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AUSTRALIA'S FOREIGN RELATIONS (STATE AND TERRITORY ARRANGEMENTS) ACT 2020 (NO. 116, 2020) - SECT 46

Subsidiary arrangements that are legally binding under Australian law

When the Minister may make declaration

             (1)  The Minister may make a declaration under subsection (2) or (3) in relation to a subsidiary arrangement of a foreign arrangement if:

                     (a)  subsection 45(1) is satisfied in relation to the subsidiary arrangement; and

                     (b)  apart from the declaration, the subsidiary arrangement would be legally binding under an Australian law.

Note 1:       The Minister must take into account certain matters when making a decision to make a declaration under subsection (2) or (3) (see section 51).

Note 2:       Section 49 deals with general matters about the declaration (such as revocation and giving notice to the parties).

Declaration that arrangement is invalid and unenforceable

             (2)  The Minister may make a written declaration that:

                     (a)  the subsidiary arrangement:

                              (i)  is invalid and unenforceable to the specified extent and from the specified day; or

                             (ii)  if the foreign arrangement was entered in contravention of subsection 22(1) or 36(3)--is, and is taken to have always been, invalid and unenforceable to the specified extent; and

                     (b)  each party to the subsidiary arrangement that is a regulated Australian party must not, to the specified extent and from the specified day:

                              (i)  give effect to the arrangement; or

                             (ii)  hold out, or conduct itself on the basis, that it can give effect to the arrangement; or

                            (iii)  hold out, or conduct itself on the basis, that the arrangement is valid or enforceable; and

                     (c)  each other party to the subsidiary arrangement must not, to the specified extent and from the specified day:

                              (i)  give effect to the arrangement in Australia; or

                             (ii)  hold out in Australia, or conduct itself in Australia on the basis, that it can give effect to the arrangement; or

                            (iii)  hold out in Australia, or conduct itself in Australia on the basis, that the arrangement is valid or enforceable.

The declaration in relation to paragraph (a) has effect accordingly.

Declaration requiring variation or termination of arrangement

             (3)  The Minister may make a written declaration that:

                     (a)  each party to the subsidiary arrangement that is a regulated Australian party must:

                              (i)  vary or terminate the arrangement in accordance with any specified requirements; and

                             (ii)  as soon as practicable after complying with subparagraph (i), notify the Minister, in writing, of its compliance with that subparagraph; and

                     (b)  each party to the subsidiary arrangement that is a regulated Australian party must not, to the specified extent and from the specified day:

                              (i)  give effect to the arrangement; or

                             (ii)  hold out, or conduct itself on the basis, that it can give effect to the arrangement; and

                     (c)  each other party to the subsidiary arrangement must not, to the specified extent and from the specified day:

                              (i)  give effect to the arrangement in Australia; or

                             (ii)  hold out in Australia, or conduct itself in Australia on the basis, that it can give effect to the arrangement.

Compliance with declaration

             (4)  Each party to the subsidiary arrangement must comply with the declaration:

                     (a)  if the Minister has given the party a copy of the declaration under subsection 49(5); and

                     (b)  to the extent that the declaration applies to the party.

Matters relating to declaration

             (5)  For the purposes of paragraph (3)(a), the declaration may require that the subsidiary arrangement be varied or terminated:

                     (a)  in accordance with the Australian law; or

                     (b)  in accordance with any other requirements; or

                     (c)  in accordance with both the Australian law and other requirements.

             (6)  The Minister may make a declaration under subsection (2) or (3) only to the extent that the subsidiary arrangement was entered under the auspices of the foreign arrangement.

             (7)  A declaration made under subsection (2) or (3) is not a legislative instrument.



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