Attachments
ANNEX I
EXPLANATORY NOTES
1. The Schedule of a Party to this Annex sets out, pursuant to Article 9.12 (NonConforming Measures) and Article 10.7 (Non-Conforming Measures), a Party’s existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 9.4 (National Treatment) or Article 10.3 (National Treatment);
(b) Article 9.5 (Most-Favoured-Nation Treatment) or Article 10.4 (MostFavoured-Nation Treatment);
(c) Article 9.10 (Performance Requirements);
(d) Article 9.11 (Senior Management and Boards of Directors);
(e) Article 10.5 (Market Access); or
(f) Article 10.6 (Local Presence).
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 subsector for which the entry is made;
(c) Industry Classification, where referenced, refers to the activity covered by the non-conforming measure, according to the provisional CPC codes as used in 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 9.12.1(a) (Non-Conforming Measures) and Article 10.7.1(a) (Non-Conforming Measures), 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. Article 10.6 (Local Presence) and Article 10.3 (National Treatment) are separate disciplines and a measure that is only inconsistent with Article 10.6 (Local Presence) need not be reserved against Article 10.3 (National Treatment).
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
Measure: 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 investments (1) require notification and approval from the Australian Government: (a) proposed investments by foreign persons in existing (2) Australian businesses, or prescribed corporations, (3) the value of whose assets exceeds $A252 million* in the following sectors: (i) the telecommunications sector; (ii) the transport sector, including airports, port facilities, rail infrastructure, international and domestic aviation and shipping services provided either within, or to and from, Australia; (iii) the supply of training or human resources, or the manufacture or supply of military goods, equipment or technology, to the Australian or other defence forces; (iv) the manufacture or supply of goods, equipment or technologies able to be used for a military purpose; (v) the development, manufacture or supply of, or provision of services relating to, encryption and security technologies and communication systems; and (vi) the extraction of (or rights to extract) uranium or plutonium, or the operation of nuclear facilities; (b) proposed investments by foreign persons in existing Australian businesses, or prescribed corporations, in all other sectors, excluding financial sector companies (4), the value of whose total assets exceeds $A1,094 million*; (c) proposed direct investments by foreign government investors, irrespective of size; (d) proposed investments by foreign persons (5) of five per cent or more in the media sector, regardless of the value of the investment; (e) proposed acquisitions by foreign persons of developed non-residential commercial real estate where the property is valued at more than $A1,094 million*. 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 control (6) of an existing financial sector company, may be refused, or be subject to certain conditions. (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. (8)
Sector: All
Obligations Concerned: Performance Requirements (Article 9.10) (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 vessels (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.(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 shareholdings (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
Measure: 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 person (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: (a) 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.
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: (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.
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: (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; (d) at a meeting of the Board of Directors of Qantas, the director presiding at the meeting (however described) must be an Australian citizen; and (e) Qantas is prohibited from taking any action to become incorporated outside Australia.
SCHEDULE OF BRUNEI DARUSSALAM
INTRODUCTORY NOTES
1. In the interpretation of an entry in this Annex, all elements of the entry shall be considered, where the 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) Senior Management and Boards of Directors (Article 9.11)
Measures: Companies Act (Chapter 39) Business Names Act (Chapter 92) Miscellaneous Licences Act (Chapter 127) Co--operative Societies Act (Chapter 84) Employment Agencies Order 2004 Administrative Measures and Guidelines
Description: Investment
1. Sole Proprietors and Cooperative Societies Foreign nationals may not establish sole proprietorships or cooperative societies.
2. Partnerships Foreign nationals may not establish a partnership, except with the written approval of the Registrar of Business Names.
3. Company Directorship A foreign national may not sit on the board of directors of an enterprise established in Brunei Darussalam unless one of the two directors or, where there are more than two directors, at least two of them shall be ordinarily resident in Brunei Darussalam. For the purposes of this entry, a foreign national shall apply to the Ministry of Finance in order to be considered as being “ordinarily resident in Brunei Darussalam”.
