representations made by the other Party. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. 2. The Party to which a request for consultations has been addressed shall accord full and sympathetic consideration to the concerns raised by the Party having made the request. ARTICLE 14.11 : DISPUTE SETTLEMENT Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under Articles 14.2, 14.4.2, 14.4.3, 14.6, 14.7, 14.9, or 14.10.2. ARTICLE 14.12 : DEFINITIONS For the purposes of this Chapter: 1. consumer protection laws means:
as well as any amendments thereto, and such other laws or regulations as the Parties may agree in writing; 2. designate means, whether formally or in effect, to establish, designate, or authorize a monopoly or to expand the scope of a monopoly to cover an additional good or service; 3. government businesses means Australian government businesses within the meaning of Australia’s Competition Principles Agreement of 1995; 4. government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party or by another such monopoly; 5. in accordance with commercial considerations means consistent with normal business practices of privately-held enterprises in the relevant business or industry; 6. market means the geographical and commercial market for a good or service; 7. monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; 8. non-discriminatory treatment means the better of national treatment and mostfavoured-nation treatment, as set out in the relevant provisions of this Agreement, including the terms and conditions set out in the relevant Annexes thereto; and 9. state enterprise means an enterprise owned, or controlled through ownership interests, by any level of government of a Party. GOVERNMENT PROCUREMENT ARTICLE 15.1 : SCOPE AND COVERAGE Application of Chapter 1. This Chapter applies to any measure regarding covered procurement. 2. For the purposes of this Chapter, covered procurement means a procurement of goods, services, or both:
3. This Chapter does not apply to:
4.
Compliance 5. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements. Valuation 6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
7. In the case of procurement by lease or rental or procurement that does not specify a total price, the basis for estimating the value of the procurement shall be, with respect to:
8. Where the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be a covered procurement, unless otherwise excluded under this Agreement 9. All orders under contracts awarded for covered procurements shall be subject to Articles 15.2.1 and 15.2.2. ARTICLE 15.2 : GENERAL PRINCIPLES National Treatment and Non-Discrimination 1. Each Party and its procuring entities shall accord unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering the goods or services of that Party, treatment no less favourable than the most favourable treatment the Party or the procuring entity accords to domestic goods, services and suppliers. 2. A procuring entity of a Party may not:
Procurement Methods 3. A procuring entity may use:
Rules of Origin 4. Each Party shall apply to covered procurement of goods the rules of origin that it applies in the normal course of trade to those goods. Offsets 5. A procuring entity may not seek, take account of, impose, or enforce offsets in the qualification and selection of suppliers, goods, or services, in the evaluation of tenders or in the award of contracts, before or in the course of a covered procurement. Measures Not Specific to Procurement 6. Paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations or formalities, and measures affecting trade in services other than measures governing covered procurements. Non-Disclosure of Information 7. Nothing in this Chapter shall be construed as requiring a Party or its procuring entities to disclose, furnish, or allow access to confidential information furnished by a person where such disclosure might prejudice fair competition between suppliers, without the authorization of the person that furnished the information. ARTICLE 15.3 : PUBLICATION OF PROCUREMENT INFORMATION 1. Each Party shall promptly publish the following information relating to covered procurements, and any changes or additions to this information, in electronic or paper media that are widely disseminated and remain readily accessible to the public:
2. Each Party shall, on request, provide an explanation relating to such information to the requesting Party. ARTICLE 15.4 : PUBLICATION OF NOTICE OF INTENDED PROCUREMENT 1. For each covered procurement, except in the circumstances described in Articles 15.7.7(a) and (d) and 15.7.8, a procuring entity shall publish a notice inviting interested suppliers to submit tenders (“notice of intended procurement”) or, where appropriate, applications for participation in a procurement. The notice shall be published in electronic or paper media that are widely disseminated and remain readily accessible to the public for the entire period established for tendering. 2. A procuring entity shall include the following information in each notice of intended procurement:
Notice of Planned Procurement 3. Each Party shall encourage its procuring entities to publish as early as possible in each fiscal year a notice regarding their procurement plans. The notice should include the subject matter of any planned procurement and the estimated date of the publication of the notice of intended procurement. Where the notice is published in accordance with Article 15.5.3(a), a procuring entity may apply Article 15.5.3 for the purpose of establishing shorter time limits for tendering for covered procurements. ARTICLE 15.5 : TIME LIMITS 1. A procuring entity shall prescribe time limits for tendering that allow suppliers adequate time to submit applications or requests to participate in a covered procurement, including pursuant to Article 15.7.7(b) and (c), and to prepare and submit responsive tenders, taking into account the nature and complexity of the procurement. 2. Except as provided for in paragraphs 3 and 4, a procuring entity shall establish that the final date for the submission of tenders shall not be less than 30 days:
3. Under the following circumstances, a procuring entity may establish a time limit for tendering that is less than 30 days, provided that such time limit is sufficiently long to enable suppliers to prepare and submit responsive tenders and is in no case less than ten days:
4. When a procuring entity publishes a notice of intended procurement in accordance with Article 15.4 in an electronic medium, or, in the case of selective tendering, issues an invitation to tender via an electronic medium and provides, to the extent practicable, the tender documentation via an electronic medium, the procuring entity may reduce the time limit for submission of a tender by up to five days. In no case shall the procuring entity reduce either time limit to less than ten days from the date on which the notice of intended procurement is published. 5. Where a procuring entity intends to limit the submission of tenders to all suppliers that the entity has determined have satisfied the conditions for participation, except where a notice of a multi-use list has been readily accessible in electronic form for a reasonable period, the entity shall include in an invitation to tender the time limit for submitting applications. Any conditions for participation in a tendering procedure shall be published sufficiently in advance to enable interested suppliers of the other Party to initiate and, to the extent that it is compatible with the efficient operation of the procurement process, complete the registration and qualification procedures within the time allowed for tendering. 6. A procuring entity shall require all participating suppliers to submit tenders in accordance with a common deadline. For greater certainty, this requirement also applies where:
ARTICLE 15.6 : INFORMATION ON INTENDED PROCUREMENTS Tender Documentation 1. A procuring entity shall promptly provide, on request, to any supplier participating in a covered procurement, tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
2. A procuring entity shall promptly reply to any reasonable request for relevant information by a supplier participating in the covered procurement, provided that the procuring entity may not make available information with regard to a specific procurement in a manner that would give a supplier or group of suppliers an advantage over its competitors in the procurement. Technical Specifications 3. A procuring entity may not prepare, adopt, or apply any technical specification or prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to trade between the Parties. 4. In prescribing the technical specifications for the good or service being procured, a procuring entity shall:
5. A procuring entity may not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design or type, specific origin, producer, or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, words such as “or equivalent” are included in the tender documentation. 6. A procuring entity may not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement. 7. Notwithstanding paragraph 6, a procuring entity may:
8. For greater clarity, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specifications to promote the conservation of natural resources and the environment. Modifications 9. Where, during the course of a covered procurement, a procuring entity modifies the criteria or technical requirements set out in a notice or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit all such modifications or amended or re-issued notice or tender documentation:
ARTICLE 15.7 : TENDERING PROCEDURES Conditions for Participation 1. A Party, and its procuring entities, shall limit any conditions for participation in a covered procurement to those that ensure that a supplier has the legal, commercial, technical, and financial abilities to fulfill the requirements of the procurement. 2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
3. Nothing in this Article shall preclude the exclusion of a supplier on grounds such as:
Multi-Use Lists 4. A Party, and its procuring entities, may establish a multi-use list provided that the procuring entity or other government agency annually publishes or otherwise makes available continuously in electronic form a notice inviting interested suppliers to apply for inclusion on the list. The notice shall include:
5. A procuring entity or other government agency that maintains a multi-use list shall include on the list all suppliers that satisfy the conditions for participation within a reasonably short time. Selective Tendering 6.To ensure optimum effective competition under selective tendering procedures, procuring entities shall, for each intended covered procurement, invite tenders from the largest number of domestic suppliers and suppliers of the other Party that is consistent with the efficient operation of the procurement system. 7. A procuring entity applying selective tendering procedures shall use, in accordance with paragraph 6:
8. Provided that relevant requirements and criteria have been specified in advance in a notice or in tender documentation, a procuring entity, in determining the suppliers that will be invited to tender, under paragraphs 7(b) and (c) may:
9. A procuring entity shall apply the time limits set out in Article 15.5 for responses to the notices referred to in paragraphs 7(b) and (c). Information on Procuring Entity Decisions 10. Where a supplier applies for participation in a covered procurement, including through a procedure described in paragraphs 7(b) or (c), or for inclusion on a list referred to in paragraph 4, a procuring entity shall promptly advise such supplier of its decision with respect to its application. 11. Where a procuring entity:
the procuring entity shall promptly inform the supplier and, on request of such supplier, promptly provide the supplier with a written explanation of the reasons for its decision. ARTICLE 15.8 : LIMITED TENDERING 1. Provided that it does not use this provision for the purpose of avoiding competition, to protect domestic suppliers, or in a manner that discriminates against suppliers of the other Party, a procuring entity may contact a supplier or suppliers of its choice and may choose not to apply Articles 15.4 through 15.7, 15.9.1, and 15.9.3 through 15.9.7 in relation to a covered procurement in any of the following circumstances:
2. For each contract awarded under paragraph 1, a procuring entity shall prepare a written report that includes:
ARTICLE 15.9 : TREATMENT OF TENDERS AND AWARDING OF CONTRACTS Receipt and Opening of Tenders 1. A procuring entity shall receive and open all tenders under procedures that guarantee the fairness and impartiality of the procurement process. 2. A procuring entity shall treat tenders in confidence. In particular, it shall not provide information to particular suppliers that might prejudice fair competition between suppliers. 3. A procuring entity shall not penalize any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity. 4. Where a procuring entity provides suppliers with opportunities to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunities to all participating suppliers. Awarding of Contracts 5. A procuring entity may not consider a tender for award unless, at the time of opening, the tender conforms to the essential requirements of all notices issued during the course of a covered procurement or tender documentation. 6. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award a contract to the supplier that the entity has determined satisfies the conditions for participation and is fully capable of undertaking the contract and whose tender is determined to be the lowest price, the best value, or the most advantageous, in accordance with the essential requirements and evaluation criteria specified in the notices and tender documentation. 7. A procuring entity may not cancel a covered procurement, nor terminate or modify awarded contracts so as to circumvent the requirements of this Chapter. Information Provided to Suppliers 8. A procuring entity shall promptly inform suppliers that have submitted tenders of the contract award decision. Subject to Article 15.2.7, a procuring entity shall, on request, provide an unsuccessful supplier with the reasons that the entity did not select its tender. Publication of Award Information 9. Not later than 60 days after the award of a contract for a covered procurement, a procuring entity shall publish a notice in an officially designated publication, which may be in an electronic or paper medium. The notice shall include at least the following information about the contract:
