AUSTRALIA
Reported in 2023
Pillar Telecom infrastructure & competition |
Indicator Presence of an independent telecom authority
Presence of an independent telecom authority
The Australian Communications and Media Authority Act 2005 No. 44 establishes that Australia has an independent telecommunications authority, the Australian Communications and Media Authority (ACMA). Division 4 of the Act establishes that the Minister may give written directions to the ACMA in relation to the performance of its functions and the exercise of its powers. However, it is reported that the ACMA is independent from the government in the decision-making process.
Coverage Telecommunications sector
AUSTRALIA
Since June 2012
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
My Health Records Act 2012
My Health Records Act 2012 requires information relating to health records to be stored and processed within Australia unless the records do not include "personal information in relation to a healthcare recipient or a participant in the My Health Record System" or "identifying information of an individual or entity" (Section 77).
Coverage Medical and health services
AUSTRALIA
Since July 2001, last amended in December 2020
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Indicator Nationality/residency requirement for directors or managers
Corporations Act 2001
Under Section 201A of the Corporations Act 2001, a proprietary company must have at least one director with resident status in Australia. A public company must have at least three directors, two of whom must be ordinarily residents of Australia. This requirement has been in place since its enactment in 2001.
Coverage Horizontal
AUSTRALIA
Since December 1988, entry into force in January 1989, as amended in March 2014, last amended in May 2024
Pillar Cross-border data policies |
Indicator Conditional flow regime
Privacy Act 1988
In the Privacy Act 1988, the Australian Privacy Principle 8 creates a regime that allows cross-border disclosure of personal information in six different scenarios (Schedule 1). These conditions include but are not limited to situations where data protection frameworks are similar or equivalent to those in Australia, there is consent to the disclosure, or laws require the disclosure. The Australian Privacy Principles were inserted into the Privacy Act by the Privacy Amendment (Enhancing Privacy Protection) Act 2012, which came into force in March 2014.
Coverage Horizontal
Sources
- https://web.archive.org/web/20231014094843/https://www.legislation.gov.au/Series/C2004A03712
- https://web.archive.org/web/20220327105409/https://www.legislation.gov.au/Details/C2015C00053
- http://uk.practicallaw.com/8-519-8539#a150449
- https://www.linklaters.com/en/insights/data-protected/data-protected---australia
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AUSTRALIA
Since December 1975, last amended in April 2022
Since July 2018, last amended in April 2022
Since July 2018, last amended in April 2022
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Indicator Screening of investment and acquisitions
Foreign Acquisitions and Takeovers Act 1975
Security of Critical Infrastructure Act
Security of Critical Infrastructure Act
The Foreign Acquisitions and Takeovers Act 1975, last amended in January 2021, establishes a framework for screening foreign investments, granting the Foreign Investment Review Board (FIRB) the authority to prohibit proposed investments on several grounds, including:
(i) significant investment activities are considered contrary to the national interest. The Foreign Investment Policy, revised in 2023, outlines the national interest criteria. These include national security, competition, government policies, economic and community impact and the investor's character;
(ii) preventing actions classified as notifiable for national security that pose a threat to national security. This includes investments in 'national security businesses' as defined in Article 9 of the Security of Critical Infrastructure Act. Specifically, it encompasses critical telecommunications assets, critical broadcasting assets, critical domain name systems, and critical data storage or processing assets;
(iii) the Treasurer's authority to "call in" and review an investment that would not normally require notification if it poses national security concerns; and
(iv) the Treasurer's ability to re-evaluate previously approved investments if new national security risks arise post-approval.
(i) significant investment activities are considered contrary to the national interest. The Foreign Investment Policy, revised in 2023, outlines the national interest criteria. These include national security, competition, government policies, economic and community impact and the investor's character;
(ii) preventing actions classified as notifiable for national security that pose a threat to national security. This includes investments in 'national security businesses' as defined in Article 9 of the Security of Critical Infrastructure Act. Specifically, it encompasses critical telecommunications assets, critical broadcasting assets, critical domain name systems, and critical data storage or processing assets;
(iii) the Treasurer's authority to "call in" and review an investment that would not normally require notification if it poses national security concerns; and
(iv) the Treasurer's ability to re-evaluate previously approved investments if new national security risks arise post-approval.
