Administrative procedures
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set out in this Sub-Section.
Article ARTICLE 17.66
Border measures
With respect to goods under customs control, each Party shall adopt or maintain procedures under which a right holder may submit applications requesting a Party's competent authorities to suspend the release of or detain goods suspected of infringing at least trademarks, copyright and related rights, and geographical indications (hereinafter referred to as "suspected goods"). Each Party shall provide that an application to suspend the release of, or to detain, suspected goods, which may apply to multiple shipments, remains in force for at least one year from the date of application, or for the period during which the good is protected by the intellectual property rights referred to in the first sentence, whichever is shorter. If an application to suspend the release of, or to detain, suspected goods remains in force for a period of one year or less, the applicant shall be given an opportunity to apply for an extension of the period to suspend the release or detention of suspected goods. Formalities to extend the period shall not be unnecessarily burdensome.
Each Party shall provide that any right holder initiating procedures under paragraph 1 shall be required to provide sufficient information that may reasonably be expected to be within the right
holder's knowledge to make the suspected goods readily recognisable by a Party's competent authorities.31 The requirement to provide that information shall not be unnecessarily burdensome.
Each Party shall establish or maintain electronic systems for the management by its competent authorities of applications referred to in paragraph 1, that have been granted or recorded.
Each Party shall ensure that its competent authorities have the authority to require a right holder initiating procedures to suspend the release of or to detain of suspected 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 does not unreasonably deter recourse to those procedures.
If a Party's competent authorities have detained or suspended the release of suspected goods, that Party shall ensure that its competent authorities have the authority to inform, subject to a Party's law, without undue delay the right holder, upon the right holder's request, of the names and addresses of the consignor, exporter, consignee or importer,32 a description of the suspected goods, the quantity of the suspected goods, the country of origin, provenance and destination of the suspected goods, provided this information is known to that Party's competent authorities.
Each Party shall provide that, if requested by the customs authorities, the holder of the granted or recorded application shall be obliged to reimburse the costs incurred by the customs authorities, or other parties acting on behalf of customs authorities, from the moment of detention or suspension of the release of the suspected goods, including storage, handling, and any costs relating to the destruction or disposal of the suspected goods.
Each Party's competent authorities should grant or record an application within a reasonable period of time.
31 For the purposes of this Article, unless otherwise specified, competent authorities may include the appropriate judicial, administrative or law enforcement authorities under a Party's law.
32 For the Union, "importer" means the declarant or the holder of the suspected goods.
Each Party shall provide that its competent authorities may act upon their own initiative to suspend the release or detain suspected goods with respect to goods under customs control that are imported or destined for export.
Customs authorities shall, when appropriate, apply risk analysis to identify, suspend the release of, or detain, suspected goods, including goods sent in small consignments.
Each Party shall have in place procedures allowing for the destruction of suspected goods, without there being any need for prior administrative or judicial proceedings for the formal determination of an infringement.33 When suspected goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder and in accordance with the Party's laws.
Each Party may have in place procedures allowing for the swift destruction of counterfeit trademark and pirated goods sent in postal or express couriers' consignments.
Each Party may decide not to apply this Article to the import of goods put on the market in another country by or with the consent of the right holders.
A Party may exclude from the application of this Article goods of a non-commercial nature contained in travellers' personal luggage.
The customs authorities of each Party shall, as appropriate, provide for regular engagement on the enforcement of intellectual property rights, with interested parties involved in customs related activities in a Party, including the business community.
The Parties agree to cooperate in respect of international trade in suspected goods. In particular, the Parties agree to share, where relevant and appropriate, information on trade in suspected goods affecting a Party.
33 For the Union, this paragraph applies where the persons concerned agree or do not oppose the destruction of the suspected goods. For Australia, this paragraph applies where the person concerned forfeits the suspected goods.
Without prejudice to other forms of cooperation envisaged in this Agreement, the customs authorities of the Parties shall provide each other with mutual administrative assistance in the matters covered by this Sub-Section for which the customs authorities of each Party have responsibility, in accordance with the provisions of Protocol on mutual administrative assistance in customs matters.
Article ARTICLE 17.67
Cooperation
With a view to facilitating the implementation of this Chapter, the Parties shall endeavour to cooperate within the Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property Rights, including Geographical Indications, in international fora, via various agencies or as otherwise deemed appropriate.
