Overview

The Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Indexation) Regulations 2021 were introduced to clarify the application of indexation to fees for the review of foreign investment applications under the Foreign Acquisitions and Takeovers Fees Imposition Act 2015. The regulations were made under the authority of the Assistant Treasurer, Minister for Housing and Minister for Homelessness, Social and Community Housing, and aim to ensure that fees do not decrease through the indexation calculation, specifically preventing the fees from resulting in an amount less than the base amount after indexation. These regulations, which commenced on the day after their registration on the Federal Register of Legislation, apply to fees that become payable on or after their commencement date, with the first indexation occurring on 1 July 2021. They were prepared without public consultation as they do not alter existing policy settings but instead clarify the indexation process. The regulations are compatible with human rights as they do not engage any of the applicable rights or freedoms.

Scope and Application

The Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Indexation) Regulations 2021, made under the Foreign Acquisitions and Takeovers Fees Imposition Act 2015, are designed to clarify the application of indexation to fees associated with foreign investment review processes. These Regulations apply to fees payable on or after their commencement, ensuring that indexation does not result in fees falling below their base amounts. They are part of a broader framework that imposes fees as taxes for reviewing foreign investment applications. The Regulations operate on a national level, impacting entities subject to the Act’s jurisdiction, including those proposing significant foreign investments in Australia. They do not specify exclusions but rather provide for the annual indexation of fees, starting from 1 July 2021, and ensuring fees do not decrease relative to the base amounts set out in the Act. The Regulations came into effect on the day after their registration on the Federal Register of Legislation and are a legislative instrument for the purposes of the Legislation Act 2003.

Key Provisions

The Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Indexation) Regulations 2021 (the Regulations) amend the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (the Act) to clarify the indexation process for fees payable under the Act. Section 1 of the Regulations sets the name and Section 2 outlines the commencement date, which is the day after the Regulations were registered on the Federal Register of Legislation. Section 3 confirms the authority under which the Regulations are made, namely the Act, while Section 4 specifies the Schedule of amendments. The primary operative sections of the Regulations are found in the Schedule. Item 1 of the Schedule amends subsection 59(4) of the Act to clarify that fees for foreign investment applications will not decrease through the indexation calculation. This ensures that fees are indexed for the first time on 1 July 2021 and every year thereafter, but that they do not result in an amount less than the base fee after applying indexation. Items 2 and 3 of the Schedule address application and transitional provisions, ensuring that the amendments apply to fees payable on or after the commencement of the Regulations, and making necessary changes to clarify existing transitional provisions. The Regulations impose specific obligations and requirements on parties subject to the Act. They require that fees for the review of foreign investment applications be indexed annually, starting from 1 July 2021, and that these fees do not fall below the base amount after indexation. This ensures a consistent and predictable fee structure for applicants and the Australian Government. The Regulations do not explicitly outline offences, penalties, or civil/criminal consequences for breach within their text. However, breaches of the Act or the Regulations may lead to enforcement actions under the general legislative framework governing administrative compliance and enforcement, including potential fines or other administrative penalties as prescribed by the relevant legislation. The specific consequences would depend on the nature and severity of the breach, and would be determined in accordance with applicable laws.