(c) Article 8.5 (Market Access – Cross-Border Trade in Services) or Article 13.4 (Market Access – Investment);
(d) Article 8.6 (Local Presence – Cross-Border Trade in Services);
(e) Article 13.11 (Performance Requirements – Investment); or
(f) Article 13.12 (Senior Management and Boards of Directors – Investment).
2. Each Schedule entry sets out the following elements:
(a) "Sector" refers to the sector for which the entry is made;
(b) "Sub-Sector", where referenced, refers to the specific sub-sector for which the entry is made;
(c) "Industry Classification", where referenced, refers to the activity covered by the entry, according to the CPC, ISIC Rev. 3.1, or as expressly otherwise described in that entry;
(d) "ISIC Rev. 3.1" means the International Standard Industrial Classification of All Economic Activities as set out in Statistical Office of the United Nations, Statistical Papers, Series M, No.4, ISIC Rev. 3.1, 2002; and
(e) "CPC" means the Provisional Central Product Classification (Statistical Papers, Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991).
(d) "Obligations concerned" specifies the obligations referred to in paragraph 1 that, pursuant to Article 8.7 (Non-Conforming Measures - Cross-Border Trade in Services) and Article 13.13 (Non- Conforming Measures - Investment), do not apply to the listed measure(s) as indicated in the introductory note for each Party's Schedule;
(e) "Level of government" indicates the level of government maintaining the listed measures;
(f) "Measures" identifies the laws, regulations, or other measures for which the entry is made. A measure cited in the Measures element:
(i) means the measure as amended, continued, or renewed as of the date of entry into force of this Agreement, and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(g) "Description", as indicated in the introductory note for each Party's Schedule, either sets out the non-conforming measure or provides a general non-binding description of the measure for which the entry is made.
3. For greater certainty, ifa Party adopts a new measure at a level of government different to the level of government originally specified in an entry, and this new measure effectively replaces (within the territory to which it applies) the non-conforming aspect of the original measure cited in the "Measures" element, the new measure is understood to constitute "amendment" to the original measure within the meaning of subparagraph (1)(c) of Article 8.7 (Non-Conforming Measures - Cross-Border Trade in Services) and subparagraph (1)(c) of Article 13.13 (Non-Conforming Measures - Investment).
4. The list of entries below does not include measures relating to qualification requirements and procedures, technical standards, authorisation requirements and licensing requirements and procedures where they do not constitute a limitation within the meaning of Articles 8.3 (National Treatment - Cross- Border Trade in Services), Article 13.5 (National Treatment - Investment), Article 8.5 (Market Access - Cross-Border Trade in Services), Article 13.4 (Market Access - Investment), or Article 8.6 (Local Presence - Cross-Border Trade in Services). These measures may include, in particular, the need to obtain a licence, to satisfy universal service obligations, to have recognised qualifications in regulated sectors, to have completed a recognised period of training, to pass specific examinations, including language examinations, to fulfil a membership requirement of a particular profession, such as membership in a professional organisation, to have a local agent for service, or to maintain a local address, or any non-discriminatory requirements that certain activities may not be carried out in protected zones or areas. While not listed, those measures continue to apply.
5. Non-discriminatory measures do not constitute a market access limitation within the meaning of Article 8.5 (Market Access - Cross-Border Trade in Services) or Article 13.4 (Market Access - Investment) of this Agreement for any measure:
(a) concerning zoning and planning regulations affecting the development or use of land, or another analogous measure;
(b) requiring the separation of the ownership of infrastructure from the ownership of the goods or services provided through that infrastructure to ensure fair competition, for example in the fields of energy, transportation, and telecommunications;
(c) restricting the concentration of ownership to ensure fair competition;
(d) seeking to ensure the conservation and protection of natural resources and the environment, including a limitation on the availability, number, and scope of concessions granted, and the imposition of a moratorium or ban;
(e) limiting the number of authorisations granted because of technical or physical constraints, for example telecommunications spectra and frequencies; or
(f) requiring that a certain percentage of the shareholders, owners, partners, or directors of an enterprise be qualified or practice a certain profession such as lawyers or accountants.
6. For the purposes of the Schedules of Australia and the United Kingdom, an entry for a requirement to have a local presence in the territory of Australia or the United Kingdom is made against Article 8.6 (Local Presence - Cross-Border Trade in Services), and not against Article 8.3 (National Treatment - Cross-Border Trade in Services) or Article 8.5 (Market Access - Cross-Border Trade in Services).
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 8.7 (Non-Conforming Measures - Cross-Border Trade in Services) and Article 13.13 (Non-Conforming Measures - Investment), 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.
3. Australia reserves the right to maintain and to add to this Schedule any non- conforming measure at the regional level of government that existed at 1 January 2005, but was not listed in this Schedule at the date of entry into force of this Agreement against the following obligations:
(a) Articles 8.3 (National Treatment - Cross-Border Trade in Services) and 13.5 (National Treatment - Investment);
(b) Articles 8.4 (Most-Favoured-Nation Treatment - Cross-Border Trade in Services) and 13.6 (Most-Favoured-Nation Treatment - Investment);
(c) Articles 8.5 (Market Access - Cross-Border Trade in Services) and 13.4 (Market Access - Investment);
(d) Article 8.6 (Local Presence - Cross-Border Trade in Services); (e) Article 13.11 (Performance Requirements - Investment); and
(e) Article 13.12 (Senior Management and Boards of Directors - Investment).
Any existing non-conforming measure that is maintained and added to this Schedule pursuant to paragraph 3 shall include any amendment to that non- conforming measure since 1 January 2005, to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment.
All dollar figures are in Australian dollars unless specified otherwise.