The areas of cooperation may include:
exchange on developments in domestic and international intellectual property law and policy;
exchange on intellectual property administration and registration systems;
education and promotion of awareness relating to the protection and enforcement of intellectual property, including relating to the impact of intellectual property rights infringement;
engagement with SMEs regarding the use, protection and enforcement of intellectual property rights;
exchange of information and experience in intellectual property issues relevant to:
SMEs;
science, technology and innovation activities; and
the generation, transfer and dissemination of technology;
exchange on policies involving the use of intellectual property for research, innovation and economic growth;
the implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of the WIPO;
technical assistance for developing countries;
exchange on best practices, projects and programmes aimed at reducing intellectual property rights infringements, including:
supporting the use of adequate tools and new technologies to prevent and detect counterfeiting activities;
sharing of experience on enforcement of intellectual property rights by law enforcement authorities, administrative and judicial bodies; and
voluntary stakeholders initiatives to reduce intellectual property infringements, including over the internet; and
improving the international intellectual property regulatory framework.
Voluntary stakeholder initiatives
Each Party shall endeavour to promote cooperative efforts within the business community to effectively address intellectual property infringement, including in the digital environment, while preserving legitimate competition. This may include encouraging the establishment of public or private advisory groups, or other possible initiatives, to address issues of intellectual property infringement.
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 is established pursuant to Article 22.5(1) (Specialised committees).
In addition to the functions specified in Article 22.6 (Functions of the specialised committees), the Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property Rights, including Geographical Indications shall have the following functions:
provide a forum for exchanging information on geographical indications for the purposes of considering their protection in accordance with Article 17.41 (Protection of geographical indications);
further to Article 17.41(2) (Protection of geographical indications), deal with any matter arising from product specifications of protected geographical indications of the other Party listed in Annex 17 (Lists of geographical indications);
recommend to the Trade Committee to amend Annex 17 (Lists of geographical indications), in accordance with Article 17.40 (Amendment of the list of geographical indications), including removal of geographical indications where they cease to be protected in the territory of the Party concerned; and
exchange information and experiences on issues related to intellectual property, including in the area of geographical indications, including legislative and policy developments, and any
other matter of mutual interest related to the implementation and operation of this Chapter.
Chapter 18. TRADE AND SUSTAINABLE DEVELOPMENT
Article ARTICLE 18.1
Objective
The Parties acknowledge the Agenda 21 and the Rio Declaration on Environment and Development, adopted at Rio de Janeiro on 14 June 1992, the International Labour Organization (hereinafter referred to as "ILO") Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International Labour Conference (hereinafter referred to as "ILC") on 18 June 1998 (hereinafter referred to as "ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up"), the ILO Declaration on Social Justice for a Fair Globalization, adopted by the ILC on 10 June 2008 (hereinafter referred to as "ILO Declaration on Social Justice for a Fair Globalization") and the outcome document entitled "Transforming our world: the 2030 Agenda for Sustainable Development and the 17 Sustainable Development Goals", adopted by the UN General Assembly on 25 September 2015 (hereinafter referred to as "2030 Agenda").
The Parties recognise that sustainable development encompasses economic growth, social inclusion and environmental protection, all three being interconnected and mutually reinforcing. The Parties affirm their commitment to promote a mutually supportive relationship between trade and investment, and sustainable development.
The Parties recognise the urgent need to address climate change, as agreed in the Paris Agreement, and outlined by the Intergovernmental Panel on Climate Change ("IPCC") in its
assessment reports and its Special Report entitled "Global Warming of 1.5°C", as a contribution to the economic, social and environmental objectives of sustainable development.
In light of the above, the objective of this Chapter is to enhance the contribution of the Parties' trade and investment relationship to sustainable development, notably its labour and environmental dimensions.
Right to regulate and levels of protection
The Parties recognise the right of each Party to determine its sustainable development policies and priorities, to establish the levels of domestic environmental and labour1 protection it deems appropriate and to adopt or modify its relevant law and policies in a manner consistent with its commitments under the international agreements and labour standards referred to in this Chapter.
Each Party shall strive to ensure that its relevant law and policies provide for, and encourage, high levels of environmental and labour protection, and shall strive to improve such levels of protection.
