Foreign Acquisitions and Takeovers Legislation Amendment Act 2015 (Cth)
Contents
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The Parliament of Australia enacts:
This Act may be cited as the
Foreign Acquisitions and Takeovers Legislation Amendment Act 2015 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 25 November 2015 |
Schedule 1 | 1 December 2015. | 1 December 2015 |
Schedule 2 | Immediately after the commencement of Schedule 1 to the | 5 March 2016 |
Schedules 3 and 4 | 1 December 2015. | 1 December 2015 |
Schedule 5 | The later of:
| 1 December 2015 (paragraph (b) applies) |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
After “
and to the ”, insert “foreign acquisition and ”.
Repeal the heading, substitute:
Repeal the sections, substitute:
This Act deals with certain actions to acquire interests in securities, assets or Australian land, and actions taken in relation to entities (being corporations and unit trusts) and businesses, that have a connection to Australia. These actions are called significant actions. For an action to be a significant action, the action must result in a change in control involving a foreign person or be taken by a foreign person.
If a person proposes to take or has taken a significant action, the Treasurer has power to do one or more of the following:
(a) decide that the Commonwealth has no objection to the action;
(b) impose conditions on the action;
(c) prohibit the action;
(d) require the action to be undone (for example, by requiring the disposal of an interest that has been acquired).
Offences and civil penalties apply for failing to comply with:
(a) an order made prohibiting an action, or requiring an action to be undone; or
(b) a condition imposed on an action.
Some significant actions (called notifiable actions) must also be notified to the Treasurer before the actions can be taken. Offences and civil penalties may apply if a notifiable action is taken without a notice having been given. If a notice has been given stating that a significant action is proposed to be taken, the action must not be taken before the end of a specified period (generally of 40 days, or an additional period of up to 90 days from the publication of an interim order).
Fees are payable in relation to applications and orders made, and notices and notifications given, under this Act.
A person must make and keep records for the purposes of this Act, including in relation to significant actions and notifiable actions. Information that is obtained for the purposes of this Act (called protected information) may be disclosed only for certain purposes. A person who obtains, uses or discloses protected information other than as authorised by this Act may commit an offence.
In this Act:
6 month period has the meaning given by subsection 113(3).
acquire an interest of a specified percentage in an entity has the meaning given by section 20.
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
aggregate interest of a specified percentage in an entity has the meaning given by subsection 17(2).
aggregate substantial interest : 2 or more persons hold anaggregate substantial interest in an entity or trust if:
(a) for an entity—the persons hold an aggregate interest of at least 40% in the entity; or
(b) for a trust (including a unit trust)—the persons, together with any one or more associates of any of them hold, in the aggregate, beneficial interests in at least 40% of the income or property of the trust.
Note: See also sections 17 (meanings of
interest andaggregate interest of a specified percentage in an entity) and 18 (rules relating to determining percentages of interests in entities).
agribusiness : an Australian entity or Australian business is anagribusiness in the circumstances prescribed by the regulations.
agricultural land means land in Australia that is used, or that could reasonably be used, for a primary production business.Note: The regulations may provide that land of a specified kind is not agricultural land (see subsection 37(3)).
agricultural land corporation has the meaning prescribed by the regulations.
agricultural land trust has the meaning prescribed by the regulations.
asset includes an interest in an asset.
associate has the meaning given by section 6.
Australia , when used in a geographical sense, includes the external Territories.
Australian business has the meaning given by section 8.
Australian corporation means a corporation formed in Australia.
Australian entity means an Australian corporation or an Australian unit trust.
Australian land means agricultural land, commercial land, residential land or a mining or production tenement.
Australian land corporation has the meaning prescribed by the regulations.
Australian land trust has the meaning prescribed by the regulations.
Australian subsidiary of a foreign entity means an Australian entity that is a subsidiary of the foreign entity.Note: For the definition of
subsidiary , see section 21.
Australian unit trust means a unit trust:
(a) the trustee of which holds relevant Australian assets; or
(b) the trustee of which carries on an Australian business; or
(c) the central management and control of which is in Australia; or
(d) in which one or more persons who are ordinarily resident in Australia hold more than 50% of the beneficial interests in the income or property of the unit trust; or
(e) that is listed for quotation in the official list of a stock exchange in Australia.
change in control has the meaning given by section 54.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
commercial land means land in Australia or the seabed of the offshore area, other than land:
(a) used wholly and exclusively for a primary production business; or
(b) on which there is at least one dwelling (except commercial residential premises); or
(c) on which the number of dwellings (except commercial residential premises) that could reasonably be built is less than the number prescribed by the regulations for the purposes of subparagraph (a)(ii) of the definition of
residential land in this section.
commercial residential premises has the same meaning as in theA New Tax System (Goods and Services Tax) Act 1999 .
Commonwealth entity has the same meaning as in thePublic Governance, Performance and Accountability Act 2013 .
Commonwealth, State or Territory body includes a Department of State, or an authority or agency, of the Commonwealth, a State or a Territory.
consideration has the meaning prescribed by the regulations.
constituent document of an entity means any rules or other document constituting or establishing the entity or governing its activities, and includes:
(a) for a corporation—the constitution of the corporation; and
(b) for a unit trust—the trust deed for the trust.
controls :
(a) the voting power—has the meaning given by section 23; and
(b) an entity or business—has the meaning given by subsections 54(4) and (5).
debenture includes:
(a) debenture stock, bonds and notes; and
(b) any other document evidencing or acknowledging indebtedness of an entity, whether or not constituting a charge on the assets of the entity.
decision period has the meaning given by subsection 77(5).
determines the policy of a business of exploiting a mining or production tenement has a meaning affected by section 24.
development means one or more multi‑storey buildings if:
(a) the buildings will be, are being or have been built; and
(b) the buildings are or were under one development approval; and
(c) the number of independent self‑contained dwellings (other than townhouses) that the buildings contain or will contain is at least the number prescribed by the regulations.
direct interest has the meaning prescribed by the regulations.
director includes any person occupying the position of director (however described) of a corporation.
engage in conduct includes fail or refuse to engage in conduct.
enters has a meaning affected by section 25.
entity means a corporation or a unit trust.
established dwelling means a dwelling (except commercial residential premises) on residential land that is not a new dwelling.
exemption certificate means a certificate given under:
(a) section 57, 58 or 59; or
(b) regulations made for the purposes of section 63.
foreign corporation means a foreign corporation to which paragraph 51(xx) of the Constitution applies.
foreign entity means an entity that is not an Australian entity.
foreign government means an entity (within the ordinary meaning of the term) that is:
(a) a body politic of a foreign country; or
(b) a body politic of part of a foreign country; or
(c) a part of a body politic mentioned in paragraph (a) or (b).
foreign government investor has the meaning prescribed by the regulations.
foreign person means:
(a) an individual not ordinarily resident in Australia; or
(b) a corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or
(c) a corporation in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or
(d) the trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or
(e) the trustee of a trust in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or
(f) a foreign government; or
(g) any other person, or any other person that meets the conditions, prescribed by the regulations.
Note: In certain circumstances, an associate of a foreign person may be taken to be a foreign person even if the associate is not a foreign person (see subsection 54(7)).
general meeting of an entity means:
(a) for a corporation—a general meeting of the corporation; or
(b) for a unit trust—a general meeting of the unit holders of the trust.
holding entity has the meaning given by subsection 21(4).
independent director has the meaning given by section 7.
interest :
(a) in a security—has the meaning given by section 9; and
(b) in an asset—has the meaning given by section 10; and
(c) in a trust—has the meaning given by section 11; and
(d) in Australian land—has the meaning given by section 12; and
(e) of a specified percentage in an entity—has the meaning given by section 17.
Note: For other rules relating to interests in a security, asset, trust or Australian land, see sections 13 to 15.
interim order means an order made under section 68.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
land includes:
(a) a building (including a new dwelling or an established dwelling) or a part of a building; and
(b) subsoil of land.
land register means a register kept under a law of the Commonwealth, a State or a Territory in which interests (within the ordinary meaning of the term) in Australian land are registered.
lease includes a sublease.
long term lease means a lease granted by the Commonwealth, a State or a Territory for a term (including any extension or renewal) that is reasonably likely, at the time the lease is granted, to exceed 20 years.
mining or production tenement means:
(a) a right (however described) under a law of the Commonwealth, a State or a Territory to recover minerals (such as coal or ore), oil or gas in Australia or from the seabed or subsoil of the offshore area, other than a right to recover minerals, oil or gas for the purposes of prospecting or exploring for minerals, oil or gas; or
(b) a right that preserves a right mentioned in paragraph (a); or
(c) a lease under which the lessee has a right mentioned in paragraph (a) or (b); or
(d) an interest in a right mentioned in paragraph (a) or (b) or under a lease mentioned in paragraph (c).
new dwelling means a dwelling (except commercial residential premises) that will be, is being or has been built on residential land and that:
(a) has not been previously sold as a dwelling; and
(b) either:
(i) has not been previously occupied; or
(ii) if the dwelling is contained in a development and the dwelling was sold by the developer of the development—has not been previously occupied for more than 12 months in total.
Note: For when a dwelling is sold, see subsections 15(4) and (5).
new dwelling acquisition has the meaning given by subsection 113(4).
no objection notification has the meaning given by subsections 74(2) and 75(2).
notifiable action has the meaning given by Division 3 of Part 2.
officer of an entity includes the following:
(a) for a corporation—a director of the corporation;
(b) for a unit trust:
(i) the trustee of which is an individual—the trustee; and
(ii) the trustee of which is a corporation—a director of the trustee; and
(iii) in any case—any other individual involved in the central management and control of the trust;
(c) a person who is, or a person in a group of persons who are, in a position to determine the investments or policy of the entity or a trustee of the entity;
(d) a person who makes, or participates in making, decisions that affect the whole, or a substantial part of, the business of the entity;
(e) a person who has the capacity to affect significantly the financial standing of the entity;
(f) a receiver and manager of any part of the business of the entity appointed under a power contained in any instrument;
(g) an administrator of the entity;
(h) an administrator under a deed of company arrangement executed by the entity;
(i) a liquidator of the entity appointed in a voluntary winding up.
offshore area means:
(a) the exclusive economic zone of Australia; or
(b) the continental shelf of Australia.
ordinarily resident has a meaning affected by section 5.
potential voting power has the meaning given by section 22.
primary production business has the same meaning as in theIncome Tax Assessment Act 1997 .
proposes :
(a) to acquire an interest in securities, assets or Australian land—has a meaning affected by subsection 16(1); and
(b) to enter or terminate an agreement—has a meaning affected by subsection 16(2).
protected information has the meaning given by section 120.
