Foreign Acquisitions and Takeovers Amendment Delegations (No. 1) 2022

Administered by Department of the Treasury

Legislation au F2022N00045 Not in force Notifiable Instrument

Legislation content

 

Foreign Acquisitions and Takeovers Amendment Delegations (No. 1) 2022

I, Josh Frydenberg, Treasurer, make the following delegations.

Dated  2 March 2022

 

Josh Frydenberg

Treasurer

 

 

 

Contents

1  Name 

2  Commencement

3  Authority

4  Schedules

Schedule 1—Amendments

Part 1—Main amendments

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

Foreign Acquisitions and Takeovers (Commissioner of Taxation) Delegations 2020

Part 2—Amendments to Schedules

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

Foreign Acquisitions and Takeovers (Commissioner of Taxation) Delegations 2020

 

 

1  Name

  This instrument is the Foreign Acquisitions and Takeovers Amendment  Delegations (No. 1) 2022.

2  Commencement

 (1) Each provision of this instrument 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

8.  The whole of this instrument

The day after this instrument is registered.

 

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

  This instrument is made under the Foreign Acquisitions and Takeovers Act 1975.

4  Schedules

  Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

 

Part 1—Main amendments

 

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

1  Section 4 (definition of internal reorganisation)

Repeal the definition, substitute:

internal reorganisation has the same meaning as in the Foreign Acquisitions and Takeovers Fees Imposition Regulations 2020.

Foreign Acquisitions and Takeovers (Commissioner of Taxation) Delegations 2020

2  Section 4 (definition of internal reorganisation)

Repeal the definition, substitute:

internal reorganisation has the same meaning as in the Foreign Acquisitions and Takeovers Fees Imposition Regulations 2020.

 

Part 2—Amendments to Schedules

 

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

3  Schedule 1 (table item 2)

Repeal the item, substitute:

 

2

section 58 of the Act

exemption certificates for foreign persons

(a) Secretary

(b) SES employee

none

where the application for the exemption certificate specifies that the consideration for the acquisitions will be greater than $200 million, the delegate must consult with the Treasurer or the Treasurer’s office about whether the Treasurer would prefer to be the decision-maker

 

4  Schedule 1 (table item 4)

Repeal the item

5  Schedule 1 (table item 5B)

Repeal the item, substitute:

 

5B

section 62A of the Act

variation or revocation of exemption certificates where false or misleading information or documents given

(a) Secretary

(b) SES employee

none

the delegate must consult with the Treasurer or the Treasurer’s office about whether the Treasurer would prefer to be the decision-maker before the delegate does any of the following:

(a) gives notice that the delegate is considering varying or revoking a certificate;

(b) varies or revokes a certificate

 

6  Schedule 1 (table items 6, 6A, 6B, 8, 9, 10, 11 and 11A)

Repeal the items, substitute:

 

6

section 67 of the Act

order prohibiting proposed actions

(a) Secretary

(b) SES employee

(c) EL2 employee

the delegate may only exercise the function or power in relation to an action that is any one of the following:

(a) an action to acquire an interest in agricultural land, an agricultural land corporation, an agricultural land trust or a corporate trustee of an agricultural land trust, and the consideration for the interest is not more than $15 million;

(b) an action to acquire an interest in Australian land (other than agricultural land) or a land entity (other than an agricultural land corporation, an agricultural land trust or a corporate trustee of an agricultural land trust);

(c) an action that constitutes an internal reorganisation;

(d) an action to acquire an interest in assets of an Australian business;

(e) an action to acquire an interest in securities in an entity or to issue securities in an entity;

(f) an action taken by a person who has a business of underwriting securities and the person proposes to or has acquired the interests in securities for the purposes of, or in the course of, the person’s business of underwriting securities;

(g) an action to start an Australian business;

(h) an action to enter into or terminate a significant agreement with an Australian business;

(i) an action by a foreign government investor to acquire a direct interest in an Australian entity or Australian business, not already covered by subparagraphs (a) to (h);

(j) an action to start a national security business;

(k) an action to acquire a direct interest in a national security business or an entity that carries on a national security business

the delegate must consult with the Treasurer or the Treasurer’s office about whether the Treasurer would prefer to be the decision-maker in relation to any of the following actions:

(a) an action referred to in paragraph (b) of this item in the column headed “Limitations” where the consideration for the interest is more than $500 million;

(b) an action referred to in paragraph (d) of this item in the column headed “Limitations” where the consideration for the interest is more than $100 million;

(c) an action referred to in paragraph (e) of this item in the column headed “Limitations” where the consideration for the interest, or value of the securities to be issued (as appropriate), is more than $100 million;

(d) an action referred to in paragraph (h) of this item in the column headed “Limitations” where the consideration to enter into or terminate the agreement is more than $100 million;

