Australia

NATIONAL TRADE ESTIMATES REPORT

  • Delays in Third Party Notification to affected patent holders
  • Local content requirements for subscription TV with drama programing
  • Local content requirements in Australian Content Standard of 2005
  • Local content requirements for commercial radio
  • New state-owned NBN Company should provide for non-discriminatory access to National Broadband Network
  • US investor’s purchase of GrainCorp was blocked on national interest grounds
  • Overseas storage of electronic health records is prohibited
  • Preference for local handling of blood fractionation, contract let without tender

REPORT ON SANITARY & PHYTOSANITARY MEASURES

  • Restrictions on beef imported from US on basis of BSE
  • Restrictions on pork imports for animal health reasons are unwarranted
  • Treating solid waste from pork imports as “quarantine waste product” imposes unnecessary costs
  • Ban on fresh, frozen, and cooked poultry meat imported from US
  • WTO said ban on imported applies due to fire blight was illegal
  • Bans on pears imported from US due to fire blight not supported by evidence
  • Expensive, time-consuming, unnecessary tests on tomato and pepper seeds
  • Treatment for table grapes unjustified and pre-inspection requirements onerous
NTE REPORT: Australiahttp://www.ustr.gov/sites/default/files/2014%20NTE%20Report%20on%20FTB%20Australia.pdf

GOVERNMENT PROCUREMENT

Australia is not a signatory to the WTO Agreement on Government Procurement, but it is an observer. Under the Australia-U.S. FTA, the Australian government opened its government procurement market to U.S. suppliers, eliminating preferences for domestic suppliers, and it also committed to use fair and transparent procurement procedures.

INTELLECTUAL PROPERTY RIGHTS PROTECTION

Australia generally provides strong intellectual property rights protection and enforcement through legislation that, among other things, criminalizes copyright piracy and trademark counterfeiting. Under the Australia-U.S. FTA, Australia must provide that a pharmaceutical product patent owner be notified of a request for marketing approval by a third party for a product claimed by that patent. U.S. and Australian pharmaceutical companies have raised concerns about unnecessary delays in this notification process.

SERVICES BARRIERS

Audiovisual Services

Australia’s Broadcasting Services Amendment Act requires subscription television channels with significant drama programming to spend 10 percent of their programming budgets on new Australian drama programs. This local content requirement does not apply to new digital multi-channels.

The Australian Content Standard of 2005 requires commercial television broadcasters to produce and screen Australian content, including 55 percent of transmission between 6:00 a.m. and midnight. In addition, it requires minimum annual sub-quotas for Australian (adult) drama, documentary, and children’s programs. A broadcaster must ensure that Australian-produced advertisements occupy at least 80 percent of the total advertising time screened in a year between the hours of 6:00 am and midnight, other than the time occupied by exempt advertisements, which include advertisements for imported cinema films, videos, recordings and live appearances by overseas entertainers, and community service announcements.

The Australian commercial radio industry Code of Practice sets quotas for the broadcast of Australian music on commercial radio. The code requires that up to 25 percent of all music broadcast between 6:00 a.m. and midnight must be performed by Australians. Since January 2008, all recipients of regional commercial radio broadcasting licenses have been required to broadcast minimum levels of local content.

Further, in July 2010, the Australian Communications and Media Authority (ACMA) announced a temporary exemption from the Australian music quota for digital-only commercial radio stations (stations not also simulcast in analog). The ACMA will review the exemption in 2014.

Telecommunications

The Australian government-owned NBN Company is implementing a National Broadband Network that is intended to be a neutral provider of wholesale high-speed broadband services nationwide. The NBN structure should provide non-discriminatory access to network services, including for U.S. companies, since NBN will not compete in retail markets, and thus will have no incentive (as incumbent Telstra formerly did) to discriminate in favor of an affiliated retailer. In 2011, Telstra agreed to progressively migrate the company’s voice and broadband traffic from its copper and cable networks to the NBN.

INVESTMENT BARRIERS

Foreign direct investment into Australia is regulated by the Foreign Acquisitions and Takeovers Act 1975 and Australia’s Foreign Investment Policy. The Foreign Investment Review Board (FIRB), a division of Australia’s Treasury, screens potential foreign investments in Australia above a threshold value of A$244 million ($253 million). Based on advice from the FIRB, the Treasurer may deny or place conditions on the approval of particular investments above that threshold on national interest grounds.

Under the U.S.-Australia FTA, all U.S. “green field” investments are exempt from FIRB screening. The U.S.-Australia FTA also raised the threshold for screening of most U.S. investments in Australia, which now stands at A$1,078 million ($970 million), indexed annually. All foreign persons, including U.S. investors, must notify the Australian government and get prior approval to make investments of 5 percent or more in the media sector, regardless of the value of the investment.

While the FIRB generally approves U.S. investment, in November 2013 the Treasurer intervened to block U.S. agribusiness Archer Daniels Midland’s proposed A$3.4 billion purchase of Australian company GrainCorp on national interest grounds.

ELECTRONIC COMMERCE

In July 2012, the Personally Controlled Electronic Health Records Act, which prohibits the overseas storage of any Australian electronic health records, went into effect. The U.S. Government and business community continue to advocate for a risk-based approach to ensuring the security of sensitive data as opposed to a geographic one.

