FOREIGN ACQUISITIONS AND TAKEOVERS LEGISLATION AMENDMENT BILL 2015

2013-2014-2015

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Foreign Acquisitions and Takeovers

Legislation Amendment Bill 2015

No. , 2015

(Treasury)

A Bill for an Act to amend the law relating to

foreign acquisitions and takeovers, and for related

purposes

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--Main amendments

Foreign Acquisitions and Takeovers Act 1975

Schedule 2--Amendments contingent on the Acts and

Instruments (Framework Reform) Act 2015

112

Foreign Acquisitions and Takeovers Act 1975

112

Schedule 3--Application and transitional provisions for

Schedules 1 and 2 and Fees Imposition Act

114

Schedule 4--Amendments of confidentiality provisions

122

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

122

Income Tax Assessment Act 1997

122

Taxation Administration Act 1953

122

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

A Bill for an Act to amend the law relating to

foreign acquisitions and takeovers, and for related

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Foreign Acquisitions and Takeovers

Legislation Amendment Act 2015.

2 Commencement

(1) Each provision of this Act 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.

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

1 December 2015.

1 December

2015

3. Schedule 2

Immediately after the commencement of

Schedule 1 to the Acts and Instruments

(Framework Reform) Act 2015.

4. Schedules 3

and 4

1 December 2015.

1 December

2015

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Schedule 1

--Main amendments

Foreign Acquisitions and Takeovers Act 1975

1 Title

After "and to the", insert "foreign acquisition and".

2 Part I (heading)

Repeal the heading, substitute:

Part 1--Preliminary

Division 1--Preliminary

3 Sections 3 to 17

Repeal the sections, substitute:

3 Simplified outline of this Act

This Act deals with certain actions to acquire interests in securities,

assets or Australian land, and actions taken in relation to entities

(being corporations and unit trusts) and businesses, that have a

connection to Australia. These actions are called significant

actions. For an action to be a significant action, the action must

result in a change in control involving a foreign person or be taken

by a foreign person.

If a person proposes to take or has taken a significant action, the

Treasurer has power to do one or more of the following:

(a)

decide that the Commonwealth has no objection to the

action;

(b)

impose conditions on the action;

(c)

prohibit the action;

(d)

require the action to be undone (for example, by

requiring the disposal of an interest that has been

acquired).

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Offences and civil penalties apply for failing to comply with:

(a)

an order made prohibiting an action, or requiring an

action to be undone; or

(b)

a condition imposed on an action.

Some significant actions (called notifiable actions) must also be

notified to the Treasurer before the actions can be taken. Offences

and civil penalties may apply if a notifiable action is taken without

a notice having been given. If a notice has been given stating that a

significant action is proposed to be taken, the action must not be

taken before the end of a specified period (generally of 40 days, or

an additional period of up to 90 days from the publication of an

interim order).

Fees are payable in relation to applications and orders made, and

notices and notifications given, under this Act.

A person must make and keep records for the purposes of this Act,

including in relation to significant actions and notifiable actions.

Information that is obtained for the purposes of this Act (called

protected information) may be disclosed only for certain purposes.

A person who obtains, uses or discloses protected information

other than as authorised by this Act may commit an offence.

Division 2--Definitions

Subdivision A--Dictionary of definitions

4 Dictionary of definitions

In this Act:

6 month period has the meaning given by subsection 113(3).

acquire an interest of a specified percentage in an entity has the

meaning given by section 20.

acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

aggregate interest of a specified percentage in an entity has the

meaning given by subsection 17(2).

aggregate substantial interest: 2 or more persons hold an

aggregate substantial interest in an entity or trust if:

(a) for an entity--the persons hold an aggregate interest of at

least 40% in the entity; or

(b) for a trust (including a unit trust)--the persons, together with

any one or more associates of any of them hold, in the

aggregate, beneficial interests in at least 40% of the income

or property of the trust.

Note:

See also sections 17 (meanings of interest and aggregate interest of a

specified percentage in an entity) and 18 (rules relating to determining

percentages of interests in entities).

agribusiness: an Australian entity or Australian business is an

agribusiness in the circumstances prescribed by the regulations.

agricultural land means land in Australia that is used, or that could

reasonably be used, for a primary production business.

Note:

The regulations may provide that land of a specified kind is not

agricultural land (see subsection 37(3)).

agricultural land corporation has the meaning prescribed by the

regulations.

agricultural land trust has the meaning prescribed by the

regulations.

asset includes an interest in an asset.

associate has the meaning given by section 6.

Australia, when used in a geographical sense, includes the external

Territories.

Australian business has the meaning given by section 8.

Australian corporation means a corporation formed in Australia.

Australian entity means an Australian corporation or an Australian

unit trust.

Australian land means agricultural land, commercial land,

residential land or a mining or production tenement.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Australian land corporation has the meaning prescribed by the

regulations.

Australian land trust has the meaning prescribed by the

regulations.

Australian subsidiary of a foreign entity means an Australian

entity that is a subsidiary of the foreign entity.

Note:

For the definition of subsidiary, see section 21.

Australian unit trust means a unit trust:

(a) the trustee of which holds relevant Australian assets; or

(b) the trustee of which carries on an Australian business; or

(d) in which one or more persons who are ordinarily resident in

Australia hold more than 50% of the beneficial interests in

the income or property of the unit trust; or

(e) that is listed for quotation in the official list of a stock

exchange in Australia.

change in control has the meaning given by section 54.

civil penalty provision has the same meaning as in the Regulatory

Powers Act.

commercial land means land in Australia or the seabed of the

offshore area, other than land:

(a) used wholly and exclusively for a primary production

business; or

(b) on which there is at least one dwelling (except commercial

residential premises); or

residential premises) that could reasonably be built is less

than the number prescribed by the regulations for the

purposes of subparagraph (a)(ii) of the definition of

residential land in this section.

commercial residential premises has the same meaning as in the A

New Tax System (Goods and Services Tax) Act 1999.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Commonwealth entity has the same meaning as in the Public

Governance, Performance and Accountability Act 2013.

Commonwealth, State or Territory body includes a Department of

State, or an authority or agency, of the Commonwealth, a State or a

Territory.

consideration has the meaning prescribed by the regulations.

constituent document of an entity means any rules or other

document constituting or establishing the entity or governing its

activities, and includes:

(a) for a corporation--the constitution of the corporation; and

(b) for a unit trust--the trust deed for the trust.

controls:

(a) the voting power--has the meaning given by section 23; and

(b) an entity or business--has the meaning given by

subsections 54(4) and (5).

debenture includes:

(a) debenture stock, bonds and notes; and

(b) any other document evidencing or acknowledging

indebtedness of an entity, whether or not constituting a

charge on the assets of the entity.

decision period has the meaning given by subsection 77(5).

determines the policy of a business of exploiting a mining or

production tenement has a meaning affected by section 24.

development means one or more multi-storey buildings if:

(a) the buildings will be, are being or have been built; and

(b) the buildings are or were under one development approval;

and

than townhouses) that the buildings contain or will contain is

at least the number prescribed by the regulations.

direct interest has the meaning prescribed by the regulations.

director includes any person occupying the position of director

(however described) of a corporation.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

engage in conduct includes fail or refuse to engage in conduct.

enters has a meaning affected by section 25.

entity means a corporation or a unit trust.

established dwelling means a dwelling (except commercial

residential premises) on residential land that is not a new dwelling.

exemption certificate means a certificate given under:

(a) section 57, 58 or 59; or

(b) regulations made for the purposes of section 63.

foreign corporation means a foreign corporation to which

paragraph 51(xx) of the Constitution applies.

foreign entity means an entity that is not an Australian entity.

foreign government means an entity (within the ordinary meaning

of the term) that is:

(a) a body politic of a foreign country; or

(b) a body politic of part of a foreign country; or

foreign government investor has the meaning prescribed by the

regulations.

foreign person means:

(a) an individual not ordinarily resident in Australia; or

(b) a corporation in which an individual not ordinarily resident in

Australia, a foreign corporation or a foreign government

holds a substantial interest; or

individual not ordinarily resident in Australia, a foreign

corporation or a foreign government, hold an aggregate

substantial interest; or

(d) the trustee of a trust in which an individual not ordinarily

resident in Australia, a foreign corporation or a foreign

government holds a substantial interest; or

(e) the trustee of a trust in which 2 or more persons, each of

whom is an individual not ordinarily resident in Australia, a

foreign corporation or a foreign government, hold an

aggregate substantial interest; or

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(f) a foreign government; or

(g) any other person, or any other person that meets the

conditions, prescribed by the regulations.

Note:

In certain circumstances, an associate of a foreign person may be

taken to be a foreign person even if the associate is not a foreign

person (see subsection 54(7)).

general meeting of an entity means:

(a) for a corporation--a general meeting of the corporation; or

(b) for a unit trust--a general meeting of the unit holders of the

trust.

holding entity has the meaning given by subsection 21(4).

independent director has the meaning given by section 7.

interest:

(a) in a security--has the meaning given by section 9; and

(b) in an asset--has the meaning given by section 10; and

(d) in Australian land--has the meaning given by section 12; and

(e) of a specified percentage in an entity--has the meaning given

by section 17.

Note:

For other rules relating to interests in a security, asset, trust or

Australian land, see sections 13 to 15.

interim order means an order made under section 68.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

land includes:

(a) a building (including a new dwelling or an established

dwelling) or a part of a building; and

(b) subsoil of land.

land register means a register kept under a law of the

Commonwealth, a State or a Territory in which interests (within

the ordinary meaning of the term) in Australian land are registered.

lease includes a sublease.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

long term lease means a lease granted by the Commonwealth, a

State or a Territory for a term (including any extension or renewal)

that is reasonably likely, at the time the lease is granted, to exceed

20 years.

mining or production tenement means:

(a) a right (however described) under a law of the

Commonwealth, a State or a Territory to recover minerals

(such as coal or ore), oil or gas in Australia or from the

seabed or subsoil of the offshore area, other than a right to

recover minerals, oil or gas for the purposes of prospecting or

exploring for minerals, oil or gas; or

(b) a right that preserves a right mentioned in paragraph (a); or

paragraph (a) or (b); or

(d) an interest in a right mentioned in paragraph (a) or (b) or

under a lease mentioned in paragraph (c).

new dwelling means a dwelling (except commercial residential

premises) that will be, is being or has been built on residential land

and that:

(a) has not been previously sold as a dwelling; and

(b) either:

(i) has not been previously occupied; or

(ii) if the dwelling is contained in a development and the

dwelling was sold by the developer of the

development--has not been previously occupied for

more than 12 months in total.

Note:

For when a dwelling is sold, see subsections 15(4) and (5).

new dwelling acquisition has the meaning given by

subsection 113(4).

no objection notification has the meaning given by

subsections 74(2) and 75(2).

notifiable action has the meaning given by Division 3 of Part 2.

officer of an entity includes the following:

(a) for a corporation--a director of the corporation;

(b) for a unit trust:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(i) the trustee of which is an individual--the trustee; and

(ii) the trustee of which is a corporation--a director of the

trustee; and

(iii) in any case--any other individual involved in the

central management and control of the trust;

a position to determine the investments or policy of the entity

or a trustee of the entity;

(d) a person who makes, or participates in making, decisions that

affect the whole, or a substantial part of, the business of the

entity;

(e) a person who has the capacity to affect significantly the

financial standing of the entity;

(f) a receiver and manager of any part of the business of the

entity appointed under a power contained in any instrument;

(g) an administrator of the entity;

(h) an administrator under a deed of company arrangement

executed by the entity;

(i) a liquidator of the entity appointed in a voluntary winding up.

offshore area means:

(a) the exclusive economic zone of Australia; or

(b) the continental shelf of Australia.

ordinarily resident has a meaning affected by section 5.

potential voting power has the meaning given by section 22.

primary production business has the same meaning as in the

Income Tax Assessment Act 1997.

proposes:

(a) to acquire an interest in securities, assets or Australian land--

has a meaning affected by subsection 16(1); and

(b) to enter or terminate an agreement--has a meaning affected

by subsection 16(2).

protected information has the meaning given by section 120.

Regulatory Powers Act means the Regulatory Powers (Standard

Provisions) Act 2014.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

relative has the same meaning as in the Income Tax Assessment Act

1997.

relevant Australian assets means:

(a) Australian land, including legal and equitable interests

(within the ordinary meaning of the term) in such land; or

(b) securities in an Australian entity.

relevant entity means any of the following:

(a) an Australian entity;

(b) a foreign corporation:

(i) that holds relevant Australian assets; or

(ii) that is a holding corporation of one or more Australian

corporations;

Australian unit trust.

Note:

A holding entity mentioned in paragraph (c) may be a foreign

corporation of a kind that is not mentioned in paragraph (b).

residential land:

(a) means land in Australia if:

(i) there is at least one dwelling on the land; or

(ii) the number of dwellings that could reasonably be built

on the land is less than the number prescribed by the

regulations; and

(b) does not include land:

(i) used wholly and exclusively for a primary production

business; or

(ii) on which the only dwellings are commercial residential

premises.

residential land acquisition means a notifiable action to acquire an

interest in residential land.

scheme means:

(a) any agreement, understanding, promise or undertaking:

(i) whether express or implied; and

(ii) whether or not enforceable, or intended to be

enforceable, by legal proceedings; and

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(b) any scheme, plan, proposal, action, course of action or course

of conduct, whether unilateral or otherwise.

Secretary means the Secretary of the Department.

security means a share in a corporation or a unit in a unit trust.

senior officer of an entity means an officer of the entity under any

of paragraphs (a) to (e) of the definition of officer in this section,

except an independent director of the entity.

sensitive business has the meaning given by section 26.

separate government entity means an individual, corporation or

corporation sole that:

(a) is an agency or instrumentality of a foreign country or a part

of a foreign country; and

(b) is not part of the body politic of a foreign country or of a part

of a foreign country.

share of a corporation means a share in the share capital of the

corporation, and includes:

(a) stock into which all or any of the share capital of the

corporation has been converted; and

(b) except in section 9, an interest in such a share or in such

stock.

significant action has the meaning given by Division 2 of Part 2.

significant agreement with an Australian business is an agreement

relating to:

(a) the leasing of, the letting on hire of, or the granting of other

rights to use, assets of the business; or

(b) the participation by a person in the profits or central

management and control of the business.

subsidiary has the meaning given by subsections 21(1) to (3).

substantial interest: a person holds a substantial interest in an

entity or trust if:

(a) for an entity--the person holds an interest of at least 20% in

the entity; or

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(b) for a trust (including a unit trust)--the person, together with

any one or more associates, holds a beneficial interest in at

least 20% of the income or property of the trust.

Note 1:

See also sections 17 (meanings of interest and aggregate interest of a

specified percentage in an entity) and 18 (rules relating to determining

percentages of interests in entities).

Note 2:

For when a person acquires a substantial interest in an entity, see

section 20.

temporary resident means an individual who:

(a) holds a temporary visa under the Migration Act 1958 that

allows the individual to remain in Australia for a continuous

period of more than 12 months (disregarding the amount of

that period remaining); or

(b) meets the following conditions:

(i) the individual is residing in Australia;

(ii) the individual has applied for a permanent visa under

the Migration Act 1958;

(iii) the individual holds a bridging visa under that Act that

allows the individual to remain in Australia until the

application has been finally determined; or

this Act includes the regulations.

threshold test is met has the meaning given by Subdivision B of

Division 4 of Part 2.

tier 1 infringement notice has the meaning given by

subsection 101(1).

tier 2 infringement notice has the meaning given by

subsection 101(2).

total asset value for an entity has the meaning prescribed by the

regulations.

total issued securities value for an entity has the meaning

prescribed by the regulations.

voting power has the meaning given by subsection 22(1).

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Subdivision B--Some defined terms and rules of interpretation

5 Meaning of ordinarily resident

(1) An individual who is not an Australian citizen is ordinarily

resident in Australia at a particular time if and only if:

(a) the individual has actually been in Australia during 200 or

more days in the period of 12 months immediately preceding

that time; and

(b) at that time:

(i) the individual is in Australia and the individual's

continued presence in Australia is not subject to any

limitation as to time imposed by law; or

(ii) the individual is not in Australia but, immediately

before the individual's most recent departure from

Australia, the individual's continued presence in

Australia was not subject to any limitation as to time

imposed by law.

(2) Without limiting paragraph (1)(b), an individual's continued

presence in Australia is subject to a limitation as to time imposed

by law if the individual is an unlawful non-citizen within the

meaning of the Migration Act 1958.

6 Meaning of associate

(1) Each of the following persons is an associate of a person:

(a) any relative of the person;

(b) any person with whom the person is acting, or proposes to

act, in concert in relation to an action to which this Act may

apply;

partnership;

(d) any entity of which the person is a senior officer;

(e) if the person is an entity:

(i) any holding entity of the entity; or

(ii) any senior officer of the entity;

(f) any entity whose senior officers are accustomed or under an

obligation (whether formal or informal) to act in accordance

with the directions, instructions or wishes of:

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(i) the person; or

(ii) if the person is an entity--the senior officers of the

person;

(g) an entity if the person is accustomed or under an obligation

(whether formal or informal) to act in accordance with the

directions, instructions or wishes of:

(i) the entity; or

(ii) the senior officers of the entity;

(h) any corporation in which the person holds a substantial

interest;

(i) if the person is a corporation--a person who holds a

substantial interest in the corporation;

(j) the trustee of a trust in which the person holds a substantial

interest;

(k) if the person is the trustee of a trust--a person who holds a

substantial interest in the trust;

(l) if the person is a foreign government, a separate government

entity or a foreign government investor in relation to a

foreign country (or a part of a foreign country):

(i) any other person that is a foreign government in relation

to that country (or any part of that country); or

(ii) any other person that is a separate government entity in

relation to that country (or any part of that country); or

(iii) any other foreign government investor in relation to that

country (or any part of that country).

Note:

A person may be taken to be an associate under section 79.

Additional associates in relation to interests in residential land

(2) For an action taken relating to an interest in residential land (within

the meaning of any of the paragraphs of subsection 12(1)), each of

the following persons is also an associate of a person:

(a) an entity that is not listed for quotation in the official list of a

stock exchange if a relative of the person:

(i) holds a substantial interest in the entity; or

(ii) is a senior officer of the entity;

(b) if the person is an entity (the first entity)--another entity (the

second entity) if:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(i) an individual holds a substantial interest in the first

entity or is a senior officer of the first entity; and

(ii) a relative of the individual holds a substantial interest in

the second entity or is a senior officer of the second

entity; and

(iii) the first entity and the second entity are not, and are not

a subsidiary or trustee of an entity, listed for quotation

in the official list of a stock exchange.

