(a) broadcasting services;
(b) gambling services;
(c) legal representation services;
(d) services of notaries or equivalent professions involving a direct and specific connection with the exercise of public authority;
(e) contracts that establish or transfer rights in real estate;
(f) contracts requiring by law the involvement of courts, public authorities or professions exercising public authority;
(g) contracts of suretyship granted;
(h) collateral securities furnished by persons acting for purposes outside their trade, business or profession; or
(i) contracts governed by family law or by the law of succession.
Article 11.9. Electronic Authentication, Electronic Signatures and Electronic Documents
1. A Party shall not deny the legal validity or legal effect, or admissibility as evidence in legal proceedings, of an electronic document or an electronic signature solely on the ground that it is in electronic form. (5)
2. A Party shall not adopt or maintain any measure that:
(a) prohibits parties to an electronic transaction from mutually determining the appropriate electronic authentication methods for that transaction; or
(b) prevents parties to an electronic transaction from having the opportunity to prove to judicial or administrative authorities that the use of electronic authentication or an electronic signature in their transaction complies with the applicable legal requirements.
3. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, an electronic signature or the method of electronic authentication is certified by an authority accredited in accordance with the Party's law or meets certain performance standards which shall be objective, transparent and non-discriminatory and shall only relate to the specific characteristics of the category of transaction concerned.
4. A Party shall, to the extent provided for in its laws and regulations, apply paragraphs 1 to 3 to other electronic processes or means of facilitating or enabling electronic transactions, such as electronic seals, electronic time stamps, electronic registered delivery services or website authentication.
Article 11.10. No Prior Authorisation
1. A Party shall not require prior authorisation solely on the ground that a service is provided online, or adopt or maintain any other requirement having an equivalent effect. (6)
2. Paragraph 1 does not apply to:
(a) telecommunications services;
(b) broadcasting services;
(c) gambling services;
(d) legal representation services; or
(e) services of notaries or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority.
Article 11.11. Online Consumer Trust
1. Recognising the importance of enhancing consumer trust in digital trade, each Party shall adopt or maintain measures to ensure the effective protection of consumers engaging in electronic commerce transactions, including but not limited to measures that:
(a) proscribe fraudulent and deceptive commercial practices;
(b) require suppliers of goods and services to act in good faith and abide by fair commercial practices, including through the prohibition of charging consumers for unsolicited goods and services;
(c) require suppliers of goods or services to provide consumers with clear and thorough information regarding their identity and contact details, (7) as well as regarding the goods or services, the transaction and applicable consumer rights; and
(d) grant consumers access to redress for breaches of their rights, including a right to remedies in cases where goods or services are paid and not delivered or provided as agreed.
2. The Parties recognise the importance of entrusting their consumer protection agencies or other relevant bodies with adequate enforcement powers and the importance of cooperation between their agencies in order to protect consumers and enhance online consumer trust.
Article 11.12. Unsolicited Direct Marketing Communications
1. Each Party shall ensure that users are effectively protected against unsolicited direct marketing communications.
2. Each Party shall ensure that:
(a) direct marketing communications are not sent to users who are natural persons unless they have given their consent (8) to receiving those communications; or
(b) users who are natural persons may prevent the reception of direct marketing communications. (9)
3. Notwithstanding paragraph 2, each Party may allow persons who have collected, in accordance with its law, the contact details of a user in the context of the supply of goods or services, to send direct marketing communications to that user for their own similar goods or services.
4. Each Party shall ensure that direct marketing communications are clearly identifiable as such, clearly disclose on whose behalf they are made and contain the necessary information to enable users to request cessation free of charge and at any moment.
5. Each Party shall provide users with access to redress against suppliers of direct marketing communications that do not comply with any measure adopted or maintained pursuant to paragraphs 1 to 4.
Article 11.13. Source Code
1. The Parties recognise the increasing social and economic importance of the use of digital technologies, and the importance of the safe and responsible development and use of those technologies, including in respect of source code of software, to foster public trust.
2. A Party shall not require the transfer of, or access to, the source code of software (10) owned by a person of the other Party. This paragraph does not apply to the voluntary transfer of or granting of access to source code on a commercial basis by a person of the other Party, for instance in the context of a government procurement transaction or a freely negotiated contract.
3. This Article does not preclude a Party from requiring that access be provided to software used for critical infrastructure, in order to ensure the effective functioning of critical infrastructure, subject to safeguards against unauthorised disclosure.
4. Nothing in this Article shall be construed to prevent a person of a Party from licencing its software on a free and open source basis.
5. Nothing in this Article shall affect:
(a) the right of a Party's regulatory, law enforcement or judicial authorities or conformity assessment bodies to access source code of software at any time for an investigation, inspection or examination, enforcement action or a judicial or administrative proceeding pursuant to its laws and regulations consistent with this Agreement, including those relating to non-discrimination and the prevention of bias, subject to safeguards against unauthorised disclosure;
(b) requirements by a competition authority to remedy a violation of competition law;
(c) the protection (11) and enforcement of intellectual property rights; and
(d) the right of a Party to take measures in accordance with the security and general exceptions provided for in Chapter 13 (Government procurement).
Article 11.14. Open Internet Access
Each Party recognises the benefits of users in its territory, subject to applicable policies, laws and regulations, being able to:
(a) access, distribute and use services and applications of their choice available on the internet, subject to reasonable network management which does not block or slow down traffic based on commercial reasons;
(b) connect devices of their choice to the internet, provided that those devices do not harm the network; and
(c) access information on network management practices of their internet access service suppliers.
Article 11.15. Paperless Trading
Each Party shall endeavour to:
(a) make publicly available electronic versions of all existing publicly available trade administration documents; and
(b) accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents, except if:
(i) there are domestic or international legal requirements to the contrary; or
(ii) doing so would reduce the effectiveness of the trade administration process.
Article 11.16. Open Government Data
1. The Parties recognise that facilitating public access to and use of government data contributes to stimulating economic and social development, competitiveness, productivity and innovation.
2. To the extent that a Party chooses to make government data accessible to the public, it shall endeavour to ensure, to the extent practicable, that the data is:
(a) in a format that allows it to be easily searched, retrieved, used, reused and redistributed;
(b) in a machine-readable and spatially-enabled format which contains descriptive metadata that is as standardised as possible;
(c) made available via reliable, user-friendly and freely available application programming interfaces;
(d) regularly updated;
(e) not subject to use conditions that are discriminatory or that unnecessarily restrict re-use; and
(f) made available for re-use in full compliance with that Party’s personal data protection law.
3. The Parties shall endeavour to cooperate to identify ways in which each Party may expand access to and use of government data that the Party has made accessible to the public, with a view to enhancing and generating opportunities, beyond its use by the public sector.
4. This Article only applies to the regional level of government to the extent that the law of a regional government requires or permits publication of government data.
Article 11.17. Cooperation and Information Exchange on Digital Trade
1. The Parties recognise the importance of cooperation and information exchange on digital trade. Where agreed by the Parties, the Parties shall exchange information and share experiences on the following regulatory matters in the context of digital trade:
(a) the recognition and facilitation of interoperable electronic authentication services and other electronic processes or means of facilitating or enabling electronic transactions;
(b) the treatment of direct marketing communications;
(c) the protection of consumers;
(d) e-government;
(e) challenges for SMEs in the use of electronic commerce;
(f) private sector-developed methods of self-regulation that foster electronic commerce, including codes of conduct, model contracts, guidelines and enforcement mechanisms; and
(g) any other matter relevant for the development of digital trade.
2. The Parties recognise the importance of cooperating on cybersecurity matters relevant for digital trade.
Chapter 12. ENERGY AND RESOURCES
Article ARTICLE 12.1
Objectives
The objectives of this Chapter are to facilitate trade and investment in energy and resources while maintaining high environmental, social and governance standards, and to support the energy transition and the Parties' respective net-zero greenhouse gas emissions objectives.
Principles
Each Party retains the sovereign right to determine whether areas within its territory may be made available for exploring for and producing energy goods and resources.
Each Party preserves its right to adopt, maintain and enforce measures that are necessary to pursue legitimate public policy objectives, such as securing the supply of energy goods and resources within its territory, consistent with this Agreement.
Definitions
For the purposes of this Chapter:
"authorisation" means the specific permission, license, concession or similar administrative or contractual instrument by which the competent authority of a Party authorises an entity to explore for or produce energy goods or resources in its territory;
"balancing" means:
for the Union, actions and processes, in all timelines, through which network operators continuously ensure maintenance of the system frequency within a predefined stability range and compliance with the amount of reserves needed with respect to the required quality; and
for Australia, actions and processes that seek to continuously ensure the maintenance of electricity system security in order to ensure operation within defined technical limits;
"covered enterprise" means a covered enterprise as defined in point (x) of Article 1.3 (General definitions);
"energy goods" means the goods from which energy is generated and that are listed by the corresponding HS code in Annex 12-A (List of energy goods, hydrocarbons and resources);
"energy infrastructure for the transport of electricity at transmission level" means, for Australia, transmission systems that are regulated under Chapter 6A of the National Electricity Rules, and the South West Interconnected System in Western Australia;1
1 For greater certainty, the term "energy infrastructure for the transport of electricity at transmission level" does not include small isolated electricity systems such as the currently
"energy infrastructure for the transport of gas at transmission level" means, for Australia, transmission pipelines within the meaning of the National Gas Law other than those covered by clause 119, Schedule 3 of the National Gas Law that do not provide third-party access;
"energy transport infrastructure" means energy infrastructure for the transport of electricity at transmission level and energy infrastructure for the transport of gas at transmission level;
"entity" means any service supplier or investor as defined in points (q) and (k) of Article 9.2 (Definitions) respectively;
"hydrocarbons" means the goods that are listed by the corresponding HS code in Annex 12-A (List of energy goods, hydrocarbons and resources);
"non-discriminatory" means the national treatment obligation as specified in Article 9.6 (National treatment) and Article 9.14 (National treatment);2
"renewable energy" means energy produced from renewable non-fossil sources, including wind, solar (solar thermal and solar photovoltaic) and geothermal energy, osmotic energy, ambient energy, tidal energy, wave energy and other types of ocean energy, hydropower, biomass energy, energy generated from utilising landfill gas, sewage treatment plant gas, and biogas3;
"renewable fuels" means biofuels, biogases, bioliquids, biomass fuels and renewable fuels of non-biological origin such as renewable hydrogen and its derivatives; and
"resources" means materials used in the manufacture of industrial products, including ores, concentrates, slags, ashes and chemicals, processed, unwrought, and refined materials, metal waste, scrap and remelting scrap, which are covered by the corresponding HS code in Annex 12-A (List of Energy Goods, Hydrocarbons and Resources).4
2 For greater certainty, for the purposes of Article 12.10, the term "non-discriminatory" does not prevent a Party from according to generators or producers of renewable energy more favourable treatment than it accords to other generators or producers.
