2. Sector: All Sectors
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4) Most-Favoured-Nation Treatment (Article 9.4 and Article 14.5) Local Presence (Article 9.6) Prohibition of Performance Requirements (Article 14.6) Senior Management and Boards of Directors (Article 14.10)
Level of Government: Regional
Source of Measure: All existing non-conforming measures at the regional level of government.
Description: Trade in Services and Investment
All existing non-conforming measures at the regional level of government.
3. Sector: All Sectors
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4) Senior Management and Boards of Directors (Article 14.10)
Level of Government: Central
Source of Measure: Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth)
Description: Trade in Services and Investment
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.
4. Sector: Professional Services
Obligations Concerned: National Treatment (Article 9.3) Most-Favoured-Nation Treatment (Article 9.4)
Level of Government: Central
Source of Measure: Patents Act 1990 (Cth) Patents Regulations 1991 (Cth)
Description: Trade in Services
In order to register to practise in Australia, patent attorneys 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.
5. Sector: Professional Services
Obligations Concerned: National Treatment (Article 9.3) Most-Favoured-Nation Treatment (Article 9.4)
Level of Government: Central
Source of Measure: Migration Act 1958 (Cth)
Description: 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.
6. Sector: Professional Services
Obligations Concerned: Local Presence (Article 9.6)
Level of Government: Central
Source of Measure: Corporations Act 2001 (Cth)
Description: 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.
7. Sector: Professional Services
Obligations Concerned: Local Presence (Article 9.6)
Level of Government: Central Source of Measure: Customs Act 1901 (Cth)
Description: Trade in Services
To act as a customs broker in Australia, service suppliers must supply the service in and from Australia.
8. Sector: Fishing and services incidental to fishing
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4)
Level of Government: Central
Source of Measure: Fisheries Management Act 1991 (Cth) Foreign Fishing Licences Levy Act 1991 (Cth)
Description: Trade in Services and Investment
Foreign fishing vessels (9) 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 (10).
9. Sector: Communication Services
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4) Senior Management and Boards of Directors (Article 14.10)
Level of Government: Central
Source of Measure: Telstra Corporation Act 1991 (Cth)
Description: Trade in Services and 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 5 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.
10. Sector: Health Services
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4) Senior Management and Boards of Directors (Article 14.10)
Level of Government: Central
Source of Measure: Commonwealth Serum Laboratories Act 1961 (Cth)
Description: Trade in Services and Investment
The votes attached to significant foreign shareholdings (11) 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.
11. Sector: Transport Services
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4) Local Presence (Article 9.6)
Level of Government: Central
Source of Measure: Competition and Consumer Act 2010 (Cth)
Description: Trade in Services and Investment
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 (12) 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 (ACCC) 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.
12. Sector: Transport Services
Obligations Concerned: National Treatment (Article 14.4) Senior Management and Boards of Directors (Article 14.10)
Level of Government: Central
Source of Measure: 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:
- at least two-thirds of the Board members must be Australian citizens;
- the Chairperson of the Board must be an Australian citizen;
- the airline’s head office must be in Australia; and
- the airline’s operational base must be in Australia.
13. Sector: Transport Services
Obligations Concerned: National Treatment (Article 14.4) Senior Management and Boards of Directors (Article 14.10)
Level of Government: Central
Source of Measure: 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:
- the head office of Qantas must always be located in Australia;
- the majority of Qantas’ operational facilities must be located in Australia;
- at all times, at least two thirds of the directors of Qantas must be Australian citizens;
- at a meeting of the board of directors of Qantas, the director presiding at the meeting (however described) must be an Australian citizen; and
- Qantas is prohibited from taking any action to become incorporated outside Australia.
14. Sector: Financial Services
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4) Market Access (Article 9.5)
Level of Government: Central
Source of Measure: Banking Act 1959 (Cth) Payment Systems (Regulation) Act 1998 (Cth)
Description: Trade in Services and Investment
To undertake banking business in Australia an entity must be a body corporate and authorised as an authorised deposit-taking institution (ADI). Foreign deposit-taking institutions (including foreign banks) may only operate a banking business in Australia through locally incorporated deposit-taking subsidiaries or authorised branches (foreign ADIs), or through both structures. A branch of a foreign bank that is authorised as a deposit taking institution in Australia (foreign ADI) is not permitted to accept initial deposits (and other funds) from individuals and non-corporate institutions of less than $A 250,000. A representative office of a foreign bank is not permitted to undertake any banking business, including advertising for deposits, in Australia. Such a representative office is only permitted to act as a liaison point.
15. Sector: Financial Services
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4)
Level of Government: Central
Source of Measure: Commonwealth Banks Act 1959 (Cth)
Description: Trade in Services and Investment
Liabilities of the Commonwealth Bank, previously Commonwealth Government-owned, are covered by transitional guarantee arrangements.