Persons who are not associates

(3) Despite subsections (1) and (2), a person is not an associate of

another person merely because:

(a) one gives advice to the other, or acts on the other's behalf, in

the proper performance of the functions attaching to a

professional capacity or a business relationship; or

(b) one, a client, gives specific instructions to the other, whose

ordinary business includes dealing in financial products

(within the meaning of the Corporations Act 2001), to

acquire financial products on the client's behalf in the

ordinary course of that business; or

a takeover bid (within the meaning of that Act) for securities

held by the other; or

(d) one has appointed the other, otherwise than for valuable

consideration (within the ordinary meaning of the term)

given by the other or by an associate of the other, to vote as a

proxy or representative; or

(e) both of the following apply:

(i) one provides independent services as a trustee of a trust

to the other who is a beneficiary of the trust;

(ii) the trustee is licensed to provide those services under a

law of the Commonwealth, a State, a Territory, a

foreign country or a part of a foreign country; or

(f) one holds a substantial interest in a managed investment

scheme (within the meaning of the Corporations Act 2001)

and the other is the responsible entity of the scheme; or

(g) both are partners of one of the following kinds of

partnerships:

(i) a partnership of actuaries or accountants;

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(ii) a partnership of medical practitioners;

(iii) a partnership of patent attorneys;

(iv) a partnership of sharebrokers or stockbrokers;

(v) a partnership of trade mark attorneys;

(vi) a partnership that has as its primary purpose

collaborative scientific research, and includes at least

one university and one private sector participant

(whether or not it also includes government agencies or

publicly funded research bodies);

(vii) a partnership of architects;

(viii) a partnership of pharmaceutical chemists or veterinary

surgeons;

(ix) a partnership of legal practitioners.

7 Meaning of independent director

Listed entities

(1) A person is an independent director of an entity if:

(a) the person is:

(i) a director of the entity; or

(ii) for a unit trust--a director of a trustee of the entity; and

(b) the entity is listed for quotation in the official list of a stock

exchange (whether or not in Australia); and

director to be independent (whether or not the criteria are

binding).

Note:

If the stock exchange does not have criteria for a director to be

independent, a director of an entity listed for quotation in the official

list of the stock exchange is not an independent director.

Entities whose securities are stapled

(2) A person is an independent director of an entity (the first entity) if:

(a) the person is a director of the first entity and another entity;

and

(b) the securities in the first entity can only be transferred

together with securities in the other entity; and

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

a stock exchange, but the other entity is (whether or not in

Australia); and

(d) the director meets the criteria of that stock exchange for a

director to be independent (whether or not the criteria are

binding).

8 Meaning of Australian business

(1) An Australian business is a business that is carried on wholly or

partly in Australia in anticipation of profit or gain.

(2) For the purposes of this Act, a person who has an interest in a

mining or production tenement is, as a result of having that

interest, taken to carry on a business in Australia of exploiting that

tenement in anticipation of profit or gain. The tenement is taken to

be an asset of that business.

9 Meaning of interest in a security

(1) A person holds or acquires an interest in a security if he or she has

any legal or equitable interest in that security.

Note 1:

For other rules relating to interests in securities, see sections 13 to 15.

Note 2:

See also section 19 (tracing of substantial interests in corporations and

trusts).

(2) Without limiting subsection (1), a person holds or acquires an

interest in a security in an entity if:

(a) the person is not the registered holder of the security; and

(b) the person is entitled to exercise or control the exercise of a

right attached to the security (other than because he or she

was appointed as a proxy or representative).

(3) In determining whether a person holds or acquires an interest in a

security, it is immaterial that the interest cannot be related to a

particular security.

Issued shares in a corporation

(4) A person holds or acquires an interest in the issued shares in a

corporation if:

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(a) all or part of the share capital of the corporation consists of

stock; and

(b) the person holds an interest in that stock.

(5) For the purposes of this Act, the issued shares are taken to have:

(a) the same nominal amount as the amount of that stock; and

(b) the same rights attached to them as are attached to that stock.

10 Meaning of interest in an asset

A person holds or acquires an interest in an asset if he or she has

any legal or equitable interest in that asset.

Note 1:

For other rules relating to interests in assets, see sections 13 to 15.

Note 2:

See also section 19 (tracing of substantial interests in corporations and

trusts).

11 Meaning of interest in a trust

A person holds or acquires an interest in a trust if:

(a) the person holds or acquires a beneficial interest in the

income or property of the trust; or

(b) the person holds or acquires an interest in a unit in a unit

trust.

Note 1:

For other rules relating to interests in trusts, see sections 13 to 15.

Note 2:

See also section 19 (tracing of substantial interests in corporations and

trusts).

12 Meaning of interest in Australian land

(1) An interest in Australian land (however described) is:

(a) a legal or equitable interest in Australian land, other than:

(i) an interest under a lease or licence or in a unit in a unit

trust; or

(ii) an interest in an agreement giving a right (known as a

profit � prendre) to take something off another person's

land, or to take something out of the soil of that land; or

(iii) an interest in an agreement involving the sharing of

profits or income from the use of, or dealings in,

Australian land; or

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(b) an interest in a security in an entity that owns Australian

land, being a security that entitles the holder to a right to

occupy a dwelling of a kind known as a flat or home unit

situated on the land; or

rights to occupy Australian land if the term of the lease or

licence (including any extension or renewal) is reasonably

likely, at the time the interest is acquired, to exceed 5 years;

(d) an interest in an agreement giving a right of a kind mentioned

in subparagraph (a)(ii) if the term of the agreement (including

any extension or renewal) is reasonably likely, at the time the

interest in the agreement is acquired, to exceed 5 years;

(e) an interest in an agreement involving the sharing of profits or

income from the use of, or dealings in, Australian land if the

term of the agreement (including any extension or renewal) is

reasonably likely, at the time the interest in the agreement is

acquired, to exceed 5 years; or

(f) an interest in a share in an Australian land corporation or

agricultural land corporation; or

(g) an interest in a unit in an Australian land trust or agricultural

land trust; or

(h) if the trustee of an Australian land trust or agricultural land

trust is a corporation--an interest in a share in that

corporation.

Note 1:

For other rules relating to interests in Australian land, see sections 13

to 15.

Note 2:

Australian land may be described as "residential land", "agricultural

land" or "commercial land", or as "a new dwelling" or "an established

dwelling".

(2) An interest is an interest in Australian land even if it is the only

interest that exists in the land or other thing concerned.

(3) A person acquires an interest in Australian land even if:

(a) the person has previously acquired an interest in Australian

land; or

(b) the interest is an increase in the amount of an existing interest

of the person in Australian land.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

13 Interests that are remote or subject to restraint etc.

A person holds or acquires an interest in a security, asset, trust or

Australian land despite:

(a) its remoteness; or

(b) the manner in which it arose; or

is, or is capable of being made, subject to restraint or

restriction.

14 Interests held or acquired jointly

A person holds or acquires an interest in a security, asset, trust or

Australian land even if the person holds or acquires the interest

jointly with one or more other persons.

15 Interests acquired by entering agreements or acquiring options

(1) For the purposes of this Act, a person is taken (except as provided

by subsections (4) and (5)) to acquire an interest in a security,

asset, trust or Australian land if the person:

(a) enters an agreement to acquire the interest; or

(b) either:

(i) for an interest in a security, asset or trust--has a right to

acquire such an interest under an option; or

(ii) for an interest in Australian land--acquires an option to

acquire such an interest; or

trust, to have such an interest transferred to himself or herself

or to his or her associate.

Note:

For the definition of enters, see section 25.

(2) To avoid doubt, a right mentioned in paragraph (1)(b) or (c)

includes a right under an instrument or agreement.

(3) Subsections (1) and (2) apply whether or not:

(a) the right or option is presently exercisable or exercisable in

the future; or

(b) the agreement, right or option requires the fulfilment of a

condition.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Provisions of agreements that are not currently binding

(4) Subsection (5) applies for the purposes of the following provisions:

(a) Part 4 (notice of notifiable action);

(b) Part 5 (offences and civil penalties) to the extent that it

relates to Part 4;

the provisions mentioned in paragraph (a) or (b);

(d) the definition of new dwelling in section 4 (including to the

extent that the definition affects the definition of established

dwelling in that section), except in section 95 (acquisition of

interests in established dwellings).

(5) If:

(a) a person proposes to take an action to acquire or sell an

interest in a security, asset, trust or Australian land; and

(b) the provisions of the agreement to acquire or sell the interest

do not become binding on the person until one or more

conditions are met;

the person takes the action to acquire or sell the interest, and enters

the agreement, only when the provisions become binding.

Note:

As a result of this subsection, the person acquires or sells the interest

only when the provisions become binding.

16 Meaning of proposes to take certain action

(1) A person proposes to acquire an interest in securities, assets or

Australian land if:

(a) the person makes an offer to acquire the interest; or

(b) the person makes or publishes a statement (however

expressed) that expressly or impliedly invites a holder of an

interest in securities, assets or Australian land to offer to

dispose of an interest in securities, assets or Australian land;

negotiations with a view to acquiring an interest in securities,

assets or Australian land.

(2) A person proposes to enter or terminate an agreement if the person

takes part in, or proposes to take part in, negotiations with a view

to entering or terminating the agreement.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(3) This section does not limit the meaning of propose.

17 Meanings of interest and aggregate interest of a specified

percentage in an entity

Meaning of interest of a specified percentage in an entity

(1) A person holds an interest of a specified percentage in an entity if

the person, alone or together with one or more associates of the

person:

(a) is in a position to control at least that percentage of the voting

power or potential voting power in the entity; or

(b) holds interests in at least that percentage of the issued

securities in the entity; or

securities in the entity if securities in the entity were issued or

transferred as the result of the exercise of rights of a kind

mentioned in paragraph 15(1)(b) or (c).

Note 1:

See also section 18 (rules relating to determining percentages of

interests in entities) and the definition of acquire in section 20.

Note 2:

A percentage may be specified by referring to:

(a) "20%"; or

(b) "any percentage"; or

(d) a percentage that a person holds in another entity.

Meaning of aggregate interest of a specified percentage in an

entity

(2) Two or more persons (who are not associates of each other) hold

an aggregate interest of a specified percentage in an entity if they,

together with any one or more associates of any of them:

(a) are in a position to control at least that percentage of the

voting power or potential voting power in the entity; or

(b) hold interests in at least that percentage of the issued

securities in the entity; or

securities in the entity if securities in the entity were issued or

transferred as the result of the exercise of rights of a kind

mentioned in paragraph 15(1)(b) or (c).

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Proxies and representatives

(3) In determining the percentage of voting power or potential voting

power that a person is in a position to control in an entity, disregard

any votes that he or she controls as a proxy or representative.

18 Rules relating to determining percentages of interests in entities

Exercise of future rights

(1) Subsection (2) applies if:

(a) a person has a right that, if exercised, would result in the

person holding an interest in an issued security in the entity;

and

(b) it cannot be determined at that time (from the right itself or

from the circumstances existing at that time) whether the

right would be exercised.

(2) For the purposes of this Act, in determining the percentage of the

interests in the issued securities in the entity that the person holds,

or would hold, at a particular time, assume that the right were

exercised at that time.

Discretionary trusts

(3) For the purposes of this Act, if, under the terms of a trust, a trustee

has a power or discretion to distribute the income or property of the

trust to one or more beneficiaries, each beneficiary is taken to hold

a beneficial interest in the maximum percentage of income or

property of the trust that the trustee may distribute to that

beneficiary.

19 Tracing of substantial interests in corporations and trusts

(1) This section applies (subject to subsection (3)) if:

(a) either:

(i) a person holds a substantial interest in a corporation or

trust (the higher entity); or

(ii) 2 or more persons hold an aggregate substantial interest

in a corporation (the higher entity); or

(iii) 2 or more persons hold an aggregate substantial interest

in a trust (the trustee of which is a higher entity);

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

including because of one or more applications of this section;

and

(b) the higher entity:

(i) is in a position to control all or any of the voting power

or potential voting power in a corporation (the lower

entity); or

(ii) holds interests in all or any of the shares in a

corporation (the lower entity); or

(iii) holds an interest in a trust (the lower entity).

(2) For the purposes of this Act:

(a) if subparagraph (1)(b)(i) applies--the person or persons are

taken to be in a position to control the voting power or

potential voting power of the lower entity that the higher

entity is in a position to control; or

(b) if subparagraph (1)(b)(ii) applies--the person or persons are

taken to hold the interests in the shares in the lower entity

that the higher entity holds; or

taken to hold the interest in the lower entity that the higher

entity holds.

(3) This section does not apply for the purpose of:

(a) determining under any of the following whether a foreign

person acquires a direct interest in an Australian entity or

Australian business that is an agribusiness:

(i) paragraph 40(2)(a) (meaning of significant action--

entities);

(ii) paragraph 41(2)(a) (meaning of significant action--

businesses);

(iii) paragraph 47(2)(a) (meaning of notifiable action--

general); or

(b) determining under paragraph 47(2)(b) (meaning of notifiable

action--general) whether a foreign person acquires a

substantial interest in an Australian entity.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

20 Meaning of acquire an interest of a specified percentage in an

entity

(1) A person acquires an interest of a specified percentage in an entity

if the person:

(a) starts to hold an interest of that percentage in the entity; or

(b) would start to hold an interest of that percentage in the entity

on the assumption that the person:

(i) held interests in securities that are interests that he or

she has offered to acquire; or

(ii) held rights to votes that might be cast at a general

meeting of the entity that are rights that he or she has

offered to acquire; or

in the entity:

(i) becomes in a position to control more of the voting

power or potential voting power in the entity; or

(ii) starts to hold additional interests in the issued securities

in the entity; or

(iii) would start to hold additional interests in the issued

securities in the entity if securities in the entity were

issued or transferred as the result of the exercise of

rights of a kind mentioned in paragraph 15(1)(b) or (c).

Note 1:

For the definition of general meeting, see section 4.

Note 2:

A percentage may be specified by referring to:

(a) "20%"; or

(b) "any percentage"; or

(d) a percentage that a person holds in another entity.

(2) For the purposes of subsection (1), a reference to a person offering

to acquire interests in securities or rights includes a reference to a

person making or publishing a statement (however expressed) that

expressly or impliedly invites a holder of interests in securities or

rights to offer to dispose of interests in securities or rights.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

21 Meanings of subsidiary and holding entity

Meaning of subsidiary

(1) An entity (the lower entity) is a subsidiary of another entity (the

higher entity) if:

(a) the higher entity:

(i) is in a position to control more than half the voting

power in the lower entity; or

(ii) holds more than half the issued securities in the lower

entity (disregarding any securities that carry no right to

participate beyond a specified amount in a distribution

of either profits or capital); or

(b) the lower entity is a subsidiary of an entity that is the higher

entity's subsidiary (including because of one or more

applications of this subsection).

Note:

The lower entity need not be the immediate subsidiary of the higher

entity under paragraph (1)(a) (see section 23 which provides that a

person may control the voting power in an entity directly or indirectly,

and section 19 which provides that a person is taken to hold interests

in securities that are traced through a chain of corporations or trusts).

(2) In determining whether a lower entity is a subsidiary of a higher

entity, disregard any securities held or power exercisable by:

(a) the higher entity in a fiduciary capacity; or

(b) any person as a result of a debenture of the lower entity; or

a debenture of the lower entity.

(3) In determining whether a lower entity is a subsidiary of a higher

entity, any securities held or power exercisable:

(a) by any person as a nominee for the higher entity; or

(b) by, or by a nominee for, a subsidiary of the higher entity;

are taken to be held or exercisable by the higher entity.

Meaning of holding entity

(4) An entity (the higher entity) is a holding entity of another entity

(the lower entity) if the lower entity is a subsidiary of the higher

entity.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

22 Meanings of voting power and potential voting power

Meaning of voting power

(1) The voting power in an entity is the maximum number of votes that

might be cast at a general meeting of the entity.

Note:

For the definition of general meeting, see section 4.

Meaning of potential voting power

(2) The potential voting power in an entity is the voting power in the

entity, on the assumption that the votes that might be cast at a

general meeting of the entity included each vote that:

(a) because of the exercise of a right might come into existence

in the future (whether or not the right is exercisable presently

or in the future or on the fulfilment of a condition); and

(b) if it came into existence, might be cast at a general meeting

of the entity.

Note:

Different voting rights might attach to different classes of securities in

an entity.

Exercise of future rights

(3) In determining how much of the potential voting power in an

entity a person is in a position to control at a particular time, if:

(a) a right exists that, if exercised, would result in the person

being in a position to control more of the potential voting

power in the entity than the person would be in a position to

control if the right were not exercised; and

(b) it cannot be determined at that time (whether from the right

itself or from the circumstances existing at that time) whether

the right would be exercised;

assume that the right were exercised at that time.

Veto power

(4) If a person is in a position to veto any resolution of the board,

central management or general meeting of an entity, then for the

purposes of this Act (except paragraph 47(2)(b) (meaning of

notifiable action) and subsection 54(4) (meaning of control)) the

person is taken to be in a position to control 20% of the potential

voting power in the entity.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

23 Meaning of controls the voting power

A person controls the voting power in an entity if the person

controls the power directly or indirectly, including as a result or by

means of agreements or practices, whether or not the agreements or

practices:

(a) have legal or equitable force; or

(b) are based on legal or equitable rights.

24 Meaning of determines the policy of a business of exploiting a

mining or production tenement

(1) A person determines the policy of a business of exploiting a

mining or production tenement if the person determines questions

relating to the disposal of an interest in the tenement.

(2) This section does not limit the meaning of determines the policy of

a business of exploiting a mining or production tenement.

25 Meaning of enters an agreement

(1) A person enters an agreement if:

(a) the person enters into any formal or informal scheme,

including by:

(i) creating a trust (whether express or implied); or

(ii) entering into a transaction; or

(iii) acquiring an interest in a security, asset, trust or

Australian land; or

(b) the agreement is materially altered or varied.

Note 1:

For the definition of scheme, see section 4.

Note 2:

A variation of an agreement that increases the percentage that a person

holds in an entity is material. A variation to the way the consideration

for an acquisition of an interest is worked out is not material.

(2) This section does not limit the meaning of enters.

26 Meaning of sensitive business

(1) A business is a sensitive business if the business meets the

conditions specified in the regulations.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(2) Without limiting subsection (1) or subsection 33(3A) of the Acts

Interpretation Act 1901, the regulations may prescribe:

(a) sensitive businesses generally, or different sensitive

businesses for different kinds of foreign persons; and

(b) different conditions for different sensitive businesses.

27 Regulations to provide in relation to valuing assets

The regulations may provide in relation to valuing the assets of an

entity, trust or business.

28 Acts done by agents

An act done or proposed to be done by an agent on behalf of his or

her principal is taken to be done or proposed to be done by his or

her principal.

Division 3--Application of this Act

29 Application of this Act to individuals and entities

This Act applies to:

(a) all individuals, whether or not resident in Australia or

Australian citizens; and

(b) all corporations, whether or not formed or carrying on

business in Australia; and

30 Extension to external Territories

This Act extends to every external Territory.

31 Extraterritoriality

This Act applies both within and outside Australia.

32 Extension to exclusive economic zone and continental shelf

This Act extends to a matter relating to the exercise of Australia's

sovereign rights in the exclusive economic zone or the continental

shelf.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

33 This Act binds the Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to a pecuniary penalty or

to be prosecuted for an offence.

34 Concurrent operation of State and Territory laws

This Act is not intended to exclude or limit the operation of a law

of a State or Territory to the extent that it is capable of operating

concurrently with this Act.

35 General severability

Application of this section

(1) This section applies in relation to each of the following persons:

(a) a foreign person;

(b) a corporation;

(i) section 57 (certificates for new dwellings); or

(ii) regulations made for the purposes of section 63;

(d) an individual who holds a substantial interest, or who, as one

of 2 or more persons, holds an aggregate substantial interest

in a corporation or trust.

Effect of this Act

(2) Without limiting the effect of this Act apart from this section, this

Act also has effect as provided by this section.