Coverage Horizontal
Sources
- https://web.archive.org/web/20240315115237/https://www.legislation.gov.au/C2004A01402/latest/text
- https://www.legislation.gov.au/C2021A00124/latest/text
- https://web.archive.org/web/20240715181456/https://foreigninvestment.gov.au/sites/foreigninvestment.gov.au/files/2024-04/australias-foreign-investment-policy.pdf
- https://web.archive.org/web/20231028034822/https://foreigninvestment.gov.au/guidance/general/monetary-thresholds
- https://www.jonesday.com/en/insights/2024/05/australian-government-announces-procedural-reforms-to-strengthen-and-streamline-australias-foreign-investment-policy
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AUSTRALIA
Since December 1975, last amended in April 2022
Since July 2018, last amended in April 2022
Since July 2018, last amended in April 2022
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Indicator Screening of investment and acquisitions
Foreign Acquisitions and Takeovers Act 1975
Security of Critical Infrastructure Act
Security of Critical Infrastructure Act
Section 80 of the Foreign Acquisitions and Takeovers Act 1975 requires foreign individuals to notify the Foreign Investment Review Board (FIRB) before taking notifiable actions involving the acquisition of interests in Australian securities, assets, or land with a connection to Australia. To be considered significant under Sec. 82, an action must result in a change in control by a foreign person or be initiated by one, which is often dependent on meeting a specified threshold.
In addition, Art. 130 lists a number of conditions that can lead to excluding significant investments contrary to the national interest. This includes the exercise of a 'revocation' power to prohibit an investment on national security grounds and reassessing previously approved investments if national security risks arise post-approval. The latter pertains to participation in a 'business of national security' as specified in Art. 67 of the law. As Art. 9 of the Security of Critical Infrastructure Act outlines, this encompasses FDI in critical telecommunications assets, critical broadcasting assets, critical domain name systems, and critical data storage or processing assets. It has been reported that in 2012, under this regime, Australia cited cybersecurity concerns to prevent China's Huawei Technologies Co Ltd from bidding for contracts for the $38 billion National Broadband Network.
In addition, Art. 130 lists a number of conditions that can lead to excluding significant investments contrary to the national interest. This includes the exercise of a 'revocation' power to prohibit an investment on national security grounds and reassessing previously approved investments if national security risks arise post-approval. The latter pertains to participation in a 'business of national security' as specified in Art. 67 of the law. As Art. 9 of the Security of Critical Infrastructure Act outlines, this encompasses FDI in critical telecommunications assets, critical broadcasting assets, critical domain name systems, and critical data storage or processing assets. It has been reported that in 2012, under this regime, Australia cited cybersecurity concerns to prevent China's Huawei Technologies Co Ltd from bidding for contracts for the $38 billion National Broadband Network.
Coverage Horizontal
Sources
- https://web.archive.org/web/20240315115237/https://www.legislation.gov.au/C2004A01402/latest/text
- https://www.legislation.gov.au/C2021A00124/latest/text
- https://web.archive.org/web/20240715181456/https://foreigninvestment.gov.au/sites/foreigninvestment.gov.au/files/2024-04/australias-foreign-investment-policy.pdf
- https://web.archive.org/web/20231028034822/https://foreigninvestment.gov.au/guidance/general/monetary-thresholds
- https://www.jonesday.com/en/insights/2024/05/australian-government-announces-procedural-reforms-to-strengthen-and-streamline-australias-foreign-investment-policy
- Show more...
AUSTRALIA
Since March 1980
Pillar Intellectual Property Rights (IPRs) |
Indicator Participation in the Patent Cooperation Treaty (PCT)
Patent Cooperation Treaty (PCT)
Australia is a party to the Patent Cooperation Treaty (PCT).
Coverage Horizontal
AUSTRALIA
ITA signatory?
I
II
Pillar Tariffs and trade defence measures applied on ICT goods |
Indicator Effective tariff rate on ICT goods (applied weighted average)
Effective tariff rate to ICT goods (applied weighted average)
0.56%
Coverage rate of zero-tariffs on ICT goods (%)
72.31%
Coverage: ICT goods
Sources
- http://wits.worldbank.org/WITS/
- https://www.wto.org/english/news_e/brief_ita_e.htm#:~:text=ITA%20participants%3A%20Australia%3B%20Bahrain%3B,%3B%20Jordan%3B%20Korea%2C%20Rep.
- https://www.wto.org/english/res_e/booksp_e/ita20years_2017_full_e.pdf
- https://web.archive.org/web/20220120054410/https://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154430.pdf
- https://www.wto.org/english/tratop_e/inftec_e/itscheds_e.htm
AUSTRALIA
Since March 1997
Since December 2015
Since December 2015
Pillar Tariffs and trade defence measures applied on ICT goods |
Indicator Participation in the WTO Information Technology Agreement (ITA) and 2015 expansion (ITA II)
Information Technology Agreement (ITA)
ITA Expansion Agreement (ITA II)
ITA Expansion Agreement (ITA II)
Australia is a signatory of the World Trade Organization (WTO) Information Technology Agreement (ITA) of 1996 and its 2015 expansion (ITA II).