Sector: Manufacturing and Services Incidental to Manufacturing
Obligations Concerned: Performance Requirements (Article 9.10)
Measures: Brunei Darussalam Long--Term Development Plan Administrative Measures and Guidelines
Description: Investment
Foreign investors may not utilise sites under the control of the Ministry of Primary Resources and Tourism and the Brunei Economic Development Board for any manufacturing and services incidental to manufacturing activities unless they comply with the following: (a) to purchase, use, or accord a preference to goods produced in Brunei Darussalam, to purchase goods from local suppliers; or (b) to transfer technology or other proprietary knowledge to persons in Brunei Darussalam, as long as such requirement to transfer technology or other proprietary knowledge does not unreasonably prejudice the legitimate interests of the owner of technology or proprietary knowledge and is not for the purposes of commercial exploitation by Brunei Darussalam.
Sector: Agriculture and Services Incidental to Agriculture
Obligations Concerned: Performance Requirements (Article 9.10)
Measures: Brunei Darussalam Long--Term Development Plan Administrative Measures and Guidelines
Description: Investment
Foreign investors may not utilise sites under the control of the Department of Agriculture, Ministry of Primary Resources and Tourism, for any agriculture and services incidental to agriculture activities unless they comply with these requirements: (a) to purchase, use or accord a preference to goods produced in Brunei Darussalam, or to purchase goods from local suppliers; (b) to achieve a given level or percentage of domestic content; or (c) to transfer technology or other proprietary knowledge to persons in Brunei Darussalam, as long as such requirement to transfer technology or other proprietary knowledge does not unreasonably prejudice the legitimate interests of the owner of technology or proprietary knowledge and is not for the purposes of commercial exploitation by Brunei Darussalam.
Sector: Fisheries and Services Incidental to Fisheries
Obligations Concerned: Performance Requirements (Article 9.10)
Measures: Brunei Darussalam Long--Term Development Plan Administrative Measures and Guidelines
Description: Investment Foreign investors may not utilise sites under the control of the Department of Fisheries, Ministry of Primary Resources and Tourism, for any fisheries and services incidental to fisheries activities unless they comply with requirements to purchase, use or accord a preference to goods produced in Brunei Darussalam, or to purchase goods from local suppliers, or to comply with any requirement to transfer technology or other proprietary knowledge, as long as such requirement to transfer technology or other proprietary knowledge does not unreasonably prejudice the legitimate interests of the owner of technology or proprietary knowledge and is not for the purposes of commercial exploitation by Brunei Darussalam.
Sector: Forestry and Services Incidental to Forestry
Obligations Concerned: National Treatment (Article 9.4) Performance Requirements (Article 9.10) Market Access (Article 10.5)
Measures: National Forestry Policy (1990) Brunei Darussalam Long--Term Development Plan Administrative Measures and Guidelines (Strategic Plan 2004 –– 2023)
Description: Investment and Cross--Border Trade in Services
1. Foreign nationals or enterprises shall not establish an enterprise to undertake activities related to forestry or services incidental to forestry: (a) except through a joint venture with a Brunei national or Bruneian enterprise in which the foreign national or enterprise does not own more than 70 per cent equity; and (b) unless they comply with any performance requirements which may be imposed, including a requirement to transfer technology or other proprietary knowledge, as long as such requirement does not unreasonably prejudice the legitimate interests of the owner of technology or proprietary knowledge and is not for the purposes of commercial exploitation by Brunei Darussalam.
2. For greater certainty, this entry does not apply to logging activities.
Sector: Construction Services
Obligations Concerned: National Treatment (Article 9.4) Performance Requirements (Article 9.10) Local Presence (Article 10.6)
Measures: Architects, Professional Engineers and Quantity Surveyors Order 2011 Building Control Order 2011 (Draft) Building Control Regulations (Draft) Procedures of Contractors and Suppliers Registration, Ministry of Development (Edition 2009) Administrative Measures and Guidelines
Description: Investment and Cross--Border Trade in Services
1. Foreign nationals and enterprises are not allowed to supply construction services such as: general construction work for building services, general construction work for civil engineering, installation and assembly work services, building completion and finishing work services, except mining, and mechanical engineering services, unless: (a) through an enterprise established in Brunei Darussalam; (b) they register for either Certificate A or Certificate B, as a contractor or supplier; or (c) they comply with any requirement to transfer technology or other proprietary knowledge to persons in Brunei Darussalam as long as such requirement to transfer technology or other proprietary knowledge does not unreasonably prejudice the legitimate interests of the owner of technology or proprietary knowledge and is not for the purposes of commercial exploitation by Brunei Darussalam.
2. In the case of Certificate A, a foreign national or enterprise may not own equity shareholding other than what is prescribed in the table below, in any enterprise that applies to be registered as a contractor or supplier:
Table