2076 - Queensland Parliament

Premier of Queensland
For reply please quote : IGR/GC - TF/10/6571- DOC/10/32937
13 APR 7010
Mr Neil Laurie
Clerk of the Parliament
Parliament House
George Street
BRISBANE QLD 4000
Executive Building
loo George Street Brisbane
PO Box 15185 City East
Queensland 4002 Australia
Telephone +61 7 3224 4500
Facsimile +617 3221 3631
Email [email protected]
Website www.thepremier.gld.gov.au
In accordance with parliamentary procedures , I wish to table correspondence from the
Commonwealth Parliament 's Joint Standing Committee on Treaties (JSCOT) in the
Legislative Assembly.
The attached material for tabling includes:
o
a copy of the letter from the Chair of the JSCOT regarding two proposed
international treaty actions tabled in both houses of Federal Parliament on
9 and 10 March 2010
the accompanying National Interest Analyses for the proposed treaty actions
listed in the letter.
Thank you for your assistance in arranging the tabling of this material as soon as
possible.
Yours sincerely
ANNA BLIGH MP
PREMIER OF QUEE
,.r
Government
JOINT STANDING COMMITTEE ON TREATIES
Parliament House, Canberra ACT 26001 Phone: (02) 6277 40021 Fax: (02) 6277 22191 Email: [email protected]
11 March 2010
The Hon Anna Bligh MP
Premier of Queensland
Parliament House
BRISBANE QLD 4002
Dear Premier
Treaties tabled on 9 and 10 March 2010
I am writing to advise of the most recent tabling of treaties, and to invite comments
as part of the review process undertaken by the Commonwealth Parliament's Joint
Standing Committee on Treaties.
Before action is taken to bind Australia to the terms of treaties, the Treaties
Committee considers and reports on whether the proposals are in Australia's
national interest. The Committee is currently inquiring into the following proposed
treaties tabled in both Houses of the Parliament this week:
Treaty tabled on 9 March 2010
®
Agreement between Australia and the Czech Republic on Social Security
(Canberra, 16 September 2009)
Treaty tabled on 10 March 2010
®
Exchange of Letters Amending the Agreement between the Government of
Australia and the Government of New Zealand Concerning a Joint Food
Standards System (Canberra, 3 March 2010)
The subject matter of international treaties can be of interest to State and Territory
Governments and Parliaments and we are keen to provide an opportunity for
comment on any issues arising from proposed treaties. Treaty texts and copies of the
National Interest Analysis (which accompany each treaty tabled) are available from
the Committee's website at
htt-p://www.al2h.gov.au/house/-committee/-jsct/ -10 march2010/tor.htm.
--9
As the Treaties Committee has periods of 15 and 20 sitting days in which to complete
its reviews, it would be helpful if you could forward any comments you might wish
to make to the Committee Secretariat by Friday, 9 April 2010. If substantial issues of
concern are raised about any of the proposed treaties and the Committee's usual
period of review is extended, it may be possible to arrange for a submission to be
lodged after this date. Your comments may be accepted as a submission to the
review and authorised for publication,
Should your officials have any questions about the treaties or about our review
procedures, they should contact Jerome Brown, A/g Committee Secretary on
telephone (02) 6277 4002, facsimile (02) 6277 2219 or e-mail [email protected].
Yours faithfully
Kelvin Thomson MP
Chair
' j.D
, ^ w 2010
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
AGREEMENT BETWEEN AUSTRALIA AND THE CZECH REPUBLIC ON
SOCIAL SECURITY
(Canberra , 16 September 2009)
Not yet in force
[2009] ATNIF 27
AGREEMENT BETWEEN AUSTRALIA AND THE CZECH REPUBLIC ON
SOCIAL SECURITY
Australia and the Czech Republic (hereinafter "the Contracting States"),
Wishing to strengthen the existing friendly relations between the two Contracting States,
and
Being desirous of regulating the relationship between them with respect to social security
benefits and coverage,
Have agreed as follows:
PART I
GENERAL PROVISIONS
Article 1
Definitions
1.
In this Agreement:
(a)
"benefit" means a benefit, pension or allowance as well as any additional amount,
increase or supplement payable under the legislation of that Contracting State but,
for Australia, does not include any benefit, payment or entitlement under the law
concerning the superannuation guarantee;
(b)
"Competent Authority" means,
in relation to Australia, the Secretary to the Commonwealth Department
responsible for the legislation specified in subparagraph 1(a)(i) of Article 2,
except in Part II of the Agreement, and other Parts of the Agreement as they affect
that Part, where it means the Commissioner of Taxation or an authorised
representative of the Commissioner, and,
in relation to the Czech Republic, the Ministry responsible for the legislation in
subparagraph 1 (b) of Article 2;
(c)
"Competent Institution" means the institution or agency which has the task of
implementing the applicable legislation;
(d)
"legislation" means,
in relation to Australia, the laws specified in subparagraph l (a)(i) of Article 2
except in Part II of the Agreement, and other Parts of the Agreement as they affect
that Part, where it means the laws specified in subparagraph 1(a)(ii) of Article 2,
and,
in relation to the Czech Republic, the legislation specified in subparagraph 1(b)
of Article 2;
(e)
"creditable period " means a period of insurance, substitute period and equivalent
period completed under the legislation of the Czech Republic;
(f)
"period of Australian working life residence" means a period defined as such in
the legislation of Australia but does not include any period deemed pursuant to
Article 11 to be a period in which that person was an Australian resident.
In the application by a Contracting State of this Agreement, any term not defined shall,
2.
unless the context otherwise requires, have the meaning which it has under the legislation of that
Contracting State.
Article 2
Legislative Scope
1.
This Agreement shall apply to the following legislation:
(a)
(b)
in relation to Australia:
(i)
the Acts forming the social security law in so far as the law provides for,
applies to or affects age pension;
(ii)
the law concerning the superannuation guarantee (which at the time of
signature of this Agreement is contained in the Superannuation Guarantee
(Administration) Act 1992, the Superannuation Guarantee Charge Act
1992 and the Superannuation Guarantee (Administration) Regulations);
in relation to the Czech Republic: the Pension Insurance Act and related acts.
Notwithstanding the provisions of paragraph 1, unless otherwise provided in this
2.
Agreement, the legislation referred to in this Article shall not include treaties or other
international agreements on social security that may be concluded between one Contracting State
and a third party.
Except as provided in paragraph 4, this Agreement shall also apply to future legislation
3.
which amends, supplements or replaces the legislation specified in paragraph 1.
This Agreement shall not apply to future legislation which extends the existing legislation
4.
of either Contracting State to new categories of beneficiaries or new benefits unless the
Competent Authorities of both Contracting States agree otherwise.
2
Article 3
Personal Scope
This Agreement shall apply to any person who:
(a)
(b)
is or has been an Australian resident, or is or has been subject to the legislation of
Australia; or
is or has been subject to the legislation of the Czech Republic
and to other persons in regard to the rights they derive from the person described above.
Article 4
Equality of Treatment
All persons to whom this Agreement applies shall be treated equally by a Contracting State in
regard to rights and obligations which arise under the social security law of Australia in so far as
the law applies to or affects the age pension, the legislation of the Czech Republic or by virtue of
this Agreement.
Article 5
Export of Benefits
Unless otherwise provided in this Agreement, benefits of one Contracting State, when
1.
payable by virtue of this Agreement, shall be payable to persons who are residents of, or in, the
territory of either Contracting State.
Where the legislation of a Contracting State provides that a benefit is payable in a third
2.
State, then that benefit, when payable by virtue of this Agreement, is also payable in that third
State.
PART II
PROVISIONS ON COVERAGE
Article 6
Application of this Part
This Part only applies if an employee and/or the employer of the employee would, apart from
this Part, be subject to the legislation of both Contracting States in respect of work of the
employee or remuneration paid for the work.
3
Article 7
Avoidance of Double Coverage
Unless otherwise provided in this Part, if an employee works in the territory of one
1.
Contracting State, the employer of the employee and the employee shall in respect of the work
and the remuneration paid for the work be subject only to the legislation of that Contracting
State.
An employee employed in the territory of one Contracting State by an employer having a
2.
place of business in that territory, who is posted to work for that employer, or a related entity, in
the territory of the other Contracting State, shall be subject to the legislation of only the first
Contracting State, as if the employee were employed in its territory, provided that the period of
posting is not expected to exceed 5 years. If this period exceeds 5 years, paragraph 1 applies
from that time. For the purpose of this paragraph, the related entity is a member of the same
wholly or majority owned group as the employer.
If an employee is working in the employment of an employer on a ship or aircraft in
3.
international traffic, the employer of the employee and employee shall in respect of the
employment and the remuneration paid for that employment be subject only to the legislation of
the Contracting State in which the employee is a resident.
Article 8
Diplomatic and Consular Relations and Government Employment
This Agreement shall not affect the application of the provisions of the Vienna
1.
Convention on Diplomatic Relations of 18 April 1961, or the Vienna Convention on Consular
Relations of 24 April 1963.
Employees who are sent by the Government of one Contracting State to work temporarily
2.
in the territory of the other Contracting State but to whom the Conventions mentioned in
paragraph 1 of this Article do not apply shall be subject to the legislation of only the first
Contracting State. For the purpose of this paragraph, employment by the Government of a
Contracting State includes employment by an instrumentality thereof and also, in relation to
Australia, a political subdivision or local authority of Australia.
Article 9
Exceptions
At the request of an employee and/or an employer, the Competent Authorities of the two
Contracting States, or agencies designated by them, may agree to grant an exception to the
provisions of this Part with respect to particular persons or categories of persons.
4
PART III
PROVISIONS RELATING TO BENEFITS
Chapter 1
Australian Benefits
Article 10
Residence or Presence in the Czech Republic or a Third State
Where a person would be qualified under the legislation of Australia or by virtue of this
Agreement for an Australian benefit except for not being an Australian resident and in Australia
on the date on which the claim for that benefit is lodged, but:
(a)
is an Australian resident or a resident of the Czech Republic or a third State with
which Australia has concluded an agreement on social security which includes
provision for cooperation in the acceptance of claims for benefits and which
includes that category of benefit; and
(b)
is in Australia, or the Czech Republic or that third State,
that person, so long as he or she has been an Australian resident at some time, shall be deemed,
for the purpose of lodging that claim, to be an Australian resident and in Australia on that date.
Article 11
Totalisation
Where a person to whom this Agreement applies has claimed an Australian benefit under
1.
this Agreement and has accumulated:
(a)
a period as an Australian resident that is less than the period required to qualify
that person, on that ground, under the legislation of Australia for that benefit; and
(b)
a period of Australian working life residence equal to or greater than the period
identified in accordance with paragraph 4 for that person; and
(c)
a creditable period completed under the legislation of the Czech Republic;
then, for the purposes of a claim for that Australian benefit, that creditable period completed
under the legislation of the Czech Republic shall be deemed to be a period in which that person
was an Australian resident only for the purposes of meeting any minimum qualifying periods for
that benefit set out in the legislation of Australia.
2.
For the purposes of paragraph 1, where a person:
5
(a)
has been an Australian resident for a continuous period which is less than the
minimum continuous period required by the legislation of Australia for
entitlement of that person to a benefit; and
(b)
has accumulated a creditable period completed under the legislation of the Czech
Republic in two or more separate periods that equals or exceeds in total the
minimum period referred to in subparagraph (a);
the total of the creditable periods completed under the legislation of the Czech Republic shall be
deemed to be one continuous period.
For the purposes of this Article, where a period by a person as an Australian resident and
3.
a creditable period completed under the legislation of the Czech Republic coincide, the period of
coincidence shall be taken into account once only by Australia as a period as an Australian
resident.
The minimum period of Australian working life residence to be taken into account for the
4.
purposes of paragraph 1 shall be as follows:
(a)
for the purposes of an Australian benefit that is payable to a person who is not an
Australian resident, the minimum period required shall be 12 months, of which at
least six months must be continuous; and
(b)
for the purposes of an Australian benefit that is payable to an Australian resident,
there shall be no minimum period.
Article 12
Calculation of Benefits
Subject to paragraph 2, where an Australian benefit is payable only by virtue of this
1.
Agreement to a person who is outside Australia, the rate of that benefit shall be determined
according to the legislation of Australia.
Paragraph 1 shall continue to apply for 26 weeks where a person comes temporarily to
2.
Australia.
Subject to paragraph 4, where an Australian benefit is payable only by virtue of this
3.
Agreement to a person who is in Australia, the rate of that benefit shall be determined by:
(a)
calculating that person's income according to the legislation of Australia but
disregarding in that calculation any Czech Republic benefit which that person or
the partner of that person is entitled to receive if applicable; and
(b)
deducting the amount of the Czech Republic benefit which that person is entitled
to receive from the maximum rate of that Australian benefit; and
6
(c)
applying to the remaining benefit obtained under subparagraph (b) the relevant
rate calculation set out in the legislation of Australia, using as the person's income
the amount calculated under subparagraph (a).
Paragraph 3 shall continue to apply for 26 weeks where a person departs temporarily
4.
from Australia.
