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This instrument updates the delegations of the Treasurer’s powers under the Foreign Acquisitions and Takeovers Act 1975, and supporting Regulation, that apply to Commissioner of Taxation processing foreign investment cases. The updates take into account the reforms to the Act following the enactment of the Foreign Investment Reform (Protecting Australia’s National Security) Act 2020.
Administered by: Treasury
Registered 18 Dec 2020

 

Foreign Acquisitions and Takeovers (Commissioner of Taxation) Delegations 2020

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

Dated   17 December 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—general............................................................................................................... 3

6  Delegations—Regulatory Powers Act...................................................................................... 3

Part 3—Repeals                                                                                                             4

7  Revocation of previous delegations.......................................................................................... 4

Schedule 1—Delegations                                                                     1

 


Part 1—Preliminary

 

1  Name

                   This instrument is the Foreign Acquisitions and Takeovers (Commissioner of Taxation) Delegations 2020.

2  Commencement

             (1)  Each provision of this 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 later of:

(a) the day after this instrument is registered; and

(b) 1 January 2020.

 

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:

APS6 employee means an APS employee who has been allocated an APS Level 6 classification.

Commissioner means the Commissioner of Taxation.

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.

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

                   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 Commissioner; 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 101F(2) of the Act, the Commissioner is delegated the Treasurer’s powers and functions under Part 6 of the Regulatory Powers Act (as it applies in relation to the Act) in relation to the matters covered by subsection (2).

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

             (2)  The following matters are covered by this subsection:

                     (a)  an action to acquire an interest in residential land;

                     (b)  an action to acquire an interest in commercial land;

                     (c)  an action that constitutes an internal reorganisation;

                     (d)  an action to acquire an interest in a land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

                              (i)  residential land;

                             (ii)  commercial land;

                     (e)  an action to acquire an interest in assets of an Australian business where the assets are one or more of the following:

                              (i)  residential land;

                             (ii)  commercial land;

                      (f)  an action by a foreign government investor to acquire a direct interest in:

                              (i)  land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

                                        (A)  residential land;

                                        (B)  commercial land; or

                             (ii)  an Australian business where the interests in assets being acquired are only in one or more of the following:

                                        (A)  residential land;

                                        (B)  commercial land;

                     (g)  any other matter relating to a matter covered by paragraphs (a) to (f).

Part 3Repeals

  

7  Revocation of previous delegations

             (1)  Subject to subsection (3), all previous delegations of the Treasurer’s functions or powers under the Act and the Regulation to the Commissioner are revoked.

             (2)  All previous directions by the Treasurer to delegates and subdelegates, as relating to delegations revoked under subsection (1), are also revoked.

             (3)  To avoid doubt, this instrument does not revoke any of the following:

                     (a)  a delegation covered by the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020; or

                     (b)  any instrument which states that it authorises a specified person (including the Commissioner) 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

Limitations

Directions

1

section 57 of the Act

exemption certificate for new dwellings

none

if the Commissioner subdelegates the function or power under subsection 137(4) of the Act to an employee in the Australian Taxation Office, the subdelegate is not to exercise the function or power unless the subdelegate is:

(a) an SES employee; or

(b) an EL2 employee; or

(c) an EL1 employee

2

section 59 of the Act

exemption certificate for established dwellings

none

if the Commissioner subdelegates the function or power under subsection 137(4) of the Act to an employee in the Australian Taxation Office, the subdelegate is not to exercise the function or power unless the subdelegate is:

(a) an SES employee; or

(b) an EL2 employee; or

(c) an EL1 employee;

unless all of the following are satisfied:

(d) the exercise of the function or power relates to residential land with a value of less than $4 million; and

(e) the exercise of the function or power does not relate to a person acquiring an interest in an established dwelling for redevelopment; and

(f) the subdelegate is an APS6 employee

3

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

the Commissioner may only exercise the function or power if both of the following are satisfied:

(a) the exemption certificate relates to actions to acquire interests in residential land; and

(b) the application for the exemption certificate was not made under section 58 of the Act (about exemption certificates for foreign persons)

the same as for item 2

4

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

the Commissioner may only exercise the function or power if both of the following are satisfied:

(a) the exemption certificate relates to actions to acquire interests in residential land; and

(b) the application for the exemption certificate was not made under section 58 of the Act (about exemption certificates for foreign persons)

if the Commissioner subdelegates the function or power under subsection 137(4) of the Act to an employee in the Australian Taxation Office, the subdelegate is not to exercise the function or power unless the subdelegate is:

(a) an SES employee; or

(b) an EL2 employee; or

(c) an EL1 employee;

unless all of the following are satisfied:

(d) the exercise of the function or power relates to residential land with a value of less than $4 million; and

(e) the exercise of the function or power does not relate to a person acquiring an interest in an established dwelling for redevelopment; and

(f) the exercise of the function or power is to vary an exemption certificate; and

(f) the subdelegate is an APS6 employee

5

section 62A of the Act

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

the Commissioner may only exercise the function or power if both of the following are satisfied:

(a) the exemption certificate relates to actions to acquire interests in residential land; and

(b) the application for the exemption certificate was not made under section 58 of the Act (about exemption certificates for foreign persons)

if the Commissioner subdelegates the function or power under subsection 137(4) of the Act to an employee in the Australian Taxation Office, the subdelegate is not to exercise the function or power unless the subdelegate is an SES employee

6

section 67 of the Act

order prohibiting proposed actions

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

the same as for item 5

7

section 68 of the Act

interim orders

the Commissioner may only exercise the function or power in relation to one of the following:

(a) an action to acquire an interest in residential land;

(b) an action to acquire an interest in commercial land;

(c) an action that constitutes an internal reorganisation;

(d) an action to acquire an interest in a land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

(i) residential land;

