Consolidated TPP Text – Annex I – Schedule of Australia

Introductory notes

1. Description sets out the non-conforming measure for which the entry is made.

2. In accordance with Article 9.12.1 (Non-Conforming Measures) and Article 10.7.1 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming measures identified in the Description element of that entry.

Sector:

All

Obligations Concerned:

National Treatment (Article 9.4 and Article 10.3)

Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4)

Performance Requirements (Article 9.10)

Senior Management and Boards of Directors (Article 9.11)

Local Presence (Article 10.6)

Level of Government:

Regional

Measures:

All existing non-conforming measures at the regional level of government.

Description:

Investment and Cross-Border Trade in Services

All existing non-conforming measures at the regional level of government.

Sector:

All

Obligations Concerned:

National Treatment (Article 9.4)

Senior Management and Boards of Directors (Article 9.11)

Level of Government:

Central

Measures:

Australia’s Foreign Investment Policy, which consists of the Foreign Acquisitions and Takeovers Act 1975 (FATA) (Cth);

Foreign Acquisitions and Takeovers Regulations 1989 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); and Ministerial Statements

Description:

Investment

1. The following investmentsFootnote 1 require notification and approval from the Australian Government:

Notified investments may be refused, subject to interim orders, and/or approved subject to compliance with certain conditions. Investments referred to above for which no notification is received may be subject to orders under Sections 18 through 21 and 21A of the FATA.

Separate or additional requirements may apply to measures subject to other Annex I reservations and to sectors, sub-sectors or activities subject to Annex II.

2. The acquisition of a stake in an existing financial sector company by a foreign investor, or entry into an arrangement by a foreign investor, that would lead to an unacceptable shareholding situation or to practical controlFootnote 6 of an existing financial sector company, may be refused, or be subject to certain conditions.Footnote 7

Sector:

Professional Services

Obligations Concerned:

Local Presence (Article 10.6)

Level of Government:

Central

Measures:

Patents Act 1990 (Cth)

Patent Regulations (Cth)

Description:

Cross-Border Trade in Services

In order to register to practise in Australia, patent attorneys must be ordinarily resident in Australia.Footnote 8

Sector:

All

Obligations Concerned:

Performance Requirements (Article 9.10)Footnote 9

Level of Government:

Central

Regional

Measures:

Designs Act 2003 (Cth)

Description:

Investment

A design that has been registered or disclosed in a filed design application may be used by an Australian government (or a person authorised by an Australian government) and, if it is used, any agreement or licence fixing the terms on which a person other than that government may use the design may be inoperative with respect to the government use unless the agreement or licence has been approved by that government.

Sector:

Professional Services

Obligations Concerned:

National Treatment (Article 10.3)

Most-Favoured-Nation Treatment (Article 10.4)

Level of Government:

Central

Measures:

Migration Act 1958 (Cth)

Description:

Cross-Border Trade in Services

To practise as a migration agent in Australia a person must be an Australian citizen or permanent resident or a citizen of New Zealand with a special category visa.

Sector:

Professional Services

Obligations Concerned:

Local Presence (Article 10.6)

Level of Government:

Central

Measures:

Corporations Act 2001 (Cth)

Description:

Cross-Border Trade in Services

A person who is not ordinarily resident in Australia may be refused registration as a company auditor or liquidator. At least one partner in a firm providing auditing services must be a registered company auditor who is ordinarily resident in Australia.

Sector:

Professional Services

Obligations Concerned:

Local Presence (Article 10.6)

Level of Government:

Central

Measures:

Customs Act 1901 (Cth)

Description:

Cross-Border Trade in Services

To act as a customs broker in Australia, service suppliers must supply the service in and from Australia.

Sector:

Fishing and Services incidental to Fishing

Obligations Concerned:

National Treatment (Article 9.4 and Article 10.3)

Level of Government:

Central

Measures:

Fisheries Management Act 1991 (Cth)

Foreign Fishing Licences Levy Act 1991 (Cth)

Description:

Investment and Cross-Border Trade in Services

Foreign fishing vesselsFootnote 10 seeking to undertake fishing activity, including any activity in support of or in preparation for any fishing activity or the processing, carrying or transhipment of fish, in the Australian Fishing Zone must be authorised. 