(e) an action referred to in paragraph (i) of this item in the column headed “Limitations” where the consideration for the interest is more than $100 million;

(f) an action referred to in paragraph (k) of this item in the column headed “Limitations” where the consideration for the interest is more than $100 million

6A

section 68 of the Act

interim orders

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6

the same as for item 6

6B

section 69 of the Act

disposal orders

(a) Secretary

(b) SES employee

(c) EL2 employee

the same as for item 6

the same as for item 6

8

subsection 74(2) of the Act

no objection notification imposing conditions

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6

the same as for item 6

8A

subsection 74(4) of the Act

the Treasurer may vary a no objection notification if the Treasurer is satisfied that the variation is not contrary to the national interest or national security (as appropriate)

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6

the same as for item 6

9

section 75 of the Act

no objection notification not imposing conditions

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6

the same as for item 6

10

subsection 76(4) of the Act

longer period may be given for taking actions specified in a no objection notification

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

none

none

11

section 76(8) of the Act

the Treasurer may vary a no objection notification if the Treasurer is satisfied that the variation is not contrary to the national interest or national security (as appropriate)

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6

the same as for item 6

11A

section 76A of the Act

revocation of no objection notification

(a) Secretary

(b) SES employee

the same as for item 6

the same as for item 6

 

7  Schedule 1 (table item 12)

Repeal the item

8  Schedule 1 (table item 14A)

Repeal the item, substitute:

 

14AA

section 79D of the Act

order prohibiting proposed actions

(a) Secretary

(b) SES employee

none

none

14AB

section 79E of the Act

disposal orders

(a) Secretary

(b) SES employee

none

none

14AC

section 79G of the Act

varying or revoking conditions of no objection notification

(a) Secretary

(b) SES employee

none

none

14AD

section 79H of the Act

notice imposing conditions

(a) Secretary

(b) SES employee

none

none

14AE

section 79J of the Act

variation of notice imposing conditions

(a) Secretary

(b) SES employee

none

none

14AF

section 79L of the Act

variation or revocation of orders not contrary to the national interest or national security (as appropriate)

(a) Secretary

(b) SES employee

none

none

14AG

section 79P of the Act

variation with consent or without disadvantage

(a) Secretary

(b) SES employee

none

none

14AH

section 79Q of the Act

variation on application

(a) Secretary

(b) SES employee

none

none

 

9  Schedule 1 (table item 21)

Repeal the item, substitute:

 

21

section 115 of the Act

waiver and remission of fees

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

none

none

 

10  Schedule 1 (table item 23D)

Repeal the item

11  Schedule 1 (table items 27, 28, 29 and 30)

Repeal the items, substitute:

 

27

section 42 of the Regulation

exemption certificates for businesses or entities

(a) Secretary

(b) SES employee

none

where the application for the exemption certificate specifies that the consideration for the acquisitions will be greater than $200 million, the delegate must consult with the Treasurer or the Treasurer’s office about whether the Treasurer would prefer to be the decision-maker

28

section 43 of the Regulation

exemption certificates for certain interests in tenements and mining, production or exploration entities

(a) Secretary

(b) SES employee

none

where the application for the exemption certificate specifies that the consideration for the acquisitions will be greater than $200 million, the delegate must consult with the Treasurer or the Treasurer’s office about whether the Treasurer would prefer to be the decision-maker

29

section 43BA of the Regulation

exemption certificates for actions that would otherwise be notifiable national security actions

(a) Secretary

(b) SES employee

none

where the application for the exemption certificate specifies that the consideration for the action, or the kinds of actions, will be greater than $200 million, the delegate must consult with the Treasurer or the Treasurer’s office about whether the Treasurer would prefer to be the decision-maker

30

section 43BB of the Regulation

exemption certificates for actions that would otherwise be reviewable national security actions

(a) Secretary

(b) SES employee

none

where the application for the exemption certificate specifies that the consideration for the action, or the kinds of actions, will be greater than $200 million, the delegate must consult with the Treasurer or the Treasurer’s office about whether the Treasurer would prefer to be the decision-maker

 

Foreign Acquisitions and Takeovers (Commissioner of Taxation) Delegations 2020

12  Schedule 1 (table items 2, 3 and 4)

Repeal the item, substitute:

 

2

section 59 of the Act

exemption certificate for established dwellings

none

if the Commissioner subdelegates the function or power under subsection 137(4) of the Act to an employee in the Australian Taxation Office, the subdelegate is not to exercise the function or power unless the subdelegate is:

(a) an SES employee; or

(b) an EL2 employee; or

(c) an EL1 employee;

(d) an APS6 employee where all of the following are satisfied:

(i) the exercise of the function or power relates to residential land with a value of $4 million or less; and

(ii) the exercise of the function or power does not relate to a person acquiring an interest in an established dwelling for redevelopment