Provision of Information to the Other Party 10. On request of the other Party, a Party shall provide information on the tender and evaluation procedures used in the conduct of a covered procurement sufficient to demonstrate that the particular procurement was conducted fairly, impartially, and in accordance with this Chapter. The information shall include, at a minimum, the information specified in Article 15.8.2, and, to the extent necessary and without disclosing confidential information, information on the characteristics and relative advantages of the successful tender and on the contract price. Maintenance of Records 11. A procuring entity shall maintain records and reports of tendering procedures relating to covered procurements, including the reports provided for in Article 15.8, and shall retain such records and reports for a period of at least three years after the award of a contract. ARTICLE 15.10 : ENSURING INTEGRITY IN PROCUREMENT PRACTICES 1. Each Party shall ensure that criminal or administrative penalties exist to sanction:
ARTICLE 15.11 : DOMESTIC REVIEW OF SUPPLIER CHALLENGES 1. In the event of a complaint by a supplier of a Party that there has been a breach of the other Party’s measures implementing this Chapter in the context of a covered procurement in which the supplier has or had an interest, the Party of the procuring entity shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint. 2. Each Party shall maintain at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review challenges that suppliers submit, in accordance with the Party’s law, relating to a covered procurement. Each Party shall ensure that any such challenge not prejudice the supplier’s participation in ongoing or future procurement activities. 3. Where a body other than an authority referred to in paragraph 2 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity that is the subject of the challenge. 4. Each Party shall ensure that the authorities referred to in paragraph 2 have the power to take prompt interim measures, pending the resolution of a challenge, to preserve the supplier’s opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter. Such interim measures may include, where appropriate, suspending the contract award or the performance of a contract that has already been awarded. 5. Each Party shall ensure that its review procedures are conducted in accordance with the following:
ARTICLE 15.12 : EXCEPTIONS 1. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail, or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
2. The Parties understand that subparagraph 1(b) includes environmental measures necessary to protect human, animal or plant life or health. ARTICLE 15.13 : MODIFICATIONS AND RECTIFICATIONS TO COVERAGE 1. The Joint Committee shall modify the relevant section of Annex 15-A to reflect any agreed modification, rectification, or minor amendment in the following circumstances:
2. A Party need not provide compensatory adjustments where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence in respect of procurement by that entity. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity’s status under this Chapter. 3. Each Party shall continue to encourage increased participation under this Chapter by its regional government entities. ARTICLE 15.14 : COOPERATION 1. The Parties recognize their shared interest in promoting international liberalization of government procurement markets in the context of the rules-based international trading system, including in the WTO and Asia Pacific Economic Cooperation. 2. Not later than 24 months after the date of entry into force of this Agreement, and at least biennially thereafter, the Joint Commission shall review the operation and implementation of this Chapter. ARTICLE 15.15 : DEFINITIONS For the purposes of this Chapter: 1. build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government owned works and under which, as consideration for a supplier’s execution of a contractual arrangement, a procuring entity grants the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of such works for the duration of the contract; 2. commercial goods and services mean goods and services of a type of goods and services that are sold or offered for sale to, and customarily purchased by, non-governmental buyers for non-governmental purposes; it includes goods and services with modifications customary in the commercial marketplace, as well as minor modifications not customarily available in the commercial marketplace; 3. conditions for participation means registration, qualification, and other pre-requisites for participation in a procurement; 4. in writing or written means any worded or numbered expression that can be read, reproduced, and later communicated. It may include electronically transmitted and stored information; 5. measure, as defined in Article 1.2.15, includes any guidelines; 6. multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once; 7. offsets means any conditions or undertakings that require use of domestic content, domestic suppliers, the licensing of technology, technology transfer, investment, counter-trade, or similar actions to encourage local development or to improve a Party’s balance-of-payments accounts; 8. open tendering means a procurement method where all interested suppliers may submit a tender; 9. procurement official means any person who performs procurement functions; 10. procuring entity means an entity listed in Sections 1 through 3 of Annex 15-A; 11. selective tendering means a procurement method where the procuring entity determines the suppliers that it will invite to submit tenders; 12. services includes construction services, unless otherwise specified; 13. supplier means a person that provides or could provide goods or services to a procuring entity; and 14. technical specification means a tendering requirement that:
Section 1: Central Government Entities 1. This Chapter applies to central government entities listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:
The monetary thresholds set out in subparagraphs (a) and (b) shall be adjusted in accordance with Section 8 of this Annex. 1. Agriculture, Fisheries and Forestry Portfolio 2. Attorney-General’s Portfolio 3. Communications, Information Technology and the Arts Portfolio
4. Defence Portfolio
5. Education, Science and Training Portfolio
6. Employment and Workplace Relations Portfolio
7. Environment and Heritage Portfolio
8. Family and Community Services Portfolio
9. Finance and Administration Portfolio
10. Foreign Affairs and Trade Portfolio
11. Health and Ageing Portfolio
12. Immigration and Multicultural and Indigenous Affairs Portfolio
13. Industry, Tourism and Resources Portfolio
14. Prime Minister and Cabinet Portfolio
15. Transport and Regional Services Portfolio
16. Treasury Portfolio
17. Parliamentary Departments
Notes to the Schedule of Australia 1. This Chapter covers only those entities subordinate to the relevant portfolio which are listed in this Schedule. 2. This Chapter does not cover the procurement of motor vehicles by any entity listed in this Section. 3. Department of Defence
NB: Whether a good is included within the scope of this Note shall be determined solely according to the descriptions provided in the left column above. U.S. Federal Supply Codes are provided for reference purposes only. (For a complete listing of the United States Federal Supply Codes, to which the Australian categories are approximately equivalent, see: http://www.scrantonrtg.com/secrc/fsc-codes/fsc.html.).
4. Department of Finance and Administration This Chapter does not cover procurement by the PSS Board or the CSS Board of investment management, investment advisory, or master custody and safekeeping services for the purposes of managing and investing the assets of the CSS and PSS Funds. Schedule of the United States 1 1. Advisory Commission on Intergovernmental Relations
1. Unless otherwise specified in this Schedule, all agencies subordinate to the listed entities are covered by this Chapter. 2. Department of Agriculture: This Chapter does not cover the procurement of agricultural goods made in furtherance of agricultural support programs or human feeding programs. 3. Department of Commerce: This Chapter does not cover shipbuilding activities of the U.S. National Oceanic and Atmospheric Administration (NOAA). 4. Department of Defense: This Chapter does not cover the procurement of the goods listed below. (For aa complete listing of U.S. Federal Supply Classification, see www.scrantonrtg.com/secrc/fsc-codes/fsc.html.)
5. Department of Energy: This Chapter does not cover national security procurements made in support of safeguarding nuclear materials or technology and entered into under the authority of the Atomic Energy Act, or oil purchases related to the Strategic Petroleum Reserve. 6. Department of Homeland Security:
7. Department of Transportation: This Chapter does not cover procurement by the Federal Aviation Administration. 8. General Services Administration: This Chapter does not cover the procurement of the goods in the following FSC categories:
SECTION 2 : REGIONAL GOVERNMENT ENTITIES 1. This Chapter applies to the regional government entities listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:
The monetary thresholds set out in paragraph 1 shall be adjusted in accordance with Section 8 of this Annex. Schedule of Australia This Chapter covers only those entities specifically listed in this Schedule. Australian Capital Territory ACT Auditor-General’s Office
For the entities listed for the Australian Capital Territory, this Chapter does not cover the procurement of health and welfare services, education services, utility services, or motor vehicles. New South Wales Agriculture and Fisheries Portfolio
1. For the entities listed for New South Wales, this Chapter does not cover the procurement of health and welfare services, education services, or motor vehicles. 2. Australia shall phase-out the non-compliant offset and preference schemes of New South Wales within three years after the date of entry into force of this Agreement. 3. For the entities listed for New South Wales, the Chapter does not apply to procurements undertaken by a covered entity on behalf of a non-covered entity. Northern Territory Chief Minister’s Portfolio
1. For the entities listed for the Northern Territory, this Chapter does not cover set-asides on behalf of the Charles Darwin University pursuant to Partnership Agreements between the Northern Territory Government and Charles Darwin University. 2. Australia shall phase-out the non-compliant parts of its Building Northern Territory Industry Participation program within three years after the date of entry into force of this Agreement. Queensland Aboriginal and Torres Strait Islander Policy Portfolio
1. For the entities listed for Queensland, this Chapter does not apply to procurements by covered entities on behalf of non-covered entities. 2. The procurement policies and procedures that are not compliant with the offsets provisions of this Chapter will be made compliant within three years from the date of entry into force of the Agreement. 3. For the entities listed for Queensland, this Chapter does not cover the procurement of health and welfare services, education services, government advertising and motor vehicles. South Australia Department of Treasury and Finance Independent Gambling Authority Department of Trade and Economic Development Department of Primary Industries and Resources SA Department of Justice Attorney-General’s Department &Department for Correctional Services Country Fire Services Courts Administration Authority Emergency Services Administrative Unit South Australian Metropolitan Fire Services South Australian Police Department State Electoral Office Auditor-General’s Department Department of Human Services Department of Aboriginal Affairs and Reconciliation Department of Education and Children's Services Department of Further Education Employment, Science & Technology SA Tourism Commission Department for Environment and Heritage Environment Protection Authority Department of Water, Land and Biodiversity Conservation Department of Transport and Urban Planning Transport Services Transport Planning Office of Public Transport Board Planning SA Office for Sustainable Social, Environmental and Economic Development Office of Local Government Department for Administrative and Information Services State Supply Board 1. For the entities listed for South Australia, this Chapter does not cover the procurement of health and welfare services, education services, advertising services, or motor vehicles. 2. Any measure providing for inclusion of offsets in procurements will be phased out within three years of the date of entry into force of the Agreement. Tasmania For the entities listed for Tasmania, this Chapter does not cover the procurement of health and welfare services, education services, or advertising services. Victoria Administrative Offices 1. For the entities listed for Victoria, this Chapter does not cover the procurement of motor vehicles. 2. Australia shall phase-out the non-compliant parts of its Victorian Industry Participation Policy within three years after the date of entry into force of this Agreement. 3. For the entities listed for Victoria, this Chapter does not apply to procurements by covered entities on behalf of non-covered entities. Western Australia Schedule of the United States This Chapter covers procurement only by those entities listed in this Schedule. Arkansas For the entities listed for Arkansas, this Chapter does not cover procurement by the Office of Fish and Game or construction services. California Colorado Connecticut Delaware* Florida* Georgia For the entities listed for Georgia, this Chapter does not cover the procurement of beef, compost, or mulch. Hawaii For the entities listed for Hawaii, this Chapter does not cover procurement of software developed in the state or construction services. Idaho Kansas For the entities listed for Kansas, this Chapter does not cover the procurement of construction services, automobiles, or aircraft. Kentucky For the entity listed for Kentucky, this Chapter does not cover procurement for construction projects. Louisiana Maine* Maryland* Mississippi For the entities listed for Mississippi, this Chapter does not cover the procurement of services. Nebraska New Hampshire* New York* 1. For the entities listed for New York, this Chapter does not cover public authorities and public benefit corporations with multi-state mandates. 2. For the entities listed for New York, this Chapter does not cover the procurement of transit cars, buses, or related equipment. Oregon Pennsylvania* Rhode Island For the entities listed for Rhode Island, this Chapter does not cover the procurement of boats, automobiles, buses, or related equipment. South Dakota For the entities listed for South Dakota, this Chapter does not cover procurement of beef. Texas Utah Vermont Washington Wyoming* Notes to the Schedule of the United States 1. For the United States regional entities marked by an asterisk (*), indicating pre-existing restrictions, this Chapter does not cover procurement of construction-grade steel (including requirements on subcontracts), motor vehicles, or coal. 2. For the United States regional entities, this Chapter does not apply to preferences or restrictions associated with programs promoting the development of distressed areas or businesses owned by minorities, disabled veterans, or women. 3. Nothing in this Annex shall be construed to prevent any state entity from applying restrictions that promote the general environmental quality in that state, as long as such restrictions are not disguised barriers to international trade. 4. This Chapter does not cover any procurement made by a covered entity on behalf of non-covered entities at a different level of government. 5. For the United States regional entities, this Chapter does not apply to restrictions attached to Federal funds for mass transit and highway projects. 6. For the United States regional entities, this Chapter does not cover the procurement of printing services. SECTION 3: Government Enterprises 1. This Chapter applies to the government enterprises listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:
