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SINGAPORE-AUSTRALIA FREE TRADE AGREEMENT (SAFTA) |
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ANNEX 4-I(A)
AUSTRALIAíS RESERVATIONS TO CHAPTER 7 (TRADE IN SERVICES) AND CHAPTER 8 (INVESTMENT)
Sector All sectors
Sub-sector -
Industry
Classification
Type of
Reservation
-
Market Access
National Treatment
Source of
Measure
Australiaís foreign investment policy, which comprises
the:
Foreign Acquisitions and Takeovers Act 1975 (FATA);
Foreign
Acquisitions and Takeovers Regulations; and Ministerial
statements.
Description of
Reservation
The following investment activities require prior approval from
the
Australian Government:
Acquisitions by ëforeign
interestsí of ësubstantial interestsí
in existing Australian businesses with total assets of $A50
million or more.
Proposals by ëforeign interestsí to take over offshore companies whose Australian subsidiaries or assets are valued at $A50 million or more, or account for more than
50 per cent of the target company's global assets.
Proposals
by ëforeign interestsí to establish new businesses
in Australia involving a total investment of $A10 million or
more.
Direct investments by foreign governments or their agencies, irrespective of size.
Proposals where any doubt exists as to whether they are notifiable. (Funding arrangements that include debt instruments having quasi-equity characteristics will be treated as direct foreign investment).
A ëforeign interestí is defined as:
a natural
person not ordinarily resident in Australia;
a corporation in
which a natural person not ordinarily
resident in Australia or a foreign corporation holds a
controlling interest;
a corporation in which 2 or more persons, each of whom is either a natural person not ordinarily resident in Australia
or a foreign corporation, hold an aggregate controlling interest;
the trustee of a trust estate in which a natural person not ordinarily resident in Australia or a foreign corporation holds a substantial interest; or
4-I(A)-1
the trustee of a trust estate in which 2 or more persons, each
of whom is either a natural person not ordinarily resident in
Australia or a foreign corporation, hold an aggregate
substantial interest.
A ësubstantial interestí occurs when a single foreigner (and any associates) has 15 per cent or more of the ownership of any corporation, business or trust.
An ëaggregate substantial interestí occurs when several
foreigners (and any associates) have, in aggregate, 40 per cent or more of the ownership of any corporation, business or trust.
A ëcontrolling interestí will be as defined in section 9 of the
FATA.
A ësubstantial interest in a trust estateí will be as defined in section 9A of the FATA.
Proposals may be refused, or approved subject to the parties meeting certain conditions.
Separate or additional requirements may apply to measures subject to other Annex 4-I(A) reservations and to sectors, subsectors or activities subject to Annex 4-II(A) reservations.
4-I(A)-2
Sector All sectors
Sub-sector -
Industry
Classification
Type of
Reservation
-
Market Access
National Treatment
Source of
Measure
Corporations Act 2001;
Corporations Regulations 2001
Description of
Reservation
At least two of the directors of a public company must be
ordinarily
resident in Australia.
4-I(A)-3
Sector Professional Services
Sub-sector Patent attorney services
Industry
classification
Type of reservation
-
National treatment
Source of
Measure
Part 2 of Chapter 20 of the Patents Act 1990
Regulation 22.10 of
the Patent Regulations
Description of
Reservation
In order to register to practice in Australia, patent attorneys must:
(a)
be ordinarily resident in Australia;
(b) have an address for service in
Australia; and
(c) attend a place of business in Australia.
A person is taken to be ordinarily resident in Australia if:
(a)
the person has his or her home in Australia; or
(b) Australia is the country
of his or her permanent abode even though he or she is temporarily absent from
Australia.
However, the person is taken not to be ordinarily resident in Australia if he or she resides in Australia for a special or temporary purpose only.
4-I(A)-4
Sector Professional Services
Sub-sector Migration advice services
Industry -
classification
Type of
Reservation
Market Access
National Treatment
Source of
Measure
Description of
Reservation
Migration Act 1958
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.
4-I(A)-5
Sector Professional Services
Sub-sector Accounting, auditing and book-keeping services
Industry
classification
CPC 862
Type of
Reservation
Market Access
National Treatment
Source of -
Measure
Description of
Reservation
Only natural persons may be registered as auditors and
liquidators.
