Title
MALAYSIA-AUSTRALIA FREE TRADE AGREEMENT
Preamble
The Government of Malaysia and the Government of Australia (hereinafter referred to as "the Parties'),
REINFORCING the longstanding ties of friendship and cooperation between them;
BUILDING on their respective rights and obligations under the Marrakesh Agreement Establishing the World Trade Organization, the Agreement Establishing the ASEAN- Australia-New Zealand Free Trade Area and other multilateral, regional and bilateral agreements to which they are both parties;
RECOGNISING the important role and contribution of business in enhancing trade and investment among the Parties and the need to further promote and facilitate cooperation and utilisation of the greater business opportunities provided by this Agreement;
SEEKING to establish clear and mutually advantageous rules governing their trade and investment and further liberalise and expand bilateral trade and investment;
PROMOTING a transparent business environment that will assist enterprises in planning effectively and using resources efficiently;
Have agreed as follows:
Body
Chapter 1. Establishment of a Free Trade Area and General Definitions
Article 1.1. Establishment of a Free Trade Area
The Parties, consistent with Article XXIV of GATT 1994 and Article V of GATS, hereby establish a free trade area in accordance with the provisions of this Agreement.
Article 1.2. General Definitions
For the purposes of this Agreement, unless otherwise specified:
(a) AANZFTA Agreement means the Agreement Establishing the ASEAN- Australia-New Zealand Free Trade Area done at Cha-am, Petchaburi, Thailand, on 27 February 2009;
(b) Anti-Dumping Agreement means the Agreement on Implementation of Article VI of GATT 1994, in Annex 1A to the WTO Agreement;
(c) Agreement on Subsidies and Countervailing Measures means the Agreement on Subsidies and Countervailing Measures, in Annex 1A to the WTO Agreement;
(d) central level of government means:
(i) for Australia, the Commonwealth Government; and
(ii) for Malaysia, the federal level of government;
(e) Customs Administration means the competent authority that is responsible under the law of a Party for the administration of customs laws and regulations;
(f) customs duties means any customs or import duty or a charge of any kind, including any tax or surcharge, imposed in connection with the importation of a good, but does not include any:
(i) charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of Article Ill of GATT 1994, in respect of the like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part;
(ii) anti-dumping or countervailing duty applied consistently with the provisions of Article VI of GATT 1994, the Anti-Dumping Agreement, as may be amended and the Agreement on Subsidies and Countervailing Measures, as may be amended; or
(iii) fee or any charge commensurate with the cost of services rendered;
(g) Customs Valuation Agreement means the Agreement on Implementation of Article Vil of GATT 1994, in Annex 1A of the WTO Agreement;
(h) days means calendar days, including weekends and holidays;
(i) existing means in effect on the date of entry into force of this Agreement;
(j) GATS means the General Agreement on Trade in Services, in Annex 1B to the WTO Agreement;
(k) GATT 1994 means the General Agreement on Tariffs and Trade 1994, in Annex 1A to the WTO Agreement;
(I) good means any merchandise, product, article or material;
(m) HS means the Harmonized Commodity Description and Coding System established by the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983, as amended;
(n) IMF Articles of Agreement means the Articles of Agreement of the International Monetary Fund, adopted at the United Nations Monetary and Financial Conference, on July 22 1944, as amended;
(o) juridical person means any entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or government-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association (1);
(p) measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(q) natural person of a Party means a person who:
(i) for Australia, is an Australian citizen or permanent resident as defined in accordance with its laws and regulations; and
(ii) for Malaysia, is a citizen of Malaysia, or has been granted the right of permanent residence in the territory of Malaysia in accordance with its laws and regulations.