A Party shall not weaken or reduce the levels of protection afforded in its environmental or labour law in order to encourage trade or investment.2 A Party shall not, in order to encourage trade or investment, waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental or labour law in a manner that weakens or reduces the levels of protections afforded in such law.3
1 When labour is referred to in this paragraph, it includes social protection in accordance with the ILO Declaration on Social Justice for a Fair Globalization.
2 In so far as this is in accordance with Australia's constitutional structure, this obligation shall not apply at the sub-central level of government. The Commonwealth Government of Australia shall endeavour to ensure that governments at the sub-central level in Australia comply with this obligation.
3 For greater certainty, this paragraph does not prevent either Party from amending or otherwise modifying its environmental or labour law, provided such amendments or modifications are not inconsistent with this Chapter.
A Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its environmental or labour law in a manner affecting trade and investment between the Parties. Each Party retains the right to exercise reasonable discretion and to make bona fide decisions with regard to the allocation of enforcement resources in accordance with its priorities for the enforcement of its environmental or labour law, provided that the exercise of that discretion and those decisions are not inconsistent with its obligations under this Chapter.
The Parties recognise that environmental and labour standards should not be used for protectionist trade purposes and that it is inappropriate to apply their respective environmental or labour law or measures in a manner which would constitute a disguised restriction on trade or investment or an unjustifiable or arbitrary discrimination.
Multilateral labour standards and agreements
The Parties affirm their commitment to promote the development of international trade in a way that is conducive to decent work for all, as expressed in the ILO Declaration on Social Justice for a Fair Globalization.
Recognising the ILO as the competent body to set internationally recognised labour standards, and in accordance with the ILO Constitution, adopted on 28 June 1919, and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, as amended in 2022, each Party shall respect, promote and realise the principles concerning the fundamental rights at work, as defined in the fundamental ILO Conventions4, which are:
4 For greater certainty, the fundamental ILO Conventions are: the Convention concerning Freedom of Association and Protection of the Right to Organise (C087), adopted at San Francisco on 9 July 1948; the Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (C098), adopted at Geneva on 1 July 1949; the Convention concerning Forced or Compulsory Labour (C029), adopted at Geneva on 28 June 1930; the Convention concerning the Abolition of Forced Labour (C105), adopted at Geneva on 25 June 1957; the Convention concerning Minimum Age for Admission to Employment (C138), adopted at Geneva on 26 June 1973; the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (C182), adopted at
freedom of association and the effective recognition of the right to collective bargaining;
the elimination of all forms of forced or compulsory labour5;
the effective abolition of child labour;
the elimination of discrimination in respect of employment and occupation; and
a safe and healthy working environment.
Each Party shall make continued and sustained efforts to ratify the fundamental ILO Conventions to which it is not yet a party.
The Parties shall regularly exchange information on their respective situations with regard to the ratification of ILO Conventions and Protocols that are classified as up-to-date by the ILO.
Each Party shall effectively implement the ILO Conventions and Protocols ratified by Australia and the Member States respectively and classified as up-to-date by the ILO.
Recalling the ILO Declaration on Social Justice for a Fair Globalization, the Parties affirm that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage, and that labour standards should not be used for protectionist trade purposes.
Each Party shall seek to promote, including in its law and practice, the ILO Decent Work Agenda as set out in the Declaration on Social Justice for a Fair Globalization adopted by the ILC
Geneva on 17 June 1999; the Convention concerning Equal Remuneration (C100), adopted at Geneva on 29 June 1951; the Convention concerning Discrimination in Respect of Employment and Occupation (C111), adopted at Geneva on 25 June 1958; the Convention concerning Occupational Safety and Health and the Working Environment (C155), adopted at Geneva on 22 June 1981; and the Convention concerning the Promotional Framework for Occupational Safety and Health (C187), adopted at Geneva on 15 June 2006.
5 In this context, the Parties underline the importance of ratification of the Protocol of 2014 to the Forced Labour Convention, 1930, adopted by the ILC on 11 June 2014.
on 10 June 2008, as amended in 2022, in line with each Party's circumstances and priorities, in particular with regard to:
decent working conditions for all with regard to, inter alia, wages and earnings, working hours, other conditions of work and social protection; and
social dialogue on labour matters among workers and employers and their respective organisations, and with relevant government authorities.
