Foreign Acquisitions and Takeovers (Treasury) Delegations 2020
made under the Foreign Acquisitions and Takeovers Act 1975
Compilation No. 04
Compilation date: 3 September 2022
Includes amendments up to: Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 2022
Prepared by The Treasury
About this compilation
This compilation
This is a compilation of the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020 that shows the text of the law as amended and in force on 03 September 2022 (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 (www.legislation.gov.au). 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.
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If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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
Part 1—Preliminary
1 Name
3 Authority
4 Definitions
Part 2—Delegations
5 Delegations—general
6 Delegations—Regulatory Powers Act
Schedule 1—Delegations
Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Part 1—Preliminary
1 Name
This instrument is the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020.
3 Authority
This instrument is made under the Foreign Acquisitions and Takeovers Act 1975.
4 Definitions
Note: Expressions have the same meaning in this instrument as in the Foreign Acquisitions and Takeovers Act 1975 as in force from time to time—see paragraph 13(1)(b) of the Legislation Act 2003.
In this instrument:
APS employee means an APS employee who has been allocated an APS Level 4, APS Level 5 or APS Level 6 classification.
EL1 employee means an APS employee who has been allocated an Executive Level 1 classification.
EL2 employee means an APS employee who has been allocated an Executive Level 2 classification.
functions or powers means the functions or powers of the Treasurer under the provisions of the Act or the Regulation specified in the table in Schedule 1.
internal reorganisation has the same meaning as in the Foreign Acquisitions and Takeovers Fees Imposition Regulations 2020.
land entity has the same meaning as in the Regulation.
mining, production or exploration entity has the same meaning as in the Regulation.
tenement has the same meaning as in the Regulation.
the Act means the Foreign Acquisitions and Takeovers Act 1975.
the Regulation means the Foreign Acquisitions and Takeovers Regulation 2015
Part 2—Delegations
5 Delegations—general
(1) Under section 137 of the Act, each item of the table in Schedule 1:
(a) specifies a function or power that is delegated to the person or persons referred to in that item in the table (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 specified); and
(b) sets out any limitation on the delegation covered in that item in the table; and
(c) sets out any direction the delegate must comply with in exercising powers, or performing functions delegated in that item in the table.
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.
Schedule 1—Delegations
Note: See section 5.
Item | Function or power | Description of the function or power | Delegates | Limitations | Directions |
1 | section 57 of the Act | exemption certificates for new dwellings | (a) Secretary (b) SES employee | none | none |
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 |
3 | section 59 of the Act | exemption certificates for established dwellings | (a) Secretary (b) SES employee | none | none |
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 | 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 |
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 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 | none | 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 | 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 | 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 |
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 |
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 |
13 | section 78 of the Act | anti‑avoidance | (a) Secretary (b) SES employee | none | none |
14 | section 79 of the Act | Treasurer may make order that persons are taken to be associates of each other for specified purposes | (a) Secretary (b) SES employee | none | none |
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 |
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 |
15 | section 105 of the Act | Treasurer’s declaration relating to charge | (a) Secretary (b) SES employee | none | none |
16 | section 106 of the Act | Treasurer has power to do or authorise the doing of anything necessary or convenient to obtain the registration of a charge on a land register | (a) Secretary (b) SES employee | none | none |
17 | section 107 of the Act | vesting of interest in land | (a) Secretary (b) SES employee | none | none |
18 | section 109 of the Act | disposing of interests in land | (a) Secretary (b) SES employee | none | none |
19 | section 110 of the Act | exemption from stamp duty and other State or Territory taxes and fees | (a) Secretary (b) SES employee | none | none |
20 | subsection 113(5) of the Act | a fee payable under this Act that does not relate to an application made or a notice given by the person may be recovered by the Treasurer, on behalf of the Commonwealth, as a debt due to the Commonwealth in a court of competent jurisdiction | (a) Secretary (b) SES employee | none | none |
21 | section 115 of the Act | waiver and remission of fees | (a) Secretary (b) SES employee (c) EL2 employee (d) EL1 employee | none | none |
22 | paragraph 119(1)(c) of the Act | Treasurer notifies the person that the person does not need to make or keep the record | (a) Secretary (b) SES employee | none | none |
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 |
23 | section 127 of the Act | the Treasurer is satisfied that it is not contrary to the national interest for a person who obtains protected information to disclose the information to a court or tribunal, or in accordance with an order of a court or tribunal | (a) Secretary (b) SES employee | none | none |
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 |
24 | section 132 of the Act | powers of courts to enforce Treasurer’s orders | (a) Secretary (b) SES employee | none | none |
25 | section 133 of the Act | Treasurer may require information | (a) Secretary (b) SES employee (c) EL2 employee | none | none |
26 | section 138 of the Act | Treasurer may request in writing that the Commissioner of Taxation exercises certain powers | (a) Secretary (b) SES employee | none | none |
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 |
Note: The description of the function or power in the table are to assist readers only. They are not intended to affect the interpretation nor limit the function or power referred to in the table.
