Australia’s Temporary Entry Framework

Box 5.5.1

Australia’s Temporary Entry Arrangements

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  explore business opportunities in Australia;
  
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  conduct business negotiations, site visits, equipment inspections;
  
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  sign business contracts; and/or
  
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  attend conferences or meetings in relation to their field of employment.
  

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  ABTC entry and stay conditions are identical to those of the subclass 456 visa;
  
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  no separate visa application is required; and
  
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  no visa label is required in the ABTC holder’s passport.
  

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  development of e-business solutions for processing applications for long-term temporary business entry where sponsored by Australian businesses;
  
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  implementation of a simple regime involving a minimum salary level (average annual salary) and minimum skill thresholds;
  
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  increased assistance and access to comprehensive information on regulations and procedures relevant to entry and stay. Measures include the establishment of business centres in each region, the development of website and printed information packages, including industry-specific information.
  

The Migration Act 1958 and the Migration Regulations are administered by the Department for Immigration and Multicultural and Indigenous Affairs (DIMIA). The Department is responsible for maintaining the integrity of Australia's borders by ensuring that only those foreign nationals who have authority are allowed to enter and stay in Australia. Australia has a universal visa system, requiring all non-citizens to have a visa for entry and stay in Australia.

As noted already, Malaysia’s process for ICTs is subject to approval from multiple Ministries. FTA negotiations could explore ways of simplifying processes for granting ICTs. For instance, an FTA could include facilitation of movement of business people by requiring authorities to publish on the internet all information on its regulatory visa regime, including application forms. Mechanisms could also be established to enhance communications between the relevant authorities of each country.

FTA negotiations could also address restrictions on the number of specialists allowed to enter as ICTs, as well as visa conditions for the immediate families of ICTs. The prospects for spouses and dependents of primary applicants who are not ICTs receiving work rights could also be explored.

It would also be possible for FTA negotiations to look at ways to enhance the cooperation and coordination on the APEC Business Travel Card scheme and other mechanisms to facilitate the mobility of business people. Australia and Malaysia could seek to ensure that contractual service suppliers and skilled people of an enterprise of one party of the possible FTA are granted entry to allow them to enter, stay and work in the other party for a reasonable period of time. Multiple entries within the period of stay could also be considered.

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  Trade Administration Documents and Customs. In most instances it will be the responsibility of commercial operators to have systems in place to receive, process and send the electronic messages necessary for e-commerce, and the market is often best-placed to drive this uptake of technology. However, a major concentration of government involvement (where market signals are missing), and an area of great significance to trade is in trade administration, and customs in particular. An FTA could add impetus to efforts to standardise customs data and encourage the creation and acceptance of electronic trade administration documents.
  
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  Customs duties moratorium. An FTA can be used to agree to maintain the current practice of not imposing customs duties on electronic transmission, the subject of a rolling moratorium in the WTO.
  
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  Electronic Transactions: Basic Framework. It is important to have guidelines governing the use of electronic materials. As noted above, Australian legislation has sought to achieve this, in part, by removing existing legal impediments that may prevent a person using electronic communications to satisfy legal obligations under Australian law. It would be possible for cooperation under an FTA to extend this to e-commerce between the two countries. In particular, an FTA could clarify the use of United Nations Commission on International Trade Law (UNCITRAL) based model laws for e-commerce used in Australia and Malaysia. An FTA could also seek to explore the cross-jurisdictional relevance of electronic transactions across borders. Efforts are being made via the E-ASEAN strategy to harmonise and create frameworks or to utilise existing electronic transactions acts for cross border transactions. An Australia-Malaysia FTA could build on this work and pilot test cross-border e-transactions, which may be government-to-government transactions, such as customs.
  
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  Authentication. In attempting to establish the authenticity of undertakings and participants in an e-commerce transaction – a vital prerequisite to successful e-commerce – mechanisms that can be used include digital certificates and electronic signatures. An FTA could facilitate mutually recognisable versions of these tools, and encourage the use of international standards in specifications.
  
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  Privacy and on-line data protection. It is important to ensure the privacy of information used in electronic transactions. It is useful to have guidelines to set out the stages of processing personal information and standards for the collection, use, disclosure, quality and security of such information. They could also set out the requirements of access to such information. An FTA could contain a commitment to ensuring the privacy of information used in electronic transactions.
  
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  Consumer protection. Measures to ensure consumer protection are essential to promoting confidence in online transactions. An FTA could promote cooperation on mechanisms to ensure consumer protection for electronic transactions.
  
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  Spam. There has been an increasing proliferation of unsolicited electronic material known as spam. It is important to achieve a balance between permitting responsible direct marketing and other business activities while allowing a strong and effective response to spamming. An FTA could be a vehicle to promote cooperation on combating spam.
  

Australia’s competition framework takes account of international factors with respect to mergers. When assessing mergers pursuant to section 50 of the TP Act, the ACCC considers the actual and potential level of import competition in the market. In deciding whether to grant authorisation to a merger, the ACCC is required to regard as a public benefit significant import substitution and a significant increase in the real value of exports. In certain circumstances Australia’s merger policy extends to cover acquisitions that occur outside Australia, in which cases significant import substitution and a significant increase in the real value of exports are considered. ⁴⁰

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  The Patents Act 1990 establishes a legislative framework for granting and registering patents. Registered owners have exclusive rights to commercially exploit inventions for generally the 20 year life of the patent.
  
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  The Trade Marks Act 1995 establishes a legislative framework for registering and granting rights to exploit trade marks. A trade mark can consist of, for instance, words, symbols, pictures, sounds and/or smells, or any combination of these, used to distinguish the goods and services of one trader from another. Initial registration lasts 10 years, but registration may be renewed for successive periods of 10 years on payment of the renewal fee.
  