Where foreign fishing vessels are authorised they may be subject to a levy.Footnote 11

Sector:

Communication Services

Obligations Concerned:

National Treatment (Article 9.4)

Senior Management and Boards of Directors (Article 9.11)

Level of Government:

Central

Measures:

Telstra Corporation Act 1991 (Cth)

Description:

Investment

Aggregate foreign equity is restricted to no more than 35 per cent of shares of Telstra.  Individual or associated group foreign investment is restricted to no more than five per cent of shares.

The Chairperson and a majority of directors of Telstra must be Australian citizens and Telstra is required to maintain its head office, main base of operations and place of incorporation in Australia.

Sector:

Health Services

Obligations Concerned:

National Treatment (Article 9.4)

Senior Management and Boards of Directors (Article 9.11)

Level of Government:

Central

Measures:

Commonwealth Serum Laboratories Act 1961 (Cth)

Description:

Investment

The votes attached to significant foreign shareholdingsFootnote 12 may not be counted in respect of the appointment, replacement or removal of more than one-third of the directors of Commonwealth Serum Laboratories (CSL) who hold office at a particular time. The head office, principal facilities used by CSL and any CSL subsidiaries used to produce products derived from human plasma collected from blood or plasma donated by individuals in Australia must remain in Australia. Two-thirds of the directors of the board of CSL and the chairperson of any meeting must be Australian citizens. CSL must not seek incorporation outside of Australia.

Sector:

Transport Services

Obligations Concerned:

National Treatment (Article 9.4 and Article 10.3)

Local Presence (Article 10.6)

Level of Government:

Central

Measures:

Competition and Consumer Act 2010 (Cth)

Description:

Investment and Cross-Border Trade in Services

Every ocean carrier who provides international liner cargo shipping services to or from Australia must, at all times, be represented by a natural person who is resident in Australia.

Only a personFootnote 13 affected by a registered conference agreement or by a registered non-conference ocean carrier with substantial market power may apply to the Australian Competition and Consumer Commission to examine whether conference members, and non-conference operators with substantial market power, are hindering other shipping operators from engaging efficiently in the provision of outward liner cargo services to an extent that is reasonable.  For greater certainty, matters which are relevant to the determination of “reasonable” include Australia’s national interest and the interests of Australian shippers.

Sector:

Maritime Transport

Obligations Concerned:

National Treatment (Article 9.4 and Article 10.3)

Local Presence (Article 10.6)

Level of Government:

Central

Measures:

Shipping Registration Act 1981 (Cth)

Shipping Registration Regulations 1981 (Cth)

Description:

Investment and Cross-Border Trade in Services

For a ship to be registered on the Australian Shipping Register it must be majority Australian-owned or on demise charter to Australian-based operators. In the case of small craft, a ship must be wholly owned by or solely operated by Australian residents, Australian nationals or both.

For a trading ship to be registered on the International Shipping Register it must be wholly or majority Australian-owned, on demise charter to Australian-based operators or operated solely by Australian residents, Australian nationals or both. The master or chief mate, and chief engineer or first engineer of the ship must be an Australian national or Australian resident. 

A ship on demise charter to an Australian-based operator is a ship on demise charter to:

For the purposes of this entry, an Australian national is an Australian citizen who is ordinarily resident in Australia; or a body corporate that has its principal place of business in Australia.

Sector:

Transport Services

Obligations Concerned:

National Treatment (Article 9.4)

Senior Management and Boards of Directors (Article 9.11)

Level of Government:

Central

Measures:

Air Navigation Act 1920 (Cth)

Ministerial Statements

Description:

Investment

Total foreign ownership of individual Australian international airlines (other than Qantas) is restricted to a maximum of 49 per cent.

Furthermore, it is required that:

Sector:

Transport Services

Obligations Concerned:

National Treatment (Article 9.4)

Senior Management and Boards of Directors (Article 9.11)

Level of Government:

Central

Measures:

Qantas Sale Act 1992 (Cth)

Description:

Investment

Total foreign ownership of Qantas Airways Ltd is restricted to a maximum of 49 per cent. In addition:

Date Modified: