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This instrument amends the Foreign Acquisitions and Takeovers (Treasury) Delegations 2020 to update delegations of the Treasurer’s powers.
Administered by: Treasury
Registered 21 Dec 2020
Date of repeal 23 Dec 2020
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003
Table of contents.

 

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

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

Dated  17 December 2020

 

Josh Frydenberg

Treasurer

 

  

  


Contents

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

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

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

4  Schedules................................................................................................................................. 1

Schedule 1—Amendments                                                                                            2

Part 1—Main amendments                                                                                       2

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020                                            2

Part 2—Amendments to Schedules                                                                         1

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020                                            1

 

 


1  Name

                   This instrument is the Foreign Acquisitions and Takeovers (Treasury) Amendment Delegations (No. 2) 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Note:          This table relates only to the provisions of this instrument as originally made.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  Schedules

                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1Amendments

Part 1—Main amendments

 

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

1  section 4 (definition of “APS5 or APS6 employee”)

Repeal the definition, substitute:

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

2  section 5 (heading)

Repeal the heading, substitute:

5  Delegations—general

3  At the end of Part 2

Add:

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.

4  Schedule 1 (table item 4, column head “Delegates”)

Omit “APS5 or APS6 employee”, substitute “APS employee”.


Part 2—Amendments to Schedules

 

Foreign Acquisitions and Takeovers (Treasury) Delegations 2020

5  Schedule 1 (table items 5, 6, 6A, 6B, 7, 8 and 9)

Repeal the items, substitute:

 

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

 

6  Schedule 1 (table items 11 and 12)

Repeal the items, substitute:

 

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

 

7  Schedule 1 (after table item 14)

Insert:

 

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

 

8  Schedule 1 (after table item 22)

Insert:

 

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

 

9  Schedule 1 (after table item 23)

Insert:

 

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

 

10  Schedule 1 (at the end of the table)

Add:

 

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