Where a member of a couple is, or both that person and his or her partner are, entitled to
5.
a Czech Republic benefit or benefits, each of them shall be deemed, for the purposes of this
Article and of the legislation of Australia, to be in receipt of one half of either the amount of that
benefit or the total of both of those benefits, as the case may be.
Australian age pension shall include additional amounts for dependent children, if
6.
applicable, when payable outside Australia under this Agreement. Other additional amounts or
supplements to a benefit shall be payable outside Australia only for the period specified in the
Social Security Act 1991. The reference to the Social Security Act 1991 includes any laws that
subsequently amend, supplement or replace that Act.
Chapter 2
Czech Republic Benefits
Article 13
Totalisation
Unless otherwise provided in this Agreement, if a person is not eligible for a benefit
1.
because he or she has not completed sufficient creditable periods under the legislation of the
Czech Republic, the eligibility of that person for that benefit shall be determined by totalising
these creditable periods and periods of Australian working life residence, provided those periods
do not overlap.
For eligibility for the benefit, the Competent Institution of the Czech Republic shall take
2.
into account also creditable periods completed under the legislation of a third State, with which
the Czech Republic is bound by social security instruments which provide for the totalising of
creditable periods.
7
Article 14
Calculation of benefits
If, under the legislation of the Czech Republic, the conditions for entitlement to benefits
1.
are satisfied without taking into account periods of Australian working life residence, the
Competent Institution of the Czech Republic shall determine the benefit:
(a)
on the basis of the creditable periods completed exclusively under its legislation,
and at the same time
(b)
according to the rules provided by paragraph (2), with the exception when the result
of this calculation is equal to or lower than the result of the calculation under
subparagraph (a).
If, under the legislation of the Czech Republic, the right to benefits can be acquired only
2.
with regard to periods of Australian working life residence, or creditable periods completed
under the legislation of a third State, then the Competent Institution of the Czech Republic shall:
(a)
calculate the theoretical amount of the benefit which could have been claimed if
all these periods had been completed under the legislation of the Czech Republic
and
(b)
then - on the basis of the theoretical amount calculated in accordance with subparagraph (a) - shall determine the amount of the benefit payable by applying the
ratio of the duration of the creditable periods completed under the legislation of
the Czech Republic to the total combined periods.
In order to determine the basis for calculation of the benefit, the Competent Institution of the
Czech Republic shall - in applying the provision of subparagraph (a) of this paragraph - take
into account only income gained during the creditable periods completed under the legislation
which it applies. This income - indexed according to Czech legislation - will be considered as
gained during the periods that are taken into account for the calculation of the theoretical amount
of the benefit.
The person concerned shall be entitled to the highest amount calculated in accordance
3.
with paragraphs 1 and 2 from the Competent Institution of the Czech Republic.
If the creditable period completed under the legislation of the Czech Republic is less than
4.
12 months and does not result in any right to benefits, then the Competent Institution of the
Czech Republic will not award the benefit.
Events and facts that have legal effect on entitlement, reduction, suspension or benefit
5.
amount, and which occurred in the territory of Australia, shall be taken into account as if they
had taken place in the territory of the Czech Republic. However, the Czech Competent
8
Authority may, in the interest of categories of beneficiaries, limit the application of this
provision.
A person whose disability began before reaching the age of 18 and who has not
6.
participated in the insurance scheme for the necessary period shall have the right to a disability
benefit provided this person is a resident of the Czech Republic. This condition shall also apply
to invalidity and survivors' benefits, where such entitlement, or benefits from which they are
derived, can be acquired only with regard to provisions of this Agreement.
PART IV
MISCELLANEOUS AND ADMINISTRATIVE PROVISIONS
Article 15
Administrative Arrangement
The Competent Authorities of the Contracting States shall establish, by means of an
1.
Administrative Arrangement, the measures necessary for the implementation of this Agreement.
The Competent Authorities shall appoint liaison bodies which are to be listed in the
2.
Administrative Arrangement.
Article 16
Lodgement of Documents
A claim, notice or appeal concerning a benefit, whether payable by virtue of this
1.
Agreement or otherwise, may be lodged in the territory of either Contracting State.
For the purposes of determining the right to a benefit, the date on which a claim, notice or
2.
appeal referred to in paragraph 1 is lodged with the Competent Institution of one Contracting
State shall be considered as the date of lodgement of that document with the Competent
Institution of the other Contracting State. The Competent Institution with which a claim, notice
or appeal is lodged shall refer it without delay to the Competent Institution of the other
Contracting State.
A claim for a benefit from one Contracting State shall be considered as a claim for the
3.
corresponding benefit from the other Contracting State so long as the claimant has indicated in
that claim that there is, or there was, an affiliation with the social security system of that other
Contracting State and provided the other Contracting State receives this request within 12
months.
The reference in paragraph 1 to an appeal is a reference to an appeal that may be made to
4.
an administrative body established by, or administratively for the purposes of, the respective
legislation.
9
Article 17
Exemption from Fees and Authentication
1,
Where the laws of a Contracting State provide that any document which is submitted to
the Competent Authority or the Competent Institution of that Contracting State shall be
exempted, wholly or partly, from fees or charges, including consular and administrative fees, the
exemption shall also apply to corresponding documents which are submitted to the Competent
Authority or the Competent Institution of the other Contracting State in the application of this
Agreement.
2.
Documents and certificates which are presented for the purposes of this Agreement shall
be exempted from requirements for authentication by diplomatic or consular authorities.
Article 18
Payment of Benefits
1.
If a Contracting State imposes legal or administrative restrictions on the transfer of
currency outside of its territory, that Contracting State shall implement measures as soon as
practicable to guarantee the rights to payment and delivery of benefits payable under the
legislation of that Contracting State or by virtue of this Agreement. The measures shall operate
retrospectively to the time when the restrictions were imposed.
2.
The Competent Institutions of the Contracting States shall pay their benefits under this
Agreement without any deduction for their administrative expenses.
Article 19
Exchange of Information and Mutual Assistance
The Competent Authorities and Competent Institutions responsible for the application of
1.
this Agreement shall to the extent permitted by their national laws:
(a)
communicate to each other any information necessary for the application of this
Agreement or the social security law of Australia or the legislation of the Czech
Republic;
(b)
provide assistance to one another, including any information necessary, with
regard to the determination or payment of any benefit under this Agreement or
under the legislation to which this Agreement applies as if applying their own
legislation; and
(c)
communicate to each other, as soon as possible, all information about the
measures taken by them for the application of this Agreement or about changes in
their respective legislation insofar as these changes affect the application of this
Agreement.
10
The assistance referred to in paragraph I shall be provided free of charge, subject to any
2.
arrangement reached between the Competent Authorities and Competent Institutions for the
reimbursement of certain types of expenses that are specified in the Administrative Arrangement
pursuant to Article 15.
In no case shall the provisions of paragraph I be construed so as to impose on the
3.
Competent Authority or Competent Institution of a Contracting State the obligation:
(a)
to carry out administrative measures at variance with the laws or the
administrative practice of that or the other Contracting State; or
(b)
to supply particulars which are not obtainable under the laws or in the normal
course of the administration of that or the other Contracting State.
Article 20
Protection of Personal Data
Unless otherwise provided under the national laws of a Contracting State, any information about
an individual which is transmitted in accordance with this Agreement to a Competent Authority
or a Competent Institution of that Contracting State by a Competent Authority or a Competent
Institution of the other Contracting State is confidential and shall be used only for the purposes
of implementing this Agreement and the legislation to which this Agreement applies.
Article 21
Language
In the application of this Agreement, the Competent Authority and the Competent
1.
Institution of a Contracting State may communicate with the other in any of the official
languages of the Contracting States.
A claim, appeal or other document may not be rejected by a Competent Authority or
2.
Competent Institution solely because it is in the language of the other Contracting State.
Article 22
Resolution of Disputes
Any disagreement regarding the interpretation or application of this Agreement shall be resolved
by consultation between the Competent Authorities.
Article 23
Review of Agreement
Where a Contracting State requests the other to meet to review the Agreement, the Contracting
States shall meet for that purpose as soon as possible.
11
PART V
TRANSITIONAL AND FINAL PROVISIONS
Article 24
Transitional Provisions
This Agreement shall not establish any right to a benefit for any period before the date of
1.
the entry into force of this Agreement.
In determining entitlement to a benefit under this Agreement, periods as an Australian
2.
resident, periods of Australian working life residence and creditable periods completed under the
legislation of the Czech Republic before the entry into force of this Agreement shall also be
taken into consideration.
Determinations concerning entitlement to benefits which were made before the entry into
3.
force of this Agreement shall not affect rights arising under it.
Benefits determined before the entry into force of this Agreement may be newly
4.
determined upon application.
Articles 7 (2) and 8 (2) apply from the date of entry into force of this Agreement, even if
5.
the person was sent by his or her employer before this date. For this purpose, the period of
secondment is taken to start on the entry into force of this Agreement.
Article 25
Ratification and Entry into Force
1.
This Agreement is subject to ratification.
This Agreement shall enter into force on the first day of the third month following the
2.
month in which notes are exchanged by the Contracting States through the diplomatic channel
notifying each other that all matters as are necessary for the entry into force of this Agreement
have been finalised.
Article 26
Duration , Modification and Termination
1.
This Agreement shall remain in force without any limitation on its duration.
This Agreement may be amended in the future by supplementary agreements which, from
2.
their entry into force, shall be considered an integral part of this Agreement.
12
This Agreement shall remain in force and effect until the last day of the twelfth month
3.
following the month in which either Contracting State gives the other Contracting State written
notification through diplomatic channels of its termination.
If this Agreement is terminated, rights acquired under it shall be retained and claims for
4.
benefits lodged prior to the date of termination shall be determined under this Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto, have signed this
Agreement.
DONE at Canberra on this sixteenth day of September 2009 in two originals in the English and
Czech languages, the two texts being equally authentic.
FOR AUSTRALIA:
FOR THE CZECH REPUBLIC:
......................................................
Hon Jenny Macklin
Minister for Families, Housing
Community Services and Indigenous Affairs
......................................................
HE Dr Juraj Chmiel
Ambassador Extraordinary and Plenipotentiary
13
SMLOUVA
I
AUSTRALII
A
CESKOU REP UBLIK O U
II A (:ESKOU REPUBLIKOU 0
SMLOUVA MEZI AUST
SOCIALNIM ZAEEZPECENI
Australie a Ceska republika (dale jen ,smluvni staty"),
prejice si upevnit stavajici pratelske vztahy mezi obema smluvnimi
staty a jsouce odhodlany upravit vztahy mezi sebou s ohledem na
socialni davky a pojisteni,
se dohodly takto:
CAST I
Vseobecni ustanoveni
C1anek 1
Definice
1.
V teto smlouve:
a)
"davka" znamena davku, duchod nebo pridavek, stejne jako
priplatek
zvyseni
nebo
castku,
dodatecnou
jakoukoli
vyplaceny podle pravnich predpisu smluvniho statu, avsak
pokud jde o Australii - nezahrnuje zadnou davku,
platbu nebo narok podle zakona o penzijnim pojisteni;
b)
"prislusny urad"
znamena,
pokud jde o Ceskou republiku, ministerstvo zodpovedne za
pravni predpisy uvedene v clanku 2 odstavec 1 pismeno b)
a,
pokud jde o Australii, tajemnika svazoveho ministerstva
v clanku 2
za pravni predpisy uvedene
zodpovedneho
odstavec 1 pismeno a)(i), s vyjimkou v casti II Smlouvy
a v ostatnich castech smlouvy, pokud se dotykaji teto
casti, kde to znamena komisare pro dane nebo zmocneneho
zastupce komisare;
c)
"prislusna instituce" znamena instituci nebo uradovnu,
ktera ma za ukol provadeni platnych pravnich predpisu;
d)
"pravni predpis ❑ " znamenaji,
pokud jde o Ceskou republiku, pravni predpisy uvedene v
clanku 2 odstavci 1 pismeno (b) a,
pokud jde o Australii, zakony uvedene v clanku 2
odstavci 1 pismeno (a)(i), s vyjimkou v casti II Smlouvy
a v ostatnich castech smlouvy, pokud se dotykaji teto
casti, kde to znamena zakony uvedene v clanku 2 odstavci
1 pismeno (a)(ii);
e)
"doba pojisteni" znamena dobu pojisteni, nahradni dobu a
za takovou povazovanou ziskanou podle pravnich
dobu
predpisu Ceske republiky;
f)
"doba pob ❑ tu v Australii v produktivnim veku" znamena
vymezenou tak pravnimi pfedpisy Australie, ale
dobu
nezahrnujici zadnou dobu povazovanou podle clanku 11 za
dobu, kdy osoba mela bydliste v Australii.
Nevyplyva-li z kontextu jinak, pak pH provadeni teto smlouvy
2.
smluvnim statem ma vyraz nedefinovany v tomto clanku vyznam, ktery
mu nalezi podle pravnich predpisu tohoto smluvniho statu.