At least one equity partner in a firm providing accounting, auditing and book-keeping services must be a permanent resident.
4-I(A)-6
Sector Fishing
Sub-sector
Industry classification
Type of Reservation National Treatment
Source of Measure Fisheries Management Act 1991
Foreign Fishing Licenses Levy Act 1991
Description of
Reservation:
Foreign fishing vessels1 seeking to undertake fishing
activity
in the Australian Fishing Zone must be authorised.
Where foreign fishing vessels are authorised to undertake such fishing activity, they may be subject to a levy2.
1 For the purposes of fisheries management, a foreign vessel is one that does not meet the definition of
an Australian boat, that is, a boat based in Australia which is owned by an Australian resident or corporation.
2 The levy charged will be in accordance with the Foreign Fishing Licenses Levy Act 1991 or any amendments thereto.
4-I(A)-7
Sector Professional Services
Sub-sector Customs clearance (services supplied by customs brokers3)
Industry -
classification
Type of
Reservation
National Treatment
Source of
Measure
Customs Act 1901
Description of
Reservation
To act as a customs broker in Australia, service providers must
provide
the service in and from Australia.
3 Customs brokers may complete customs formalities required by the relevant customs legislation on
behalf of the owners of goods prior to their import into or export from Australia. Such formalities include the requirement to complete the import or export entries whereby owners notify the goods being exported or imported, the duty and other taxes payable and whether or not the appropriate permits have been obtained.
4-I(A)-8
Sector Professional Services
Sub-sector Medical services
Industry classification 9312
Type of Reservation National Treatment
Source of Measure Health Insurance Act 1973
Description of
Reservation
Doctors who have obtained their training outside Australia
and registered
as medical practitioners in Australia since
December 1996 may only bill
Medicare for patient consultations in private medical practices if they work in
a
ìdistrict of workforce shortageî.
4-I(A)-9
Sector Communication services
Sub-sector Postal Services
Industry
classification
Type of
Reservation
7511
Market Access
National Treatment
Source of
Measure
Australian Postal Corporation Act 1989
Description of
Reservation
Australia Post, a wholly-owned government entity, has the
exclusive right
to issue postage stamps and carry letters within
Australia, whether the
letters originated within or outside
Australia. This includes:
- the
collection within Australia of letters for delivery within
Australia; and
- the delivery of letters within Australia.
This reservation does not include:
- the carriage of a letter weighing
more than 250 grams;
- the carriage of a letter within Australia for a charge
or fee that
is at least 4 times the rate of postage that is current at the time
for the carriage within Australia of a standard postal article by ordinary
post;4 and
- other exceptions to the reserved services set out in
Section 30
of the Australian Postal Corporation Act 1989.
4 As specified in accordance with the Australian Postal Corporation Act 1989 and its subordinate legislation and regulations or any amendments thereto.
4-I(A)-10
Sector Telecommunications
Sub-sector
Industry
classification
Type of
Reservation
Market Access
National Treatment
Source of
Measure
Telstra Corporation Act 1991
Description of
Reservation
Aggregate foreign equity is restricted to no more than 35 per cent
of the
49.9 per cent of shares of Telstra that are non-government owned (about 17.5 per
cent of total equity). Individual or associated group foreign investment is
restricted to no more than
5 per cent of these non-government shares (about
2.5 per cent of
total equity).
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.
4-I(A)-11
Sector Wholesale trade and retailing services
Sub-sector Supply of therapeutic goods (medical devices, medicines, blood
products) and also chemicals subject to the National Industrial
Chemicals Notification and Assessment Scheme.
Industry
classification
Type of
Reservation
Market Access
National Treatment
Source of
Measure
Description of
Reservation
Therapeutic Goods Act 1989
Industrial Chemicals (Notification
and Assessment) Act 1989
A person5 who imports, exports, manufactures or supplies a
therapeutic good6 in Australia must have that product included in
the Australian Register of Therapeutic Goods (ARTG), unless the product is an
exempt good. The person who includes a product
in the ARTG must be a
resident of Australia, or carrying on business in Australia.