OTHER BARRIERS

Blood Plasma Products and Fractionation

In 2010, the National Blood Authority negotiated an eight-year contract with the Australian company CSL Limited for the ongoing fractionation of Australian plasma and manufacture of key blood products, demonstrating its continued preference for handling fractionation of Australian plasma locally and without public tender. The United States remains concerned about the lack of an open and competitive tendering system for blood fractionation in Australia.

 

SPS Report (pg. 29) : Australia http://www.ustr.gov/sites/default/files/FINAL-2014-SPS-Report-Compiled.pdf

Food Safety

Beef and Beef Products

Australia currently restricts the importation of bovine products from countries that have reported one or more indigenous cases of BSE. In March 2010, Australia modified its food safety import policies to allow imports of beef and beef products from countries that have had BSE cases. Under these requirements Food Standards Australia New Zealand (FSANZ), a regional food safety agency, conducts an individual country risk assessment. In August 2013, an audit team from FSANZ conducted an inspection of U.S. production and processing facilities, and the United States is reviewing the draft report from that inspection. In addition to the FSANZ review, Biosecurity Australia conducts a separate import risk analysis for each exporting country to address animal quarantine issues. The United States submitted a completed BSE-related questionnaire in June 2010 and hosted a visit by an Australian official in July 2010 to discuss Australia’s BSE evaluation process. Biosecurity Australia has not yet concluded its risk assessment for U.S. beef and beef products. The United States will continue to urge Australia to open its market fully to U.S. beef and beef products based on science, the OIE guidelines, and the United States’ BSE negligible risk status.

Animal Health

Pork

Access for U.S. pork to Australia is limited to frozen, boneless pork due to concerns about the introduction of porcine reproductive and respiratory syndrome (PRRS) and post‐weaning multisystemic wasting syndrome (PMWS). The United States has requested that Australia remove unwarranted PRRS and PMWS related restrictions to allow importation of all U.S. pork products. Citing these diseases, Australia also requires that all solid waste from pork imports, regardless of whether the pork is cooked or uncooked, be treated as a quarantine waste product. The new requirements have unnecessarily raised the costs of handling imported pork.

Poultry

Australia bars imports of fresh, frozen, and cooked poultry meat, including turkey meat from the United States. In 2009, the United States requested Australia to prioritize granting market access for U.S. cooked turkey meat. In 2012 Australia initiated an evaluation of U.S. cooked turkey meat to assess the existence of a virus that causes Infectious Bursal Disease. In a letter dated July 15, 2013, APHIS Veterinary Services provided Australia with information about the U.S. turkey industry and the National Poultry Improvement Plan, as well as requested data about the status of certain turkey diseases in the United States. Australia has not requested any additional information. The United States will continue to work with Australia on any technical issues and will continue to press for progress on this issue.

Plant Health

Apples

Australia currently prohibits the importation of apples from the United States based on concerns about fire blight, a contagious, bacterial disease which can infect apples, pears, and other rosaceous plants. For more than 15 years, the U.S. Government and the U.S. apple industry have engaged with Australian officials to demonstrate that U.S. mature, symptomless apples pose no risk of transmission of fire blight. In October2009, Australia published a pest risk assessment (PRA) for apples from the United States and identified three additional fungal pathogens of concern to Australian regulatory authorities. Research is currently being conducted by USDA to address Australia’s concern about the three fungal pathogens. The PRA also includes overly restrictive fire blight mitigation measures. If the PRA is approved as currently drafted, it will continue to prevent the commercial export of U.S. apples to Australia.

New Zealand requested a WTO panel in 2007 claiming that Australia’s measures regarding the importation of New Zealand apples, including Australia’s mitigation measures for fire blight, were not based on a risk assessment in compliance with the WTO SPS Agreement. The United States was an active third party in support of New Zealand in the case. In August 2010, a WTO panel ruled in favor of New Zealand. In December 2010, the WTO Appellate Body largely upheld the panel’s findings. Apples from New Zealand are now authorized for importation into Australia. The United States continues to monitor Australia’s ongoing PRA process regarding U.S applies in light of the WTO rulings and recommendations in this case.

Pears

Australia currently prohibits the importation of pears from the United States due to the bacterial disease fire blight caused by the bacteria Erwinia amylovora. Australia has claimed that the disease might be transmitted to its domestic apple and pear crops. However, the United States has provided significant amounts of evidence to Australia demonstrating that mature, symptomless pears do not support populations of the fire blight bacteria and are not part of the pathway.

Seeds

For viruses associated with tomato and pepper seed, Australia has excessive testing requirements based on large sample (30,000 seeds) sizes. These tests are very expensive, time consuming, and the large sample sizes result in significant financial loss as these seeds are very high value. Many U.S. seed companies cannot meet these excessive phytosanitary requirements, and trade is being unnecessarily restricted.

Table Grapes

In 2010, Australia raised concerns regarding spotted wing drosophila (SWD) Drosophila suzukii, a species of fruit fly on table grapes from California. Australia requires a carbon dioxide/sulfur dioxide treatment plus a cold treatment to address SWD, despite the fact that SWD has never been found on California table grapes either before or since 2010 and despite no interceptions during pre-clearance inspections by Australian quarantine officials. In October 2013, USDA submitted new research to Australia on a revised cold treatment protocol for California table grapes. Other phytosanitary issues of importance include onerous pre-inspection requirements prior to shipping and access for table grapes from San Luis Obispo County. The United States will continue to work with Australian officials at the technical level to address these concerns.