(r) originating good means a good that qualifies as originating under Chapter 3 (Rules of Origin);
(s) person means a natural person or a juridical person;
(t) personal data means information about an individual whose identity is apparent or can reasonably be ascertained from, the information;
(u) professional services means services, the supply of which requires specialised post-secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Competent Authority, but does not include services supplied by trades-persons or vessel and aircraft crew members;
(v) regional level of government means:
(i) for Australia, a state of Australia, the Australian Capital Territory, or the Northern Territory; and
(ii) for Malaysia, means a State of the Federation of Malaysia in accordance with the Federal Constitution of Malaysia;
(w) SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, in Annex 1A to the WTO Agreement;
(x) territory means:
(i) with respect to Australia, the territory of the Commonwealth of Australia:
(AA) excluding all external territories other than the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands, the Territory of Ashmore and Cartier Islands, the Territory of Heard Island and McDonald Islands, and the Coral Sea Islands Territory; and
(BB) including Australia's territorial sea, contiguous zone, exclusive economic zone, and continental shelf; and
(ii) with respect to Malaysia, its land territory, internal waters and territorial sea and any maritime area situated beyond the territorial sea which has been or might in future be designated under its domestic law, in accordance with international law, as an area within which Malaysia may exercise sovereign rights or jurisdiction with regard to the sea, seabed, the subsoil and the natural resources (2);
(y) TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, in Annex 1C to the WTO Agreement;
(z) WTO means the World Trade Organization; and
(aa) WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Chapter 2. Trade In Goods
Article 2.1. Objectives
The objectives of this Chapter are to promote closer integration between the economies of the Parties through:
(a) the reduction and/or elimination of customs duties on trade in goods between the Parties; and
(b) more generally, facilitating trade in goods between the Parties.
Article 2.2. Scope
This Chapter shall apply to trade in goods of a Party.
Article 2.3. Reduction and/or Elimination of Customs Duties
1. Each Party shall progressively reduce and/or eliminate its customs duties on originating goods of the other Party in accordance with Annex 1 (Schedules of Tariff Commitments).
2. Neither Party may increase an existing customs duty or introduce a new customs duty on imports of an originating good of the other Party, other than as permitted by this Agreement.
Article 2.4. Accelerated Tariff Reduction and/or Elimination
1. On the request of a Party, the Parties shall consult to consider accelerating the reduction and/or elimination of customs duties on originating goods as set out in Annex 1 (Schedules of Tariff Commitments).
2. An agreement by the Parties to accelerate the reduction and/or elimination of the customs duty on an originating good shall supersede any duty rate or staging category for such good set out in Annex 1 (Schedules of Tariff Commitments) on the entry into force of such an agreement in accordance with Article 21.6 (Amendments) of Chapter 21 (Final Provisions).
3. A Party may at any time unilaterally accelerate the reduction and/or elimination of customs duties on originating goods of the other Party set out in Annex 1 (Schedules of Tariff Commitments). A Party intending to do so shall inform the other Party before the new rate of customs duties takes effect, or, in any event, as early as practicable.
Article 2.5. National Treatment on Internal Taxation and Regulation
Each Party shall accord national treatment to the goods of the other Party in accordance with Article Ill of GATT 1994. To this end, Article Ill of GATT 1994 is incorporated into and shall form part of this Agreement, mutatis mutandis.
Article 2.6. Administrative Fees and Formalities
1. Each Party shall ensure, in accordance with Article VIII of GATT 1994, that all fees and charges of whatever character (other than customs duties, charges equivalent to an internal tax or other internal charges applied consistently with Article Ill:2 of GATT 1994, and antidumping and countervailing duties applied pursuant to Articles VI and XVI of GATT 1994 and the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures) imposed on or in connection with importation or exportation are limited in amount to the approximate cost of service rendered and do not represent indirect protection of domestic products or a taxation of imports or exports for fiscal purposes.
2. Neither Party may require consular transactions, including related fees and charges, in connection with the importation of any good of the other Party.
3. Each Party shall make available on the internet a current list of the fees and charges it imposes in connection with importation or exportation.
Article 2.7. Administration of Trade Regulations
1. Article X of GATT 1994 shall be incorporated into and shall form part of this Agreement, mutatis mutandis.
2. In accordance with its laws and regulations and to the extent possible, each Party shall make laws, regulations, decisions and rulings of the kind referred to in paragraph 1 available on the internet.
Article 2.8. Customs Valuation
The Parties shall apply the provisions of Article VII of GATT 1994 and the Customs Valuation Agreement for the purposes of determining the customs value of goods traded between the Parties.