Regulatory Powers Act means theRegulatory Powers (Standard Provisions) Act 2014 .
relative has the same meaning as in theIncome Tax Assessment Act 1997 .
relevant Australian assets means:
(a) Australian land, including legal and equitable interests (within the ordinary meaning of the term) in such land; or
(b) securities in an Australian entity.
relevant entity means any of the following:
(a) an Australian entity;
(b) a foreign corporation:
(i) that holds relevant Australian assets; or
(ii) that is a holding corporation of one or more Australian corporations;
(c) a holding entity of such a foreign corporation or of an Australian unit trust.
Note: A holding entity mentioned in paragraph (c) may be a foreign corporation of a kind that is not mentioned in paragraph (b).
residential land :
(a) means land in Australia if:
(i) there is at least one dwelling on the land; or
(ii) the number of dwellings that could reasonably be built on the land is less than the number prescribed by the regulations; and
(b) does not include land:
(i) used wholly and exclusively for a primary production business; or
(ii) on which the only dwellings are commercial residential premises.
residential land acquisition means a notifiable action to acquire an interest in residential land.
scheme means:
(a) any agreement, understanding, promise or undertaking:
(i) whether express or implied; and
(ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
Secretary means the Secretary of the Department.
security means a share in a corporation or a unit in a unit trust.
senior officer of an entity means an officer of the entity under any of paragraphs (a) to (e) of the definition ofofficer in this section, except an independent director of the entity.
sensitive business has the meaning given by section 26.
separate government entity means an individual, corporation or corporation sole that:
(a) is an agency or instrumentality of a foreign country or a part of a foreign country; and
(b) is not part of the body politic of a foreign country or of a part of a foreign country.
share of a corporation means a share in the share capital of the corporation, and includes:
(a) stock into which all or any of the share capital of the corporation has been converted; and
(b) except in section 9, an interest in such a share or in such stock.
significant action has the meaning given by Division 2 of Part 2.
significant agreement with an Australian business is an agreement relating to:
(a) the leasing of, the letting on hire of, or the granting of other rights to use, assets of the business; or
(b) the participation by a person in the profits or central management and control of the business.
subsidiary has the meaning given by subsections 21(1) to (3).
substantial interest : a person holds asubstantial interest in an entity or trust if:
(a) for an entity—the person holds an interest of at least 20% in the entity; or
(b) for a trust (including a unit trust)—the person, together with any one or more associates, holds a beneficial interest in at least 20% of the income or property of the trust.
Note 1: See also sections 17 (meanings of
interest andaggregate interest of a specified percentage in an entity) and 18 (rules relating to determining percentages of interests in entities).Note 2: For when a person
acquires a substantial interest in an entity, see section 20.
temporary resident means an individual who:
(a) holds a temporary visa under the
Migration Act 1958 that allows the individual to remain in Australia for a continuous period of more than 12 months (disregarding the amount of that period remaining); or(b) meets the following conditions:
(i) the individual is residing in Australia;
(ii) the individual has applied for a permanent visa under the
Migration Act 1958 ;(iii) the individual holds a bridging visa under that Act that allows the individual to remain in Australia until the application has been finally determined; or
(c) meets the conditions prescribed by the regulations.
this Act includes the regulations.
threshold test is met has the meaning given by Subdivision B of Division 4 of Part 2.
tier 1 infringement notice has the meaning given by subsection 101(1).
tier 2 infringement notice has the meaning given by subsection 101(2).
total asset value for an entity has the meaning prescribed by the regulations.
total issued securities value for an entity has the meaning prescribed by the regulations.
voting power has the meaning given by subsection 22(1).
(1) An individual who is not an Australian citizen is
ordinarily resident in Australia at a particular time if and only if:
(a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and
(b) at that time:
(i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law; or
(ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law.
(2) Without limiting paragraph (1)(b), an individual’s continued presence in Australia is subject to a limitation as to time imposed by law if the individual is an unlawful non‑citizen within the meaning of the
Migration Act 1958 .
(1) Each of the following persons is an
associate of a person:
(a) any relative of the person;
(b) any person with whom the person is acting, or proposes to act, in concert in relation to an action to which this Act may apply;
(c) any person with whom the person carries on a business in partnership;
(d) any entity of which the person is a senior officer;
(e) if the person is an entity:
(i) any holding entity of the entity; or
(ii) any senior officer of the entity;
(f) any entity whose senior officers are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of:
(i) the person; or
(ii) if the person is an entity—the senior officers of the person;
(g) an entity if the person is accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of:
(i) the entity; or
(ii) the senior officers of the entity;
(h) any corporation in which the person holds a substantial interest;
(i) if the person is a corporation—a person who holds a substantial interest in the corporation;
(j) the trustee of a trust in which the person holds a substantial interest;
(k) if the person is the trustee of a trust—a person who holds a substantial interest in the trust;
(l) if the person is a foreign government, a separate government entity or a foreign government investor in relation to a foreign country (or a part of a foreign country):
(i) any other person that is a foreign government in relation to that country (or any part of that country); or
(ii) any other person that is a separate government entity in relation to that country (or any part of that country); or
(iii) any other foreign government investor in relation to that country (or any part of that country).
Note: A person may be taken to be an associate under section 79.
Additional associates in relation to interests in residential land
(2) For an action taken relating to an interest in residential land (within the meaning of any of the paragraphs of subsection 12(1)), each of the following persons is also an
associate of a person:
(a) an entity that is not listed for quotation in the official list of a stock exchange if a relative of the person:
(i) holds a substantial interest in the entity; or
(ii) is a senior officer of the entity;
(b) if the person is an entity (the
first entity )—another entity (thesecond entity ) if:
(i) an individual holds a substantial interest in the first entity or is a senior officer of the first entity; and
(ii) a relative of the individual holds a substantial interest in the second entity or is a senior officer of the second entity; and
(iii) the first entity and the second entity are not, and are not a subsidiary or trustee of an entity, listed for quotation in the official list of a stock exchange.
Persons who are not associates
(3) Despite subsections (1) and (2), a person is not an
associate of another person merely because:
(a) one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship; or
(b) one, a client, gives specific instructions to the other, whose ordinary business includes dealing in financial products (within the meaning of the
Corporations Act 2001 ), to acquire financial products on the client’s behalf in the ordinary course of that business; or(c) one had sent, or proposes to send, to the other an offer under a takeover bid (within the meaning of that Act) for securities held by the other; or
(d) one has appointed the other, otherwise than for valuable consideration (within the ordinary meaning of the term) given by the other or by an associate of the other, to vote as a proxy or representative; or
(e) both of the following apply:
(i) one provides independent services as a trustee of a trust to the other who is a beneficiary of the trust;
(ii) the trustee is licensed to provide those services under a law of the Commonwealth, a State, a Territory, a foreign country or a part of a foreign country; or
(f) one holds a substantial interest in a managed investment scheme (within the meaning of the
Corporations Act 2001 ) and the other is the responsible entity of the scheme; or(g) both are partners of one of the following kinds of partnerships:
(i) a partnership of actuaries or accountants;
(ii) a partnership of medical practitioners;
(iii) a partnership of patent attorneys;
(iv) a partnership of sharebrokers or stockbrokers;
(v) a partnership of trade mark attorneys;
(vi) a partnership that has as its primary purpose collaborative scientific research, and includes at least one university and one private sector participant (whether or not it also includes government agencies or publicly funded research bodies);
(vii) a partnership of architects;
(viii) a partnership of pharmaceutical chemists or veterinary surgeons;
(ix) a partnership of legal practitioners.
Listed entities
(1) A person is an
independent director of an entity if:
(a) the person is:
(i) a director of the entity; or
(ii) for a unit trust—a director of a trustee of the entity; and
(b) the entity is listed for quotation in the official list of a stock exchange (whether or not in Australia); and
(c) the director meets the criteria of that stock exchange for a director to be independent (whether or not the criteria are binding).
Note: If the stock exchange does not have criteria for a director to be independent, a director of an entity listed for quotation in the official list of the stock exchange is not an independent director.
Entities whose securities are stapled
(2) A person is an
independent director of an entity (thefirst entity ) if:
(a) the person is a director of the first entity and another entity; and
(b) the securities in the first entity can only be transferred together with securities in the other entity; and
(c) the first entity is not listed for quotation in the official list of a stock exchange, but the other entity is (whether or not in Australia); and
(d) the director meets the criteria of that stock exchange for a director to be independent (whether or not the criteria are binding).
(1) An
Australian business is a business that is carried on wholly or partly in Australia in anticipation of profit or gain.(2) For the purposes of this Act, a person who has an interest in a mining or production tenement is, as a result of having that interest, taken to carry on a business in Australia of exploiting that tenement in anticipation of profit or gain. The tenement is taken to be an asset of that business.
(1) A person holds or acquires an
interest in a security if he or she has any legal or equitable interest in that security.Note 1: For other rules relating to interests in securities, see sections 13 to 15.
Note 2: See also section 19 (tracing of substantial interests in corporations and trusts).
(2) Without limiting subsection (1), a person holds or acquires an
interest in a security in an entity if:
(a) the person is not the registered holder of the security; and
(b) the person is entitled to exercise or control the exercise of a right attached to the security (other than because he or she was appointed as a proxy or representative).
(3) In determining whether a person holds or acquires an interest in a security, it is immaterial that the interest cannot be related to a particular security.