(ii) commercial land;

(e) an action to acquire an interest in assets of an Australian business where the assets are one or more of the following:

(i) residential land;

(ii) commercial land;

(f) an action by a foreign government investor to acquire a direct interest in:

(i) land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

(A) residential land;

(B) commercial land; or

(ii) an Australian business where the interests in assets being acquired are only in one or more of the following:

(A) residential land;

(B) commercial land

the same as for item 1

8

section 69 of the Act

disposal orders

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

the same as for item 5

9

section 74 of the Act

no objection notification imposing conditions

the same as for item 7

the same as for item 2

10

section 75 of the Act

no objection notification not imposing conditions

the same as for item 7

the same as for item 2

11

subsection 76(4) of the Act

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

the same as for item 7

the same as for item 1

12

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)

the same as for item 7

the same as for item 2

13

section 76A of the Act

revocation of no objection notification

the same as for item 7

the same as for item 5

14

paragraph 77(8)(b) of the Act

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

the same as for item 7

the same as for item 2

15

section 77A of the Act

Treasurer may extend decision period by up to 90 days

the same as for item 7

the same as for item 2

16

section 78 of the Act

anti-avoidance

the Commissioner may only exercise the function or power if the scheme relates to acquiring an interest in residential land

the same as for item 5

17

section 79 of the Act

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

the same as for item 7

the same as for item 1

18

section 79L of the Act

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

the same as for item 7

the same as for item 5

19

section 79R of the Act

directions to persons contravening a provision of the Act

the Commissioner may only exercise the function or power if the relevant contravention relates to an interest in residential land

the same as for item 5

20

subsection 79S(2) of the Act

decision that publishing a direction is not in the national interest

the Commissioner may only exercise the function or power if the direction is a direction made by the Commissioner as delegate under item 19

the same as for item 5

21

section 79U of the Act

varying or revoking directions

the Commissioner may only exercise the function or power if the direction is a direction made by the Commissioner as delegate under item 19

the same as for item 5

22

section 79V of the Act

interim directions to persons contravening a provision of the Act

the Commissioner may only exercise the function or power if the relevant contravention relates to an interest in residential land

the same as for item 5

23

section 79Y of the Act

varying or revoking interim directions

the Commissioner may only exercise the function or power if the direction is a direction made by the Commissioner as delegate under item 22

the same as for item 5

24

subsection 101(6) of the Act

infringement notices tiers

the Commissioner may only exercise the function or power if the relevant contravention relates to one of the following:

(a) an action to acquire an interest in residential land;

(b) an action to acquire an interest in commercial land;

(c) an action that constitutes an internal reorganisation;

(d) an action to acquire an interest in a land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

(i) residential land;

(ii) commercial land;

(e) an action to acquire an interest in assets of an Australian business where the assets are one or more of the following:

(i) residential land;

(ii) commercial land;

(f) an action by a foreign government investor to acquire a direct interest in:

(i) land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

(A) residential land;

(B) commercial land; or

(ii) an Australian business where the interests in assets being acquired are only in one or more of the following:

(A) residential land;

(B) commercial land

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

25

subsection 101D(2) of the Act

decision that publishing an undertaking is not in the national interest

the Commissioner may only exercise the function or power if the undertaking is accepted by the Commissioner as delegate under section 6

the same as for item 5

26

section 105 of the Act

Treasurer’s declaration relating to charge

none

the same as for item 1

27

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

none

the same as for item 5

28

section 107 of the Act

vesting of interest in land

none

the same as for item 5

29

section 109 of the Act

disposing of interests in land

none

the same as for item 5

30

section 110 of the Act

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

none

the same as for item 5

31

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

none

the same as for item 1

32

section 115 of the Act

waiver and remission of fees

the same as for item 7

the same as for item 1

33

section 115H of the Act

vacancy fee liability—waiver and remission

none

the same as for item 1

34

section 115L of the Act

vacancy fee recovery—Treasurer’s declaration relating to charge over land

none

the same as for item 1

35

section 115M of the Act

vacancy fee recovery—effect of charge on land

none

the same as for item 1

36

section 115P of the Act

vacancy fee recovery—vesting of interest in land

none

the same as for item 1

37

section 115R of the Act

vacancy fee recovery—disposing of interests in land

none

the same as for item 1

38

section 115S of the Act

vacancy fee recovery—exemption from stamp duty and other State or Territory taxes and fees

none

the same as for item 1

39

paragraph 119(1)(c) of the Act

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

the same as for item 7

the same as for item 5

40

section 132 of the Act

powers of courts to enforce Treasurer’s orders

the same as for item 7

the same as for item 5

41

section 133 of the Act

Treasurer may require information

the Commissioner may only exercise the function or power in relation one of the following:

(a) an action to acquire an interest in residential land;

(b) an action to acquire an interest in commercial land;

(c) an action that constitutes an internal reorganisation;

(d) an action to acquire an interest in a land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

(i) residential land;

(ii) commercial land;

(e) an action to acquire an interest in assets of an Australian business where the assets are one or more of the following:

(i) residential land;

(ii) commercial land;

(f) an action by a foreign government investor to acquire a direct interest in:

(i) land entity or a corporate trustee of an Australian land trust where the entity or trustee only holds interests in one or more of the following:

(A) residential land;

(B) commercial land; or

(ii) an Australian business where the interests in assets being acquired are only in one or more of the following:

(A) residential land;

(B) commercial land;

(g) an exemption certificate that relates to actions to acquire interests in residential land

the same as for item 2

42

section 43A of the Regulation

exemption certificates for residential land (near-new dwelling interests)

none

the same as for item 1

43

section 43B of the Regulation

exemption certificates for residential land (other than established dwellings)

none

the same as for item 1

Note:       The descriptions of the functions or powers 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.