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.
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
| o = order(s) |
ad = added or inserted | Ord = Ordinance |
am = amended | orig = original |
amdt = amendment | par = paragraph(s)/subparagraph(s) |
c = clause(s) | /sub‑subparagraph(s) |
C[x] = Compilation No. x | pres = present |
Ch = Chapter(s) | prev = previous |
def = definition(s) | (prev…) = previously |
Dict = Dictionary | Pt = Part(s) |
disallowed = disallowed by Parliament | r = regulation(s)/rule(s) |
Div = Division(s) |
|
exp = expires/expired or ceases/ceased to have | reloc = relocated |
effect | renum = renumbered |
F = Federal Register of Legislation | rep = repealed |
gaz = gazette | rs = repealed and substituted |
LA = Legislation Act 2003 | s = section(s)/subsection(s) |
LIA = Legislative Instruments Act 2003 | Sch = Schedule(s) |
(md) = misdescribed amendment can be given | Sdiv = Subdivision(s) |
effect | SLI = Select Legislative Instrument |
(md not incorp) = misdescribed amendment | SR = Statutory Rules |
cannot be given effect | Sub‑Ch = Sub‑Chapter(s) |
mod = modified/modification | SubPt = Subpart(s) |
No. = Number(s) | underlining = whole or part not |
| commenced or to be commenced |
Endnote 3—Legislation history
Name | Registration | Commencement | Application, saving and transitional provisions |
Foreign Acquisitions and Takeovers (Treasury) Delegations 2020 | 16 April 2020 (F2020N00049) | 17 April 2020 | — |
Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations 2020 | 14 July 2020 (F2020N00081) | 15 July 2020 | — |
Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations (No. 2) 2020 | 21 December 2020 (F2020N00168) | 22 December 2020 | — |
Foreign Acquisitions and Takeovers Amendment Delegations (No. 1) 2022 | 07 March 2022 (F2022N00045) | 08 March 2022 | — |
Foreign Acquisitions and Takeovers Amendment Delegations (No. 2) 2022 | 02 September 2022 (F2022N00195) | 03 September 2022 | — |
Endnote 4—Amendment history
Provision affected | How affected |
section 2 section 4 section 5 section 6 Part 3 | rep s48D LA am F2020N00168; am F2022N00045 am F2020N00168 ad F2020N00168 rep s48C LA |
Schedule 1 |
|
table item 2 table item 4 table items 5 table item 5A table item 5B table item 5C table item 6 table items 6A and 6B | rs F2022N00045 am F2020N00168; rep F2022N00045 rs F2020N00168 ad F2020N00168 ad F2020N00168; rs F2022N00045 ad F2020N00168 am F2020N00168; rs F2022N00045 ad F2020N00081, rs F2020N00168; rs F2022N00045 |
table item 7 table item 8 | rep F2020N00168 am F2020N00081, rs F2020N00168; rs F2022N00045 |
table item 8A table item 9 table item 10 table item 11
table item 11A table item 12 table item 12A table item 14A table items 14AA to 14AH table items 14B to 14H table item 21 table item 22A table items 23A to 23C table item 23D table items 27 and 28 table items 29 and 30 | ad F2022N00045; rs F2022N00195 rs F2020N00168; rs F2022N00045 rs F2022N00045 am F2020N00081, rs F2020N00168; rs F2022N00045; rs F2022N00195 ad F2020N00168; rs F2022N00045 rs F2020N00168; rep F2022N00045 ad F2020N00168 ad F2020N00168; rep F2022N00045 ad F2022N00045 ad F2020N00168 rs F2022N00045 ad F2020N00168 ad F2020N00168 ad F2020N00168; rep F2022N00045 rs F2022N00045 ad F2020N00168; rs F2022N00045 |