Issued shares in a corporation
(4) A person holds or acquires an
interest in the issued shares in a corporation if:
(a) all or part of the share capital of the corporation consists of stock; and
(b) the person holds an interest in that stock.
(5) For the purposes of this Act, the issued shares are taken to have:
(a) the same nominal amount as the amount of that stock; and
(b) the same rights attached to them as are attached to that stock.
A person holds or acquires an
interest in an asset if he or she has any legal or equitable interest in that asset.Note 1: For other rules relating to interests in assets, see sections 13 to 15.
Note 2: See also section 19 (tracing of substantial interests in corporations and trusts).
A person holds or acquires an
interest in a trust if:
(a) the person holds or acquires a beneficial interest in the income or property of the trust; or
(b) the person holds or acquires an interest in a unit in a unit trust.
Note 1: For other rules relating to interests in trusts, see sections 13 to 15.
Note 2: See also section 19 (tracing of substantial interests in corporations and trusts).
(1) An
interest in Australian land (however described) is:
(a) a legal or equitable interest in Australian land, other than:
(i) an interest under a lease or licence or in a unit in a unit trust; or
(ii) an interest in an agreement giving a right (known as a profit à prendre) to take something off another person’s land, or to take something out of the soil of that land; or
(iii) an interest in an agreement involving the sharing of profits or income from the use of, or dealings in, Australian land; or
(b) an interest in a security in an entity that owns Australian land, being a security that entitles the holder to a right to occupy a dwelling of a kind known as a flat or home unit situated on the land; or
(c) an interest as lessee or licensee in a lease or licence giving rights to occupy Australian land if the term of the lease or licence (including any extension or renewal) is reasonably likely, at the time the interest is acquired, to exceed 5 years; or
(d) an interest in an agreement giving a right of a kind mentioned in subparagraph (a)(ii) if the term of the agreement (including any extension or renewal) is reasonably likely, at the time the interest in the agreement is acquired, to exceed 5 years; or
(e) an interest in an agreement involving the sharing of profits or income from the use of, or dealings in, Australian land if the term of the agreement (including any extension or renewal) is reasonably likely, at the time the interest in the agreement is acquired, to exceed 5 years; or
(f) an interest in a share in an Australian land corporation or agricultural land corporation; or
(g) an interest in a unit in an Australian land trust or agricultural land trust; or
(h) if the trustee of an Australian land trust or agricultural land trust is a corporation—an interest in a share in that corporation.
Note 1: For other rules relating to interests in Australian land, see sections 13 to 15.
Note 2: Australian land may be described as “residential land”, “agricultural land” or “commercial land”, or as “a new dwelling” or “an established dwelling”.
(2) An interest is an
interest in Australian land even if it is the only interest that exists in the land or other thing concerned.(3) A person acquires an interest in Australian land even if:
(a) the person has previously acquired an interest in Australian land; or
(b) the interest is an increase in the amount of an existing interest of the person in Australian land.
A person holds or acquires an interest in a security, asset, trust or Australian land despite:
(a) its remoteness; or
(b) the manner in which it arose; or
(c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to restraint or restriction.
A person holds or acquires an interest in a security, asset, trust or Australian land even if the person holds or acquires the interest jointly with one or more other persons.
(1) For the purposes of this Act, a person is taken (except as provided by subsections (4) and (5)) to acquire an interest in a security, asset, trust or Australian land if the person:
(a) enters an agreement to acquire the interest; or
(b) either:
(i) for an interest in a security, asset or trust—has a right to acquire such an interest under an option; or
(ii) for an interest in Australian land—acquires an option to acquire such an interest; or
(c) has a right, other than by reason of having an interest under a trust, to have such an interest transferred to himself or herself or to his or her associate.
Note: For the definition of
enters , see section 25.(2) To avoid doubt, a right mentioned in paragraph (1)(b) or (c) includes a right under an instrument or agreement.
(3) Subsections (1) and (2) apply whether or not:
(a) the right or option is presently exercisable or exercisable in the future; or
(b) the agreement, right or option requires the fulfilment of a condition.
Provisions of agreements that are not currently binding
(4) Subsection (5) applies for the purposes of the following provisions:
(a) Part 4 (notice of notifiable action);
(b) Part 5 (offences and civil penalties) to the extent that it relates to Part 4;
(c) any other provision of this Act to the extent that it relates to the provisions mentioned in paragraph (a) or (b);
(d) the definition of
new dwelling in section 4 (including to the extent that the definition affects the definition ofestablished dwelling in that section), except in section 95 (acquisition of interests in established dwellings).(5) If:
(a) a person proposes to take an action to acquire or sell an interest in a security, asset, trust or Australian land; and
(b) the provisions of the agreement to acquire or sell the interest do not become binding on the person until one or more conditions are met;
the person takes the action to acquire or sell the interest, and enters the agreement, only when the provisions become binding.
Note: As a result of this subsection, the person acquires or sells the interest only when the provisions become binding.
(1) A person
proposes to acquire an interest in securities, assets or Australian land if:
(a) the person makes an offer to acquire the interest; or
(b) the person makes or publishes a statement (however expressed) that expressly or impliedly invites a holder of an interest in securities, assets or Australian land to offer to dispose of an interest in securities, assets or Australian land; or
(c) the person takes part in, or proposes to take part in, negotiations with a view to acquiring an interest in securities, assets or Australian land.
(2) A person
proposes to enter or terminate an agreement if the person takes part in, or proposes to take part in, negotiations with a view to entering or terminating the agreement.(3) This section does not limit the meaning of
propose .
Meaning of interest of a specified percentage in an entity
(1) A person holds an
interest of a specified percentage in an entity if the person, alone or together with one or more associates of the person:
(a) is in a position to control at least that percentage of the voting power or potential voting power in the entity; or
(b) holds interests in at least that percentage of the issued securities in the entity; or
(c) would hold interests in at least that percentage of the issued securities in the entity if securities in the entity were issued or transferred as the result of the exercise of rights of a kind mentioned in paragraph 15(1)(b) or (c).
Note 1: See also section 18 (rules relating to determining percentages of interests in entities) and the definition of
acquire in section 20.Note 2: A percentage may be specified by referring to:
(a) “20%”; or
(b) “any percentage”; or
(c) a “substantial interest” or a “direct interest”; or
(d) a percentage that a person holds in another entity.
Meaning of aggregate interest of a specified percentage in an entity
(2) Two or more persons (who are not associates of each other) hold an
aggregate interest of a specified percentage in an entity if they, together with any one or more associates of any of them:
(a) are in a position to control at least that percentage of the voting power or potential voting power in the entity; or
(b) hold interests in at least that percentage of the issued securities in the entity; or
(c) would hold interests in at least that percentage of the issued securities in the entity if securities in the entity were issued or transferred as the result of the exercise of rights of a kind mentioned in paragraph 15(1)(b) or (c).
Proxies and representatives
(3) In determining the percentage of voting power or potential voting power that a person is in a position to control in an entity, disregard any votes that he or she controls as a proxy or representative.
Exercise of future rights
(1) Subsection (2) applies if:
(a) a person has a right that, if exercised, would result in the person holding an interest in an issued security in the entity; and
(b) it cannot be determined at that time (from the right itself or from the circumstances existing at that time) whether the right would be exercised.
(2) For the purposes of this Act, in determining the percentage of the interests in the issued securities in the entity that the person holds, or would hold, at a particular time, assume that the right were exercised at that time.
Discretionary trusts
(3) For the purposes of this Act, if, under the terms of a trust, a trustee has a power or discretion to distribute the income or property of the trust to one or more beneficiaries, each beneficiary is taken to hold a beneficial interest in the maximum percentage of income or property of the trust that the trustee may distribute to that beneficiary.
(1) This section applies (subject to subsection (3)) if:
(a) either:
(i) a person holds a substantial interest in a corporation or trust (the
higher entity ); or(ii) 2 or more persons hold an aggregate substantial interest in a corporation (the
higher entity ); or(iii) 2 or more persons hold an aggregate substantial interest in a trust (the trustee of which is a
higher entity );including because of one or more applications of this section; and
(b) the higher entity:
(i) is in a position to control all or any of the voting power or potential voting power in a corporation (the
lower entity ); or(ii) holds interests in all or any of the shares in a corporation (the
lower entity ); or(iii) holds an interest in a trust (the
lower entity ).(2) For the purposes of this Act:
(a) if subparagraph (1)(b)(i) applies—the person or persons are taken to be in a position to control the voting power or potential voting power of the lower entity that the higher entity is in a position to control; or
(b) if subparagraph (1)(b)(ii) applies—the person or persons are taken to hold the interests in the shares in the lower entity that the higher entity holds; or
(c) if subparagraph (1)(b)(iii) applies—the person or persons are taken to hold the interest in the lower entity that the higher entity holds.
(3) This section does not apply for the purpose of:
(a) determining under any of the following whether a foreign person acquires a direct interest in an Australian entity or Australian business that is an agribusiness:
(i) paragraph 40(2)(a) (meaning of
significant action —entities);(ii) paragraph 41(2)(a) (meaning of
significant action — businesses);(iii) paragraph 47(2)(a) (meaning of
notifiable action —general); or(b) determining under paragraph 47(2)(b) (meaning of
notifiable action —general) whether a foreign person acquires a substantial interest in an Australian entity.
(1) A person
acquires an interest of a specified percentage in an entity if the person:
(a) starts to hold an interest of that percentage in the entity; or
(b) would start to hold an interest of that percentage in the entity on the assumption that the person:
(i) held interests in securities that are interests that he or she has offered to acquire; or
(ii) held rights to votes that might be cast at a general meeting of the entity that are rights that he or she has offered to acquire; or
(c) for a person who already holds an interest of that percentage in the entity:
(i) becomes in a position to control more of the voting power or potential voting power in the entity; or
(ii) starts to hold additional interests in the issued securities in the entity; or
(iii) would start to hold additional interests in the issued securities in the entity if securities in the entity were issued or transferred as the result of the exercise of rights of a kind mentioned in paragraph 15(1)(b) or (c).
