Foreign Investment Reform (Protecting Australia’s National Security) Act 2020 (Cth)
Foreign Investment Reform (Protecting Australia’s National Security) Act 2020
No. 114, 2020
Compilation No. 1
Compilation date: 21 September 2021
Registered: 21 September 2021
This compilation only includes an editorial change
About this compilation
This compilation
This is a compilation of the Foreign Investment Reform (Protecting Australia’s National Security) Act 2020 that shows the text of the law as amended and in force on 21 September 2021 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 1
3............ Schedules............................................................................................ 2
4............ Evaluation of operation of this Act and related legislation................... 2
5............ Delegation........................................................................................... 3
Schedule 1—Main amendments 4
Part 1—Amendment of the Foreign Acquisitions and Takeovers Act 1975 4
Foreign Acquisitions and Takeovers Act 1975 4
Part 2—Amendments of other Acts 111
Administrative Appeals Tribunal Act 1975 111
Security of Critical Infrastructure Act 2018 112
Taxation Administration Act 1953 112
Part 3—Application and transitional provisions 113
Division 1—National security reviews and last resort power 113
Division 2—Other amendments 117
Schedule 2—Compliance and enforcement 121
Part 1—Amendments 121
Foreign Acquisitions and Takeovers Act 1975 121
Part 2—Application provisions 160
Division 1—General 160
Division 2—Application of Regulatory Powers (Standard Provisions) Act 2014 161
Part 3—Contingent amendments 163
Foreign Acquisitions and Takeovers Act 1975 163
Schedule 3—Register of Foreign Ownership of Australian Assets 164
Part 1—Amendments 164
Foreign Acquisitions and Takeovers Act 1975 164
Part 2—Repeals 205
Register of Foreign Ownership of Water or Agricultural Land Act 2015 205
Part 3—Amendments consequential on repeal 206
Foreign Acquisitions and Takeovers Act 1975 206
Part 4—Transitional provisions 207
Endnotes215
Endnote 1—About the endnotes 215
Endnote 2—Abbreviation key 217
Endnote 3—Legislation history 218
Endnote 4—Amendment history 219
Endnote 5—Editorial changes 220
An Act to amend the law relating to foreign acquisitions and takeovers, and for related purposes
1 Short title
This Act is the Foreign Investment Reform (Protecting Australia’s National Security) Act 2020.
2 Commencement
(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.
| Commencement information | ||
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. Sections 1 to 5 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 10 December 2020 |
| 2. Schedule 1 | 1 January 2021. | 1 January 2021 |
| 3. Schedule 2, Parts 1 and 2 | At the same time as the provisions covered by table item 2. | 1 January 2021 |
| 4. Schedule 2, Part 3 | The later of: (a) immediately after the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. | 1 September 2021 (paragraph (b) applies) |
| 5. Schedule 3, Part 1 | Immediately after the commencement of the provisions covered by table item 2. | 1 January 2021 |
| 6. Schedule 3, Parts 2 and 3 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 4 years beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 7. Schedule 3, Part 4 | At the same time as the provisions covered by table item 5. | 1 January 2021 |
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.
3 Schedules
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.
4 Evaluation of operation of this Act and related legislation
(1) The Secretary must conduct an evaluation of the reforms implemented by this Act and the Foreign Acquisitions and Takeovers Fees Imposition Amendment Act 2020 (the foreign investment reform Acts), including:
(a) legislative instruments made under the Foreign Acquisitions and Takeovers Act 1975 and the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 to implement the foreign investment reform Acts; and
(b) administrative changes made to implement the foreign investment reform Acts.
(2) The evaluation must start as soon as practicable, and in any event within 1 month, after this section commences.
(3) The Secretary must give the Treasurer a written report of the evaluation before the end of the period of 12 months beginning on the day this section commences.
(3) Without limiting subsection (1), the evaluation and report must consider:
(a) the impact that the foreign investment reform Acts and their implementation have had on foreign investment in Australia and the broader Australian economy; and
(b) whether the right balance is struck between welcoming foreign investment and protecting Australia’s national interests.
(4) The Treasurer must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Treasurer.
(5) The Secretary must publish a copy of the report on the Department’s website by no later than the day on which the report is tabled.
5 Delegation
(1) The Secretary may, in writing, delegate the Secretary’s powers or functions under section 4 to a person engaged under the Public Service Act 1999 who is employed in the Department.
Schedule 1—Main amendments
Part 1—Amendment of the Foreign Acquisitions and Takeovers Act 1975
Foreign Acquisitions and Takeovers Act 1975
1 Section 3 (paragraph beginning “This Act deals with”)
After “the action must”, insert “in most cases”.
2 Section 3
After:
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.
insert:
This Act also deals with actions taken by persons that have, or may have, implications for Australia’s national security. These actions may or may not be significant actions. Actions relating to a national security business or national security land are notifiable national security actions. If an action is a reviewable national security action, or a significant action that is not a notifiable action or a notifiable national security action, the Treasurer may review the action if the Treasurer considers that the action may pose a national security concern.
3 Section 3
Omit “has taken a significant action”, substitute “has taken an action”.
4 Section 3
Omit “Some significant actions (called notifiable actions) must also be”, substitute “Significant actions that are notifiable actions, and notifiable national security actions, must generally be”.
5 Section 3
Omit “If a notice”, substitute “Broadly, if a notice”.
6 Section 4
Insert:
AAT Act means the Administrative Appeals Tribunal Act 1975.
7 Section 4 (definition of acquire)
Repeal the definition, substitute:
acquire an interest of a specified percentage:
(a) in a business—has the meaning given by section 19A; and
(b) in an entity—has the meaning given by section 20.
8 Section 4
Insert:
business includes any activity carried on by:
(a) the Commonwealth, a State, a Territory or a local governing body; or
(b) a body corporate established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(c) an entity wholly owned by the Commonwealth, a State, a Territory, a local governing body or a body corporate covered by paragraph (b).
9 Section 4 (definition of Commonwealth entity)
Repeal the definition.
10 Section 4 (definition of constituent document)
Repeal the definition, substitute:
constituent document of an entity or unincorporated limited partnership means any rules or other document constituting or establishing the entity or partnership 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; and
(c) for an unincorporated limited partnership—the partnership agreement.
11 Section 4
Insert:
core Part 3 action means any of the following:
(a) a significant action (other than an action mentioned in paragraph (b));
(b) any of the following actions:
(i) a notifiable national security action that is not a significant action;
(ii) an action in respect of which the Treasurer has given notice under subsection 66A(4);
(iii) a reviewable national security action that is notified to the Treasurer.
12 Section 4 (definition of decision period)
Omit “77(5)”, substitute “77(8)”.
13 Section 4 (definition of general meeting)
Repeal the definition, substitute:
general meeting of an entity or unincorporated limited partnership means:
(a) for a corporation—a general meeting of the corporation; or
(b) for a unit trust—a meeting of unit holders of the trust that is held in accordance with a constituent document of the trust; or
(c) for an unincorporated limited partnership—a meeting of partners of the partnership that is held in accordance with a constituent document of the partnership.
14 Section 4
Insert:
general partner means a partner of a limited partnership whose liability relating to the partnership is not limited.
head has the same meaning as in the Office of National Intelligence Act 2018.
15 Section 4 (after paragraph (c) of the definition of interest)
Insert:
(ca) in an unincorporated limited partnership—has the meaning given by section 11A; and
16 Section 4 (after paragraph (d) of the definition of interest)
Insert:
(da) in a business—has the meaning given by section 16A; and
17 Section 4 (after paragraph (e) of the definition of interest)
Insert:
; and (f) of a specified percentage in an unincorporated limited partnership—has the meaning given by subsection 17(2A).
18 Section 4
Insert:
limited partner means a partner of a limited partnership whose liability relating to the partnership is limited.
limited partnership means an association of persons that:
(a) was formed solely for the purposes of becoming a partnership where the liability of at least one partner relating to the partnership is limited; and
(b) is recognised under a law of the Commonwealth, a State, a Territory, a foreign country or a part of a foreign country as such a partnership.
national intelligence community has the same meaning as in the Office of National Intelligence Act 2018.
national security business has the meaning prescribed by the regulations.
national security land has the meaning prescribed by the regulations.
19 Section 4 (definition of no objection notification)
Repeal the definition, substitute:
no objection notification means:
(a) a written notification given under subsection 74(2) and includes such a notification as varied under section 74, 76 or 79G; or
(b) a written notification given under subsection 75(2) and includes such a notification as varied under section 76 or 79G.
20 Section 4
Insert:
notice imposing conditions means a written notice given under subsection 79H(1) and includes such a notice as varied under section 79J, 79P or 79Q.
notifiable national security action has the meaning given by section 55B.
reviewable decision means a decision of the Treasurer under Division 3 of Part 3 that a national security risk exists in relation to an action.
reviewable national security action has the meaning given by Division 4B of Part 2.
starts a national security business has the meaning given by section 8A.
starts an Australian business has the meaning given by section 8B.
21 Section 4 (definition of substantial interest)
Omit “entity or trust”, substitute “entity, trust or unincorporated limited partnership”.
22 Section 4 (paragraph (a) of the definition of substantial interest)
Repeal the paragraph, substitute:
(a) for an entity or unincorporated limited partnership—the person holds an interest of at least 20% in the entity or partnership; or
23 Section 4 (note 1 to the definition of substantial interest)
After “entity”, insert “or unincorporated limited partnership”.
24 Section 4
Insert:
Tribunal means the Administrative Appeals Tribunal.
25 At the end of subsection 6(3)
Add:
; or (h) both of the following apply:
(i) both are partners of a limited partnership;
(ii) at least one of them is a limited partner that is not in a position (whether alone or together with one or more persons who are, or would apart from this paragraph be, that partner’s associates) to participate in the management and control of the partnership, or of any of the general partners of the partnership, in relation to any matter.
26 At the end of section 8
Add:
(3) Without limiting subsection (1), a business is taken to be an Australian business for the purposes of this Act if:
(a) the business is carried on wholly or partly in Australia, whether or not in anticipation of profit or gain, by:
(i) the Commonwealth, a State, a Territory or a local governing body; or
(ii) a body corporate established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) an entity wholly owned by the Commonwealth, a State, a Territory, a local governing body or a body corporate covered by subparagraph (ii); and
(b) the business would, or could, be carried on in anticipation of profit or gain if it were carried on by someone other than:
(i) a body referred to in subparagraph (a)(i) or (ii); or
(ii) an entity referred to in subparagraph (a)(iii); or
(iii) a foreign government; or
(iv) a separate government entity.