1. Sector: All
Obligations concerned: National Treatment (Investment), Market Access (Investment), Performance Requirements, Senior Management and Boards of Directors
Level of government: Central
Measures: Australia's Foreign Investment Framework, which comprises Australia's Foreign Investment Policy, Foreign Acquisitions and Takeovers Act 1975 (Cth), Foreign Acquisitions and Takeovers Regulation 2015 (Cth), Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth), Foreign Acquisitions and Takeovers Fees Imposition Regulation 2020 (Cth), Financial Sector (Shareholdings) Act 1998 (Cth), and Ministerial Statements.
Description:
A. The following investments (1) (2) are subject to approval by the Australian Government and may also require notification (3) to the Australian Government:
(a) a proposed investment by a foreign person (4) in an entity or Australian business valued above $1,216 million (5);
(b) a proposed investment by a foreign person in an entity or Australian business valued above $281 million (6) relating to a sensitive business (7) or its assets;
(c) a proposed direct investment a foreign government investor (8) of any interest regardless of value;
(d) a proposed investment by a foreign person of five per cent or more in the media sector, regardless of the value of the investment;
(e) a proposed acquisition by a foreign person of an interest in developed commercial land (9) where the value of the interest is more than $1,216 million. (10)
Investments may be refused, subject to orders or approved subject to conditions. Foreign persons that do not comply with the Foreign Investment Framework may be subject to civil and criminal penalties.
For greater certainty, where an investment could qualify for the application of one or more of the above screening thresholds, approval or notification requirements apply from the lowest applicable threshold.
Separate or additional requirements may apply to measures subject to other Annex I entries and to sectors, subsectors or activities subject to Annex II.
B. 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 control (11) of an existing financial sector company, may be refused or be subject to certain conditions. (12)
2. Sector: All
Obligations concerned: National Treatment (Investment), Senior Management and Boards of Directors
Level of government: Central
Measures: Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth)
Description: At least one director of a private company must be ordinarily resident in Australia.
At least two directors of a public company must be ordinarily resident in Australia.
At least one secretary of a private company (if such a private company appoints one or more secretaries) must be ordinarily resident in Australia.
At least one secretary of a public company must be ordinarily resident in Australia.
3. Sector: Professional services
Obligations concerned: National Treatment (Cross-Border Trade in Services), Most-Favoured-Nation Treatment (Cross-Border Trade in Services)
Level of government: Central
Measures: Patents Act 1990 (Cth) Patents Regulations 1991 (Cth)
Description: In order to register to practise in Australia, a patent attorney must have been employed for at least two continuous years, or a total of two years within five continuous years, in Australia or New Zealand, or in both countries, in a position or positions that provided the applicant with required experience in Australia's and New Zealand's patent attorney regime.
4. Sector: Professional services
Obligations concerned: National Treatment (Cross-Border Trade in Services), Most-Favoured-Nation Treatment (Cross-Border Trade in Services)
Level of government: Central
Measures: Migration Act 1958 (Cth)
Description: 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.
5. Sector: Professional services
Obligations concerned: Local Presence
Level of government: Central
Measures: Customs Act 1901 (Cth)
Description: To act as a customs broker in Australia, a service supplier must supply the service in and from Australia.
6: Sector: Telecommunications
Obligations concerned: National Treatment (Investment), Market Access (Investment), Performance Requirements, Senior Management and Boards of Directors
Level of government: Central
Measures: Telstra Corporation Act 1991 (Cth)
Description: 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.
7. Sector: Health Services
Obligations concerned: National Treatment (Investment), Market Access (Investment), Performance Requirements, Senior Management and Boards of Directors
Level of government: Central
Measures: Commonwealth Serum Laboratories Act 1961 (Cth)
Description: The votes attached to significant foreign shareholdings (13) 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.
8. Sector: Transport services
Obligations concerned: National Treatment (Investment and Cross-Border Trade in Services), Local Presence
Level of government: Central
Measures: Competition and Consumer Act 2010 (Cth)
Description: 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 person (14) 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.
9. Sector: Maritime transport
Obligations concerned: National Treatment (Investment and Cross-Border Trade in Services), Local Presence, Senior Management and Boards of Directors
Level of government: Central
Measures: Shipping Registration Act 1981 (Cth), Shipping Registration Regulations 1981 (Cth)
Description: 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:
(a) majority owned by Australian nationals;
(b) wholly owned by Australian residents, or by Australian residents and Australian nationals;
(c) operated solely by Australian residents, Australian nationals, or both; or
(d) on demise charter to Australian based operators.
The master or chief mate, and chief engineer or first engineer, of the trading 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:
(a) to an Australian national or Australian nationals; or
(b) in circumstances where there are two or more persons who include an Australian national, where the Australian national is in a position to control the exercise of the rights and powers of the charterers under the charter party.
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.
10. Sector: Transport services
Obligations concerned: National Treatment (Investment), Market Access (Investment), Performance Requirements, Senior Management and Boards of Directors
Level of government: Central
Measures: Air Navigation Act 1920 (Cth) Ministerial Statements
Description: 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:
(a) at least two-thirds of the board members must be Australian citizens;
(b) the chairperson of the board must be an Australian citizen;
(c) the airline's head office must be in Australia; and
(d) the airline's operational base must be in Australia,
11. Sector: Transport services
Obligations concerned: National Treatment (Investment), Market Access (Investment), Performance Requirements, Senior Management and Boards of Directors
Level of government: Central
Measures: Qantas Sale Act 1992 (Cth)
Description: Total foreign ownership of Qantas Airways Ltd is restricted to a maximum of 49 per cent. In addition:
(a) the head office of Qantas must always be located in Australia;
(b) the majority of Qantas' operational facilities must be located in Australia;
(c) at all times, at least two thirds of the directors of Qantas must be Australian citizens;