The Parties acknowledge that Australian law recognises Australian First Nations peoples' traditional rights and interests in land and waters.
The Parties acknowledge the importance of enhancing the ability of Australian First Nations people to participate in, and benefit from, Australia's energy transition.
Notwithstanding Article 12.5 (Regulated pricing), Article 12.6 (Authorisation for exploration and production of energy goods and resources), Article 12.7 (Assessment of environmental impacts) and Article 12.10 (Third-party access to energy transport infrastructure), Australia may adopt or maintain measures that accord preferences to any Australian First Nations person or organisation, or that provides for more favourable treatment of any Australian First Nations person or organisation relating to energy and resources.
Third-party access to energy transport infrastructure
Each Party shall ensure that owners or operators of energy transport infrastructure or other entities holding relevant responsibility in relation to such infrastructure, in its territory grant non-discriminatory access to energy transport infrastructure for the transport of electricity generated or gas produced by any covered enterprise in its territory 7, if regulatory and technical requirements are met, and if capacity is available in the energy transport infrastructure. A decision on access to the energy transport infrastructure shall be made within a reasonable period of time from the date of the request for access.
7 This Article shall only apply in respect of covered enterprises in the territory of a Party that comply with that Party’s applicable laws and regulations.
Each Party shall ensure that any access to and use of energy transport infrastructure provided to a covered enterprise is on reasonable and non-discriminatory terms and conditions and at appropriately cost-reflective tariffs or at market-based tariffs8. Each Party shall ensure that any standard terms and conditions9, and any regulated tariffs or principles for determining negotiated tariffs for the access to and use of energy transport infrastructure are made publicly available.
Nothing in this Article shall prevent a Party from adopting or maintaining through its laws and regulations a derogation from paragraphs 1 or 2 that is designed to achieve a legitimate public policy objective,10 provided that such a derogation is:
based on transparent criteria;
non-discriminatory; and
in the case of a derogation from paragraph 1, necessary to achieve that legitimate public policy objective.
As markets for renewable fuels and low carbon fuels continue to develop, each Party shall endeavour to apply the commitments set out in this Article with respect to transport infrastructure for such fuels.
This Article does not apply to a measure adopted or maintained with respect to Australia's Foreign Investment Framework which prohibits or otherwise conditions access to energy transport infrastructure by a covered enterprise, if entry [35 Foreign Investment Framework] to Annex 9-[D (Future measures)] applies to such a measure.
8 For greater certainty, in Australia, tariffs for energy infrastructure for the transport of gas are "market-based" to the extent that they are commercially negotiated or arbitrated in accordance with the regulatory framework in the National Gas Law and National Gas Rules. That regulatory framework applies to all potential users of the infrastructure in a non-discriminatory manner.
9 For greater certainty, "standard terms and conditions" does not include commercially negotiated terms and conditions.
10 For greater certainty, legitimate public policy objectives include, but are not limited to, supporting the deployment of renewable energy and maintaining the security or reliability of an energy system.
Regulatory authority
For the purposes of Article 12.10 (Third-party access to energy transport infrastructure), each Party shall establish, maintain or designate one or more independent bodies that shall be entrusted to resolve disputes regarding appropriate terms, conditions and tariffs for access to, and use of, energy transport infrastructure within a reasonable period of time, and that shall:
act impartially and transparently; and
be legally distinct and functionally separate from operators, owners or users of energy transport infrastructure.
Electricity generated from renewable energy sources
The Parties recognise the important contribution that renewable energy can make in reducing greenhouse gas emissions to mitigate climate change.
To this end, each Party shall seek to facilitate:
investment in renewable energy generation; and
the integration of renewable energy generation into electricity systems.
Each Party shall seek to ensure that owners or operators of energy infrastructure for the transport of electricity, or other entities holding relevant responsibility for the operation of the electricity system, within its territory provide or procure balancing services.
The Parties shall cooperate and exchange information, where reasonable, lawful and mutually agreed, on their respective regulatory systems to support the uptake of renewable energy.
Research, development and innovation
Each Party shall endeavour to promote research, development and innovation in the areas of energy efficiency, and renewable energy and resources.
Each Party may encourage the dissemination of information and best-practice policies in the areas of energy efficiency, and renewable energy and resources, in a manner that is consistent with the adequate and effective protection of intellectual property rights.
Cooperation
The Parties shall, subject to available resources and where mutually agreed, promote cooperation in the areas of energy and resources, including by:
enhancing investment, market access and minimising non-tariff barriers to trade;
enhancing mutual understanding in the areas of energy and resources, with a view to exchanging information on the Parties' regulatory policies;
encouraging activities that support corporate social responsibility in accordance with internationally-recognised standards; and
facilitating, as appropriate, consultation on the Parties' positions in multilateral or plurilateral fora where issues related to the areas of energy and resources may be raised and discussed.