A person who imports or manufactures industrial chemicals7 in Australia must hold the relevant permit. The person who holds a permit must be a resident of Australia, or carrying on business in Australia.
5 Under the Acts Interpretation Act 1901 "person" includes a body politic or corporate as well as an individual.
6 As defined in the Therapeutic Goods Act 1989 and any future amendments thereto.
7 As defined in the NICNAS scheme under the Industrial Chemicals (Notification and Assessment) Act 1989 and any future amendments thereto.
4-I(A)-12
Sector Financial services
Sub-sector Life insurance services
Industry
Classification
Type of reservation
8121
Market Access
National Treatment
Source of Measure Life Insurance Act 1995.
Description of
Reservation
Approval of non-resident life insurers is restricted to
subsidiaries
incorporated under Australian law.
4-I(A)-13
Sector Financial services
Sub-sector Life insurance services
Industry
Classification
8121
Type of reservation
Market Access
National Treatment
Source of Measure Corporations Act 2001
Description of
Reservation
Registered foreign life insurance companies are required to have a
local
agent resident in Australia.
4-I(A)-14
Sector Financial services
Sub-sector Non-life insurance services
Industry classification 8129
Type of Reservation Market Access
National Treatment
Source of Measure Insurance Act 1973
Description of
Reservation
An authorised insurance company operating in Australia as
a
non-incorporated entity must appoint an Australian resident as agent of the
insurer.
4-I(A)-15
Sector Financial services
Sub-sector Non-life insurance services
Industry
classification
8129
Type of reservation
Market Access
National Treatment
Source of Measure Safety, Rehabilitation and Compensation Act 1988
Description of
Reservation
Comcare, a Commonwealth Government agency, is the monopoly
provider of
workersí compensation insurance for Commonwealth
Government
employees.
4-I(A)-16
Sector Financial services
Sub-sector Deposit taking services
Industry
Classification
Type of reservation
811
National treatment
Market Access
Source of Measure Banking Act 1959
Banking Amendment Regulations 2000 (No. 1)
Payment Systems (Regulation) Act 1998
Description of
Reservation
To undertake banking business in Australia an entity must be a
body
corporate and authorised by the Australian Prudential
Regulation Authority
(APRA) 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.
Foreign ADIs are subject to a condition which specifically restricts the
acceptance of retail deposits. Foreign ADIs are not permitted to accept initial
deposits (and other funds) from
individuals and non-corporate institutions of
less than $A250,000.
They can, however, accept deposits and other funds in
any amount from incorporated entities, non-residents and their employees.
A foreign deposit-taking institution that operates a representative office in Australia 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.
Foreign banks located overseas may only raise funds in Australia through the
issue of debt securities provided those securities are offered/traded in parcels
of not less than $A500,000 and the securities and any associated information
memoranda clearly state
the issuing bank is not authorised under the
Banking Act 1959 in
Australia.
4-I(A)-17
Sector Financial services
Sub-sector Banking
Industry
Classification
Type of reservation
-
National treatment
Source of Measure Commonwealth Banks Act 1959.
Description of
Reservation
Liabilities of the Commonwealth Bank, previously
Commonwealth
Government-owned, are covered by transitional guarantee arrangements. Under the
Commonwealth Banks Act
1959, liabilities of the Commonwealth
Bank are guaranteed by the Commonwealth.
4-I(A)-18
Sector Financial services.
Sub-sector Banking
Industry
Classification
Type of reservation
-
National Treatment
Source of Measure AIDC Sale Act 1997.
Australian Industry Development Corporation Act 1970
Description of
Reservation
Liabilities of the Australian Industry Development Corporation
(AIDC),
previously Commonwealth Government-owned, are
covered by transitional
guarantee arrangements. Under the AIDC Sale Act 1997, liabilities of the former
AIDC are guaranteed by
the Commonwealth.
4-I(A)-19
Sector Financial services
Sub sector Financial markets
Industry
classification
Type of reservation
Market access
Source of Measure Corporations Act 2001.
Description of
Reservation
To obtain an Australian market licence, an applicant must be a
body
corporate.
