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Trading restrictions

AUSTRALIA

Since 2012

Chapter Online sales and transactions  |  Sub-chapter Domain name (DNS) registration requeriments
Guidelines on the Interpretation of Policy Rules for Open 2LDs
In Australia, it is not possible to register directly under .au domain, and therefore it is required a registration under the open second level domains such as .com.au or .org.au.

A company that wants to register for the second level domain needs to be a registered Australian company or a foreign company licensed to trade in Australia. For certain second level domais such as id.au, the registrants must be an Australian citizen or resident.
Coverage Horizontal
Trading restrictions

AUSTRALIA

Since 2009

Chapter Quantitative Trade Restrictions  |  Sub-chapter Local Content Requeriments for commercial market
Australian Industry Participation (AIP) Program
In October 2011, the Government extended the requirements for the Australian Industry Participation (AIP) Plans to cover not only public but also private procurement. The AIP Plans require tenderers to specify their use of Australian suppliers.

In detail, the extension of the requirements applies (i) to companies in receipt of federal grants of AUD 20 million (approx. 17.4 million USD) or more and (ii) for grants of AUD 20 million or more to the States and Territories where they do not apply own industry participation plans. Projects greater than AUD 2 billion (approx. 1.38 billion USD) which are eligible for a special tariff concession scheme (see below: Enhanced Project By-law Scheme) were also required to publicly list additional information on opportunities they made available to the Australian industry. In February 2013 the requirements for AIP Plans were further extended to all major projects with a capital expenditure of AUD 500 million (approx. 344 million USD) or more.
Coverage Horizontal
Sources
Restrictions on data

AUSTRALIA

Since 2012

Chapter Content access  |  Sub-chapter Bandwitch, net neutrality
Case Law: Seafolly Pty Ltd v Madden, Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd
As showcased in recent judicial decisions, a company can be held responsible for post on social media sites if they breach the Australian Consumer Law.
Coverage Social network sites
Restrictions on data

AUSTRALIA


Chapter Content access  |  Sub-chapter Censorship and filtering of web content
Copyright Amendment (online infringement) Bill 2015
In June 2015, the Copyright Amendment (online infringement) Bill 2015 was passed in the Australian Senate. This Bill will allow copyright holders to apply to the Federal Court of Australia for an injunction requiring Australian Internet Service Providers to block local access to overseas websites deemed to be facilitating piracy.
Coverage Copyright infringement
Restrictions on data

AUSTRALIA

Since 2004

Chapter Intermidiary liability  |  Sub-chapter Lack of safe harbor for intermediary liabiity
US Free Trade Agreement Implementation Act 2004 and amended by the Copyright Legislation Amendment Act 2004
A safe harbor for intermediaries was introduced as part of the Australia - United States FTA in 2004. The safe harbor scheme applies to four categories of relevant activity, set out in sections 116AC to 116AF of the Copyright Legislation Amendment Act 2004. These are:
- acting as a conduit for internet activities by providing facilities for transmitting, routing or providing connections for copyright material;
- caching through an automatic process;
- storing copyright material on a carriage service provider’s systems or networks;
- referring users to an online location.
Coverage ISPs defined as ‘Carriage Service Providers’ under the Telecommunications Act 1997
Restrictions on data

AUSTRALIA

Since May 2015

Chapter Data policies  |  Sub-chapter Other
Wide interpretation of personal information
In May 2015, the Australian Privacy Commissioner clarified that 'metadata' may also be personal information where an organisation has the capacity and resources to link that information to an individual. This determination poses high costs on companies as they have to grant access to individuals to such data.
Coverage Horizontal
Restrictions on data

AUSTRALIA

Since 1989

Chapter Data policies  |  Sub-chapter Sanctions for non-compliance
Federal Privacy Act 1988
The Office of the Australian Information Commissioner (OAIC) can make a determination that includes, for example, a declaration that the complainant is entitled to a specified amount by way of compensation or can apply to the federal court or federal circuit court for an order that the organisation has breached a civil penalty provision. In such cases, a fine of up to A$340,000 for individuals or A$1.7 million (around 1.2 million USD) for corporations can be imposed for a serious breach or repeated breaches of the the Australian Privacy Principles Guidelines.
Coverage Horizontal
Restrictions on data

