Federal Register of Legislation - Australian Government

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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, that apply to Australian Public Service employees of the Treasury processing foreign investment cases.
Administered by: Treasury
Registered 16 Apr 2020

 

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

I, Josh Frydenberg, Treasurer, make the following delegations.

Dated   9 April 2020

 

Josh Frydenberg

Treasurer

 

  

  

  


Contents

Part 1—Preliminary                                                                                                      1

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

2  Commencement........................................................................................................................ 1

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

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

Part 2—Delegations                                                                                                       3

5  Delegations............................................................................................................................... 3

Part 3—Repeals                                                                                                             4

6  Revocation of previous delegations.......................................................................................... 4

Schedule 1—Delegations                                                                     1

 


Part 1Preliminary

  

1  Name

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

2  Commencement

             (1)  Each provision of instrument 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.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

The day after this instrument is registered.

 

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

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:

APS5 or APS6 employee means an APS employee who has been allocated an 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

             (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.

Part 3Repeals

  

6  Revocation of previous delegations

             (1)  Subject to subsection (2), all previous delegations of the Treasurer’s functions or powers under the Act and the Regulation are revoked.

             (2)  However, this instrument does not revoke any of the following:

                     (a)  any instrument delegating functions or powers under the Act or the Regulation to the Commissioner of Taxation or an APS employee employed in the Australian Taxation Office; and

                     (b)  any instrument which states that it authorises a specified person to do a thing under the Act or the Regulation.


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) APS5 or APS6 employee

none

none

5

section 62 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

6

section 67 of the Act

order prohibiting proposed significant actions

(a) Secretary

(b) SES employee

(c) EL2 employee

the delegate may only exercise the function or power if the proposed significant action is to acquire an interest in residential land

none

7

section 71 of the Act

variation and revocation of orders

(a) Secretary

(b) SES employee

none

none

8

section 74 of the Act

no objection notification imposing conditions

(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) the acquisition of an interest in an entity, 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) the acquisition of 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) the acquisition of an interest in assets of an Australian business and the value of the consideration for the acquisition is not more than $100 million;

(e) an action to acquire interests in securities in an entity or to issue securities in an entity and the total asset value and total issued securities value for the entity 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

none

9

section 75 of the Act

No objection notification not imposing conditions

(a) Secretary

(b) SES employee

(c) EL2 employee

the same as for item 8

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

(a) Secretary

(b) SES employee

(c) EL2 employee

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

(a) the acquisition of an interest in an entity, 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) the acquisition of 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) the acquisition of an interest in assets of an Australian business and the value of the consideration for the acquisition is not more than $100 million;

(e) an action to acquire interests in securities in an entity or to issue securities in an entity and the total asset value and total issued securities value for the entity 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

none

12

paragraph 77(5)(b) of the Act

person who gives notice stating that a significant action is proposed to be taken may request the Treasurer to extend the period for making a decision

(a) Secretary

(b) SES employee

(c) EL2 employee

(d) EL1 employee

(e) APS5 or APS6 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

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

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

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

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.