Coverage ICT goods
Sources
- https://www.wto.org/english/news_e/brief_ita_e.htm#:~:text=ITA%20participants%3A%20Australia%3B%20Bahrain%3B,%3B%20Jordan%3B%20Korea%2C%20Rep.
- https://www.wto.org/english/res_e/booksp_e/ita20years_2017_full_e.pdf
- https://web.archive.org/web/20220120054410/https://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154430.pdf
- https://www.wto.org/english/tratop_e/inftec_e/itscheds_e.htm
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AUSTRALIA
Since December 2014, extended in November 2019, until December 2024
Pillar Tariffs and trade defence measures applied on ICT goods |
Indicator Antidumping, countervailing duties, and safeguard measures on ICT goods
Customs Act 1901
Under the powers granted by the Customs Act 1901, a Commissioner leads the Anti-Dumping Commission, which manages antidumping and countervailing duties. In November 2019, the Commission extended the anti-dumping duties imposed in 2014 on power transformers (HS 8504.22 and 8504.23) against Indonesia and Taiwan for five additional years. The duty rate imposed on imports originating in Indonesia is 28.3%, while for imports originating in Taiwan, it ranges from 2.9% to 8.6%, depending on the company.
Coverage Product: Power transformers (HS 8504.22 and 8504.23)
Country: Indonesia, Taiwan
Country: Indonesia, Taiwan
Sources
- https://web.archive.org/web/20231204202030/https://www.industry.gov.au/sites/default/files/adc/measures/2023-03/dcr_-_power_transformers.pdf
- https://web.archive.org/web/20200324050210/https://www.industry.gov.au/sites/default/files/adc/public-record/504-026_-_notice_-_adn_2019-127_-_findings_of_the_continuation_inquiry_no._504_into_anti-du...
- http://i-tip.wto.org/goods/Forms/TableViewDetails.aspx?mode=modify
- https://web.archive.org/web/20221001051348/https://www.industry.gov.au/anti-dumping-commission/archive-cases-and-electronic-public-record-epr/epr-219
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AUSTRALIA
Since May 2019 until May 2024
Pillar Tariffs and trade defence measures applied on ICT goods |
Indicator Antidumping, countervailing duties, and safeguard measures on ICT goods
Customs Act 1901
Under the powers granted by the Customs Act 1901, a Commissioner leads the Anti-Dumping Commission, which manages antidumping and countervailing duties. In May 2019, the Commission imposed antidumping duties on PCV flat electric cables (HS 8544.49.20) imported from China. The duty rate ranges from 2.8% to 18.9%, depending on the company.
Coverage Product: PCV flat electric cables (HS 8544.49.20)
Country: China
Country: China
Sources
- https://web.archive.org/web/20230411134509/https://www.industry.gov.au/sites/default/files/adc/measures/2023-03/dcr_-_pvc_flat_electric_cables.pdf
- https://www.industry.gov.au/sites/default/files/adc/public-record/469-032_-_notice_-_adn_2019-047_-_findings_in_relation_to_a_dumping_and_subsidy_investigation.pdf
AUSTRALIA
Since July 2009
Since December 2013, last amended in September 2019
Since December 2013, last amended in September 2019
Pillar Public procurement of ICT goods and online services |
Indicator Other limitations on foreign participation in public procurement
Australian Government Procurement Statement
Australian Jobs Act 2013
Australian Jobs Act 2013
Starting with the Australian Government Procurement Statement in July 2009, the Federal labour Government enacted a series of measures designed to enhance Australian industry participation in Australian Government procurement. The Statement strengthened the Australian Industry Participation framework by requiring participants in large Commonwealth tenders (generally AUD 20 million (approx. 17.8 million USD) or more) and infrastructure projects to prepare and implement Australian Industry Participation (AIP) Plans. Additional support was provided in the May 2011 Budget to fund greater advocacy for local suppliers under the Buy Australian at Home and Abroad package. The labour Government's Plan for Australian Jobs, in force since December 2013, further extended the requirements for AIP Plans to all major projects with a capital expenditure of AUD 500 million (approx. 344 million USD) or more.
It was reported in 2014 that this scheme "[does not] require the use of Australian suppliers, yet their incremental application reveal[ed] a tendency towards the increased use of subtle restrictions on overseas firms participating in government procurement tenders.