(3) To avoid doubt, no subsection of this section limits the operation of

any other subsection of this section.

External affairs power

(4) This Act has the effect it would have if each reference to a person

mentioned in subsection (1) were expressly confined to a person

outside Australia.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Corporations power

(5) This Act has the effect it would have if each reference to a person

mentioned in subsection (1) were expressly confined to a

corporation to which paragraph 51(xx) of the Constitution applies.

Aliens power

(6) This Act has the effect it would have if each reference to a person

mentioned in subsection (1) were expressly confined to an alien

(within the meaning of paragraph 51(xix) of the Constitution).

Trade and commerce power

(7) This Act has the effect it would have if each reference to a person

mentioned in subsection (1) were expressly confined to a person

engaged in:

(a) trade or commerce between Australia and places outside

Australia; or

(b) trade or commerce among the States; or

Territory or between 2 Territories.

Territories and Commonwealth places power

(8) This Act has the effect it would have if each reference to a person

mentioned in subsection (1) were expressly confined to a person in,

or a person taking an action in relation to:

(a) a Territory; or

(b) a Commonwealth place (within the meaning of the

Commonwealth Places (Application of Laws) Act 1970).

36 Severability relating to Australian businesses

Without limiting the effect of this Act apart from this section, this

Act also has the effect it would have if each reference to an

Australian business were expressly confined to a reference to an

Australian business being carried on by a corporation.

Note:

The reference to a corporation in this section is affected by section 35

(general severability).

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

37 Regulations providing for exemptions

(1) The regulations may provide that this Act, or specified provisions

of this Act, do not apply in relation to any of, or any combination

of, the following:

(a) acquisitions of the kind or in the circumstances prescribed by

the regulations;

(b) interests of the kind or in the circumstances prescribed by the

regulations;

prescribed by the regulations;

(d) foreign persons of the kind or in the circumstances prescribed

by the regulations.

Note:

Provisions may be specified by referring to:

(a) a particular provision; or

(b) this Act, other than specified provisions.

(2) Without limiting subsection (1), the regulations may provide that

specified provisions of the Act do not apply to a specified extent.

(3) Without limiting subsection (1), the regulations may provide that

land of a specified kind is not agricultural land.

(4) The regulations may provide that specified foreign persons who

take action in relation to interests in Australian land may disregard

the fact that the land is agricultural land for all or specified

purposes.

(5) Regulations providing as mentioned in paragraph (4)(a) do not

affect the operation of this Act to the extent that the action is

otherwise a significant action or notifiable action.

(6) Regulations made for the purposes of this section have effect

according to their terms.

(7) This Act does not limit the regulations that may be made for the

purposes of this section.

4 Parts IA to III

Repeal the Parts, substitute:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Part 2--Meaning of significant action and

notifiable action

Division 1--Simplified outline of this Part

38 Simplified outline of this Part

The concepts of significant action and notifiable action are 2 of

the most important concepts in this Act.

The Treasurer has powers to make orders and decisions under

Part 3 in relation to any significant action taken or proposed to be

taken.

A foreign person must give the Treasurer a notice before taking a

notifiable action. Only some significant actions are notifiable

actions.

Those concepts are defined in this Part.

Division 2--Meaning of significant action

39 Simplified outline of this Division

Broadly, a significant action is an action to acquire interests in

securities, assets or Australian land, or otherwise take action in

relation to entities (being corporations and unit trusts) and

businesses, that have a connection to Australia. For an action to be

a significant action, the action must result in a change in control

involving a foreign person or be taken by a foreign person.

Generally, the action is only a significant action if the entity,

business or land meets the threshold test. A different threshold test

applies for certain significant actions taken in relation to

agribusinesses.

The regulations may also prescribe actions that are significant

actions.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

An acquisition of an interest in Australian land by a foreign person

that is specified in an exemption certificate under Division 5 is

generally not a significant action.

Division 6 deals with the treatment of entities whose securities are

stapled and entities operating on a unified basis.

40 Meaning of significant action--entities

(1) An action is a significant action if the conditions in this section are

met.

First condition--kinds of action

(2) The first condition is that the action is any of the following:

(a) to acquire a direct interest in an Australian entity that is an

agribusiness;

(b) to acquire interests in securities in an entity;

(d) to enter an agreement:

(i) relating to the affairs of the entity; and

(ii) under which one or more senior officers of the entity

will be under an obligation to act in accordance with the

directions, instructions or wishes of a foreign person

who holds a substantial interest in the entity (or of an

associate of such a foreign person);

(e) to alter a constituent document of the entity as a result of

which one or more senior officers of the entity will be under

an obligation to act in accordance with the directions,

instructions or wishes of a foreign person who holds a

substantial interest in the entity (or of an associate of such a

foreign person).

Note:

An action mentioned in any of paragraphs (2)(b) to (e) may be taken

in relation to an Australian entity that is an agribusiness (see

section 42).

Second condition--threshold

(3) The second condition is that the threshold test is met in relation to

the entity (see Subdivision B of Division 4).

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Third condition--kinds of entities covered

(4) The third condition (except if paragraph (2)(a) applies) is that the

entity is the following:

(a) for an acquisition of interests in shares or an issue of shares:

(i) a corporation that is a relevant entity that carries on an

Australian business, whether alone or together with one

or more other persons; or

(ii) the holding entity of such a corporation;

(b) for any other action relating to a corporation:

(i) an Australian corporation that carries on an Australian

business, whether alone or together with one or more

other persons; or

(ii) the holding entity (other than a foreign corporation) of

such a corporation;

(i) an Australian unit trust; or

(ii) a holding entity of an Australian unit trust.

Last condition--action taken by a foreign person

(5) If paragraph (2)(a) applies, the last condition is that the action is or

is to be taken by a foreign person.

Last condition--action results in change in control

(6) If any of paragraphs (2)(b) to (e) apply, the last condition is that

there would be or has been a change in control of the entity as a

result of the action (see Subdivision C of Division 4).

41 Meaning of significant action--businesses

(1) An action is a significant action if the conditions in this section are

met.

First condition--kinds of action

(2) The first condition is that the action is any of the following:

(a) to acquire a direct interest in an Australian business that is an

agribusiness;

(b) to acquire interests in assets of an Australian business;

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Australian business.

Note:

An action mentioned in paragraph (2)(b) or (c) may be taken in

relation to an Australian business that is an agribusiness (see

section 42).

Second condition--threshold

(3) The second condition is that the threshold test is met in relation to

the Australian business (see Subdivision B of Division 4).

Third condition--action taken by a foreign person

(4) If paragraph (2)(a) applies, the third condition is that the action is

or is to be taken by a foreign person.

Third condition--action results in change in control

(5) If paragraph (2)(b) or (c) applies, the third condition is that there

would be or has been a change in control of the business as a result

of the action (see Subdivision C of Division 4).

42 Action taken in relation to agribusinesses

To avoid doubt, a person may take an action under any of

paragraphs 40(2)(b) to (e) or 41(2)(b) or (c) in relation to an

Australian entity or Australian business that is an agribusiness.

43 Meaning of significant action--land

An action is a significant action if:

(a) the action is for a foreign person to acquire an interest in

Australian land; and

(b) the threshold test is met in relation to the land (see

Subdivision B of Division 4).

Note:

Certain acquisitions of land by foreign persons may not be significant

actions (see section 45).

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

44 Meaning of significant action--actions prescribed by the

regulations

(1) The regulations may provide that a specified action is a significant

action (including by providing that a specified action is a

significant action if specified conditions are met).

(2) Sections 40, 41 and 43 do not limit the actions that may be

specified by the regulations.

Note:

For example, the regulations may specify an action without requiring

the threshold test to be met or a change in control.

45 Actions that are not significant actions--exemption certificates

(1) Despite this Division, an action is not a significant action if:

(a) the action is a foreign person acquiring an interest in a new

dwelling that will be, is being or has been built on another

interest (the development interest) in Australian land; and

(b) the acquisition was from a person who was specified in an

exemption certificate in force under section 57; and

(d) the specified person provided the foreign person with a copy

of that certificate before the foreign person acquired the

interest; and

(e) either:

(i) the conditions (if any) specified in the certificate were

met; or

(ii) the foreign person is not, at the time of the action, aware

that one or more of the conditions specified in the

certificate have not been met.

(2) Despite this Division, an action is not a significant action if:

(a) the action is a foreign person acquiring a kind of interest in

Australian land; and

(b) the foreign person is specified in an exemption certificate in

force under section 58 or 59; and

(d) the conditions (if any) specified in the certificate were met.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(3) The regulations may provide, in relation to exemption certificates

in force under regulations made for the purposes of section 63, that

an action of a specified kind is not a significant action.

Division 3--Meaning of notifiable action

46 Simplified outline of this Division

A notifiable action is a proposed action by a foreign person:

(a)

to acquire a direct interest in an Australian entity or

Australian business that is an agribusiness; or

(b)

to acquire a substantial interest in an Australian entity;

(c)

to acquire an interest in Australian land.

Generally, the action is only notifiable if the entity, business or

land meets the threshold test. A different threshold test applies for

certain notifiable actions taken in relation to agribusinesses.

Unlike for a significant action, there does not need to be a change

in control for actions relating to entities and businesses to be

notifiable actions.

The regulations may also prescribe actions that are notifiable

actions.

Actions to acquire interests in Australian land that are specified in

an exemption certificate under Division 5 are generally not

notifiable actions.

Division 6 deals with the treatment of entities whose securities are

stapled and entities operating on a unified basis.

47 Meaning of notifiable action--general

(1) An action is a notifiable action if the conditions in this section are

met.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

First condition--kinds of action

(2) The first condition is that the action is any of the following:

(a) to acquire a direct interest in an Australian entity or

Australian business that is an agribusiness;

(b) to acquire a substantial interest in an Australian entity;

Note:

For the definition of acquire a direct interest or a substantial interest,

see section 20.

Second condition--threshold

(3) The second condition is that the threshold test is met in relation to

the entity, business or land (see Subdivision B of Division 4).

Third condition--kinds of entities covered

(4) If paragraph (2)(a) or (b) applies, the third condition is that the

entity is:

(a) an Australian corporation that carries on an Australian

business, whether alone or together with one or more other

persons; or

(b) an Australian unit trust; or

mentioned in paragraph (a) or (b).

Last condition--action taken by a foreign person

(5) The last condition (whether paragraph (2)(a), (b) or (c) applies) is

that the action is or is to be taken by a foreign person.

48 Meaning of notifiable action--actions prescribed by the

regulations

(1) The regulations may provide that a specified action is a notifiable

action (including by providing that a specified action is a

notifiable action if specified conditions are met).

(2) Section 47 does not limit the actions that may be specified by the

regulations.

Note:

For example, the regulations may specify an action without requiring

the threshold test to be met.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

49 Actions that are not notifiable actions--exemption certificates

(1) Despite this Division, an action is not a notifiable action if:

(a) the action is a foreign person acquiring an interest in

Australian land; and

(b) the action would not be a significant action under section 45

(actions that are not significant actions--exemption

certificates).

(2) The regulations may provide, in relation to exemption certificates

in force under regulations made for the purposes of section 63, that

an action of a specified kind is not a notifiable action.

Division 4--The threshold test and change in control

Subdivision A--Simplified outline of this Division

50 Simplified outline of this Division

Two important tests in determining whether an action is a

significant action are whether the threshold test is met and whether

there has been a change in control.

For the threshold test to be met, a certain value must be above a

threshold prescribed by the regulations. The value depends on the

action taken.

There is a change in control of an entity or business if the

Treasurer is satisfied that one or more foreign persons begin to

control the entity or business, or the foreign persons who currently

control the entity or business change.

One or more persons who hold a substantial interest or an

aggregate substantial interest in an entity are taken to control the

entity. Also, a person controls the entity if the person is in a

position to determine the policy of the entity or business.

There are broad powers for the regulations to prescribe thresholds

under this Part.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Subdivision B--The threshold test

51 The threshold test for entities and businesses

The threshold test is met in relation to an entity or business for a

significant action mentioned in column 1 of the following table if

the value mentioned in column 2 of the table is more than the value

prescribed by the regulations.

When the threshold test is met

Item

Column 1

Significant action

Column 2

Value

A person acquiring a direct

interest in an Australian

entity or Australian

business that is an

agribusiness

The total of the following:

(a) the value of the consideration for the

acquisition;

(b) the total value of the other interests held by

the person, alone or together with one or

more associates:

(i) in the entity or business; or

(ii) previously acquired from the entity

or business

Acquiring interests in

securities in an entity, or

issuing securities in an

entity

The higher of the following:

(a) the total asset value for the entity;

(b) the total issued securities value for the

entity

Entering an agreement

mentioned in

paragraph 40(2)(d) in

relation to an entity, or

altering a constituent

document of an entity as

mentioned in

paragraph 40(2)(e)

The total asset value for the entity

Acquiring interests in the

assets of an Australian

business

The value of the consideration for the

acquisition

Entering or terminating a

significant agreement with

an Australian business

The total value of the assets of the business

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Note 1:

Total asset value, total issued securities value and consideration are

defined by the regulations (see section 4).

Note 2:

The regulations may provide in relation to valuing assets of an entity

or business (see section 27).

52 The threshold test for land

Land without threshold value

(1) The threshold test is met in relation to land if the land is of a kind

that is prescribed by the regulations for the purposes of this

subsection.

Agricultural land where total value of interests is above threshold

value

(2) The threshold test is met in relation to land if both of the following

apply:

(a) the land is agricultural land;

(b) the total value of the following is more than the value

prescribed for the purposes of this paragraph:

(i) all interests in agricultural land held by the foreign

person, alone or together with one or more associates;

(ii) the consideration for the acquisition of the interest in the

land.

Note:

Consideration is defined by the regulations (see section 4).

Other land where value of interest is above threshold value

(3) The threshold test is met in relation to land if both of the following

apply:

(a) the land is not land prescribed for the purposes of

subsection (1) or agricultural land;

(b) the value of the interest in the land is more than the value

prescribed for the purposes of this paragraph.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

53 The threshold test in relation to actions of more than one kind

Agreements covering more than one action

(1) If an action relating to an entity, business or land is covered by an

agreement, the action is a significant action if the threshold test is

met in relation to the entity, business or land even if the threshold

test is not met for another action covered by the agreement

(whether or not relating to the same entity, business or land).

Actions of more than one kind

(2) If either or both of the following apply:

(a) a single action is covered by more than one of the following

(because an action is an action of more than one kind):

(i) paragraph 40(2)(a), (b), (c), (d) or (e);

(ii) paragraph 41(2)(a), (b) or (c);

(iii) paragraph 43(a);

(iv) a provision of regulations made for the purposes of

section 44;

(b) a single action relating to land is covered by more than one

subsection of section 52 (because the land is land of more

than one kind);

the threshold test is met in relation to the single action if the test is

met in relation to any of the kinds of actions or land (even if the

threshold test is not met in relation to any of the other kinds of

actions or land).

Example 1: An acquisition of an interest in securities in an Australian land

corporation is covered by paragraphs 40(2)(b) and 43(a). The

threshold test is met if the threshold test is met in relation to the

corporation or land held by the corporation.

Example 2: An acquisition of an interest in land may be an acquisition of an

interest in a mining or production tenement and an interest in

agricultural land. The threshold test is met if the threshold test is met

in relation to either kind of land.

Subdivision C--Change in control

54 Change in control

(1) For the purposes of determining whether an action is a significant

action, there is a change in control of an entity or business if, and

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

only if, the Treasurer is satisfied that the action would have, or has

had, any of the results mentioned in subsection (2) or (3).

Foreign persons begin to control entity or business

(2) One or more foreign persons would begin, or have begun, to

control the entity or business (whether alone or together with any

associates of any of those persons).

Change in foreign persons who control the entity or business

(3) If one or more foreign persons already control or controlled the

entity or business:

(a) another foreign person would become, or has become, a

person who controls the entity or business; or

(b) a person would cease, or has ceased, to be a person who

controls the entity or business.

Meaning of control

(4) A person controls an entity or business if:

(a) the person (whether alone or together with one or more

associates) is in a position to determine the policy of the

entity or business in relation to any matter; or

(b) without limiting paragraph (a), in relation to the acquisition

of interests in securities in an entity or an issue of securities

in an entity:

(i) the person holds a substantial interest in the entity; or

(ii) the person is one of 2 or more persons who hold an

aggregate substantial interest in the entity.

Note:

For determining the policy of a business of exploiting a mining or

production tenement, see section 24.

(5) However, a person mentioned in paragraph (4)(b) does not control

the entity if the Treasurer is satisfied that, having regard to all the

circumstances, the person together with any one or more associates

of that person is not in a position to determine the policy of the

entity.

(6) Subsection (5) does not require the Treasurer to determine whether

a person is in a position to determine the policy of an entity.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

References to foreign persons

(7) If the Treasurer is satisfied that one or more foreign persons

together with any one or more associates control an entity under

subsection (4), then, in relation to an action taken relating to the

entity, a reference to a foreign person is taken, for the purposes of

Part 3 (powers of Treasurer), to include a reference to those

associates (even if those associates are not foreign persons).

Subdivision D--Regulations

55 Regulations

(1) Regulations made for the purposes of this Part may prescribe any

of, or any combination of, the following:

(a) values of nil;

(b) different values for different kinds of entities, businesses or

land;

(d) different values for:

(i) sensitive businesses generally; or

(ii) different sensitive businesses for different foreign

persons.

Note:

Regulations may also provide for indexation (see subsection 139(2)).

(2) The paragraphs and subparagraphs in subsection (1) do not limit:

(a) each other; or

(b) the regulations that may be made for the purposes of this

Part; or

Division 5--Exemption certificates

56 Simplified outline of this Division

An exemption certificate is a certificate given by the Treasurer that

specifies an interest or an interest of a kind that, if acquired by a

foreign person, does not give rise to a significant action or a

notifiable action. The certificate may also specify conditions that

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

are required to be complied with in order for an acquisition of the

interest not to be a significant action or notifiable action.

A person may apply for an exemption certificate under this

Division.

The Treasurer must generally make a decision on an application

within the period prescribed by the regulations. The regulations

may also provide for additional kinds of exemption certificates.

57 Exemption certificates for new dwellings

(1) A person may apply for a certificate under this section if:

(a) the person or any other person proposes to acquire or has

acquired an interest in Australian land; and

(b) the person or other person proposes to dispose of new

dwellings to foreign persons that will be, are being or have

been built on that land.

Note:

See also Part 6 (fees) and section 135 (manner of notification and

application).

(2) The Treasurer may give a certificate if the Treasurer is satisfied

that the disposal of the new dwellings to foreign persons is not

contrary to the national interest.

(3) The certificate must specify:

(a) the person (who may not yet be incorporated or established)

to whom the certificate relates; and

(b) the interest to which the certificate relates.

Note:

For other things that the certificate may specify, see section 60.

58 Exemption certificates for foreign persons

(1) A foreign person may apply for a certificate under this section if

the foreign person or any other foreign person proposes to acquire

one or more kinds of interests in Australian land.

Note:

See also Part 6 (fees) and section 135 (manner of notification and

application).

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(2) The Treasurer may give a certificate if the Treasurer is satisfied

that acquisitions of those kinds of interests by that foreign person is

not contrary to the national interest.

