COMMONWEALTH OF AUSTRALIA
Foreign Acquisitions and Takeovers Act 1975
ORDER UNDER SUBSECTION 69(2)
WHEREAS --
(A) Ali Akbar Ahmadi Shad (Mr Ahmadi Shad) acquired an interest in Australian land situated at 20 Branton Road, Hoppers Crossing, Victoria (the land) in 2015;
(B) I am satisfied that Mr Ahmadi Shad’s acquisition of an interest in the land was a significant action that was taken before 1 December 2015 (see item 6(1) of Schedule 3 to the Foreign Acquisitions and Takeovers Legislation Amendment Act 2015 and also section 43 of the Foreign Acquisitions and Takeovers Act 1975 (FATA));
(C) I am satisfied that the result of that significant action is contrary to the national interest; and
(D) I am also satisfied that the Treasurer would have had the power to make an order under subsection 21A(4) of the FATA (as it was immediately after Mr Ahmadi Shad acquired an interest in the land) on the following basis:
- Mr Ahmadi Shad was a foreign person who acquired an interest in Australian urban land; and
- I am satisfied that the acquisition of that interest was contrary to the national interest.
NOW THEREFORE
I, ELIZABETH HARDCASTLE, Assistant Commissioner at the Australian Taxation Office, hereby make an order in accordance with item 7 of the table in subsection 69(2) of the FATA, directing Mr Ahmadi Shad to DISPOSE of his interest in the land, by midnight (Canberra time) 3 months from the date that this order commences, to one or more persons who are not his associates.
This order commences on the day that is 30 days after it is registered on the Federal Register of Legislation.
Dated 5th December 2016
Elizabeth Hardcastle
Assistant Commissioner, Australian Taxation Office
Overview
The Foreign Acquisitions and Takeovers Act 1975 (FATA) was enacted by the Australian Parliament to regulate and monitor foreign acquisitions of Australian businesses and assets, ensuring that such acquisitions do not compromise national security or the economic well-being of Australia. This Act was introduced to address the problem of foreign entities acquiring significant stakes in Australian businesses and assets without proper oversight, which could potentially pose a risk to the national interest. The policy objective of the FATA is to maintain a balance between facilitating foreign investment and protecting Australia's economic and security interests. In the context of the notifiable instrument referenced, the Act was used to address a specific instance where a foreign person, Mr Ahmadi Shad, acquired an interest in Australian land, an action deemed contrary to the national interest. The order mandates the disposal of this interest within a specified timeframe to mitigate any potential risks to Australia's interests.
Scope and Application
The Foreign Acquisitions and Takeovers Act 1975 (FATA) applies to foreign acquisitions of Australian land and businesses that are contrary to the national interest. This Act extends to any significant action taken by a foreign person or entity, encompassing acquisitions of interests in Australian land or businesses, and is applicable across the Commonwealth of Australia. The legislation is particularly relevant to entities or individuals who acquire interests in Australian urban land, as well as those involved in substantial business takeovers. The scope of the FATA is broad, covering both direct and indirect acquisitions and includes any conduct or transaction that may affect national security, foreign affairs, or the defence of Australia. The Act can be extended or restricted through subordinate instruments, which may provide further detail on the types of acquisitions that require notification or approval. In this particular case, the order under the FATA mandates that Mr. Ahmadi Shad, a foreign person who acquired an interest in Australian land, must dispose of that interest within three months, ensuring that it is transferred to non-associates. This order is intended to mitigate any perceived threats to the national interest arising from the acquisition.
Key Provisions
The Foreign Acquisitions and Takeovers Act 1975 (FATA) sets out the legal framework governing the acquisition of interests in Australian land by foreign persons, among other things. Section 21A(4) of the FATA, which is referenced in this order, empowers the Treasurer to make a disposal order if certain conditions are met, including that the acquisition is contrary to the national interest. Section 69(2) of the Act provides the mechanism for such orders, as detailed in this notifiable instrument.
Under this order (F2016N00036), Mr Ali Akbar Ahmadi Shad is required to dispose of his interest in the land located at 20 Branton Road, Hoppers Crossing, Victoria, within three months from the commencement of the order. The disposal must be to one or more persons who are not his associates. The order aims to address concerns that Mr Ahmadi Shad's acquisition of this interest in Australian land is contrary to the national interest. The order also stipulates that it commences 30 days after its registration on the Federal Register of Legislation, providing a clear timeline for compliance.
The obligations imposed by this order are clear and direct. Mr Ahmadi Shad must ensure that the disposal of his interest in the land is completed by the specified deadline. Additionally, he must comply with all other relevant requirements under the FATA, including any notification obligations. Failure to comply with the disposal order could result in serious consequences.
The potential consequences for non-compliance with this order are significant. The FATA provides for both civil and criminal penalties for breaches. Civil penalties can include substantial fines, with the maximum penalty for contravening a disposal order being 5,000 penalty units for an individual, as specified under section 138 of the Act. Furthermore, criminal penalties may also apply, with potential imprisonment for up to two years for each offence under section 139 of the FATA. These penalties underscore the seriousness of the obligations imposed by this order and the importance of compliance.