4

subsection 62(1) of the Act

the Treasurer may vary or revoke an exemption certificate if satisfied that the variation or revocation is not contrary to the national interest

the Commissioner may only exercise the function or power if both of the following are satisfied:

(a) the exemption certificate relates to actions to acquire interests in residential land; and

(b) the application for the exemption certificate was not made under section 58 of the Act (about exemption certificates for foreign persons)

if the Commissioner subdelegates the function or power under subsection 137(4) of the Act to an employee in the Australian Taxation Office, the subdelegate is not to exercise the function or power unless the subdelegate is:

(a) an SES employee; or

(b) an EL2 employee; or

(c) an EL1 employee;

(d) an APS6 employee where all of the following are satisfied:

(i) the exercise of the function or power relates to residential land with a value of $4 million or less; and

(ii) the exercise of the function or power does not relate to a person acquiring an interest in an established dwelling for redevelopment; and

(iii) the exercise of the function or power is to vary an exemption certificate

 

13  Schedule 1 (table item 14)

Repeal the item

Overview

The Foreign Acquisitions and Takeovers Amendment Delegations (No. 1) 2022 was enacted to amend the delegations of certain powers under the Foreign Acquisitions and Takeovers Act 1975. This instrument, made by the Treasurer, aims to ensure that decisions about certain foreign acquisitions and takeovers align with national security and economic interests. It specifically addresses the need for consultation with the Treasurer for decisions involving significant financial considerations and national security implications. The instrument is structured to refine the criteria and thresholds for when certain actions require consultation with the Treasurer, thereby enhancing the oversight and control mechanisms for foreign acquisitions and takeovers in Australia.

Scope and Application

The Foreign Acquisitions and Takeovers Amendment Delegations (No. 1) 2022 is a legislative instrument made under the Foreign Acquisitions and Takeovers Act 1975. It primarily concerns the delegation of certain powers and functions to various officers within the Australian government, with a focus on ensuring that certain acquisitions and takeovers are assessed for their potential impact on national security and the national interest. The Act applies to entities and persons involved in foreign acquisitions and takeovers within Australia, including those involving interests in Australian land, businesses, securities, and national security-related actions. The geographic reach of the Act is national, applying across all states and territories of Australia. The instrument introduces amendments to existing delegations, clarifying definitions and specifying the circumstances under which certain officers must consult with the Treasurer before exercising their delegated powers. Notably, the Act sets out specific considerations for acquisitions exceeding certain monetary thresholds, requiring consultation with the Treasurer for transactions over $200 million. Additionally, the Act outlines various conditions and limitations for the exercise of delegated powers, particularly concerning the acquisition of interests in agricultural land, securities, and national security businesses. The Act extends its application through subordinate instruments, such as regulations and further legislative amendments, which can refine and expand upon the delegations and thresholds specified within the primary legislation.

Key Provisions

The Foreign Acquisitions and Takeovers Amendment Delegations (No. 1) 2022, made under the Foreign Acquisitions and Takeovers Act 1975, introduces amendments to the delegations previously established by the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020 and the Foreign Acquisitions and Takeovers (Commissioner of Taxation) Delegations 2020. The instrument repeals and substitutes certain definitions and delegations, notably concerning the definition of "internal reorganisation" and the conditions under which specific actions may be taken or delegated. Under the Foreign Acquisitions and Takeovers Amendment Delegations (No. 1) 2022, the definition of "internal reorganisation" is aligned with the Foreign Acquisitions and Takeovers Fees Imposition Regulations 2020. The instrument also modifies the delegations related to exemption certificates for foreign persons, variation or revocation of exemption certificates, and actions that require consultation with the Treasurer. For instance, for exemption certificates where the consideration exceeds $200 million, the delegate must consult with the Treasurer before making a decision. Furthermore, the instrument revises the limitations on certain actions, such as acquisitions of interests in agricultural land or securities in an entity, and mandates consultation with the Treasurer for actions exceeding specific monetary thresholds. The obligations imposed by this legislation require those holding delegated powers to consult with the Treasurer for certain actions, particularly those exceeding specified monetary thresholds. Additionally, the instrument mandates specific eligibility criteria for subdelegating functions or powers within the Australian Taxation Office, ensuring that only certain authorised employees can exercise these powers. Breach of the provisions under this legislation may result in civil or criminal consequences. For instance, making a false or misleading statement in an application for an exemption certificate can lead to penalties. The specific penalties for such breaches are not detailed within this instrument but are likely to be outlined in the relevant primary legislation or associated regulations. The consequences for non-compliance could range from fines to more severe penalties, depending on the nature and severity of the breach.

Legal classification tags

Area of Law
Commercial Law
Instrument
Notifiable instrument
Concepts
Definitions & Interpretation
Delegation of Powers
Compliance Obligations
Consultation Requirements

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.