Clanek 2
Vecny rozsah
1.
Tato smlouva se vztahuje na tyto pravni pfedpisy:
a)
b)
pokud jde o Australii:
(i)
zakony formujici pravo socialniho zabezpeceni v
na,
vztahuje
pravo
toto
se
jakem
v
rozsahu,
starobni
poskytuje
nej
se podle
ovlivnuje,
nebo
duchod;
(ii)
pravo tykajici se penzijniho pojisteni (jez je v
o
zakone
v
obsa2eno
smlouvy
teto
podpisu
dobe
o
v
zakone
1992,
(sprava)
pojisteni
penzijnim
narizenich
poplatcich na penzijni pojisteni 1992 a v
o penzijnim pojisteni (sprava);
pokud jde o Ceskou republiku: zakon o duchodovem pojisteni
a pfedpisy souvisejici.
Nestanovi-li tato smlouva jinak, bez zfetele k ustanoveni
2.
odstavice 1 nezahrnuji pravni pfedpisy uvedene v tomto clanku zadne
umluvy ani jine mezinarodni smlouvy o socialnim zabezpeceni, ktere
mohou byt sjednany mezi smluvnim statem a tfeti stranou.
S vyhradou ustanoveni odstavce 4 se tato smlouva vztahuje
3.
nebo
doplnujici
menici,
pfedpisy
pravni
na
budouci
take
nahrazujici pravni pfedpisy uvedene v odstavci 1.
pfedpisy
pravni
budouci
na
nevztahuje
se
smlouva
4.
Tato
rozsifujici stavajici pravni pfedpisy nektereho smluvniho statu o
pozivatelu davek nebo o nove davky, pokud se
kategorie
nove
pfislusne ufady smluvnich state nedohodnou jinak.
2
Clanek 3
Osobni rozsah
Tato smlouva se vztahuje na kazdou osobu, ktera:
a)
ma nebo mela bydliste v Australii, nebo podleha nebo
podlehala pravnim pkedpisum Australie, nebo
b)
podleha nebo podlehala pravnim predpisum Ceske republiky
a na dalsi osoby pokud jde o prava, ktera odvozuji od vyse uvedene
osoby.
Clanek 4
Rovnost nakladani
Vsem osobam, na ktere se vztahuje tato smlouva, se od smluvniho
statu dostane stejneho zachazeni ve vztahu k pravum a povinnostem
prava
z
republiky,
Ceske
predpisu
pravnich
z
vyplyvajicim
socialniho zabezpeceni Australie v rozsahu, v jakem se toto pravo
vztahuje na nebo ovlivnuje starobni duchod, nebo z t6to smlouvy.
Clanek 5
Export davek
1. Nestanovi-li tato smlouva jinak, davky jednoho smluvniho statu
splatne podle t6to smlouvy budou vyplaceny osobam, ktere maji
bydliste nebo se nalezaji na uzemi kterehokoli smluvniho statu.
Jestlize pravni predpisy smluvniho statu umoznuji vyplacet
2.
davku do tketiho statu, pak davka platna podle t6to smlouvy bude
rovnez vyplacena do tohoto tretiho statu.
CAST II
Ustanoveni o pojiiteni.
Clanek 6
Pouzivani t6to casti
Tato cast se pouzije pouze za predpokladu, pokud by, nebyt t6to
podlehal,
zamestnance
zamestnavatel
a/nebo
zamestnanec
casti,
vzhledem k praci zamestnance nebo odmene vyplaceny za praci,
pravnim predpisum obou smluvnihh state.
3
C1anek 7
Vylouceni dvojiho pojisteni
v teto casti stanoveno jinak, pokud zamestnanec
1.
Neni-li
zamestnavatel
smluvniho
statu,
jednoho
uzemi
pracuje
na
zamestnance a zamestnanec, vzhledem k praci a odmene vyplacene za
praci, podlehaji pouze pravnim predpisum tohoto smluvniho statu.
smluvniho
statu
jednoho
uzemi
na
zamestnani
Zamestnanec
2.
zamestnavatelem se sidlem na tomto uzemi, ktery je vyslan pracovat
pro tohoto zamestnavatele nebo pobocku na uzemi druheho smluvniho
statu, podleha pravnim predpisum vyhradne prvniho smluvniho statu,
jako by byl zamestnanec zamestnan na jeho uzemi, za predpokladu,
ze predpokladana doba vyslani nepresahuje pet let. Presahne-li
tato doba 5 let, aplikuje se od teto doby odstavec 1. Pro ucely
odstavce je pobockou Glen stejne zcela nebo vetsinove
tohoto
vlastnene skupiny jako zamestnavatel.
Pracuje-li zamestnanec v zamestnani zamestnavatele na lodi
3.
nebo v letadle pri mezinarodni preprave, zamestnavatel zamestnance
vzhledem k praci a odmene vyplacene za takove
a zamestnanec,
zamestnani, podlehaji pouze pravnim predpisum smluvniho statu, na
jehoz uzemi ma zamestnanec bydliste.
C1inek 8
Diplomaticke a konzularni vztahy a zamestnani ve statnich sluibach
ustanoveni
ani
1961
umluvy o diplomatickych stycich z 18. dubna
1.
Touto smlouvou neni dotceno provadeni
Videnske
Videnske
umluvy o konzularnich stycich z 24. dubna 1963.
Zamestnanci vyslani vladou jednoho smluvniho statu docasne
2.
pracovat na uzemi druheho smluvniho statu, avsak na ktere se
umluvy uvedene v odstavci 1 tohoto clanku nevztahuji, podlehaji
pravnim predpisum pouze prvniho smluvniho statu. Pro u.cely tohoto
odstavce zahrnuje zamestnani vladou smluvniho statu i zamestnani
jejim prostrednictvim a take, pokud jde o Australii, politickou
slozku nebo mistni urad Australie.
C1anek 9
Vyjimky
Na zadost zamestnance a/nebo zamestnavatele se mohou prislusne
urady obou smluvnich state, nebo jimi povereni zastupci, dohodnout
na udeleni vyjimky z ustanoveni teto casti ve vztahu k urcitym
osobam nebo kategoriim osob.
4
CAST III
Ustanoveni o davkach
Kapitola 1
Australske davky
C1inek 10
Bydliste nebo pritomnost v Ceske republice nebo ve tretim state
Pro ziskani naroku na australskou davku podle pravnich predpisu
Australie nebo teto smlouvy bez toho, ze by osoba mela bydliste a
ke dni, kdy uplatnuje narok na davku, se zdrzovala v Australii,
avsak:
(a)
ma bydliste v Australii nebo v Ceske republice nebo ve
tretim state, s nimz ma Australie sjednanu smlouvu o
o
ustanoveni
obsahuje
ktera
zabezpeceni,
socialnim
pH
prijimani
zadosti
o
davky
a
zahrnuje
spolupraci
tento druh davky; a
(b)
zdrzuje se v Australii nebo v Ceske republice nebo v
takovem tretim state,
bude tato osoba, pokud nekdy mela bydliste v Australii, povazovana
pro uplatneni naroku za bydlici a zdrzujici se v Australii k
tomuto dni.
C1anek 11
SCitini
Pokud osoba, na kterou se vztahuje tato smlouva, uplatnila
1.
podle teto smlouvy narok na australskou davku a ziskala:
(a)
dobu bydliste v Australii, ktera je kratsi nez doba
pro
predpisu
pravnich
australskych
podle
potrebna
ziskani naroku osoby na davku; a
(b)
dobu pob❑ tu v Australii v produktivnim veku, ktera je
stejna nebo delsi nez doba stanovena pro takovou osobu v
souladu s odstavcem 4; a
(c)
dobu pojisteni ziskanou podle pravnich predpisu Ceske
republiky;
pak pouze pro splneni minimalni pozadovane doby stanovena pro
takovou davku pravnimi predpisy Australie bude tato doba pojisteni
ziskana podle pravnich predpisu Ceske republiky povazovana pro
narok na australskou davku za dobu, kdy takova osoba mela bydliste
v Australii.
2.
Pro ucely odstavce 1, pokud osoba
(a)
mela bydliste v Australii nepretrzite po dobu, ktera je
kratsi nez minimalni nepretrzita doba potrebna podle
5
australskych pravnich predpisu pro ziskani naroku osoby
na davku; a
(b)
ziskala dobu pojisteni podle pravnich predpisu Ceske
republiky ve dvou nebo vice ruznych obdobich, ktera je
stejna nebo del6i nez celkova minimalni doba uvedena pod
pismenem (a),
bude celkova doba pojisteni ziskana podle pravnich predpisu Ceske
republiky povazovana za nepretrzitou dobu.
Pokud se prekryva doba, kdy osoba mela bydliste v Australii,
3.
Ceske
predpisu
pravnich
podle
ziskanou
s
pojisteni
dobou
pak pro di ely tohoto clanku Australie prihledne k
republiky,
prekryvajici se dobe pouze jednou jako k dobe, kdy osoba mela
bydliste v Australii.
4.
Minimalni doba pobEltu v Australii v produktivnim veku,
ktere se pro ucely odstavce 1 prihlizi, je tato:
ke
(a)
pro ucely australske davky splatne osobe, ktera neme
bydliste v Australii, je minimalni pozadovana doba 12
musi
bit
mesicu
nejmene
Best
nichz
z
mesicu,
nepretrzitych; a
(b)
pro ucely australske davky splatne osobe, ktera ma
bydliste v Australii, minimalni doba stanovena neni.
Clanek 12
Vypocet divek
1.
S vyhradou odstavce 2, je-li australske davka splatne osobe
zdrzujici se mimo Australii pouze na zaklade teto smlouvy, davka
se stanovi podle pravnich predpisu Australie.
Odstavec 1 se bude pouzivat po dobu 26 tydnu, kdy osoba
2.
docasne prijede do Australie.
S vyhradou odstavce 4, je-li australske davka splatne pouze
3.
na zaklade teto smlouvy osobe v Australii, vise davky se stanovi:
(a)
vypoctem prijmu takove osoby podle pravnich pkedpisu
pH tomto vypoctu na
ohledu
avsak
bez
Australie,
jakekoli davky Ceske republiky, jez ma tato osoba nebo
to
prichazi-li
pravo
obdrzet,
osoby
takove
partner
v uvahu; a
(b)
odpoctem castky davky Ceske republiky, jez ma tato osoba
pravo obdrzet, z maximalni vise australske davky; a
(c)
pridanim k zbivajici davice ziskane podle pismene (b)
prislusnou vysi vypoctu stanovenou v pravnich predpisech
6
berouce za prijem osoby castku vypoctenou
Australie,
podle pismene (a).
Odstavec 3 se bude pouzivat po dobu 26 tydnu, kdy osoba
4.
docasne odjede z Australie.
Pokud jeden z partneru ma, nebo oba partneri maji narok na
5.
davku nebo davky Ceske republiky, kazdy z nick bude pro d ely
tohoto clanku a pravnich predpisu Australie povazovan za prijemce
jedne poloviny castky bud' teto davky, nebo pripadne uhrnu obou
techto davek.
Pokud nalezi, zahrnuje australsky starobni duchod vyplaceny
6.
pro
dodatecne
castky
Australii
mimo
teto
smlouvy
podle
nezaopatrene deti. Dine dodatecne castky nebo priplatky k davkam
se vyplaceji mimo Australii pouze po dobu uvedenou v zakone o
socialnim
o
zakon
na
Odkaz
1991.
zabezpeceni,
socialnim
1991 zahrnuje vsechny zakony, ktere meni, doplnuji
zabezpeceni,
nebo nahrazuji tento zakon.
Kapitola 2
Davky Ceske republiky
Clanek 13
Scitani
Nestanovi-li tato smlouva jinak, pokud osoba neziska narok na
1.
davku z duvodu nedostatecne doby pojisteni podle pravnich predpisti
Ceske republiky, narok teto osoby na davku se stanovi souctem
techto dob pojisteni s dobami pob❑ tu v Australii v produktivnim
veku za predpokladu, ze se tyto doby neprekryvajl.
Pro narok na davku vezme prislu6na instituce Ceske republiky
2.
uvahu
take doby pojisteni ziskane podle pravnich predpisu
v
tretiho statu, se kterym je Ceska republika vazana dokumentem
o socialnim zabezpeceni umoznujicim scitani dob pojisteni.
Clanek 14
Vypocet davek
1. Jsou-li podle pravnich predpisu Ceske republiky splneny
podminky naroku na davku i bez prihlednuti k dobim pobOtu
v Australii v produktivnim veku, stanovi prlslusna instituce
Ceske republiky davku:
(a)
vylucne na zaklade dob pojisteni ziskanych podle jejich
pravnich predpisiz a soucasne
(b)
v odstavci 2 s vyjimkou
stanovenych
pravidel
podle
kdy vysledek takoveho vypoctu je stejny nebo
pripadu,
nizsi, nez vysledek vypoctu podle pismene (a).
7
2.