The monetary thresholds set out in sub-paragraphs (a) and (b) shall be adjusted in accordance with Section 8 of this Annex. List A: Notes to the Schedule of Australia 1. For the entities listed in Australia’s list A, this Chapter covers only those entities listed in this Schedule. 2. For the entities listed in Australia’s list A, this Chapter does not cover the procurement of motor vehicles. 3. This Chapter does not cover procurement of telecommunications services by the Australian War Memorial. Schedule of the United States List A: 1. Tennessee Valley Authority
List B: Notes to the Schedule of the United States 1. The Rural Utilities Service shall:
1. For greater clarity, this Chapter does not apply to any other aspect of procurement by the Rural Utilities Service, including any restrictions the Rural Utilities Service places on financing for telecommunications projects. 2. With respect to procurement by entities listed in this Section, this Chapter does not apply to restrictions attached to Federal funds for airport projects. SECTION 4 : GOODS This Chapter applies to all goods procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex. SECTION 5 : SERVICES This Chapter applies to all services procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex. Schedule of Australia This Chapter does not cover the procurement of plasma fractionation services or government advertising services. Schedule of the United States This Chapter does not cover the procurement of the following services, as elaborated in the Common Classification System and the WTO system of classification – MTN.GNS/W/120. (For complete listing of Common Classification System, see: http://www.sice.oas.org/trade/nafta/chap-105.asp )
Note to the Schedule of the United States 1. This Chapter does not cover the procurement of any service in support of military forces overseas. SECTION 6: CONSTRUCTION SERVICES This Chapter applies to all construction services procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex. Schedule of the United States This Chapter does not cover the procurement of dredging services. Note to Section 6 1. Buy national requirements on articles, supplies, or materials acquired for use in construction services contracts covered by this Chapter shall not apply to goods of either Party. SECTION 7: GENERAL NOTES Unless otherwise specified herein, the following General Notes in each Party’s Schedule apply without exception to this Chapter, including to all sections of this Annex. Schedule of Australia This Chapter does not apply to:
Schedule of the United States 1. This Chapter does not apply to set asides on behalf of small or minority businesses. Setasides include any form of preference, such as the exclusive right to provide a good or service and price preferences. 2. Where a contract is to be awarded by an entity that is not listed in Section 1, 2 or 3, this Chapter shall not be construed as covering any good or service component of that contract. 3. This Chapter does not apply to the procurement of transportation services that form a part of, or are incidental to, a procurement contract. SECTION 8: THRESHOLD ADJUSTMENT FORMULA 1. The thresholds in Sections 1 through 3 shall be adjusted at two-year intervals with each adjustment taking effect in January, beginning on January 1, 2006. 2. With regard to thresholds for goods and services in Section 1 and for goods and services for List A entities referred to in Section 3, the U.S. dollar value for each threshold shall be calculated every two years, based on the U.S. inflation rate measured by the Producer Price Index for Finished Goods published by the U.S. Bureau of Labor Statistics, using the two-year time that ends on October 31 in the year prior to the adjustment taking effect, and using the following formula: T1 = T0 x (1+ i)
3. The thresholds for goods and services in Section 2, for goods and services for List B entities in Section 3, and for construction services in Sections 1 through 3 are conversions into U.S. dollars of the thresholds listed in the U.S. Appendix 1 to the WTO Agreement on Government Procurement, which are set out in Special Drawing Rights (SDRs) and listed below. Adjustments of these thresholds shall be calculated, based on an average of the daily conversion rates of the U.S. dollar in terms of SDRs published by the IMF in its monthly "International Financial Statistics", for the two-year period preceding October 1 or November 1 of the year before the adjusted thresholds are to take effect:
4. The U.S. dollar value of the adjusted thresholds shall be converted into the Australian dollar based on the official conversion rate of the Reserve Bank of Australia, using the average of the daily values of the Australian dollar in terms of the U.S. dollar over the two-year period ending September 30 in the year prior to the adjustments taking effect, and rounded to the nearest thousand Australian dollars; 5. Each Party shall notify the other Party of the adjusted thresholds in their respective currencies; and 6. The Parties shall consult if a major change in a national currency vis-à-vis the other currency were to create a significant problem with regard to the application of the Chapter. ELECTRONIC COMMERCE ARTICLE 16.1 : GENERAL The Parties recognise the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO Agreement to measures affecting electronic commerce. ARTICLE 16.2 : ELECTRONIC SUPPLY OF SERVICES For greater certainty, the Parties affirm that measures affecting the supply of a service delivered or performed electronically are subject to the obligations contained in the relevant provisions of Chapters Ten (Cross-Border Trade in Services), Eleven (Investment), and Thirteen (Financial Services), subject to any exceptions applicable to such obligations and to the non-conforming measures described in Articles 10.6 (Non-Conforming Measures), 11.13 (Non-Conforming Measures), or 13.9 (Non-Conforming Measures). ARTICLE 16.3 : CUSTOMS DUTIES Neither Party may impose customs duties, fees, or other charges16-1 on or in connection with the importation or exportation of digital products, regardless of whether they are fixed on a carrier medium or transmitted electronically. ARTICLE 16.4 : NON-DISCRIMINATORY TREATMENT OF DIGITAL PRODUCTS 1. Neither Party may accord less favourable treatment to some digital products than it accords to other like digital products:
2. Neither Party may accord less favourable treatment to digital products:16-2
3. Paragraphs 1 and 2 do not apply to:
4. For greater clarity, paragraphs 1 and 2 do not prevent a Party from adopting or maintaining measures, including measures in the audio-visual and broadcasting sectors, in accordance with its reservations to Chapters Ten and Eleven. ARTICLE 16.5 : AUTHENTICATION AND DIGITAL CERTIFICATES 1. Neither Party may adopt or maintain legislation for electronic authentication that would
2. Each Party shall work towards the recognition at the central level of government of digital certificates issued by the other Party or under authorisation of that Party. ARTICLE 16.6 : ONLINE CONSUMER PROTECTION The Parties recognise the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce. ARTICLE 16.7 : PAPERLESS TRADE ADMINISTRATION 1. Each Party shall endeavour to make all trade administration documents available to the public in electronic form. 2. Each Party shall endeavour to accept trade administration documents submitted electronically as the legal equivalent of the paper version of such documents. ARTICLE 16.8 : DEFINITIONS For the purposes of this Chapter: 1. authentication means the process or act of establishing the identity of a party to an electronic communication or transaction or ensuring the integrity of an electronic communication; 2. carrier medium means any physical object capable of storing a digital product, by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, including an optical medium, floppy disk, and magnetic tape; 3. digital certificate means an electronic document or file that is issued or otherwise linked to a party to an electronic communication or transaction for the purpose of establishing the party’s identity, authority, or other attribute; 4. digital products means the digitally encoded form of computer programs, text, video, images, sound recordings, and other products,16-3 regardless of whether they are fixed on a carrier medium or transmitted electronically;16-4 5. electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and 6. trade administration documents means forms that a Party issues or controls that must be completed by or for an importer or exporter in connection with the import or export of goods. INTELLECTUAL PROPERTY RIGHTS ARTICLE 17.1 : GENERAL PROVISIONS 1. Each Party shall, at a minimum, give effect to this Chapter. A Party may provide more extensive protection for, and enforcement of, intellectual property rights under its law than this Chapter requires, provided that the additional protection and enforcement is not inconsistent with this Agreement. International Agreements 2. Each Party affirms that it has ratified or acceded to the following agreements, as revised and amended:
3. Further to Article 1.1.2 (General), the Parties affirm their rights and obligations with respect to each other under the TRIPS Agreement. 4. Each Party shall ratify or accede to the WIPO Copyright Treaty (1996) and the WIPO Performances and Phonograms Treaty (1996) by the date of entry into force of this Agreement, subject to the fulfilment of their necessary internal requirements. 5. Each Party shall make its best efforts to comply with the provisions of the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (1999), and the Patent Law Treaty (2000), subject to the enactment of laws necessary to apply those provisions in its territory. National Treatment 6. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals17-1 of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection17-2 and enjoyment of such intellectual property rights and any benefits derived from such rights. With respect to secondary uses of phonograms by means of analogue communications and free over-the-air radio broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded in the territory of the other Party. 7. A Party may derogate from paragraph 6 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
8. Paragraph 6 does not apply to procedures provided in multilateral agreements concluded under the auspices of World Intellectual Property Organization (WIPO) in relation to the acquisition or maintenance of intellectual property rights. Application of Agreement to Existing Subject Matter 9. Except as it provides otherwise, including Article 17.4.5, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement, that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter. 10. Except as otherwise provided in this Chapter, including Article 17.4.5, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in the territory of the Party where the protection is claimed. Application of Agreement to Prior Acts 11. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement. Transparency 12. Further to Article 20.2 (Publication), and with the object of making its protection and enforcement of intellectual property rights as transparent as possible, each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights shall be in writing and shall be published,17-3 or where such publication is not practicable, made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them. ARTICLE 17.2 : TRADEMARKS , INCLUDING GEOGRAPHICAL INDICATIONS 1. Each Party shall provide that marks17-4 shall include marks in respect of goods and services, collective marks, and certification marks. Each Party shall also provide that geographical indications are eligible for protection as marks.17-5 2. Neither Party may require, as a condition of registration, that marks be visually perceptible, nor may a Party deny registration of a mark solely on the ground that the sign of which it is composed is a sound or a scent.17-6 3. Each Party shall ensure that its measures mandating the use of the term customary in common language as the common name for a good or service (“common name”) including, inter alia, requirements concerning the relative size, placement, or style of use of the mark in relation to the common name, do not impair the use or effectiveness of marks used in relation to such goods or services. 4. Each Party shall provide that the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs, including geographical indications, for goods or services that are related to those goods or services in respect of which the owner’s mark is registered, where such use would result in a likelihood of confusion. In case of the use of an identical sign, including a geographical indication, for identical goods or services, a likelihood of confusion shall be presumed. 5. Each Party may provide limited exceptions to the rights conferred by a mark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the mark and of third parties. 6. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known mark,17-7 whether registered or not, provided that use of that mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the mark, and provided that the interests of the owner of the mark are likely to be damaged by such use. 7. Recognising the importance of registration systems for marks that provide rights of presumptive validity, through the conduct of examination as to substance as well as to formalities, and through opposition and cancellation procedures, each Party shall provide a system for the registration of marks, which shall include:
8. Each Party shall provide:
9. Each Party shall provide that initial registration and each renewal of registration of a mark shall be for a term of no less than ten years. 10. Neither Party may require recordal of licences for marks. 11. Each Party shall endeavour to reduce differences in law and practice between the Parties’ respective systems for the protection of marks, including differences that affect the cost to users. In addition, each Party shall endeavour to participate in international trademark harmonisation efforts, including the WIPO fora dealing with reform and development of the international trademark system. 12.