Note 1: For the definition of
general meeting , see section 4.Note 2: A percentage may be specified by referring to:
(a) “20%”; or
(b) “any percentage”; or
(c) a “substantial interest” or a “direct interest”; or
(d) a percentage that a person holds in another entity.
(2) For the purposes of subsection (1), a reference to a person offering to acquire interests in securities or rights includes a reference to a person making or publishing a statement (however expressed) that expressly or impliedly invites a holder of interests in securities or rights to offer to dispose of interests in securities or rights.
Meaning of subsidiary
(1) An entity (the
lower entity ) is asubsidiary of another entity (thehigher entity ) if:
(a) the higher entity:
(i) is in a position to control more than half the voting power in the lower entity; or
(ii) holds more than half the issued securities in the lower entity (disregarding any securities that carry no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the lower entity is a subsidiary of an entity that is the higher entity’s subsidiary (including because of one or more applications of this subsection).
Note: The lower entity need not be the immediate subsidiary of the higher entity under paragraph (1)(a) (see section 23 which provides that a person may control the voting power in an entity directly or indirectly, and section 19 which provides that a person is taken to hold interests in securities that are traced through a chain of corporations or trusts).
(2) In determining whether a lower entity is a subsidiary of a higher entity, disregard any securities held or power exercisable by:
(a) the higher entity in a fiduciary capacity; or
(b) any person as a result of a debenture of the lower entity; or
(c) any person as a result of a trust deed for securing the issue of a debenture of the lower entity.
(3) In determining whether a lower entity is a subsidiary of a higher entity, any securities held or power exercisable:
(a) by any person as a nominee for the higher entity; or
(b) by, or by a nominee for, a subsidiary of the higher entity;
are taken to be held or exercisable by the higher entity.
Meaning of holding entity
(4) An entity (the
higher entity ) is aholding entity of another entity (thelower entity ) if the lower entity is a subsidiary of the higher entity.
Meaning of voting power
(1) The
voting power in an entity is the maximum number of votes that might be cast at a general meeting of the entity.Note: For the definition of
general meeting , see section 4.
Meaning of potential voting power
(2) The
potential voting power in an entity is the voting power in the entity, on the assumption that the votes that might be cast at a general meeting of the entity included each vote that:
(a) because of the exercise of a right might come into existence in the future (whether or not the right is exercisable presently or in the future or on the fulfilment of a condition); and
(b) if it came into existence, might be cast at a general meeting of the entity.
Note: Different voting rights might attach to different classes of securities in an entity.
Exercise of future rights
(3) In determining how much of the
potential voting power in an entity a person is in a position to control at a particular time, if:
(a) a right exists that, if exercised, would result in the person being in a position to control more of the potential voting power in the entity than the person would be in a position to control if the right were not exercised; and
(b) it cannot be determined at that time (whether from the right itself or from the circumstances existing at that time) whether the right would be exercised;
assume that the right were exercised at that time.
Veto power
(4) If a person is in a position to veto any resolution of the board, central management or general meeting of an entity, then for the purposes of this Act (except paragraph 47(2)(b) (meaning of
notifiable action ) and subsection 54(4) (meaning ofcontrol )) the person is taken to be in a position to control 20% of the potential voting power in the entity.
A person
controls the voting power in an entity if the person controls the power directly or indirectly, including as a result or by means of agreements or practices, whether or not the agreements or practices:
(a) have legal or equitable force; or
(b) are based on legal or equitable rights.
(1) A person
determines the policy of a business of exploiting a mining or production tenement if the person determines questions relating to the disposal of an interest in the tenement.(2) This section does not limit the meaning of
determines the policy of a business of exploiting a mining or production tenement.
(1) A person
enters an agreement if:
(a) the person enters into any formal or informal scheme, including by:
(i) creating a trust (whether express or implied); or
(ii) entering into a transaction; or
(iii) acquiring an interest in a security, asset, trust or Australian land; or
(b) the agreement is materially altered or varied.
Note 1: For the definition of
scheme , see section 4.Note 2: A variation of an agreement that increases the percentage that a person holds in an entity is material. A variation to the way the consideration for an acquisition of an interest is worked out is not material.
(2) This section does not limit the meaning of
enters .
(1) A business is a
sensitive business if the business meets the conditions specified in the regulations.(2) Without limiting subsection (1) or subsection 33(3A) of the
Acts Interpretation Act 1901 , the regulations may prescribe:
(a) sensitive businesses generally, or different sensitive businesses for different kinds of foreign persons; and
(b) different conditions for different sensitive businesses.
The regulations may provide in relation to valuing the assets of an entity, trust or business.
An act done or proposed to be done by an agent on behalf of his or her principal is taken to be done or proposed to be done by his or her principal.
This Act applies to:
(a) all individuals, whether or not resident in Australia or Australian citizens; and
(b) all corporations, whether or not formed or carrying on business in Australia; and
(c) all unit trusts, whether or not Australian unit trusts.
This Act extends to every external Territory.
This Act applies both within and outside Australia.
This Act extends to a matter relating to the exercise of Australia’s sovereign rights in the exclusive economic zone or the continental shelf.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that it is capable of operating concurrently with this Act.
Application of this section
(1) This section applies in relation to each of the following persons:
(a) a foreign person;
(b) a corporation;
(c) a person applying for an exemption certificate under:
(i) section 57 (certificates for new dwellings); or
(ii) regulations made for the purposes of section 63;
(d) an individual who holds a substantial interest, or who, as one of 2 or more persons, holds an aggregate substantial interest in a corporation or trust.
Effect of this Act
(2) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.
(3) To avoid doubt, no subsection of this section limits the operation of any other subsection of this section.
External affairs power
(4) This Act has the effect it would have if each reference to a person mentioned in subsection (1) were expressly confined to a person outside Australia.
Corporations power
(5) This Act has the effect it would have if each reference to a person mentioned in subsection (1) were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.
Aliens power
(6) This Act has the effect it would have if each reference to a person mentioned in subsection (1) were expressly confined to an alien (within the meaning of paragraph 51(xix) of the Constitution).
Trade and commerce power
(7) This Act has the effect it would have if each reference to a person mentioned in subsection (1) were expressly confined to a person engaged in:
(a) trade or commerce between Australia and places outside Australia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories.
Territories and Commonwealth places power
(8) This Act has the effect it would have if each reference to a person mentioned in subsection (1) were expressly confined to a person in, or a person taking an action in relation to:
(a) a Territory; or
(b) a Commonwealth place (within the meaning of the
Commonwealth Places (Application of Laws) Act 1970 ).
Without limiting the effect of this Act apart from this section, this Act also has the effect it would have if each reference to an Australian business were expressly confined to a reference to an Australian business being carried on by a corporation.
Note: The reference to a corporation in this section is affected by section 35 (general severability).
(1) The regulations may provide that this Act, or specified provisions of this Act, do not apply in relation to any of, or any combination of, the following:
(a) acquisitions of the kind or in the circumstances prescribed by the regulations;
(b) interests of the kind or in the circumstances prescribed by the regulations;
(c) Australian businesses of the kind or in the circumstances prescribed by the regulations;
(d) foreign persons of the kind or in the circumstances prescribed by the regulations.
Note: Provisions may be specified by referring to:
(a) a particular provision; or
(b) this Act, other than specified provisions.
(2) Without limiting subsection (1), the regulations may provide that specified provisions of the Act do not apply to a specified extent.
(3) Without limiting subsection (1), the regulations may provide that land of a specified kind is not agricultural land.
(4) The regulations may provide that specified foreign persons who take action in relation to interests in Australian land may disregard the fact that the land is agricultural land for all or specified purposes.
(5) Regulations providing as mentioned in paragraph (4)(a) do not affect the operation of this Act to the extent that the action is otherwise a significant action or notifiable action.
(6) Regulations made for the purposes of this section have effect according to their terms.
(7) This Act does not limit the regulations that may be made for the purposes of this section.
Repeal the Parts, substitute:
The concepts of
significant action andnotifiable action are 2 of the most important concepts in this Act.The Treasurer has powers to make orders and decisions under Part 3 in relation to any significant action taken or proposed to be taken.
A foreign person must give the Treasurer a notice before taking a notifiable action. Only some significant actions are notifiable actions.
Those concepts are defined in this Part.
Broadly, a significant action is an action to acquire interests in securities, assets or Australian land, or otherwise take action in relation to entities (being corporations and unit trusts) and businesses, that have a connection to Australia. For an action to be a significant action, the action must result in a change in control involving a foreign person or be taken by a foreign person.
Generally, the action is only a significant action if the entity, business or land meets the threshold test. A different threshold test applies for certain significant actions taken in relation to agribusinesses.
The regulations may also prescribe actions that are significant actions.
An acquisition of an interest in Australian land by a foreign person that is specified in an exemption certificate under Division 5 is generally not a significant action.
Division 6 deals with the treatment of entities whose securities are stapled and entities operating on a unified basis.
(1) An action is a
significant action if the conditions in this section are met.
First condition—kinds of action
(2) The first condition is that the action is any of the following:
(a) to acquire a direct interest in an Australian entity that is an agribusiness;
(b) to acquire interests in securities in an entity;
(c) to issue securities in an entity;
(d) to enter an agreement:
(i) relating to the affairs of the entity; and
(ii) under which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person);
(e) to alter a constituent document of the entity as a result of which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person).
Note: An action mentioned in any of paragraphs (2)(b) to (e) may be taken in relation to an Australian entity that is an agribusiness (see section 42).
Second condition—threshold
(3) The second condition is that the threshold test is met in relation to the entity (see Subdivision B of Division 4).