3 This definition is without prejudice to sustainability requirements each Party may introduce in order to recognise energy as renewable.
4 For greater certainty, the term "resources" does not include agricultural, forestry or fisheries
Regulated pricing
The Parties affirm their rights and obligations under Article 9.6 (National treatment), Article 9.10 (Non-conforming measures and exceptions), and Article 20.3 (Publication). In accordance with those rights and obligations, if a Party adopts a measure to regulate the price of domestic supply of electricity or natural gas to final customers, it shall, to the extent required by those Articles, ensure that such measure is transparent and is applied in a non-discriminatory manner.
Authorisation for exploration and production of energy goods and resources
If a Party requires an authorisation, it shall ensure the requirements and procedures for granting the authorisation are established in advance made publicly available5, and are non-discriminatory between entities of each Party.
If a Party requires an authorisation in relation to hydrocarbons, it shall publish or make available on request, the information required for an interested entity to submit an application for that authorisation. Such information shall include:
the type of authorisation required;
the relevant area or part thereof in respect of which an authorisation may be sought; and
if available, an indicative time frame for the processing of the application.
A Party may grant an authorisation in derogation from paragraph 2 in any of the following cases related to hydrocarbons:
5 For greater certainty, publishing the requirements and procedures for granting the authorisation would not require the Parties to publish all details of the internal assessment processes for assessing the application.
the area has been subject to a previous procedure which has not resulted in an authorisation being granted;
the area is permanently available for the exploration for or production of hydrocarbons; or
an authorisation granted in respect of the relevant area has been relinquished before its date of expiry.
A Party may require an entity which has been granted an authorisation to pay a financial contribution and a contribution in kind.
Each Party shall ensure that an applicant for an authorisation is provided with, or is provided with on request, the reasons for the rejection of its application to enable the applicant to have recourse to procedures for appeal or review. The procedures for such appeal or review shall be made publicly available in advance6.
This Article shall not apply to a measure that is, pursuant to Article 9.10 (Non-conforming measures and exceptions) or 9.17 (Non-conforming measures) not subject to an obligation under Section B (Investment liberalisation) or Section C (Cross-border trade in services) of Chapter 9 (Investment liberalisation and trade in services).
Assessment of environmental impact
Each Party shall ensure that its laws and regulations require an environmental impact assessment for activities specified in Annex 12-B (Annex on assessment of environmental impact) related to the production or extraction of energy goods or resources, where such activities are likely to have a significant impact on the environment by reason of, inter alia, their nature, size or location.
6 For greater certainty, reference to "appeal or review" in this provision may refer to judicial, administrative or merit review procedures.
With respect to an environmental impact assessment referred to in paragraph 1, each Party shall, in accordance with its laws and regulations:
require that the significant effects of the activity on the environment are identified and assessed, as appropriate;
require that a timely opportunity is provided for relevant persons to participate in the environmental impact assessment process;
require a description of the features of the project or measures proposed in order to avoid, prevent or reduce likely significant adverse effects on the environment;
take into account the findings of the environment impact assessment prior to approving the activity; and
make publicly available the outcomes of the environmental impact assessment.
Offshore risk and safety
Each Party affirms its rights and obligations under the UNCLOS and other relevant international agreements, relating to safety and environmental protection for offshore oil and gas operations, to which both Parties are party. In accordance with such rights and obligations, each Party shall take appropriate measures to prevent major accidents from offshore oil and gas operations and to limit the consequences of such accidents.
The Parties shall cooperate and exchange information, as appropriate, on their relevant regulatory systems for offshore oil and gas operations with the aim of maintaining high levels of safety and environmental protection for offshore oil and gas operations.
Australian First Nations peoples' rights and interests in land and waters
The Parties reaffirm the principles expressed in the UNDRIP, in particular concerning Indigenous peoples' relationship to lands, territories and resources.