27 After section 8
Insert:
8A Meaning of starts a national security business
(1) A foreign person starts a national security business if the foreign person starts to carry on a national security business.
(2) Despite subsection (1), if a foreign person carries on a national security business, the person does not start a national security business merely because the foreign person, alone or together with one or more persons, establishes a new entity:
(a) that carries on the same national security business; or
(b) for the purposes of acquiring interests in assets of the same national security business.
8B Meaning of starts an Australian business
(1) A foreign person starts an Australian business if:
(a) the foreign person starts to carry on an Australian business; or
(b) for a foreign person who already carries on an Australian business—the business starts a new activity that:
(i) is not incidental to an existing activity of the Australian business; and
(ii) is within a different Division under the Australian and New Zealand Standard Industrial Classification Codes from the current activities of the Australian business.
(2) Despite subsection (1), if a foreign person carries on an Australian business, the person does not start an Australian business merely because the foreign person, alone or together with one or more persons, establishes a new entity:
(a) that carries on the same Australian business; or
(b) for the purposes of acquiring interests in assets of the same Australian business.
28 Subsection 9(1) (note 2)
Omit “and trusts”, substitute “, trusts and unincorporated limited partnerships”.
29 At the end of section 9
Add:
Buying‑back securities
(6) The buying‑back of a security in an entity by the entity does not constitute an acquisition by the entity of an interest in a security in the entity.
30 Sections 10 and 11 (note 2)
Omit “and trusts”, substitute “, trusts and unincorporated limited partnerships”.
31 After section 11
Insert:
11A Meaning of interest in an unincorporated limited partnership
A person holds an interest in an unincorporated limited partnership if the person:
(a) is in a position to control all or any of the voting power or potential voting power in the partnership; or
(b) is entitled to any or all of the distributions of capital, assets or profits of the partnership on the dissolution of the partnership; or
(c) is entitled to any or all of the distributions of capital, assets or profits of the partnership otherwise than on the dissolution of the partnership.
Note: See also section 19 (tracing of substantial interests in corporations, trusts and unincorporated limited partnerships).
32 Paragraph 15(4)(a)
Repeal the paragraph, substitute:
(a) Part 4 (notices required for notifiable actions and notifiable national security actions, and may be given of other actions);
33 Subsection 15(5) (note)
Repeal the note, substitute:
Note: As a result of this subsection, the person acquires or sells the interest only when the provisions become binding. If the provisions do not become binding until one or more conditions are met, and one of those conditions is met only when the Treasurer has given an exemption certificate or no objection notification, then the person does not acquire or sell the interest before the Treasurer has given an exemption certificate or no objection notification.
34 After section 16
Insert:
16A Meaning of interest of a specified percentage in a business
A person holds an interest of a specified percentage in a business if the value of the interests in assets of the business held by the person, alone or together with one or more associates of the person, is that specified percentage of the value of the total assets of the business.
Note 1: See also paragraph (a) of the definition of acquire.
Note 2: A percentage may be specified by referring to:
(a) “20%”; or
(b) “any percentage”; or
(c) a “direct interest”; or
(d) a percentage that a person holds in other assets.
35 Section 17 (at the end of the heading)
Add “or unincorporated limited partnership”.
36 After subsection 17(2)
Insert:
Meaning of interest of a specified percentage in an unincorporated limited partnership
(2A) A person holds an interest of a specified percentage in an unincorporated limited partnership 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 partnership; or
(b) is entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership on the dissolution of the partnership; or
(c) is entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership otherwise than on the dissolution of the partnership.
37 Subsection 17(3)
After “entity”, insert “or unincorporated limited partnership”.
38 After section 18
Insert:
18A Increasing percentage of interests without acquiring additional interests in securities
Effect of increase—person is taken to take an action of acquiring an interest in securities
(1) A person is taken to take an action of acquiring an interest in securities in an entity if:
(a) the person holds an interest of a particular percentage in the entity; and
(b) the percentage interest that the person holds increases without the person acquiring interests in securities in the entity.
Note: The combined effect of this subsection and other provisions of this Act may be that the person takes:
(a) a significant action because of paragraph 40(2)(a) or (b) or 43(a) or section 44; or
(b) a notifiable action because of paragraph 47(2)(a), (b) or (c) or section 48; or
(c) a notifiable national security action because of paragraph 55B(1)(c) or (d); or
(d) a reviewable national security action because of paragraph 55D(1)(a) or 55F(a).
Effect of potential increase—person is taken to propose to take an action of acquiring an interest in securities
(2) A person is taken to propose to take an action of acquiring an interest in securities in an entity if:
(a) the person holds an interest of a particular percentage in the entity; and
(b) there are reasonable grounds to believe that the percentage interest that the person holds may increase without the person acquiring interests in securities in the entity.
(3) Paragraph (2)(b) applies whether or not any person actually has the belief mentioned in that paragraph.
Modification of this Act
(4) The following table has effect:
| Increasing percentage of interests without acquiring additional interests in securities—modification of this Act | ||
| Item | The following provisions of this Act … | apply in relation to an action or proposed action that is taken to occur because of subsection (1) or (2) of this section as if … |
| 1 | subsection 20(1) (meaning of acquire an interest of a specified percentage in an entity) | subsection 20(1) provided that the taking of the action resulted in the person acquiring an interest in the entity of the percentage that the person holds immediately after the action is taken. |
| 2 | paragraphs 47(2)(a) and (b) (meaning of notifiable action) | those paragraphs only applied where the foreign person did not hold a direct interest or substantial interest (as the case requires) in the entity immediately before the action is taken. |
| 3 | item 1 of the table in section 51 (threshold test—acquiring a direct interest in an Australian entity that is an agribusiness) | the value mentioned in column 2 of that item were the total value, immediately after the action is taken, of all interests held by the person, alone or together with one or more associates: (a) in the entity; or (b) previously acquired from the entity. |
| 4 | paragraph 55B(1)(c) (meaning of notifiable national security action) | that paragraph only applied where the foreign person did not hold a direct interest in the entity immediately before the action is taken. |
| 5 | subsections 67(2) and 69(2) (orders) | subsections 67(2) and 69(2) authorised the Treasurer to make (subject to subsection (5) of this section) an order directing the person to do within a specified period, or refrain from doing, specified acts or acts of a specified kind, and no other kind of order. |
| 6 | subsection 69(5) (extension of periods specified in certain disposal orders) | subsection 69(5) applied in relation to an order made under subsection 67(2) or 69(2), as those subsections apply because of item 5 of this table. |
| 7 | section 77 (time limit on making orders and decisions) | subsection 77(3) were omitted and column 2 of item 1 of the table in subsection 77(6) referred to the following events: (a) the Treasurer receives a notice from a person stating that the action is proposed to be taken, before the action is taken; (b) the Treasurer receives a notice from a person, stating that the action has been taken, before the end of 30 days after the action is taken. |
| 8 | subsections 79D(2) and 79E(2) (orders—last resort powers) | subsections 79D(2) and 79E(2) authorised the Treasurer to make (subject to subsection (5) of this section) an order directing the person to do within a specified period, or refrain from doing, specified acts or acts of a specified kind, and no other kind of order. |
| 9 | subsection 79E(4) (extension of periods specified in certain disposal orders made in exercise of last resort powers) | subsection 79E(4) applied in relation to an order made under subsection 79D(2) or 79E(2), as those subsections apply because of item 8 of this table. |
| 10 | items 1 and 2 of the table in subsection 101AA(3) (threshold for distinction between tier 2 infringement notices and tier 3 infringement notices) | the value for the action mentioned in the relevant item were the total value, immediately after the action is taken, of all interests held by the person, alone or together with one or more associates: (a) in the entity; or (b) previously acquired from the entity. |
| 11 | (a) section 15 (interests acquired by entering agreements or acquiring options); (b) section 68 (interim orders); (c) subparagraph 74(1)(c)(iii) (no objection notification imposing conditions); (d) paragraph 79A(3)(b) and subsection 79A(4) (notice of national security review prohibits taking of action until review completed); (e) section 85A (offence for taking action while prohibited by this Act); (f) section 92A (civil penalty for taking action while prohibited by this Act) | those provisions were omitted. |
Purpose for which orders may be made
(5) An order may be made under subsection 67(2), 69(2), 79D(2) or 79E(2) as those subsections apply because of the table in subsection (4) of this section, only for the purpose of restoring the percentage of interests that the person holds in the entity as nearly as possible to the percentage interest that the person held immediately before it increased.
Further modifications
(6) This Act also applies in relation to an action or proposed action that is taken to occur because of subsection (1) or (2) of this section with the modifications prescribed by the regulations.
39 Section 19 (heading)
Omit “and trusts”, substitute “, trusts and unincorporated limited partnerships”.
40 Subsections 19(1) and (2)
Repeal the subsections, substitute:
Tracing—general
(1) Subsection (2) applies (subject to subsection (3)) if:
(a) a person holds a substantial interest in:
(i) a corporation (the higher party); or
(ii) a trust (a trustee of which is a higher party); or
(iii) an unincorporated limited partnership (a general partner of which is a higher party);
including because of one or more applications of this section; and
(b) the higher party:
(i) is in a position to control all or any of the voting power or potential voting power in a corporation or unincorporated limited partnership (the lower party); or
(ii) holds interests in all or any of the shares in a corporation (the lower party); or
(iii) holds an interest in a trust or unincorporated limited partnership (the lower party), other than the partnership mentioned in subparagraph (a)(iii) (if that subparagraph applies).
(2) For the purposes of this Act:
(a) if subparagraph (1)(b)(i) applies—the person is taken to be in a position to control the voting power or potential voting power in the lower party that the higher party is in a position to control; or
(b) if subparagraph (1)(b)(ii) applies—the person is taken to hold the interests in the shares in the lower party that the higher party holds; or
(c) if subparagraph (1)(b)(iii) applies—the person is taken to hold the interest in the lower party that the higher party holds.