ARTICLE 17.3 : DOMAIN NAMES ON THE INTERNET 1. In order to address trademark cyber-piracy, each Party shall require that the management of its country-code top-level domain (ccTLD) provide an appropriate procedure for the settlement of disputes, based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy. 2. Each Party shall require that the management of its ccTLD provide online public access to a reliable and accurate database of contact information for domain-name registrants. ARTICLE 17.4 : COPYRIGHT 1. Each Party shall provide17-8 that the following have the right to authorise or prohibit17-9 all reproductions, in any manner or form, permanent or temporary (including temporary storage in material form):
2. Each Party shall provide to authors, performers, and producers of phonograms the right to authorise or prohibit the making available to the public of the original and copies17-12 of their works, performances, and phonograms through sale or other transfer of ownership.17-13 3. In order to ensure that no hierarchy is established between rights of authors, on the one hand, and rights of performers and producers of phonograms, on the other hand, each Party shall provide that in cases where authorisation is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorisation of the author does not cease to exist because the authorisation of the performer or producer is also required. Likewise, each Party shall provide that in cases where authorisation is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorisation of the performer or producer does not cease to exist because the authorisation of the author is also required. 4. Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:
5. Each Party shall apply Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement, mutatis mutandis, to the subject matter, rights, and obligations in this Article and Articles 17.5 and 17.6. 6.
7.
8. In order to provide adequate and effective legal remedies to protect rights management information:
9. Each Party shall provide appropriate laws, orders, regulations, government issued guidelines, or administrative or executive decrees providing that its central government agencies not use infringing computer software and only use computer software as authorised in the relevant licence. These measures shall provide for the regulation of the acquisition and management of software for such government use and may take the form of procedures such as those under which an agency prepares and maintains inventories of software present on the agency’s computers and inventories of software licenses. 10. With respect to Articles 17.4, 17.5, and 17.6:
ARTICLE 17.5 : COPYRIGHT WORKS Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorise or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them. ARTICLE 17.6 : PERFORMERS AND PRODUCERS OF PHONOGRAMS 1. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms to the performers and producers of phonograms who are nationals of the other Party and to performances first fixed or phonograms first fixed or first published in the territory of the other Party. A performance or phonogram shall be considered first published in the territory of a Party in which it is published within 30 days of its original publication.17-14 2. Each Party shall provide to performers the right to authorise or prohibit:
3.
4. Neither Party may subject the enjoyment and exercise of the rights of performers and producers of phonograms provided for in this Chapter to any formality. 5. For the purposes of this Article and Article 17.4, the following definitions apply with respect to performers and producers of phonograms:
ARTICLE 17.7 : PROTECTION OF ENCRYPTED PROGRAMME-CARRYING SATELLITE SIGNALS 1. Each Party shall make it a criminal offence:
2. Each Party shall provide for civil remedies, including compensatory damages, for any person injured by any activity described in paragraph 1, including any person that holds an interest in the encrypted program-carrying signal or its content. ARTICLE 17.8 : DESIGNS 1. Each Party shall maintain protection for industrial designs that provides a right of presumptive validity and shall endeavour to simplify and streamline its administrative system for the benefit of users. 2. Each Party shall endeavour to reduce differences in law and practice between the Parties’ industrial design systems. In addition, each Party shall endeavour to participate in international activities concerning industrial designs, including those ongoing within WIPO. ARTICLE 17.9 : PATENTS 1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. The Parties confirm that patents shall be available for any new uses or methods of using a known product. For the purposes of this Article, a Party may treat the terms “inventive step” and “capable of industrial application” as synonymous with the terms “non-obvious” and “useful”, respectively. 2. Each Party may only exclude from patentability:
3. A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. 4. Each Party shall provide that the exclusive right of the patent owner to prevent importation of a patented product, or a product that results from a patented process, without the consent of the patent owner shall not be limited by the sale or distribution of that product outside its territory, at least where the patentee has placed restrictions on importation by contract or other means. 5. Each Party shall provide that a patent may only be revoked on grounds that would have justified a refusal to grant the patent, or on the basis of fraud, misrepresentation, or inequitable conduct. 6. Consistent with paragraph 3, if a Party permits a third person to use the subject matter of a subsisting patent to generate information necessary to support an application for marketing approval of a pharmaceutical product, that Party shall provide that any product produced under such authority shall not be made, used, or sold in the territory of that Party other than for purposes related to generating information to meet requirements for marketing approval for the product, and if the Party permits exportation, the product shall only be exported outside the territory of that Party for purposes of meeting marketing approval requirements of that Party. 7. A Party shall not permit the use17-15 of the subject matter of a patent without the authorisation of the right holder except in the following circumstances:
8.
9. Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure, (a) was made or authorised by, or derived from, the patent applicant and (b) occurs within 12 months prior to the date of filing of the application in the territory of the Party. 10. Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations in connection with their applications. 11. Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date. 12. Each Party shall provide that a claimed invention is sufficiently supported by its disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention, as of the filing date. 13. Each Party shall provide that a claimed invention is useful if it has a specific, substantial, and credible utility. 14. Each Party shall endeavour to reduce differences in law and practice between their respective systems, including in respect of differences in determining the rights to an invention, the prior art effect of applications for patents, and the division of an application containing multiple inventions. In addition, each Party shall endeavour to participate in international patent harmonisation efforts, including the WIPO fora addressing reform and development of the international patent system. 15. Each Party shall endeavour to establish a cooperative framework between their respective patent offices as a basis for progress towards the mutual exploitation of search and examination work. ARTICLE 17.10 : MEASURES RELATED TO CERTAIN REGULATED PRODUCTS 1.
2. With respect to pharmaceutical products, if a Party requires the submission of: (a) new clinical information (other than information related to bioequivalency) or (b) evidence of prior approval of the product in another territory that requires such new information, which is essential to the approval of a pharmaceutical product, the Party shall not permit third persons not having the consent of the person providing the information to market the same or a similar pharmaceutical product on the basis of the marketing approval granted to a person submitting the information for a period of at least three years from the date of the marketing approval by the Party or the other territory, whichever is later.17-19 3. When a product is subject to a system of marketing approval in accordance with paragraph 1 or 2, as applicable, and is also subject to a patent in the territory of that Party, the Party shall not alter the term of protection that it provides pursuant to paragraph 1 or 2 in the event that the patent protection terminates on a date earlier than the end of the term of protection specified in paragraph 1 or 2, as applicable. 4. Where a Party permits, as a condition of approving the marketing of a pharmaceutical product, persons, other than the person originally submitting the safety or efficacy information, to rely on evidence or information concerning the safety or efficacy of a product that was previously approved, such as evidence of prior marketing approval by the Party or in another territory:
ARTICLE 17.11 : ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS General obligations 1. For greater clarity, the obligations specified in this Article are limited to the enforcement of intellectual property rights, or, if mentioned, a particular intellectual property right. 2. Each Party shall provide that final judicial decisions or administrative rulings for the enforcement of intellectual property rights that under the Party’s law are of general applicability shall be in writing and shall state any relevant findings of fact and the reasoning, or the legal basis on which the decisions or rulings are based. Each Party shall provide that such decisions or rulings shall be published17-20 or, where such publication is not practicable, otherwise made available to the public, in a national language in such a manner as to enable governments and right holders to become acquainted with them. 3. Each Party shall inform the public of its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal system, including any statistical information that the Party may collect for such purpose. 4. In civil, criminal, and if applicable, administrative procedures, involving copyright, each Party shall provide for a presumption that, in the absence of evidence to the contrary, the person whose name is indicated in the usual manner is the right holder in the work, performance, or phonogram as designated. Each Party shall also provide for a presumption, in the absence of evidence to the contrary, of all the factual elements necessary to establish under its law that copyright subsists in such subject matter. Civil and Administrative Procedures and Remedies 5. Each Party shall make available to right holders17-21 civil judicial procedures concerning the enforcement of any intellectual property right. 6. Each Party shall provide that:
7.