(3) The certificate must specify:

(a) the person (who may not yet be incorporated or established)

to whom the certificate relates; and

(b) the kinds of interests in Australian land to which the

certificate relates.

Note:

For other things that the certificate may specify, see section 60.

59 Exemption certificates for established dwellings

(1) A foreign person may apply for a certificate under this section if

the foreign person or any other foreign person proposes to acquire

an interest in an established dwelling.

Note:

See also Part 6 (fees) and section 135 (manner of notification and

application).

(2) The Treasurer may give a certificate if the Treasurer is satisfied

that the acquisition of the interest by that foreign person is not

contrary to the national interest.

(3) The certificate must specify:

(a) the person to whom the certificate relates; and

(b) the interest to which the certificate relates.

Note:

For other things that the certificate may specify, see section 60.

60 Other matters that may be specified by exemption certificates

(1) An exemption certificate may specify:

(a) one or more conditions; and

(b) a period during which the certificate is in force; and

Note 1:

For offences and civil penalties for failing to comply with a condition,

see Part 5.

Note 2:

An example of a condition that may be specified in an exemption

certificate is a condition requiring that an interest or kind of interest be

acquired in land within a specified area.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(2) One exemption certificate may deal with more than one interest or

kind of interest.

61 Time limit for making decisions on exemption certificates

(1) If a person applies for an exemption certificate, the Treasurer must

make a decision whether to grant the application before the end of

the following period:

(a) the period prescribed by the regulations;

(b) if the person requests in writing the Treasurer to extend the

period--the period as so extended.

Note:

For withdrawal of applications, see section 136.

Giving exemption certificates

(2) If the Treasurer decides to grant the application, the exemption

certificate:

(a) must be given to the person before the end of 10 days after

the decision is made; and

(b) may be given to the person at an address (including an

electronic address) specified in the application by the person

as the address for service of notices relating to the

application.

Failure to make decision or give exemption certificate

(3) The Treasurer is taken to have given, in accordance with

subsection (2), an exemption certificate (without specifying

conditions) of the kind applied for if the Treasurer does not:

(a) make a decision before the end of the period mentioned in

subsection (1); or

(b) if the Treasurer makes a decision before the end of the

period--give the person the exemption certificate in

accordance with subsection (2).

(4) The exemption certificate is taken to have specified:

(a) the person to whom the certificate relates; and

(b) the interests or kinds of interests to which the certificate

relates; and

in accordance with the information specified in the application.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

62 Variation or revocation of exemption certificates

(1) The Treasurer may vary or revoke an exemption certificate given

to a person if the Treasurer is satisfied that the variation or

revocation is not contrary to the national interest.

(2) A variation may be made on application in writing by the person or

on the Treasurer's own initiative.

Note:

See also Part 6 (fees) and section 135 (manner of notification and

application).

(3) Subsection 33(3) of the Acts Interpretation Act 1901 does not

apply in relation to a power under this Subdivision to give an

exemption certificate.

(4) Subsection (1) does not apply to an exemption certificate that is

taken to have been given under section 61.

63 Exemption certificates provided for by the regulations

The regulations may provide for and in relation to additional kinds

of certificates given by the Treasurer.

Note:

The regulations may provide, in relation to exemption certificates in

force under regulations made for the purposes of this section, that an

action of a specified kind is not a significant action or a notifiable

action (see subsections 45(3) and 49(2)).

Division 6--Entities whose securities are stapled and

entities operating on a unified basis

64 Simplified outline of this Division

This Division deals with the treatment of entities whose securities

are stapled and entities operating on a unified basis. In certain

circumstances, if any of those entities are foreign or not carrying

on an Australian business, they are treated as if they were

Australian entities or carrying on an Australian business.

Consequently, an action taken in relation to those entities may be a

significant action or a notifiable action.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

65 Entities whose securities are stapled and entities operating on a

unified basis

(1) This section applies if:

(a) either:

(i) the securities in an entity can only be transferred

together with securities in one or more other entities; or

(ii) an entity has entered an agreement with one or more

other entities resulting in the entities being under a legal

obligation to operate on a unified basis; and

(b) a person takes an action in relation to one of the entities (the

target) mentioned in paragraph (a); and

(i) an Australian entity; or

(ii) an entity carrying on an Australian business; or

(iii) the holding entity of such an entity;

as is required for the action to be a significant action or a

notifiable action; and

(d) there is at least one other entity mentioned in paragraph (a)

that is an entity of a kind mentioned in subparagraph (c)(i),

(ii) or (iii).

Note:

Entities in a dual listed company arrangement are examples of entities

that are under a legal obligation to operate on a unified basis.

(2) For the purposes of this Act, the target is taken to be the same kind

of entity as the entity mentioned in paragraph (d).

Example: A foreign person acquires interests in securities in the target (see

paragraph 40(2)(b)). The target's securities are stapled to securities in

another entity. The other entity is a relevant entity that carries on an

Australian business (see subparagraph 40(4)(a)(i)). The target is taken

to be a relevant entity that carries on an Australian business.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Part 3--Powers of Treasurer

Division 1--Simplified outline of this Part

66 Simplified outline of this Part

This Part deals with the powers that the Treasurer has if a

significant action is proposed to be taken or has been taken.

The Treasurer may be aware of the significant action because a

foreign person was required to give a notice under section 81.

Alternatively, a foreign person might choose to give a notice

despite not being required to do so.

If a significant action is proposed to be taken, the Treasurer may

prohibit the action. The Treasurer may make an interim order

before deciding whether to make an order prohibiting a significant

action.

If a significant action has been taken, the Treasurer may order that

the action be undone (for example, by requiring an acquisition to

be disposed of).

Instead of making an order, the Treasurer may give a notification

(called a no objection notification) stating that the Commonwealth

does not object to an action. The Treasurer may impose conditions

on a significant action.

If the Treasurer is given a notice that a significant action is

proposed to be taken, the Treasurer must make a decision under

this Part within a certain period (generally, within 30 days of

receiving the notice, or within an additional period of up to 90 days

from the publication of an interim order). A person must not take

the action during this period unless the person is given a no

objection notification.

In addition, if a foreign person is given a no objection notification

relating to a significant action, and the foreign person takes the

action in accordance with the notification, the Treasurer is

prevented from using the powers under this Part in relation to the

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

action. (This limitation does not apply if foreign persons or actions

are not specified in the notification.)

A person who fails to comply with an order or notification under

this Part may commit an offence or be liable to a civil penalty.

Under section 113, a fee may be payable in relation to orders or

notifications given under this Part.

Division 2--Powers of Treasurer

Subdivision A--Orders

67 Order prohibiting proposed significant actions

(1) The Treasurer may make an order under subsection (2) if the

Treasurer is satisfied that:

(a) a significant action is proposed to be taken; and

(b) taking the significant action would be contrary to the national

interest.

Note:

See also section 77 (time limit on making orders and decisions) and

Parts 5 (offences and civil penalties) and 6 (fees).

(2) The Treasurer may make an order in accordance with the following

table.

Powers of Treasurer to prohibit proposed significant actions

Item

If the significant action is ...

the Treasurer may make an order

prohibiting ...

to acquire a direct interest in an

Australian entity that is an

agribusiness, or an interest in

securities in an entity

the whole or a part of the proposed

acquisition.

to issue securities in an entity

the whole or a part of the proposed

issue of the securities.

to enter an agreement mentioned in

paragraph 40(2)(d)

entering the proposed agreement.

to alter a constituent document of an

entity as mentioned in

paragraph 40(2)(e)

the proposed alteration.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Powers of Treasurer to prohibit proposed significant actions

Item

If the significant action is ...

the Treasurer may make an order

prohibiting ...

to acquire a direct interest in an

Australian business that is an

agribusiness, or an interest in assets

of an Australian business

the whole or a part of the proposed

acquisition.

to enter a significant agreement with

an Australian business

entering the proposed agreement.

to terminate a significant agreement

with an Australian business

the termination of the existing

agreement.

to acquire an interest in Australian

land

the proposed acquisition.

to take any significant action

prescribed by regulations made for

the purposes of section 44

any thing prescribed by regulations

made for the purposes of this item.

(3) If the Treasurer makes an order under subsection (2), the Treasurer

may also make an order in accordance with the following table.

Additional orders

Item

If the significant action is ...

the Treasurer may also make an

order ...

to acquire a direct interest in an

Australian entity that is an

agribusiness, or an interest in

securities in an entity

directing a specified foreign person

(whether alone or with specified

associate or class of associates) not

to:

(a) increase the proportion of the

total voting power, or the total

potential voting power, in the

entity that the person is in a

position to control (or increase

that proportion beyond a

specified proportion); or

(b) increase the proportion of

interests in issued securities in

the entity that the person holds

(or increase that proportion

beyond a specified proportion).

to acquire a direct interest in an

directing a specified foreign person

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Additional orders

Item

If the significant action is ...

the Treasurer may also make an

order ...

Australian business that is an

agribusiness, or an interest in assets

of an Australian business

(whether alone or with specified

associate or class of associates):

(a) not to acquire any interests in

assets of that business; or

(b) to acquire any such interests only

to a specified extent.

to acquire an interest in Australian

land

directing a specified foreign person

(whether alone or with specified

associate or class of associates):

(a) not to acquire any interests in the

land or other thing concerned; or

(b) to acquire any such interests only

to a specified extent.

68 Interim orders

(1) For the purpose of considering whether to make an order under

section 67, the Treasurer may make an order, under this section, of

the kind that he or she may make under that section as if that

section had applied.

Note:

See also section 77 (time limit on making orders and decisions) and

Parts 5 (offences and civil penalties) and 6 (fees).

(2) An order made under this section must specify the period during

which the order has effect. The period must not be more than 90

days.

Note:

The period does not start until the order is published in the Gazette

(see paragraph 72(2)(b)).

69 Disposal orders

(1) The Treasurer may make an order under subsection (2) if the

Treasurer is satisfied that:

(a) a significant action has been taken; and

(b) the result of the significant action is contrary to the national

interest.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Note:

See also sections 70 (limitation on making disposal orders) and 77

(time limit on making orders and decisions) and Parts 5 (offences and

civil penalties) and 6 (fees).

(2) The Treasurer may make an order in accordance with the following

table.

Powers of Treasurer to require disposal of interests

Item

If the significant action was ...

the Treasurer may make an order

directing ...

to acquire a direct interest in an

Australian entity that is an

agribusiness, or an interest in

securities in an entity

the person who acquired the interest

to dispose of the interest within a

specified period to one or more

persons who are not associates of

the person.

to enter an agreement mentioned in

paragraph 40(2)(d)

specified persons to do within a

specified period, or refrain from

doing, specified acts or acts of a

specified kind.

to alter a constituent document of

an entity as mentioned in

paragraph 40(2)(e)

specified persons to do within a

specified period, or refrain from

doing, specified acts or acts of a

specified kind.

to acquire a direct interest in an

Australian business that is an

agribusiness, or an interest in assets

of an Australian business

the person who acquired the interest

to dispose of the interest within a

specified period to one or more

persons who are not associates of

the person.

to enter a significant agreement

with an Australian business

specified persons to do within a

specified period, or refrain from

doing, specified acts or acts of a

specified kind.

to terminate a significant agreement

with an Australian business

specified persons to do within a

specified period, or refrain from

doing, specified acts or acts of a

specified kind.

to acquire an interest in Australian

land

the person who acquired the interest

to dispose of that interest within a

specified period to one or more

persons who are not associates of

the person.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Powers of Treasurer to require disposal of interests

Item

If the significant action was ...

the Treasurer may make an order

directing ...

to take any significant action

prescribed by regulations made for

the purposes of section 44

a specified person to do a thing

prescribed by regulations made for

the purposes of this item.

Orders made under table item 7

(3) Without limiting item 7 of the table in subsection (2):

(a) a foreign person is taken to have acquired an interest in

Australian land if the person becomes (with or without the

knowledge of the person) a beneficiary in a trust that consists

of or includes the interest; and

(b) if the trust is a discretionary trust--a reference to the disposal

of the interest of the foreign person is a reference to the

disposal of any assignable benefits in relation to that trust

that may ultimately vest in that foreign person.

Orders made under table items 2, 3, 5 or 6

(4) An order under any of items 2, 3, 5 or 6 of the table in

subsection (2) may be made only for the purpose of:

(a) restoring the control of the entity or business as closely as

possible to the position in which it was before the significant

action was taken; or

(b) preventing the occurrence of a change in control of the entity

or business.

(5) Before the end of a period specified in an order made under any of

items 2, 3, 5 or 6 of the table in subsection (2) (or that period as

extended under a previous application of this subsection), the

Treasurer may, in writing, extend the period. The order has effect

as if the period as extended had been specified in the order.

70 Limitation on making disposal orders

(1) This section applies if:

(a) a person is given a no objection notification specifying one or

more significant actions; and

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(b) for a decision to which paragraph 74(1)(a) or section 75

applied--the actions specified in the notification were taken;

and

(i) either the period specified under section 76 in the

notification has not ended or the actions were taken

before the end of the period specified in the notification;

(ii) the foreign persons who took the actions were specified

in the notification.

(2) The Treasurer may make an order under section 69 (disposal

orders) in relation to the actions only if:

(a) the person is convicted of an offence against section 87 in

relation to a condition included in the notification; or

(b) an order is made under section 19B of the Crimes Act 1914 in

relation to the person in respect of such an offence; or

Regulatory Powers Act in relation to a contravention of

section 93, 96 or 97 of this Act relating to a condition

included in the notification.

Note:

The Treasurer may make an order under this Subdivision in relation

to:

(a) a significant action that is not specified in the notification but is

covered by the same agreement that covered the actions

mentioned in subsection (1); or

(b) a foreign person who is not specified in the notification but who

took significant actions covered by the same agreement that

covered the actions mentioned in subsection (1).

71 Variation and revocation of orders

(1) The Treasurer may vary or revoke an order under this Subdivision

at any time if:

(a) the Treasurer is satisfied that the variation or revocation is

not contrary to the national interest; and

(b) for a variation:

(i) the person consents to the variation; or

(ii) the Treasurer is satisfied that the variation does not

disadvantage the person.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(2) Subsection 33(3) of the Acts Interpretation Act 1901 does not

apply in relation to a power under this Subdivision to make an

order.

72 Publication and commencement of orders

Publication of orders

(1) An order made by the Treasurer under this Subdivision must be:

(a) in writing; and

(b) published in the Gazette within 10 days after it is made.

When an order commences

(2) An order under this Subdivision commences:

(a) for an order under subsection 67(3) (additional orders) or 69

(disposal orders)--on the day specified in the order that is at

least 30 days after the order is published; and

(b) for any other order--on the day the order is published.

73 Actions of more than one kind

If a single action is covered by more than one of the following

(because an action is an action of more than one kind):

(a) paragraph 40(2)(a), (b), (c), (d) or (e);

(b) paragraph 41(2)(a), (b) or (c);

(d) a provision of regulations made for the purposes of

section 44;

the Treasurer may make any of the orders under this Subdivision

that he or she could make in relation to the single action.

Subdivision B--Other powers of Treasurer

74 No objection notification imposing conditions

Application of this section

(1) This section applies if:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(a) the Treasurer is satisfied that a significant action is proposed

to be taken (whether or not the Treasurer was given a notice

relating to the action); or

(b) both of the following apply:

(i) the Treasurer is satisfied that a significant action has

been taken;

(ii) the Treasurer was not given a notice relating to the

action before the action was taken; or

(i) the Treasurer is satisfied that a significant action has

been taken;

(ii) the Treasurer was given a notice relating to the action

before the action was taken;

(iii) the action was taken before the day mentioned in

section 82.

Note:

See also sections 70 (limitation on making disposal orders), 76

(content of no objection notification) and 77 (time limit on making

orders and decisions) and Parts 5 (offences and civil penalties) and 6

(fees).

Imposition of conditions

(2) The Treasurer may:

(a) decide that the Commonwealth has no objection to the action

if one or more of the following conditions were imposed:

(i) for paragraph (1)(a)--a condition that the Treasurer is

satisfied is necessary to ensure the action, if taken, will

not be contrary to the national interest;

(ii) for paragraphs (1)(b) and (c)--a condition that the

Treasurer is satisfied is necessary to ensure that the

action is not contrary to the national interest; and

(b) notify the person, in writing (the no objection notification),

of the conditions.

(3) The no objection notification:

(a) must be given before the end of 10 days after the decision is

made; and

(b) if a notice relating to the action was given--may be given to

the person at an address (including an electronic address)

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

specified in that notice as the address for service of notices

relating to the action.

Variation and revocation of conditions

(4) The Treasurer may (subject to subsection (6)) vary a no objection

notification given to a person by:

(a) revoking a condition; or

(b) imposing a new condition; or

(d) varying the information specified under section 76;

if the Treasurer is satisfied that the variation is not contrary to the

national interest.

(5) The variation may be made on the Treasurer's own initiative.

Note:

The variation may also be made on application by the person (see

subsection 76(6)).

(6) The Treasurer may vary a no objection notification given to a

person by imposing a new condition or varying an existing

condition only if:

(a) the person consents to the new condition or the variation; or

(b) the Treasurer is satisfied that the new condition or variation

does not disadvantage the person.

Statements in notices

(7) For the purposes of this section:

(a) a notice relating to an action stating that a person has a right

(including a right under an option) to acquire interests in

securities, assets or Australian land is taken to be a statement

that the person proposes to acquire the interests in the

securities, assets or land; and

(b) a notice relating to an action stating that a person proposes to

acquire a right (including a right under an option) to acquire

an interest in a security, asset or Australian land is taken to be

a statement that the person proposes to exercise that right.

Effect of notification on later actions

(8) If:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(a) a person gives a notice to the Treasurer relating to more than

one significant action proposed to be taken in relation to an

entity or business; and

(b) the Treasurer is satisfied that the actions would result in a

change in control of the entity or business; and

under this section in relation to the actions; and

(d) not all of the actions are taken; and

(e) the person gives a later notice to the Treasurer relating to a

later action that is proposed to be taken in relation to the

entity or business;

the giving of the no objection notification does not prevent the

Treasurer from determining that there has been or will be a change

in control of the entity or business as a result of the later action.

75 No objection notification not imposing conditions

(1) This section applies if:

(a) the Treasurer receives a notice that a person proposes to take

an action; and

(b) the Treasurer is satisfied that the action is covered by:

(i) subsections 40(2) and (3), and whichever of

subsection 40(4) or (5) applies (meaning of significant

action--entities); or

(ii) subsections 41(2) and (3) and subsection 41(4) (if it

applies) (meaning of significant action--business); or

(iii) section 43 (meaning of significant action--land); or

(iv) regulations made for the purposes of section 44

(meaning of significant action--actions prescribed by

the regulations), disregarding any conditions prescribed

by the regulations in relation to a change in control.

Note 1:

See also sections 76 (content of no objection notification) and 77 (time

limit on making orders and decisions) and Parts 5 (offences and civil

penalties) and 6 (fees).

Note 2:

This section disregards whether there has been a change in control.

(2) The Treasurer may:

(a) decide that the Commonwealth has no objection to the action;

and

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(b) notify the person, in writing (the no objection notification),

of the decision.

(3) The no objection notification:

(a) must be given before the end of 10 days after the decision is

made; and

(b) may be given to the person at an address (including an

electronic address) specified in the notice relating to the

action as the address for service of notices relating to the

action.