Tracing—effect of intermediate unincorporated limited partnerships
(2A) Subsection (2B) applies (subject to subsection (3)) if:
(a) a person holds a substantial interest in an unincorporated limited partnership (the higher partnership); and
(b) there are one or more unincorporated limited partnerships (each of which is an intermediate partnership in relation to the higher partnership) that are general partners of:
(i) the higher partnership; or
(ii) another intermediate partnership in relation to the higher partnership (because of one or more applications of this paragraph); and
(c) a general partner (the intermediate partner) of any of those intermediate partnerships:
(i) is in a position to control all or any of the voting power or potential voting power in a corporation or another unincorporated limited partnership (the lower party), including because of the operation of paragraph (2)(a); or
(ii) holds interests in the shares of a corporation (the lower party), including because of the operation of paragraph (2)(b); or
(iii) holds an interest in a trust or another unincorporated limited partnership (the lower party), including because of the operation of paragraph (2)(c).
(2B) For the purposes of this Act:
(a) if subparagraph (2A)(c)(i) applies—the person is taken to be in a position to control the voting power or potential voting power in the lower party that the intermediate partner is in a position to control; or
(b) if subparagraph (2A)(c)(ii) applies—the person is taken to hold the interests in the shares in the lower party that the intermediate partner holds; or
(c) if subparagraph (2A)(c)(iii) applies—the person is taken to hold the interest in the lower party that the intermediate partner holds.
Section does not apply for certain purposes
41 After section 19
Insert:
19A Meaning of acquire an interest of a specified percentage in a business
(1) A person acquires an interest of a specified percentage in a business if the person:
(a) starts to hold an interest of that percentage in the business; or
(b) would start to hold an interest of that percentage in the business on the assumption that the person held interests in assets of the business that are interests that the person has offered to acquire; or
(c) for a person who already holds an interest of that percentage in the business:
(i) starts to hold additional interests in assets of the business; or
(ii) would start to hold additional interests in assets of the business if interests in assets of the business were transferred as the result of the exercise of rights of a kind mentioned in paragraph 15(1)(b) or (c).
Note: 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 assets of a business includes a reference to a person making or publishing a statement (however expressed) that expressly or impliedly invites a holder of interests in assets to offer to dispose of interests in assets.
42 Subsection 21(1) (note)
Omit “or trusts”, substitute “, trusts or unincorporated limited partnerships”.
43 Subsection 22(1)
After “an entity”, insert “or unincorporated limited partnership”.
44 Subsection 22(1)
After “the entity”, insert “or partnership”.
45 Subsection 22(2)
After “an entity” (first occurring), insert “or unincorporated limited partnership”.
46 Subsection 22(2)
After “the entity” (wherever occurring), insert “or partnership”.
47 Subsection 22(3)
After “an entity”, insert “or unincorporated limited partnership”.
48 Paragraph 22(3)(a)
After “the entity”, insert “or partnership”.
49 Subsection 22(4)
After “an entity”, insert “or unincorporated limited partnership”.
50 Subsection 22(4)
After “the entity”, insert “or partnership”.
51 Section 23
After “an entity”, insert “or unincorporated limited partnership”.
52 Section 29 (heading)
Omit “and entities”, substitute “, entities and unincorporated limited partnerships”.
53 Paragraph 29(b)
After “corporations”, insert “and unincorporated limited partnerships”.
54 Subsection 37(5)
Omit “paragraph (4)(a)”, substitute “subsection (4)”.
55 Part 2 (heading)
Repeal the heading, substitute:
Part 2—Actions to which this Act applies
56 Section 38
Repeal the section, substitute:
38 Simplified outline
This Part defines the concepts of significant action, notifiable action, notifiable national security action and reviewable national security action.
The Treasurer has powers under Part 3 in respect of these kinds of actions.
57 Section 39 (paragraph beginning “Broadly”)
After “the action must”, insert “in most cases”.
58 At the end of section 40
Add:
(7) However, the last condition in subsection (6) is not required to be met if:
(a) paragraph (2)(b) applies and the action is or is to be taken by a foreign person who controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken; or
(b) paragraph (2)(c) applies and a foreign person controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken.
59 At the end of section 41
Add:
(6) However, the third condition in subsection (5) is not required to be met if:
(a) paragraph (2)(b) applies; and
(b) the action is or is to be taken by a foreign person who controls the business (whether alone or together with one or more associates) immediately before the action is or is to be taken.
60 Section 46 (paragraph beginning “A notifiable action”)
Omit “a proposed”, substitute “an”.
61 Section 46 (paragraph beginning “Unlike”)
Omit “Unlike for a significant action, there”, substitute “There”.
62 Paragraph 47(2)(a)
Repeal the paragraph, substitute:
(a) to acquire a direct interest in:
(i) an Australian entity that is an agribusiness; or
(ii) an Australian business that is an agribusiness;
63 Subsection 47(4)
Omit “paragraph (2)(a) or (b)”, substitute “subparagraph (2)(a)(i) or paragraph (b)”.
64 Section 50 (paragraph beginning “Two important tests”)
After “whether there has been a change in control.”, insert “The threshold test is also important in determining whether an action is a notifiable action.”.
65 Section 50 (paragraph beginning “One or more persons”)
Omit “One or more persons who hold a substantial interest or an aggregate substantial interest in an entity are taken to control the entity.”, substitute “A person who holds a substantial interest in an entity is taken to control the entity.”.
66 Section 51
Omit “a significant”, substitute “an”.
67 Section 51 (table, heading to column 1)
Omit “Significant action”, substitute “Kind of action”.
68 Section 51 (after table item 2)
Insert:
| 2A | Acquiring a substantial interest in an Australian entity | The higher of the following: (a) the total asset value for the entity; (b) the total issued securities value for the entity |
69 Subsection 53(1)
Repeal the subsection (not including the heading), substitute:
(1) If:
(a) an action relating to an entity, business or land is covered by an agreement; and
(b) the threshold test is met in relation to the action and the entity, business or land;
the threshold test is met for the action even if the test is not met for another action covered by the agreement (whether or not relating to the same entity, business or land).
70 Subsection 53(2)
Omit “threshold test is met” (first occurring), substitute “threshold test is met”.
71 Paragraph 54(4)(b)
Repeal the paragraph, substitute:
(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—the person holds a substantial interest in the entity.
72 After section 55
Insert:
Division 4A—Meaning of notifiable national security action
Subdivision A—Simplified outline
55A Simplified outline
This Division defines the concept of a notifiable national security action.
Subdivision B—Meaning of notifiable national security action
55B Meaning of notifiable national security action
(1) An action is a notifiable national security action if the action is taken, or proposed to be taken, by a foreign person and the action is any of the following:
(a) to start a national security business;
(b) to acquire a direct interest in a national security business;
(c) to acquire a direct interest in an entity that carries on a national security business;
(d) to acquire an interest in Australian land that, at the time of acquisition, is national security land;
(e) to acquire a legal or equitable interest in an exploration tenement in respect of Australian land that, at the time of acquisition, is national security land.
(2) For the purposes of paragraph (1)(e), a person acquires a legal or equitable interest in an exploration tenement even if:
(a) the person has previously acquired an interest in an exploration tenement; or
(b) the interest is an increase in the amount of an existing interest of the person in an exploration tenement.
(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 notifiable national security action.
Division 4B—Meaning of reviewable national security action
Subdivision A—Simplified outline
55C Simplified outline
This Division defines the concept of a reviewable national security action. The Treasurer may review an action of this kind under Part 3, as well as a significant action that is not a notifiable action or notifiable national security action, if the Treasurer considers that the action may pose a national security concern.
Subdivision B—Meaning of reviewable national security action
55D Meaning of reviewable national security action—entities
Meanings
(1) An action is a reviewable national security action if:
(a) the action is taken, or proposed to be taken, by a person and the action is to acquire an interest of any percentage in an entity; and
(b) as a result of the action or proposed action:
(i) a foreign person acquires, or will acquire, a direct interest in the entity and that acquisition, or proposed acquisition, is not a significant action, notifiable action or notifiable national security action; or
(ii) a foreign person will be in a position, or more of a position, to influence or participate in the central management and control of the entity; or
(iii) a foreign person will be in a position, or more of a position, to influence, participate in or determine the policy of the entity; and
(c) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action.
Note: For the definition of entity, see subsection (3).
(2) An action is also a reviewable national security action if:
(a) the action is taken, or proposed to be taken, by a person and the action is:
(i) to issue securities in an entity; or
(ii) to enter an agreement relating to the affairs of an entity and 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 direct interest in the entity; or
(iii) to alter a constituent document of an 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 direct interest in the entity; and
(b) in the case to which subparagraph (a)(i) applies—as a result of the action or proposed action:
(i) a foreign person acquires, or will acquire, a direct interest in the entity and that acquisition, or proposed acquisition, is not a significant action, notifiable action or notifiable national security action; or
(ii) a foreign person will be in a position, or more of a position, to influence or participate in the central management and control of the entity; or
(iii) a foreign person will be in a position, or more of a position, to influence, participate in or determine the policy of the entity; and
(c) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action.
Note: For the definition of entity, see subsection (4).
Definitions of entity
(3) For the purposes of subsection (1), the entity must be:
(a) for an acquisition of interests in shares:
(i) a corporation 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; or
(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; or
(c) for an action relating to a unit trust:
(i) an Australian unit trust; or
(ii) a holding entity of an Australian unit trust.
(4) For the purposes of subsection (2), the entity must be:
(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; or
(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; or
(c) for an action relating to a unit trust:
(i) an Australian unit trust; or
(ii) a holding entity of an Australian unit trust.
55E Meaning of reviewable national security action—businesses
(1) An action is a reviewable national security action if:
(a) the action is taken, or proposed to be taken, by a person and the action is any of the following:
(i) to acquire an interest of any percentage in an Australian business;
(ii) to acquire an interest in the assets of an Australian business;
(iii) to enter or terminate a significant agreement with an Australian business; and
(b) as a result of the action or proposed action:
(i) a foreign person acquires, or will acquire, a direct interest in the Australian business and that acquisition, or proposed acquisition, is not a significant action, notifiable action or notifiable national security action; or
(ii) a foreign person will be in a position, or more of a position, to influence or participate in the central management and control of the Australian business; or
(iii) a foreign person will be in a position, or more of a position, to influence, participate in or determine the policy of the Australian business; and
(c) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action.
(2) An action is also a reviewable national security action if:
(a) the action is taken, or proposed to be taken, by a foreign person and the action is to start an Australian business; and
(b) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action.
55F Meaning of reviewable national security action—land
An action is a reviewable national security action if:
(a) the action is taken, or proposed to be taken, by a foreign person and the action is to acquire an interest in Australian land; and
(b) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action.
55G Actions that are not reviewable national security actions—exemption certificates
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 reviewable national security action.
73 Section 56
Omit:
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.
74 Subsection 60(2)
Repeal the subsection, substitute:
(2) An exemption certificate may:
(a) in respect of a certificate taken to be given under section 57, 58 or 59—deal with the interests or kinds of interests to which the certificate relates; or
(b) in respect of a certificate taken to be given under the regulations—deal with the interest or kinds of interests, or the action or kinds of actions, to which the certificate relates.
75 Paragraph 61(4)(b)
Repeal the paragraph, substitute:
(b) in respect of a certificate taken to be given under section 57, 58 or 59—the interests or kinds of interests to which the certificate relates; and
(ba) in respect of a certificate taken to be given under the regulations—the interest or kinds of interests, or the action or kinds of actions, to which the certificate relates; and
76 Section 62 (heading)
Repeal the heading, substitute:
62 Variation or revocation of exemption certificates—general
77 Subsection 62(1)
Repeal the subsection, substitute:
(1) If, in giving an exemption certificate to a person, the Treasurer was satisfied that the relevant acquisition or action was not contrary to the national interest, the Treasurer may vary or revoke the certificate if the Treasurer is satisfied that the variation or revocation is not contrary to the national interest.
(1A) If, in giving an exemption certificate to a person, the Treasurer was satisfied that the relevant action was not contrary to national security, the Treasurer may vary or revoke the certificate if the Treasurer is satisfied that the variation or revocation is not contrary to national security.
78 Subsection 62(3)
Omit “Subdivision”, substitute “Division”.
79 After section 62
Insert:
62A Variation or revocation of exemption certificates—false or misleading information or documents
(1) The Treasurer may give a notice under subsection (2) if the Treasurer reasonably believes that before an exemption certificate was given the person to whom the certificate relates gave the Treasurer information that was or documents that were:
(a) relevant to the exemption certificate; and
(b) false or misleading in a material particular.
(2) The Treasurer may give the person a notice, in writing, that the Treasurer is considering varying or revoking the exemption certificate because the Treasurer has the reasonable belief mentioned in subsection (1).
(3) The Treasurer may vary or revoke an exemption certificate relating to a person if:
(a) the Treasurer is satisfied that before the exemption certificate was given the person gave the Treasurer information that was or documents that were:
(i) relevant to the exemption certificate; and
(ii) false or misleading in a material particular; and
(b) the Treasurer has given the person a notice under subsection (1) in respect of the exemption certificate; and
(c) the variation or revocation is made no later than 120 days after the day on which the Treasurer gave the person that notice.
Note: Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to a power under this Division to give an exemption certificate (see subsection 62(3)).
(4) To avoid doubt, for the purposes of this section, information or documents may be false or misleading in a material particular because of the omission of a matter or thing.
(5) The Treasurer must notify the person, in writing, of the variation or revocation before the end of 10 days after the revocation is made.
(6) This section does not limit the circumstances in which the Treasurer may vary or revoke an exemption certificate.
(7) This section applies to an exemption certificate that is taken to be given under section 61.
62B Effect of revocation or variation of exemption certificate
(1) This section applies if:
(a) an exemption certificate relates to an action; and
(b) either:
(i) the exemption certificate is revoked under section 62 or 62A; or
(ii) the exemption certificate is varied under section 62 or 62A, and as a result of the variation the exemption certificate no longer relates to the action.
(2) Despite sections 45 and 49, subsection 55B(3) and section 55G, the operation of those sections and subsections in relation to the exemption certificate do no prevent the action, from the time mentioned in subsection (3), from being any of the following:
(a) a significant action;
(b) a notifiable action;
(c) a notifiable national security action;
(d) a reviewable national security action.
(3) The time is:
(a) if the revocation or variation specifies a time when it comes into effect—that time; or
(b) otherwise—the time when the revocation or variation is made.
(4) Subsection (5) applies if:
(a) at the time the action was taken:
(i) it was not a core Part 3 action; or
(ii) it was not contrary to the national interest or to national security; and
(b) as a result of the operation of subsection (2), the action becomes a core Part 3 action at the time mentioned in subsection (3).
(5) To avoid doubt, the Treasurer may make an order under section 69 (disposal orders) in relation to the action despite the fact that, at the time the action was taken:
(a) it was not a core Part 3 action; or
(b) it was not contrary to the national interest or to national security.
80 Section 63 (note)
Repeal the note, substitute:
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) a significant action (see subsection 45(3)); or
(b) a notifiable action (see subsection 49(2)); or
(c) a notifiable national security action (see subsection 55B(3)); or
(d) a reviewable national security action (see section 55G)).
81 Paragraph 65(1)(c)
Repeal the paragraph, substitute:
(c) the target is not:
(i) an Australian entity; or
(ii) an entity carrying on an Australian business; or
(iii) an entity carrying on a national security business; or
(iv) the holding entity of an entity mentioned in subparagraph (ii) or (iii);
as is required for the action to be a significant action, notifiable action, notifiable national security action or reviewable national security action; and
82 Paragraph 65(1)(d)
Omit “or (iii)”, substitute “, (iii) or (iv)”.
83 Section 66
Repeal the section, substitute:
66 Simplified outline of this Part
This Part deals with the powers that the Treasurer has if an action is proposed to be taken or has been taken.
The Treasurer may review actions in the circumstances set out in Division 1A. Such actions are reviewable national security actions, and significant actions that are not notifiable actions or notifiable national security actions. The Treasurer may make orders and decisions of a kind mentioned below in relation to any actions so reviewed.
If an action is proposed to be taken, the Treasurer may prohibit the action. The Treasurer may make an interim order before deciding whether to make an order prohibiting an action.
If an action has been taken, the Treasurer may order that the action be undone (for example, by requiring an acquisition to be disposed of).
Instead of making an order, the Treasurer may give a notification (called a no objection notification) stating that the Commonwealth does not object to an action. The Treasurer may impose conditions on an action.
If the Treasurer is given a notice that an action is proposed to be taken or reviews an action under Division 1A, the Treasurer must make a decision under this Part within a certain period, although the period may be extended. A person must not take the action during this period unless the person is given a no objection notification.
The Treasurer also has last resort powers to deal with national security risks arising in relation to an action. If the Treasurer is permitted to review the action, the Treasurer may make orders to eliminate or reduce any such risks.
Division 1A—Review of reviewable national security actions
66A National security review of actions
Review allowed if action may pose a national security concern
(1) Subject to subsection (5), the Treasurer may review:
(a) a reviewable national security action; or
(b) a significant action that is not a notifiable action or notifiable national security action;
if the Treasurer considers that the action may pose a national security concern.
Note 1: See also section 77 (time limit on making orders and decisions) and Parts 5 (offences and civil penalties) and 6 (fees).
Note 2: In reviewing the reviewable national security action, the Treasurer may seek information: see section 133.
When review may begin
(2) The Treasurer may only start a review of an action that has been taken within the time prescribed by the regulations.
(3) For the purposes of subsection (2), the following provisions are to be disregarded:
(a) paragraphs 15(1)(b) and (c);
(b) paragraphs 17(1)(c) and (2)(c);
(c) subparagraphs 19A(1)(c)(ii) and 20(1)(c)(iii).
Notice of review
(4) If the Treasurer reviews an action mentioned in subsection (1), the Treasurer must give written notice to the person who has taken, or who proposes to take, the action, of the review.
Actions not reviewable in certain circumstances
(5) The Treasurer may not review an action under this section if, at the time a review would otherwise start, any of the following apply:
(a) the action has been notified to the Treasurer;
(b) a person was given a no objection notification in relation to the action;
(c) the action or the kind of action is specified in an exemption certificate that is in force under Division 5 of Part 2 or the regulations;
(d) the action has been taken and, at the time it was taken, the action or the kind of action was specified in an exemption certificate in force under Division 5 of Part 2 or the regulations;
(e) an order or decision under Division 2 or 3 of this Part has been made by the Treasurer in relation to the action.
84 Division 2 of Part 3 (heading)
Repeal the heading, substitute:
Division 2—Orders relating to actions that are, or whose result would be, contrary to national security or the national interest
85 Section 67 (heading)
Omit “significant”.
86 Paragraph 67(1)(a)
After “significant action”, insert “(other than a significant action covered by subparagraph (1A)(a)(ii))”.
87 After subsection 67(1)
Insert:
(1A) The Treasurer may, by notifiable instrument, make an order under subsection (2) if the Treasurer is satisfied that:
(a) an action of any of the following kinds is proposed to be taken:
(i) a notifiable national security action that is not a significant action;
(ii) an action in respect of which the Treasurer has given a notice under subsection 66A(4);
(iii) a reviewable national security action notified to the Treasurer; and
(b) taking the action would be contrary to national security.
Note: See also section 77 (time limit on making orders and decisions) and Parts 5 (offences and civil penalties) and 6 (fees).
88 Subsection 67(2) (table heading)
Omit “significant”.
89 Subsection 67(2) (table, heading to column headed “If the significant action is …”)
Omit “significant”.
90 Subsection 67(2) (cell at table item 1, column headed “If the significant action is …”)
Repeal the cell, substitute:
to acquire:
(a) a direct interest in an entity or Australian business; or
(b) a direct interest in an Australian entity, or an Australian business, that is an agribusiness; or
(c) an interest in securities in an entity; or
(d) an interest of any percentage in an entity or an Australian business; or
(e) an interest in assets of an Australian business; or
(f) a direct interest in a national security business; or
(g) a legal or equitable interest in an exploration tenement, and that action is to be taken by a foreign person who is not a foreign government investor
91 Subsection 67(2) (cell at table item 3, column headed “If the significant action is …”)
Repeal the cell, substitute:
to enter an agreement mentioned in paragraph 40(2)(d) or subparagraph 55D(2)(a)(ii)
92 Subsection 67(2) (cell at table item 4, column headed “If the significant action is …”)
Repeal the cell, substitute:
to alter a constituent document of an entity as mentioned in paragraph 40(2)(e) or subparagraph 55D(2)(a)(iii)
93 Subsection 67(2) (table item 5)
Repeal the item, substitute:
| 5 | to start an Australian business, and that action is to be taken by a foreign person who is not a foreign government investor | the starting of the whole or a part of the Australian business. |
| 5A | to start a national security business | the starting of the whole or a part of the national security business. |
94 Subsection 67(3) (table, heading to column “If the significant action is …”)
Omit “significant”.
95 Subsection 67(3) (cell at table item 1, column headed “If the significant action is …”)
Repeal the cell, substitute:
to acquire:
(a) a direct interest in an entity; or
(b) a direct interest in an Australian entity that is an agribusiness; or
(c) an interest of any percentage in an entity; or
(d) an interest in securities in an entity
96 Subsection 67(3) (table item 2)
Repeal the item, substitute:
| 2 | to acquire: (a) a direct interest in an Australian business that is an agribusiness; or (b) a direct interest in a national security business; or (c) an interest in assets of an Australian business; or (d) an interest of any percentage in an Australian business | directing a specified foreign person (whether alone or with specified associate or class of associates): (a) not to acquire any interests in that business or the assets of that business; or (b) to acquire any such interests only to a specified extent. |
97 Subsection 68(2) (note)
Omit “paragraph 72(2)(b)”, substitute “paragraph 79M(2)(b)”.
98 Paragraph 69(1)(a)
After “significant action”, insert “(other than a significant action covered by subparagraph (1A)(a)(ii))”.
99 Subsection 69(1) (note)
Repeal the note, substitute:
Note: See also sections 70 (limitation on making disposal orders) and 77 (time limit on making orders and decisions).
100 After subsection 69(1)
Insert:
(1A) The Treasurer may, by notifiable instrument, make an order under subsection (2) if the Treasurer is satisfied that:
(a) an action of any of the following kinds has been taken:
(i) a notifiable national security action that is not a significant action;
(ii) an action in respect of which the Treasurer has given a notice under subsection 66A(4);
(iii) a reviewable national security action that is notified to the Treasurer; and
(b) the result of the action is contrary to national security.
Note: See also sections 70 (limitation on making disposal orders) and 77 (time limit on making orders and decisions).
101 Subsection 69(2) (table, heading to column headed “If the significant action was …”)
Omit “significant”.
102 Subsection 69(2) (cell at table item 1, column headed “If the significant action was …”)
Repeal the cell, substitute:
to acquire:
(a) a direct interest in an entity or Australian business; or
(b) a direct interest in an Australian entity, or an Australian business, that is an agribusiness; or
(c) an interest in securities in an entity; or
(d) an interest of any percentage in an entity or an Australian business; or
(e) an interest in assets of an Australian business; or
(f) a direct interest in a national security business; or
(g) a legal or equitable interest in an exploration tenement, and that action is to be taken by a foreign person who is not a foreign government investor
103 Subsection 69(2) (after table item 1)
Insert:
| 1A | to acquire: (a) an interest of any percentage in an entity or an Australian business; or (b) an interest in assets of an Australian business | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
104 Subsection 69(2) (cell at table item 2, column headed “If the significant action was …”)
Repeal the cell, substitute:
to enter an agreement mentioned in paragraph 40(2)(d) or subparagraph 55D(2)(a)(ii)
105 Subsection 69(2) (cell at table item 3, column headed “If the significant action was …”)
Repeal the cell, substitute:
to alter a constituent document of an entity as mentioned in paragraph 40(2)(e) or subparagraph 55D(2)(a)(iii)
106 Subsection 69(2) (table item 4)
Repeal the item, substitute:
| 4 | to start an Australian business, and that action was taken by a foreign person who is not a foreign government investor | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
| 4A | to start a national security business | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
107 Subsection 69(4)
Omit “An order”, substitute “Unless subsection (4A) applies, if the Treasurer is satisfied as mentioned in subsection (1), an order”.
108 After subsection 69(4)
Insert:
(4A) If the Treasurer is satisfied as mentioned in subsection (1A), an order under any of items 1A, 2 or 3 of the table in subsection (2) may be made only for the purpose of:
(a) restoring the foreign person’s position to influence or participate in the central management and control of the entity as closely as possible to what is was before the action was taken; or
(b) restoring the foreign person’s position to influence or participate, participate in or determine the policy of the entity as closely as possible to what is was before the action was taken.
109 Paragraphs 70(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) a person is given a no objection notification specifying one or more actions; and
(b) in the case of a no objection notification relating to actions that are proposed to be taken—the actions specified in the no objection notification were taken; and
110 At the end of section 70
Add:
(3) To avoid doubt, this section is subject to subsection 76A(7) (effect of revocation of no objection notification).
111 Sections 71 to 73
Repeal the sections.
112 Subdivision B of Division 2 of Part 3 (heading)
Repeal the heading, substitute:
Subdivision B—No objection notifications
113 Paragraph 74(1)(a)
After “significant action”, insert “(other than a significant action covered by paragraph (1A)(b)”.
114 Paragraph 74(1)(b)
Repeal the paragraph, substitute:
(b) all of the following apply:
(i) the Treasurer is satisfied that a significant action has been taken;
(ii) the Treasurer was not given a notice relating to the action before the action was taken;
(iii) the action is not covered by paragraph (1A)(b); or
115 After subparagraph 74(1)(c)(ii)
Insert:
(iia) the action is not covered by paragraph (1A)(b);
116 Subsection 74(1) (note)
Repeal the note, substitute:
Note: See also sections 76 (content of no objection notification) and 77 (time limit on making orders and decisions).
117 After subsection 74(1)
Insert:
(1A) This section also applies if the following kinds of actions are proposed to be taken or have been taken:
(a) a notifiable national security action that is not a significant action;
(b) an action in respect of which the Treasurer has given a notice under subsection 66A(4);
(c) a reviewable national security action that is notified to the Treasurer.
Note: See also sections 76 (content of no objection notification) and 77 (time limit on making orders and decisions).
118 Subparagraph 74(2)(a)(ii)
Omit “and” (last occurring).
119 At the end of paragraph 74(2)(a)
Add:
(iii) for subsection (1A) and in relation to an action proposed to be taken—a condition that the Treasurer is satisfied is necessary to ensure the action, if taken, will not be contrary to national security;
(iv) for subsection (1A) and in relation to an action that has been taken—a condition that the Treasurer is satisfied is necessary to ensure the action is not contrary to national security; and
120 Subsection 74(4)
Repeal the subsection, substitute:
Variation and revocation of conditions
(4) Subject to subsection (6), the Treasurer may:
(a) in relation to an action of a kind mentioned in subsection (1)—vary a no objection notification given to a person in one or more ways mentioned in subsection (4A) if the Treasurer is satisfied that the variation is not contrary to the national interest; and
(b) in relation to an action of a kind mentioned in subsection (1A)—vary a no objection notification given to a person in one or more ways mentioned in subsection (4A) if the Treasurer is satisfied that the variation is not contrary to national security.
(4A) For the purposes of subsection (4), the Treasurer may vary a no objection notification in one or more of the following ways:
(a) revoking a condition;
(b) imposing a new condition;
(c) varying an existing condition;
(d) varying the information specified under section 76.
121 At the end of subsection 74(8)
Add:
Note: See also subparagraph 79A(1)(b)(ii).
122 After subsection 75(1)
Insert:
(1A) This section also applies if:
(a) the Treasurer receives a notice that a person proposes to take a notifiable national security action; or
(b) a person proposes to take:
(i) an action in respect of which the Treasurer has given a notice under subsection 66A(4); or
(ii) a reviewable national security action that the person notifies to the Treasurer.
Note: See also sections 76 (content of no objection notification) and 77 (time limit on making orders and decisions).
123 Subsection 76(1)
Repeal the subsection, substitute:
(1) A no objection notification given to a person under section 74 or 75 must:
(a) specify the following:
(i) the one or more actions to which the notification relates;
(ii) the one or more foreign persons to which the notification relates; and
(b) include the following:
(i) a requirement that the actions to which the notification relates, if taken, must be taken before the end of a specified period after the day the notification is given;
(ii) a statement to the effect that the Treasurer may, in certain circumstances review the actions to which the notification relates under Division 3 and exercise powers under that Division.
124 Paragraph 76(4)(b)
After “contrary to”, insert “national security or”.
125 Subsection 76(8)
Repeal the subsection, substitute:
(8) The Treasurer may vary a no objection notification if:
(a) in the case of a no objection notification given in relation to an action of a kind mentioned in subsection 74(1) or 75(1)—the Treasurer is satisfied that the variation is not contrary to the national interest; and
(b) in the case of a no objection notification given in relation to an action of a kind mentioned in subsection 74(1A) or 75(1A)—the Treasurer is satisfied that the variation is not contrary to national security.
126 At the end of Subdivision B of Division 2 of Part 3
Add:
76A Revocation of no objection notification
(1) The Treasurer may give a notice under subsection (2) if the Treasurer reasonably believes that before a no objection notification was given to a person the person (or another person specified in the notification) gave the Treasurer information that was or documents that were:
(a) relevant to the no objection notification; and
(b) false or misleading in a material particular.
(2) The Treasurer may give the person who was given the notification a notice, in writing, that the Treasurer is considering revoking the notification (and the relevant decision mentioned in paragraph 74(2)(a) or 75(2)(a)) because the Treasurer has the reasonable belief mentioned in subsection (1).
(3) The Treasurer may revoke a no objection notification given to a person (and the relevant decision mentioned in paragraph 74(2)(a) or 75(2)(a)) if:
(a) the Treasurer is satisfied that before the no objection notification was given the person (or another person specified in the notification) gave the Treasurer information that was or documents that were:
(i) relevant to the no objection notification; and
(ii) false or misleading in a material particular; and
(b) the Treasurer has given the person a notice under subsection (2) in respect of the no objection notification; and
(c) the revocation is made no later than 120 days after the day on which the Treasurer gave the person that notice.
(4) To avoid doubt, for the purposes of this section, information or documents may be false or misleading in a material particular because of the omission of a matter or thing.
(5) The Treasurer must notify the person, in writing, of the revocation before the end of 10 days after the revocation is made.
(6) This section does not limit the circumstances in which the Treasurer may revoke a no objection notification.
(7) If the Treasurer revokes a no objection notification under subsection (1) (and the relevant decision mentioned in paragraph 74(2)(a) or 75(2)(a)), the Treasurer may make:
(a) an order under section 67, 68 or 69; or
(b) a decision under paragraph 74(2)(a) or 75(2)(a);
as if the no objection notification had never been given (and the relevant decision had never been made).
Note: The Treasurer cannot make an order under section 67 or 68 if the core Part 3 action in relation to which the no objection notification was given had already been taken before the revocation.
127 Division 3 of Part 3 (heading)
Repeal the heading.
128 Before section 77
Insert:
Subdivision C—Time limits on making orders and decisions
129 Section 77
Repeal the section, substitute:
77 Time limit on making orders and decisions
Time limit on making orders or decisions
(1) If a decision period starts in relation to an action (see subsection (6)), the Treasurer must not (subject to subsections (2) to (5)) make an order or decision under Division 2 relating to the action after the end of the decision period.
Note 1: For when the Treasurer may vary or revoke an order or no objection notification, see sections 74, 76, 76A and 79G.
Note 2: For further powers the Treasurer has after the expiry of the time limit in this section, see Division 3 of Part 3 (about last resort powers).
Longer time limit where interim order is made
(2) However, if:
(a) the Treasurer makes, or purports to make, an interim order in relation to the action on or before the end of the decision period; and
(b) the interim order is registered in accordance with section 79M;
the Treasurer must not make an order under section 67 or 69 or a decision under section 74 or 75 relating to the action after the end of the period specified in the interim order.
No time limit if action taken during period
(3) Subsections (1) and (2) do not apply if:
(a) the decision period started because the Treasurer received a notice from a person stating that the action was proposed to be taken; and
(b) the person took the action before the end of:
(i) for a case to which subsection (1) applies—the decision period; or
(ii) for a case to which subsection (2) applies—the period specified in the interim order.
No time limit if order made during period
(4) Subsections (1) and (2) do not apply if:
(a) the Treasurer made an order (other than an interim order) or decision under Division 2 relating to the action on or before the end of:
(i) for a case to which subsection (1) applies—the decision period; or
(ii) for a case to which subsection (2) applies—the period specified in the interim order; and
(b) the Treasurer also registers the order in accordance with section 79M, or gives a notification in accordance with subsection 74(3) or 75(3).
Later decision periods
(5) Subsections (1) and (2) do not prevent the Treasurer from making an order or decision in relation to an action at a time after the end of a period if the time is in:
(a) another decision period that has started in relation to the action under subsection (6); or
(b) a period specified in an interim order made, or purported to be made, during another decision period that has started in relation to the action under subsection (6).
Note: Under the table in subsection (6), there may be more than one decision period for an action. For example, a decision period might start in relation to an action under item 1 of the table and then later another decision period might start under item 5 of the table.
When a decision period starts
(6) A decision period starts in relation to an action referred to in column 1 of an item in the following table if the event referred to in column 2 of that table item occurs. To avoid doubt, there may be more than one decision period for an action.
| When a decision period starts | ||
| Item | Column 1 Action | Column 2 Event |
| 1 | Any of the following: (a) a significant action; (b) a notifiable national security action; (c) a reviewable national security action | The Treasurer receives a notice from a person stating that the action is proposed to be taken |
| 2 | An action to which an exemption certificate relates | The action becomes a core Part 3 action as a result of the operation of subsection 62B(2) (which is about the effect of revocation of an exemption certificate) |
| 3 | Any of the following: (a) a significant action that is not a notifiable action or notifiable national security action; (b) a reviewable national security action | The Treasurer gives a person a notice in relation to the action under subsection 66A(4) (which is about national security review of actions) |
| 4 | An action in relation to which the Treasurer made a decision under section 74 or 75 (which is about no objection notifications) | The Treasurer notifies a person under subsection 76A(4) that the Treasurer has revoked a no objection notification given to the person in relation to the action |
| 5 | Any of the following: (a) a significant action; (b) a notifiable national security action; (c) a reviewable national security action | An order or decision the Treasurer purported to make under Division 2 in relation to the action is set aside by a court |
Note 1: If a fee is payable by a person under section 113, the notice is taken not to have been given until the fee has been paid or waived (see section 114).
Note 2: For withdrawal of notices, see section 136.
Notice given under section 133
(7) If a notice is given to a person under section 133 requiring a person to give information or produce a document, a decision period, or a period specified in an interim order, does not include any day in the period:
(a) beginning on the day the notice is given; and
(b) ending on the day the person gives the information or produces the document in accordance with the notice.
Meaning of decision period
(8) A decision period is:
(a) the period of 30 days after the day the event referred to in column 2 of the applicable item of the table in subsection (6) occurs; or
(b) if, before the end of a decision period (including a decision period as extended under this paragraph), the person specified in subsection (9) requests in writing the Treasurer to extend the period—the period as so extended; or
(c) if, before the end of a decision period (including a decision period as extended under this paragraph or paragraph (b)), the Treasurer extends the period under section 77A—the period as so extended.
Specified person for extensions of the decision period
(9) The person is:
(a) in a case to which item 1, 3 or 4 of the table in subsection (6) applies—the person mentioned in column 2 of that table item; or
(b) in a case to which item 2 of the table in subsection (6) applies in relation to a variation or revocation under section 62—the person to whom the exemption certificate was given; or
(c) in a case to which item 2 of the table in subsection (6) applies in relation to a variation or revocation under section 62A—the person to whom the notice under section 62A was given; or
(d) in a case to which item 5 of the table in subsection (6) applies—the person who took, or proposed to take, the action.
77A Treasurer may extend decision period by up to 90 days
(1) Before the end of a decision period, the Treasurer may, by notice in writing given to the person specified in subsection 77(9), extend (or further extend) the period. The Treasurer may do so more than once.
(2) The total number of days by which the Treasurer may extend a decision period by notices given under this section must not exceed 90 days.
(3) The notice:
(a) must include the reasons for the decision; and
(b) in a case to which item 1 of the table in subsection 77(6) applies—may be given to the person at an address (including an electronic address) specified in the notice relating to the action as the address for service of notices relating to the action.
(4) The Treasurer is not required to observe any requirements of the natural justice hearing rule in making a decision under subsection (1).
130 Before section 78
Insert:
Subdivision D—Anti‑avoidance
131 Paragraph 79(1)(b)
After “contrary to”, insert “national security or”.
132 At the end of Part 3
Add:
Division 3—Last resort powers: orders to deal with national security risks arising after an initial assessment
Subdivision A—National security review required
79A National security review required before orders may be made
Bases on which Treasurer may review actions
(1) The Treasurer may review an action if the Treasurer is satisfied that:
(a) any of the following apply:
(i) a no objection notification in relation to the action has been given and has not been revoked under section 76A;
(ii) the action has been taken and, at the time it was taken, the action or the kind of action was specified in an exemption certificate in force under Division 5 of Part 2 or the regulations;
(iii) the action has been taken and, at the time it was taken, the interest or kind of interest to which the action relates was specified in an exemption certificate in force under Division 5 of Part 2 or the regulations;
(iv) an interim order in relation to the action was made and the Treasurer did not make an order under section 67 before the end of the period specified in the interim order;
130ZO Person becomes a foreign person while holding interest in an entity or business
(1) This section applies to a person who becomes a foreign person.
(2) The person must give a register notice to the Registrar if:
(a) on the day the person becomes a foreign person, the person holds:
(i) a direct interest in an Australian entity that is an agribusiness; or
(ii) a direct interest in an Australian business that is an agribusiness; or
(iii) a substantial interest in an Australian entity; and
(b) had the person taken an action consisting of acquiring the interest on the day the person became a foreign person, the action would have been a notifiable action under either of the following:
(i) paragraph 47(2)(a) (acquiring direct interest in Australian entity or business that is an agribusiness);
(ii) paragraph 47(2)(b) (acquiring substantial interest in Australian entity).
(3) Subsections 130ZJ(2) and (3) apply in relation to the notice as if the person had taken the action mentioned in paragraph (2)(b) of this section in the same way as those subsections apply to a notice and an action of that kind under section 130ZJ.
(4) The registrable event day for a register notice under this section is the day on which the person becomes a foreign person.
Application—Register commencement day
(5) This section applies to a person who becomes a foreign person on or after the Register commencement day, regardless of when the person started to hold the interest referred to in paragraph (2)(a).
130ZP Person becomes a foreign person while carrying on or holding interest in a national security business
(1) This section applies to a person who becomes a foreign person.
(2) The person must give a register notice to the Registrar if:
(a) on the day the person becomes a foreign person, the person carries on a national security business; and
(b) had the person taken an action consisting of starting to carry on the national security business on the day the person became a foreign person, the action would have been a notifiable national security action under paragraph 55B(1)(a) (starting national security business).
(3) The person must give a register notice to the Registrar if:
(a) on the day the person becomes a foreign person, the person holds:
(i) a direct interest in a national security business; or
(ii) a direct interest in an entity that carries on a national security business; and
(b) had the person taken an action consisting of acquiring the interest on the day the person became a foreign person, the action would have been a notifiable national security action under either of the following:
(i) paragraph 55B(1)(b) (acquiring direct interest in national security business);
(ii) paragraph 55B(1)(c) (acquiring direct interest in entity that carries on national security business).
(4) Subsections 130ZK(2) and (3) apply in relation to the notice as if the person had taken the action mentioned in paragraph (2)(b) or (3)(b) of this section in the same way as those subsections apply to a notice and an action of that kind under section 130ZK.
(5) The registrable event day for a register notice under this section is the day on which the person becomes a foreign person.
Application—Register commencement day
(6) This section applies to a person who becomes a foreign person on or after the Register commencement day, regardless of when the person started to carry on the business referred to in paragraph (2)(a) or to hold the interest referred to in paragraph (3)(a).