AUSTRALIA

Since October 2015

Chapter Data policies  |  Sub-chapter Personal rights to data privacy
Case 2015 SASC 170 'Duffy vs Google Inc'
An Australian court has agreed that Google can be held liable for the content and should be considered the "publisher" of the content when Google, according to the Court, 'hosts' defamatory material. Such case set a legal precedent for the right to be forgotten regime in Australia.
Coverage Horizontal
Restrictions on data

AUSTRALIA

Since October 2015

Chapter Data policies  |  Sub-chapter Data retention
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014
According to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, which entered into force in October 2015, internet and mobile service providers are required to store metadata for 24 months. The Bill allows law enforcement and security agencies to request access to the metadata retained by internet and mobile service providers, often without a warrant.
Coverage Internet and mobile service providers
Restrictions on data

AUSTRALIA

Since 1988

Chapter Data policies  |  Sub-chapter Restrictions cross-border on data flows
Federal Privacy Act 1988 as amended by The Privacy Amendment (Enhancing Privacy Protection) Act 2012
Under the Federal Privacy Act, before an organisation discloses personal information to an overseas recipient, it must take reasonable steps to ensure that the overseas recipient will not breach the Australian Privacy Principles (APPs).
This requirement does not apply only if:
- the overseas recipient is bound by a law similar to the APPs that the data subject can enforce;
- the data subject consents to the disclosure of the personal data in the particular manner prescribed by APP; or
- another exception applies.
An organisation may be held liable for any breaches by that overseas organisation of the APPs.
Coverage Horizontal
Restrictions on data

AUSTRALIA

Since June 2012

Chapter Data policies  |  Sub-chapter Restrictions cross-border on data flows
Personally Controlled Electronic Health Record Act of 2012 - Section 77
The Personally Controlled Electronic Health Record Act of 2012 requires local data centres to handle 'personally controlled electronic health records'. Therefore, no electronic health information can be held or processed outside Australia, unless they do not "include information in relation to a consumer" or "identifying information of an individual or entity".
Coverage Health sector
Establishment restrictions

AUSTRALIA

Since 2013

Chapter Bussiness mobility  |  Sub-chapter Other restrictive practices related to business mobility
2013-2014 budget measures
Since 2013, so-called "subclass 457 sponsors" (i.e. firms that would like to hire skilled workers) must demonstrate that no suitably qualified and experienced Australian citizens or residents are readily available to fill the posted vacancy. The firms are also required to provide proof of sufficient effort in trying to hire an Australian citizen or resident. These two requirements do not apply to highest-skills occupations.
Coverage Horizontal
Establishment restrictions

AUSTRALIA

Since 1994

Chapter Bussiness mobility  |  Sub-chapter Quotas, Labour Market Tests, Limits of Stay
Migration regulations 1994 - Paragraph 2.72(10), Schedule 2 Subclass 161 & 457
There are labour market tests for intra-corporate transferees (ICT), contractual service suppliers (CSS) as well as independent service suppliers (ISS). However, senior executives are exempted from labour market tests when the profession in question is part of a labour agreement or a so-called "Australia Supported Skills (IASS) agreement," which is a national program to increase skills in certain sectors.
Coverage Horizontal
Sources
  • OECD: Migration regulations 1994 - Paragraph 2.72(10), Schedule 2 Subclass 161 & 457:http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrumentCompilation1.nsf/0/A3C10DB7ACDFFB01CA25778500052A85?OpenDocument
  • https://www.comlaw.gov.au/Details/F2010C00637
Establishment restrictions

AUSTRALIA

Since 2012

Chapter Intellectual Property Rights  |  Sub-chapter Other restrictive practices related to IPR
Court case Bayer Pharma AG vs Genentech Inc [2012] FCA 1467
There is an extended liability for patent infringement. A person can be liable for patent infringement if he/she has engaged in a ‘common design’ with another party who has committed an infringing act. It is not necessary that the parties understood that their actions would lead to infringement of a patent, nor whether there has been direct contact between the relevant parties.
Coverage Horizontal
Establishment restrictions

AUSTRALIA

Since 1968

Chapter Intellectual Property Rights  |  Sub-chapter Copyright
Copyright Act
Currently, the Copyright Act provides for listed fair dealing exceptions.
Coverage Horizontal