Federal Register of Legislation - Australian Government

Primary content

This instrument updates the delegations of the Treasurer’s powers under the Foreign Acquisitions and Takeovers Act 1975 and the Foreign Acquisitions and Takeovers Regulation 2015.
Administered by: Treasury
Registered 23 Dec 2020
Start Date 22 Dec 2020
Table of contents.

 

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

made under the Foreign Acquisitions and Takeovers Act 1975

Compilation No. 02

Compilation date:                              22 December 2020

Includes amendments up to:            Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations (No. 2) 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prepared by The Treasury

About this compilation

 

This compilation

This is a compilation of the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020 that shows the text of the law as amended and in force on 22 December 2020 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

  

  

  


Contents

Part 1—Preliminary                                                                                                      1

1  Name........................................................................................................................................ 1

3  Authority.................................................................................................................................. 1

4  Definitions................................................................................................................................ 1

Part 2—Delegations                                                                                                       2

5  Delegations—general............................................................................................................... 2

6  Delegations—Regulatory Powers Act...................................................................................... 2

Schedule 1—Delegations                                                                     3

Endnotes                                                                                                                       18

Endnote 1—About the endnotes                                                                                                                        18

Endnote 2—Abbreviation key                                                                                                                           19

Endnote 3—Legislation history                                                                                                                         20

Endnote 4—Amendment history                                                                                                                       21

 


Part 1Preliminary

  

1  Name

                   This instrument is the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020.

3  Authority

                   This instrument is made under the Foreign Acquisitions and Takeovers Act 1975.

4  Definitions

Note:       Expressions have the same meaning in this instrument as in the Foreign Acquisitions and Takeovers Act 1975 as in force from time to time—see paragraph 13(1)(b) of the Legislation Act 2003.

                   In this instrument:

APS employee means an APS employee who has been allocated an APS Level 4, APS Level 5 or APS Level 6 classification.

EL1 employee means an APS employee who has been allocated an Executive Level 1 classification.

EL2 employee means an APS employee who has been allocated an Executive Level 2 classification.

functions or powers means the functions or powers of the Treasurer under the provisions of the Act or the Regulation specified in the table in Schedule 1.

internal reorganisation has the same meaning as in the Foreign Acquisitions and Takeovers Fees Imposition Act 2015.

land entity has the same meaning as in the Regulation.

mining, production or exploration entity has the same meaning as in the Regulation.

tenement has the same meaning as in the Regulation.

the Act means the Foreign Acquisitions and Takeovers Act 1975.

the Regulation means the Foreign Acquisitions and Takeovers Regulation 2015

Part 2Delegations

  

5  Delegations—general

             (1)  Under section 137 of the Act, each item of the table in Schedule 1:

                     (a)  specifies a function or power that is delegated to the person or persons referred to in that item in the table (being the persons for the time being holding, acting or performing the duties of the respective offices or positions in the Department of the Treasury that are specified); and

                     (b)  sets out any limitation on the delegation covered in that item in the table; and

                     (c)  sets out any direction the delegate must comply with in exercising powers, or performing functions delegated in that item in the table.

6  Delegations—Regulatory Powers Act

             (1)  Under subsection 99(2A) of the Act, each of the person or persons specified in subsection (3) (being the persons for the time being holding, acting or performing the duties of the respective offices or positions in the Department of the Treasury that are so specified) are delegated the Treasurer’s powers and functions under Part 4 of the Regulatory Powers Act as an authorised applicant in relation to the civil penalty provisions of the Act.

Note:          Part 4 of the Regulatory Powers Act is about civil penalty provisions.

             (2)  Under subsection 101F(2) of the Act, each of the person or persons specified in subsection (3) (being the persons for the time being holding, acting or performing the duties of the respective offices or positions in the Department of the Treasury that are so specified) are delegated the Treasurer’s powers and functions under Part 6 of the Regulatory Powers Act (as it applies in relation to the Act).

Note:          Part 6 of the Regulatory Powers Act is about enforceable undertakings.

             (3)  All of the following persons are specified:

                     (a)  the Secretary;

                     (b)  an SES employee.


Schedule 1Delegations

  

Note:  See section 5.