8. Each Party shall provide that its judicial authorities shall have the authority to order, at the conclusion of civil judicial proceedings at least for copyright infringement and trademark counterfeiting, that the prevailing party be awarded payment of court costs or fees and reasonable attorney’s fees by the losing party.17-22 Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party be awarded payment of reasonable attorney’s fees by the losing party. 9. In civil judicial proceedings concerning copyright infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure of suspected infringing goods, any related materials and implements, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement. 10. Each Party shall provide that:
11. Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide any information that the infringer possesses regarding any person involved in any aspect of the infringement and regarding the means of production or distribution channel of the infringing material, and to provide this information to the right holder’s representative in the proceedings.17-24 12. Each Party shall provide that in judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to:
13.
14. Each Party shall provide that its judicial authorities shall have the authority to enjoin a party to a civil judicial proceeding from the exportation of goods that are alleged to infringe an intellectual property right. 15. If a Party’s judicial or other authorities appoint technical or other experts in civil judicial proceedings concerning the enforcement of intellectual property rights, and require that the parties to litigation or other civil or criminal proceedings bear the costs of such experts, the Party should seek to ensure that these costs are reasonable and related appropriately to, inter alia, the quantity and nature of work to be performed and do not unreasonably deter recourse to such litigation or proceeding. Provisional measures 16. Each Party’s authorities shall act on requests for relief inaudita altera parte expeditiously in accordance with the Party’s judicial rules. 17. With respect to provisional measures, each Party shall provide that its judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a reasonable security or equivalent assurance set at a level sufficient to protect the respondent and to prevent abuse, and so as not to unreasonably deter recourse to such procedures. 18. In proceedings concerning the grant of provisional measures in relation to enforcement of a patent, each Party shall provide for a rebuttable presumption that the patent is valid. Special requirements related to border measures 19. Each Party shall provide that any right holder initiating procedures for that Party’s customs authorities to suspend the release of suspected counterfeit17-26 or confusingly similar trademark goods, or pirated copyright goods,17-27 into free circulation is required to provide adequate evidence to satisfy the competent authorities, administrative or judicial that, under the laws of the territory of importation, there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspected goods reasonably recognisable by the Party’s customs authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to these procedures. Each Party shall provide that the application to suspend the release of goods shall remain in force for a period of not less than one year from the date of application or the period that the good is protected by copyright or the relevant trademark is registered, whichever is shorter. 20. Each Party shall provide that its competent authorities shall have the authority to require a right holder initiating procedures to suspend the release of goods suspected of being counterfeit trademark or pirated copyright goods to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. Each Party may provide that such security may be in the form of a documentary guarantee conditioned to hold the importer or owner of the imported merchandise harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good. 21. Where its competent authorities have made a determination that goods are counterfeit or pirated, a Party shall provide that its competent authorities have the authority to inform the right holder of the names and addresses of the consignor, the importer, and the consignee, and of the quantity of the goods in question. 22. Each Party shall provide that its customs authorities may initiate border measures ex officio with respect to imported merchandise suspected of infringing being counterfeit trademark or pirated copyright goods, without the need for a specific formal complaint. 23. Each Party shall provide that goods that have been suspended from release by its customs authorities, and that have been forfeited as pirated or counterfeit, shall be destroyed, except in exceptional cases. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of the goods into the channels of commerce. In no event shall the competent authorities be authorised to permit the exportation of counterfeit or pirated goods that have been seized, nor shall they be authorised to permit such goods to be subject to movement under customs control, except in exceptional circumstances. 24. Each Party shall provide that where an application fee or merchandise storage fee is assessed in connection with border measures to enforce a trademark or copyright, the fee shall not be set at an amount that unreasonably deters recourse to these measures. 25. Each shall provide the other, on mutually agreed terms, with technical advice on the enforcement of border measures concerning intellectual property rights, and the Parties shall promote bilateral and regional cooperation on such matters. Criminal procedures and remedies 26.
27. In cases of wilful trademark counterfeiting or copyright piracy on a commercial scale, each Party shall provide:
28. Each Party shall provide for criminal procedures and penalties for the knowing transport, transfer, or other disposition of, in the course of trade, or the making or obtaining control of, with intent to so transport, transfer, or otherwise dispose of, in the course of trade, to another for anything of value:
Limitations on liability for service providers 29. Consistent with Article 41 of the TRIPS Agreement, for the purposes of providing enforcement procedures that permit effective action against any act of copyright infringement covered under this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies, each Party shall provide, consistent with the framework specified in this Article:
ARTICLE 17.12 : TRANSITIONAL PROVISIONS Recognizing that Australian law currently restricts making and distributing devices or providing services to circumvent effective technological measures, Australia shall fully implement the obligations set forth in Article 17.4.7 within two years of the date of entry into force of this Agreement. In the interim, Australia may not adopt any new measure that is less consistent with Article 17.4.7 or apply any new or existing measure so as to reduce the level of protection provided on the date of entry into force of this Agreement. LABOUR ARTICLE 18.1: STATEMENT OF SHARED COMMITMENT 1. The Parties reaffirm their obligations as members of the International Labour Organization (ILO) and their commitments under the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998) (ILO Declaration). Each Party shall strive to ensure that such labour principles and the internationally recognised labour principles and rights set forth in Article 18.7 are recognised and protected by its law. 2. Recognizing the right of each Party to establish its own labour standards, and to adopt or modify accordingly its labour laws, each Party shall strive to ensure that its laws provide for labour standards consistent with the internationally recognised labour principles and rights set forth in Article 18.7 and shall strive to improve those standards consistent with the goal of maintaining high quality and high productivity workplaces. ARTICLE 18.2: APPLICATION AND ENFORCEMENT OF LABOUR LAWS 1.
2. The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in their respective labour laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces adherence to the internationally recognised labour principles and rights referred to in Article 18.7 as an encouragement for trade with the other Party, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory. ARTICLE 18.3: PROCEDURAL GUARANTEES AND PUBLIC AWARENESS 1. Each Party shall ensure that persons with a legally recognised interest under its law in a particular matter have appropriate access to administrative, quasi-judicial, judicial, or labour tribunals for the enforcement of the Party’s labour laws. 2. Each Party shall ensure that the proceedings of its administrative, quasi-judicial, judicial, or labour tribunals for the enforcement of its labour laws are fair, equitable, and transparent. 3. Each Party shall provide that the parties to such proceedings may seek remedies to ensure the enforcement of their rights under its labour laws. 4. Each Party shall promote public awareness of its labour laws by ensuring that information is available to the public regarding its labour laws and enforcement and compliance procedures. A Party may use a variety of means available for this purpose, such as publishing information and notices in official bulletins and the mass media, publishing and distributing information manuals, undertaking compliance assistance programs, conducting meetings, and making information available through the Internet. 5. For greater certainty, nothing in this Chapter shall be construed as calling for the examination under this Agreement of whether a Party’s court has appropriately applied that Party’s labour laws. ARTICLE 18.4: INSTITUTIONAL ARRANGEMENTS 1. In carrying out its functions, the Joint Committee established under Chapter 21 (Institutional Arrangements and Dispute Settlement) shall consider matters related to the operation of this Chapter and the pursuit of the Chapter’s objectives. The Joint Committee may establish a Subcommittee on Labour Affairs, comprised of central government officials of each Party who are primarily responsible for labour or workplace relations, and officials of other appropriate agencies, to meet at such times as they deem appropriate to discuss the operation of this Chapter. Each meeting of the Subcommittee normally shall include a public session. 2. Each Party shall designate an office within its central government agency that deals with labour or workplace relations, which shall serve as a contact point with the other Party, and with the public, for the purposes of this Chapter. Each Party’s contact point shall:
3. Each Party may consult with representatives of its labour and business organizations and other persons, including through its advisory committees, for advice on the operation of this Chapter by whatever means that Party considers appropriate. 4. Each formal decision of the Parties concerning the operation of this Chapter shall be made public, unless the Joint Committee decides otherwise. ARTICLE 18.5: LABOUR COOPERATION 1. Recognizing that cooperation provides opportunities to promote respect for workers’ rights and the rights of children consistent with core labour standards of the ILO, the Parties shall cooperate on labour matters of mutual interest and explore ways to further advance labour standards on a bilateral, regional, and multilateral basis. To that end, the Parties hereby establish a consultative mechanism for such cooperation. 2. Cooperative activities may include work on labour law and practice in the context of the ILO Declaration, and such other matters as the Parties agree. In identifying areas for cooperation, the Parties shall consider the views of their respective worker and employer representatives and other persons, as appropriate. 3. Cooperative activities may take the form of exchanges of information, joint research activities, visits, or conferences, and such other forms of technical exchange as the Parties may agree. ARTICLE 18.6: LABOUR CONSULTATIONS 1. A Party may request consultations with the other Party regarding any matter arising under this Chapter. Unless the Parties agree otherwise, consultations shall commence within 30 days after a Party delivers a request for consultations to the other Party’s contact point designated pursuant to Article 18.4.2. 2. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter and may seek advice or assistance from any person or body they deem appropriate. 3. If the consultations fail to resolve the matter, either Party may request that the Subcommittee on Labour Affairs be convened. The Subcommittee shall convene within 30 days after a Party delivers a request to the other Party’s contact point, unless the Parties otherwise agree. If the Joint Committee has not established the Subcommittee as of the date a Party delivers a request, they shall do so during the 30-day period described in this paragraph. The Subcommittee shall endeavour to resolve the matter expeditiously, including, where appropriate, by consulting governmental or outside experts and having recourse to such procedures as good offices, conciliation, or mediation. 4. If a Party considers that the other Party has failed to carry out its obligations under Article 18.2.1(a), the Party may request consultations under paragraph 1 or pursuant to Article 21.5 (Consultations).