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  The Designs Act 2003 establishes a legislative framework for registering and rights to commercially exploit designs. Registration protects the visual appearance of designs which have an industrial or commercial use. Registered owners have exclusive rights to commercially exploit designs. Initial registration lasts for 5 years, but registration can be renewed for one further 5 year period.
  
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  The Plant Breeder's Rights Act 1994 establishes a system for registering plant varieties. New varieties of all plant, fungal, algal species and transgenic plants are eligible for protection. In tree and vine varieties, the right to exploit plant varieties continues for 25 years from the date of granting, and in all other varieties, for 20 years.
  
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  The Copyright Act 1968 provides copyright owners with certain exclusive rights in relation to original artistic, dramatic, musical and literary works (including computer programs), films, broadcasts, performances and sound recordings. Literary, artistic, dramatic and musical works are generally protected for the life of the author plus 70 years.
  
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  The Circuit Layouts Act 1989 provides protection to owners of the layout-designs of integrated circuits (also known as computer chip designs or semi-conductor chips) against unauthorised copying. The maximum possible protection period is 20 years.
  
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  The Australian Wine and Brandy Corporation Act 1980 provides the legislative framework for protection and administration of geographical indications (GIs) for wine in relation to regions and localities in Australia.
  

Some types of IP do not have special statutory protection. Confidential information and trade secrets are protected through contract and the common law action for breach of confidence. Business reputation and goodwill in unregistered trade marks or trade names may be protected by the common law action of passing off or an action for misleading or deceptive conduct under the Trade Practices Act 1974 or equivalent State or Territory legislation.

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  Administrative authorities such as the Commissioner for Patents, the Registrar of Trade Marks and Registrar of Designs may make various decisions as to the granting of patents, trade marks and designs. The Copyright Tribunal is a specialist administrative body which handles disputes in relation to statutory licences. Administrative decisions can be appealed to the Administrative Appeals Tribunal (AAT) or the Federal Court. Appeals from decisions of the AAT can also be made to the Federal Court.
  
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  Courts determine substantive disputes regarding IPR. Proceedings under IP legislation may be commenced in any State or Territory court or in the Federal Court of Australia. Copyright proceedings can also be brought in the Federal Magistrates’ Court. It is most common for proceedings to commence in the Federal Court of Australia. The High Court of Australia will hear appeals on IP matters that, on its determination, raise particularly important issues of law. The Federal Government has developed IP Access, a web-site offering an integrated access point for information relating to IP and accessible at http://www.ipaccess.gov.au.
  

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  an agreement, subject to available resources, to reaffirm and strengthen:
  

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  cooperative arrangements between respective government agencies, educational institutions and organisations concerning intellectual property rights;
  
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  information exchanges (including the enhancement of online resources and public education and awareness activities) to assist in developing a greater understanding of the operation of their respective IP systems;
  

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  an agreement to establish any necessary additional cooperative arrangements to foster dialogue on intellectual property issues and to develop an action plan to address those issues. Subject to available resources, this could be done through the establishment of working groups on relevant topics, such as enforcement;
  
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  a statement acknowledging each Party’s commitment to and obligations under the various multilateral intellectual property treaties and organisations to which they are a party (eg World Intellectual Property Organization (WIPO), WTO TRIPS and the APEC Intellectual Property Rights Experts Group (IPEG));
  
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  an agreement to accede to or ratify other relevant international intellectual property agreements within a specified period from date of entry into force of the FTA. The relevant treaties will need to be specified, but are likely to include the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, and the Patent Cooperation Treaty;
  
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  an agreement to consider acceding to other relevant international intellectual property treaties. The relevant treaties will need to be specified, but could include the Madrid Protocol (concerning the international protection of trade marks);
  
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  a commitment to implement any measures that Parties agree would enhance the effectiveness of their intellectual property regimes.
  

Australia is not a member of the WTO Agreement on Government Procurement. However, Australia is a party to a number of international bilateral trade agreements that feature a chapter on government procurement as a means of enhancing trade and reducing economic barriers.

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  devolved responsibility for the management of procurement by the heads of agencies, in accordance with the FMA Act;
  
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  the principles-based procurement framework, with value for money as the single most important principle;
  
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  flexibility in procedural rules to enable efficient procurement processes across a diverse, and ever changing, procurement environment;
  
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  recognition of agency accountability to the responsible Minister, to the Australian Parliament, to the Australian National Audit Office and to other external bodies; and
  
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  the efficient, effective and ethical use of resources.
  

Australia has been able to retain these features in the Australia New Zealand Agreement on Government Procurement (ANZGPA); the Singapore-Australia Free Trade Agreement (SAFTA); Australia-United States Free Trade Agreement (AUSFTA); and the Thai-Australia Free Trade Agreement (TAFTA). The way in which these agreements address government procurement is set out in broad terms in Box 5.10.1.

Value for money is recognised as the key principle and is supported by non-discrimination requirements. The ANZGPA states the objective of creating and maintaining a single government procurement market to maximise opportunities for Australian and New Zealand suppliers. While not a treaty level agreement, all Australian Federal, State and Territory Governments and the New Zealand Government mutually agree to be covered by the ANZGPA.

The Government Procurement chapter of this agreement is principles-based and consistent with the Australian Government procurement framework. The Chapter details requirements for non-discrimination, equal opportunity to bid for government tenders, the preservation of confidential information and intellectual property, and recognition of industry development policies. The Chapter places emphasis on transparency mechanisms and provides for a review by a competent authority where a supplier has a complaint in respect of alleged breaches of a procuring party’s laws, regulations, procedures and practices. For Australia, only agencies governed by the FMA Act are covered.