Statements in notices

(4) For the purposes of this section:

(a) a notice relating to an action stating that a person has a right

(including a right under an option) to acquire interests in

securities, assets or Australian land is taken to be a statement

that the person proposes to acquire the interests in the

securities, assets or land; and

(b) a notice relating to an action stating that a person proposes to

acquire a right (including a right under an option) to acquire

an interest in a security, asset or Australian land is taken to be

a statement that the person proposes to exercise that right.

Effect of notifications on later actions

(5) A notification given under this section in relation to an action taken

relating to an entity or business does not prevent the Treasurer

from determining later whether there has been a change in control

of the entity or business.

76 Content of notification

(1) A no objection notification given to a person under section 74 or

75 must specify the following:

(a) the one or more actions to which the notification relates;

(b) the one or more foreign persons to which the notification

relates;

relates, if taken, must be taken before the end of a specified

period after the day the notification is given.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(2) The no objection notification may specify a foreign person by

specifying:

(a) a foreign person that:

(i) is not yet incorporated; or

(ii) is a trustee of a trust that is not yet established; and

(b) the way in which the foreign person is to be incorporated or

the trust is to be established.

(3) A foreign person is taken not to be specified in a no objection

notification if:

(a) the notification specified the foreign person under

subsection (2) before the foreign person was incorporated or

the trust was established; and

(b) the foreign person is not incorporated or the trust is not

established in the way specified in the notification.

Note:

The protection under section 70 from disposal orders applies to a

foreign person only if the foreign person is specified in a no objection

notification.

(4) The period mentioned in paragraph (1)(c) is:

(a) the period prescribed by the regulations; or

(b) if the Treasurer is satisfied that a longer period is not contrary

to the national interest--that longer period.

(5) A single notification may include a no objection notification under

each of sections 74 and 75 in relation to different actions.

Variation of no objection notification

(6) A person given a no objection notification may apply to the

Treasurer for a variation of the notification (including after the

action specified in the notification is taken).

Note:

See also Part 6 (fees) and section 135 (manner of application).

(7) An application for an extension of a period specified in a no

objection notification must be made 2 months before the end of the

period.

(8) The Treasurer may vary a no objection notification if the Treasurer

is satisfied that the variation is not contrary to the national interest.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Division 3--Provisions relating to powers of Treasurer

77 Time limit on making orders and decisions

Application of this section

(1) This section applies if the Treasurer receives a notice from a

person stating that a significant action (including a significant

action that is a notifiable action) is proposed to be taken.

Note 1:

If a fee is payable by a person under section 113, the notice is taken

not to have been given until the fee has been paid, waived or remitted

(see section 114).

Note 2:

For withdrawal of notices, see section 136.

Time limit on making orders or decisions

(2) The Treasurer must not make an order or decision under Division 2

relating to the action if:

(a) the decision period ends; and

(b) the person has not taken the action by the end of the decision

period; and

(i) the Treasurer has not made such an order or decision

relating to the action by the end of the decision period;

(ii) if the Treasurer has made such an order or decision by

the end of the decision period--the Treasurer has not

published the order in the Gazette in accordance with

section 72 or given a notification in accordance with

subsection 74(3) or 75(3).

Note:

For the definition of decision period, see subsection (5) of this

section.

Time limit on making orders or decisions after interim orders made

(3) If the Treasurer makes an interim order relating to the significant

action, the Treasurer must not make an order under section 67 or

69 or a decision under section 74 or 75 relating to the action if:

(a) the Treasurer makes the interim order before the end of the

decision period; and

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(b) the interim order is published in the Gazette in accordance

with section 72; and

(d) by the end of that period, the Treasurer has not:

(i) made an order under section 67 or 69 relating to the

action and published the order in the Gazette in

accordance with section 72; or

(ii) made a decision and given a no objection notification

relating to the action in accordance with section 74 or

75; and

(e) the person has not taken the action by the end of that period.

Notice given under section 133

(4) If a notice is given to a person under section 133 requiring a person

to give information or produce a document, a decision period, or a

period specified in an interim order, does not include any day in

the period:

(a) beginning on the day the notice is given; and

(b) ending on the day the person gives the information or

produces the document in accordance with the notice.

Meaning of decision period

(5) A decision period is:

(a) the period of 30 days after the day the Treasurer receives a

notice from a person stating that a significant action

(including a significant action that is a notifiable action) is

proposed to be taken; or

(b) if, before the end of a decision period (including a decision

period as extended under this paragraph), the person requests

in writing the Treasurer to extend the period--the period as

so extended.

78 Anti-avoidance

(1) This section applies if:

(a) one or more persons enter into, begin to carry out or carry out

a scheme; and

(b) the Treasurer is satisfied that any of the persons who entered

into, began to carry out or carried out all or any part of the

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

scheme did so for the sole or dominant purpose of avoiding

the application of any provision of this Act in relation to one

or more persons (whether those persons are the same as the

persons mentioned in paragraph (a)); and

section) would achieve, that purpose.

Note:

For the definition of scheme, see section 4.

(2) The Treasurer may (subject to subsection (3)) make any order or

decision under Division 2 that the Treasurer would have been able

to make if all or part of the scheme had not achieved that purpose.

(3) The Treasurer must not make an order prohibiting a person from

doing anything that has already been done by the person before the

order is made.

79 Persons involved in avoidance taken to be associates

(1) The Treasurer may make an order under subsection (2) if:

(a) the Treasurer makes an order under section 78

(anti-avoidance) in relation to more than one person; and

(b) the Treasurer is satisfied that not making an order under

subsection (2) is contrary to the national interest.

(2) The Treasurer may make an order specifying that some or all of the

persons to which the order under section 78 relates are taken to be

associates of each other for the purposes of this Act or for specified

purposes.

(3) An order under subsection (2) must specify the period during

which the order is in force.

Effect of order

(4) An order under subsection (2) has effect according to its terms.

Order not a legislative instrument

(5) An order under subsection (2) is not a legislative instrument.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Part 4--Notice of notifiable actions and significant

actions

80 Simplified outline of this Part

A foreign person who proposes to take a notifiable action must

give a notice to the Treasurer before taking the action.

If such a notice is given by a foreign person, or if a foreign person

chooses to give a notice of a significant action despite not being

required to do so, the foreign person must not take the action for a

certain period unless the foreign person is given a no objection

notification. Generally, the period is 40 days from receiving the

notice, or up to 90 days from the publication of an interim order.

The person may be prevented from taking the action by an order

under Part 3.

Unlike for other parts of this Act, if an action is taken by entering

an agreement, the action is taken for the purposes of this Part only

when the provisions in the agreement become binding on the

person (see subsections 15(4) and (5)).

A foreign person who fails to comply with this Part may commit an

offence or be liable to a civil penalty.

Under section 113, a fee is payable in relation to notices given

under section 81 and notices that a foreign person chooses to give.

81 Compulsory notice of notifiable actions

(1) A foreign person who proposes to take a notifiable action must

give a notice to the Treasurer before taking the action.

(2) If a person takes an action by entering an agreement, the notice

must deal with each notifiable action covered by the agreement.

Note:

See also subsections 15(4) and (5) (provisions of agreements that are

not currently binding), Parts 5 (offences and civil penalties) and 6

(fees) and section 135 (manner of notification and application).

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

82 Limitation on taking significant actions after notice given

(1) This section applies in relation to a foreign person who gives a

notice to the Treasurer stating that a significant action (including a

significant action that is a notifiable action) is proposed to be

taken.

Note:

A notice might be given under section 81 or because a foreign person

chooses to give a notice despite not being required to do so.

(2) The foreign person must not take the action before the earliest of

the following:

(a) the day that is 10 days after the end of the decision period

mentioned in section 77;

(b) if an interim order is made--the end of the period specified

in the order;

Note 1:

See also Part 5 (offences and civil penalties).

Note 2:

If a person takes an action by entering an agreement, the action is not

taken until the agreement is binding on the person (see

subsections 15(4) and (5)).

Part 5--Offences and civil penalties

Division 1--Simplified outline of this Part

83 Simplified outline of this Part

A person may commit an offence or contravene a civil penalty

provision if the person:

(a)

fails to give a notice under section 81 before taking a

notifiable action; or

(b)

takes a significant action before the end of the period in

section 82; or

(c)

contravenes an order under Part 3; or

(d)

contravenes a condition in a no objection notification or

an exemption certificate.

There are additional civil penalties in relation to residential land.

Some of these penalties may be calculated by reference to the

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

market value of, or consideration for, the acquisition of the interest

in the residential land or the capital gain from disposing of the

interest.

Part 2.4 of the Criminal Code, which among other things extends

criminal responsibility to those who attempt to commit an offence

or incite another person to commit an offence, applies to offences

against this Act. A similar provision for civil penalty provisions is

found in section 92 of the Regulatory Powers Act, and applies to

civil penalty provisions in this Act.

Generally, the penalty for bodies corporate is 5 times the amount

for individuals (see section 4B of the Crimes Act 1914 and

subsection 82(5) of the Regulatory Powers Act).

An officer of a corporation who authorises or permits the

corporation to commit an offence or contravene a civil penalty

provision may also commit an offence or contravene a civil penalty

provision. Similarly, an officer of a corporation may contravene a

civil penalty provision by failing to prevent a contravention of the

civil penalty provision by the corporation.

Civil penalty orders may be sought and infringement notices issued

under the Regulatory Powers Act.

A charge on Australian land may apply for unpaid penalties under

this Act.

Division 2--Offences

84 Failing to give notice

A person commits an offence if:

(a) the person is a foreign person; and

(b) the person takes an action; and

(d) a notice is not given under section 81 in relation to the action

before the action is taken.

Note:

If a person takes an action by entering an agreement, the action is not

taken until the agreement is binding on the person (see

subsections 15(4) and (5)).

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Penalty: Imprisonment for 3 years, or 750 penalty units, or both.

85 Taking significant action before end of period

A person commits an offence if:

(a) the person is a foreign person; and

(b) the person gives a notice to the Treasurer stating that a

significant action (including a significant action that is a

notifiable action) is proposed to be taken; and

(d) the action is taken before the day mentioned in section 82;

and

(e) if a change in control is required for the action to be a

significant action--there is a change in control as a result of

the action.

Note 1:

If a person takes an action by entering an agreement, the action is not

taken until the agreement is binding on the person (see

subsections 15(4) and (5)).

Note 2:

A notice might be given under section 81 or because a foreign person

chooses to give a notice despite not being required to do so.

Penalty: Imprisonment for 3 years, or 750 penalty units, or both.

86 Contravening orders under Part 3

A person commits an offence if:

(a) a person engages in conduct; and

(b) the conduct contravenes an order made under Part 3.

Penalty: Imprisonment for 3 years, or 750 penalty units, or both.

87 Contravening conditions

A person commits an offence if:

(a) either:

(i) the person is given a no objection notification under

section 74 (no objection notification imposing

conditions) relating to a significant action; or

(ii) the person is specified in an exemption certificate; and

(b) the notification or certificate includes a condition; and

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(d) the conduct contravenes the condition.

Penalty: Imprisonment for 3 years, or 750 penalty units, or both.

88 Failing to advertise new dwellings

(1) A person (the developer) commits an offence if:

(a) the developer is specified in an exemption certificate given

under section 57 in relation to an interest in Australian land

on which a new dwelling will be, is being or has been built;

and

(b) the developer disposes of an interest in the dwelling to a

foreign person; and

dwelling to be advertised (however described) in Australia;

and

(d) at the time the foreign person acquires the interest, the

dwelling has not been advertised in accordance with the

condition.

Penalty: Imprisonment for 3 years, or 750 penalty units, or both.

(2) Paragraph (1)(c) does not limit where the sale of a new dwelling

may otherwise be advertised.

Division 3--Civil penalties

Subdivision A--Civil penalties relating to significant actions

generally

89 Contravening orders under Part 3

A person must not contravene an order made under Part 3.

Civil penalty:

250 penalty units.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Subdivision B--Civil penalties relating to actions (except in

relation to residential land)

90 This Subdivision does not apply to actions relating to interests in

residential land

This Subdivision does not apply in relation to a significant action

or notifiable action relating to an interest in residential land.

91 Failing to give notice

A foreign person who proposes to take a notifiable action must

give a notice under section 81 before taking the action.

Note:

If a person takes an action by entering an agreement, the action is not

taken until the agreement is binding on the person (see

subsections 15(4) and (5)).

Civil penalty:

250 penalty units.

92 Taking significant action before end of period

A foreign person who proposes to take a significant action must

not take the action before the day mentioned in section 82 if:

(a) the person gives a notice to the Treasurer stating that the

action is proposed to be taken; and

(b) if a change in control is required for the action to be a

significant action--the action would result in a change in

control.

Note 1:

If a person takes an action by entering an agreement, the action is not

taken until the agreement is binding on the person (see

subsections 15(4) and (5)).

Note 2:

A notice might be given under section 81 or because a foreign person

chooses to give a notice despite not being required to do so.

Civil penalty:

250 penalty units.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

93 Contravening conditions

Conditions in no objection notifications

(1) A person who is given a no objection notification under section 74

(no objection notification imposing conditions) must not

contravene a condition specified in the notification.

Civil penalty:

250 penalty units.

Conditions in exemption certificates

(2) A person who is specified in an exemption certificate must not

contravene a condition specified in the certificate.

Civil penalty:

250 penalty units.

Subdivision C--Civil penalties relating to residential land

94 Acquisition of interests in residential land

(1) A foreign person who proposes to take a notifiable action that is a

residential land acquisition must not take the action if the foreign

person has not given a notice relating to the action under

section 81.

Note:

If a person takes an action by entering an agreement, the action is not

taken until the agreement is binding on the person (see

subsections 15(4) and (5)).

(2) A foreign person who gives a notice to the Treasurer, stating that a

notifiable action that is a residential land acquisition is proposed to

be taken, must not take the action before the day mentioned in

section 82.

(3) A person who contravenes subsection (1) or (2) is liable to a civil

penalty.

Penalty

(4) The maximum penalty for the contravention is the greater of the

following:

(a) 10% of the consideration for the residential land acquisition;

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(b) 10% of the market value of the interest in the relevant

residential land.

Note:

Consideration is defined by the regulations (see section 4).

95 Acquisition of interests in established dwellings

Temporary residents

(1) A foreign person who is a temporary resident must not hold an

interest in more than one established dwelling at the same time.

Temporary residents--exceptions

(2) Subsection (1) does not apply if:

(a) the person is making a genuine attempt to dispose of one or

more of the interests; and

(b) if those interests were disposed of, the person would not

contravene subsection (1); and

established dwelling for less than 6 months.

(3) Subsection (1) does not apply in relation to an interest in an

established dwelling if, at the time the interest was acquired by the

person:

(a) the dwelling was a new dwelling; or

(b) the person was not prohibited from holding the interest in

that dwelling at the same time as holding an interest in

another established dwelling.

Note:

There is another exception in subsection (5).

Other foreign persons

(4) A foreign person who is not a temporary resident must not acquire

an interest in an established dwelling.

General exceptions

(5) Subsections (1), (4) and (8) do not apply in relation to an interest if

the interest was, or was of a kind, specified in an exemption

certificate or a no objection notification.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Civil penalties

(6) A person who contravenes subsection (1) or (4) is liable to a civil

penalty.

(7) The maximum penalty for a contravention of subsection (1) or (4)

is the greatest of the following:

(a) the amount of the capital gain that was made or would be

made on the disposal of the interest mentioned in

subsection (8);

(b) 25% of the consideration for the acquisition of that interest;

Note:

For how to work out the capital gain, see section 98.

(8) The interest is:

(a) if at the time of determining the maximum penalty the

foreign person still holds an interest in more than one

established dwelling--the interest relating to the established

dwelling or dwellings that were most recently acquired by the

person; and

(b) otherwise--the interest relating to the established dwelling or

dwellings that were most recently disposed of by the person.

96 Contravening conditions in relation to residential land

Conditions in no objection notifications

(1) A person who is given a no objection notification under section 74

(no objection notification imposing conditions) relating to a

residential land acquisition must not contravene a condition (except

a condition mentioned in section 97) specified in the notification.

Note:

Examples of conditions that may be included in a no objection

notification under section 74 are:

(a) a condition requiring a temporary resident to sell an established

dwelling when the dwelling ceases to be the temporary resident's

principal place of residence; and

(b) a condition prohibiting a temporary resident from leasing an

established dwelling; and

a dwelling before a particular time.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Conditions in exemption certificates

(2) A person who is specified in an exemption certificate relating to an

interest in residential land must not contravene a condition (other

than a condition mentioned in section 97) specified in the

certificate.

Civil penalty provisions

(3) A person who contravenes subsection (1) or (2) is liable to a civil

penalty.

(4) The maximum penalty for the contravention is the greatest of the

following:

(a) the amount of the capital gain that was made or would be

made on the disposal of the interest in the relevant residential

land;

(b) 25% of the consideration for the acquisition of that interest;

Note:

For how to work out the capital gain, see section 98.

97 Persons contravening conditions

Conditions in no objection notifications

(1) A person who is given a no objection notification under section 74

(no objection notification imposing conditions) relating to a

residential land acquisition must not contravene a condition

specified in the notification requiring:

(a) the person to give a notice to the Treasurer when the person

acquires or disposes of the interest in the relevant residential

land; or

(b) the sale of a dwelling on the relevant residential land to be

advertised (however described) in Australia.

Civil penalty:

250 penalty units.

Conditions in exemption certificates

(2) A person who is specified in an exemption certificate relating to

residential land must not contravene a condition specified in the

certificate requiring:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(a) the person to give a notice to the Treasurer when the person

acquires or disposes of the interest in the residential land; or

(b) the sale of a dwelling on the residential land to be advertised

(however described) in Australia.

Civil penalty:

250 penalty units.

98 Working out capital gains

For the purposes of this Subdivision, the amount of the capital gain

that was made or would be made on the disposal by a person (the

offender) of an interest to another person (the third party) is the

higher of the following amounts:

(a) if an agreement has been entered into in relation to disposing

of the interest to the third party--the difference between:

(i) the consideration for acquisition by the third party; and

(ii) the amount for which the offender purchased the

interest;

(b) in any case--the difference between:

(i) the market value of the interest; and

(ii) the amount for which the offender purchased the

interest.

Division 4--Miscellaneous

Subdivision A--Application of the Regulatory Powers Act

99 Civil penalty provisions

Enforceable civil penalty provisions

(1) Each civil penalty provision of this Act is enforceable under Part 4

of the Regulatory Powers Act.

Note:

Part 4 of the Regulatory Powers Act allows a civil penalty provision to

be enforced by obtaining an order for a person to pay a pecuniary

penalty for the contravention of the provision.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers Act, the

Treasurer is an authorised applicant in relation to the civil penalty

provisions of this Act.

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the civil

penalty provisions of this Act:

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia;

Maximum penalties

(4) Subsection 82(5) of the Regulatory Powers Act does not apply in

relation to the following civil penalty provisions:

(a) section 94 (acquisition of interests in residential land);

(b) section 95 (acquisitions of established dwellings);

land);

(d) subsection 102(2) (liability of officers of corporations

authorising or permitting contraventions);

(e) section 103 (civil penalties for officers of corporations failing

to prevent contraventions).