Third condition—kinds of entities covered
(4) The third condition (except if paragraph (2)(a) applies) is that the entity is the following:
(a) for an acquisition of interests in shares or an issue of shares:
(i) a corporation that is a relevant entity that carries on an Australian business, whether alone or together with one or more other persons; or
(ii) the holding entity of such a corporation;
(b) for any other action relating to a corporation:
(i) an Australian corporation that carries on an Australian business, whether alone or together with one or more other persons; or
(ii) the holding entity (other than a foreign corporation) of such a corporation;
(c) for an action relating to a unit trust:
(i) an Australian unit trust; or
(ii) a holding entity of an Australian unit trust.
Last condition—action taken by a foreign person
(5) If paragraph (2)(a) applies, the last condition is that the action is or is to be taken by a foreign person.
Last condition—action results in change in control
(6) If any of paragraphs (2)(b) to (e) apply, the last condition is that there would be or has been a change in control of the entity as a result of the action (see Subdivision C of Division 4).
(1) An action is a
significant action if the conditions in this section are met.
First condition—kinds of action
(2) The first condition is that the action is any of the following:
(a) to acquire a direct interest in an Australian business that is an agribusiness;
(b) to acquire interests in assets of an Australian business;
(c) to enter or terminate a significant agreement with an Australian business.
Note: An action mentioned in paragraph (2)(b) or (c) may be taken in relation to an Australian business that is an agribusiness (see section 42).
Second condition—threshold
(3) The second condition is that the threshold test is met in relation to the Australian business(see Subdivision B of Division 4).
Third condition—action taken by a foreign person
(4) If paragraph (2)(a) applies, the third condition is that the action is or is to be taken by a foreign person.
Third condition—action results in change in control
(5) If paragraph (2)(b) or (c) applies, the third condition is that there would be or has been a change in control of the business as a result of the action (see Subdivision C of Division 4).
To avoid doubt, a person may take an action under any of paragraphs 40(2)(b) to (e) or 41(2)(b) or (c) in relation to an Australian entity or Australian business that is an agribusiness.
An action is a
significant action if:
(a) the action is for a foreign person to acquire an interest in Australian land; and
(b) the threshold test is met in relation to the land (see Subdivision B of Division 4).
Note: Certain acquisitions of land by foreign persons may not be significant actions (see section 45).
(1) The regulations may provide that a specified action is a
significant action (including by providing that a specified action is asignificant action if specified conditions are met).(2) Sections 40, 41 and 43 do not limit the actions that may be specified by the regulations.
Note: For example, the regulations may specify an action without requiring the threshold test to be met or a change in control.
(1) Despite this Division, an action is not a
significant action if:
(a) the action is a foreign person acquiring an interest in a new dwelling that will be, is being or has been built on another interest (the
development interest ) in Australian land; and(b) the acquisition was from a person who was specified in an exemption certificate in force under section 57; and
(c) the development interest was specified in the certificate; and
(d) the specified person provided the foreign person with a copy of that certificate before the foreign person acquired the interest; and
(e) either:
(i) the conditions (if any) specified in the certificate were met; or
(ii) the foreign person is not, at the time of the action, aware that one or more of the conditions specified in the certificate have not been met.
(2) Despite this Division, an action is not a
significant action if:
(a) the action is a foreign person acquiring a kind of interest in Australian land; and
(b) the foreign person is specified in an exemption certificate in force under section 58 or 59; and
(c) the interest is, or is of a kind, specified in the certificate; and
(d) the conditions (if any) specified in the certificate were met.
(3) The regulations may provide, in relation to exemption certificates in force under regulations made for the purposes of section 63, that an action of a specified kind is not a
significant action .
A notifiable action is a proposed action by a foreign person:
(a) to acquire a direct interest in an Australian entity or Australian business that is an agribusiness; or
(b) to acquire a substantial interest in an Australian entity; or
(c) to acquire an interest in Australian land.
Generally, the action is only notifiable if the entity, business or land meets the threshold test. A different threshold test applies for certain notifiable actions taken in relation to agribusinesses.
Unlike for a significant action, there does not need to be a change in control for actions relating to entities and businesses to be notifiable actions.
The regulations may also prescribe actions that are notifiable actions.
Actions to acquire interests in Australian land that are specified in an exemption certificate under Division 5 are generally not notifiable actions.
Division 6 deals with the treatment of entities whose securities are stapled and entities operating on a unified basis.
(1) An action is a
notifiable action if the conditions in this section are met.
First condition—kinds of action
(2) The first condition is that the action is any of the following:
(a) to acquire a direct interest in an Australian entity or Australian business that is an agribusiness;
(b) to acquire a substantial interest in an Australian entity;
(c) to acquire an interest in Australian land.
Note: For the definition of
acquire a direct interest or a substantial interest, see section 20.
Second condition—threshold
(3) The second condition is that the threshold test is met in relation to the entity, business or land (see Subdivision B of Division 4).
Third condition—kinds of entities covered
(4) If paragraph (2)(a) or (b) applies, the third condition is that the entity is:
(a) an Australian corporation that carries on an Australian business, whether alone or together with one or more other persons; or
(b) an Australian unit trust; or
(c) an Australian entity that is the holding entity of an entity mentioned in paragraph (a) or (b).
Last condition—action taken by a foreign person
(5) The last condition (whether paragraph (2)(a), (b) or (c) applies) is that the action is or is to be taken by a foreign person.
(1) The regulations may provide that a specified action is a
notifiable action (including by providing that a specified action is anotifiable action if specified conditions are met).(2) Section 47 does not limit the actions that may be specified by the regulations.
Note: For example, the regulations may specify an action without requiring the threshold test to be met.
(1) Despite this Division, an action is not a
notifiable action if:
(a) the action is a foreign person acquiring an interest in Australian land; and
(b) the action would not be a significant action under section 45 (actions that are not
significant actions —exemption certificates).(2) The regulations may provide, in relation to exemption certificates in force under regulations made for the purposes of section 63, that an action of a specified kind is not a
notifiable action .
Two important tests in determining whether an action is a significant action are whether the threshold test is met and whether there has been a change in control.
For the threshold test to be met, a certain value must be above a threshold prescribed by the regulations. The value depends on the action taken.
There is a change in control of an entity or business if the Treasurer is satisfied that one or more foreign persons begin to control the entity or business, or the foreign persons who currently control the entity or business change.
One or more persons who hold a substantial interest or an aggregate substantial interest in an entity are taken to control the entity. Also, a person controls the entity if the person is in a position to determine the policy of the entity or business.
There are broad powers for the regulations to prescribe thresholds under this Part.
The
threshold test is met in relation to an entity or business for a significant action mentioned in column 1 of the following table if the value mentioned in column 2 of the table is more than the value prescribed by the regulations.
1 | A person acquiring a direct interest in an Australian entity or Australian business that is an agribusiness | The total of the following:
|
2 | Acquiring interests in securities in an entity, or issuing securities in an entity | The higher of the following: (a) the total asset value for the entity;
|
3 | Entering an agreement mentioned in paragraph 40(2)(d) in relation to an entity, or altering a constituent document of an entity as mentioned in paragraph 40(2)(e) | The total asset value for the entity |
4 | Acquiring interests in the assets of an Australian business | The value of the consideration for the acquisition |
5 | Entering or terminating a significant agreement with an Australian business | The total value of the assets of the business |
Note 1:
Total asset value ,total issued securities value andconsideration are defined by the regulations (see section 4).Note 2: The regulations may provide in relation to valuing assets of an entity or business (see section 27).
Land without threshold value
(1) The
threshold test is met in relation to land if the land is of a kind that is prescribed by the regulations for the purposes of this subsection.
Agricultural land where total value of interests is above threshold value
(2) The
threshold test is met in relation to land if both of the following apply:
(a) the land is agricultural land;
(b) the total value of the following is more than the value prescribed for the purposes of this paragraph:
(i) all interests in agricultural land held by the foreign person, alone or together with one or more associates;
(ii) the consideration for the acquisition of the interest in the land.
Note:
Consideration is defined by the regulations (see section 4).
Other land where value of interest is above threshold value
(3) The
threshold test is met in relation to land if both of the following apply:
(a) the land is not land prescribed for the purposes of subsection (1) or agricultural land;
(b) the value of the interest in the land is more than the value prescribed for the purposes of this paragraph.
Agreements covering more than one action
(1) If an action relating to an entity, business or land is covered by an agreement, the action is a significant action if the threshold test is met in relation to the entity, business or land even if the threshold test is not met for another action covered by the agreement (whether or not relating to the same entity, business or land).
Actions of more than one kind
(2) If either or both of the following apply:
(a) a single action is covered by more than one of the following (because an action is an action of more than one kind):
(i) paragraph 40(2)(a), (b), (c), (d) or (e);
(ii) paragraph 41(2)(a), (b) or (c);
(iii) paragraph 43(a);
(iv) a provision of regulations made for the purposes of section 44;
(b) a single action relating to land is covered by more than one subsection of section 52 (because the land is land of more than one kind);
the threshold test is met in relation to the single action if the test is met in relation to any of the kinds of actions or land (even if the threshold test is not met in relation to any of the other kinds of actions or land).
Example 1: An acquisition of an interest in securities in an Australian land corporation is covered by paragraphs 40(2)(b) and 43(a). The threshold test is met if the threshold test is met in relation to the corporation or land held by the corporation.
Example 2: An acquisition of an interest in land may be an acquisition of an interest in a mining or production tenement and an interest in agricultural land. The threshold test is met if the threshold test is met in relation to either kind of land.
(1) For the purposes of determining whether an action is a significant action, there is a
change in control of an entity or business if, and only if, the Treasurer is satisfied that the action would have, or has had, any of the results mentioned in subsection (2) or (3).
Foreign persons begin to control entity or business
(2) One or more foreign persons would begin, or have begun, to control the entity or business (whether alone or together with any associates of any of those persons).
Change in foreign persons who control the entity or business
(3) If one or more foreign persons already control or controlled the entity or business:
(a) another foreign person would become, or has become, a person who controls the entity or business; or
(b) a person would cease, or has ceased, to be a person who controls the entity or business.