Pokud narok na davku podle pravnich predpisu Ceske republiky
mute vzniknout pouze s prihlednutim k dobam pobEltu v Australii v
produktivnim veku, nebo k dobam pojisteni ziskanym podle pravnich
predpisa tretiho statu, pak prislusna instituce Ceske republiky:
(a)
stanovi
teoretickou
davky,
ktera
by
nejprve
vysi
nylezela v pripade, ze by vsechny doby pojisteni byly
ziskany podle pravnich predpisu Ceske republiky a
(b)
pote - na zaklade teoreticke vase urcene podle pismene
(a) - stanovi vysi davky urcene k vyplate podle pomeru
delky dob pojisteni ziskanych podle pravnich predpisa
Ceske republiky k celkove sectenym dobam.
Prislusna instituce Ceske republiky - pH aplikaci ustanoveni
pismene (a) tohoto odstavce - vezme za zaklad pro vypocet davky
v uvahu pouze prijmy dosazene v dobach pojisteni ziskanych podle
pravnich predpisu, ktere provydi. Tyto prijmy - indexovane podle
pravnich predpisu Ceske republiky - budou povazovany za dosazene
v dobach,
ke kterym se prihli2i pri stanoveni teoreticke vase
davky.
Opravnena osoba bude mit od pMslusne instituce Ceske
3.
republiky narok na vyssi z davek vypoctenych podle odstavca 1 a 2.
Nedosahuje-li doba pojisteni ziskany podle pravnich predpisu
4.
Ceske republiky dvanacti mesica a nevznikne-li na jejim zaklade
narok
Ceske
republiky
davku
davku,
prislusna
instituce
na
nepriznd.
Udylosti a skutecnosti majici vliv na narok, kryceni,
5.
pozastaveni ci vysi davky, ktere nastaly na uzemi Australie, budou
posuzovany tak, jako by k nim do6lo na uzemi Ceske republiky.
Avsak pkislu6ny cesky dad maze omezit pouziti tohoto ustanoveni
ve prospech urcitych kategorii osob.
Podminkou niroku na invalidni dachod osoby, ktera se stala
6.
invalidni pied dosazenim 18 let veku a ktery nebyla ucastna
pojisteni po potrebnou dobu, je trvaly pobyt na uzemi Ceske
republiky. Tato podminka plati i pro invalidni duchody a duchody
pozastalych, jestlize narok na ne, nebo na duchody, z nichz se
odvozuji, mute vzniknout pouze s prihlednutim k ustanovenim teto
smlouvy.
8
CAST IV
RAzna a administrativni ustanoveni
Clanek 15
Spoluprace prislusnych uzadu
1.
Prislusne urady smluvnich statu stanovi pomoci spravniho
ujednani nezbytna opatreni pro provadeni teto smlouvy.
urady urci stycna mista, jez budou uvedena ve
Prislusne
2.
spravnim ujednani.
Clanek 16
Predkladini dokumentu
Zadost, oznameni nebo opravny prostredek tykajici se davek
1.
splanych podle teto smlouvy nebo jinak, mohou byt predlozeny na
uzemi kterehokoli smluvniho statu.
Pro stanoveni naroku na davku se datum, k nemuz jsou zadost,
2.
oznameni nebo opravny prostredek uvedene v odstavci 1 predlozeny
prislusne instituci jednoho smluvniho statu, povazuje za datum
druheho
instituci
prislusne
dokumentu
takoveho
predlozeni
smluvniho statu. Prislusna instituce smluvniho statu, ktere jsou
zadost, oznameni nebo opravny prostredek predlozeny, je postoupi
bez prodleni prislusne instituci druheho smluvniho statu.
Zadost o davku od jednoho smluvniho statu se povazuje za
3.
zadost o odpovidajici davku od druheho smluvniho statu, pokud
zadatel v zadosti uvede, ze je nebo byl kryt systemem socialnIho
zabezpeceni tohoto druheho smluvniho statu a za predpokladu, ze
druhy smluvni stat obdrzi takovou zadost do 12 mesicu.
Odkaz na opravny prostredek v odstavci 1 je odkazem na
4.
opravny prostredek, ktery je mozno podat u spravniho, nebo pro
pravnich
prislusnych
podle
organu
zrizeneho
ucely
spravni
predpisu.
Clanek 17
Vyneti z poplatku a ov®-Eovani
Pokud zakony smluvniho statu stanovi, ze jakykoli dokument,
1.
ktery se predklada prislusnemu d.radu nebo prislusne instituci
je zcela nebo castecne osvobozen od
statu,
smluvniho
tohoto
poplatku nebo vyloh, vicetne konzularnich a spravnich poplatku, pak
se toto osvobozeni take vztahuje na obdobne dokumenty, ktere se
predkladaji prislusnemu uradu nebo prislusne instituci druheho
smluvniho statu pri provadeni teto smlouvy.
Dokumenty a potvrzeni predkladane pro ucely provadeni teto
2.
smlouvy jsou vynaty z pozadavku na legalizaci diplomatickymi nebo
konzularnimi urady.
9
Clanek 18
V:^plata davek
Pokud smluvni stat zavede zakonne nebo spravni omezeni pro
1.
vyvoz meny mimo sve uzemi, prijme tento smluvni stat neprodlene
opatfeni k zajistenl pray na vyplatu a dorucovani davek, ktere
maji byt vyplaceny podle pravnich predpisu tohoto smluvniho statu
teto smlouvy. Tato opatreni maji zpetnou d.cinnost
nebo
podle
od doby zavedeni techto omezeni.
Prislusne instituce smluvnich statu vyplaceji davky podle
2.
teto smlouvy bez jakychkoli srazek na sve administrativni naklady.
Clanek 19
Vymena informaci a vzijemna spoluprace
1.
Prislusne ufady a prislusne instituce odpovedne za provadeni
teto smlouvy, v rozsahu povolenem jejich narodnimi zakony:
(a)
pro
nezbytne
veskere
informace
vzajemne
si
sdeluji
teto
smlouvy nebo pravnich predpisu Ceske
provadeni
republiky nebo prava socialniho zabezpeceni Australie;
(b)
poskytuji si vzajemnou pomoc, vicetne nezbytnych oznameni
ohledne priznani nebo vyplaty davky podle teto smlouvy
nebo podle pravnich predpisu, na ktere se tato smlouva
vztahuje tak, jako by provadeny vlastni pravni predpisy;
a
(c)
vzajemne si v nejkratsi mozne dobe vymenuji veskere
informace o jimi prijatych opatrenich pro provadeni teto
smlouvy nebo o zmenach v jejich prislusnych pravnich
dotykaji
zmeny
se
tyto
v
jake
v mire,
pkedpisech
provadeni teto smlouvy.
Pomoc uvedena v odstavci 1 se poskytuje bezplatne s vyhradou
2.
prislusnymi
urady
a
mezi
prislusnymi
ujednani
dohodnutych
institucemi k vyrovnani urcitych druhu vydaju, ktere jsou uvedeny
ve spravnim ujednani podle clanku 15.
Ustanoveni odstavce 1 nebude v zadnem pripade vykladano tak,
3.
aby ukladalo prislusnemu dradu nebo prislusne instituci smluvniho
statu povinnost:
(a)
provadet administrativni opatreni v rozporu se zakony
nebo administrativni praxi tohoto nebo druheho smluvniho
statu; nebo
(b)
poskytovat udaje, ktere nejsou dostupne podle zakony
nebo
postupy
tohoto
administrativnimi
beznymi
nebo
druheho smluvniho statu.
10
Clanek 20
Ochrana osobnich udaju
statu
stanoveno
smluvniho
zakonech
vnitrostatnich
Neni-li
ve
jinak, informace o osobach, ktere jsou v souladu s touto smlouvou
tohoto
instituci
prislusne
nebo
prislusnemu
ufadu
predavany
instituci
prislusnou
uradem
nebo
statu
prislusnym
smluvniho
druheho smluvniho statu, jsou duverne a pouziji se vyhradne pro
ucely provadeni teto smlouvy a pravnich predpisu, na ktere se tato
smlouva vztahuje.
Clanek 21
Jazyky
Pri provadeni teto smlouvy mute prislusny urad a pfislusna
1.
instituce smluvniho statu s ostatnimi komunikovat v kteremkoli
urednim jazyce smluvnich statu.
Prislusny urad ani prislusna instituce smluvniho statu nesmi
2.
odmitnout zadost, odvolani nebo jiny dokument pouze z duvodu, ze
je v jazyce druheho smluvniho statu.
Clanek 22
Reseni sport'
Veskere spory tykajici se vykladu nebo provadeni teto smlouvy se
resi jednanim mezi pfislusnymi urady.
Clanek 23
Piezkoumani smlouvy
k prezkoumani
setkani
o
druhy
pozada
stat
smluvni
Jestlize
smlouvy, sejdou se smluvni staty za tim ucelem co nejdrive.
CAST V
Prechodna a zaverecna ustanoveni
Clanek 24
Prechodna ustanoveni
zadny narok na vyplatu
nezaklada
smlouva
1.
Tato
jakoukoli dobu pied vstupem teto smlouvy v platnost.
davky za
Pri rozhodovani o naroku na davky podle teto smlouvy se berou
2.
dob❑
v uvahu take doby, kdy osoba mela bydliste v Australii,
a doby pojisteni podle
v Australii v produktivnim veku
pob❑ tu
teto
vstupem
pied
ziskane
republiky
Ceske
predpisu
pravnich
smlouvy v platnost.
11
3.
Rozhodnuti tykajici se naroku na davky, ktera byla ucinena
pied vstupem teto smlouvy v platnost, nemaji vliv na prava vznikla
na jejim zaklade.
4.
Davky pfiznane pied vstupem smlouvy v platnost mohou byt na
zadost nove vymereny.
Clanky 7 odstavec 2 a 8 odstavec 2 se provadeji od data
5.
vstupu teto smlouvy v platnost, trebaze osoba byla vyslana svym
zamestnavatelem pied timto datem. Pro tento ucel za6ina doba
vyslani vstupem teto smlouvy v platnost.
Clanek 25
Ratifikace a vstup v platnost
1.
Tato smlouva podleha ratifikaci.
2.
Tato smlouva vstoupi v platnost prveho dne tretiho mesice
nasledujiciho po mesici, v nemz si smluvni staty pisemne
diplomatickou cestou vzajemne oznami, ze byly splneny vsechny
nezbytne podminky pro vstup teto smlouvy v platnost.
Platnost,
1.
Clanek 26
zmeny a ukonceni platnosti smlouvy
Tato smlouva se uzavira na dobu neurcitou.
doplnkovymi
mozne
pozmenit
v budoucnu
je
2.
smlouvu
Tuto
smlouvami, ktere se od sveho vstupu v platnost budou povazovat za
nedilnou soucast teto smlouvy.
dne
posledniho
do
platnosti
az
zustane
v
Tato
smlouva
3.
dvanacteho mesice nasledujiciho po mesici, v nemz nektery smluvni
stat pisemne diplomatickou cestou oznami druhemu smluvnimu statu
jeji vypovezeni.
ni
podle
nabyta
prava
vypovezena,
smlouva
4.
Bude-li
tato
zustanou zachovana a o zadostech o davky predlozenych prede dnem
ukonceni jeji platnosti se rozhodne podle teto smlouvy.
Na dukaz cehoz nine podepsani, radne k tomu zmocneni, podepsali
tuto smlouvu.
2009 ve
dne
Dano v
dvou puvodnich vyhotovenich, kazde v jazyce ceskem a anglickem,
pricemz obe zneni maji stejnou platnost.
Za Australii
Za Ceskou republiku
12
13
DOCUMENTS TO BE TABLED ON 9 MARCH 2010:
•
National Interest Analysis [2010 ] ATNIA 5
with attachment on consultation
Agreement between Australia and the Czech Republic on
Social Security , done at Canberra on 16 September 2009
[2009] ATNIF 27
NATIONAL INTEREST ANALYSIS - CATEGORY 2 TREATY
SUMMARY PAGE
Agreement between Australia and the Czech Republic on Social Security,
done at Canberra on 16 September 2009
[2009] ATNIF 27
Nature and timing of proposed treaty action
The proposed treaty action is to bring into force the Agreement between Australia
1.
and the Czech Republic on Social Security (the Agreement). The Agreement was signed in
Canberra on 16 September 2009.
Pursuant to Article 25, the Agreement will enter into force on the first day of the
2.
third month following the month in which notes have been exchanged by Australia and the
Czech Republic (the Parties) through the diplomatic channel stating that all matters as are
necessary to bring the Agreement into force have been finalised. The proposed timeframe for
an exchange of notes is October 2010 to enable entry into force on 1 January 2011.
Overview and national interest summary
Australia's social security agreements are bilateral treaties which close gaps in
3.
social security coverage for people who migrate between countries. Such agreements achieve
this by overcoming barriers to pension payment in the domestic legislation of each country,
such as requirements on citizenship, minimum contributions record, past residence record and
current country of residence.