Note:

Subsections 94(4), 95(7), 96(4), 102(3) and 103(5) of this Act set the

maximum penalties instead of subsection 82(5) of the Regulatory

Powers Act.

Extension to external Territories

(5) Part 4 of the Regulatory Powers Act, as it applies in relation to the

civil penalty provisions of this Act, extends to every external

Territory.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

100 Infringement notices

Provisions subject to an infringement notice

(1) The provisions of Subdivision C of Division 3 (civil penalties

relating to residential land) are subject to an infringement notice

under Part 5 of the Regulatory Powers Act.

Note:

Part 5 of the Regulatory Powers Act creates a framework for using

infringement notices in relation to provisions.

Infringement officer

(2) For the purposes of Part 5 of the Regulatory Powers Act, a person

appointed under subsection (3) is an infringement officer in

relation to the provisions mentioned in subsection (1).

(3) The Secretary may, in writing, appoint a person who holds, or

performs the duties of, an APS 6 position, or an equivalent or

higher position, within the Department or the Australian Taxation

Office.

Relevant chief executive

(4) For the purposes of Part 5 of the Regulatory Powers Act, the

Secretary is the relevant chief executive in relation to the

provisions mentioned in subsection (1).

(5) Subparagraphs 104(1)(e)(ii) and (iii), and subsection 104(2), of the

Regulatory Powers Act do not apply in relation to an infringement

notice given in relation to an alleged contravention of:

(a) for subparagraphs 104(1)(e)(ii) and (iii) of the Regulatory

Powers Act--the following provisions of this Act:

(i) section 94 (acquisition of interests in residential land);

(ii) section 95 (acquisitions of interests in established

dwellings);

(iii) section 96 (contravening conditions in relation to

residential land); and

(b) for subsection 104(2) of the Regulatory Powers Act--the

following provisions of this Act:

(i) section 94 (acquisition of interests in residential land);

(ii) section 95 (acquisitions of interests in established

dwellings);

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(iii) section 96 (contravening conditions in relation to

residential land);

(iv) section 97 (persons contravening conditions).

(6) The amount to be stated in an infringement notice for the purposes

of paragraph 104(1)(f) of the Regulatory Powers Act for the

alleged contravention of a civil penalty provision mentioned in

subsection (1) of this section is:

(a) for a tier 1 infringement notice (see subsection 101(1)):

(i) given to an individual--12 penalty units; and

(ii) given to a corporation--60 penalty units; and

(b) for a tier 2 infringement notice (see subsection 101(2)):

(i) given to an individual--60 penalty units; and

(ii) given to a corporation--300 penalty units.

Extension to external Territories

(7) Part 5 of the Regulatory Powers Act, as it applies in relation to the

provisions mentioned in subsection (1), extends to every external

Territory.

101 Meanings of tier 1 infringement notice and tier 2 infringement

notice

(1) An infringement notice is a tier 1 infringement notice if:

(a) the notice relates to an alleged contravention by a person of a

civil penalty provision of this Act; and

(b) the person notified the Commonwealth of conduct that was

the same, or substantially the same, as the conduct

constituting the alleged contravention; and

infringement notice was issued in relation to the conduct

constituting the alleged contravention.

(2) An infringement notice is a tier 2 infringement notice if:

(a) the notice relates to an alleged contravention by a person of a

civil penalty provision of this Act; and

(b) subsection (1) does not apply in relation to the person and the

conduct constituting the alleged contravention.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Subdivision B--Liability of officers of corporations

102 Liability of officers of corporations authorising or permitting

contraventions

Offences authorised or permitted by officers

(1) A person commits an offence if:

(a) the person is an officer of a corporation; and

(b) the corporation is convicted of an offence against this Act;

and

offence by the corporation.

Note:

An officer may also be liable to an offence as a result of Part 2.4 of the

Criminal Code (extensions of criminal responsibility).

Contraventions of civil penalty provisions authorised or permitted

by officers

(2) An officer of a corporation is liable to a civil penalty if:

(a) a civil penalty order under the Regulatory Powers Act is

made against the corporation in relation to a contravention of

a civil penalty provision of this Act; and

(b) the officer authorised or permitted the contravention of the

civil penalty provision by the corporation.

Note:

An officer may also be liable to a civil penalty as a result of section 92

of the Regulatory Powers Act (ancillary contravention of civil penalty

provisions).

Maximum penalty

(3) The maximum penalty for a contravention of subsection (1) or (2)

is the maximum penalty that would apply if the officer had

committed the offence mentioned in paragraph (1)(b) or

contravened the civil penalty provision mentioned in

paragraph (2)(a).

103 Civil penalties for officers of corporations failing to prevent

contraventions

(1) An officer of a corporation is liable to a civil penalty if:

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(a) the corporation contravenes a civil penalty provision of this

Act; and

(b) the officer knew that, or was reckless or negligent as to

whether, the contravention would occur; and

corporation in relation to the contravention; and

(d) the officer failed to take all reasonable steps to prevent the

contravention.

(2) The officer was reckless as to whether the contravention would

occur if:

(a) the officer was aware of a substantial risk that the

contravention would occur; and

(b) having regard to the circumstances known to the officer, it

was unjustifiable to take the risk.

(3) The officer was negligent as to whether the contravention would

occur if the officer's conduct involved:

(a) such a great falling short of the standard of care that a

reasonable person would exercise in the circumstances; and

(b) such a high risk that the contravention would occur;

that the conduct merits the imposition of a pecuniary penalty.

Reasonable steps to prevent contravention

(4) Without limiting this section, in determining whether an officer of

a corporation failed to take all reasonable steps to prevent a

contravention, a court may have regard to all relevant matters,

including:

(a) what action (if any) the officer took directed towards

ensuring the following (to the extent that the action is

relevant to the contravention):

(i) that the corporation arranges regular professional

assessments of the corporation's compliance with civil

penalty provisions;

(ii) that the corporation implements any appropriate

recommendations arising from such an assessment;

(iii) that the corporation's employees, agents and contractors

have a reasonable knowledge and understanding of the

requirements to comply with civil penalty provisions in

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

so far as those requirements affect the employees,

agents or contractors concerned; and

(b) what action (if any) the officer took when he or she became

aware of the contravention.

Maximum penalty

(5) The maximum penalty for the contravention of subsection (1) is the

maximum penalty that would apply if the officer had contravened

the civil penalty provision mentioned in paragraph (1)(a).

Subdivision C--Recovering unpaid penalties

104 Creation of charge on land

(1) This section applies in relation to land if:

(a) a court finds that a person has contravened Division 3 of this

Part (civil penalties); and

(b) a pecuniary penalty is imposed on the person in relation to

the contravention; and

subsection (2) that can be registered on a land register; and

(d) either:

(i) the contravention relates to the acquisition of the

interest in the land; or

(ii) the Treasurer makes a declaration under section 105 that

this section applies in relation to the land.

Note:

Subsection (5) contains an exception to this section (proceeds of crime

orders).

Kinds of interests covered by this subsection

(2) The interest in Australian land is either:

(a) an interest under a long term lease; or

(b) any other legal or equitable interest (within the ordinary

meaning of the term) in Australian land, except:

(i) an interest under a lease (except a long term lease); or

(ii) an interest under a licence; or

(iii) an interest in a mining or production tenement; or

(iv) an interest in an easement; or

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(v) an interest giving a right (known as a profit � prendre)

to take something off another person's land, or to take

something out of the soil of that land; or

(vi) an interest held on trust for another person; or

(vii) an interest of a kind prescribed by the regulations.

Creation of charge

(3) A charge is created on land to which this section applies to secure

the payment of the penalty.

(4) The charge is created at the time:

(a) if subparagraph (1)(d)(i) applies--the penalty is imposed; or

(b) if subparagraph (1)(d)(ii) applies--the declaration comes into

force.

Exception in relation to proceeds of crime orders

(5) This section does not apply if at the time mentioned in

subsection (4):

(a) a restraining order is in force in relation to the land under

Part 2-1 of the Proceeds of Crime Act 2002; or

(b) a forfeiture order is in force in relation to the land under

Part 2-2 of that Act; or

regulations is in force in relation to the land under a law of

the Commonwealth, a State or a Territory.

105 Treasurer's declaration relating to charge

Contravention that does not relate to acquisitions of interests in

land

(1) The Treasurer may declare, in writing, that section 104 applies in

relation to Australian land in which a person has an interest if:

(a) paragraphs 104(1)(a) to (c) apply to the person; and

(b) the contravention mentioned in paragraph 104(1)(a) does not

relate to the acquisition of the interest in the land; and

secure the payment of the penalty mentioned in

paragraph 104(1)(b).

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Treasurer's declaration--extending land to which charge applies

(2) The Treasurer may declare, in writing, that section 104 applies in

relation to Australian land (the additional land) in which a person

has an interest if:

(a) a charge is created under section 104 on other Australian land

in which the person has an interest; and

(b) subparagraph 104(1)(d)(i) applies in relation to the charge;

and

additional land is necessary to secure the payment of the

penalty mentioned in paragraph 104(1)(b).

Content of declaration--generally

(3) A declaration under subsection (1) or (2) must specify:

(a) the period during which the declaration is in force; and

(b) the land to which section 104 applies.

Note:

For a person who has more than one interest in Australian land, see

subsection (4).

Content of declaration under subsection (1)

(4) For a declaration under subsection (1), if the person has more than

one interest in Australian land, the declaration must specify the

land to which section 104 applies. The Treasurer may specify more

than one area of Australian land only if the Treasurer is satisfied

that specifying each of those areas is necessary to secure the

payment of the penalty.

Declarations not legislative instruments

(5) A declaration under subsection (1) or (2) is not a legislative

instrument.

106 Effect of charge on land

(1) A charge created on land under section 104 has priority over any

other interest in the land (even if the interest has been registered on

a land register).

(2) The charge remains in force until:

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(a) all of the following amounts are paid:

(i) the penalty mentioned in subsection 104(1);

(ii) any costs of the Commonwealth that the person

mentioned in that subsection is ordered to pay by a

court;

(iii) any costs incurred by the Commonwealth in relation to

recovering the penalty mentioned in that subsection; or

(b) the interest in the land is disposed of under section 109.

(3) To avoid doubt, the charge on the land is not affected by any

change in ownership of the land.

Powers of Treasurer

(4) The Treasurer has power, on behalf of the Commonwealth, to do,

or authorise the doing of, anything necessary or convenient to

obtain the registration of the charge on a land register.

(5) The Treasurer's powers under subsection (4) include:

(a) executing any instrument required to be executed; or

(b) signing any certificate that:

(i) states that a charge is created on land under section 104;

and

(ii) specifies the land on which the charge is created.

107 Vesting of interest in land

(1) This section applies in relation to a person's interest in Australian

land if:

(a) a charge is created on the land under section 104; and

(b) the following period ends:

(i) 3 months since the finding mentioned in

subsection 104(1) was made by the court;

(ii) any longer period determined in writing by the

Treasurer or by the court; and

Treasurer's declaration) applies in relation to the charge:

(i) the interest is an estate in fee simple in the land or an

interest in a long term lease; and

(ii) the person holds the interest alone.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Note:

Subsection (4) contains an exception to this section (proceeds of crime

orders).

(2) At the end of the period mentioned in paragraph (1)(b):

(a) the interest in the Australian land vests in equity in the

Commonwealth but does not vest in the Commonwealth at

law until the applicable registration requirements have been

complied with; and

(b) the Treasurer has power, on behalf of the Commonwealth, to

do anything necessary or convenient to give notice of, or

otherwise protect, the Commonwealth's equitable interest in

the Australian land; and

(d) the Treasurer has power, on behalf of the Commonwealth, to

do, or authorise the doing of, anything necessary or

convenient to obtain the registration of the Commonwealth as

the owner.

(3) The Treasurer's powers under paragraph (2)(d) include:

(a) executing any instrument required to be executed; or

(b) signing any certificate that:

(i) states that land has vested in the Commonwealth under

this section; and

(ii) specifies the land that has so vested.

Exception in relation to proceeds of crime orders

(4) This section does not apply if at the end of the period mentioned in

paragraph (1)(b):

(a) a restraining order is in force in relation to the land under

Part 2-1 of the Proceeds of Crime Act 2002; or

(b) a forfeiture order is in force in relation to the land under

Part 2-2 of that Act; or

regulations is in force in relation to the land under a law of

the Commonwealth, a State or a Territory.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

108 When the Commonwealth can begin dealing with interests in

land

(1) The Treasurer, and persons acting on the Commonwealth's behalf,

can dispose of, or otherwise deal with, a person's interest in

Australian land that vests under section 107 only after the later of

the following times:

(a) if the period provided for lodging an appeal against the

finding in relation to the person mentioned in

subsection 104(1) has ended without such an appeal having

been lodged--the end of that period;

(b) if an appeal against the finding in relation to the person has

been lodged--the appeal lapses or is finally determined.

(2) However, such disposals and dealings may occur earlier with the

leave of a court and in accordance with any directions of a court.

109 Disposing of interests in land

(1) The Treasurer must, on behalf of the Commonwealth, dispose of an

interest in a person's (the owner's) land that vests in the

Commonwealth under section 107 as soon as practicable after the

time mentioned in section 108.

(2) The Treasurer may give full and effective title to the land free of

all other interests, which are extinguished at the time title is given.

Dealing with the proceeds of sale

(3) The Treasurer must apply the proceeds of the disposal of the

interest in the land against:

(a) the amounts mentioned in paragraph 106(2)(a); and

(b) any other penalty that is due and payable to the

Commonwealth under this Act by the owner; and

disposal.

(4) The Treasurer must pay the remainder of the proceeds, if any, to

the persons mentioned in subsection (6) in the order in which they

appear in that subsection.

Note:

Not all of the persons mentioned in subsection (6) may be paid if the

proceeds are insufficient.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(5) If the remainder of the proceeds is insufficient to pay:

(a) all of the persons mentioned in paragraph (6)(a); or

(b) after paying all of the persons mentioned in paragraph (6)(a),

all of the persons mentioned in paragraph (6)(b);

the Treasurer must pay each person mentioned in that paragraph

proportionately.

(6) The persons are as follows:

(a) a person holding a mortgage, charge or other interest over the

land if the mortgage, charge or interest:

(i) relates to a debt due by the owner; and

(ii) has been registered on a land register;

(b) if subparagraph 104(1)(d)(i) applies--a person together with

whom the owner holds the interest;

that is due and payable to the Commonwealth by the owner;

(d) the owner.

(7) Nothing in this section affects the right of the Commonwealth to

recover penalties by other means.

110 Exemption from stamp duty and other State or Territory taxes

and fees

(1) No stamp duty or other tax or fee is payable under a law of a State

or a Territory in respect of the vesting of an interest in Australian

land under section 107, or anything connected with the vesting of

the interest, if the Treasurer, in writing:

(a) declares that the interest in the land has vested under that

section; and

(b) specifies the interest in the land.

(2) An instrument made under subsection (1) is not a legislative

instrument.

111 Compensation for acquisition of property

(1) If the operation of this Subdivision would result in an acquisition

of property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Note:

For the definitions of acquisition of property and just terms, see

section 4.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in a

court of competent jurisdiction for the recovery from the

Commonwealth of such reasonable amount of compensation as the

court determines.

Part 6--Fees

112 Simplified outline of this Part

Fees are payable under this Part to ensure that foreign persons and

others who take action regulated by this Act bear the costs relating

to the administration of this Act.

Fees are payable for:

(a)

applying for an exemption certificate or a variation of an

exemption certificate; and

(b)

giving a notice of a notifiable action; and

(c)

giving a notice relating to an action that is not a

notifiable action; and

(d)

applying for a variation of a no objection notification.

The Treasurer is not required to take any action before the fee is

paid.

A fee is also payable if the Treasurer makes a decision or order

under Part 3 relating to a significant action and a person has not

notified the Treasurer of the action.

The amounts of the fees are found in the Foreign Acquisitions and

Takeovers Fees Imposition Act 2015.

A fee may be waived or remitted.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

113 When fees are payable

(1) The person mentioned in column 1 of the following table must pay

a fee to the Treasurer in accordance with column 2 of the table.

When fees are payable

Item

Column 1

This person ...

Column 2

must pay a fee ...

a person who applies for an

exemption certificate

(a) when the application is made;

and

(b) for a person who is given an

exemption certificate under

section 57--at the end of each 6

month period covered by

subsection (2).

a person who applies for a variation

of an exemption certificate

when the application is made.

a person who gives a notice of a

notifiable action under section 81

when the notice is given.

a person who gives a notice to the

Treasurer of a proposal to take an

action that is not a notifiable action

when the notice is given.

a person:

(a) in relation to whom an order is

made under Subdivision A of

Division 2 of Part 3; or

(b) to whom a no objection

notification is given;

who did not give to the Treasurer a

notice relating to the action specified

in the order or notification

before the end of 30 days after the

order or notification is given.

a person who applies under

subsection 76(6) for a variation of a

no objection notification

when the application is made.

Note:

The amounts of the fees are in Part 2 of the Foreign Acquisitions and

Takeovers Fees Imposition Act 2015.

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

6 monthly fees for developers given exemption certificates under

section 57

(2) A person (the developer) who is given an exemption certificate

under section 57 must pay a fee for a 6 month period if there were

one or more new dwelling acquisitions during the period.

(3) A 6 month period is:

(a) the period of 6 months beginning immediately after the

developer is given the certificate; or

(b) each subsequent 6 month period.

(4) A new dwelling acquisition is an acquisition by a foreign person of

an interest in a new dwelling that is covered by the exemption

certificate given to the developer.

Debts may be recovered by Treasurer

(5) 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.

114 Requirement for fees to be paid before Treasurer exercises

powers

If a fee is payable by a person under section 113 for giving a notice

or making an application, then the person is taken not to have

given the notice or made the application until:

(a) the fee has been paid; or

(b) the fee has been waived or remitted under section 115.

Note:

The notice must also be given in the approved manner (see

section 135).

115 Waiver and remission of fees

The Treasurer may, on behalf of the Commonwealth, waive or

remit the whole or a part of a fee that is payable under this Act if

the Treasurer is satisfied that it is not contrary to the national

interest to waive or remit the fee.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Part 7--Record-keeping and confidentiality of

information

Division 1--Simplified outline of this Part

116 Simplified outline of this Part

A person must make and keep records relating to:

(a)

significant actions, notifiable actions and actions

specified in exemption certificates; and

(b)

compliance with conditions in no objection notifications

and exemption certificates; and

(c)

certain disposals of interests in residential land.

The records must be kept for 5 years, except records that relate to

conditions which must be kept for 2 years. A person may commit

an offence if the person fails to make or keep the records in

accordance with Division 2.

Information that is obtained for the purposes of this Act (called

protected information) may be disclosed only for authorised

purposes. A person who obtains, uses or discloses protected

information other than as authorised by this Act may commit an

offence.

Division 2--Record-keeping

117 What records must be made and kept

(1) A person must make and keep records of every act, transaction,

event or circumstance relating to the following:

(a) any action taken by the person that is a significant action or

notifiable action to the extent that the records are relevant to

an order or decision under Part 3;

(b) an action taken by the person that is specified in an

exemption certificate;

objection notification or an exemption certificate;

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(d) the disposal of an interest in residential land by the person if

the acquisition of the interest by the person:

(i) was a significant action or notifiable action; or

(ii) would have been a significant action or notifiable action

if the action had not been specified in an exemption

certificate.

