(b) cost-justify its rates for those services;
(c) file a tariff for those services;
(d) connect its networks with any particular customer for the supply of those services; or
(e) conform with any particular standard or technical regulation of the telecommunications regulatory body for connecting to any other network, other than a public telecommunications network.
2. Notwithstanding paragraph 1, a Party may take the actions described in paragraph 1 to remedy a practice of a supplier of value-added services that the Party has found in a particular case to be anticompetitive in accordance with its laws and regulations, or to otherwise promote competition or safeguard the interests of consumers.
Article 9.15. Independent Regulatory Bodies
1. Each Party shall ensure that its telecommunications regulatory body is separate from and functionally independent of any supplier of public telecommunications networks or services. To this end, each Party shall ensure that its telecommunications regulatory body does not own equity or maintain an operating or management role in any such supplier.
2. Each Party shall ensure that the decisions and procedures of its telecommunications regulatory body are impartial with respect to all market participants and shall be made and implemented on a timely basis.
Article 9.16. Universal Service
Each Party shall administer any universal service obligation that it maintains in a transparent, non-discriminatory and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.
Article 9.17. Licensing Process
1. When a Party requires a supplier of public telecommunications networks or services to have a licence, the Party shall make publicly available:
(a) all the licensing criteria and procedures it applies;
(b) the period it normally requires to reach a decision concerning an application for a licence; and
(c) the terms and conditions of all licences in effect.
2. Each Party shall ensure that, on request, an applicant receives the reasons for the denial of, revocation of, refusal to renew, or imposition of conditions on, a licence.
Article 9.18. Allocation and Use of Scarce Telecommunications Resources
1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies, numbers, and rights of way, in an objective, timely, transparent and non-discriminatory manner.
2. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of frequencies allocated or assigned for specific government uses.
3. For greater certainty, a Party's measures allocating and assigning spectrum and managing frequency are not measures that are per se inconsistent with Article 7.4 (Market Access) either as it applies to Chapter 7 (Cross-Border Trade in Services) or through the operation of Article 7.1 (Scope) to Chapter 11 (Investment). Accordingly, each Party shall retain the right to establish and apply spectrum and frequency management policies that may have the effect of limiting the number of suppliers of public telecommunications networks or services, provided that it does so in a manner consistent with other provisions of this Agreement. This includes the ability to allocate frequency bands, taking into account current and future needs.
4. Each Party shall endeavour to allocate and assign spectrum for non-government telecommunications services in a transparent manner that considers the overall public interest, including the encouragement of the economically efficient use of the spectrum and competition among suppliers of telecommunications services, and recognising that a Party may encourage such activities through a variety of means, including through administrative incentive pricing, auctions, or unlicensed use.
Article 9.19. Enforcement
1. Each Party shall provide its telecommunications regulatory body with the authority to enforce the Party's measures relating to the obligations in Articles 9.3 through 9.13.
2. Such authority shall include the ability to impose, or seek from administrative or judicial bodies, effective sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), corrective orders, or the modification, suspension, or revocation of licences.
Article 9.20. Resolution of Telecommunications Disputes
Further to Articles 19.3 (Administrative Proceedings) and 19.4 (Review and Appeal), each Party shall ensure that:
Recourse
(a) suppliers of public telecommunications networks or services may have recourse to a telecommunications regulatory body or other relevant body of the Party to resolve disputes between suppliers of public telecommunications networks or services on a timely basis regarding measures relating to matters in Articles 9.3 through 9.13;
(b) suppliers of public telecommunications networks or services of the other Party that have requested interconnection with a major supplier in the Party's territory may have recourse, within a reasonable and publicly specified period after the supplier requests interconnection, to a telecommunications regulatory body or other relevant body to resolve disputes regarding the terms, conditions, and rates for interconnection with such major supplier; and
Judicial Review
(c) any service supplier whose legally-protected interests are adversely affected by a determination or decision of the Party's telecommunications regulatory body may obtain review of the determination or decision by an impartial and independent judicial authority of the Party. Neither Party shall permit the making of an application for judicial review to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body, unless the relevant judicial body otherwise determines.
