(d) Article 7 (Prohibition of Performance Requirements) of Chapter 8 (Investment); or
(e) Article 8 (Senior Management and Boards of Directors) of Chapter 8 (Investment).
1.
Sector: All sectors
Obligations Concerned: National Treatment (Investment) Senior Management and Boards of Directors
Level of Government: Central
Source of Measure: Australia's foreign investment framework, which comprises Australia's Foreign Investment Policy, the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA); Foreign Acquisitions and Takeovers Regulations 2015 (Cth); Foreign Acquisitions Fees Imposition Act 2015 (Cth); Foreign Acquisitions Fees Imposition Regulation 2015 (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 (2) in existing (3) Australian businesses, or prescribed corporations, (4) 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,(5) 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 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 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)
2.
Sector: All Obligations Concerned: Local Presence
Level of Government: Regional
Source of Measure: Consumer Affairs and Fair Trading Act (NT) Consumer Affairs and Fair Trading (Trading Stamps) Regulations (NT)
Description: Cross-Border Trade in Services
A promoter of a third party trading scheme (8) must maintain an office in Australia.
3.
Sector: Professional Services
Obligations Concerned: Local Presence
Level of Government: Central Source of Measure: 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. (9)
4.
Sector: Professional Services
Obligations Concerned: Local Presence
Level of Government: Central and Regional
Source of Measure: Corporations Act 2001 (Cth) Co-operative Housing and Starr-Bowkett Societies Act 1998 (NSW) Estate Agents Act 1980 (Vic)
Description: Cross-Border Trade in Services
Commonwealth
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.
New South Wales
A person must be ordinarily resident in New South Wales in order to be an auditor of specified kinds of societies and associations.
Victoria
A firm of auditors cannot audit an estate agent's accounts unless at least one member of the firm of auditors is an Australian resident.
5.
Sector: Professional Services
Obligations Concerned: Local Presence
Level of Government: Regional
Source of Measure: Architects Act (NT)
Description: Cross-Border Trade in Services
To qualify for registration as an architectural partnership or company, the partnership/company must have a place of business or be carrying on business within the Northern Territory.
6.
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
Source of Measure: 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.
7.
Sector: Professional Services
Obligations Concerned: Local Presence
Level of Government: Central
Source of Measure: Customs Act 1901 (Cth) Cross-Border Trade in Services
Description: To act as a customs broker in Australia, service providers must provide the service in and from Australia.
8.
Sector: Research and Development Services
Obligations Concerned: National Treatment (Cross-Border Trade in Services and Investment)
Level of Government: Regional
Source of Measure: Biodiversity Act 2004 (Qld)
Description: Cross-Border Trade in Services and Investment
Benefit sharing agreements require sublicences for use of samples or derivatives to conduct biodiscovery research and commercialisation to be offered first to Queensland-based entities, then to Australian-based entities, and then to overseas-based entities. Any entity with a benefit sharing agreement must obtain consent before granting a sublicence to an overseas-based entity.
9.
Sector: Real Estate and Distribution Services
Obligations Concerned: National Treatment (Cross-Border Trade in Services and Investment) Local Presence
Level of Government: Regional
Source of Measure: Community Land Management Act 1989 (NSW) Strata Schemes Management Act 1996 (NSW) Property, Stock and Business Agents Act 2002 (NSW) Agents Licensing Act (NT) Agents Act 2003 (ACT) Property Agents and Motor Dealers Act 2000 (Qld) Estate Agents Act 1980 (Vic) Conveyancers Act 2006 (Vic) Real Estate and Business Agents Act 1978 (WA) Real Estate and Business Agents (General) Regulations 1979 (WA) Settlement Agents Act 1981 (WA) Settlement Agents Regulations 1982 (WA)
Description: Cross-Border Trade in Services and Investment
New South Wales
A person cannot be appointed as an agent (for a proprietor of a development lot, neighbourhood lot or strata lot) if they are not an Australian resident. A person cannot be appointed as an agent (for an owner of a lot, for dealings with the owner's corporation) if they are not an Australian resident. To be licensed as a property, stock, business, strata managing or community managing agent in NSW, licensees must have a registered office in New South Wales.
