Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations (No. 2) 2020
I, Josh Frydenberg, Treasurer, make the following delegations.
Dated 17 December 2020
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
Part 2—Amendments to Schedules
Foreign Acquisitions and Takeovers (Treasury) Delegations 2020
1 Name
This instrument is the Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations (No. 2) 2020.
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 later of: (a) the day after this instrument is registered; and (b) 1 January 2020. |
|
Note: This table relates only to the provisions of this instrument as originally made.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Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 “APS5 or APS6 employee”)
Repeal the definition, substitute:
APS employee means an APS employee who has been allocated an APS Level 4, APS Level 5 or APS Level 6 classification.
2 section 5 (heading)
Repeal the heading, substitute:
5 Delegations—general
3 At the end of Part 2
Add:
6 Delegations—Regulatory Powers Act
(1) Under subsection 99(2A) of the Act, each of the person or persons specified in subsection (3) (being the persons for the time being holding, acting or performing the duties of the respective offices or positions in the Department of the Treasury that are so specified) are delegated the Treasurer’s powers and functions under Part 4 of the Regulatory Powers Act as an authorised applicant in relation to the civil penalty provisions of the Act.
Note: Part 4 of the Regulatory Powers Act is about civil penalty provisions.
(2) Under subsection 101F(2) of the Act, each of the person or persons specified in subsection (3) (being the persons for the time being holding, acting or performing the duties of the respective offices or positions in the Department of the Treasury that are so specified) are delegated the Treasurer’s powers and functions under Part 6 of the Regulatory Powers Act (as it applies in relation to the Act).
Note: Part 6 of the Regulatory Powers Act is about enforceable undertakings.
(3) All of the following persons are specified:
(a) the Secretary;
(b) an SES employee.
4 Schedule 1 (table item 4, column head “Delegates”)
Omit “APS5 or APS6 employee”, substitute “APS employee”.
Part 2—Amendments to Schedules
Foreign Acquisitions and Takeovers (Treasury) Delegations 2020
5 Schedule 1 (table items 5, 6, 6A, 6B, 7, 8 and 9)
Repeal the items, substitute:
5 | 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 | (a) Secretary (b) SES employee | none | none |
5A | subsection 62(1A) of the Act | the Treasurer may vary or revoke an exemption certificate if satisfied that the variation or revocation is not contrary to national security | (a) Secretary (b) SES employee | none | none |
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 | where the delegate is minded to either: (a) give a notice of consideration in relation to revoking or varying an exemption certificate; or (b) revoke or vary an exemption certificate; the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer |
5C | section 66A of the Act | national security review of action | (a) Secretary (b) SES employee | none | none |
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 one of the following: (a) an action to acquire an interest in a land entity, a corporate trustee of an Australian land trust, a corporate trustee of an agricultural land trust, or a tenement, and the value of that interest is not more than $100 million; (b) an action to acquire an interest in Australian land (other than an interest of a kind mentioned in paragraphs 12(1)(f) to (h) of the Act), and the value of that interest is not more than $15 million; or (c) an action that constitutes an internal reorganisation; (d) an action to acquire an interest in assets of an Australian business, and the value of the consideration to acquire that interest is not more than $100 million; (e) an action to acquire an interest in securities in an entity or to issue securities in an entity, and the value of the interest, or value of the securities to be issued (as appropriate), is not more than $100 million; (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, and the value of the consideration to enter into or terminate that agreement is not more than $100 million; (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), and the value of that interest is not more than $100 million | none |
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 | none |
6B | section 69 of the Act | disposal orders | (a) Secretary (b) SES employee (c) EL2 employee | the same as for item 6 | none |
8 | section 74 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, except at the end of the item add the following: (j) an action that is taken to be notified to the Treasurer on 1 January 2021 under either item 227 or 228 in Schedule 1 to the Foreign Investment Reform (Protecting Australia’s National Security) Act 2020 | none |
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 | none |
6 Schedule 1 (table items 11 and 12)