4-I(A)-20
Sector Financial services
Sub-sector Superannuation
Industry
classification
Type of reservation
Market Access
National Treatment
Source of Measure Superannuation Act 1922
Papua New Guinea (Staffing Assistance) Act 1973
Superannuation Act 1976
Superannuation Act 1990
Establishing legislation of relevant schemes including the Commonwealth Superannuation Scheme (CSS) and the Public Sector Superannuation Scheme (PSS).
Description of
Reservation
The Government has a monopoly on administration of
Commonwealth civilian
sector superannuation schemes and the
Commissioner for Superannuation (the
CEO of ComSuper ñ a
Commonwealth Government agency) has a monopoly on
administration services for certain Commonwealth sector superannuation
schemes.
4-I(A)-21
Sector Financial services
Sub-sector Managed investments
Industry
classification
Type of reservation
Market access
Source of Measure Corporations Act 2001.
Description of
Reservation
The responsible entity of a registered managed investment scheme must be a public company that holds an Australian financial services licence authorising it to operate a managed investment scheme
4-I(A)-22
Sector Health Services
Sub-sector
Industry
classification
Type of
Reservation
National Treatment
Source of
Measure
Commonwealth Serum Laboratories Act 1961, Part 3
Description of
Reservation
The votes attached to significant foreign shareholdings are
prevented from
being counted in respect to the appointment,
replacement or removal of more
than one third of CSLís directors who hold office at a particular time.
The head office and
principal facilities 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.
4-I(A)-23
Sector Transport
Sub-sector Maritime transport
Industry -
classification
Type of
Reservation
National Treatment
Market Access
Source of
Measure
Shipping Registration Act 1981
Description of
Reservation
For a ship to be registered in Australia it must be majority
Australian
owned unless the ship is designated as chartered by an Australian operator.
Every Australian-owned ship (as defined in the Act) is required to be registered
under the Act.
4-I(A)-24
Sector Transport services
Sub-sector Maritime transport
Industry
classification
Type of
Reservation
7211, 7212
Market Access
National Treatment
Source of
Measure
Trade Practices Act 1974
Description of
Reservation
Every ocean carrier that provides international liner cargo
shipping
services to or from Australia shall, at all times, be
represented for the
purposes of the Act, by a person who is an individual resident in Australia; has
been appointed by the ocean carrier as the ocean carrier's agent for the
purposes of the Act;
and is specified in the register of ocean carrier agents
as the
ocean carrier's agent.
Part X of the Trade Practices Act 1974 also allows Australian flag operators
to apply to the Australian Competition and
Consumer Commission to examine
whether conference members and non-conference operators with substantial market
power are
hindering Australian flag shipping operators from engaging
efficiently in the provision of outward liner cargo services to an
extent
which is reasonable.
4-I(A)-25
Sector Transport
Sub-sector Air Transport
Industry
classification
Type of
Reservation
Market Access
National Treatment
Source of
Measure
Air Services Act 1995
Air Services
Regulations
Commonwealth Authorities and Companies Act 1997 (CAC
Act)
Description of
Reservation
Airservices Australia, a government owned commercial
enterprise, is the
monopoly provider of the following services:
airspace management, air traffic
flow information, air traffic control, traffic and flight information,
navigation services, aeronautical information, and aerodrome rescue and fire
fighting services.
4-I(A)-26
Sector Transport
Sub-sector Air Transport
Industry -
classification
Type of
Reservation
National Treatment
Market Access
Source of
Measure
Air Navigation Act 1920
Ministerial Statement
Description of
Reservation
Total foreign ownership of Australian international airlines (other
than
Qantas) is restricted to a maximum of 49 per cent.
Furthermore, it is required that:
citizens;
4-I(A)-27
Sector Transport
Sub-sector Air Transport
Industry
classification
Type of
Reservation
Market Access
National Treatment
Source of
Measure
Qantas Sale Act 1992
Description of
Reservation
Total foreign ownership of Qantas Airways Ltd is restricted to a
maximum
of 49 per cent in aggregate, with individual holdings limited to 25 per cent and
aggregate holdings by foreign airlines
to 35 per cent. In addition:
in Australia;
be Australian citizens;
presiding at the meeting (however described) must be an
Australian citizen; and
4-I(A)-28