Article 9.21. Transparency
Further to Article 19.1 (Publication), each Party shall ensure that:
(a) regulatory decisions, including the basis for such decisions, of its telecommunications regulatory body are promptly published or otherwise made available to all interested persons;
(b) its measures relating to public telecommunications networks or services are made publicly available, including:
(i) tariffs and other terms and conditions of service;
(ii) specifications of technical interfaces;
(iii) conditions for attaching terminal or other equipment to public telecommunications networks;
(iv) notification, permit, registration, or licensing requirements, if any;
(v) the amendment and adoption of measures concerning technologies or standards affecting access and use; and
(vi) procedures relating to judicial or administrative review; and
(c) its telecommunications regulatory body or other relevant body provides, on request by a supplier of public telecommunications networks or services of the other Party, a written explanation of reasons for any decision that denies access of the kind specified in Articles 9.9, 9.11 and 9.12.
Article 9.22. Measures Concerning Technologies and Standards
1. Neither Party shall prevent suppliers of public telecommunications networks or services or value-added services from having the flexibility to choose the technologies that they use to supply their services.
2. Notwithstanding paragraph 1, a Party may apply a measure that limits the technologies or standards that a supplier of public telecommunications networks or services or value-added services may use to supply its services, provided that the measure is designed to satisfy a legitimate public policy objective and is not prepared, adopted or applied in a manner that creates unnecessary obstacles to trade.
Article 9.23. Consultation with Industry
Each Party shall facilitate consultation with suppliers of public telecommunications networks or services of the other Party operating in its territory in the development of telecommunications policy, regulations and standards in a manner that is open to any participant in the telecommunications industry in the territory of that Party.
Article 9.24. Relation to International Organisations
The Parties recognise the importance of international standards for global compatibility and inter-operability of telecommunications networks and services and undertake to promote such standards through the work of relevant international organisations, including the International Telecommunication Union and the International Organization for Standardization.
Article 9.25. Committee on Telecommunications
1. For the purposes of the effective implementation and operation of this Chapter, the Committee on Telecommunications, established in accordance with Article 21.4 (Committees and Working Groups), shall comprise officials of each Party, including officials responsible for telecommunications.
2. The Committee shall:
(a) review and monitor the implementation and operation of this Chapter; and
(b) discuss any issues related to this Chapter, and other issues relevant to the telecommunications sectors of the Parties.
3. Further to Article 21.4 (Committees and Working Groups), the Committee shall, as appropriate, report its findings and the outcomes of its discussions to the Joint Committee.
4. The Committee shall meet as agreed by the Parties. 5. The Parties may invite, by mutual consent, representatives of relevant entities other than the governments of the Parties, including those from the private sector, with the necessary expertise relevant to the issues to be discussed, to attend meetings of the Committee.
Section E. Definitions
Article 9.26. Definitions
For the purposes of this Chapter:
co-location (physical) means physical access to space in order to install, maintain, orrepair equipment at premises owned or controlled and used by a major supplier to provide public telecommunications networks or services;
commercial mobile services means public telecommunications services supplied through mobile wireless means;
cost-oriented means based on cost, and may include a reasonable profit and may involve different cost methodologies for different facilities or services;
dialling parity means the ability of an end-user to use an equal number of digits to access the same type of public telecommunications service, regardless of the supplier of public telecommunications services chosen by such end-user and in a way that involves no unreasonable dialling delays;
end-user means a final consumer of or subscriber to a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
essential facilities means facilities of a public telecommunications network or service that:
(a) are exclusively or predominantly provided by a single or limited number of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to provide a service;
interconnection means linking with suppliers providing public telecommunications services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
leased circuits means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to, a user or users;
major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market; network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of that facility or equipment;
non-discriminatory means treatment no less favourable than that accorded to any other user of like public telecommunications networks or services in like circumstances;
number portability means the ability of end-users of public telecommunications services to retain, at the same location, the same telephone numbers when switching between suppliers of the same type of public telecommunications services;
public telecommunications network means telecommunications infrastructure used to provide public telecommunications services;
public telecommunications networks or services means public telecommunications networks, or public telecommunications services, or public telecommunications networks and services;
public telecommunications service means any telecommunications service that is offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information, and excludes value-added services;
service supplier of the other Party means a person of the other Party that seeks to supply or supplies a service, including a supplier of public telecommunications networks or services;
telecommunications means the transmission and reception of signals by any electromagnetic means;
telecommunications regulatory body means any body or bodies at the central level of government responsible for the regulation of telecommunications;
user means an end-user or a supplier of public telecommunications networks or services; and
value-added services means services that add value to telecommunications services through enhanced functionality. For Australia, these are telecommunications services for which suppliers add value to customer information by enhancing its form or content or by providing for its storage or retrieval. For Korea, these are services as defined in subparagraph 12 of Article 2 of the Telecommunications Business Act.