Repeal the items, 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 | an EL2 employee or EL1 employee delegate may only exercise the function or power if the no objection notification relates to one of the following: (a) an action to acquire an interest in a land entity, a corporate trustee of an Australian land trust, a corporate trustee of an agricultural land trust, or a tenement, and the value of that interest is not more than $100 million; (b) an action to acquire an interest in Australian land (other than an interest of a kind mentioned in paragraphs 12(1)(f) to (h) of the Act), and the value of that interest is not more than $15 million; or (c) an action that constitutes an internal reorganisation; (d) an action to acquire an interest in assets of an Australian business, and the value of the consideration to acquire that interest is not more than $100 million; (e) an action to acquire an interest in securities in an entity or to issue securities in an entity, and the value of the interest, or value of the securities to be issued (as appropriate), is not more than $100 million; (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, and the value of the consideration to enter into or terminate that agreement is not more than $100 million; (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), and the value of that interest is not more than $100 million | none |
11A | section 76A of the Act | revocation of no objection notification | (a) Secretary (b) SES employee | the delegate may only exercise the function or power if the no objection notification relates to one of the following: (a) an action to acquire an interest in a land entity, a corporate trustee of an Australian land trust, a corporate trustee of an agricultural land trust, or a tenement, and the value of that interest is not more than $100 million; (b) an action to acquire an interest in Australian land (other than an interest of a kind mentioned in paragraphs 12(1)(f) to (h) of the Act), and the value of that interest is not more than $15 million; or (c) an action that constitutes an internal reorganisation; (d) an action to acquire an interest in assets of an Australian business, and the value of the consideration to acquire that interest is not more than $100 million; (e) an action to acquire an interest in securities in an entity or to issue securities in an entity, and the value of the interest, or value of the securities to be issued (as appropriate), is not more than $100 million; (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, and the value of the consideration to enter into or terminate that agreement is not more than $100 million; (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), and the value of that interest is not more than $100 million | none |
12 | paragraph 77(8)(b) of the Act | specified persons may request the Treasurer extend the period for making orders or decisions | (a) Secretary (b) SES employee (c) EL2 employee (d) EL1 employee (e) APS employee | none | none |
12A | section 77A of the Act | Treasurer may extend decision period by up to 90 days | (a) Secretary (b) SES employee (c) EL2 employee (d) EL1 employee | none | none |
7 Schedule 1 (after table item 14)
Insert:
14A | 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 |
14B | section 79R of the Act | directions to persons contravening a provision of the Act | (a) Secretary (b) SES employee | none | none |
14C | subsection 79S(2) of the Act | decision that publishing a direction is not in the national interest | (a) Secretary (b) SES employee | none | none |
14D | section 79U of the Act | varying or revoking directions | (a) Secretary (b) SES employee | none | none |
14E | section 79V of the Act | interim directions to persons contravening a provision of the Act | (a) Secretary (b) SES employee (c) EL2 employee | none | none |
14F | section 79Y of the Act | varying or revoking interim directions | (a) Secretary (b) SES employee (c) EL2 employee | none | none |
14G | subsection 101(6) of the Act | infringement notices tiers | (a) Secretary (b) SES employee (c) EL2 employee | none | the delegate is not to exercise the function or power unless the delegate is also an infringement officer referred to in paragraph 100(2)(a) of the Act |
14H | subsection 101D(2) of the Act | decision that publishing an undertaking is not in the national interest | (a) Secretary (b) SES employee | none | none |
8 Schedule 1 (after table item 22)
Insert:
22A | section 123B of the Act | disclosures to foreign governments – Treasurer satisfied pre-conditions met or conditions needing to be imposed | (a) Secretary (b) SES employee | none | none |
9 Schedule 1 (after table item 23)
Insert:
23A | section 130D of the Act | Treasurer to lodge certain materials with the Tribunal | (a) Secretary (b) SES employee | none | none |
23B | subsection 130G(8) of the Act | national security certificates | (a) Secretary | none | none |
23C | subsection 130H(2) o the Act | public interest certificates | (a) Secretary | none | none |
23D | section 130ZW of the Act | directions to the Registrar | (a) Secretary | none | none |
10 Schedule 1 (at the end of the table)
Add:
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 delegate is minded to give an exemption certificate, the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer |
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 delegate is minded to give an exemption certificate, the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer |