Federal Register of Legislation - Australian Government

Primary content

Regulations as made
This instrument amends the Foreign Acquisitions and Takeovers Regulation 2015 to give effect to Australia’s obligations under the Australia-India Economic Cooperation and Trade Agreement.
Administered by: Treasury
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 31
Registered 24 Nov 2022
Tabling HistoryDate
Tabled HR28-Nov-2022
Tabled Senate28-Nov-2022
Table of contents.

Commonwealth Coat of Arms of Australia

 

Foreign Acquisitions and Takeovers Amendment (India Free Trade Agreement) Regulations 2022

I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated               24 November               2022

David Hurley

Governor‑General

By His Excellency’s Command

Dr Jim Chalmers

Treasurer

 

 

 

  

  


Contents

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

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

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

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

Schedule 1—Amendments                                                                                                                          2

Foreign Acquisitions and Takeovers Regulation 2015                                                                  2

 


1  Name

                   This instrument is the Foreign Acquisitions and Takeovers Amendment (India Free Trade Agreement) Regulations 2022.

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) the day the Australia‑India Economic Cooperation and Trade Agreement, done at Melbourne and New Delhi on 2 April 2022, enters into force for Australia.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

The Minister must announce, by notifiable instrument, the day the Agreement enters into force for Australia.

 

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

  

Foreign Acquisitions and Takeovers Regulation 2015

1  Section 51

Omit “The following”, insert “(1) Subject to subsections (2) and (3), the following”.

2  At the end of section 51

Add:

             (2)  The following table prescribes values for the purposes of section 51 of the Act to the extent that that section relates to items 2 to 3 of the table (entities) in that section.

 

Threshold value for entities

Item

For action taken by …

the value (in millions of dollars) is …

1

an enterprise, or a national, of the Republic of India (other than a foreign government investor) where:

(a) the action relates to an entity that:

(i) is not carrying on a sensitive business and does not hold assets of a sensitive business; and

(ii) is carrying on a business that supplies a service through a commercial presence in Australia; and

(b) no subsidiary, or holding entity, of the entity carries on a sensitive business or holds assets of a sensitive business; and

(c) either:

(i) the entity derives earnings from carrying on the business and the amount of those earnings before interest and tax, derived in the most recent financial year for which the financial accounts of the entity have been audited, exceeds 50% of the amount of the total earnings for the entity; or

(ii) the entity uses assets to carry on the business and the value of those assets exceeds 50% of the total asset value for the entity

500

             (3)  The following table prescribes values for the purposes of section 51 of the Act to the extent that that section relates to items 4 and 5 (Australian businesses) of the table in that section.

 

Threshold value for Australian businesses

Item

For action taken by …

the value (in millions of dollars) is …

1

an enterprise, or a national, of the Republic of India (other than a foreign government investor) where:

(a) the action relates to an Australian business that:

(i) is not a sensitive business; and

(ii) supplies a service through a commercial presence in Australia; and

(b) the Australian business uses assets to supply the service and the value of those assets exceeds 50% of the value of the total assets of the business

500

             (4)  For the purposes of subsections (2) and (3), commercial presence and supply of a service have the same meaning as in the Australia‑India Economic Cooperation and Trade Agreement, done at Melbourne and New Delhi on 2 April 2022, as in force from time to time.

Note:          The Agreement could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

3  Subsection 52(5) (after item 3 of the table)

Insert:

 

3A

land described in paragraph 52(3)(a) of the Act that:

(a) is commercial land that is not vacant; and

(b) is not covered by item 3 of this table; and

(c) is being acquired by an enterprise, or a national, of the Republic of India:

(i) that is not a foreign government investor; and

(ii) that a reasonable person would conclude (having regard to all the circumstances) genuinely intends to use the land, as soon as practical after it is acquired and throughout the period that the enterprise or national holds the interest in the land, predominantly for the supply of a service through a commercial presence in Australia

500

4  At the end of section 52

Insert:

             (8)  For the purposes of item 3A of the table in subsection (5), commercial presence and supply of a service have the same meaning as in the Australia‑India Economic Cooperation and Trade Agreement, done at Melbourne and New Delhi on 2 April 2022, as in force from time to time.

Note:          The Agreement could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

5  In the appropriate position in Part 7

Insert:

78  Application of the Foreign Acquisitions and Takeovers Amendment (India Free Trade Agreement) Regulations 2022

                   The amendments made by the Foreign Acquisitions and Takeovers Amendment (India Free Trade Agreement) Regulations 2022 apply in relation to an action taken on or after the commencement of those Regulations.