5. Articles 21.2 (Scope of Application) and 21.5 shall not apply to a matter arising under any provision of this Chapter other than Article 18.2.1(a). ARTICLE 18.7: DEFINITIONS For the purposes of this Chapter, 1. internationally recognised labour principles and rights means:
2. labour laws means:
ENVIRONMENT ARTICLE 19.1 : LEVELS OF PROTECTION Recognizing the right of each Party to establish its own levels of environmental protection and environmental development priorities, and to adopt or modify accordingly its environmental laws and policies, each Party shall ensure that its laws provide for and encourage high levels of environmental protection and shall strive to continue to improve their respective levels of environmental protection, including through such environmental laws and policies. ARTICLE 19.2 : APPLICATION AND ENFORCEMENT OF ENVIRONMENTAL LAWS 1.
2. The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in their respective environmental laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections afforded in those laws as an encouragement for trade with the other Party, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory. ARTICLE 19.3 : PROCEDURAL GUARANTEES AND PUBLIC AWARENESS 1. Each Party shall ensure that judicial, quasi-judicial, or administrative proceedings for the enforcement of its environmental laws are fair, equitable, transparent, and provide for appropriate administrative and procedural protections in accordance with its law. 2. Each Party shall ensure that persons with a legally recognised interest under its law in a particular matter have appropriate access to proceedings referred to in paragraph 1. 3. Each Party shall provide remedies for violations of its environmental laws to ensure the effective enforcement of those laws. The Parties recognise that a variety of activities can contribute to enforcement of environmental laws. 4. Each Party shall promote public awareness of its environmental laws by ensuring that information is available to the public regarding its environmental laws and enforcement and compliance procedures, including procedures for interested persons to request the Party’s competent authorities to investigate alleged violations of its environmental laws. A Party may use a variety of means available for this purpose, such as publishing information and notices in official bulletins and the mass media, publishing and distributing information manuals, undertaking compliance assistance programs, conducting meetings, and making information available through the Internet. 5. For greater certainty, nothing in this Chapter shall be construed as calling for the examination under this Agreement of whether a Party’s court has appropriately applied that Party’s environmental laws. ARTICLE 19.4 : VOLUNTARY MECHANISMS TO ENHANCE ENVIRONMENTAL PERFORMANCE The Parties recognise that flexible, voluntary, and market-based mechanisms can contribute to the achievement and maintenance of high levels of environmental protection. As appropriate and in accordance with its law, each Party shall encourage the development of such mechanisms, which may include partnerships, sharing information, and market-based mechanisms that encourage the protection of natural resources and the environment. ARTICLE 19.5 : INSTITUTIONAL ARRANGEMENTS AND PUBLIC PARTICIPATION 1. In carrying out its functions, the Joint Committee established under Chapter 21 (Institutional Arrangements and Dispute Settlement) shall consider matters related to the operation of this Chapter and the pursuit of the environmental objectives of this Agreement. The Joint Committee may establish a Subcommittee on Environmental Affairs comprising government officials of each Party, to meet at such times as they deem appropriate to discuss the operation of this Chapter. Each meeting of the Subcommittee normally shall include a public session. 2. Each formal decision of the Parties concerning the operation of this Chapter shall be made public, unless the Joint Committee decides otherwise. 3. Each Party shall provide an opportunity for its public, which may include national advisory committees, to provide views, recommendations, or advice on matters related to the implementation of this Chapter, and shall make available such views, recommendations, or advice to the other Party and, as appropriate, to the public in accordance with its law. ARTICLE 19.6 : ENVIRONMENTAL COOPERATION 1. The Parties recognise the importance of strengthening capacity to protect the environment and to promote sustainable development in concert with strengthening bilateral trade and investment relations. Toward this end, the Parties acknowledge the importance of ongoing joint bilateral, regional, and multilateral environmental activities. The Parties agree to negotiate a United States–Australia Joint Statement on Environmental Cooperation under which the Parties will explore ways to further support these ongoing activities. 2. Each Party shall take into account, as appropriate, public comments and recommendations it receives regarding these ongoing cooperative environmental activities undertaken by the Parties. 3. The Parties shall, as appropriate, share information with each other and the public regarding their experiences in assessing and taking into account the positive and negative environmental effects of trade agreements and policies. ARTICLE 19.7 : ENVIRONMENTAL CONSULTATIONS 1. A Party may request consultations with the other Party regarding any matter arising under this Chapter. Unless the Parties agree otherwise, consultations shall commence within 30 days after a Party delivers a request for consultations to the contact point designated by the other Party for this purpose. 2. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter and may seek advice or assistance from any person or body they deem appropriate. 3. If the consultations fail to resolve the matter, either Party may request that the Subcommittee on Environmental Affairs be convened. The Subcommittee shall convene within 30 days after a Party delivers a written request to the other Party’s contact point, unless the Parties agree otherwise. If the Joint Committee has not established the Subcommittee as of the date a Party delivers a request, it shall do so during the 30-day period described in this paragraph. The Subcommittee shall endeavour to resolve the matter expeditiously, including, where appropriate, by consulting governmental or non-governmental experts and by having recourse to such procedures as good offices, conciliation, or mediation. 4. If a Party considers that the other Party has failed to carry out its obligations under Article 19.2.1(a), the Party may request consultations under paragraph 1 or pursuant to Article 21.5 (Consultations).
5. Articles 21.2 (Scope of Application) and 21.5 (Consultations) shall not apply to a matter arising under any provision of this Chapter other than Article 19.2.1(a). 19-4 ARTICLE 19.8 : RELATIONSHIP TO ENVIRONMENTAL AGREEMENTS The Parties recognise that multilateral environmental agreements to which they are both party play an important role, globally and domestically, in protecting the environment and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Accordingly, the Parties shall continue to seek means to enhance the mutual supportiveness of multilateral environmental agreements to which they are both party and international trade agreements to which they are both party. The Parties shall consult regularly with respect to negotiations in the WTO regarding multilateral environmental agreements. ARTICLE 19.9 : DEFINITIONS For the purposes of this Chapter: 1. environmental law means any statute or regulation of a Party, or provision thereof, the primary purpose19-1 of which is the protection of the environment, or the prevention of a danger to human, animal, or plant life or health, through:
in areas with respect to which a Party exercises sovereignty, sovereign rights, or jurisdiction, but does not include any statute or regulation, or provision thereof, directly related to worker safety or health. 2. For the United States, statute or regulation means an act of
Congress or regulation
promulgated pursuant to an act of Congress that is enforceable by action of
the federal government. TRANSPARENCY ARTICLE 20.1 : CONTACT POINTS 1. Each Party shall designate a contact point or points to facilitate communications between the Parties on any matter covered by this Agreement. 2. On the request of the other Party, a Party’s contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communications with the requesting Party. ARTICLE 20.2 : PUBLICATION 1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them. 2. To the extent possible, each Party shall:
ARTICLE 20.3 : NOTIFICATION AND PROVISION OF INFORMATION 1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party’s interests under this Agreement. 2. On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure that the requesting Party considers might materially affect the operation of this Agreement or otherwise substantially affect its interests under this Agreement, regardless of whether the requesting Party has been previously notified of that measure. 3. Any notification, request, or information under this Article shall be provided to the other Party through the relevant contact points. 4. Any notification or information provided under this Article shall be without prejudice as to whether the measure in question is consistent with this Agreement. ARTICLE 20.4 : ADMINISTRATIVE AGENCY PROCESSES20-1 With a view to administering its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement in a consistent, impartial, and reasonable manner, each Party shall ensure that its administrative agencies, in applying such measures to particular persons, goods, or services of the other Party in specific cases through adjudication, rulemaking, licensing, determination, and approval processes:
ARTICLE 20.5 : REVIEW AND APPEAL 1. Each Party shall maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purpose of the prompt review20-2 and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter. 2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
3. Each Party shall ensure, subject to appeal or further review as provided in its law, that such decision shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue. 4. ARTICLE 20.6 : DEFINITIONS For the purposes of this Chapter: administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct, but does not include:
INSTITUTIONAL ARRANGEMENTS AND DISPUTE SETTLEMENT SECTION A : INSTITUTIONAL ARRANGEMENTS AND ADMINISTRATION ARTICLE 21.1 : JOINT COMMITTEE 1. The Parties hereby establish a Joint Committee to supervise the implementation of this Agreement and to review the trade relationship between the Parties.
