COMMONWEALTH OF AUSTRALIA
Foreign Acquisitions and Takeovers Act 1975
ORDER UNDER SUBSECTION 69(2)
WHEREAS --
(A) David Newton acquired an interest in Australian land situated at
4 Terrara Court, Ocean Shores, NSW 2483 (the land) in 2001;
(B) I am satisfied that David Newton’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 David Newton acquired an interest in the land) on the following basis:
- David Newton 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, Antonio Marvello, Acting 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 David Newton 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 5/4/2017
Antonio Marvello
Acting Assistant Commissioner, Australian Taxation Office
Overview
The Foreign Acquisitions and Takeovers Act 1975 (FATA) was enacted by the Parliament of Australia to address issues related to foreign acquisitions and takeovers that could be contrary to the national interest. The Act provides the Treasurer with the authority to intervene in transactions that might threaten Australia's security or economic interests. In 2015, amendments were introduced via the Foreign Acquisitions and Takeovers Legislation Amendment Act 2015, further refining the criteria for what constitutes a significant action under the FATA and enhancing the powers available to the Treasurer to address acquisitions that are deemed contrary to national interests. This legislative framework is designed to ensure that foreign entities do not gain control over critical Australian assets without proper scrutiny. In the case highlighted, the Acting Assistant Commissioner of the Australian Taxation Office has exercised the powers conferred by the FATA to direct David Newton to dispose of his interest in Australian land within a specified timeframe, given that the acquisition was found to be contrary to the national interest.
Scope and Application
The Foreign Acquisitions and Takeovers Act 1975 (FATA) is a Commonwealth Act that applies to transactions involving the acquisition of Australian land, businesses, and interests in Australian entities by foreign persons. The Act is designed to safeguard Australia's national security, foreign policy, and economic interests by preventing or controlling acquisitions that could be contrary to the national interest. The scope of the FATA extends to all foreign persons, including individuals, companies, and other entities, when they acquire interests in Australian land, businesses, or entities. The Act's jurisdictional reach is national, applying across all states and territories of Australia. The Act also empowers the Treasurer to make orders under various subsections, including the power to direct the disposal of interests in Australian land if deemed contrary to the national interest, as illustrated in the provided notifiable instrument. This specific instrument relates to the disposal of an interest in Australian land by David Newton, a foreign person, who acquired an interest in land at 4 Terrara Court, Ocean Shores, NSW 2483, before 1 December 2015. The order mandates that David Newton dispose of his interest in the land within three months to one or more persons who are not his associates. The order is effective from 30 days after its registration on the Federal Register of Legislation.
Key Provisions
The Foreign Acquisitions and Takeovers Act 1975 (FATA) governs foreign acquisitions of Australian assets, and section 21A(4) allows the Treasurer to make an order requiring a disposal of an interest in Australian land if certain conditions are met. In this case, section 69(2) of the Act is invoked to direct David Newton to dispose of his interest in the land at 4 Terrara Court, Ocean Shores, NSW, within a specified timeframe. This order is made based on the finding that David Newton’s acquisition of the interest was a significant action taken before 1 December 2015, and that it is contrary to the national interest (sections 43 and 6(1) of the FATA).
The order imposes specific obligations on David Newton, requiring him to divest his interest in the land to persons who are not his associates. This means he must find buyers who are independent of him, ensuring that the transaction does not perpetuate any influence or control he might have over the asset. The disposal must be completed by midnight (Canberra time) three months from the commencement date of the order, which is 30 days after the order is registered on the Federal Register of Legislation.
Failure to comply with the order can lead to significant legal consequences. Under the FATA, non-compliance is considered an offence. If David Newton does not dispose of his interest in the land as directed, he may face penalties, including fines of up to $10,000 for each day that the order is not complied with. Additionally, the court may impose further penalties as deemed appropriate, highlighting the seriousness of disregarding the Treasurer’s order. The legislative framework thus ensures that such acquisitions are closely monitored and regulated to protect Australia’s national interests.