(2) The records must be:

(a) in English, or readily accessible and easily convertible into

English; and

(b) such as to enable the acts, transactions, events or

circumstances mentioned in subsection (1) to be readily

ascertained.

118 Making and keeping records

Records required by section 117 must be kept by a person until the

following time:

(a) for paragraphs 117(1)(a) and (b)--5 years after the action is

taken by the person;

(b) for paragraph 117(1)(c)--2 years after the condition ceases to

apply to the person;

disposed of by the person.

119 Offence for failing to make and keep records

(1) A person commits an offence if:

(a) the person is required to make and keep a record under this

Division; and

(b) the person does not make or keep the record in accordance

with this Division; and

not need to make or keep the record; and

(d) the person is not a corporation that has been finally dissolved.

Penalty: 30 penalty units.

(2) Subsection (1) is an offence of strict liability.

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

Division 3--Confidentiality of information

120 Meaning of protected information

(1) Information is protected information if the information is obtained

under, in accordance with or for the purposes of this Act, except:

(a) information specified in an exemption certificate given

under:

(i) section 57 (exemption certificates for new dwellings);

(ii) regulations made for the purposes of section 63; or

(b) subject to subsection (2), information that is:

(i) obtained by a person appointed to a position in the

Australian Taxation Office, or a person engaged under

the Public Service Act 1999 who is employed in the

Australian Taxation Office; and

(ii) obtained under, in accordance with or for the purposes

of this Act as a result of a delegation or subdelegation

under section 137, or a request under subsection 138(4).

Note:

Information mentioned in paragraph (b) is protected under

Division 355 in Schedule 1 to the Taxation Administration Act 1953.

(2) If:

(a) information is mentioned in paragraph (1)(b); and

(b) the information is disclosed under Subdivision 355-B in

Schedule 1 to the Taxation Administration Act 1953; and

or engaged under the Public Service Act 1999 who is

employed in the Department;

the information mentioned in paragraph (1)(b) is protected

information in relation to further uses, disclosures or records made

of the information that arise from the disclosure mentioned in

paragraph (b) of this subsection.

121 Authorisation of disclosures etc. of protected information for the

purposes of this Act

(1)

A person may make a record of, disclose or otherwise use

protected information if:

Schedule 1 Main amendments

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(a)

the person makes the record, or discloses or uses the

information, in performing the person's functions or duties,

or exercising the person's powers, under this Act; and

(b)

in relation to a disclosure--the information is disclosed to a

person who is:

(i) a Minister, an officer or an employee of the

Commonwealth, a State, the Australian Capital

Territory or the Northern Territory; or

(ii) an officer or employee of a Commonwealth, State or

Territory body; or

(iii) a person appointed by the Commonwealth for the

purposes of this Act.

(2)

A person may make a record of, disclose or otherwise use

protected information if:

(a)

the person obtains the information under subsection (1) or

this subsection; and

(b)

the person makes the record of, discloses or otherwise uses

the information for the purposes for which the information

was disclosed to the person; and

(c)

in relation to a disclosure by the person--the information is

disclosed to a person who is:

(i) a Minister, an officer or an employee of the

Commonwealth, a State, the Australian Capital

Territory or the Northern Territory; or

(ii) an officer or employee of a Commonwealth, State or

Territory body; or

(iii) a person appointed by the Commonwealth for the

purposes of this Act.

122 Authorisation of disclosures to Commonwealth Ministers and

Commonwealth entities

Disclosures for the purposes of Acts

(1) A person may disclose protected information to the Minister

administering any of the following Acts, or the accountable

authority of a Commonwealth entity that deals with the

administration of any of the following Acts, for the purposes of

administering that Act:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

(a) the Airports Act 1996;

(b) the Australian Crime Commission Act 2002;

(d) the Australian Securities and Investments Commission Act

2001;

(e) the Australian Security Intelligence Organisation Act 1979;

(f) the Banking Act 1959;

(g) the Corporations Act 2001;

(h) the Financial Sector (Shareholdings) Act 1998;

(i) the Industry Research and Development Act 1986;

(j) the Inspector-General of Intelligence and Security Act 1986;

(k) the Insurance Acquisitions and Takeovers Act 1991;

(l) the Intelligence Services Act 2001;

(m) the Migration Act 1958;

(n) the Proceeds of Crime Act 2002;

(o) the Qantas Sale Act 1992;

(p) a taxation law (within the meaning of section 995-1 of the

Income Tax Assessment Act 1997);

(q) the Telstra Corporation Act 1991;

(r) any other law prescribed by the regulations.

Disclosures for the purposes of Ministerial responsibilities

(2) A person may disclose protected information to a Minister

responsible for any of the following for the purposes of enabling

the Minister to discharge that responsibility:

(a) agriculture;

(b) industry policy;

(d) taxation policy;

(e) foreign investment in Australia.

(3) A person may disclose protected information to the Secretary of a

Department administered by a Minister responsible for any of the

following for the purposes of assisting the Minister to discharge

that responsibility:

(a) agriculture;

(b) industry policy;

Schedule 1 Main amendments

100

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(d) taxation policy;

(e) foreign investment in Australia.

123 Authorisation of disclosures relating to law enforcement

A person may disclose protected information to an enforcement

body (within the meaning of the Privacy Act 1988) if the person

reasonably believes the disclosure of the information is reasonably

necessary for one or more enforcement related activities (within

the meaning of that Act) conducted by or on behalf of the

enforcement body.

124 Authorisation of disclosures of periodic aggregate information

A person may disclose protected information if the information:

(a) specifies the matters prescribed by the regulations for the

purposes of reporting on the administration of this Act; and

(b) does not identify, and is not reasonably capable of being used

to identify, a person.

125 Authorisation of disclosures of information in the public domain

A person may disclose protected information if the information is,

at the time of the disclosure, already in the public domain (except

as a result of a contravention of this Division).

126 Authorisation of disclosures where consent or to person who

gave information or related entity

Person to whom information relates consents

(1)

A person may make a record of, or disclose or otherwise use,

protected information if the person to whom the information relates

gives written consent.

Person who provided information

(2) A person may disclose protected information if the disclosure is to:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

101

(a) the person, or an agent of the person, who provided the

information under, in accordance with or for the purposes of

this Act; or

(b) an entity that is a member of the same wholly-owned group

(within the meaning of the Income Tax Assessment Act 1997)

as the person mentioned in paragraph (a).

127 Authorisation to use information for purposes of proceedings

(1) A person who obtains protected information may disclose the

information to a court or tribunal, or in accordance with an order of

a court or tribunal, (whether within or outside Australia) for the

purposes of proceedings if:

(a) the Commonwealth is a party to the proceedings; and

(b) the Treasurer is satisfied that it is not contrary to the national

interest.

Note:

A person must not be required to provide information to a court or

tribunal (see section 130).

(2) A person who obtains protected information under, or in

accordance with, subsection (1) may make a record of, or disclose

or otherwise use, the information for the purposes for which the

information was disclosed under that subsection.

128 Offence relating to protected information

A person commits an offence if:

(a) the person obtains information; and

(b) the information is protected information; and

information; and

(d) the record, disclosure or use is not authorised by this Part.

Note:

For an exception for use of information in good faith, see section 129.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

129 Exception for use of information in good faith

Section 128 does not apply if the person makes a record of,

discloses or otherwise uses protected information in good faith:

Schedule 1 Main amendments

102

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

(a) in performing, or purportedly performing, his or her

functions or duties under this Act; or

(b) in exercising, or purportedly exercising, his or her powers

under this Act.

Note:

A defendant bears an evidential burden in relation to the matters in

this section (see subsection 13.3(3) of the Criminal Code).

130 No requirement to provide information

A person (whether within or outside Australia) must not, except for

the purposes of this Act, be required:

(a) to produce any document in his or her possession; or

(b) to disclose any matter or thing of which he or she had notice;

to a court, tribunal, authority or person having power to require the

production of documents or the answering of questions.

Part 8--Miscellaneous

131 Simplified outline of this Part

This Part contains a number of miscellaneous provisions including

the following:

(a)

the power of certain courts to preserve interests, and

enforce orders and conditions;

(b)

the power of the Treasurer to require additional

information;

(c)

the power of the Treasurer and the Secretary to delegate

his or her powers under this Act;

(d)

a provision clarifying that a failure to comply with this

Act does not invalidate an action;

(e)

the requirement for applications and notices to be given

in a manner approved by the Secretary;

(f)

a regulation-making power.

132 Powers of courts to enforce Treasurer's orders

(1) If a person (the offender) has committed an offence or contravened

a civil penalty provision in Part 5, the Federal Court of Australia,

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

103

the Federal Circuit Court of Australia or the Supreme Court of a

State or Territory may, on application by the Treasurer, make any

order it thinks fit:

(a) if the contravention was failing to give a notice under

section 81, or taking an action before the day mentioned in

section 82, in relation to an acquisition of an interest in

Australian land--to preserve the interest; or

(b) if the contravention was of an order made under Part 3--to

achieve the purpose for which the order was made; or

notification or an exemption certificate--to achieve the

purpose for which the condition was imposed by the

Treasurer.

(2) To avoid doubt, the court may make an order:

(a) whether or not the offender has been convicted of an offence,

or a civil penalty order has been made against the offender, in

relation to the contravention; and

(b) whether or not the contravention still continues; and

contravention have been or are to be instituted.

Kinds of orders court may make

(3) Without limiting subsection (1), the court may make any of the

following orders.

Kinds of orders court may make

Item

In relation to ...

the court may make an order ...

a change of control of

an Australian entity

or Australian

business or the

acquisition of an

interest in securities

in, or in assets of, an

Australian entity

(a) restraining the exercise of any rights attached to

securities in, or assets of, the entity or business

that are held by the offender; or

(b) prohibiting or deferring the payment of any

sums due to the offender in respect of such

securities or assets; or

assets; or

(d) that any exercise of rights attached to such

securities or assets be disregarded; or

(e) prohibiting a person from acting as a senior

Schedule 1 Main amendments

104

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Kinds of orders court may make

Item

In relation to ...

the court may make an order ...

officer of the entity or from being involved in

the central management and control of the entity

or business; or

(f) directing the entity to make such alterations of

any of its constituent documents as are specified

in the order.

a change in the

control of a foreign

entity or the

acquisition of an

interest in securities

in, or in assets of, a

foreign entity

(a) restraining the exercise of any rights attached to

securities held by the foreign entity in an

Australian subsidiary; or

(b) prohibiting or deferring the payment of any

sums due to the foreign entity in respect of

securities held by it in an Australian subsidiary;

of, an Australian subsidiary of the foreign

entity; or

(d) directing the disposal of assets of the foreign

entity that consist of assets of an Australian

business carried on by the foreign entity

(whether alone or together with one or more

other persons) or prohibiting or deferring the

payment of any sums due to the foreign entity in

respect of any such assets; or

(e) that any exercise of rights attached to securities

held by the foreign entity in an Australian

subsidiary be disregarded; or

(f) that any exercise of rights attached to assets of

the foreign entity of a kind mentioned in

paragraph (d) be disregarded; or

(g) prohibiting a person from acting as a senior

officer of, or from being concerned in the

central management and control of, an

Australian subsidiary of the foreign entity; or

(h) directing an Australian subsidiary of the foreign

entity to make such alterations of any of its

constituent documents as are specified in the

order.

the acquisition of an

interest in Australian

land

(a) restraining the exercise of any rights attached to

any interest held by the offender in the land or

other thing concerned; or

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

105

Kinds of orders court may make

Item

In relation to ...

the court may make an order ...

(b) prohibiting or deferring the payment of any

sums due to the offender in respect of any such

interest held by the offender; or

by the offender; or

(d) that any exercise of rights attached to any such

interest held by the offender be disregarded.

any significant action

prescribed by

regulations made for

the purposes of

section 44

of a kind prescribed by regulations made for the

purposes of this item.

Additional powers

(4) In addition to the other powers conferred on a court by this section,

the court may make the following orders:

(a) an order directing any person to do or refrain from doing a

specified act for the purpose of securing compliance with any

other order made under this section;

(b) an order containing such ancillary or consequential

provisions as the court thinks just.

(5) Before making an order under this section, the court may give a

direction requiring either or both of the following:

(a) notice of the application by the Treasurer to be given to such

persons as it thinks fit;

(b) for the application by the Treasurer to be published in such

manner as it thinks fit.

(6) The court may, by order:

(a) rescind, vary or discharge an order made by it under this

section; or

(b) suspend the operation of an order made by it under this

section.

Schedule 1 Main amendments

106

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Other powers of court unaffected

(7) The powers conferred on a court by this section are in addition to,

and not instead of, any other powers of the court, whether

conferred by this Act or otherwise.

133 Treasurer may require information

(1) The Treasurer may give a notice under this section if the Treasurer

has reason to believe that a person can give information or produce

documents relating to matters that are relevant to the exercise by

the Treasurer of his or her powers under this Act.

(2) The Treasurer may, by notice in writing given to the person,

require the person:

(a) to give any such information to the Treasurer or any other

specified person acting on the Treasurer's behalf; or

(b) to produce any such documents to the Treasurer or any other

specified person acting on the Treasurer's behalf.

Note:

The periods mentioned in section 77 (time limit on making orders and

decisions) stop until the person gives the information or produces the

documents (see subsection 77(4)).

Giving information

(3) The notice must specify:

(a) a period (of at least 14 days) within which the information

must be given or the documents produced; and

(b) the manner of giving the information or producing

documents.

The Treasurer may, in writing, extend (or further extend) the

period mentioned in paragraph (a) if the Treasurer is satisfied that

it is reasonably necessary.

(4) The information mentioned in paragraph (2)(a) must be given to

the Treasurer:

(a) in writing signed by that person; or

(b) for a corporation--by a competent officer of the corporation.

Offence

(5) A person commits an offence if:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

107

(a) the person is given a notice under this section; and

(b) the person does not comply with the notice.

Note:

For the liability of an officer of a corporation authorising or permitting

contraventions, see section 102.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

(6) Subsection (5) does not apply if the person complies with the

notice to the extent to which the person is capable of complying

with it.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6) (see subsection 13.3(3) of the Criminal Code).

Self-incrimination

(7) A person is not excused from giving information or producing a

document under this section on the ground that doing so might tend

to incriminate him or her.

(8) However, in the case of an individual:

(a) the answer or information given; or

(b) any document produced; or

or thing; or

(d) any information, document or thing obtained as a direct or

indirect consequence of giving the information or answer, or

producing the document or thing;

is not admissible in evidence against him or her in any criminal

proceedings or in proceedings for the recovery of a civil penalty,

other than proceedings under this Act or section 137.1 or 137.2 of

the Criminal Code (false or misleading information or documents)

relating to this Act.

134 Validity of acts done in contravention of this Act

An act is not invalidated by the fact that it constitutes an offence

against or contravention of a civil penalty provision of this Act.

Schedule 1 Main amendments

108

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

135 Manner of notification and application

(1) A notice given, or application made, for the purposes of this Act is

of no effect unless it is given or made in the manner approved, in

writing, by the Secretary.

Note:

The Secretary may determine different manners of giving notices or

making applications for different classes of notices or applications

(see subsection 33(3A) of the Acts Interpretation Act 1901).

(2) The manner approved by the Secretary may be electronic

communication.

(3) To avoid doubt, a notice given for the purposes of this Act

includes:

(a) a notice required by a condition imposed in an exemption

certificate or a no objection notification; and

(b) a notice under section 81 (notice of notifiable actions); and

(notice of actions that are not notifiable actions).

136 Withdrawal of applications and notices

An application or notice that is withdrawn is of no effect.

137 Delegation of powers or functions

Delegations by Treasurer

(1) The Treasurer may, in writing, delegate to the following persons all

or any of the Treasurer's powers or functions under this Act

(except under sections 105, 106, 107 and 110):

(a) the Secretary;

(b) the Commissioner of Taxation;

employed in the Department or the Australian Taxation

Office.

(2) The Treasurer may delegate the Treasurer's power under

section 105 (Treasurer's declaration relating to charge), 106 (effect

of charge on land), 107 (vesting of interest in land) or 110

(exemption from stamp duty and other State or Territory taxes and

fees) to the following persons:

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

109

(a) the Secretary;

(b) the Commissioner of Taxation;

Department or the Australian Taxation Office.

Delegations by Secretary

(3) The Secretary may, in writing, delegate to the following persons all

or any of the Secretary's powers or functions under this Act:

(a) the Commissioner of Taxation;

(b) a person engaged under the Public Service Act 1999 who is

employed in the Department or the Australian Taxation

Office.

Subdelegations by Commissioner of Taxation

(4) If a power or function is delegated to the Commissioner of

Taxation under this section, the Commissioner may, in writing,

subdelegate the power or function to a person engaged under the

Public Service Act 1999 who is employed in the Australian

Taxation Office.

Note:

See section 138 for the effect of a delegation to the Commissioner of

Taxation.

(5) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901

apply in relation to the subdelegation in a way corresponding to the

way in which they apply in relation to a delegation.

Directions

(6) In exercising powers or performing functions delegated or

subdelegated by a person under this section, the delegate or

subdelegate must comply with any directions of the person.

Delegations in relation to specified kinds of matters

(7) Without limiting this section or subsection 33(3A) of the Acts

Interpretation Act 1901, a power or function may be delegated or

subdelegated generally or only in relation to specified kinds of

matters.

Schedule 1 Main amendments

110

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

138 Powers of Commissioner of Taxation

Powers of Commissioner of Taxation as a result of delegation

(1) If a power or function under a provision of this Act is delegated to

the Commissioner of Taxation under section 137, the

Commissioner has the general administration of this Act to the

extent of administering the provision.

Note:

The provision is therefore a taxation law for the purposes of the

Taxation Administration Act 1953 (among other laws). That Act

contains a wide range of provisions about gathering, protecting and

dealing with information, the exercise of powers and the performance

of functions, under taxation laws, and the enforcement of taxation

laws.

(2) However, the following do not apply in relation to this Act:

(a) Part 4-25 (charges and penalties), other than section 288-35

and Division 298 to the extent that it relates to that section, in

Schedule 1 to the Taxation Administration Act 1953;

(b) paragraph 355-15(c) in that Schedule (application of

Division 355);

behalf of other entities).

(3) To avoid doubt, the Secretary or a person engaged under the Public

Service Act 1999 who is employed in the Department may be a

taxation officer (within the meaning of subsection 8J(1) of the

Taxation Administration Act 1953) to the extent that this Act is a

taxation law.

Powers of Commissioner of Taxation as a result of request by

Treasurer

(4) The Treasurer may request, in writing, the Commissioner of

Taxation to exercise his or her powers under section 353-10 or

353-15 (powers to obtain information and evidence and access

premises) in Schedule 1 to the Taxation Administration Act 1953 in

relation to a matter if a power or function has not been delegated to

the Commissioner under section 137 in relation to the matter.

(5) If the Treasurer does so, the Commissioner of Taxation (or an

individual authorised by the Commissioner) may exercise his or

her powers under those sections of that Act as if a reference in

Main amendments Schedule 1

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

111

those sections to a taxation law included a reference to this Act to

the extent that it relates to the matter.

139 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed by the

regulations; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) Without limiting subsection (1), the regulations may provide for a

method for indexing a value or an amount prescribed for the

purposes of this Act.