Subdivision D—Requirements relating to registered circumstances
130ZQ Registered circumstance ceases
(1) A foreign person must give a register notice to the Registrar if:
(a) a registered circumstance that relates to the foreign person ceases; and
(b) the foreign person is aware, or ought reasonably to have become aware, of the cessation.
Note 1: A register notice need not be given under this section if a registered circumstance ceases before the register notice that would give rise to the registered circumstance is given. However, the data standards may require a register notice to state whether the registered circumstance has already ceased at the time the register notice is given.
Note 2: A registered circumstance may exist only on or after the Register commencement day.
(2) The registrable event day for a register notice under this section is the day on which the foreign person is aware, or ought reasonably to have become aware, that the registered circumstance has ceased.
(3) However, if the registered circumstance is a registered circumstance under section 130ZE or 130ZF (registrable water interests), the registrable event day for a register notice under this section is the last day of the financial year in which the registered circumstance ceases.
130ZR Foreign person ceases to be a foreign person while registered circumstances exist
(1) A person must give a register notice to the Registrar if:
(a) one or more registered circumstances relate to the person; and
(b) the person ceases to be a foreign person.
Note: A registered circumstance may exist only on or after the Register commencement day.
(2) Each such registered circumstance ceases when the notice is given. No register notice under section 130ZQ is required for the cessation of a registered circumstance under this subsection.
(3) Subject to subsections (5) and (7) of this section, the registrable event day for a register notice under this section is the day on which the person ceases to be a foreign person.
Notice by executor or administrator of person who has died
(4) If the person ceases to be a foreign person because the person dies, the executor or administrator of the person’s estate must give the register notice to the Registrar.
Note: The executor or administrator may also be required to give a register notice or notices under section 130ZS.
(5) If subsection (4) applies to a register notice, the registrable event day for the register notice under this section is the day on which the executor or administrator is appointed.
Notice by liquidator of corporation that is wound up
(6) If the person ceases to be a foreign person because the person is a corporation that is wound up, the liquidator of the corporation must give the register notice to the Registrar.
Note: The liquidator may also be required to give a register notice or notices under section 130ZT.
(7) If subsection (6) applies to a register notice, the registrable event day for the register notice under this section is the day on which the corporation is wound up.
Subdivision E—Requirements relating to persons who die, or corporations that are wound up, before notice is given
130ZS Requirement for executor or administrator to give notice for person who dies before giving notice
(1) If a person who is required to give a register notice to the Registrar under a provision of this Division dies before giving the notice, the executor or administrator of the person’s estate must give the register notice in accordance with the provision.
Note: The executor or administrator may also be required to give a register notice or notices under subsection 130ZR(4).
(2) Despite the provision of this Division mentioned in subsection (1):
(a) no registered circumstance exists because of a notice under subsection (1); and
(b) the registrable event day for a notice under subsection (1) is the day the executor or administrator is appointed.
130ZT Requirement for corporate liquidator to give notice for corporation that is wound up before giving notice
(1) If a person who is required to give a register notice to the Registrar under a provision of this Division is a corporation and is wound up before giving the notice, the liquidator of the corporation must give the register notice in accordance with the provision.
Note: The liquidator may also be required to give a register notice or notices under subsection 130ZR(6).
(2) Despite the provision of this Division mentioned in subsection (1):
(a) no registered circumstance exists because of a notice under subsection (1); and
(b) the registrable event day for a notice under subsection (1) is the day the corporation is wound up.
Subdivision F—Prescribed requirements
130ZU Regulations may require notice to be given to Registrar
(1) The regulations may prescribe:
(a) circumstances in which a person specified in the regulations must give a register notice to the Registrar; and
(b) the registrable event day for such a register notice; and
(c) registered circumstances that relate to a foreign person who gives such a register notice; and
(d) circumstances in which such a registered circumstance ceases.
(2) A person who is required to give a register notice under regulations made for the purposes of subsection (1) must comply with the requirement.
(3) To avoid doubt, circumstances prescribed for the purposes of paragraph (1)(a) or (d) may relate to matters or events occurring before, on or after the Register commencement day.
Note: However, a requirement to give a register notice arises only on or after the Register commencement day (see section 130Q).
Division 4—Consequences of failing to give notice to Registrar
130ZV Civil penalty for failing to give notice to Registrar
A person contravenes this section if:
(a) the person is required to give a register notice to the Registrar before a particular time (the notice time); and
(b) the person does not comply with the requirement.
Civil penalty: 250 penalty units.
Division 5—Miscellaneous
130ZW Directions by Treasurer
(1) The Treasurer may, by legislative instrument, give written directions to the Registrar about the performance of the Registrar’s functions and the exercise of the Registrar’s powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) Without limiting subsection (1), a direction under that subsection may relate to any of the following:
(a) matters to be dealt with in the data standards;
(b) without limiting section 17 (consultation before making legislative instruments) of the Legislation Act 2003, consultation processes to be followed prior to making data standards.
(3) A direction under subsection (1) must be of a general nature only.
(4) Subsection (3) does not prevent a direction under subsection (1) from relating to a particular matter to be dealt with in the data standards. However, the direction must not direct the Registrar how to apply the data standards in a particular case.
(5) The Registrar must comply with a direction under subsection (1).
130ZX Delegation
(1) The Registrar may, in writing, delegate all or any of the Registrar’s functions or powers under this Part (other than the power to make a legislative instrument) to:
(a) any person to whom the Registrar may delegate any of the Registrar’s other functions, as a kind of body or person mentioned in the definition of eligible Registrar appointee in section 4, under a law of the Commonwealth; or
(b) any person of a kind prescribed by the regulations.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) If a power (other than a power to make a legislative instrument) is delegated to the Registrar under subsection 137(2A), the Registrar may, in writing, subdelegate the power to a person mentioned in paragraph (1)(a) or (b) of this section.
(3) 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
(4) In exercising powers or performing functions delegated or subdelegated by the Registrar under this section, the delegate or subdelegate must comply with any directions of the Registrar.
130ZY Report to the Parliament
(1) The Registrar must give the Treasurer, for presentation to the Parliament, a report for each financial year that:
(a) is on the operation of this Part during the financial year; and
(b) includes statistics derived by the Registrar from information in the Register.
(2) The statistics in the report must not identify, or be reasonably capable of being used to identify, a person.
(3) The Registrar must give the report to the Treasurer as soon as practicable after 30 June in the financial year.
Note: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about periodic reports.
130ZZ Data standards
(1) The Registrar may, by legislative instrument, determine data standards on matters relating to the performance of the Registrar’s functions and the exercise of the Registrar’s powers.
(2) Without limiting subsection (1), the data standards may provide for any of the following:
(a) the manner and form in which register notices must be given to the Registrar (including by requiring register notices to be given by electronic communication);
(b) information or documents that must accompany a register notice;
(c) how information held by the Registrar is to be authenticated, verified or validated;
(d) how information held by the Registrar is to be stored;
(e) correcting or updating information held by the Registrar;
(f) making available to a person:
(i) information included on the Register as a result of a register notice given to the Registrar by the person; and
(ii) information about a registered circumstance that relates to a person, including about whether such a registered circumstance exists;
(g) making information mentioned in paragraph (f) available to the executor or administrator of the estate of a person who has died, or to the liquidator of a person that is or was a corporation and is being or has been wound up;
(h) the manner and form of communication between the Registrar and persons who give information to the Registrar or seek to access information held by the Registrar;
(i) integrating or linking information held by the Registrar;
(j) combining register notices under multiple provisions into a single register notice.
9 Subsection 133(1)
Omit “relating to matters that are relevant to the exercise by the Treasurer of his or her powers under this Act.”, substitute:
relating to:
(a) matters that are relevant to the exercise by the Treasurer of the Treasurer’s powers under this Act; or
(b) information that is contained in the Register, or may be added to the Register; or
(c) circumstances in which a person is required to give a notice to the Registrar under Part 7A.
10 At the end of section 135
Add:
(4) However, this section does not apply to register notices.
Note: The manner of giving register notices is provided for by data standards made under section 130ZZ.
11 Subsection 137(1)
Omit “or 110”, substitute “, 110, 130R, 130ZW or regulations made for the purposes of paragraph 130Z(2)(d)”.
12 Subsection 137(2)
Omit “or 110 (exemption from stamp duty and other State or Territory taxes and fees)”, substitute “, 110 (exemption from stamp duty and other State or Territory taxes and fees) or regulations made for the purposes of paragraph 130Z(2)(d) (extension of time to give register notice)”.
13 After subsection 137(2)
Insert:
(2A) The Treasurer may delegate the Treasurer’s powers under the following provisions to the Registrar:
(a) regulations made for the purposes of section 130Z (including the power to make an instrument under regulations made for the purposes of paragraph 130Z(2)(d));
(b) an instrument made under regulations made for the purposes of paragraph 130Z(2)(d));
(c) paragraph 133(1)(b) or (c) (power to require information or documents);
(d) section 135A (service of notices and other documents) in relation to a notice under paragraph 133(1)(b) or (c).
Part 2—Repeals
Register of Foreign Ownership of Water or Agricultural Land Act 2015
14 The whole of the Act
Repeal the Act.
Part 3—Amendments consequential on repeal
Foreign Acquisitions and Takeovers Act 1975
15 Paragraph 101A(3)(b)
Omit “2001;”, substitute “2001.”.
16 Paragraph 101A(3)(c)
Repeal the paragraph.
17 Paragraph 101B(2)(b)
Omit “2001;”, substitute “2001.”.
18 Paragraph 101B(2)(c)
Repeal the paragraph.
Part 4—Transitional provisions
19 Definitions
In this Part:
Act means the Foreign Acquisitions and Takeovers Act 1975.
agricultural land has the meaning given by the old Register Act.
agricultural land interest means:
(a) a freehold interest in agricultural land; or
(b) a right to occupy agricultural land under a lease or licence.
freehold interest has the meaning given by the old Register Act.
hold:
(a) in relation to an agricultural land interest, has a meaning affected by section 6 of the old Register Act; and
(b) in relation to a registrable water entitlement or a contractual water right, has a meaning affected by section 6A of the old Register Act.
lease includes a sublease.
old Register Act means the Register of Foreign Ownership of Water or Agricultural Land Act 2015 as in force before its repeal by Part 2 of this Schedule.
relevant water interest means:
(a) a registrable water entitlement (within the meaning of the old Register Act); or
(b) a contractual water right (within the meaning of that Act).