Each Party shall, in line with ILO principles and its obligations under relevant ILO Conventions it has ratified:
adopt and implement measures and policies regarding occupational safety and health, including compensation in case of occupational injury or illness; and
maintain an effective labour inspection system.
The Parties recognise the importance of promoting decent working conditions of seafarers and fishers consistently with the relevant ILO Conventions that Australia and the Member States have respectively ratified, in particular the Maritime Labour Convention, adopted at Geneva on 23 February 2006, and the Work in Fishing Convention (No. 188), adopted at Geneva on 14 June 2007.
In implementing the provisions of this Article, the Parties recognise the importance of the ILO supervisory system and of promoting its effectiveness and furthering the ILO objectives.
The Parties shall work together to strengthen their cooperation on trade-related aspects of labour policies and measures, bilaterally, regionally and in international fora, as appropriate, including in the ILO. Such cooperation may cover, inter alia:
trade-related aspects of implementation of fundamental, priority and other up-to-date ILO Conventions;
trade-related aspects of the ILO Decent Work Agenda, including on the inter-linkages between trade and full and productive employment, labour market adjustment, core labour
standards, decent work in global supply chains, social protection and social inclusion, social dialogue and gender equality;
trade-related aspects of eliminating all forms of forced or compulsory labour, including forced or compulsory child labour; and
collection and use of labour statistics.
Trade and gender equality
The Parties recognise that inclusive trade policies contribute to advancing women's economic empowerment and gender equality, in line with Sustainable Development Goal 5 of the 2030 Agenda and the Joint Declaration on Trade and Women's Economic Empowerment on the Occasion of the WTO Ministerial Conference, held in Buenos Aires in December 2017. The Parties acknowledge the important contribution by women to economic growth through their participation in economic activity, including international trade. The Parties underline their intention to implement this Agreement consistent with gender equality and women's economic empowerment.
Each Party shall effectively implement its obligations under international agreements addressing gender equality or women's rights to which it is a party, including the Convention on the Elimination of all Forms of Discrimination Against Women, adopted by the UN General Assembly on 18 December 1979, noting in particular those provisions related to eliminating discrimination against women in economic life and in the field of employment. In this respect, the Parties reiterate their respective commitments pursuant to Article 18.3 (Multilateral labour standards and agreements) regarding the effective implementation of the ILO Conventions related to gender equality and the elimination of discrimination in respect of employment and occupation.
The Parties reiterate their commitments pursuant to Article 18.2 (Right to regulate and levels of protection) in relation to their respective law aimed at ensuring gender equality.
The Parties shall work together to strengthen their cooperation on trade-related aspects of gender equality policies and measures, bilaterally or in other relevant fora, as appropriate, including
through activities to improve the capacity and conditions for women, including workers, businesswomen and entrepreneurs, to access and benefit from the opportunities created by this Agreement. Such cooperation may cover, inter alia, exchange of information and best practices related to collection of disaggregated data, gender analysis of, and gender statistics related to trade.
The Parties agree on the importance of the analysis of gender equality implications of trade policy and of monitoring and assessing, in accordance with their domestic procedures and resources, the impact of the implementation of this Agreement on gender equality and opportunities provided for women in relation to trade.
Multilateral environmental agreements
The Parties recognise the importance of the UN Environment Assembly ("UNEA") of the UN Environment Programme ("UNEP") and multilateral environmental agreements (hereinafter referred to as "MEAs") to which they are party, as a response of the international community to global or regional environmental challenges, and underline the need to promote the mutual supportiveness between trade and environment policies.
In light of paragraph 1, each Party shall effectively implement the MEAs, and their protocols, to which it is a party.
The Parties shall regularly exchange information on their respective situations as regards the ratifications of MEAs, including their protocols and amendments, including through existing dialogues.
The Parties affirm the right of each Party to adopt or maintain measures to further the objectives of MEAs to which it is a party, consistently with this Agreement.6
The Parties recognise the importance of cooperation to protect the environment as they strengthen their trade and investment relations. The Parties shall work together to strengthen their
6 The Parties recall in particular point (c) of paragraph 3 of Article 23.1 (General exceptions).
cooperation on trade-related aspects of environmental policies and measures bilaterally, including through existing dialogues, regionally and in international fora, as appropriate. Such cooperation may cover, inter alia:
sharing information on policies, best practices and initiatives in order to promote a circular economy, sustainable production and consumption, and green growth, and in order to minimise the generation of waste and to abate pollution;
sharing information on policies, best practices and initiatives to reduce plastics waste, increase recycling rates and minimise plastic leakage into the environment;
sharing information on policies, practices and initiatives towards a sustainable ocean economy, underpinned by a healthy and resilient marine environment; and
other trade-related aspects of MEAs.