Cooperation on sustainable critical and strategic minerals
The Parties recognise their shared commitment to responsible sourcing and sustainable production of resources, including critical and strategic minerals, and their mutual interest to facilitate the integration of resources value chains. To this end, the Parties shall cooperate on relevant issues of mutual interest, including:
responsible mining practices and the sustainability of resources value chains;
resources value chains; and
research, development, and innovation activities covering the entire resources value chains, including cutting-edge technologies, smart mining and digital mines.
In order to support well-functioning, sustainable and resilient resources value chains, the Parties shall cooperate to promote the integration and development of their respective resources value chains, which may include facilitating and supporting investments in critical and strategic mineral projects. The Parties may exchange views on activities carried out under such cooperation within the framework of the Committee on Trade in Goods and Technical Barriers to Trade.
Cooperation on renewable fuels
The Parties recognise the important contribution that renewable fuels including, inter alia, hydrogen, including its derivatives, and synthetic fuels of renewable origin, can make in reducing greenhouse gas emissions to address climate change.
The Parties shall cooperate in the area of renewable fuels, where mutually agreed, with a view to facilitating trade and investment, including by:
facilitating the development, adoption and implementation of relevant international standards and certification schemes to avoid the emergence of unnecessary barriers to trade, in particular with regard to greenhouse gas emissions and safety;
identifying, reducing and eliminating, as appropriate, measures that may unnecessarily impede bilateral trade in renewable fuels; and
promoting the use and production of renewable fuels and cooperating on associated supply chains.
Rebalancing
The Parties affirm their respective:
commitments to building competitive, diverse, resilient and sustainable global supply chains for energy goods and resources to support economic security and global decarbonisation; and
rights to adopt and maintain measures necessary to secure their supply of energy goods and resources, including measures to strengthen the different stages of their energy goods and resources value chains, provided that such measures are adopted and maintained consistently with this Agreement as well as with each Party’s other international obligations, including those under the WTO Agreement.
If a Party adopts or maintains a measure by which it imposes a higher price for exports of energy goods or resources to the other Party than the price charged for energy goods or resources when destined for its market, the other Party may deliver a written request for information and consultations regarding such a measure.
The written request referred to in paragraph 2 shall include:
a prima facie identification of the specific goods or sectors11 that the requesting Party considers may be affected by the measure; and
a preliminary indication of the negative effect of the measure, or risk thereof, on the price, availability, import or production of specific goods referred to in point (a), or on the investment in the production of such goods, in the requesting Party.
The Party receiving the written request shall provide in writing the requested information no later than 30 days after the date of delivery of the request. If that Party is not able to provide any of the requested information, it shall explain its reasons for not doing so within the same period of time. The Parties shall enter into consultations no later than 60 days after the date of delivery of the request for information and consultations. The consultations shall be deemed concluded within 90 days of the date of delivery of the written request, unless the Parties agree otherwise. The consultations, and in particular all information designated as confidential and positions taken by the Parties during consultations, shall be confidential and shall be without prejudice to the rights of either Party in any further proceedings.
If the Parties do not reach a mutually agreed solution during the consultations referred to in paragraph 4, the requesting Party may, no earlier than 90 days from the date of delivery of the written request referred to in paragraph 2 and after giving notice to the Party receiving that written request, suspend, in whole or in part, the preferential tariff treatment under this Agreement in order to address the substantive negative effect12 on the price, availability, import or production of specific goods referred to in paragraph 3, or on the investment in the production of such goods, in the requesting Party, or to prevent the risk of such effect, caused by the difference in price referred to in paragraph 2. The requesting Party shall assess such effect on the basis of objective information and analysis.
The suspension of preferential tariff treatment referred to in paragraph 5 shall be:
11 For greater certainty, this and all subsequent references to goods or sectors in this Article also cover downstream goods or sectors.
12 For greater certainty, the Parties understand that, for the purposes of the identification of the specific goods and investment in production thereof, and of such effect thereon, downstream products are also covered.
applicable only to the goods that are substantively negatively affected, or at risk thereof, by the measure referred to in paragraph 2, but not to any agricultural or fisheries good13;
proportionate, including with respect to its duration, to the substantive negative effect, or risk thereof, on the price, availability, import or production of the specific goods referred to in point (a) of this paragraph, or on the investment in the production of such goods, in the requesting Party; and
consistent with the requesting Party’s obligations under the WTO Agreement.
The assessment of proportionality referred to in point (b) of paragraph (6) shall take into account any suspension of obligations applied by the requesting Party pursuant to a WTO ruling issued in its favour on the same measure. If such ruling is issued after the suspension of preferential tariff treatment pursuant to this Article has been applied, the Party shall adjust the applied suspension of preferential tariff treatment accordingly as appropriate.