The Agreement provides for enhanced access to Australian and Czech retirement
4.
benefits and greater portability of these benefits between the two countries. For the
Czech Republic, the Agreement also covers invalidity and survivors' benefits. Portability of
benefits allows for the payment of a benefit from one country into another country. Enhanced
access to benefits is an underlying principle of bilateral social security agreements where the
responsibility for providing benefits is shared. Under the Agreement, residents of Australia and
the Czech Republic will be able to move between Australia and the Czech Republic with the
knowledge that their rights to benefits are recognised in both countries.
Double coverage provisions have also been included to ensure that Australian and
5.
Czech employers do not need to make compulsory pension/superannuation contributions into
both countries' systems when an employee is seconded to work in the other country
temporarily. Under current arrangements the employer may be required to make contributions
under both Australian and Czech legislation. The Agreement will provide that, generally,
where compulsory contributions are required, the employee and/or their employer need to
contribute only to the relevant pension/superannuation scheme in their home country. The
provisions on double coverage will reduce the costs of doing business in both Australia and the
Czech Republic.
The Agreement will bring economic and political benefits to Australia. It will help
6.
to maximise the foreign income of Australian residents and there will be flow-on effects within
the Australian economy. The double coverage provisions will facilitate business links between
the two countries by removing unnecessary costs. The Agreement will thereby serve to
reinforce Australia's political, business and strategic interests. It will also further strengthen
bilateral relations between Australia and the Czech Republic and provide choices in retirement
for individuals who migrate to Australia or the Czech Republic during or after their working
lives.
Reasons for Australia to take the proposed treaty action
7.
Australia's network of bilateral social security agreements improves access to
income support for people whose adult lives are, or have been, split between Australia and the
Czech Republic. Those who benefit from these agreements are mostly age pensioners.
8.
The Agreement incorporates the same principles as Australia's other agreements on
social security. A key element of the Agreement, as with other social security agreements, is
the sharing of responsibility between the Parties in providing adequate social security coverage
for current and former residents of both countries.
9.
Under the Agreement, individuals may be eligible for benefits from both countries if
they meet certain criteria and have lived and/or worked in both countries during their working
lives. Residents of Australia and the Czech Republic will be able to move between these
countries knowing that their rights to benefits are protected.
10.
The Department of Families , Housing, Community Services and Indigenous Affairs
(FaHCSIA) estimates that, through the Agreement, approximately 2,000 people residing in both
countries will benefit when the Agreement comes into force , by being able to claim payments
from Australia and the Czech Republic to which they currently do not have access.
Obligations
11.
Part I (Articles 1 to 5) of the Agreement sets out the general obligations of the
Parties under the Agreement, outlines the scope of the Agreement (Articles 2 and 3), ensures
that all persons to whom the Agreement applies will be treated equally by the Parties with
respect to the payment of benefits (Article 4) and removes restrictions on the payment of
benefits based on residency in the other country (Article 5). For Australia, the Agreement
covers the age pension. For the Czech Republic, the Agreement covers age, invalidity and
survivors' benefits.
12.
Part II (Articles 6 to 9) provides that where an employee has been temporarily
seconded to work in the other country, the employee and/or their employer will only be subject
to the legislation of the employee's home country with respect to compulsory contributions.
This arrangement is restricted to five years for private sector employees.
13.
This:
Chapter 1 of Part III (Articles 10 to 12) applies to benefits payable by Australia.
®
obliges Australia to regard residents of the Czech Republic, and residents of certain third
countries with which Australia has a social security agreement, as Australian residents for
the purpose of claiming and qualifying for Australian age pension, provided the person
lived in Australia for at least one year (pursuant to Australian legislation this period must
accrue while the person is between the ages of 16 and age pension age (Articles 10 and
11));
®
provides that creditable periods in the Czech Republic (periods of insurance/pension
contributions), substitute periods and equivalent periods completed under Czech law will
be regarded as periods of residence in Australia for the purpose of meeting the ten year
qualifying period of residence for age pension (Article 11);
®
sets out the formula for calculating the rate of Australian age pension that is payable only
by virtue of the Agreement (Article 12). For persons inside Australia, the amount of any
Czech pension received is deducted from the maximum Australian pension on a dollar for
dollar basis. Once a person has been an Australian resident for 10 years, Article 12 will
no longer apply and any Age Pension entitlement will be payable under Australian
domestic law. For persons outside Australia, by reference to the legislation of Australia,
Australian age pensions in the Czech Republic will be based on a person's period of
`Australian Working Life Residence' (the period between age 16 and Australian Age
Pension age) over a denominator of 25 years.
Chapter 2 of Part III (Articles 13 and 14) applies to benefits under Czech legislation,
14.
and therefore creates no obligations for Australia. The provisions are reciprocal to Australia's
in that claims for the Czech age pension will be able to be lodged in Australia. Certain periods
of residence in Australia, as well as creditable periods completed in certain third countries with
which the Czech Republic has an agreement, will be counted as creditable periods for the
purpose of meeting minimum. requirements for a Czech age pension. The rate of Czech age
pension will generally be based on a person's creditable period and their pensionable earnings
in the Czech Republic.
15.
Part IV (Articles 15 to 23) sets out various administrative obligations, including:
for the `Competent Authorities' of both Parties to conclude an Administrative
Arrangement and designate liaison agencies to implement and administer the Agreement
(Article 15);
to regard the date of claim in one country as the date of claim in the other and, in certain
circumstances, to regard a claim for a pension in one country as a claim for the
corresponding pension from the other country (Article 16);
to guarantee payments in the event that currency controls are imposed, to guarantee
payment without deductions for government fees or charges, and to exempt documents
from fees and certification requirements (Articles 17 and 18);
a general obligation for the Parties to assist each other in implementing the Agreement, by
exchanging information, protecting the confidentiality of personal data, and
communicating with each other in either of the official languages of both Parties (Articles
19, 20 and 21);
provision to resolve disputes by consultation and to meet to review the Agreement upon
request by either Party (Article 22 ); and
provision to review the Agreement where a Party requests such review (Article 23).
Part V (Articles 24 to 26) provides for transitional arrangements, ratification, entry
16.
into force, duration, modification and termination of the Agreement. Article 24 ensures that
periods of residence in Australia and creditable periods in the Czech Republic will be taken into
account in determining entitlement to benefits in accordance with the Agreement. The
Agreement does not create entitlement to benefits for any period prior to the entry into force of
the Agreement, and existing rights at the commencement of this Agreement are also protected.
Article 25 provides that the Parties must notify each other in writing of the completion of
domestic requirements necessary for the entry into force of the Agreement. The Agreement
will enter into force on the first day of the third month following the month in which notes are
exchanged by the Parties.
Article 26 provides that:
•
•
•
the Agreement may be amended in the future by supplementary agreements;
where terminated by either Party in writing through the diplomatic channel, the Agreement
will remain in force for a period of 12 calendar months following the month in which
written notice of termination is received; and
in the event of termination, existing rights that have been acquired under the Agreement
will be retained.
Implementation
The implementation of the Agreement will require amendment to the Social Security
17.
(International Agreements) Act 1999 to give the Agreement the force of law in Australia. A
new Schedule containing the full text of the Agreement will be added to the Social Security
(International Agreements) Act 1999. The regulation making powers contained in sections 8
and 25 of that Act will be used to implement the Agreement.
Provisions relating to double superannuation coverage are automatically given effect
18.
in domestic law once the Agreement is scheduled to the Social Security (International
Agreements) Act 1999. This is pursuant to the Superannuation Guarantee (Administration) Act
1993 (paragraph 27(1)(e)) and the Superannuation Guarantee (Administration) Regulations
1993 (regulation 7AC), which have the effect that payment of salary or wages to an employee
who has been sent temporarily to work in Australia will not give rise to a superannuation
guarantee obligation for the overseas employer, provided that a scheduled social security
agreement is in place.
Costs
The Agreement was funded in the 2009-10 Budget and is expected to reduce
19.
administered outlays by $0.638 million over the forward estimates period to 2012-13.
Departmental costs for implementing and administering the Agreement total $2.795 million
over the same period, being $0.227 million for FaHCSIA, $2.369 million for Centrelink and
$0.199 million for the Australian Taxation Office.
Regulation Impact Statement
The Department of Finance and Deregulation has assessed the implementation of the
20.
Agreement against criteria in The Best Practice Regulation Handbook This regulatory option
will have a low impact on business and individuals or on the economy and a Regulation Impact
Statement or Business Cost Calculator Report is not required.
Future treaty action
As noted above, Article 23 obliges the Parties to meet to review the Agreement
21.
when requested by either Party. An Administrative Arrangement to establish the measures
necessary to implement the Agreement will be entered into by the Competent Authorities
pursuant to Article 15. This Arrangement will not have treaty status and will therefore not be
subject to Australia's treaty-making process.
The Agreement may be amended at any time by agreement between the Parties,
22.
pursuant to Article 26 and in accordance with Article 39 of the Vienna Convention on the Law
of Treaties. Any such amendment would constitute a treaty action, and would therefore be
subject to Australia's domestic treaty -making process, including tabling and consideration by
the Joint Standing Committee on Treaties (JSCOT).
Withdrawal or denunciation
Article 26 provides that the Agreement shall remain in force until the expiration of
23.
12 months from the last day of the month in which either Party receives from the other a note
through diplomatic channels indicating its intention to terminate the Agreement. In the event of
termination , Article 26 also preserves the rights of those who are receiving benefits under the
Agreement , or who have lodged claims and would have been entitled to benefits under the
Agreement, and employees and/or their employer affected by the double coverage provisions of
Part II.
Any termination of this Agreement by Australia would be subject to Australia's
24.
domestic treaty-making process, including tabling and consideration by JSCOT.
Contact details
International Agreements
International Branch
Department of Families , Housing, Community Services and Indigenous Affairs
CONSULTATION
Agreement between Australia and the Czech Republic on Social Security,
Done at Canberra 16 September 2009
[2009] ATNIF 27
CONSULTATION
25.
Five different groups were consulted by the Department of Families, Housing,
Community Services and Indigenous Affairs (FaHCSIA) and The Treasury: relevant
community groups, welfare organisations, State and Territory Governments, employer groups
and the superannuation industry.
On 18 September 2009 FaHCSIA wrote to 13 Czech community groups and 20
26.
welfare groups across Australia, in addition to all State and Territory Governments, to provide
information and to invite their views and comments by 23 October 2009. FaHCSIA also
wrote to the Southern Cross Group, a lobby group representing the needs of the Australian
expatriate community.
27.
Responses were received from one correspondent, with no concerns raised.
28.
Community organisations consulted were:
Sokol Sydney Gymnastic Association, Ltd
Beseda, the Czechoslovak Australian
Association of Canberra and Region, Inc.
Czechoslovakian Country Club, Kemp Creek,
NSW
Czechoslovak Ex-servicemen's Association
NSW Division
Czechoslovak Ex-servicemen Association of
NSW
Czechoslovak Ex-Servicemen's Association
South Pacific Executive Committee
Sokol Melbourne, Inc. National House of
Czech and Slovaks
Czechoslovak Ex-servicemen Association of
Victoria
Czechoslovakian Club in Queensland, Inc.
Czechoslovak Club in SA, Inc.
Czech Association of Australia, Inc.
The Czech and Slovak Association in WA,
Inc.
The Czech and Slovak Association of
Tasmania, Inc.
29.
Welfare organisations consulted were:
Ethnic Communities Council of QLD
Ethnic Communities Council of WA
Multicultural Council of NT Inc
Welfare Rights Centre
Multicultural Communities Council of SA
Multicultural Council of Tasmania
Ethnic Communities' Council of Victoria
Physical Disability Australia
ACT Multicultural Community Council
Australian Council of Social Services
Southern Cross Group
Ethnic Communities Council of NSW
Ethnic Communities Council of Victoria
FECCA
National Seniors Association
National Ethnic Disability Alliance
Council of Intellectual Disability Agencies
National Disability Services
Association of Independent Retirees
Combined Pensioners and Superannuants
Association
COTA National Seniors
30.
State/Territory Governments consulted were:
ACT Chief Minister's Department
QLD Department of Premier and Cabinet
VIC Department of Premier and Cabinet
NT Department of Chief Minister
SA Department of Premier and Cabinet
TAS Department of Premier and Cabinet
WA Department of Premier and Cabinet
NSW The Cabinet Office, Inter-Governmental & Regulatory Reform Branch
Treasury sent letters and an information sheet explaining the Agreement to the
31.
organisations listed below on 28 September 2009 seeking their views and asking for a response
by 23 October 2009. No formal responses were received.
32.
Organisations consulted by Treasury were:
Institute of Chartered Accountants in Australia
Australian Chamber of Commerce and Industr y
Industry Funds Forum Inc
A.C.T.U.
Council of Small Business Organisations of Australia
Association of Su perannuation Funds of Australia
Investment and Financial Services Association
CPA Australia
National Institute of Accountants
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
Exchange of Letters
Amending the Agreement between
the Government of Australia and
the Government of New Zealand
Concerning a Joint Food Standards System
(Canberra, 3 March 2010)
[2010] ATNIF 5
Hon Mark Butler
Parliamentary Secretary for Health and Ageing
Australia
Dear Parliamentary Secretary Butler,
I have the honour to refer to the Agreement between the Government of New
Zealand and the Government of Australia Concerning a Joint Food Standards
System done at Wellington on 5 December 1995, as amended, (hereinafter referred
to as "the Agreement"), the review of the Agreement pursuant to its Article 9, and
consultations between our two Governments convened under its Article 10 with a
view to amendment of the Agreement.