Trade and climate change
The Parties recognise the importance of taking urgent action to combat climate change and its impacts, and the role of trade in pursuing this objective, consistent with the UN Framework Convention on Climate Change, done at New York on 9 May 1992 (hereinafter referred to as "UNFCCC"), with the purpose and goals of the Paris Agreement, and with other MEAs and multilateral instruments in the area of climate change to which they are a party or member.
In light of paragraph 1, each Party shall effectively implement the UNFCCC and the Paris Agreement, including commitments with regard to its Nationally Determined Contributions. The commitment to effectively implement the Paris Agreement includes the obligation to refrain from any act or omission which materially defeats the object and purpose of the Paris Agreement.
In light of paragraph 1, each Party shall:
promote the mutual supportiveness of trade and climate policies and measures that contribute to the transition to a net zero and low greenhouse gas emission, sustainable circular economy and climate-resilient development; and
facilitate and promote trade and investment in goods and services of particular relevance for climate change mitigation and adaptation, such as renewable energy and energy-efficient products and services, including through addressing related non-tariff barriers or through policy frameworks conducive to the deployment of the best available technologies.
The Parties shall work together to strengthen their cooperation on trade-related aspects of climate change policies and measures, bilaterally, regionally and in international fora, as appropriate, including under the UNFCCC, the Paris Agreement, the Montreal Protocol on Substances that Deplete the Ozone Layer, done at Montreal on 16 September 1987 (hereinafter referred to as "Montreal Protocol") as well as in the WTO, and in the International Maritime Organization (hereinafter referred to as "IMO"). Such cooperation, including sharing information, may cover, inter alia:
actions to address climate change and transition to a net zero emissions economy including the implementation of the Paris Agreement, such as low emissions technologies, clean and renewable energy, energy efficiency, emission abatement policies and measures, including mitigating the risk of carbon leakage, sustainable transport, sustainable and climate-resilient infrastructure development and adaptation, emissions monitoring, reporting and verification;
supporting the development and adoption of ambitious and effective greenhouse gas emissions reduction measures by the IMO to be implemented by ships engaged in international trade; and
supporting an ambitious phase-out of ozone-depleting substances and phase-down of hydrofluorocarbons in accordance with the terms of the Montreal Protocol through:
measures to control their production, consumption and trade;
the introduction of environmentally friendly alternatives to them;
the updating of safety and other relevant standards; and
combating the illegal trade of substances regulated by the Montreal Protocol.
Trade and biological diversity
The Parties recognise the importance of conservation and the sustainable use of biological diversity in achieving sustainable development in a manner consistent with relevant MEAs and their protocols to which they are party, including the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992 (hereinafter referred to as "CBD"), its Protocols and the decisions adopted thereunder. The Parties acknowledge the role that trade can play in pursuing conservation and sustainable use of biological diversity.
The Parties recognise the importance of respecting, preserving and maintaining knowledge and practices of indigenous and local communities embodying traditional lifestyles that contribute to the conservation and sustainable use of biological diversity, and the role of international trade in supporting these objectives.
In light of paragraph 1, each Party shall:
promote and encourage the conservation and sustainable use of biological diversity;
promote trade in products derived from a sustainable use of biological resources in order to contribute to the conservation of biodiversity; and
take and maintain appropriate measures to conserve biological diversity when it is subject to pressures linked to trade and investment, in particular to prevent the spread of invasive alien species.
The Parties recognise the importance of cooperation to protect the environment and to promote sustainable development as they strengthen their trade and investment relations. Accordingly, the Parties shall cooperate, including by exchange of information and experiences, on
trade-related aspects of biodiversity policies and measures, bilaterally, regionally and in international fora, as appropriate, including in the CBD. Such cooperation may cover, inter alia:
initiatives and good practices concerning trade in natural resource-based products with the aim of conserving biological diversity;