./.RESTRICTEDWORLD TRADE
ORGANIZATIONS/WPDR/W/8
15 September 2000
(00-3770)
Working Party on Domestic Regulation Original:  English
COMMUNICATION FROM AUSTRALIA
Necessity and Transparency
The following communication has been received from the delegation of Australia with the
request that it be circulated to the Members of the Working Party on Domestic Regulation.
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1. The mandate for the Working Party on Domestic Regulation (S/L/70), in accordance with
GATS Article VI.4, calls on the Working Party to develop any necessary disciplines to ensure that
measures relating to qualification requirements and procedures, technical standards and licensingrequirements do not constitute unnecessary barriers to trade in services.  Members also have an
understanding that domestic regulation disciplines should take account of, and build on, the
transparency provisions of Article III of the GATS.  This paper addresses both necessity and
transparency, and follows on from Australia's earlier general paper on domestic regulation
(S/WPDR/W/1).
2. Australia takes as the starting point for work on domestic regulation, the chapeau of the
GATS:
Recognizing  the right of Members to regulate, and to introduce new regulations, on the supply
of services within their territories in order to meet national policy objectives and, given
asymmetries existing with respect to the degree of development of services regulations in
different countries, the particular need of developing countries to exercise this right;
A. N
ECESSITY TEST
3. Australia proposes that  Members consider how to create the disciplines envisaged in
Article VI.4 of the GATS.  The objective for a necessity test on domestic regulation is to ensure that
qualification requirements and procedures, technical standards and licensing requirements do not
constitute unnecessary barriers to trade in services.  In determining whether a measure is in
conformity with this, account should be taken of internationally-recognised standards of relevantinternational organisations applied by that Member.
4. Australia considers that the following text could be used as the basis for such disciplines:
A measure is not more trade-restrictive than  required unless there is another measure,
reasonably available taking into account technical and economic feasibility, that
achieves a legitimate policy objective and is significantly less restrictive to trade.S/WPDR/W/8
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5. Measures implemented with a view to achieve a legitimate objective should not be applied in
an arbitrary way, nor should they act a disguised barrier to trade in services.  Building on the
accountancy disciplines’ provisions on legitimate objectives, we consider that a non-exhaustive list of
legitimate objectives would assist the clarity of the disciplines.  The non-exhaustive list of legitimate
objectives might include the protection of consumers (which includes all users of services and thepublic generally), the quality of the service, professional competence, the integrity of the profession,
and administrative efficiency and fairness.
6. Australia agrees with the EC (Job No. 1061 of 24 February 2000) that the disciplines should
reflect the principle that the regulator should ac t independently: i.e., the decision on the procedures
used by regulators should be impartial with respect to all market participants.
B. T
RANSPARENCY
7. Article III is the standing guideline for work on transparency, and its requirements should
apply to all domestic regulation, specifically the requirements to publish all relevant measures, to
inform the Council for Trade in Services of new or revised laws and regulations, and to establish
enquiry points.
8. Australia proposes that  the disciplines on domestic regulation include the following
additional requirements, which are based on those in the accountancy disciplines:
(i) making publicly available information on licensing requirements;
(ii) providing advice on reasons for denial of a licence;
(iii) making publicly available necessary technical information;
(iv) an obligation to explain the policy rationale of a measure – especially of a new
measure – on request;
(v) when introducing measures which significantly affect trade in services, Members
shall endeavour to provide opportunity for comment, and give consideration to such
comments, before their adoption.
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