2. The Joint Committee shall:
3. Unless the Parties agree otherwise, the Joint Committee shall convene:
4. The Joint Committee shall adopt its own rules of procedure. 5. Each Party shall treat any confidential information exchanged in relation to a meeting of the Joint Committee or any body created under Article 21.1.1(b) on the same basis as the Party providing the information. 6. Recognizing the importance of transparency and openness, the Parties affirm their respective practices of considering the views of members of the public in order to draw on a broad range of perspectives in the implementation of this Agreement. 7. At its first meeting, the Joint Committee shall consider each Party’s review of the environmental effects of this Agreement and shall provide the public an opportunity to provide views on those effects. SECTION B: DISPUTE SETTLEMENT PROCEEDINGS ARTICLE 21.2 : SCOPE OF APPLICATION Except as otherwise provided in this Agreement or as the Parties otherwise agree, the dispute settlement provisions of this Section shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement or wherever a Party considers that:
ARTICLE 21.3 : ADMINISTRATION OF DISPUTE SETTLEMENT PROCEEDINGS 1. Each Party shall:
2. The Joint Committee shall establish the amounts of remuneration and expenses to be paid to panellists. 3. The remuneration of panellists, their travel and lodging expenses, and all general expenses relating to proceedings of a panel established under Article 21.7 shall be borne equally by the Parties. 4. Each panellist shall keep a record and render a final account of the panellist’s time and expenses, and the panel shall keep a record and render a final account of all general expenses. ARTICLE 21.4 : CHOICE OF FORUM 1. Where a dispute regarding any matter arises under this Agreement and under another trade agreement to which both Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute. 2. Once the complaining Party has requested a panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the others. ARTICLE 21.5 : CONSULTATIONS 1. Without prejudice to the provisions of Articles 18.6 (Labour Consultations) and 19.8 (Environment Consultations), either Party may request consultations with the other Party with respect to any matter it considers might affect the operation of this Agreement by delivering written notification to the other Party’s office designated under Article 21.3. If a Party requests consultations with respect to a matter, the other Party shall reply promptly to the request for consultations and enter into consultations in good faith. 2. In consultations under this Article, a Party may request the other Party to make available personnel of its government agencies or other regulatory bodies who have expertise in the matter subject to consultations. 3. In the consultations, each Party shall:
4. Promptly after requesting or receiving a request for consultations pursuant to this Article, each Party shall solicit and consider the views of members of the public on the matter in order to draw on a broad range of perspectives. ARTICLE 21.6 : REFERRAL OF MATTERS TO THE JOINT COMMITTEE If the consultations fail to resolve the matter within 60 days of the delivery of a Party’s request for consultations under Article 21.5, or 20 days where the matter concerns perishable goods, either Party may refer the matter to the Joint Committee by delivering written notification to the other Party’s office designated under Article 21.3. The Joint Committee shall endeavour to resolve the matter. ARTICLE 21.7 : ESTABLISHMENT OF PANEL 1. If the Joint Committee has not resolved a matter within 60 days after delivery of the notification described in Article 21.6, within 30 days where the matter concerns perishable goods, or within such other period as the Parties may agree, the complaining Party may refer the matter to a dispute settlement panel by delivering written notification to the other Party’s office designated under Article 21.3. 2. A Party may not refer a proposed measure to a dispute settlement panel. 3. Unless the Parties agree otherwise:
4. By the date of entry into force of this Agreement, the Parties shall establish a contingent list of ten individuals who are willing and able to serve as panellists. Individuals on the contingent list shall be appointed by agreement of the Parties for a minimum term of three years, and shall remain on the list until the Parties constitute a new contingent list. 5. The panellists chosen pursuant to paragraph 3 and the individuals on the contingent list established pursuant to paragraph 4 shall:
In addition, in any dispute arising under Chapters Eighteen (Labour) or Nineteen (Environment), panellists other than those chosen by lot from the contingent list shall have expertise or experience relevant to the subject matter under dispute. ARTICLE 21.8 : RULES OF PROCEDURE 1. The Parties shall establish by the date of entry into force of this Agreement model rules of procedure, which shall ensure:
2. Unless the Parties otherwise agree, the panel shall follow the model rules of procedure and may, after consulting the Parties, adopt additional rules of procedure not inconsistent with the model rules. 3. On request of a Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, provided that the Parties so agree and subject to such terms and conditions as the Parties may agree. ARTICLE 21.9 : PANEL REPORT 1. Unless the Parties agree otherwise, the panel shall, within 180 days after the chair is appointed, present to the Parties an initial report containing findings of fact, and its determination regarding:
2. The panel shall consider this Agreement in accordance with applicable rules of interpretation under international law as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (1969). It shall base its report on the relevant provisions of the Agreement and the submissions and arguments of the Parties. The panel may, at the request of the Parties, make recommendations for the resolution of the dispute. 3. After considering any written comments by the Parties on the initial report, the panel may modify its report and make any further examination it considers appropriate. 4. The panel shall present a final report to the Parties within 45 days of presentation of the initial report, unless the Parties otherwise agree. The Parties shall release the final report to the public within 15 days thereafter, subject to the protection of confidential information. ARTICLE 21.10 : IMPLEMENTATION OF THE FINAL REPORT 1. On receipt of the final report of a panel, the Parties shall agree on the resolution of the dispute, which normally shall conform with the determinations and recommendations, if any, of the panel. 2. If, in its final report, the panel determines that a Party has not conformed with its obligations under this Agreement or that a Party’s measure is causing nullification or impairment in the sense of Article 21.2(c), the resolution, whenever possible, shall be to eliminate the non-conformity or the nullification or impairment. ARTICLE 21.11 : NON-IMPLEMENTATION 1. If a panel has made a determination of the type described in Article 21.10.2, and the Parties are unable to reach agreement on a resolution pursuant to Article 21.10.1 within 45 days of receiving the final report, or such other period as the Parties agree, the Party complained against shall enter into negotiations with the other Party with a view to developing mutually acceptable compensation. 2. If the Parties:
the complaining Party may at any time thereafter provide written notice to the office designated by the other Party pursuant to Article 21.3 that it intends to suspend the application to the other Party of benefits of equivalent effect. The notice shall specify the level of benefits that the Party proposes to suspend. Subject to paragraph 5, the complaining Party may begin suspending benefits 30 days after the later of the date on which it provides notice to the other Party’s designated office under this paragraph or the panel issues its determination under paragraph 3, as the case may be. 3. If the Party complained against considers that:
it may, within 30 days after the complaining Party provides notice under paragraph 2, request that the panel be reconvened to consider the matter. The Party complained against shall deliver its request in writing to the office designated by the other Party pursuant to Article 21.3. The panel shall reconvene as soon as possible after delivery of the request to the designated office and shall present its determination to the Parties within 90 days after it reconvenes to review a request under either subparagraph (a) or (b), or within 120 days for a request under both subparagraphs (a) and (b). If the panel determines that the level of benefits proposed to be suspended is manifestly excessive, it shall determine the level of benefits it considers to be of equivalent effect. 4. The complaining Party may suspend benefits up to the level the panel has determined under paragraph 3 or, if the panel has not determined the level, the level the Party has proposed to suspend under paragraph 2, unless the panel has determined that the Party complained against has eliminated the non-conformity, or the nullification or impairment. 5. The complaining Party may not suspend benefits if, within 30 days after it provides written notice of intent to suspend benefits or, if the panel is reconvened under paragraph 3, within 20 days after the panel provides its determination, the Party complained against provides written notice to the other Party’s office designated pursuant to Article 21.3 that it will pay an annual monetary assessment. The Parties shall consult, beginning no later than ten days after the Party complained against provides notice, with a view to reaching agreement on the amount of the assessment. If the Parties are unable to reach an agreement within 30 days after consultations begin, the amount of the assessment shall be set at a level, in U.S. dollars, equal to 50 percent of the level of the benefits the panel has determined under paragraph 3 to be of equivalent effect or, if the panel has not determined the level, 50 percent of the level that the complaining Party has proposed to suspend under paragraph 2. 6. Unless the Joint Committee decides otherwise, a monetary assessment shall be paid to the complaining Party in U.S. currency, or in an equivalent amount of Australian currency, in equal, quarterly instalments beginning 60 days after the Party complained against gives notice that it intends to pay an assessment. Where the circumstances warrant, the Joint Committee may decide that an assessment shall be paid into a fund established by the Joint Committee and expended at the direction of the Joint Committee for appropriate initiatives to facilitate trade between the Parties, including by further reducing unreasonable trade barriers or by assisting a Party in carrying out its obligations under the Agreement. 7. If the Party complained against fails to pay a monetary assessment, the complaining Party may suspend the application to the Party complained against of benefits in accordance with paragraph 4. 8. This Article shall not apply with respect to a matter described in Article 21.12.1. ARTICLE 21.12 : NON-IMPLEMENTATION IN CERTAIN DISPUTES 1. If, in its final report, a panel determines that a Party has not conformed with its obligations under Article 18.2.1(a) or Article 19.2.1(a), and the Parties:
the complaining Party may at any time thereafter request that the panel be reconvened to impose an annual monetary assessment on the other Party. The complaining Party shall deliver its request in writing to the office designated by the other Party pursuant to Article 21.3. The panel shall reconvene as soon as possible after delivery of the request to the designated office. 2. The panel shall determine the amount of the monetary assessment in U.S. dollars within 90 days after it reconvenes under paragraph 1. In determining the amount of the assessment, the panel shall take into account:
The amount of the assessment determined by the Panel shall not exceed 15 million U.S. dollars annually, adjusted for inflation as specified in Annex 21-A. 3. On the date on which the panel determines the amount of the monetary assessment under paragraph 2, or at any other time thereafter, the complaining Party may provide notice in writing to the office designated by the Party complained against pursuant to Article 21.3 demanding payment of the monetary assessment. The monetary assessment shall be payable in U.S. currency, or in an equivalent amount of Australian currency, in equal, quarterly instalments beginning 60 days after the complaining Party provides such notice. Each of the first four quarterly instalments shall be equal to one quarter of the monetary assessment determined by the panel under Article 21.12.2. The fifth quarterly instalment and subsequent quarterly instalments shall be adjusted for inflation as specified in Annex 21-A. 4. Assessments shall be paid into a fund established by the Joint Committee and shall be expended at the direction of the Joint Committee for appropriate labour or environmental initiatives, including efforts to improve or enhance labour or environmental law enforcement, as the case may be, in the territory of the Party complained against, consistent with its law. In deciding how to expend monies paid into the fund, the Joint Committee shall consider the views of interested persons in each Party’s territory. 5. If the Party complained against fails to pay a monetary assessment, and if the Party has created and funded an escrow account to ensure payment of any assessments against it, the other Party shall, before having recourse to any other measure, seek to obtain the funds from the account. 6. If the complaining Party cannot obtain the funds from the other Party’s escrow account within 30 days of the date on which payment is due, or if the other Party has not created an escrow account, the complaining Party may take other appropriate steps to collect the assessment or otherwise secure compliance. These steps may include suspending tariff benefits under the Agreement as necessary to collect the assessment, while bearing in mind the Agreement’s objective of eliminating barriers to bilateral trade and while seeking to avoid unduly affecting parties or interests not party to the dispute. ARTICLE 21.13 : COMPLIANCE REVIEW 1. Without prejudice to the procedures set out in Article 21.11.3, if the Party complained against considers that it has eliminated the non-conformity or the nullification or impairment that the panel has found, it may refer the matter to the panel by providing written notice to the office designated by the other Party pursuant to Article 21.3. The panel shall issue its report on the matter within 90 days after the Party complained against provides notice. 2. If the panel decides that the Party complained against has eliminated the non-conformity or the nullification or impairment, the complaining Party shall promptly reinstate any benefits it has suspended under Article 21.11 or 21.12, and the Party complained against shall no longer be required to pay any monetary assessment it has agreed to pay under Article 21.11.5 or that has been imposed on it under Article 21.12. ARTICLE 21.14 : FIVE-YEAR REVIEW The Joint Committee shall review the operation and effectiveness of Articles 21.11 and 21.12 not later than five years after the Agreement enters into force, or within six months after benefits have been suspended or monetary assessments have been imposed in five proceedings initiated under this Chapter, whichever occurs first. ARTICLE 21.15 : PRIVATE RIGHTS Neither Party may provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement. INFLATION ADJUSTMENT FORMULA FOR MONETARY ASSESSMENTS 1. Beginning on the date of entry into force of this Agreement through December 31, 2005, the annual monetary assessment determined by a panel under Article 21.12.2 shall not exceed 15 million U.S. dollars. 2. Beginning January 1, 2006, the annual monetary assessment determined by a panel under Article 21.12.2 shall not exceed the amount of “A” calculated according to the following formula:
3. The fifth quarterly instalment and subsequent quarterly installments referred to in Article 21.12.3 shall be the amount “C” calculated according to the following formula:
GENERAL PROVISIONS AND EXCEPTIONS ARTICLE 22.1 : GENERAL EXCEPTIONS 1. For the purposes of Chapters Two through Eight (National Treatment and Market Access for Goods, Agriculture, Textiles, Rules of Origin, Customs Administration, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade), GATT 1994 Article XX and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in GATT 1994 Article XX(b) include environmental measures necessary to protect human, animal, or plant life or health, and that GATT 1994 Article XX(g) applies to measures relating to the conservation of living and non-living exhaustible natural resources. 2. For the purposes of Chapters Ten, Twelve, and Sixteen (Cross Border Trade in Services, Telecommunications, and Electronic Commerce),GATS Article XIV (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in GATS Article XIV(b) include environmental measures necessary to protect human, animal, or plant life or health. ARTICLE 22.2 : ESSENTIAL SECURITY Nothing in this Agreement shall be construed:
ARTICLE 22.3 : TAXATION 1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures. 2.