More specifically:
- For Commonwealth Government Procurement of AUD 20 million or more, although bidders need to prepare and implement an AIP plan, AIP plans do not "mandate the use of Australian industry, but rather aim to provide Australian industry with the opportunity to demonstrate their capabilities so they can be considered in purchasing decisions."
- For participation in major projects, the Australian Jobs Act 2013 obligates procurement entities "not [to] request bids to supply key goods or services for the project unless the procurement entity has a broad understanding of the capability and capacity of Australian entities generally to supply those goods or services" (Section 35). This does not constitute a requirement to incorporate local suppliers, but it creates a preference for local suppliers for key goods or services for a project.
It was reported in 2014 that this scheme "[does not] require the use of Australian suppliers, yet their incremental application reveal[ed] a tendency towards the increased use of subtle restrictions on overseas firms participating in government procurement tenders.
More specifically:
- For Commonwealth Government Procurement of AUD 20 million or more, although bidders need to prepare and implement an AIP plan, AIP plans do not "mandate the use of Australian industry, but rather aim to provide Australian industry with the opportunity to demonstrate their capabilities so they can be considered in purchasing decisions."
- For participation in major projects, the Australian Jobs Act 2013 obligates procurement entities "not [to] request bids to supply key goods or services for the project unless the procurement entity has a broad understanding of the capability and capacity of Australian entities generally to supply those goods or services" (Section 35). This does not constitute a requirement to incorporate local suppliers, but it creates a preference for local suppliers for key goods or services for a project.
Coverage Horizontal
Sources
- https://web.archive.org/web/20221204014731/https://www.legislation.gov.au/Details/C2019C00250
- https://www.industry.gov.au/regulations-and-standards/australian-industry-participation
- https://www.industry.gov.au/sites/default/files/2019-01/review-of-the-jobs-act-2013-report.pdf
- https://web.archive.org/web/20220309165220/https://trade.ec.europa.eu/doclib/docs/2014/november/tradoc_152872.pdf
- http://www.globaltradealert.org/state-act/2939
- http://www.globaltradealert.org/state-act/1342
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AUSTRALIA
Since July 2012
Pillar Public procurement of ICT goods and online services |
Indicator Other limitations on foreign participation in public procurement
Commonwealth Procurement Rules
The Commonwealth Procurement Rules (CPRs) provide that the Australian Government is committed to non-corporate Commonwealth entities sourcing at least 10% of procurement by value from SMEs and has a target of non-corporate Commonwealth entities procuring 35% of contracts by volume, with a value of up to AUD 20 million (approx. 17.8 million USD), from SMEs (CPRs 5.6, 5.7).
The government response to the ICT Procurement Taskforce's (within the Digital Transformation Agency) final report released in 2013 states that all agencies will be required to report on compliance with (certain) principles as part of their annual report performance statements, which include a metric on the percentage of annual ICT spending on significant projects going to Australian businesses, including a breakdown of the amount going to Australian SMEs.
The government response to the ICT Procurement Taskforce's (within the Digital Transformation Agency) final report released in 2013 states that all agencies will be required to report on compliance with (certain) principles as part of their annual report performance statements, which include a metric on the percentage of annual ICT spending on significant projects going to Australian businesses, including a breakdown of the amount going to Australian SMEs.
Coverage Horizontal
Sources
- https://web.archive.org/web/20220312170743/https://www.finance.gov.au/sites/default/files/2020-12/Commonwealth%20Procurement%20Rules%20-%2014%20December%202020.pdf
- https://web.archive.org/web/20230325113732/https://www.dta.gov.au/help-and-advice/ict-procurement/digital-sourcing-framework-ict-procurement/ict-procurement-taskforce-report/government-response-taskfo...
- https://www.lexology.com/library/detail.aspx?g=4f4c638e-2f36-46e4-b6fb-d2b2afaa5569
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AUSTRALIA
Since March 2015, last amended in December 2020
Pillar Public procurement of ICT goods and online services |
Indicator Other limitations on foreign participation in public procurement
Indigenous Procurement Policy
The Commonwealth Indigenous Procurement Policy (IPP), issued in 2015, requires setting aside certain portions of domestic contracts for Indigenous enterprises (IPP 1.2). The IPP, updated in 2020, sets out a target for purchasing from indigenous enterprises for public procurements and a mandatory set-aside to direct Commonwealth contracts to indigenous enterprises (IPP 1.3). The target during the 2021-22 term was set for 1.5%. The IPP applies to non-corporate Commonwealth entities; it is not mandatory for corporate Commonwealth entities (IPP 1.6).
Coverage Horizontal