Article 2.9. Transparency
In accordance with Article X of GATT 1994, each Party shall promptly make available in printed and/or, wherever possible, electronic form all laws, regulations, judicial decisions and administrative rulings of general application to imports or exports, including information pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefore, or affecting their sale, distribution, transportation, insurance, warehousing, inspection, exhibition, processing, mixing or other use, to enable the other Party and traders to become acquainted with them.
Article 2.10. Non-tariff Measures
1. Except as otherwise provided in this Agreement, neither Party may adopt or maintain any prohibition or restriction on the importation of any good of the other Party or on the exportation of any good destined for the territory of the other Party, except in accordance with Article XI of GATT 1994 and to this end Article XI of GATT 1994 is incorporated into and shall form part of this Agreement, mutatis mutandis.
2. The Parties shall not adopt or maintain any other non-tariff measure on the importation of any good of the other Party or on the exportation of any good destined for the territory of the other Party, except in accordance with its obligations under the WTO Agreement or in accordance with this Agreement.
3. The Parties shall ensure the transparency of its non-tariff measures mentioned in paragraph 2, and shall ensure that any such measures are not prepared, adopted or applied with the view to, or with the effect of, creating unnecessary obstacles to trade between the Parties.
4. The Parties shall consult on non-tariff measures covered by this Chapter with a view to considering the scope for additional means to enhance the facilitation of trade in goods between the Parties.
Article 2.11. Import Licensing
1. Each Party shall ensure that all automatic and non-automatic import licensing measures are implemented in a transparent and predictable manner, and applied in accordance with the Agreement on Import Licensing Procedures, in Annex 1A to the WTO Agreement (Import Licensing Agreement).
2. Each Party shall promptly notify the other Party of existing import licensing procedures. Thereafter, each Party shall notify any new import licensing procedures and any modification to its existing import licensing procedures, to the extent possible 60 days before it takes effect, but in any case no later than the effective date of the licensing requirement. The information in any notification under this Article shall be in accordance with Articles 5.2 and 5.3 of the Import Licensing Agreement.
3. Upon request of the other Party, a Party shall provide information within 30 days on the criteria employed by its licensing authorities in granting or denying import licenses. The importing Party shall also consider publication of such criteria.
4. The consultations provided for in paragraph 4 of Article 2.10 (Non-Tariff Measures) shall include elements in non-automatic import licensing procedures that may be impeding trade.
Article 2.12. Amendments to the Hs
1. The Parties shall mutually decide whether any revisions are necessary to implement Annex 1 (Schedules of Tariff Commitments) due to periodic amendments to the HS.
2. Where the Parties decide that revisions are necessary in accordance with paragraph 1, the Parties, through the FTA Joint Commission or a relevant subsidiary body established by it, shall endorse and promptly publish such revisions.
3. The provisions of this Article are without prejudice to the rights of the Parties to amend the Agreement in accordance with Article 21.6 (Amendments) of Chapter 21 (Final Provisions).
Article 2.13. Institutional Arrangements
The FTA Joint Commission, or a subsidiary body established by it, may consider any matters relating to the implementation of this Chapter and the implementation of Chapter 3 (Rules of Origin), Chapter 4 (Customs Procedures and Cooperation), Chapter 5 (Sanitary and Phytosanitary Measures), Chapter 6 (Standards, Technical Regulations and Conformity Assessment Procedures), and Chapter 7 (Trade Remedies), including:
(a) reviewing and monitoring the implementation and operation of these chapters;
(b) identifying areas to be improved for facilitating trade between the Parties;
(c) discussing any other issues related to these chapters; and
(d) reviewing implication of HS amendments.
