2076 - Queensland Parliament
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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.