 

Item

Function or power

Description of the function or power

Delegates

Limitations

Directions

1

section 57 of the Act

exemption certificates for new dwellings

(a) Secretary

(b) SES employee

none

none

2

section 58 of the Act

exemption certificates for foreign persons

(a) Secretary

(b) SES employee

none

where the application for the exemption certificate specifies that the consideration for the acquisitions will be greater than $200 million, and the delegate is minded to grant an exemption certificate under this provision, the delegate must first consult with the Treasurer or Treasurer’s office, and only give the exemption certificate at the direction of the Treasurer

3

section 59 of the Act

exemption certificates for established dwellings

(a) Secretary

(b) SES employee

none

none

4

paragraph 61(1)(b) of the Act

an applicant for an exemption certificate may request the Treasurer to extend the period for making a decision on an exemption certificate

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

(e) APS employee

none

none

5

subsection 62(1) of the Act

the Treasurer may vary or revoke an exemption certificate if satisfied that the variation or revocation is not contrary to the national interest

(a) Secretary

(b) SES employee

none

none

5A

subsection 62(1A) of the Act

the Treasurer may vary or revoke an exemption certificate if satisfied that the variation or revocation is not contrary to national security

(a) Secretary

(b) SES employee

none

none

5B

section 62A of the Act

variation or revocation of exemption certificates where false or misleading information or documents given

(a) Secretary

(b) SES employee

none

where the delegate is minded to either:

(a) give a notice of consideration in relation to revoking or varying an exemption certificate; or

(b) revoke or vary an exemption certificate;

the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer

5C

section 66A of the Act

national security review of action

(a) Secretary

(b) SES employee

none

none

6

section 67 of the Act

order prohibiting proposed actions

(a) Secretary

(b) SES employee

(c) EL2 employee

the delegate may only exercise the function or power in relation to an action that is one of the following:

(a) an action to acquire an interest in a land entity, a corporate trustee of an Australian land trust, a corporate trustee of an agricultural land trust, or a tenement, and the value of that interest is not more than $100 million;

(b) an action to acquire an interest in Australian land (other than an interest of a kind mentioned in paragraphs 12(1)(f) to (h) of the Act), and the value of that interest is not more than $15 million; or

(c) an action that constitutes an internal reorganisation;

(d) an action to acquire an interest in assets of an Australian business, and the value of the consideration to acquire that interest is not more than $100 million;

(e) an action to acquire an interest in securities in an entity or to issue securities in an entity, and the value of the interest, or value of the securities to be issued (as appropriate), is not more than $100 million;

(f) an action taken by a person who has a business of underwriting securities and the person proposes to or has acquired the interests in securities for the purposes of, or in the course of, the person’s business of underwriting securities;

(g) an action to start an Australian business;

(h) an action to enter into or terminate a significant agreement with an Australian business, and the value of the consideration to enter into or terminate that agreement is not more than $100 million;

(i) an action by a foreign government investor to acquire a direct interest in an Australian entity or Australian business, not already covered by subparagraphs (a) to (h), and the value of that interest is not more than $100 million

none

6A

section 68 of the Act

interim orders

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6

none

6B

section 69 of the Act

disposal orders

(a) Secretary

(b) SES employee

(c) EL2 employee

the same as for item 6

none

8

section 74 of the Act

no objection notification imposing conditions

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6, except at the end of the item add the following:

(j) an action that is taken to be notified to the Treasurer on 1 January 2021 under either item 227 or 228 in Schedule 1 to the Foreign Investment Reform (Protecting Australia’s National Security) Act 2020

none

9

section 75 of the Act

no objection notification not imposing conditions

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

the same as for item 6

none

10

subsection 76(4) of the Act

longer period may be given for taking actions specified in a no objection notification

(a) Secretary

(b) SES employee

(c) EL2 employee

none

none

11

subsection 76(8) of the Act

the Treasurer may vary a no objection notification if the Treasurer is satisfied that the variation is not contrary to the national interest or national security (as appropriate)

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

an EL2 employee or EL1 employee delegate may only exercise the function or power if the no objection notification relates to one of the following:

(a) an action to acquire an interest in a land entity, a corporate trustee of an Australian land trust, a corporate trustee of an agricultural land trust, or a tenement, and the value of that interest is not more than $100 million;

(b) an action to acquire an interest in Australian land (other than an interest of a kind mentioned in paragraphs 12(1)(f) to (h) of the Act), and the value of that interest is not more than $15 million; or

(c) an action that constitutes an internal reorganisation;

(d) an action to acquire an interest in assets of an Australian business, and the value of the consideration to acquire that interest is not more than $100 million;

(e) an action to acquire an interest in securities in an entity or to issue securities in an entity, and the value of the interest, or value of the securities to be issued (as appropriate), is not more than $100 million;