ANNEX I. SCHEDULE OF INDONESIA
INTRODUCTORY NOTES
SECTION A
Section A of Indonesia’s Schedule to this Annex sets out, in accordance with Article 9.7 (Non-conforming Measures), Indonesia’s existing measures that are not subject to some or all of the obligations imposed by: (a) Article 9.3 (National Treatment); (b) Article 9.4 (Most-Favoured-Nation Treatment); (c) Article 9.5 (Market Access); or (d) Article 9.6 (Local Presence).
SECTION B
1. Articles 14.4 (National Treatment), 14.5 (Most-Favoured-Nation Treatment), 14.6 (Prohibition of Performance Requirements), and 14.10 (Senior Management and Boards of Directors) apply only to the following sectors: (a) manufacturing; (b) agriculture; (c) fisheries; (d) forestry; (e) mining and quarrying; (f) energy infrastructure, specifically power plants of more than 10 Megawatts and geothermal power plants of less than or equal to 10 Megawatts; and (g) transport infrastructure, specifically highway, bridge and tunnel concessions.
2. Section B of Indonesia’s Schedule to this Annex sets out, in accordance with Article 14.14 (Non-conforming Measures), Indonesia’s existing measures in the sectors listed in paragraph 1 that are not subject to some or all of the obligations imposed by: (a) Article 14.4 (National Treatment); (b) Article 14.5 (Most-Favoured-Nation Treatment); (c) Article 14.6 (Prohibition of Performance Requirements); or (d) Article 14.10 (Senior Management and Boards of Directors).
3. For greater certainty, in accordance with Article 14.3.3 (Relation to Other Chapters), for the purposes of the application of Article 14.14 (Non-Conforming Measures) to measures affecting the supply of a service by a service supplier of Australia through commercial presence in the territory of Indonesia, an entry listed against Article 9.3 (National Treatment) and Article 9.4 (Most-Favoured-Nation Treatment) in Section A, shall also be considered an entry in respect of Article 14.4 (National Treatment) and Article 14.5 (Most-Favoured-Nation Treatment) respectively in Section B.
4. The recognition of Australian permanent residents shall be limited to Australian permanent residents who have the nationality of a country that already has an investment agreement or a free trade agreement in force with Indonesia (with an investment chapter). Such recognition shall not apply to an Australian permanent resident who is also an Indonesian national. Furthermore, in accordance with Article XXVIII(k)(2) of GATS, Indonesia shall not be obliged to accord to such permanent resident’s treatment more favourable than would be accorded by Australia to such residents.
Section A.
1. Sector: Professional Services
Sub-sector: Legal Services (CPC 861) only for advisory services in foreign and international law For greater certainty, advisory services shall not include: - Legal representation in an Indonesian court of justice or participation in legal proceedings under any circumstances. - Notarial activities.
Obligations Concerned: National Treatment (Article 9.3) Market Access (Article 9.5)
Level of Government: Central
Source of Measure: Law No 18/2003 on Advocate.
Description: Trade in Services
Commercial presence of foreign law firms are prohibited. For greater certainty, cross-border supply and consumption abroad of advisory services on foreign law, including international law on business and arbitration, are permitted.
2. Sector: Communication Services
Sub-sector: Postal Services (CPC 7511) and Courier Services (CPC 7512) (Indonesia Standard Industrial Classification 2015, Code 53102-Commercial Postal) excluding Intercity delivery and Universal Post Services.
Obligations Concerned: National Treatment (Article 9.3) Market Access (Article 9.5)
Level of Government: Central
Source of Measure: Postal Law No. 38/2009.
Description: Trade in Services
Foreign service suppliers are not permitted to establish a commercial presence in Indonesia to supply postal or courier services, except through a joint venture with only one Indonesian postal service provider with foreign equity not exceeding 49 per cent. The Indonesian joint venture partner must be wholly Indonesian-owned. The joint venture may only operate within a provincial capital that has an international airport or seaport and is prohibited from providing postal and courier services between cities in Indonesia. For greater certainty, cross-border supply and consumption abroad of postal services and courier services are permitted.
3. Sector: Maritime Transport Services
Sub-sector: International Passenger Transport (CPC 7211) and International Freight Transport (CPC 7212) excluding Cabotage
Obligations Concerned: National Treatment (Article 9.3) Market Access (Article 9.5) Local Presence (Article 9.6)
Level of Government: Central
Source of Measure: Law No. 17/2008 on Maritime Law - Government Regulation No. 20/2010 on Sea Transport as amended by Government Regulation No. 22/2011 - Presidential Regulation No. 44/2016 on the list of business fields that are closed and business fields that are open with conditions in the field of capital investment.
Description: Trade in Services
Foreign service suppliers are not permitted to establish a commercial presence in Indonesia for international passenger or freight maritime transport, except through a joint venture with foreign equity not exceeding 49 per cent. The joint venture must operate at least one Indonesian-flagged vessel with a minimum 5,000 gross tonnage, and crewed by Indonesian nationals. (1) Foreign shipping enterprises can only provide international passenger transportation services to and from seaports and special ports that are open for foreign trade (2) and are required to appoint an Indonesian shipping enterprise or shipping agent enterprise as its General Agent. For greater certainty, consumption abroad of international passenger or freight maritime transport is permitted.