Meaning of control
(4) A person
controls an entity or business if:
(a) the person (whether alone or together with one or more associates) is in a position to determine the policy of the entity or business in relation to any matter; or
(b) without limiting paragraph (a), in relation to the acquisition of interests in securities in an entity or an issue of securities in an entity:
(i) the person holds a substantial interest in the entity; or
(ii) the person is one of 2 or more persons who hold an aggregate substantial interest in the entity.
Note: For determining the policy of a business of exploiting a mining or production tenement, see section 24.
(5) However, a person mentioned in paragraph (4)(b) does not
control the entity if the Treasurer is satisfied that, having regard to all the circumstances, the person together with any one or more associates of that person is not in a position to determine the policy of the entity.(6) Subsection (5) does not require the Treasurer to determine whether a person is in a position to determine the policy of an entity.
References to foreign persons
(7) If the Treasurer is satisfied that one or more foreign persons together with any one or more associates control an entity under subsection (4), then, in relation to an action taken relating to the entity, a reference to a foreign person is taken, for the purposes of Part 3 (powers of Treasurer), to include a reference to those associates (even if those associates are not foreign persons).
(1) Regulations made for the purposes of this Part may prescribe any of, or any combination of, the following:
(a) values of nil;
(b) different values for different kinds of entities, businesses or land;
(c) different values for different kinds of foreign persons;
(d) different values for:
(i) sensitive businesses generally; or
(ii) different sensitive businesses for different foreign persons.
Note: Regulations may also provide for indexation (see subsection 139(2)).
(2) The paragraphs and subparagraphs in subsection (1) do not limit:
(a) each other; or
(b) the regulations that may be made for the purposes of this Part; or
(c) subsection 33(3A) of the
Acts Interpretation Act 1901 .
An exemption certificate is a certificate given by the Treasurer that specifies an interest or an interest of a kind that, if acquired by a foreign person, does not give rise to a significant action or a notifiable action. The certificate may also specify conditions that are required to be complied with in order for an acquisition of the interest not to be a significant action or notifiable action.
A person may apply for an exemption certificate under this Division.
The Treasurer must generally make a decision on an application within the period prescribed by the regulations. The regulations may also provide for additional kinds of exemption certificates.
(1) A person may apply for a certificate under this section if:
(a) the person or any other person proposes to acquire or has acquired an interest in Australian land; and
(b) the person or other person proposes to dispose of new dwellings to foreign persons that will be, are being or have been built on that land.
Note: See also Part 6 (fees) and section 135 (manner of notification and application).
(2) The Treasurer may give a certificate if the Treasurer is satisfied that the disposal of the new dwellings to foreign persons is not contrary to the national interest.
(3) The certificate must specify:
(a) the person (who may not yet be incorporated or established) to whom the certificate relates; and
(b) the interest to which the certificate relates.
Note: For other things that the certificate may specify, see section 60.
(1) A foreign person may apply for a certificate under this section if the foreign person or any other foreign person proposes to acquire one or more kinds of interests in Australian land.
Note: See also Part 6 (fees) and section 135 (manner of notification and application).
(2) The Treasurer may give a certificate if the Treasurer is satisfied that acquisitions of those kinds of interests by that foreign person is not contrary to the national interest.
(3) The certificate must specify:
(a) the person (who may not yet be incorporated or established) to whom the certificate relates; and
(b) the kinds of interests in Australian land to which the certificate relates.
Note: For other things that the certificate may specify, see section 60.
(1) A foreign person may apply for a certificate under this section if the foreign person or any other foreign person proposes to acquire an interest in an established dwelling.
Note: See also Part 6 (fees) and section 135 (manner of notification and application).
(2) The Treasurer may give a certificate if the Treasurer is satisfied that the acquisition of the interest by that foreign person is not contrary to the national interest.
(3) The certificate must specify:
(a) the person to whom the certificate relates; and
(b) the interest to which the certificate relates.
Note: For other things that the certificate may specify, see section 60.
(1) An exemption certificate may specify:
(a) one or more conditions; and
(b) a period during which the certificate is in force; and
(c) any other matter.
Note 1: For offences and civil penalties for failing to comply with a condition, see Part 5.
Note 2: An example of a condition that may be specified in an exemption certificate is a condition requiring that an interest or kind of interest be acquired in land within a specified area.
(2) One exemption certificate may deal with more than one interest or kind of interest.
(1) If a person applies for an exemption certificate, the Treasurer must make a decision whether to grant the application before the end of the following period:
(a) the period prescribed by the regulations;
(b) if the person requests in writing the Treasurer to extend the period—the period as so extended.
Note: For withdrawal of applications, see section 136.
Giving exemption certificates
(2) If the Treasurer decides to grant the application, the exemption certificate:
(a) must be given to the person before the end of 10 days after the decision is made; and
(b) may be given to the person at an address (including an electronic address) specified in the application by the person as the address for service of notices relating to the application.
Failure to make decision or give exemption certificate
(3) The Treasurer is taken to have given, in accordance with subsection (2), an exemption certificate (without specifying conditions) of the kind applied for if the Treasurer does not:
(a) make a decision before the end of the period mentioned in subsection (1); or
(b) if the Treasurer makes a decision before the end of the period—give the person the exemption certificate in accordance with subsection (2).
(4) The exemption certificate is taken to have specified:
(a) the person to whom the certificate relates; and
(b) the interests or kinds of interests to which the certificate relates; and
(c) the period during which the certificate is in force;
in accordance with the information specified in the application.
(1) The Treasurer may vary or revoke an exemption certificate given to a person if the Treasurer is satisfied that the variation or revocation is not contrary to the national interest.
(2) A variation may be made on application in writing by the person or on the Treasurer’s own initiative.
Note: See also Part 6 (fees) and section 135 (manner of notification and application).
(3) Subsection 33(3) of the
Acts Interpretation Act 1901 does not apply in relation to a power under this Subdivision to give an exemption certificate.(4) Subsection (1) does not apply to an exemption certificate that is taken to have been given under section 61.
The regulations may provide for and in relation to additional kinds of certificates given by the Treasurer.
Note: The regulations may provide, in relation to exemption certificates in force under regulations made for the purposes of this section, that an action of a specified kind is not a
significant action or anotifiable action (see subsections 45(3) and 49(2)).
This Division deals with the treatment of entities whose securities are stapled and entities operating on a unified basis. In certain circumstances, if any of those entities are foreign or not carrying on an Australian business, they are treated as if they were Australian entities or carrying on an Australian business. Consequently, an action taken in relation to those entities may be a significant action or a notifiable action.
(1) This section applies if:
(a) either:
(i) the securities in an entity can only be transferred together with securities in one or more other entities; or
(ii) an entity has entered an agreement with one or more other entities resulting in the entities being under a legal obligation to operate on a unified basis; and
(b) a person takes an action in relation to one of the entities (the
target ) mentioned in paragraph (a); and(c) the target is not:
(i) an Australian entity; or
(ii) an entity carrying on an Australian business; or
2 | a change in the control of a foreign entity or the acquisition of an interest in securities in, or in assets of, a foreign entity |
|
3 | the acquisition of an interest in Australian land |
|
4 | any significant action prescribed by regulations made for the purposes of section 44 | of a kind prescribed by regulations made for the purposes of this item. |
Additional powers
(4) In addition to the other powers conferred on a court by this section, the court may make the following orders:
(a) an order directing any person to do or refrain from doing a specified act for the purpose of securing compliance with any other order made under this section;
(b) an order containing such ancillary or consequential provisions as the court thinks just.
(5) Before making an order under this section, the court may give a direction requiring either or both of the following:
(a) notice of the application by the Treasurer to be given to such persons as it thinks fit;
(b) for the application by the Treasurer to be published in such manner as it thinks fit.
(6) The court may, by order:
(a) rescind, vary or discharge an order made by it under this section; or
(b) suspend the operation of an order made by it under this section.
Other powers of court unaffected
(7) The powers conferred on a court by this section are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
(1) The Treasurer may give a notice under this section if the Treasurer has reason to believe that a person can give information or produce documents relating to matters that are relevant to the exercise by the Treasurer of his or her powers under this Act.
(2) The Treasurer may, by notice in writing given to the person, require the person:
(a) to give any such information to the Treasurer or any other specified person acting on the Treasurer’s behalf; or
(b) to produce any such documents to the Treasurer or any other specified person acting on the Treasurer’s behalf.
Note: The periods mentioned in section 77 (time limit on making orders and decisions) stop until the person gives the information or produces the documents (see subsection 77(4)).
Giving information
(3) The notice must specify:
(a) a period (of at least 14 days) within which the information must be given or the documents produced; and
(b) the manner of giving the information or producing documents.
The Treasurer may, in writing, extend (or further extend) the period mentioned in paragraph (a) if the Treasurer is satisfied that it is reasonably necessary.
(4) The information mentioned in paragraph (2)(a) must be given to the Treasurer:
(a) in writing signed by that person; or
(b) for a corporation—by a competent officer of the corporation.
Offence
(5) A person commits an offence if:
(a) the person is given a notice under this section; and
(b) the person does not comply with the notice.
Note: For the liability of an officer of a corporation authorising or permitting contraventions, see section 102.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(6) Subsection (5) does not apply if the person complies with the notice to the extent to which the person is capable of complying with it.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the
Criminal Code ).
Self‑incrimination
(7) A person is not excused from giving information or producing a document under this section on the ground that doing so might tend to incriminate him or her.
(8) However, in the case of an individual:
(a) the answer or information given; or
(b) any document produced; or
(c) giving the information or answer, or producing the document or thing; or
(d) any information, document or thing obtained as a direct or indirect consequence of giving the information or answer, or producing the document or thing;
is not admissible in evidence against him or her in any criminal proceedings or in proceedings for the recovery of a civil penalty, other than proceedings under this Act or section 137.1 or 137.2 of the
Criminal Code (false or misleading information or documents) relating to this Act.
An act is not invalidated by the fact that it constitutes an offence against or contravention of a civil penalty provision of this Act.
(1) A notice given, or application made, for the purposes of this Act is of no effect unless it is given or made in the manner approved, in writing, by the Secretary.