Northern Territory
A licensed agent (10) must maintain an office in Australia at or from which the conduct of business under the licence is to occur.
Australian Capital Territory
An estate agent must have their principal place of business in the Australian Capital Territory.
Queensland
In order to obtain a licence to operate in Queensland as a real estate agent, auctioneer, motor dealer or commercial agent, a person must have a business address in Queensland.
Victoria
A person cannot be licensed as an estate agent unless they have a registered office in Victoria and they must maintain a principal office in Victoria. An agent's representative must have a registered address in Victoria to which documents can be sent.
A person cannot be licensed as a conveyancer or carry on a conveyancing business in Victoria unless they maintain a principal place of business in Victoria.
Western Australia
A person seeking to carry on business as a real estate or business agent in Western Australia must establish and maintain a registered office in the State. A person seeking to carry on business as a settlement agent (conveyancer) in Western Australia must ordinarily reside in the State. A licensed settlement agent must establish and maintain a registered office in the State.
10.
Sector: Fishing and Pearling
Obligations Concerned: National Treatment (Cross-Border Trade in Services and Investment) Local Presence Senior Management and Boards of Directors
Level of Government: Central and Regional
Source of Measure: Fisheries Management Act 1991 (Cth) Foreign Fishing Licenses Levy Act 1991 (Cth) Fisheries Management Act 1994 (NSW) Fisheries Act 1995 (Vic) Fish Resources Management Act 1994 (WA) Pearling Act 1990 (WA) Ministerial Policy Guideline No 17 of August 2001 (WA)
Description: Cross-Border Trade in Services and Investment
Commonwealth
Foreign fishing vessels (11) 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. (12)
New South Wales
A foreign person or a foreign-owned body is not permitted to hold shares in a share management fishery.
Victoria
In Victoria, a fishery access licence or aquaculture licence can only be issued to:
(a) an individual who is an Australian resident;
(b) a single corporation that has a registered office in Australia; or
(c) a co-operative that has a registered office in a jurisdiction that administers the Co- operatives National Law (currently New South Wales, Victoria, South Australia, the Northern Territory and Tasmania).
Western Australia
Only an individual who is an Australian citizen or permanent resident may be a licensee within the Western Australian pearling industry.
In the case of corporations, partnerships or trusts holding licenses, these must be Australian owned and/or controlled (at least 51 per cent of the issued share capital, partnership interest or trust property must be owned by Australians; the chairman, majority of the board of directors and all the company officers must be Australians and must be nominated by, and represent, Australian interests).
11.
Sector: Mining and Related Services
Obligations Concerned: National Treatment (Cross-Border Trade in Services and Investment) Prohibition of Performance Requirements
Level of Government: Regional
Source of Measure: Mount Isa Mines Limited Agreement Act 1985 (Qld)
Description: Cross-Border Trade in Services and Investment
The operator of Mount Isa Mines shall, so far as is reasonably and economically practicable:
(a) use the services of professional consultants resident and available within Queensland;
(b) use labour available within Queensland;
(c) when preparing specifications, calling for tenders and letting contracts for works, materials, plant, equipment and supplies ensure that Queensland suppliers, manufacturers, and contractors are given reasonable opportunity to tender or quote; and
(d) give proper consideration and where possible preference to Queensland suppliers, manufacturers and contractors when letting contracts or placing orders for works, materials, plant, equipment and supplies where price, quality, delivery and service are equal to or better than that obtainable elsewhere.
12.
Sector: Other Business Services
Obligations Concerned: Local Presence
Level of Government: Regional
Source of Measure: Prostitution Regulation Act (NT)
Description: Cross-Border Trade in Services
To be eligible for the grant of an operator's licence or a manager's licence in respect of an escort agency business, an individual must be resident in the Northern Territory.
For a body corporate to be granted an operator's licence, its officers must also meet the residency requirement.