This Article is without prejudice to each Party’s rights and obligations under Chapter 24 (Dispute settlement). If a Party requests the establishment of a panel pursuant to Chapter 24 (Dispute settlement) in relation to a dispute concerning this Article, the panel shall treat that dispute as a matter of urgency pursuant to Article 24.11(2) (Decisions on urgency).
A Party may invoke Article 23.1 (General exceptions), Article 23.2 (Security exceptions) or Article XI:2(a) of GATT 1994, as incorporated into and made part of this Agreement mutatis mutandis pursuant to Article 2.11(1) (Import and export restrictions) in order to justify the measure referred to in paragraph 2.
Paragraphs 2 to 9 do not apply to the energy goods and resources listed in Annex 12-C (Annex on Article 12.16 (Rebalancing)).
13 For the purposes of this point, the term "agricultural good" means an agricultural product listed in Annex 1 to the Agreement on Agriculture and the term "fisheries good" means a fisheries product listed in HS Chapter 03 or HS headings 1604 and 1605.
Chapter 13. GOVERNMENT PROCUREMENT
Article ARTICLE 13.1
Incorporation of certain provisions of the GPA
The Parties affirm their rights and obligations under the Revised Agreement on Government Procurement (Annex to the Protocol Amending the Agreement on Government Procurement, adopted on 30 March 2012 (GPA/113)) (hereinafter referred to as the "GPA"). To this end, the provisions of the GPA listed in Annex 13-A to this Agreement and the Parties' Annexes to Appendix 1 of the GPA outlined in Annex 13-B to this Agreement are incorporated into and made part of this Chapter, mutatis mutandis.
The Parties shall apply, mutatis mutandis, the provisions of the GPA listed in Annex 13-A to this Agreement, on a bilateral basis, to the additional procurement covered in Annex 13-B to this Agreement.
For the purposes of the incorporation of the GPA under paragraph 1, the term:
"Agreement" in the GPA means "Chapter";
"any Party", "any other Party" or "another Party" in the GPA means "the other Party"; and
"international trade" in the GPA means "international trade between the Parties".
Additional disciplines Build-operate-transfer contracts and works concessions
For the purposes of this Chapter, covered procurement includes build-operate-transfer contracts and public works concession contracts in Australia, and public works concession contracts in the Union. With regard to this commitment:
for the Union, "public works concession contract" means a contract for pecuniary interest concluded in writing by means of which procuring entities entrust the execution of works to one or more economic operators the consideration for which consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment; and
for Australia, "build-operate-transfer contract" and "public works concession contract" means a contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plants, 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 to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of those works for the duration of the contract.
The award of a public works concession contract referred to in paragraph 1 shall involve the transfer to the economic operators of an operating risk in exploiting those works encompassing demand or supply risk or both. The recoup of the investments made or the costs incurred in operating the works should not be guaranteed.
Security and general exceptions
The Parties understand that the measures referred to in Article III.2(b) of the GPA include environmental measures necessary to protect human, animal or plant life or health.
Use of electronic means in procurement
For covered procurement, a procuring entity shall use electronic means of information and communication for the publication of notices and tender documentation in procurement procedures and shall use electronic means for the submission of tenders to the widest extent practicable.
Electronic publication
For covered procurement, all procurement notices (notice of intended procurement, summary notice, notice of planned procurement and contract award notice) shall be directly accessible by electronic means, free of charge, through a single point of access on the internet. For greater certainty, Australia would satisfy this obligation if the Commonwealth government, as well as each state and territory of Australia, maintains a separate publicly accessible single point of access containing the relevant information.
Conditions for participation
A procuring entity of a Party shall not require experience in the territory of that Party to be a condition for participation in the covered procurement.
Registration systems and qualification procedures
Where a Party, or one of its procuring entities, maintains a supplier registration system, it shall ensure that an interested supplier has access by electronic means to information on that system and may request registration at any time. The interested supplier shall be informed within a reasonable period of time of the decision to grant or reject that request. If that request is rejected, the decision must be explained in writing.
Selective tendering
If the procuring entity uses a selective tendering procedure, it shall address an invitation to submit a tender to a number of suppliers that is necessary to ensure effective competition.
Environmental, social and labour considerations
A Party may:
allow a procuring entity to take into account appropriate environmental, social and labour considerations throughout the procurement procedure, provided they are:
related to the characteristics of the goods or services, or combination thereof, that are the object of the procurement;
based on objectively verifiable and non-discriminatory criteria; and
accessible to all interested suppliers; and
take appropriate measures to ensure compliance with its obligations in the fields of environmental, social and labour law, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on international trade between the Parties.