Chapter 3. Rules of Origin
Article 3.1. Definitions
For the purposes of this Chapter:
(a) aquaculture means the farming of aquatic organisms including fish, molluscs, crustaceans, other aquatic invertebrates and aquatic plants, from seedstock such as eggs, fry, fingerlings and larvae, by intervention in the rearing or growth processes to enhance production such as regular stocking, feeding, or protection from predators;
(b) CIF value means the value of the good imported and includes the cost of insurance and freight up to the port or place of entry in the country of importation. The valuation shall be calculated in accordance with the Customs Valuation Agreement;
(c) FOB value means the value of the good free on board, independent of the means of transportation, at the port or site of final shipment abroad. The valuation shall be calculated in accordance with the Customs Valuation Agreement;
(d) fungible means materials that are identical or interchangeable as a result of being of the same kind and commercial quality, possessing the same technical and physical characteristics, and which once they are incorporated into the finished product cannot be distinguished from one another for origin purposes by virtue of any markings or mere visual examination;
(e) generally accepted accounting principles means the recognised consensus or substantial authoritative support in the territory of a Party, with respect to: the recording of revenues, expenses, costs, assets and liabilities; the disclosure of information; and the preparation of financial statements. These standards may encompass broad guidelines of general application as well as detailed standards, practices and procedures;
(f) indirect material means a material used in the production, testing or inspection of a good but not physically incorporated into the good, or a material used in the maintenance of buildings or the operation of equipment associated with the production of a good including:
(i) fuel and energy;
(ii) tools, dies and moulds;
(iii) spare parts and materials used in the maintenance of equipment and buildings;
(iv) lubricants, greases, compounding materials and other materials used in production;
(v) gloves, glasses, footwear, clothing, safety equipment and supplies;
(vi) equipment, devices and supplies used for testing or inspecting the good;
(vii) catalysts and solvents; and
(viii) any other materials that are not incorporated into the good but whose use in the production of the good can reasonably be demonstrated to be a part of that production;
(g) material means any good used or consumed in the production of another good, and physically incorporated into that good;
(h) originating material means a material that qualifies as originating in accordance with the relevant provisions of this Chapter;
(i) planted means the planting, cultivating and harvesting of plantation crops and its related products; and
(j) production means methods of obtaining goods including growing, planting, mining, harvesting, farming, raising, breeding, extracting, gathering, collecting, capturing, fishing, aquaculture, trapping, hunting, manufacturing, producing, processing or assembling a good.
Article 3.2. Originating Goods
For the purposes of this Agreement, a good shall be deemed to be an originating good of a Party if it:
(a) is a wholly obtained or produced good of one or both of the Parties;
(b) is produced entirely in the territory of one or both of the Parties exclusively from originating materials;
(c) satisfies all applicable requirements of Annex 2 (Product Specific Rules Schedule), as a result of processes performed entirely in the territory of one or both of the Parties by one or more producers; or
(d) otherwise qualifies as an originating good under this Chapter,
and meets all other applicable requirements of this Chapter.
Article 3.3. Wholly Obtained or Produced Goods
For the purposes of Article 3.2 (Originating Goods), a good that is wholly obtained or produced in the territory of one or both of the Parties means:
(a) mineral and other naturally occurring substances extracted or taken there;
(b) plants formed or naturally grown or planted there, or products obtained from such plants;
(c) live animals born and raised there;
(d) goods obtained from live animals there;
(e) goods obtained directly from hunting, trapping, fishing, gathering, capturing or aquaculture conducted there;
(f) goods (fish, shellfish, plant and other marine life) taken from the high seas by a vessel registered to a Party and flying its flag;
(g) goods obtained or produced on board factory ships registered to a Party and flying its flag from the goods referred to in subparagraph (f);
(h) goods taken by a Party, or a person of a Party, from the seabed or beneath the seabed beyond the Exclusive Economic Zone and adjacent Continental Shelf of that Party and beyond areas over which non- Parties exercise jurisdiction, under exploitation rights granted in accordance with international law;
(i) goods which are:
(i) waste and scrap derived from production and consumption there provided that such goods are fit only for the recovery of raw materials; or
(ii) used goods collected there provided that such goods are fit only for the recovery of raw materials; and
(j) goods produced or obtained entirely there, exclusively from goods referred to in subparagraphs (a) to (i) or from their derivatives.
Article 3.4. Cumulation
1. A good which is to be treated as originating pursuant to Article 3.2 (Originating Goods) and is used in the production of a good or goods in the territory of the other Party shall be considered to originate in the territory of that other Party.
2. Production that occurs in the territory of one or both of the Parties by one or more producers shall count as qualifying content in the origin determination of a good regardless of whether that production was sufficient to confer originating status on the material used in the production of that good.