I have the further honour to inform you that at the conclusion of the aforementioned
review and consultations between our two Governments, the following amendments
to the text of the Agreement were agreed:
The eighth paragraph of the Preamble to the Agreement shall be replaced
1.
with the following:
ACKNOWLEDGING the existence and operation of the Food Regulation
Agreement and noting that it has replaced the 1991 Agreement between the
Commonwealth of Australia and the States and Northern Territory of Australia
and the Australian Capital Territory in relation to the adoption of uniform food
standards;
2.
Sub- paragraph (g) of Article 1 ( Definitions ) of the Agreement shall be replaced
with the following:
(g) the term " Food Regulation Agreement" means the Food Regulation
Agreement between the Commonwealth of Australia and the States and
Northern Territory of Australia and the Australian Capital Territory signed on 3
November 2000, as amended from time to time;
and the term "Food Regulation Agreement 2000" shall be replaced with the
term "Food Regulation Agreement" throughout the Agreement.
The words "Annex D" in paragraph 7 of Article 4 (The Australia New Zealand
3.
Food Standards System) of the Agreement shall be replaced with the words
"Annexes D and E".
The words "Annex E" in paragraph 8 of Article 4 (The Australia New Zealand
4.
Food Standards System) of the Agreement shall be replaced with the words "Annex
F".
The words "Annex D and E" in paragraph 1 Article 5 (Adoption of Food
5.
Standards ).shall be replaced with the words "Annexes D, E and F".
The words "Annex D" in paragraphs 2 and 3 of Article 5 (Adoption of Food
6.
Standards ) shall be replaced with the words "Annexes D and E".
7.
Paragraph 2 of Article 8 (Consultations) of the Agreement shall be replaced
with the following:
(2) In addition to any consultations that might be held pursuant to paragraph
(1) of this Article, Member States shall consult at the written request of either
in relation to any provisions in respect of which Annex D of this Agreement
applies.
8.
Sub-paragraph (2)(f) of Annex A (Principles Underpinning the Australia New
Zealand Food Standards System ) shall be replaced with the following:
(f) subject to the principles set out in Parts B ,C and D of the Principles and
Guidelines for National Standard Setting and Regulatory Action by Ministerial
Councils and Standard Setting Bodies endorsed by the Council of Australian
Governments and the New Zealand Code of Good Regulatory Practice.
9.
Annex C (Review of Approved or Existing Standards) of the Agreement
shall be replaced with the following:
"ANNEX C
REVIEW OF APPROVED OR EXISTING FOOD STANDARDS
I Identification of Need for-Review
(1) The Council shall request the Authority to review an approved food standard
or an existing food standard if the Council considers that:
(a) it is not consistent with existing policy guidelines set by the Council;
(b) it is not consistent with the objectives of the legislation which establishes the
Authority;
(c) it does not protect public health and safety;
(d) it does not promote consistency between domestic and international food
standards where these are at variance;
(e) it does not provide adequate information to enable informed choice;
(f) it is difficult to enforce and/or comply with in both practical or resource terms;
(g) it places an unreasonable cost burden on industry or consumers;
(h) it is not consistent with the principles for the establishment of food standards
set down in this Agreement, including consistency with both countries' World
Trade Organization obligations and consistency with the domestic laws and
regulations of both countries; and/or
(i) it is inappropriate on the grounds of exceptional environmental or cultural
factors.
(2) For existing standards, subsequent to a review undertaken in accordance with
paragraph (1) of this Annex, the Council may request the Authority to take any
action the Council considers appropriate (including, without limitation, requesting
the Authority to prepare a proposal for the development of a food standard to
replace, amend, or revoke the food standard or advising the Authority that no
further action is required).
(3) For approved standards , subsequent to a review undertaken in accordance with
paragraph ( 1) of this Annex , the Council may decide to amend or reject the food
standard.
(4) The Council shall publicly announce its reasons for rejecting a standard under
paragraph (3)."
Annex D ( Principles and Procedures to be Followed where Different
10.
Conditions in Australia or New Zealand Indicate Variations to Standards are
Required ) of the Agreement shall be replaced with the following:
"ANNEX D
EXCEPTIONAL CIRCUMSTANCES
(1) For the purposes of this Annex, the Member States acknowledge that:
(a) their joint objective is for the same standards to apply in both Member States
wherever possible; and
(b) in light of that objective they will pursue all available avenues to ensure a joint
standard applies in both countries before utilising any of the measures under this
Annex.
The following provisions set out the principles and procedures to be followed in
exceptional circumstances where different conditions in Australia or New Zealand
necessitate a modification , separate standard , or an opt-out.
(2) In this Annex, 'prescribed grounds' means exceptional health , safety, third
country trade, environmental , or cultural grounds.
(3) A standard or part of a standard may be inappropriate for New Zealand and in the
case of a separate standard a separate standard may be required for Australia or
New Zealand only on prescribed grounds.
(4) The following notification procedure applies when an exceptional circumstance
necessitates different conditions in Australia or New Zealand:
(a) where the New Zealand Minister informs the Council under paragraph (7) that
a modification for New Zealand is required , the New Zealand Minister shall:
(i) inform the Council of the relevant prescribed grounds for the modification; and
(ii) provide a note detailing those prescribed grounds and the reasons why the
proposed standard is inappropriate for New Zealand;
(b) where a Member State informs the Council under paragraph ( 11) that a separate
standard will be required for that Member State, the Member State shall:
(i) inform the Council of the relevant prescribed grounds on which the separate
standard will be required; and
(ii) provide a note detailing those prescribed grounds and the reasons why a
separate standard will be required for the Member State; and
(iii) in the case of New Zealand, provide in the note referred to in subparagraph (ii),
the reasons why a modification would not be adequate to deal with the exceptional
circumstance;
(c) where the New Zealand Minister informs the Council that New Zealand will need
to opt out of a food standard under paragraph (14), the New Zealand Minister shall:
(i) inform the Council of the relevant prescribed grounds for the opt out; and
(ii) provide a note detailing those prescribed grounds and the reasons why the
proposed standard is inappropriate for New Zealand; and
(iii) provide in the note referred to in subparagraph (ii), the reasons why a
modification or separate standard would not be adequate to deal with the exceptional
circumstance.
(5) The Council shall make public any note provided under paragraph (4)(a), (b), or
(c)•
(6) Measures taken under this Annex shall not create a barrier to trade unless
exceptional health , safety or environmental concerns exist.
I New Zealand modification
(7) If, while a food standard is under development by the Authority, the New
Zealand Minister considers that a part or parts of the food standard would be
inappropriate for New Zealand on one or more of the prescribed grounds or the
Authority advises the New Zealand Minister that a part or parts of the food
standard may be inappropriate for New Zealand on exceptional health, safety, or
environmental grounds, the New Zealand Minister may, in a timely manner,
before the draft standard has been approved by the Authority, inform the Council
in accordance with the notification procedure in paragraph (4)(a) that a
modification for New Zealand is required.
(8) The New Zealand Minister shall, after informing the Council of the need for a
modification, request the Authority to prepare a modification to the relevant part
or parts of the standard under development so as to make them appropriate for
New Zealand.
(9) Where notification is given under paragraph (7), the Authority shall develop a
modification for New Zealand.
(10) Any resulting modification that comes into effect for New Zealand shall be
included in the food standard in the Australia New Zealand Food Standards
Code.
II Separate Standard
(11) If, while a food standard is under development by the Authority, the New
Zealand Minister or the Australian Minister considers that on one or more of the
prescribed grounds a separate food standard is needed for that Member State or
the Authority advises the New Zealand Minister or the Australian Minister that a
separate standard may be needed for the Member State on exceptional health,
safety , or environmental grounds , the Minister may , in a timely manner, before
the draft standard has been approved by the Authority, inform the Council in
accordance with the notification procedure in paragraph (4)(b) that a separate
food standard will be required for that Member State.
(12) Where notification is given under paragraph (11) the Authority shall also
develop a separate food standard for that Member State, subject to agreement
being reached on any necessary modifications to the funding and performance
arrangements.
(13) Any resulting food standard that comes into effect shall apply only in the
Member State for which it was ultimately developed.
III New Zealand opt-out
(14) Where the New Zealand Minister considers that a standard under
development or an approved food standard would be inappropriate for New
Zealand on one or more of the prescribed grounds and that the process for a
modification or separate standard is not appropriate or the Authority advises the
New Zealand Minister that the standard may be inappropriate for New Zealand
on exceptional health, safety, or environmental grounds and the process for a
modification or separate standard is not appropriate, the New Zealand Minister
may, in a timely manner, inform the Council in accordance with the notification
procedure in paragraph (4)(c) that New Zealand needs to opt out of the food
standard.
(15) In the event of the New Zealand Minister informing the Council that New
Zealand needs to opt out of a food standard in accordance with paragraph (14)
then:
(a) in the case of a food standard under development, the Authority shall continue
to develop the food standard for Australia only; and
(b) in the case of a food standard from which New Zealand opted out while it was
either under development or an approved food standard, the food standard shall
be applicable only in Australia.
(16) Where New Zealand has opted out of a food standard under this Part of this
Annex, the food standard in the Australia New Zealand Food Standards Code
shall include an annotation to indicate that the standard does not apply in New
Zealand."
The title of present Annex E of the Agreement shall be replaced with the
11.
following:
"ANNEX F
TRANSITIONAL PROVISIONS"
12.
A new Annex E shall be inserted in the Agreement as follows:
"ANNEX E
TEMPORARY FOOD STANDARDS
(1) For the purposes of this Annex, the Member States acknowledge that in some
instances issues affecting public health and safety or environmental conditions
may need to be addressed urgently by a Member State or an Australian
jurisdiction on a temporary basis.
(2) Where a Member State or Australian jurisdiction represented on the Council
determines that there is an issue affecting public health and safety or
environmental conditions that needs to be addressed urgently, and that the
circumstances do not allow time for the steps pursuant to paragraph (1) of Article
5 of this Agreement to be taken, the Member State or Australian jurisdiction may
adopt a temporary food standard under its own food laws.
(3) Paragraph (2) only applies if the relevant lead Minister notifies the Council of
the intention of that Member State or Australian jurisdiction to adopt the
temporary food standard and of the reasons and available evidence.
(4) The relevant Member State or Australian jurisdiction shall, on adopting the
temporary food standard, make an immediate request to the Authority to raise a
proposal relating to the matters covered in the temporary food standard.
(5) The Authority shall, on receiving that request, expeditiously raise a proposal
and give appropriate priority to its progression.
(6) The temporary food standard adopted under paragraph (4) shall apply only
until a draft food standard developed as a consequence of the proposal raised
under paragraph (5) is either adopted or rejected or the proposal is abandoned."
I have the honour to propose that, if the foregoing is acceptable to the
Government of Australia, then this letter and your letter in reply to that effect shall
together constitute an exchange of letters amending the Agreement, which shall
enter into force on the date on which both Governments have notified each other
through an exchange of notes that their respective domestic processes
necessary for the entry into force of the exchange of letters have been
completed.
Please accept the assurances of my highest consideration.
Hon Kate Wilkinson
Minister for Food Safety
New Zealand
Wellington, 24 February 2010
The Hon Kate Wilkinson MP
Minister for Food Safety
Private Bag 18 888
Parliament Buildings
Wellington New Zealand 6160
Dear Minister Wilkinson
I have the honour to refer to your letter of 24 February 2010, which reads as follows:
"I have the honour to refer to the Agreement between the Government of New
Zealand and the Government of Australia Concerning a Joint Food Standards
System done at Wellington on 5 December 1995, as amended, (hereinafter referred
to as the Agreement"), the review of the Agreement pursuant to its Article 9, and
consultations between our two Governments convened under its Article 10 with a
view to amendment of the Agreement.
I have the further honour to inform you that at the conclusion of the aforementioned
review and consultations between our two Governments, the following amendments
to the text of the Agreement were agreed:
The eighth paragraph of the Preamble to the Agreement shall be replaced
1.
with the following:
ACKNOWLEDGING the existence and operation of the Food Regulation
Agreement and noting that it has replaced the 1991 Agreement between the
Commonwealth of Australia and the States and Northern Territory of Australia
and the Australian Capital Territory in relation to the adoption of uniform food
standards;
Sub-paragraph (g) of Article 1 (Definitions) of the Agreement shall be replaced
2.
with.the following:
(g) the term "Food Regulation Agreement" means the Food Regulation
Agreement between the Commonwealth of Australia and the States and
Northern Territory of Australia and the Australian Capital Territory signed on 3
November 2000, as amended from time to time;
and the term "Food Regulation Agreement 2000" shall be replaced with the
term "Food Regulation Agreement" throughout the Agreement.