(f) an action taken by a person who has a business of underwriting securities and the person proposes to or has acquired the interests in securities for the purposes of, or in the course of, the person’s business of underwriting securities;

(g) an action to start an Australian business;

(h) an action to enter into or terminate a significant agreement with an Australian business, and the value of the consideration to enter into or terminate that agreement is not more than $100 million;

(i) an action by a foreign government investor to acquire a direct interest in an Australian entity or Australian business, not already covered by subparagraphs (a) to (h), and the value of that interest is not more than $100 million

none

11A

section 76A of the Act

revocation of no objection notification

(a) Secretary

(b) SES employee

the delegate may only exercise the function or power if the no objection notification relates to one of the following:

(a) an action to acquire an interest in a land entity, a corporate trustee of an Australian land trust, a corporate trustee of an agricultural land trust, or a tenement, and the value of that interest is not more than $100 million;

(b) an action to acquire an interest in Australian land (other than an interest of a kind mentioned in paragraphs 12(1)(f) to (h) of the Act), and the value of that interest is not more than $15 million; or

(c) an action that constitutes an internal reorganisation;

(d) an action to acquire an interest in assets of an Australian business, and the value of the consideration to acquire that interest is not more than $100 million;

(e) an action to acquire an interest in securities in an entity or to issue securities in an entity, and the value of the interest, or value of the securities to be issued (as appropriate), is not more than $100 million;

(f) an action taken by a person who has a business of underwriting securities and the person proposes to or has acquired the interests in securities for the purposes of, or in the course of, the person’s business of underwriting securities;

(g) an action to start an Australian business;

(h) an action to enter into or terminate a significant agreement with an Australian business, and the value of the consideration to enter into or terminate that agreement is not more than $100 million;

(i) an action by a foreign government investor to acquire a direct interest in an Australian entity or Australian business, not already covered by subparagraphs (a) to (h), and the value of that interest is not more than $100 million

none

12

paragraph 77(8)(b) of the Act

specified persons may request the Treasurer extend the period for making orders or decisions

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

(e) APS employee

none

none

12A

section 77A of the Act

Treasurer may extend decision period by up to 90 days

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

none

none

13

section 78 of the Act

anti‑avoidance

(a) Secretary

(b) SES employee

none

none

14

section 79 of the Act

Treasurer may make order that persons are taken to be associates of each other for specified purposes

(a) Secretary

(b) SES employee

none

none

14A

section 79L of the Act

variation or revocation of orders not contrary to the national interest or national security (as appropriate)

(a) Secretary

(b) SES employee

none

none

14B

section 79R of the Act

directions to persons contravening a provision of the Act

(a) Secretary

(b) SES employee

none

none

14C

subsection 79S(2) of the Act

decision that publishing a direction is not in the national interest

(a) Secretary

(b) SES employee

none

none

14D

section 79U of the Act

varying or revoking directions

(a) Secretary

(b) SES employee

none

none

14E

section 79V of the Act

interim directions to persons contravening a provision of the Act

(a) Secretary

(b) SES employee

(c) EL2 employee

none

none

14F

section 79Y of the Act

varying or revoking interim directions

(a) Secretary

(b) SES employee

(c) EL2 employee

none

none

14G

subsection 101(6) of the Act

infringement notices tiers

(a) Secretary

(b) SES employee

(c) EL2 employee

none

the delegate is not to exercise the function or power unless the delegate is also an infringement officer referred to in paragraph 100(2)(a) of the Act

14H

subsection 101D(2) of the Act

decision that publishing an undertaking is not in the national interest

(a) Secretary

(b) SES employee

none

none

15

section 105 of the Act

Treasurer’s declaration relating to charge

(a) Secretary

(b) SES employee

none

none

16

section 106 of the Act

Treasurer has power to do or authorise the doing of anything necessary or convenient to obtain the registration of a charge on a land register

(a) Secretary

(b) SES employee

none

none

17

section 107 of the Act

vesting of interest in land

(a) Secretary

(b) SES employee

none

none

18

section 109 of the Act

disposing of interests in land

(a) Secretary

(b) SES employee

none

none

19

section 110 of the Act

exemption from stamp duty and other State or Territory taxes and fees

(a) Secretary

(b) SES employee

none

none

20

subsection 113(5) of the Act

a fee payable under this Act that does not relate to an application made or a notice given by the person may be recovered by the Treasurer, on behalf of the Commonwealth, as a debt due to the Commonwealth in a court of competent jurisdiction

