Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 2022
I, Jim Chalmers, Treasurer, make the following delegations.
Dated 31 August 2022
Dr Jim Chalmers
Treasurer
Contents
1 Name
2 Commencement
3 Authority
4 Schedules
Schedule 1—Amendments
Foreign Acquisitions and Takeovers (Treasury) Delegations 2020
1 Name
This instrument is the Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 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 |
1. 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Note: This table relates only to the provisions of this instrument as originally made.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Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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
Foreign Acquisitions and Takeovers (Treasury) Delegations 2020
1 Schedule 1 (table item 8A)
Repeal the item, substitute:
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 | none | none |
2 Schedule 1 (table item 11)
Repeal the item, substitute:
11 | subsection 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 | none | none |
Overview
The Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 2022, enacted by the Treasurer, Dr Jim Chalmers, amends the existing delegations under the Foreign Acquisitions and Takeovers Act 1975. This instrument was introduced to address the need for more flexible and responsive delegation of authority within the framework of the Act. It provides the Treasurer with the ability to vary no objection notifications concerning foreign acquisitions and takeovers, ensuring decisions can be made swiftly and effectively without undermining national security or the national interest. This amendment aims to streamline the process and enhance the efficiency of decision-making related to foreign acquisitions and takeovers. The instrument is made under the authority of the Foreign Acquisitions and Takeovers Act 1975 and commenced on the day after its registration.
Scope and Application
The Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 2022, made under the Foreign Acquisitions and Takeovers Act 1975, modifies the delegations set out in the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020. This instrument commenced on the day after its registration and amends the specified delegations to allow the Treasurer to vary no objection notifications if satisfied that the variation is not contrary to the national interest or national security. The changes affect the delegations concerning subsections 74(4) and 76(8) of the Act, which now allow for variations by the Treasurer, a Secretary, a Senior Executive Service (SES) employee, or an Executive Level 2 (EL2) employee, while Executive Level 1 (EL1) employees are excluded from this authority. This instrument applies across the Commonwealth of Australia, governing the conduct and transactions of entities and persons involved in foreign acquisitions and takeovers, subject to the conditions and limitations set out in the Act and any subordinate instruments.
Key Provisions
The Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 2022, made under the Foreign Acquisitions and Takeovers Act 1975, amends the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020. The instrument came into effect the day after its registration. Section 3 confirms that the instrument is authorised under the primary Act, while Section 4 indicates that each instrument specified in the Schedules is amended or repealed according to the applicable items in the relevant Schedules. The key amendments are found in Schedule 1, which modifies existing delegations related to the varying of no objection notifications under the Act.
The primary obligations imposed by this instrument concern the delegation of powers to certain officials within the Treasurer's office to vary no objection notifications issued under the Foreign Acquisitions and Takeovers Act 1975. Specifically, the instrument amends subsection 74(4) and subsection 76(8) of the Act, allowing the Secretary, Senior Executive Service (SES) employees, Executive Level 2 (EL2) employees, and Executive Level 1 (EL1) employees to vary a no objection notification if they are satisfied that the variation is not contrary to the national interest or national security. These delegations streamline the process by enabling authorised officials to act on behalf of the Treasurer in varying notifications, subject to the specified conditions.
There are no explicit provisions within the Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 2022 regarding offences, penalties, or consequences for breaches. However, any failure to comply with the requirements of the primary Act, the Foreign Acquisitions and Takeovers Act 1975, could result in penalties as outlined in that Act. The Act itself includes provisions for both civil and criminal penalties for various breaches, with maximum penalties varying according to the nature and severity of the offence. For instance, contravening certain notification or reporting requirements can result in significant fines, while more severe breaches, such as those affecting national security, can lead to imprisonment. It is important for authorised officials to adhere strictly to the conditions under which they can vary no objection notifications to avoid potential repercussions under the primary Act.