The words "Annex D" in paragraph 7 of Article 4 (The Australia New Zealand
3.
Food Standards System) of the Agreement shall be replaced with the words
"Annexes D and E".
The words "Annex E " in paragraph 8 of Article 4 (The Australia New Zealand
4.
Food Standards System ) of the Agreement shall be replaced with the words "Annex
F".
The words "Annex D and E" in paragraph 1 Article 5 (Adoption of Food
5.
Standards) shall be replaced with the words "Annexes D, E and F".
The words "Annex D" in paragraphs 2 and 3 of Article 5 (Adoption of Food
6.
Standards) shall be replaced with the words "Annexes D and E".
Paragraph 2 of Article 8 (Consultations) of the Agreement shall be replaced
7.
with the following:
(2) In addition to any consultations that might be held pursuant to paragraph
(1) of this Article, Member States shall consult at the written request of either
in relation to any provisions in respect of which Annex D of this Agreement
applies.
Sub-paragraph (2)(f) of Annex A (Principles Underpinning the Australia New
8.
Zealand Food Standards System) shall be replaced with the following:
(f) subject to the principles set out in Parts B,C and D of the Principles and
Guidelines for National Standard Setting and Regulatory Action by Ministerial
Councils and Standard Setting Bodies endorsed by the Council of Australian
Governments and the New Zealand Code of Good Regulatory Practice.
Annex C (Review of Approved or Existing Standards) of the Agreement
9.
shall be replaced with the following:
"ANNEX C
REVIEW OF APPROVED OR EXISTING FOOD STANDARDS
I Identification of Need for Review
(1) The Council shall request the Authority to review an approved food standard
or an existing food standard if the Council considers that:
(a) it is not consistent with existing policy guidelines set by the Council;
(b) it is not consistent with the objectives of the legislation which establishes the
Authority;
(c) it does not protect public health and safety;
(d) it does not promote consistency between domestic and international food
standards where these are at variance;
(e) it does not provide adequate information to enable informed choice;
(f) it is difficult to enforce and/or comply with in both practical or resource terms;
(g) it places an unreasonable cost burden on industry or consumers;
(h) it is not consistent with the principles for the establishment of food standards
set down in this Agreement, including consistency with both countries' World
Trade Organization obligations and consistency with the domestic laws and
regulations of both countries; and/or
(i) it is inappropriate on the grounds of exceptional environmental or cultural
factors.
(2) For existing standards, subsequent to a review undertaken in accordance with
paragraph (1) of this Annex, the Council may request the Authority to take any
action the Council considers appropriate (including, without limitation, requesting
the Authority to prepare a proposal for the development of a food standard to
replace, amend, or revoke the food standard or advising the Authority that no
further action is required).
(3) For approved standards , subsequent to a review undertaken in accordance with
paragraph (1) of this Annex, the Council may decide to amend or reject the food
standard.
(4) The Council shall publicly announce its reasons for rejecting a standard under
paragraph (3)."
Annex D (Principles and Procedures to be Followed where Different
10.
Conditions in Australia or New Zealand Indicate Variations to Standards are
Required) of the Agreement shall be replaced with the following:
"ANNEX D
EXCEPTIONAL CIRCUMSTANCES
(1) For the purposes of this Annex, the Member States acknowledge that:
(a) their joint objective is for the same standards to apply in both Member States
wherever possible; and
(b) in light of that objective they will pursue all available avenues to ensure a joint
standard applies in both countries before utilising any of the measures under this
Annex.
The following provisions set out the principles and procedures to be followed in
exceptional circumstances where different conditions in Australia or New Zealand
necessitate a modification , separate standard, or an opt-out.
(2) In this Annex, 'prescribed grounds' means exceptional health, safety, third
country trade , environmental , or cultural grounds.
(3) A standard or part of a standard may be inappropriate for New Zealand and in the
case of a separate standard a separate standard may be required for Australia or
New Zealand only on prescribed grounds.
(4) The following notification procedure applies when an exceptional circumstance
necessitates different conditions in Australia or New Zealand:
(a) where the New Zealand Minister informs the Council under paragraph (7) that
a modification for New Zealand is required, the New Zealand Minister shall:
(i) inform the Council of the relevant prescribed grounds for the modification; and
(ii) provide a note detailing those prescribed grounds and the reasons why the
proposed standard is inappropriate for New Zealand;
(b) where a Member State informs the Council under paragraph (11) that a separate
standard will be required for that Member State, the Member State shall:
(i) inform the Council of the relevant prescribed grounds on which the separate
standard will be required; and
(ii) provide a note detailing those prescribed grounds and the reasons why a
separate standard will be required for the Member State; and
(iii) in the case of New Zealand, provide in the note referred to in subparagraph (ii),
the reasons why a modification would not be adequate to deal with the exceptional
circumstance;
(c) where the New Zealand Minister informs the Council that New Zealand will need
to opt out of a food standard under paragraph (14), the New Zealand Minister shall:
(i) inform the Council of the relevant prescribed grounds for the opt out; and
(ii) provide a note detailing those prescribed grounds and the reasons why the
proposed standard is inappropriate for New Zealand; and
(iii) provide in the note referred to in subparagraph (ii), the reasons why a
modification or separate standard would not be adequate to deal with the exceptional
circumstance.
(5) The Council shall make public any note provided under paragraph (4)(a), (b), or
(c)
(6) Measures taken under this Annex shall not create a barrier to trade unless
exceptional health , safety or environmental concerns exist.
I New Zealand modification
(7) If, while a food standard is under development by the Authority, the New
Zealand Minister considers that a part or parts of the food standard would be
inappropriate for New Zealand on one or more of the prescribed grounds or the
Authority advises the New Zealand Minister that a part or parts of the food
standard may be inappropriate for New Zealand on exceptional health, safety, or
environmental grounds, the New Zealand Minister may, in a timely manner,
before the draft standard has been approved by the Authority, inform the Council
in accordance with the notification procedure in paragraph (4)(a) that a
modification for New Zealand is required.
(8) The New Zealand Minister shall, after informing the Council of the need for a
modification, request the Authority to prepare a modification to the relevant part
or parts of the standard under development so as to make them appropriate for
New Zealand.
(9) Where notification is given under paragraph (7), the Authority shall develop a
modification for New Zealand.
(10) Any resulting modification that comes into effect for New Zealand shall be
included in the food standard in the Australia New Zealand Food Standards
Code.
II Separate Standard
(11) If, while a food standard is under development by the Authority, the New
Zealand Minister or the Australian Minister considers that on one or more of the
prescribed grounds a separate food standard is needed for that Member State or
the Authority advises the New Zealand Minister or the Australian Minister that a
separate standard may be needed for the Member State on exceptional health,
safety, or environmental grounds, the Minister may, in a timely manner, before
the draft standard has been approved by the Authority, inform the Council in
accordance with the notification procedure in paragraph (4)(b) that a separate
food standard will be required for that Member State.
(12) Where notification is given under paragraph (11) the Authority shall also
develop a separate food standard for that Member State, subject to agreement
being reached on any necessary modifications to the funding and performance
arrangements.
(13) Any resulting food standard that comes into effect shall apply only in the
Member State for which it was ultimately developed.
III New Zealand opt-out
(14) Where the New Zealand Minister considers that a standard under
development or an approved food standard would be inappropriate for New
Zealand on one or more of the prescribed grounds and that the process for a
modification or separate standard is not appropriate or the Authority advises the
New Zealand Minister that the standard may be inappropriate for New Zealand
on exceptional health, safety, or environmental grounds and the process for a
modification or separate standard is not appropriate, the New Zealand Minister
may, in a timely manner, inform the Council in accordance with the notification
procedure in paragraph (4)(c) that New Zealand needs to opt out of the food
standard.
(15) In the event of the New Zealand Minister informing the Council that New
Zealand needs to opt out of a food standard in accordance with paragraph (14)
then:
(a) in the case of a food standard under development, the Authority shall continue
to develop the food standard for Australia only; and
(b) in the case of a food standard from which New Zealand opted out while it was
either under development or an approved food standard, the food standard shall
be applicable only in Australia.
(16) Where New Zealand has opted out of a food standard under this Part of this
Annex, the food standard in the Australia New Zealand Food Standards Code
shall include an annotation to indicate that the standard does not apply in New
Zealand."
The title of present Annex E of the Agreement shall be replaced with the
11.
following:
"ANNEX F
T RA NSITIONAL PROVISIONS"
12.
A new Annex E shall be inserted in the Agreement as follows:
"ANNEX E
TEMPORARY FOOD STANDARDS
(1) For the purposes of this Annex, the Member States acknowledge that in some
instances issues affecting public health and safety or environmental conditions
may need to be addressed urgently by a Member State or an Australian
jurisdiction on a temporary basis.
(2) Where a Member State or Australian jurisdiction represented on the Council
determines that there is an issue affecting public health and safety or
environmental conditions that needs to be addressed urgently, and that the
circumstances do not allow time for the steps pursuant to paragraph (1) of Article
5 of this Agreement to be taken, the Member State or Australian jurisdiction may
adopt a temporary food standard under its own food laws.
(3) Paragraph (2) only applies if the relevant lead Minister notifies the Council of
the intention of that Member State or Australian jurisdiction to adopt the
temporary food standard and of the reasons and available evidence.
(4) The relevant Member State or Australian jurisdiction shall, on adopting the
temporary food standard, make an immediate request to the Authority to raise a
proposal relating to the matters covered in the temporary food standard.
(5) The Authority shall, on receiving that request, expeditiously raise a proposal
and give appropriate priority to its progression.
(6) The temporary food standard adopted under paragraph (4) shall apply only
until a draft food standard developed as a consequence of the proposal raised
under paragraph (5) is either adopted or rejected or the proposal is abandoned."
I have the honour to propose that, if the foregoing is acceptable to the
Government of Australia, then this letter and your letter in reply to that effect shall
together constitute an exchange of letters amending the Agreement, which shall
enter into force on the date on which both Governments have notified each other
through an exchange of notes that their respective domestic processes
necessary for the entry into force of the exchange of letters have been
completed.
Please accept the assurances of my highest consideration."
I have the honour to advise that the foregoing is acceptable to the Government of
Australia and that, accordingly, your letter and this letter in reply shall together
constitute an exchange of letters amending the Agreement, which shall enter into
force on the date on which both Governments have notified each other through an
exchange of notes that their respective domestic processes necessary for the entry
into force of this exchange of letters have been completed.
Please accept the assurances of my highest consideration.
MARK BUTLER
Parliamentary Secretary for Health
Australia
3 March 2010
DOCUMENTS TO BE TABLED ON 10 MARCH 2010:
®
National Interest Analysis [2010 ] ATNIA 6
with attachment on consultation
®
Exchange of Letters amending the Agreement between the Government of
Australia and the Government of New Zealand concerning a Joint Food
Standards System, Canberra, 25 October 2001 [2002] ATS 13
[2010] ATNIF 5
NATIONAL INTEREST ANALYSIS: CATEGORY 2 TREATY
SUMMARY PAGE
Exchange of Letters amending the Agreement between the Government of Australia and the
Government of New Zealand concerning a Joint Food Standards System
[2010] ATNIF 5
Nature and timing of proposed treaty action
It is proposed to amend the Agreement between the Government ofAustralia and the
1.
Government of New Zealand Concerning a Joint Food Standards System' done at Wellington on 5
December 1995, as amended (the Agreement) through an Exchange of Letters.
This Exchange of Letters agreeing to the text of the proposed amendments to the Agreement
2.
was signed by New Zealand and Australia (the Exchange of Letters). The Exchange of Letters will
enter into force on the date on which both Governments have notified each other through an
exchange of notes that their respective domestic processes necessary for the entry into force of the
Exchange of Letters have been completed. It is proposed that Australia notify New Zealand that
Australia's necessary domestic processes have been completed as soon as practicable after the
tabling period and consideration by the Joint Standing Committee on Treaties (JSCOT).
Overview and national interest summary
The Agreement established a joint Australia and New Zealand system for the development and
3.
promulgation of food standards. The Exchange of Letters will clarify, improve and update the joint
Australia and New Zealand food standards system by addressing issues identified during the review
of the Agreement that was undertaken in accordance with Article 9 of the Agreement and released in
December 2006.
The proposed amendments to the Agreement will benefit Australia by ensuring that the joint
4.
Australia and New Zealand food standards system, in particular the development and promulgation
of standards, is as effective and efficient as possible. It will also contribute to further strengthening
the trans-Tasman relationship, by maintaining a trans-Tasman market for food products underpinned
by common food standards, and reducing unnecessary barriers to trade. The protection of public
health and safety will remain the primary objective of the joint Australia and New Zealand food
standards system.
Reasons for Australia to take the proposed treaty action
The Australian and New Zealand Governments are strongly committed to the closer integration
5.
of their markets, including overcoming unnecessary regulatory impediments to trans-Tasman
business. The joint Australia and New Zealand food standards system established under the
Agreement contributes to effective market integration.