(a) Secretary

(b) SES employee

none

none

21

section 115 of the Act

waiver and remission of fees

(a) Secretary

(b) SES employee

(c) EL2 employee

none

none

22

paragraph 119(1)(c) of the Act

Treasurer notifies the person that the person does not need to make or keep the record

(a) Secretary

(b) SES employee

none

none

22A

section 123B of the Act

disclosures to foreign governments – Treasurer satisfied pre-conditions met or conditions needing to be imposed

(a) Secretary

(b) SES employee

none

none

23

section 127 of the Act

the Treasurer is satisfied that it is not contrary to the national interest for a person who obtains protected information to disclose the information to a court or tribunal, or in accordance with an order of a court or tribunal

(a) Secretary

(b) SES employee

none

none

23A

section 130D of the Act

Treasurer to lodge certain materials with the Tribunal

(a) Secretary

(b) SES employee

none

none

23B

subsection 130G(8) of the Act

national security certificates

(a) Secretary

none

none

23C

subsection 130H(2) o the Act

public interest certificates

(a) Secretary

none

none

23D

section 130ZW of the Act

directions to the Registrar

(a) Secretary

none

none

24

section 132 of the Act

powers of courts to enforce Treasurer’s orders

(a) Secretary

(b) SES employee

none

none

25

section 133 of the Act

Treasurer may require information

(a) Secretary

(b) SES employee

(c) EL2 employee

none

none

26

section 138 of the Act

Treasurer may request in writing that the Commissioner of Taxation exercises certain powers

(a) Secretary

(b) SES employee

none

none

27

section 42 of the Regulation

exemption certificates for businesses or entities

(a) Secretary

(b) SES employee

none

where the delegate is minded to grant an exemption certificate, the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer

28

section 43 of the Regulation

exemption certificates for certain interests in tenements and mining, production or exploration entities

(a) Secretary

(b) SES employee

none

where the delegate is minded to grant an exemption certificate the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer

29

section 43BA of the Regulation

exemption certificates for actions that would otherwise be notifiable national security actions

(a) Secretary

(b) SES employee

none

where the delegate is minded to give an exemption certificate, the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer

30

section 43BB of the Regulation

exemption certificates for actions that would otherwise be reviewable national security actions

(a) Secretary

(b) SES employee

none

where the delegate is minded to give an exemption certificate, the delegate must first consult with the Treasurer or Treasurer’s office and only give the exemption certificate at the direction of the Treasurer

Note:       The description of the function or power in the table are to assist readers only. They are not intended to affect the interpretation nor limit the function or power referred to in the table.


Endnotes

  

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history. 

Endnote 2—Abbreviation key

 

o = order(s)

ad = added or inserted

Ord = Ordinance

am = amended

orig = original

amdt = amendment

par = paragraph(s)/subparagraph(s)

c = clause(s)

    /sub‑subparagraph(s)

C[x] = Compilation No. x

pres = present

Ch = Chapter(s)

prev = previous

def = definition(s)

(prev…) = previously

Dict = Dictionary

Pt = Part(s)

disallowed = disallowed by Parliament

r = regulation(s)/rule(s)

Div = Division(s)

 

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislation

rep = repealed

gaz = gazette

rs = repealed and substituted

LA = Legislation Act 2003

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

16 April 2020

(F2020N00049)

17 April 2020

Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations 2020

14 July 2020

(F2020N00081)

15 July 2020

Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations (No. 2) 2020

21 December 2020

(F2020N00168)

22 December 2020

 

Endnote 4—Amendment history

 

Provision affected

How affected

section 2

section 4

section 5

section 6

Part 3

rep s48D LA

am F2020N00168

am F2020N00168

ad F2020N00168

rep s48C LA

Schedule

 

table item 4

table items 5

table items 5A to 5C

table item 6

table items 6A and 6B

am F2020N00168

rs F2020N00168

ad F2020N00168

am F2020N00168

ad F2020N00081, rs F2020N00168

table item 7

table item 8

rep F2020N00168

am F2020N00081, rs F2020N00168

table item 9

table items 11

table item 11A

table item 12

table item 12A

table items 14A to 14H

table item 22A

table items 23A to 23D

table items 29 and 30

rs F2020N00168

am F2020N00081, rs F2020N00168

ad F2020N00168

rs F2020N00168

ad F2020N00168

ad F2020N00168

ad F2020N00168

ad F2020N00168

ad F2020N00168