ANNEX 9-A. Suppliers of public telecommunications services
Korea
Article 9.4 shall not apply to Korea with respect to suppliers of international public telecommunications services.
ANNEX 9-B. Exemptions from section c: additional obligations relating to major suppliers of public telecommunications networks or services
Korea
1. Major suppliers shall be exempt from the application of the obligations specified in Articles 9.8, 9.9.1(a), 9.9.1(e), 9.11 and 9.12 to the extent that the supplier of public telecommunications networks or services of the other Party is a non-facilities based supplier.
2. Notwithstanding Articles 9.9.1(b), 9.9.1(d) and 9.10, Korea may permit major suppliers to offer rates, terms, and conditions to non-facilities based suppliers of public telecommunications services that are discriminatory compared to the rates, terms and conditions offered to facilities- based suppliers of public telecommunications services. For greater certainty, this provision does not derogate from Article 9.20, and non-facilities based suppliers of public telecommunications services may have recourse to the telecommunications regulatory body or other relevant body regarding disputes over such rates, terms, and conditions.
3. Consistent with Article 5.3 of the Telecommunications Business Act, a "non-facilities based supplier" is a licensed supplier of public telecommunications services that does not own wire or wireless lines or other transmission facilities, but may own a switch, router, or multiplexer, and supplies its public telecommunications services through transmission facilities of a licensed facilities-based supplier.
4. Major suppliers shall be exempt from the application of the obligations specified in Articles 9.5, 9.7, 9.8 and Articles 9.10, 9.11 and 9.12 to the extent that they are supplying commercial mobile services.
Chapter 10. Movement of Natural Persons
Article 10.1. Scope
1. This Chapter shall apply to measures affecting the movement of natural persons of a Party into the territory of the other Party under any of the categories referred to in Annex 10-A.
2. This Chapter reflects the mutually beneficial trading relationship between the Parties, the Parties' mutual desire to facilitate temporary entry for business persons on a reciprocal basis and to establish transparent criteria and procedures for temporary entry, and the need to ensure border security and to protect the domestic labour force and permanent employment in their respective territories.
3. This Chapter shall not apply to measures affecting natural persons of a Party seeking access to the employment market of the other Party, nor to measures regarding citizenship, or residence or employment on a permanent basis.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under this Chapter.
5. The sole fact of requiring persons to meet eligibility requirements prior to entry into the territory of a Party shall not be regarded as nullifying or impairing the benefits accruing to the other Party under this Chapter.
Article 10.2. Relation to other Chapters
Except for this Chapter, Chapters 1 (Initial Provisions and Definitions), 20 (Dispute Settlement) to the extent permitted by Article 10.6, 21 (Institutional Provisions), 22 (General Provisions and Exceptions) and 23 (Final Provisions) and Articles 19.1 (Publication), 19.2 (Provision of Information) and 19.3 (Administrative Proceedings), nothing in this Agreement shall impose any obligation on a Party regarding its immigration measures within the scope of this Chapter.
Article 10.3. Grant of Temporary Entry
1. Each Party shall set out in Annex 10-A the specific commitments it undertakes for each of the categories of natural persons specified therein.
2. Each Party shall grant temporary entry to natural persons of the other Party in accordance with this Chapter, including the terms of the categories in Annex 10-A, provided that the natural persons comply with the relevant laws and regulations of the granting Party applicable to temporary entry, and any measures taken in accordance with them.
3. Neither Party shall impose or maintain any limitations on the total number of visas to be granted to natural persons of the other Party under this Chapter, unless otherwise specified in Annex 10-A.
10.4. Requirements and procedures relating to the movement of natural persons
1. Each Party shall endeavour to establish or maintain immigration formalities, which can be granted prior to arrival in its territory, to allow natural persons covered by this Chapter entry into and temporary stay in its territory.
2. Each Party shall expeditiously process complete applications for immigration formalities received from natural persons of the other Party covered by this Chapter, including further immigration formality requests or extensions thereof.
3. Each Party shall, on request and within a reasonable period after a complete application by a natural person of the other Party covered by this Chapter requesting temporary entry is lodged, notify the applicant of:
(a) receipt of the application;
(b) the status of the application; and
(c) the decision concerning the application, including:
(i) if approved, the period of stay and other conditions; or
(ii) if refused, the reasons for refusal and any avenues for review.
4. Each Party shall ensure that fees charged by its competent authorities on applications for immigration formalities do not in themselves represent an unjustifiable impediment to the movement of natural persons of the other Party under this Chapter.
5. Each Party shall endeavour to simplify the procedures and requirements relating to the movement of natural persons of the other Party, within the framework of its laws and regulations.