The Agreement includes New Zealand in a co-operative scheme for the regulation of food
6.
standards established between the Commonwealth and the States and Territories pursuant to an intergovernmental agreement (the Food Regulation Agreement 2008). Under the Food Standards
Australia New Zealand Act 1991 (the FSANZ Act), draft food standards (called `approved food
standards' in the Agreement) and variations of food standards are prepared and approved by Food
Standards Australia New Zealand (the Authority) and submitted to the Ministerial Council
(composed of Ministers from the Commonwealth, each Australian State and Territory' and New
Zealand), which may request the Authority to review the draft. Once accepted by the Council and
published in accordance with the FSANZ Act, a standard or variation becomes part of the Food
Standards Code, which is referenced by State, Territory and New Zealand legislation.
Article 9 of the Agreement provides for review of the effectiveness of the joint Australia and
7.
New Zealand food standards system. The report on the most recent review of the system was
completed in October 2007. The proposed amendments address the issues raised by the review, and
respond to practical difficulties that have arisen in the operation of the Agreement in situations where
different standards for Australia and New Zealand have been considered appropriate. The proposed
Exchange of Letters will also align certain provisions in the Agreement with amendments already
made to the FSANZ Act by the Food Standards Australia New Zealand Amendment Act 2007
(FSANZ Amendment Act 2007), allowing those amendments to commence.
In brief, the amendments contained in the proposed Exchange of Letters will improve the
8.
efficient and effective operation of the joint Australia and New Zealand food standards system by:
a)
b)
c)
d)
streamlining the process for the adoption of food standards by removing the possibility
for the Council to request a second review of a draft standard (Annex C);
removing the provision that the Ministerial Council must request a review if any one
jurisdiction considers a review is required (Annex C);
revising the provisions allowing different standards to apply in Australia and New
Zealand in exceptional circumstances, and setting out clearly the situations in which
different standards can be adopted and the procedures to be followed (Annex D); and
altering the process for the adoption of temporary standards by a jurisdiction in urgent
situations affecting public health and safety or environmental conditions (Annex E).
Obligations
Amendments to Annex C
Annex C deals with requests by the Ministerial Council to the Authority for review of draft
9.
food standards and existing food standards. Currently the Ministerial Council has two opportunities
to request the Authority to review a draft food standard or draft variation of a food standard before
deciding whether to accept, amend or reject the draft standard or variation. The proposed
amendments to paragraph 3 of Annex C will reduce this to a single review only. Once that review is
completed, the Ministerial Council may accept, amend or reject the draft standard (proposed
paragraph 3 of Annex Q. Where the Authority has reviewed an existing standard under Annex C,
the Ministerial Council may request the Authority to prepare a proposal for the development of a
food standard to replace, amend or revoke the existing food standard, or advise the Authority that no
further action is required (proposed paragraph 2 of Annex C).
10. The proposed amendments will enable the commencement of corresponding amendments to
the FSANZ Act to be enacted as a part of the FSANZ Amendment Act 2007. The proposed
amendments will remove from Annex C the current requirement that the Ministerial Council must
request a review if any one jurisdiction considers a review is required (paragraph 1 of Annex Q.
Instead, the Ministerial Council will decide on the need for review according to the decision-making
processes set out in the Food Regulation Agreement 2008, on the basis of the criteria set out in
paragraph I of Annex C. The proposed amendments in Annex C paragraph 1(i) retain the criteria
`exceptional environmental or cultural factors', which may be considered by the Ministerial Council
as a reason for review generally (as currently provided by paragraph 2 of Annex Q.
Amendments to Annex D
11. Annex D to the Agreement currently provides for different standards to apply in Australia and
New Zealand through the development of either: (i) `separate standards' for New Zealand and
Australia where required for exceptional health and safety or environmental reasons (Section I of
Annex D); or (ii) New Zealand-only `variations' from a food standard where required on the grounds
of exceptional health, safety, `third country' trade, environmental or cultural factors (Section II of
Annex D). Where separate standards are developed, they are included in the Food Standards Code.
By adopting a variation of a food standard, however, New Zealand in effect `opts out' of the standard
developed under the joint system, and any subsequent standard developed as a New Zealand-only
variation is not incorporated in the Food Standards Code.
12. The proposed amendments replace these provisions with a new Annex D regarding
`exceptional circumstances'. The proposed amendments to Annex D acknowledge that both
countries share the objective of joint food standards applying in both countries wherever possible,
and that the measures in Annex D will only apply in exceptional circumstances. Both countries also
acknowledge that they will pursue all avenues to ensure a joint standard applies, before invoking a
mechanism under Annex D to apply different food standards. The only grounds under which either
country will be able to vary from a joint food standard are exceptional health, safety, `third country'
trade, environmental, or cultural grounds (the prescribed grounds).
13. The proposed amendments will establish three different mechanisms for variation which depart
from the joint food standard by differing degrees, in order to enable the countries to use the
mechanism most appropriate for the food standard in question. The mechanisms established by the
proposed amendments to Annex D are:
a) modification of a food standard for New Zealand only;
b) development of a separate standard at the request of either country; and
c) New Zealand 'opt-out'.
These mechanisms are intended to promote consistency between food standards wherever possible,
and avoid some of the difficulties and uncertainties which have been encountered in the operation of
Annex D in the past.
14. Proposed Section I of Annex D provides for the modification of a food standard for New
Zealand only where New Zealand considers that a part (or parts) of a food standard under
development by the Authority would be inappropriate for New Zealand on prescribed grounds. Such
a modification would be developed by the Authority as part of the joint food standard under
development and would thus be included in the Food Standards Code once accepted by the
Ministerial Council.
15. Proposed Section II of Annex D provides that a separate food standard may be developed
where either country identifies, during the development of a joint food standard, that a separate food
standard is needed for that country on prescribed grounds. The resulting separate food standard will
be developed by the Authority and included in the Food Standards Code once accepted by the
Ministerial Council.
16. Proposed Section III of Annex D provides for New Zealand to opt out of a food standard
altogether (as permitted under current Section II of Annex D). New Zealand may `opt out' of a food
standard on prescribed grounds, in cases where the New Zealand Minister does not consider that a
modification or separate food standard would adequately deal with the exceptional circumstances in
the case. Where New Zealand opts out of a food standard, an annotation to the Food Standards Code
will indicate that the food standard does not apply in New Zealand. This ability to `opt out'
recognises that, although New Zealand is a part of the joint Australia and New Zealand food standard
system, it retains the right to make sovereign choices with respect to which food standards are
appropriate for New Zealand.
17. Where a mechanism under Annex D is exercised by either country, the relevant Minister must
notify the Ministerial Council (proposed paragraph 4 of Annex D). The notification must include the
relevant prescribed ground(s) and a written explanation detailing why the modification, separate
standard or `opt-out' is needed. Where New Zealand requires a separate food standard or `opts out',
it must also explain why an approach with a lesser degree of variation would not be adequate. In all
cases, the notification provided to the Ministerial Council will be made public (proposed paragraph 5
of Annex D).
New Annex E
18. Annex D also currently authorises the Australian jurisdictions (the Commonwealth, States and
Territories) and New Zealand to adopt or amend food standards under their food laws on a temporary
basis in circumstances affecting public health and safety or environmental conditions, where time
will not allow the normal steps for the development or amendment of food standards to be taken.
The proposed amendments move the provisions regarding temporary standards into a separate Annex
E, where they will continue to be available in these circumstances. As in the current Annex D, the
jurisdiction intending to apply the temporary standard must notify the Ministerial Council of its
intention to do so.
19. However, the proposed amendments will also require the relevant jurisdiction to provide to the
Ministerial Council the reasons and evidence upon which the decision is based (proposed paragraph
3 of Annex E). A jurisdiction that creates a temporary standard will be required to immediately
request that the Authority raise a proposal relating to the matters covered by the temporary standard
(proposed paragraph 4 of Annex E). The proposed amendments will ensure that a temporary
standard applies only until a draft food standard developed as a result of that proposal is adopted,
rejected, or abandoned by the Authority. This is a more practical timeframe than the present
requirement. Currently, a temporary standard can apply for no longer than twelve months, and there
is a six month time limit for the Authority to prepare a standard, regardless of the nature or
complexity of the issues.
Amendments regarding the Food Regulation Agreement
20. The Food Regulation Agreement 2008 has been amended since the Agreement was concluded,
and may be further amended in the future. Accordingly, the proposed amendments make it clear that
references in the Agreement to the `Food Regulation Agreement 2008' mean that Agreement as it is
amended from time to time. The proposed amendments are consistent with recent amendments to the
FSANZ Act.
Implementation
21. The FSANZ Amendment Act 2007 amends Division 3 of Part 3 of the FSANZ Act to reduce
from two to one the number of reviews of a draft food standard that can be requested by the
Ministerial Council. This amendment to the FSANZ Act will commence on the day on which the
Exchange of Letters enters into force. There is no need for any further legislative amendments to
give effect to the proposed amendments.
22. There will be no change in administrative responsibility for, or Commonwealth, State and
Territory roles under, the Agreement. It will continue to be administered in Australia by the
Department of Health and Ageing and the Authority.
Costs
23. The Australia and New Zealand joint food standards system will continue to be funded jointly
by Australia and New Zealand based on a share of the total agreed cost proportional as determined
in writing (Article 6). The maintenance of a joint food standards system is budget neutral.
Regulation Impact Statement
24. The Office of Best Practice Regulation (Productivity Commission) has been consulted and
confirms that a Regulation Impact Statement is not required.
Future treaty action
25. Article 10 of the Agreement, which is not affected by the proposed amendments, provides that
either Australia or New Zealand may request consultations regarding amendments to the Agreement
and that any amendments will be made by Exchange of Letters, which shall include a reference to the
date on which the amendments shall come into force. Any future amendments to the Agreement
would be subject to Australia's normal domestic treaty-making process, including tabling and
consideration by JSCOT.
Withdrawal or denunciation
26. Article 12 of the Agreement provides that either Australia or New Zealand may at any time
give notice to the other country in writing through diplomatic channels of its decision to terminate
the Agreement. Termination would take effect twelve months after receipt of such notice. Article 12
remains unchanged by the proposed amendments.
Contact details
Food Governance Section
Regulatory Policy and Governance Division
Department of Health and Ageing
GPO Box 9848
Canberra ACT 2601
Australia
CONSULTATION
Exchange of Letters amending the Agreement between the Government of Australia and the
Government of New Zealand concerning a Joint Food Standards System, Canberra, 25
October 2001 [2002] ATS 13
[2010] ATNIF 5
CONSULTATION
27. Consultation on the proposed amendments to the Agreement was undertaken after officials had
reached in-principle agreement on the amendments. The consultation took place in both Australia
and New Zealand between 8 October and 6 November 2009. Targeted consultation with key
industry stakeholders was undertaken via a consultation document (jointly prepared by both
countries) that explained the proposed amendments.
28. More than 20 Australian key stakeholders received the consultation document and were invited
to make a submission and meet with the Australian head of negotiations to raise and discuss any
issues. This list of stakeholders was developed by the Australian Reference Group and was based
upon the consultations undertaken during the Treaty Review in 2006.
29. Three stakeholders took up the offer to meet with the Australian head of negotiations. The
resulting meeting was a round table discussion with Coles Supermarkets, Confectionery
Manufacturers of Australia and Dairy Australia in Melbourne on 27 October 2009.
30. Discussion at the round table was very positive. Attendees in general considered that the
proposed changes would make the arrangement more transparent and therefore supported the
approach that had been taken.
31. In addition, Coles, Heinz, Confectionery Manufacturers of Australia and the Australian Food
and Grocery Council provided submissions on the proposed amendments which indicted support for
the amendments.
32. The intention to negotiate with New Zealand regarding amendments to the Agreement was
included on the agenda for the Commonwealth-State/Territory Standing Committee on Treaties
(SCOT) in August 2007, and has been included on the SCOT Schedule of Treaties since that time.
33. States and Territories were consulted through the Food Regulation Standing Committee
(FRSC), and were invited to provide a submission. A summary of the submissions received from
States and Territories is provided below:
®
ACT Government provided a formal submission which noted that a number of the proposed
amendments had already been the subject of consultation arising from the review of the
Agreement in 2006.
®
Victorian Government provided a submission which supported all amendments as proposed
in the consultation paper.
®
Queensland Government provided a submission which expressed some concern about the
ability for New Zealand to opt out of a standard, but noted that the proposed requirement for
providing reasons for such is a step in the right direction. The submission also suggested that
"exceptional environmental or cultural factors" in Annex C should be defined to provide the
necessary clarity.
New South Wales Government provided a submission indicating that the proposed
amendments adequately address most of the issues identified in the review of the Agreement.
However the submission also urged continued future work to harmonise such areas as the
regulation of dietary supplements.
34. The feedback from consultations did not require any modification to the draft text, as there
were no contentious issues identified . The suggestion by the Queensland Government to define the
terms "exceptional environmental or cultural factors" was explored during negotiations , however no
definition was found to be more appropriate than the ordinary meaning of the words, and therefore
such a definition was not included.