10. Non-tariff Barriers

There is no clear definition of non-tariff barriers. Most definitions explain non-tariff barriers in negative terms. For example, the Organisation for Economic Cooperation and Development (OECD) describes non-tariff barriers as:
… all barriers to trade that are not tariffs.1
The Trans-Pacific Partnership Agreement (TPP) contains a number of chapters dealing with aspects of non-tariff barriers, including chapters on:
customs administration and trade facilitation;
sanitary and phytosanitary measures;
technical barriers to trade; and
transparency and anti-corruption.
This Chapter will examine the TPP’s treatment of non-tariff barriers and their impact on Australia.

Customs Administration and Trade Facilitation

According to the NIA:
… this Chapter requires the Parties to limit the administrative burdens of customs processes by encouraging cooperation between customs authorities, promoting efficient customs procedures and providing transparency and fairness to traders.2
As a basic principle, the TPP requires parties to apply customs procedures in a manner that is predictable, consistent and transparent. Parties are required to communicate regularly to ensure each party knows about potential non-compliance with customs requirements and potential breaches of the law.3
Changes to custom valuations and tariff classifications on imported goods are required to be communicated in advance.4
A particular benefit for exporters from the TPP is the obligation to automate customs procedures. In other words, customs rules and forms should become available electronically to exporters, who can then make themselves aware of customs requirements and submit customs forms more efficiently in terms of time and cost.5
Another obligation that will benefit exporters is the obligation to simplify procedures to ensure the efficient release of goods from transport facilities.6

Sanitary and phytosanitary procedures

Sanitary and phytosanitary procedures are intended to protect human, animal and plant life from dangers that might be imported into a country. This could include protecting against the importation of pathogens on food products, the importation of potentially invasive species, or the importation of products that have been produced using dangerous chemicals or medicines.7
A particular advantage of the TPP sanitary and phytosanitary procedures is that:
Each Party shall ensure that its sanitary and phytosanitary measures either conform to the relevant international standards, guidelines or recommendations or, if its sanitary and phytosanitary measures do not conform to international standards, guidelines or recommendations, that they are based on documented and objective scientific evidence that is rationally related to the measures …8
Sanitary and phytosanitary measures based on scientific principles are a central part of Australia’s sanitary and phytosanitary regime, and Australian exporters are keen for the scientific approach to be more widely adopted. According to GrainGrowers:
Our sector is a strong supporter of scientific bases for phytosanitary and technical barriers to trade—or technical specs—and this allows a common area or common arbitration.9
Another important TPP measure is the commitment to transparency in sanitary and phytosanitary matters:
The Parties recognise the value of sharing information about their sanitary and phytosanitary measures on an ongoing basis, and of providing interested persons and other Parties with the opportunity to comment on their proposed sanitary and phytosanitary measures.10

Technical barriers to trade

The technical barriers to trade Chapter is based on the WTO Agreement on Technical Barriers to Trade.11
The objective of the technical barriers to trade Chapter is to:
… facilitate trade, including by eliminating unnecessary technical barriers to trade, enhancing transparency, and promoting greater regulatory cooperation and good regulatory practice.12
Once again, there is a strong commitment to transparency, with an obligation to allow other parties to the TPP to participate in the development of technical regulations.13
One aspect of the technical barriers to trade Chapter attracted interest from participants in the inquiry. The Chapter requires the establishment of a technical barriers to trade committee, which will have membership from each TPP party. The purpose of the committee is to resolve technical trade issues.14
GrainGrowers advised that:
Ensuring Australian government representation to these committees are well resourced will be key to their being meaningful technical access harmonisation in the TPP, and the value of these provisions overall will be demonstrated only when the Agreement comes into force.15
In relation to Australia’s own technical barriers to trade, Adjunct Professor Anna George was also concerned that Australia should retain the integrity of its scientific based sanitary and phytosanitary provisions if other parties to the TPP attempt to minimise the differences between Australian and other standards.16
The Committee concurs with GrainGrowers and Adjunct Professor George that Australia needs ensure that the standards on all products—both domestically produced and imported into Australia—remain high.
On that basis, the Committee recommends that Australian representation on the committee dealing with technical barriers to trade needs to be effectively resourced to advocate for Australia’s scientific approach to technical barriers to trade.

Recommendation 5

The Committee recommends that the Australian Government ensure adequate resourcing to enable effective participation in committees dealing with technical barriers to trade.

Transparency and anti-corruption

The TPP Chapter on transparency and anti-corruption is intended to:
… eliminate bribery and corruption with respect to any matter covered by this Agreement.17
This Chapter requires that each party establish a legal regime to outlaw corruption and bribery by public officials of nationals of other TPP parties in relation to all matters covered by the TPP.18
The Chapter also obliges TPP parties to apply those laws where a case of bribery or corruption is exposed.19
Failure to do either of these things will open the party to claims against it using the dispute settling mechanism in the TPP.20
Australia is already compliant with these requirements, however the Committee considers that implementation of these requirements may bring significant benefits to other TPP parties.21

  • 1
    Organisation for Economic Cooperation and Development (OECD), ‘Glossary of Statistical Terms–non-tariff barriers,’ <https://stats.oecd.org/glossary/detail.asp?ID=1837 > accessed 13 November 2016.
  • 2
    National Interest Analysis [2016] ATNIA 4, Trans-Pacific Partnership Agreement between the Government of Australia and the Governments of Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States of America and Vietnam and associated side letters [2016] ANTNIF 2 (hereafter referred to as the NIA), NIA–Attachment IV–Summary of Chapter Outcomes, para 11.
  • 3
    TPP, Article 5.1.
  • 4
    TPP, Article 5.4
  • 5
    TPP, Article 5.6
  • 6
    TPP, Article 5.7
  • 7
    TPP, Article 7.2
  • 8
    TPP, Article 7.2
  • 9
    Dr Cheryl Kalisch Gordon, Trade and Economics Manager, GrainGrowers, Committee Hansard, Canberra, 17 October 2016, p. 37.
  • 10
    TPP, Article 7.13.
  • 11
    TPP, Article 8.1.
  • 12
    TPP, Article 8.1.
  • 13
    TPP, Article 8.7.
  • 14
    TPP, article 8.9.
  • 15
    GrainGrowers, Submission 94, p. 7.
  • 16
    Adjunct Professor Anna George, Submission 106, p. 2.
  • 17
    TPP, Article 26.6.
  • 18
    TPP, Article 26.7.
  • 19
    TPP, Article 26.7.
  • 20
    TPP, Article 26.12.
  • 21
    NIA–Attachment IV–Summary of Chapter Outcomes, para 85.

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About this inquiry

This inquiry will examine the following treaty: Trans Pacific Partnership Agreement between the Government of Australia and the Governments of: Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States of America and Vietnam, associated side letters and proposed Australian notification on tobacco control measures (Auckland, 4 February 2016)

Past Public Hearings

07 Nov 2016: Canberra
17 Oct 2016: CANBERRA
07 Oct 2016: MELBOURNE