Note: The Secretary may determine different manners of giving notices or making applications for different classes of notices or applications (see subsection 33(3A) of the
Acts Interpretation Act 1901 ).(2) The manner approved by the Secretary may be electronic communication.
(3) To avoid doubt, a notice given for the purposes of this Act includes:
(a) a notice required by a condition imposed in an exemption certificate or a no objection notification; and
(b) a notice under section 81 (notice of notifiable actions); and
(c) a notice mentioned in item 4 of the table in subsection 113(1) (notice of actions that are not notifiable actions).
An application or notice that is withdrawn is of no effect.
Delegations by Treasurer
(1) The Treasurer may, in writing, delegate to the following persons all or any of the Treasurer’s powers or functions under this Act (except under sections 105, 106, 107 and 110):
(a) the Secretary;
(b) the Commissioner of Taxation;
(c) a person engaged under the
Public Service Act 1999 who is employed in the Department or the Australian Taxation Office.(2) The Treasurer may delegate the Treasurer’s power under section 105 (Treasurer’s declaration relating to charge), 106 (effect of charge on land), 107 (vesting of interest in land) or 110 (exemption from stamp duty and other State or Territory taxes and fees) to the following persons:
(a) the Secretary;
(b) the Commissioner of Taxation;
(c) an SES employee, or acting SES employee, in the Department or the Australian Taxation Office.
Delegations by Secretary
(3) The Secretary may, in writing, delegate to the following persons all or any of the Secretary’s powers or functions under this Act:
(a) the Commissioner of Taxation;
(b) a person engaged under the
Public Service Act 1999 who is employed in the Department or the Australian Taxation Office.
Subdelegations by Commissioner of Taxation
(4) If a power or function is delegated to the Commissioner of Taxation under this section, the Commissioner may, in writing, subdelegate the power or function to a person engaged under the
Public Service Act 1999 who is employed in the Australian Taxation Office.Note: See section 138 for the effect of a delegation to the Commissioner of Taxation.
(5) Sections 34AA, 34AB and 34A of the
Acts Interpretation Act 1901 apply in relation to the subdelegation in a way corresponding to the way in which they apply in relation to a delegation.
Directions
(6) In exercising powers or performing functions delegated or subdelegated by a person under this section, the delegate or subdelegate must comply with any directions of the person.
Delegations in relation to specified kinds of matters
(7) Without limiting this section or subsection 33(3A) of the
Acts Interpretation Act 1901 , a power or function may be delegated or subdelegated generally or only in relation to specified kinds of matters.
Powers of Commissioner of Taxation as a result of delegation
(1) If a power or function under a provision of this Act is delegated to the Commissioner of Taxation under section 137, the Commissioner has the general administration of this Act to the extent of administering the provision.
Note: The provision is therefore a taxation law for the purposes of the
Taxation Administration Act 1953 (among other laws). That Act contains a wide range of provisions about gathering, protecting and dealing with information, the exercise of powers and the performance of functions, under taxation laws, and the enforcement of taxation laws.(2) However, the following do not apply in relation to this Act:
(a) Part 4‑25 (charges and penalties), other than section 288‑35 and Division 298 to the extent that it relates to that section, in Schedule 1 to the
Taxation Administration Act 1953 ;(b) paragraph 355‑15(c) in that Schedule (application of Division 355);
(c) Division 444 in that Schedule (obligations of entities on behalf of other entities).
(3) To avoid doubt, the Secretary or a person engaged under the
Public Service Act 1999 who is employed in the Department may be a taxation officer (within the meaning of subsection 8J(1) of theTaxation Administration Act 1953 ) to the extent that this Act is a taxation law.
Powers of Commissioner of Taxation as a result of request by Treasurer
(4) The Treasurer may request, in writing, the Commissioner of Taxation to exercise his or her powers under section 353‑10 or 353‑15 (powers to obtain information and evidence and access premises) in Schedule 1 to the
Taxation Administration Act 1953 in relation to a matter if a power or function has not been delegated to the Commissioner under section 137 in relation to the matter.(5) If the Treasurer does so, the Commissioner of Taxation (or an individual authorised by the Commissioner) may exercise his or her powers under those sections of that Act as if a reference in those sections to a taxation law included a reference to this Act to the extent that it relates to the matter.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed by the regulations; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the regulations may provide for a method for indexing a value or an amount prescribed for the purposes of this Act.
(3) Despite subsection 14(2) of the
Legislative Instruments Act 2003 , the regulations may provide in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.
Omit “publication”, substitute “registration”.
Omit “publication”, substitute “registration”.
After “Treasurer may”, insert “, by notifiable instrument,”.
Omit “published in the Gazette”, substitute “registered on the Federal Register of Legislation”.
After “Treasurer may”, insert “, by notifiable instrument,”.
Repeal the heading, substitute:
Repeal the heading, substitute:
Registration of orders
Repeal the paragraph, substitute:
(b) registered on the Federal Register of Legislation within 10 days after it is made.
Omit “published”, substitute “registered”.
Omit “published the order in the Gazette”, substitute “registered the order”.
Omit “published in the Gazette”, substitute “registered”.
Omit “published the order in the Gazette”, substitute “registered the order”.
Omit “publication”, substitute “registration”.
Omit “
Legislative Instruments Act 2003 ”, substitute “Legislation Act 2003 ”.
In this Schedule:
civil penalty provision has the same meaning as in theRegulatory Powers (Standard Provisions) Act 2014 .
commencement means the commencement of Schedule 1 to this Act.
new provisions means theForeign Acquisitions and Takeovers Act 1975 as in force immediately after commencement.
old provisions means theForeign Acquisitions and Takeovers Act 1975 as in force immediately before commencement.
Policy means:
(a) the authoritative English version of the Ministerial statement called
Australia’s Foreign Investment Policy , first released in June 2010; or(b) any earlier equivalent Ministerial statement (such as the
Summary of Australia’s Foreign Investment Policy ).
transitional period means the period beginning on 1 March 2015 and ending on 30 November 2015.
Notices under old section 25 and the Policy (1) A notice that is given under section 25 of the old provisions or the Policy before commencement is taken, after commencement, to be a notice that a significant action (that is not a notifiable action) is proposed to be taken.
Note: The Treasurer has certain powers if the Treasurer is given a notice that a significant action is proposed to be taken (see sections 74, 75 and 77 of the new provisions).
Notices under old section 26 or 26A (2) A notice that is given under section 26 or 26A of the old provisions before commencement is taken, after commencement, to have been given under section 81 of the new provisions.
(3) To avoid doubt, a notice given under section 26 or 26A of the old provisions is a notice stating that a significant action is proposed to be taken.
Note: Certain powers and limitations apply if a notice is given stating that a significant action is proposed to be taken (see sections 74, 75 and 77 of the new provisions).
(4) Subitems (1) and (2) do not apply in relation to section 113 of the new provisions (when fees are payable).
Notices requiring information and documents (5) A notice that is given under section 36 of the old provisions before commencement is taken, after commencement, to have been given under section 133 of the new provisions.
(6) Despite subitem (5), subsections 77(4) (effect of notice on time limits) and 133(7) and (8) (self‑incrimination) of the new provisions apply only in relation to notices given under section 133 of the new provisions after commencement.
Time of giving notices (7) To avoid doubt, nothing in this item changes the time when a notice is given.
3
Notices given during transitional period in relation to actions relating to Australian rural land (1) A notice that is given under section 25 or 26 of the old provisions or the Policy during the transitional period in relation to Australian rural land is taken, after commencement, to be a notice given under section 81 of the new provisions in relation to agricultural land.
(2) Section 77 (time limit on making orders and decisions) of the new provisions applies in relation to such a notice as if the notice were given at commencement.
(3) A notice given by the Treasurer in accordance with the Policy during the transitional period in relation to an acquisition or proposed acquisition of Australian rural land binds the Commonwealth after commencement.
Note: The notice does not bind the person to whom the notice is given.
References to agricultural land (4) The new provisions apply in relation to an interest in Australian rural land to which this item applies as if a reference in those provisions to agricultural land were a reference to Australian rural land.
4
Actions taken during transitional period in relation to Australian rural land
Requirement to give notice (1) A foreign person who acquires an interest in Australian rural land during the transitional period must notify the Treasurer in accordance with section 135 of the new provisions unless the person has notified the Treasurer of the acquisition or proposed acquisition before commencement.
(2) A notice given under this item must be given within 30 days of commencement.
(3) A notice given under this item is taken to have been given under section 81 of the new provisions.
Offence
(4) A person commits an offence if:
(a) the person is a foreign person; and
(b) the person acquires an interest in Australian rural land; and
(c) the acquisition occurs during the transitional period; and
(d) the person does not notify the Treasurer of the acquisition during the transitional period; and
(e) the person does not notify the Treasurer of the acquisition in accordance with this item.
Penalty: Imprisonment for 3 years, or 750 penalty units, or both.
Civil penalty provisions (5) A person must not contravene subitem (1) or (2).
Civil penalty: 250 penalty units.
(6) Section 99 of the new provisions applies as if the civil penalty provisions in subitems (1) and (2) were civil penalty provisions of the
Foreign Acquisitions and Takeovers Act 1975 .
References to agricultural land (7) The new provisions apply in relation to an interest in Australian rural land to which this item applies as if a reference to agricultural land were a reference to Australian rural land.
(1) The following table translates orders or advices given, or decisions made, before commencement under the old provisions for the purposes of the new provisions.