Article 10.5. Online Lodgement and Processing
Each Party shall endeavour, to the extent possible, to provide facilities for online lodgement and processing of immigration formalities.
Article 10.6. Dispute Settlement
1. The Parties shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect the operation of this Chapter.
2. The dispute settlement procedures provided in Chapter 20 (Dispute Settlement) shall not apply to this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) the natural persons of a Party concerned have exhausted administrative remedies, where available, regarding the particular matter.
3. The remedies referred to in paragraph 2(b) shall be deemed to be exhausted if a final determination in the matter has not been issued within one year after the date of the institution of proceedings (not including any review or appeal) for such remedy, and the failure to issue such a determination is not attributable to delays caused by the natural persons concerned.
Article 10.7. Transparency
Further to Articles 19.1 (Publication) and 19.2 (Provision of Information), each Party shall:
(a) publish or otherwise make publicly available no later than six months after the date of entry into force of this Agreement, explanatory material regarding the requirements for temporary entry under this Chapter, in such a manner as will enable natural persons of the other Party to become acquainted with them; and
(b) establish or maintain appropriate mechanisms to respond to enquiries from interested persons regarding measures relating to the temporary entry of natural persons covered by this Chapter.
Article 10.8. Definitions
For the purposes of this Chapter:
immigration formalities means a visa, permit or any other document or electronic authority granting a natural person of a Party temporary entry to the other Party;
natural person of a Party means a natural person who under the law of the Party:
(a) for Australia, is a citizen or a permanent resident of Australia; and
(b) for Korea, is a national or a permanent resident of Korea; and
temporary entry means entry by a natural person covered by this Chapter, without the intent to establish permanent residence.
ANNEX 10-A. Specific commitments on the movement of natural persons
Section A. Australia's Specific Commitments
1. Australia requires a natural person of Korea seeking temporary entry to its territory under the provisions of this Chapter and this Annex to obtain appropriate immigration formalities prior to entry. Grant of temporary entry in accordance with this Annex is contingent on meeting eligibility requirements contained within Australia's migration law and regulations, as applicable at the time of an application for grant of temporary entry. Eligibility requirements for grant of temporary entry in accordance with paragraphs 5 through 11 include, but are not limited to, employer nomination and occupation requirements.
Business Visitors of Korea
2. Entry and temporary stay shall be granted to business visitors of Korea referred to in paragraph 4(a) for a period of up to 90 days.
3. Entry and temporary stay shall be granted to business visitors of Korea referred to in paragraph 4(b) for a period of up to six months, with the possibility of further stay.
4. A business visitor of Korea means a natural person of Korea who is:
(a) a natural person seeking to travel to Australia for business purposes, including for investment purposes, whose remuneration and financial support for the duration of the visit must be derived from sources outside Australia, and who must not engage in making direct sales to the general public or in supplying goods or services themselves; or
(b) aservice seller, who is a natural person not based in Australia whose remuneration and financial support for the duration of the visit must be derived from sources outside Australia, and who is a sales representative of a service supplying enterprise, seeking temporary entry for the purpose of negotiating for the sale of services or entering into agreements to sell services for that service supplying enterprise.
Intra-Corporate Transferees of Korea
5. Entry and temporary stay shall be granted to intra-corporate transferees of Korea referred to in paragraph 7(a) for a period of up to four years, with the possibility of further stay.
6. Entry and temporary stay shall be granted to intra-corporate transferees of Korea referred to in paragraph 7(b) for a period of up to two years, with the possibility of further stay.
7. An intra-corporate transferee of Korea means an employee of an enterprise of Korea established in Australia through a branch, subsidiary or affiliate which is lawfully and actively operating in Australia, who is transferred to fill a position in the branch, subsidiary or affiliate of the enterprise in Australia, and who is:
(a) an executive or a senior manager, who is a natural person responsible for the entire or a substantial part of the operations of the enterprise in Australia, receiving general supervision or direction principally from higher-level executives, the board of directors or stockholders of the enterprise, including directing the enterprise or a department or subdivision of it; supervising and controlling the work of other supervisory, professional or managerial employees; and having the authority to establish goals and policies of the department or subdivision of the enterprise; or
(b) a specialist, who is a natural person with advanced trade, technical or professional skills and experience who must be assessed as having the necessary qualifications, or alternative credentials accepted as meeting Australia's standards, for that occupation, and who must have been employed by the employer for not less than two years immediately preceding the date of the application for temporary entry.
Independent Executives of Korea