3. Notwithstanding paragraph 2:
4. Subject to paragraph 2:
except that nothing in those Articles shall apply:
5. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties under paragraph 3, paragraphs 2, 3, and 4 of Article 11.9 (Performance Requirements) shall apply to taxation measures. 6.
7. For the purposes of this Article, taxes and taxation measures do not include any import or customs duties. ARTICLE 22.4 : DISCLOSURE OF INFORMATION 1. Nothing in this Agreement shall be construed as requiring a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest22-2 or which would prejudice the legitimate commercial interests of particular enterprises, public or private. 2. When a Party provides written information pursuant to a request or a requirement under this Agreement and informs the other Party that it considers the information to be of the type described in paragraph 1, the Party receiving the information shall not disclose or use the information for a purpose other than that for which it was requested or required, except where the disclosure or use is required or authorised pursuant to the receiving Party’s law and regulations or with the prior consent of the Party providing the information. ARTICLE 22.5 : ANTI-CORRUPTION The Parties shall cooperate in seeking to eliminate bribery and corruption and to promote transparency in international trade. They are committed to seeking avenues in relevant international fora to address bribery, corruption, and transparency and to build on anti-corruption efforts in these fora. FINAL PROVISIONS ARTICLE 23.1 : ACCESSION 1. Any country or group of countries may accede to this Agreement subject to such terms and conditions as may be agreed between such country or countries and the Parties and following approval in accordance with the applicable legal procedures of each country. 2. This Agreement shall not apply as between any Party and any acceding country or group of countries if, at the time of the accession, either Party does not consent to such application. ARTICLE 23.2 : ANNEXES The Annexes to this Agreement constitute an integral part of this Agreement. ARTICLE 23.3 : AMENDMENTS 1. The Parties may agree, in writing, to amend this Agreement. An amendment shall enter into force after the Parties complete any necessary internal requirements and on such date as the Parties may agree. 2. If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties will consult on whether to amend this Agreement. ARTICLE 23.4 : ENTRY INTO FORCE AND TERMINATION 1. This Agreement shall enter into force 60 days after the date on which the Parties exchange written notifications certifying that they have completed respective necessary internal requirements, or on such other date as the Parties may agree. 2. A Party may terminate this Agreement by written notification to the other Party, and such termination shall take effect six months after the date of the notification. 3. Within 30 days of delivery of a notification under paragraph 2, either Party may request consultations regarding whether any provision of this Agreement should terminate on a date later than that provided under paragraph 2. Consultations shall commence within 30 days after the Party delivers such a request. IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement. Done at Washington, D.C., in duplicate, this 18th day of May 2004.
_______________________________________________________________________ 16-1 For greater clarity, Article 16.3 does not preclude a Party from imposing internal taxes or other internal charges on digital products, provided that such taxes or charges are imposed in a manner consistent with this Agreement. 16-2 Nothing in this Article shall be construed as affecting the Parties’ rights and obligations with respect to each other under Article 4 of the TRIPS Agreement. 16-3 For greater clarity, digital products can be a component of a good, be used in the supply of a service, or exist separately, but do not include digitized representations of financial instruments that are settled or transmitted through central bank-sponsored payment or settlement system. 16-4 The definition of digital products should not be understood to reflect a Party’s view on whether trade in digital products through electronic transmission should be categorized as trade in services or trade in goods. 17-1 For the purposes of Articles 17.1.6, 17.1.7, 17.2.12(b), and 17.6.1, a national of a Party also means, in respect of the relevant right, an entity of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Articles 17.1.2 and 17.1.4, and the TRIPS Agreement 17-2 For the purposes of this paragraph, protection includes matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights, as well as those matters affecting the use of intellectual property rights specifically covered by this Chapter. Further, for the purposes of this paragraph, protection also includes the prohibition on circumvention of effective technological measures specified in Article 17.4.7 and the rights and obligations concerning rights management information specified in Article 17.4.8. 17-3 A Party may satisfy the requirement for publication by making the law, regulation, or procedure available to the public on the Internet. 17-4 For the purposes of this Article, in respect of the law of Australia, marks means “trademarks”. 17-5 A geographical indication shall be capable of constituting a mark to the extent that the geographical indication consists of any sign, or any combination of signs (such as words, including geographic and personal names, as well as letters, numerals, figurative elements and colours, including single colours), capable of identifying a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin. For the purposes of this Chapter, originating does not have the meaning ascribed to that term in Article 1.2 (General Definitions). 17-6 A Party may require an adequate description, which can be represented graphically, of the mark. 17-7 In determining whether a mark is well known, the reputation of the mark need not extend beyond the sector of the public that normally deals with the relevant goods or services. 17-8 The Parties reaffirm that it is a matter for each Party’s law to prescribe that works and phonograms shall not be protected by copyright unless they have been fixed in some material form. 17-9 For the purposes of Articles 17.4, 17.5, and 17.6, a right to authorise or prohibit means an exclusive right. 17-10 For the purposes of Articles 17.4, 17.5, and 17.6, a performance refers to a performance fixed in a phonogram unless otherwise specified. 17-11 References in this Chapter to authors, performers and producers of phonograms include any successors in interest. 17-12 The expressions copies and original and copies subject to the right of distribution in this paragraph refer exclusively to fixed copies that can be put into circulation as tangible objects. 17-13 Nothing in this Agreement shall affect a Party’s right to determine the conditions, if any, under which the exhaustion of this right applies after the first sale or other transfer of ownership of the original or a copy of their works, performances, or phonograms with the authorisation of the right holder. 17-14 For the purposes of this Article, fixation includes the finalisation of the master tape or its equivalent. 17-15 “Use” in this paragraph refers to use other than that allowed under paragraph 3 and Article 30 of the TRIPS Agreement. 17-16 With respect to sub-paragraph (a), the Parties recognize that a patent does not necessarily confer market power. 17-17 For Australia, the term pharmaceutical substance as used in Section 70 of the Patents Act 1990 on the date of entry into force of this Agreement may be treated as synonymous with the term pharmaceutical product as used in this sub-paragraph. 17-18 The Parties acknowledge that, at the time of entry into force of this Agreement, neither Party permits third persons, not having the consent of the person that previously submitted information concerning the safety and efficacy of a product in order to obtain marketing approval in another territory, to market a same or similar product in the territory of the Party on the basis of such information or evidence of prior marketing approval in another territory. 17-19 As an alternative to this paragraph, where a Party, on the date of entry into force of this Agreement, has in place a system for protecting information submitted in connection with the approval of a pharmaceutical product that utilizes a previously approved chemical component from unfair commercial use, the Party may retain that system, notwithstanding the obligations of this paragraph. 17-20 A Party may satisfy the requirement for publication by making the measure available to the public on the Internet. 17-21 For the purpose of this Article, the term right holder shall include exclusive licensees as well as federations and associations having the legal standing and authority to assert such rights; the term exclusive licensee shall include the exclusive licensee of any one or more of the exclusive intellectual property rights encompassed in a given intellectual property. 17-22 A Party may limit this authority in exceptional circumstances. 17-23 A Party may give effect to paragraph 10(a) through, inter alia, the exercise of judicial discretion or pursuant to specific causes of action, as applicable. 17-24 For greater clarity, this provision does not apply to the extent that it would conflict with common law or statutory privileges, such as legal professional privilege. 17-25 Reasonable attorney’s fees may include those levied pursuant to relevant court fee schedules. 17-26 For the purposes of paragraphs 19 through 24, counterfeit trademark goods means any goods, including packaging, bearing without authorisation a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the law of the country of importation. 17-27 For the purposes of paragraphs 19 through 24, pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorised by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation. 17-28 A Party may comply with paragraph 26(b) in relation to exportation through its measures concerning distribution or trafficking. 17-29 Each Party shall provide that items that are subject to seizure pursuant to any such judicial order need not be individually identified so long as they fall within general categories specified in the order. 17-30 Paragraph 29(b) is without prejudice to the availability of defences to copyright infringement that are of general applicability. 17-31 Either Party may request consultations with the other Party to consider how to address under this paragraph functions of a similar nature to the functions identified in paragraphs (A) through (D) above that a Party identifies after the entry into force of this Agreement. 18-1 Australia provides labour protections for children and young people primarily through laws and regulations that regulate age levels for compulsory education. 19-1 For the purposes of this Article, the primary purpose of a particular statutory or regulatory provision shall be determined by reference to its primary purpose, rather than to the primary purpose of the statute or regulation of which it is part. A particular provision whose primary purpose is not the protection of the environment or the prevention of a danger to human, animal, or plant life or health is not an environmental law as defined by this Article. 20-1 For avoidance of doubt, “wherever possible” shall not be construed as requiring a Party to provide treatment in relation to persons, goods, or services of the other Party that is more favourable than that which the Party provides to its own persons, goods, or services. 20-2 For avoidance of doubt, ‘review’ includes merits (de novo) review only where provided for under the Party’s law. 22-1 For the avoidance of doubt, nothing in this exception to the obligation imposed by sub-paragraph 4(a) allows a Party to condition the receipt or continued receipt of an advantage relating to the purchase or consumption of particular services on the nationality of the service supplier. 22-2 For the purposes of this paragraph the public interest includes, for Australia, compliance with the Privacy Act (Cth) 1988.
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