1 | an order given under subsection 18(2), 19(2), 20(2), 21(2) or 21A(2) | an order given under subsection 67(2). |
2 | an order given under subsection 18(3), 19(3) or 21A(3) | an order given under subsection 67(3). |
3 | an order given under subsection 18(4), 19(4), 20(3), 21(3) or 21A(4) | an order given under subsection 69(2). |
4 | an order given under section 22 | an interim order given under section 68. |
5 | a decision made under subsection 25(1A) where conditions have been imposed | a decision made under paragraph 74(2)(a). |
6 | an advice given under subsection 25(1B) where conditions have been imposed | a no objection notification given under paragraph 74(2)(b). |
7 | a decision made under subsection 25(1A) where conditions have not been imposed | a decision made under paragraph 75(2)(a). |
8 | an advice given under subsection 25(1B) where conditions have not been imposed | a no objection notification given under paragraph 75(2)(b). |
Variation and revocation of orders (2) The new provisions apply, after commencement, in relation to orders and advices mentioned in column 1 of the table in subitem (1) as if subparagraph 71(1)(b)(ii) and paragraph 74(6)(b) of the new provisions were omitted.
Note: Subparagraph 71(1)(b)(ii) and paragraph 74(6)(b) of the new provisions deal with when orders and no objection notifications can be varied and revoked.
Gazettal
(3) If:
(a) an order is published in the Gazette before Schedule 2 commences; and
(b) the period mentioned in section 25 of the old provisions has not ended by that commencement;
the new provisions apply, after that commencement, as if a reference to the registration of a notifiable instrument were a reference to publication in the Gazette.
Application for all purposes (4) To avoid doubt, this item applies for all purposes, including for the purposes of Part 5 (offences and civil penalties) and section 132 (powers of court to enforce Treasurer’s orders) of the new provisions.
(1) Section 69 (disposal orders) of the new provisions applies in relation to:
(a) any significant action taken before commencement if the Treasurer would have had the power (before commencement) to make an order under subsection 18(4), 19(4), 20(3), 21(3) or 21A(4) of the old provisions in relation to the action; and
(b) any acquisition of an interest in Australian rural land taken during the transitional period; and
(c) any significant action taken after commencement.
(2) Subitem (1) does not affect the operation of section 77 (time limit on making orders and decisions) of the new provisions.
Sections 78 (anti‑avoidance) and 79 (persons involved in avoidance taken to be associates) of the new provisions apply in relation to any scheme, whether entered into before or after commencement.
Certificates given before commencement (1) A certificate given under paragraph 3(e) or (r) of the
Foreign Acquisitions and Takeovers Regulations 1989 before commencement is taken, after commencement, to have been given under section 57 of the new provisions (exemption certificates for new dwellings).(2) A certificate given under paragraph 3(h) of the
Foreign Acquisitions and Takeovers Regulations 1989 before commencement is taken, after commencement, to have been given under section 58 of the new provisions (exemption certificates for foreign persons).(3) Subitems (1) and (2) do not apply for the purposes of section 113 (when fees are payable) of the new provisions.
Applications for certificates made before commencement (4) The Treasurer may give a certificate under section 57 or 58 of the new provisions to a person if:
(a) the person has made an application for a certificate under paragraph 3(e), (h) or (r) of the
Foreign Acquisitions and Takeovers Regulations 1989 before commencement; and(b) a decision on the application has not been made by commencement.
Application of this item (5) This item applies for all purposes, including for the purposes of Part 5 of the new provisions (offences and civil penalties).
(1) Part 5 (offences and civil penalties), except sections 102 and 103, of the new provisions applies in relation to any conduct engaged in after commencement (including in relation to orders or notices given before commencement).
(2) Sections 102 (liability of officers of corporations authorising or permitting contraventions) and 103 (civil penalties for officers of corporations failing to prevent contraventions) of the new provisions apply in relation to a conviction of an offence against the new provisions, or a civil penalty order that is made against a corporation for a contravention of the new provisions, after commencement for conduct engaged in after commencement.
(1) Section 113 (when fees are payable) of the new provisions applies in relation to:
(a) applications made after commencement under the new provisions; and
(b) orders, notices and notifications given after commencement in relation to action relating to Australian rural land taken during the transitional period; and
(c) orders, notices and notifications given after commencement in relation to action taken after commencement.
(2) Section 12 of the
Foreign Acquisitions and Takeovers Fees Imposition Act 2015 applies in relation to each financial year starting on or after 1 July 2016.
Division 2 of Part 7 (record‑keeping) of the new provisions applies in relation to:
(a) actions mentioned in paragraph 117(1)(a) or (b) of the new provisions that are taken after commencement; and
(b) acts, transactions, events or circumstances that:
(i) relate to whether a person is complying with a condition in a no objection notification or an exemption certificate; and
(ii) occur after commencement (including in relation to notices or certificates given before commencement); and
(c) disposals of interests in residential land that occur after commencement.
Division 3 of Part 7 (confidentiality of information) of the new provisions applies in relation to records or disclosures made, and uses, of protected information after commencement, whether the protected information was obtained before or after that time.
(1) The Treasurer may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.
(2) However, to avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
(3) This Schedule (other than subitem (2)) does not limit the rules that may be made for the purposes of subitem (1).
Schedule 4 — Amendments of confidentiality provisions
Repeal the subsection, substitute:
(1) The Commissioner of Taxation and any taxation officer is entitled to access to AUSTRAC information for any purpose relating to the facilitation of the administration or enforcement of:
(a) a taxation law; or
(b) the
Foreign Acquisitions and Takeovers Act 1975 , if the Commissioner or officer is accessing the information in relation to a matter for which there has been a request under subsection 138(4) of that Act.
Insert:
property right or interest has the meaning given by subsection 354‑5(2) in Schedule 1 to theTaxation Administration Act 1953 .
Insert:
(1) The Commissioner may by notice in writing require you to give the Commissioner information required for the purpose of the administration or operation of a *taxation law if:
(a) both of the following apply:
(i) you have a legal or equitable interest in real or personal property;
(ii) the information is about any other *property right or interest in the property; or
(b) both of the following apply:
(i) the Commissioner is satisfied that you may have information about a property right or interest in property;
(ii) the information is about the property right or interest.
Note: Failing to comply with a requirement may be an offence under section 8C.
(2) A
property right or interest is:
(a) a legal or equitable interest in the property; or
(b) a right, power or privilege in connection with the property;
whether present or future and whether vested or contingent.
Content of notice
(3) The notice must specify the following:
(a) the property to which the notice applies;
(b) the information required;
(c) the period within which the information must be given;
(d) the manner of giving the information.
(4) The information required may include the following:
(a) details of your interest in the property;
(b) details (including name and address) of any person who has a *property right or interest in the property;
(c) details of any class of person who has a property right or interest in the property;
(d) details of each property right or interest in the property, including:
(i) the nature and extent of the right or interest; and
(ii) the circumstances giving rise to the right or interest.
(5) If:
(a) you are given a notice under paragraph (1)(a); and
(b) you do not have the information required but another person has the information;
you must make all reasonable efforts to obtain the information.
(6) To avoid doubt, you may be required as a result of a notice under this section to create a document giving the information required.
(7) The period specified in the notice must be:
(a) at least 14 days after the notice is given (except if paragraph (b) applies); or
(b) if the Commissioner is satisfied that a shorter period is necessary—the shorter period.
Relationship with section 353‑10
(8) Nothing in this section affects the operation of section 353‑10 and nothing in that section affects the operation of this section.
4
Subsection 355‑55(1) in Schedule 1 (at the end of the table) Add:
6 | a Minister responsible for: (a) agriculture; or (b) industry policy; or (c) investment promotion; or (d) taxation policy; or (e) foreign investment in Australia |
|
5 Subsection 355‑65(4) in Schedule 1 (table items 1 to 4) Repeal the items, substitute:
1 | the Australian Securities and Investments Commission | is for the purpose of performing any functions or exercising any powers under any Act or instrument, or part of any Act or instrument, of which the Commission has the general administration. |
6 Subsection 355‑65(4) in Schedule 1 (table item 7) Repeal the item, substitute:
7 | the Secretary of the Department | is for the purpose of administering the |
7 Subsection 355‑65(8) in Schedule 1 (table items 3 and 4) Repeal the items, substitute:
3 | the *Immigration Secretary or the Australian Border Force Commissioner (within the meaning of the | is for the purpose of performing any functions or exercising any powers under any Act or instrument, or part of any Act or instrument, administered by the Minister administering the *Immigration Department. |
8 Subsection 355‑65(8) in Schedule 1 (after table item 6) Insert:
7 | the Secretary of a Department administered by a Minister responsible for: (a) agriculture; or (b) industry policy; or (c) investment promotion; or (d) taxation policy; or (e) foreign investment in Australia |
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Repeal the section, substitute:
An entity who is or was a *taxation officer is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of:
(a) a *taxation law; or
(b) the
Foreign Acquisitions and Takeovers Act 1975 , if the entity acquired the information because of a request under subsection 138(4) of that Act.Note: See also section 8ZK of this Act (about protection of witnesses).
After “Subdivision 355‑B”, insert “(except subsection 355‑65(1) operating in relation to item 7 in the table in subsection 355‑65(4))”.
Repeal the section, substitute:
An entity is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity under Subdivision 355‑B or this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of:
(a) a *taxation law; or
(b) if the entity has or had duties, functions or powers under the
Foreign Acquisitions and Takeovers Act 1975 —that Act.Note: See also section 8ZK of this Act (about protection of witnesses).
(1) The amendment of section 125 of the
Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 made by this Schedule applies in relation to the accessing of information on or after the commencement of this Schedule, whether the information was obtained before, on or after the commencement of this Schedule.(2) The amendments of Division 355 in Schedule 1 to the
Taxation Administration Act 1953 made by this Schedule apply in relation to records and disclosures of information made on or after the commencement of this Schedule, whether the information was obtained before, on or after the commencement of this Schedule.
After:
The Commissioner must give the Minister periodic reports, at least annually, for presentation to Parliament.
insert:
This Act ceases to have effect at the end of 1 December 2016 unless, before then, an Act has provided for a register of foreign ownership of water entitlements.
Insert:
(1) This Act ceases to have effect at the end of 1 December 2016 if an Act, or the provisions of an Act, providing for a register of foreign ownership of water entitlements do not commence before that time.
(2) The Minister must announce, by notifiable instrument, the day an Act, or the provisions of an Act, providing for a register of foreign ownership of water entitlements commence.
[
(138/15) |
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