Sensitive government information
For greater certainty, this Chapter shall not preclude a Party, or its procuring entities, from preparing, adopting or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting or processing of such information outside the territory of the Party.
Standstill period
A procuring entity is encouraged to provide, as a general rule, for a standstill period between the award and the signature of a contract in order to give sufficient time to an unsuccessful bidder to review and challenge the award decision.
Ensuring integrity in procurement practices
Each Party shall ensure that it adopts or maintains appropriate measures to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party's procurements, either indefinitely or for a stated period, suppliers that the
Party has determined by final decision to have engaged in fraudulent or other illegal actions in relation to government procurement in the territory of that Party. Each Party shall also ensure that it adopts or maintains policies and procedures to eliminate to the extent possible or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement.
Modifications and rectifications to coverage
A Party may modify or rectify its market access commitments in its Schedule in Annex 13-B pursuant to paragraphs 2 to 8 of this Article. If a modification or a rectification of a Party's Annexes to Appendix I to the GPA becomes effective pursuant to Article XIX of the GPA, it shall automatically become effective for the purposes of this Agreement.
Modifications
When a Party intends to modify its Schedule under Annex 13-B, the Party shall:
notify the other Party in writing; and
include in the notification a proposal for appropriate compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification.
Notwithstanding point (b) of paragraph 2, a Party is not required to provide compensatory adjustments to the other Party if the proposed modification covers a procuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement.
Government control or influence over the covered procurement of procuring entities listed in Annex 13-B to this Chapter is presumed to be effectively eliminated insofar as the procuring entity's procurement is concerned where the procuring entity is exposed to competition on markets to which access is not restricted.
A Party shall object in writing no later than 45 days after the date of receipt of the notification referred to in point (a) of paragraph 2 of this Article or be deemed to have accepted the adjustment
or modification, including for the purposes of Chapter 24 (Dispute settlement), if the other Party disputes that:
an adjustment proposed under point (b) of paragraph 2 of this Article is adequate to maintain a comparable level of mutually agreed coverage; or
the modification covers a procuring entity over which the Party has effectively eliminated its control or influence as provided for in paragraph 3.
Rectifications
The following changes to a Party's Schedule in Annex 13-B shall be considered a rectification, provided that they do not affect the mutually agreed coverage provided for in the Chapter:
a change in the name of a procuring entity;
a merger of two or more procuring entities listed within the same [X] of Annex 13-B[X] and
the separation of a procuring entity listed in the Annex 13-B[X] into two or more procuring entities that are added to the procuring entities listed in the same X of that Annex[].
A Party shall notify the other Party every two years of proposed rectifications to that Party's schedule in Annex 13-B, in line with the cycle of notifications provided for under the GPA, following the entry into force of this Agreement.
A Party may notify the other Party of an objection to a proposed rectification no later than 45 days after the date of receipt of the notification referred to in paragraph 7. Where a Party submits an objection, it shall set out the reasons why it believes the proposed rectification is not a change provided for in paragraph 6, and describe the effect of the proposed rectification on the mutually agreed coverage provided for in the Agreement. If no such objection is submitted in writing within 45 days after the date of receipt of the notification, the Party shall be deemed to have agreed to the proposed rectification.
Consultations and dispute resolution
If the other Party objects to the proposed modification or rectification, the Parties will seek to resolve the issue through consultations. Notwithstanding Article 24.4 (Consultations), if no agreement is found within 60 days after the date of receipt of the objection, the Party seeking to modify or rectify its Schedule in Annex 13-B may refer the matter to dispute settlement under Article 24.5 (Initiation of panel procedures).
Compliance
Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.
Nothing in this Chapter shall be construed to prevent a Party, including its procuring entities, from developing new procurement policies, procedures or contractual means, provided that they are not inconsistent with this Chapter.
Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property Rights, including Geographical Indications
The Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property Rights, including Geographical Indications (hereinafter referred to as "the Committee"), established pursuant to Article 22.5 (Specialised Committees), shall consider any matters relating to the implementation and operation of this Chapter.
Adjustment of thresholds
Each Party shall adjust the thresholds for goods, services and construction services in its respective Schedule in Annex 13-B in accordance with the formula in the WTO Committee on Government Procurement Decision GPA/1.
The Parties may consult if a major change in a national currency of a Party relative to the SDR has the potential to create a significant problem with regard to the application or implementation of this Chapter.
Cooperation
The Parties recognise their shared interest in cooperating to promote international liberalisation of government procurement markets with a view to achieving enhanced understanding of their respective government procurement systems.
The Parties shall endeavour to cooperate on exchanging government procurement statistics.
Amendments
If the GPA is amended or is superseded by another agreement, the Parties shall consult on whether to amend this Chapter as appropriate.