20 Transitional registered interest—interest in agricultural land
(1) This item applies to a person if:
(a) at any time before the Register commencement day, any of the following was given to the Commissioner of Taxation by or on behalf of a person:
(i) a notice under section 19 (holdings of agricultural land as at 1 July 2015) of the old Register Act that related to a particular agricultural land interest;
(ii) a notice under section 20 (changes of foreign persons’ holdings of agricultural land) of that Act of an event described in section 21, 23 or 25 of that Act that related to a particular agricultural land interest; and
(b) the person did not, at any time before the Register commencement day, give the Commissioner of Taxation a notice under section 20 of that Act of an event described in section 22, 24 or 26 of that Act in relation to the agricultural land interest.
Registered circumstance
(2) If, at the start of the Register commencement day, the person:
(a) is a foreign person; and
(b) holds the agricultural land interest;
then:
(c) a registered circumstance under section 130ZA of the Act is taken to exist in relation to the person (despite subsection 130ZA(5) of the Act); and
(d) to avoid doubt, the registered circumstance may cease in accordance with the Act as if it were a registered circumstance under that section of the Act that exists because the person acquired the agricultural land interest.
Notice that person is no longer a foreign person, or no longer holds interest
(3) If, at the start of the Register commencement day, the person:
(a) is not a foreign person; or
(b) does not hold the agricultural land interest;
then:
(c) the person must give a notice to the Registrar; and
(d) the Act applies to that notice as if it were a register notice; and
(e) if paragraph (a) applies—the registrable event day for the register notice is the Register commencement day; and
(f) if paragraph (b) applies, and paragraph (a) does not apply—the registrable event day for the register notice is the later of:
(i) the Register commencement day; and
(ii) the day the person becomes aware, or ought reasonably to have become aware, that the person does not hold the agricultural land interest.
21 Transitional—interest in water
(1) This item applies to a person if:
(a) at any time before the Register commencement day, any of the following was given to the Commissioner of Taxation by or on behalf of a person:
(i) a notice under section 30H (holdings of water entitlements or contractual water rights as on 30 November 2017) of the old Register Act that related to a particular relevant water interest;
(ii) a notice under section 30K (changes of foreign persons’ holdings of water entitlements or contractual water rights) of that Act of an event described in section 30L or 30N of that Act that related to a particular relevant water interest; and
(b) the person did not, at any time before the Register commencement day, give the Commissioner of Taxation a notice under section 30J or 30K of that Act of an event described in section 30M or 30P of that Act in relation to the relevant water interest.
Registered circumstance
(2) If, at the start of the Register commencement day, the person:
(a) is a foreign person; and
(b) holds the relevant water interest;
then:
(c) a registered circumstance under section 130ZE of the Act is taken to exist in relation to the person (despite subsection 130ZE(5) of the Act); and
(d) to avoid doubt, the registered circumstance may cease in accordance with the Act as if it were a registered circumstance under that section of the Act that exists because the person acquired the relevant water interest.
Notice that person is no longer a foreign person, or no longer holds interest
(3) If, at the start of the Register commencement day, the person:
(a) is not a foreign person; or
(b) does not hold the relevant water interest;
then:
(c) the person must give a notice to the Registrar; and
(d) the Act applies to that notice as if it were a register notice; and
(e) if paragraph (a) applies—the registrable event day for the register notice is the Register commencement day; and
(f) if paragraph (b) applies, and paragraph (a) does not apply—the registrable event day for the register notice is the later of:
(i) the Register commencement day; and
(ii) the day the person becomes aware, or ought reasonably to have become aware, that the person does not hold the relevant water interest.
22 Transitional—interest in agricultural land not previously notified to the Commissioner of Taxation
(1) This item applies to a person if:
(a) at the start of the Register commencement day, the person:
(i) is a foreign person; and
(ii) holds an agricultural land interest; and
(b) the person:
(i) was required to give a notice to the Commissioner of Taxation in relation to the agricultural land interest under section 19 of the old Register Act; or
(ii) was required to give a notice to the Commissioner of Taxation under section 20 of that Act of an event described in section 21, 23 or 25 of that Act in relation to the agricultural land interest; or
(iii) would have been required to give a notice as mentioned in subparagraph (ii) of this paragraph if the 30‑day period mentioned in section 20 of that Act had passed before the Register commencement day; and
(c) the notice was not given before the Register commencement day.
(2) The person must give a register notice to the Registrar in relation to the interest under section 130ZA of the Act.
(3) Despite subsection 130ZA(4) of the Act, the registrable event day for the notice is the Register commencement day.
23 Transitional—interest in water not previously notified to the Commissioner of Taxation
(1) This item applies to a person if:
(a) at the start of the Register commencement day, the person:
(i) is a foreign person; and
(ii) holds a relevant water interest; and
(b) the person:
(i) was required to give a notice to the Commissioner of Taxation in relation to the relevant water interest under section 30H of the old Register Act; or
(ii) was required to give a notice to the Commissioner of Taxation under section 30K of that Act of an event described in section 30L or 30N of that Act in relation to the relevant water interest; or
(iii) would have been required to give a notice as mentioned in subparagraph (ii) of this paragraph if the 30‑day period mentioned in section 30K of that Act had passed before the Register commencement day; and
(c) the notice was not given before the Register commencement day.
(2) The person must give a register notice to the Registrar under section 130ZE of the Act.
(3) Despite subsection 130ZE(4) of the Act, the registrable event day for the notice is the Register commencement day.
24 Transitional rules
(1) The Treasurer may, by legislative instrument, make rules:
(a) providing for information obtained in accordance with the Act, or contained in the Register of Foreign Ownership of Agricultural Land or Register of Foreign Ownership of Water Entitlements, before the Register commencement day to be included in the Register; and
(b) requiring the Treasurer, the Secretary or the Commissioner of Taxation to cause such information to be given to the Registrar; and
(c) providing for a registered circumstance to be taken to exist for the purposes of that Act in relation to a foreign person in circumstances (relating to transitional matters) specified in the rules; and
(d) providing for the circumstances in which such registered circumstances cease; and
(e) requiring the Registrar, in cases specified in the rules, to give a written notice to a person to whom a registered circumstance arising under the rules relates; and
(f) prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the repeal of the old Register Act.
(2) Rules under subitem (1) may only be made before the day 12 months after the Register commencement day (but may continue to apply on and after that day, and may be revoked by the Treasurer, by legislative instrument, before, on or after that day).
(3) A disclosure of information under rules made for the purposes of paragraph (1)(b) of this item is taken to be authorised by Part 7 of the Act.
(4) A registered circumstance provided for by a rule made for the purposes of paragraph (1)(c) must begin to apply:
(a) on or after the later of:
(i) the commencement of the rule; and
(ii) the Register commencement day; and
(b) no later than 12 months after the Register commencement day.
(5) To avoid doubt, the inclusion of information in the Register under the rules does not result in there being a registered circumstance in relation to a person, other than as provided for by:
(a) another provision of this Part; or
(b) rules made for the purposes of paragraph (1)(c) of this item.
(6) Section 135A (service of notices and other documents on persons who cannot be found, or who are not in Australia) of the Act applies to a notice under rules made for the purposes of paragraph (1)(e) of this item in the same way as it applies to a notice under the Act, except that a reference in that section to the Secretary, the Treasurer or the Commissioner of Taxation includes a reference to the Registrar.
(7) To avoid doubt, rules made under subitem (1) 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 an Act.
25 Final report under section 34 of the old Register Act
Despite the repeal of the old Register Act by Part 2 of this Schedule, the Commissioner of Taxation must give the Minister, for presentation to the Parliament, a report under section 34 of that Act as soon as practicable after the commencement of Part 2 of this Schedule.
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Endnote 2—Abbreviation key
| ad = added or inserted | o = order(s) |
| am = amended | Ord = Ordinance |
| amdt = amendment | orig = original |
| c = clause(s) | par = paragraph(s)/subparagraph(s) |
| C[x] = Compilation No. x | /sub‑subparagraph(s) |
| Ch = Chapter(s) | pres = present |
| def = definition(s) | prev = previous |
| Dict = Dictionary | (prev…) = previously |
| disallowed = disallowed by Parliament | Pt = Part(s) |
| Div = Division(s) | r = regulation(s)/rule(s) |
| ed = editorial change | reloc = relocated |
| exp = expires/expired or ceases/ceased to have | renum = renumbered |
| €effect | rep = repealed |
| F = Federal Register of Legislation | rs = repealed and substituted |
| gaz = gazette | s = section(s)/subsection(s) |
| LA = Legislation Act 2003 | Sch = Schedule(s) |
| LIA = Legislative Instruments Act 2003 | Sdiv = Subdivision(s) |
| (md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
| effect | SR = Statutory Rules |
| (md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
| cannot be given effect | SubPt = Subpart(s) |
| mod = modified/modification | underlining = whole or part not |
| No. = Number(s) | commenced or to be commenced |
Endnote 3—Legislation history
| Act | Number and year | Assent | Commencement | Application, saving and transitional provisions |
| Foreign Investment Reform (Protecting Australia’s National Security) Act 2020 | 114, 2020 | 10 Dec 2020 | Sch 1, Sch 2 (items 1–57) and Sch 3 (items 1–13, 19–25): 1 Jan 2021 (s 2(1) items 2, 3, 5,7) Sch 2 (items 58–62): 1 Sept 2021 (s 2(1) item 4) Sch 3 (items 14–18): awaiting commencement (s 2(1) item 6) Remainder: 10 Dec 2020 (s 2(1) item 1) |
Endnote 4—Amendment history
| Provision affected | How affected |
| s 2........................................ | ed C1 |
Endnote 5—Editorial changes
In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.
Subsection 2(1) (table item 4, column 2)
Kind of editorial change
Update to a reference of a law or a provision
Details of editorial change
This compilation was editorially changed to update a reference from the Federal Circuit and Family Court of Australia Act 2020 to the Federal Circuit and Family Court of Australia Act 2021 in column 2 of table item 4 of subsection 2(1).
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