(3) Despite subsection 14(2) of the Legislative Instruments Act 2003,

the regulations may provide in relation to a matter by applying,

adopting or incorporating, with or without modification, any matter

contained in any other instrument or other writing as in force or

existing from time to time.

Schedule 2 Amendments contingent on the Acts and Instruments (Framework Reform)

Act 2015

112

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Schedule 2

--Amendments contingent on the

Acts and Instruments (Framework

Reform) Act 2015

Foreign Acquisitions and Takeovers Act 1975

1 Section 3

Omit "publication", substitute "registration".

2 Section 66

Omit "publication", substitute "registration".

3 Subsections 67(1) and (3) and 68(1)

After "Treasurer may", insert ", by notifiable instrument,".

4 Subsection 68(2) (note)

Omit "published in the Gazette", substitute "registered on the Federal

5 Subsection 69(1)

After "Treasurer may", insert ", by notifiable instrument,".

6 Section 72 (heading)

Repeal the heading, substitute:

72 Registration and commencement of orders

7 Subsection 72(1) (heading)

Repeal the heading, substitute:

Registration of orders

8 Paragraph 72(1)(b)

Repeal the paragraph, substitute:

(b) registered on the Federal Register of Legislation within 10

days after it is made.

Amendments contingent on the Acts and Instruments (Framework Reform) Act 2015

Schedule 2

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

113

9 Paragraphs 72(2)(a) and (b)

Omit "published", substitute "registered".

10 Subparagraph 77(2)(c)(ii)

Omit "published the order in the Gazette", substitute "registered the

order".

11 Paragraph 77(3)(b)

Omit "published in the Gazette", substitute "registered".

12 Subparagraph 77(3)(d)(i)

Omit "published the order in the Gazette", substitute "registered the

order".

13 Section 80

Omit "publication", substitute "registration".

14 Subsection 139(3)

Omit "Legislative Instruments Act 2003", substitute "Legislation Act

2003".

Schedule 3 Application and transitional provisions for Schedules 1 and 2 and Fees

Imposition Act

114

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Schedule 3

--Application and transitional

provisions for Schedules 1 and 2 and

Fees Imposition Act

1 Definitions

In this Schedule:

civil penalty provision has the same meaning as in the Regulatory

Powers (Standard Provisions) Act 2014.

commencement means the commencement of Schedule 1 to this Act.

new provisions means the Foreign Acquisitions and Takeovers Act

1975 as in force immediately after commencement.

old provisions means the Foreign Acquisitions and Takeovers Act 1975

as in force immediately before commencement.

Policy means:

(a) the authoritative English version of the Ministerial statement

called Australia's Foreign Investment Policy, first released in

June 2010; or

(b) any earlier equivalent Ministerial statement (such as the

Summary of Australia's Foreign Investment Policy).

transitional period means the period beginning on 1 March 2015 and

ending on 30 November 2015.

2 Notices given before commencement

Notices under old section 25 and the Policy

(1)

A notice that is given under section 25 of the old provisions or the

Policy before commencement is taken, after commencement, to be a

notice that a significant action (that is not a notifiable action) is

proposed to be taken.

Note:

The Treasurer has certain powers if the Treasurer is given a notice that a significant

action is proposed to be taken (see sections 74, 75 and 77 of the new provisions).

Notices under old section 26 or 26A

(2)

A notice that is given under section 26 or 26A of the old provisions

before commencement is taken, after commencement, to have been

given under section 81 of the new provisions.

Application and transitional provisions for Schedules 1 and 2 and Fees Imposition Act

Schedule 3

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

115

(3)

To avoid doubt, a notice given under section 26 or 26A of the old

provisions is a notice stating that a significant action is proposed to be

taken.

Note:

Certain powers and limitations apply if a notice is given stating that a significant action

is proposed to be taken (see sections 74, 75 and 77 of the new provisions).

(4)

Subitems (1) and (2) do not apply in relation to section 113 of the new

provisions (when fees are payable).

Notices requiring information and documents

(5)

A notice that is given under section 36 of the old provisions before

commencement is taken, after commencement, to have been given

under section 133 of the new provisions.

(6)

Despite subitem (5), subsections 77(4) (effect of notice on time limits)

and 133(7) and (8) (self-incrimination) of the new provisions apply only

in relation to notices given under section 133 of the new provisions after

commencement.

Time of giving notices

(7)

To avoid doubt, nothing in this item changes the time when a notice is

given.

3 Notices given during transitional period in relation to

actions relating to Australian rural land

(1)

A notice that is given under section 25 or 26 of the old provisions or the

Policy during the transitional period in relation to Australian rural land

is taken, after commencement, to be a notice given under section 81 of

the new provisions in relation to agricultural land.

(2)

Section 77 (time limit on making orders and decisions) of the new

provisions applies in relation to such a notice as if the notice were given

at commencement.

(3)

A notice given by the Treasurer in accordance with the Policy during

the transitional period in relation to an acquisition or proposed

acquisition of Australian rural land binds the Commonwealth after

commencement.

Note:

The notice does not bind the person to whom the notice is given.

Schedule 3 Application and transitional provisions for Schedules 1 and 2 and Fees

Imposition Act

116

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

References to agricultural land

(4)

The new provisions apply in relation to an interest in Australian rural

land to which this item applies as if a reference in those provisions to

agricultural land were a reference to Australian rural land.

4 Actions taken during transitional period in relation to

Australian rural land

Requirement to give notice

(1)

A foreign person who acquires an interest in Australian rural land

during the transitional period must notify the Treasurer in accordance

with section 135 of the new provisions unless the person has notified

the Treasurer of the acquisition or proposed acquisition before

commencement.

(2)

A notice given under this item must be given within 30 days of

commencement.

(3)

A notice given under this item is taken to have been given under

section 81 of the new provisions.

Offence

(4)

A person commits an offence if:

(a) the person is a foreign person; and

(b) the person acquires an interest in Australian rural land; and

(d) the person does not notify the Treasurer of the acquisition

during the transitional period; and

(e) the person does not notify the Treasurer of the acquisition in

accordance with this item.

Penalty: Imprisonment for 3 years, or 750 penalty units, or both.

Civil penalty provisions

(5)

A person must not contravene subitem (1) or (2).

Civil penalty:

250 penalty units.

Application and transitional provisions for Schedules 1 and 2 and Fees Imposition Act

Schedule 3

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

117

(6)

Section 99 of the new provisions applies as if the civil penalty

provisions in subitems (1) and (2) were civil penalty provisions of the

Foreign Acquisitions and Takeovers Act 1975.

References to agricultural land

(7)

The new provisions apply in relation to an interest in Australian rural

land to which this item applies as if a reference to agricultural land were

a reference to Australian rural land.

5 Orders, advices and decisions

(1)

The following table translates orders or advices given, or decisions

made, before commencement under the old provisions for the purposes

of the new provisions.

Orders, advice and decisions

Item

Column 1

This thing done under this

provision of the old provisions ...

Column 2

is taken to be this thing done

under this provision of the new

provisions

an order given under

subsection 18(2), 19(2), 20(2), 21(2)

or 21A(2)

an order given under

subsection 67(2).

an order given under

subsection 18(3), 19(3) or 21A(3)

an order given under

subsection 67(3).

an order given under

subsection 18(4), 19(4), 20(3), 21(3)

or 21A(4)

an order given under

subsection 69(2).

an order given under section 22

an interim order given under

section 68.

a decision made under

subsection 25(1A) where conditions

have been imposed

a decision made under

paragraph 74(2)(a).

an advice given under

subsection 25(1B) where conditions

have been imposed

a no objection notification given

under paragraph 74(2)(b).

a decision made under

subsection 25(1A) where conditions

have not been imposed

a decision made under

paragraph 75(2)(a).

Schedule 3 Application and transitional provisions for Schedules 1 and 2 and Fees

Imposition Act

118

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Orders, advice and decisions

Item

Column 1

This thing done under this

provision of the old provisions ...

Column 2

is taken to be this thing done

under this provision of the new

provisions

an advice given under

subsection 25(1B) where conditions

have not been imposed

a no objection notification given

under paragraph 75(2)(b).

Variation and revocation of orders

(2)

The new provisions apply, after commencement, in relation to orders

and advices mentioned in column 1 of the table in subitem (1) as if

subparagraph 71(1)(b)(ii) and paragraph 74(6)(b) of the new provisions

were omitted.

Note:

Subparagraph 71(1)(b)(ii) and paragraph 74(6)(b) of the new provisions deal with when

orders and no objection notifications can be varied and revoked.

Gazettal

(3)

If:

(a) an order is published in the Gazette before Schedule 2

commences; and

(b) the period mentioned in section 25 of the old provisions has

not ended by that commencement;

the new provisions apply, after that commencement, as if a reference to

the registration of a notifiable instrument were a reference to

publication in the Gazette.

Application for all purposes

(4)

To avoid doubt, this item applies for all purposes, including for the

purposes of Part 5 (offences and civil penalties) and section 132

(powers of court to enforce Treasurer's orders) of the new provisions.

6 Disposal orders

(1)

Section 69 (disposal orders) of the new provisions applies in relation to:

(a) any significant action taken before commencement if the

Treasurer would have had the power (before commencement)

Application and transitional provisions for Schedules 1 and 2 and Fees Imposition Act

Schedule 3

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

119

to make an order under subsection 18(4), 19(4), 20(3), 21(3)

or 21A(4) of the old provisions in relation to the action; and

(b) any acquisition of an interest in Australian rural land taken

during the transitional period; and

(2)

Subitem (1) does not affect the operation of section 77 (time limit on

making orders and decisions) of the new provisions.

7 Anti-avoidance

Sections 78 (anti-avoidance) and 79 (persons involved in avoidance

taken to be associates) of the new provisions apply in relation to any

scheme, whether entered into before or after commencement.

8 Certificates

Certificates given before commencement

(1)

A certificate given under paragraph 3(e) or (r) of the Foreign

Acquisitions and Takeovers Regulations 1989 before commencement is

taken, after commencement, to have been given under section 57 of the

new provisions (exemption certificates for new dwellings).

(2)

A certificate given under paragraph 3(h) of the Foreign Acquisitions

and Takeovers Regulations 1989 before commencement is taken, after

commencement, to have been given under section 58 of the new

provisions (exemption certificates for foreign persons).

(3)

Subitems (1) and (2) do not apply for the purposes of section 113 (when

fees are payable) of the new provisions.

Applications for certificates made before commencement

(4)

The Treasurer may give a certificate under section 57 or 58 of the new

provisions to a person if:

(a) the person has made an application for a certificate under

paragraph 3(e), (h) or (r) of the Foreign Acquisitions and

Takeovers Regulations 1989 before commencement; and

(b) a decision on the application has not been made by

commencement.

Schedule 3 Application and transitional provisions for Schedules 1 and 2 and Fees

Imposition Act

120

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Application of this item

(5)

This item applies for all purposes, including for the purposes of Part 5

of the new provisions (offences and civil penalties).

9 Offences and civil penalties

(1)

Part 5 (offences and civil penalties), except sections 102 and 103, of the

new provisions applies in relation to any conduct engaged in after

commencement (including in relation to orders or notices given before

commencement).

(2)

Sections 102 (liability of officers of corporations authorising or

permitting contraventions) and 103 (civil penalties for officers of

corporations failing to prevent contraventions) of the new provisions

apply in relation to a conviction of an offence against the new

provisions, or a civil penalty order that is made against a corporation for

a contravention of the new provisions, after commencement for conduct

engaged in after commencement.

10 Fees

(1)

Section 113 (when fees are payable) of the new provisions applies in

relation to:

(a) applications made after commencement under the new

provisions; and

(b) orders, notices and notifications given after commencement

in relation to action relating to Australian rural land taken

during the transitional period; and

in relation to action taken after commencement.

(2)

Section 12 of the Foreign Acquisitions and Takeovers Fees Imposition

Act 2015 applies in relation to each financial year starting on or after

1 July 2016.

11 Record-keeping

Division 2 of Part 7 (record-keeping) of the new provisions applies in

relation to:

(a) actions mentioned in paragraph 117(1)(a) or (b) of the new

provisions that are taken after commencement; and

(b) acts, transactions, events or circumstances that:

Application and transitional provisions for Schedules 1 and 2 and Fees Imposition Act

Schedule 3

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

121

(i) relate to whether a person is complying with a condition

in a no objection notification or an exemption

certificate; and

(ii) occur after commencement (including in relation to

notices or certificates given before commencement);

and

commencement.

12 Confidentiality of information

Division 3 of Part 7 (confidentiality of information) of the new

provisions applies in relation to records or disclosures made, and uses,

of protected information after commencement, whether the protected

information was obtained before or after that time.

13 Transitional rules

(1)

The Treasurer may, by legislative instrument, make rules prescribing

matters of a transitional nature (including prescribing any saving or

application provisions) relating to the amendments or repeals made by

this Act.

(2)

However, to avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(3)

This Schedule (other than subitem (2)) does not limit the rules that may

be made for the purposes of subitem (1).

Schedule 4 Amendments of confidentiality provisions

122

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

Schedule 4

--Amendments of confidentiality

provisions

Anti-Money Laundering and Counter-Terrorism Financing

Act 2006

1 Subsection 125(1)

Repeal the subsection, substitute:

(1) The Commissioner of Taxation and any taxation officer is entitled

to access to AUSTRAC information for any purpose relating to the

facilitation of the administration or enforcement of:

(a) a taxation law; or

(b) the Foreign Acquisitions and Takeovers Act 1975, if the

Commissioner or officer is accessing the information in

relation to a matter for which there has been a request under

subsection 138(4) of that Act.

Income Tax Assessment Act 1997

2 Subsection 995-1(1)

Insert:

property right or interest has the meaning given by

subsection 354-5(2) in Schedule 1 to the Taxation Administration

Act 1953.

Taxation Administration Act 1953

3 After Division 353 in Schedule 1

Insert:

Amendments of confidentiality provisions Schedule 4

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

123

Division 354--Power to obtain information about rights or

interests in property

354-5 Power to obtain information about rights or interests in

property

(1) The Commissioner may by notice in writing require you to give the

Commissioner information required for the purpose of the

administration or operation of a

taxation law if:

(a) both of the following apply:

(i) you have a legal or equitable interest in real or personal

property;

(ii) the information is about any other

property right or

interest in the property; or

(b) both of the following apply:

(i) the Commissioner is satisfied that you may have

information about a property right or interest in

property;

(ii) the information is about the property right or interest.

Note:

Failing to comply with a requirement may be an offence under

section 8C.

(2) A property right or interest is:

(a) a legal or equitable interest in the property; or

(b) a right, power or privilege in connection with the property;

whether present or future and whether vested or contingent.

Content of notice

(3) The notice must specify the following:

(a) the property to which the notice applies;

(b) the information required;

(d) the manner of giving the information.

(4) The information required may include the following:

(a) details of your interest in the property;

(b) details (including name and address) of any person who has a

property right or interest in the property;

Schedule 4 Amendments of confidentiality provisions

124

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

interest in the property;

(d) details of each property right or interest in the property,

including:

(i) the nature and extent of the right or interest; and

(ii) the circumstances giving rise to the right or interest.

(5) If:

(a) you are given a notice under paragraph (1)(a); and

(b) you do not have the information required but another person

has the information;

you must make all reasonable efforts to obtain the information.

(6) To avoid doubt, you may be required as a result of a notice under

this section to create a document giving the information required.

(7) The period specified in the notice must be:

(a) at least 14 days after the notice is given (except if

paragraph (b) applies); or

(b) if the Commissioner is satisfied that a shorter period is

necessary--the shorter period.

Relationship with section 353-10

(8) Nothing in this section affects the operation of section 353-10 and

nothing in that section affects the operation of this section.

4 Subsection 355-55(1) in Schedule 1 (at the end of the table)

Add:

a Minister responsible for:

(a) agriculture; or

(b) industry policy; or

(d) taxation policy; or

(e) foreign investment in

Australia

(a) is of information contained in the

Agricultural Land; and

(b) is for the purpose of enabling that

Minister to discharge that

responsibility.

5 Subsection 355-65(4) in Schedule 1 (table items 1 to 4)

Repeal the items, substitute:

the Australian Securities and

is for the purpose of performing any

Amendments of confidentiality provisions Schedule 4

No. , 2015

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

125

Investments Commission

functions or exercising any powers

under any Act or instrument, or part of

any Act or instrument, of which the

Commission has the general

administration.

6 Subsection 355-65(4) in Schedule 1 (table item 7)

Repeal the item, substitute:

the Secretary of the Department

is for the purpose of administering the

Foreign Acquisitions and Takeovers Act

1975.

7 Subsection 355-65(8) in Schedule 1 (table items 3 and 4)

Repeal the items, substitute:

the

Immigration Secretary or the

Australian Border Force

Commissioner (within the

meaning of the Australian

Border Force Act 2015)

is for the purpose of performing any

functions or exercising any powers

under any Act or instrument, or part of

any Act or instrument, administered by

the Minister administering the

Immigration Department.

8 Subsection 355-65(8) in Schedule 1 (after table item 6)

Insert:

the Secretary of a Department

administered by a Minister

responsible for:

(a) agriculture; or

(b) industry policy; or

(d) taxation policy; or

(e) foreign investment in

Australia

(a) is of information contained in the

Agricultural Land; and

(b) is for the purpose of enabling that

Department to assist that Minister to

discharge that responsibility.

9 Section 355-75 in Schedule 1

Repeal the section, substitute:

355-75 Limits on disclosure to courts and tribunals

An entity who is or was a

taxation officer is not to be required to

disclose to a court or tribunal

protected information that was

Schedule 4 Amendments of confidentiality provisions

126

Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015

No. , 2015

acquired by the entity as a taxation officer except where it is

necessary to do so for the purpose of carrying into effect the

provisions of:

(a) a

taxation law; or

(b) the Foreign Acquisitions and Takeovers Act 1975, if the

entity acquired the information because of a request under

subsection 138(4) of that Act.

Note:

See also section 8ZK of this Act (about protection of witnesses).

10 Paragraph 355-155(b) in Schedule 1

After "Subdivision 355-B", insert "(except subsection 355-65(1)

operating in relation to item 7 in the table in subsection 355-65(4))".

11 Section 355-205 in Schedule 1

Repeal the section, substitute:

355-205 Limits on on-disclosure to courts or tribunals

An entity is not to be required to disclose to a court or tribunal

protected information that was acquired by the entity under

Subdivision 355-B or this Subdivision, except where it is necessary

to do so for the purpose of carrying into effect the provisions of:

(a) a

taxation law; or

(b) if the entity has or had duties, functions or powers under the

Foreign Acquisitions and Takeovers Act 1975--that Act.

Note:

See also section 8ZK of this Act (about protection of witnesses).

12 Application

(1)

The amendment of section 125 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule applies

in relation to the accessing of information on or after the

commencement of this Schedule, whether the information was obtained

before, on or after the commencement of this Schedule.

(2)

The amendments of Division 355 in Schedule 1 to the Taxation

Administration Act 1953 made by this Schedule apply in relation to

records and disclosures of information made on or after the

commencement of this Schedule, whether the information was obtained

before, on or after the commencement of this Schedule.

Commonwealth of Australia Bills

FOREIGN ACQUISITIONS AND TAKEOVERS LEGISLATION AMENDMENT BILL 2015