Schedule 1 Amendments

(regulation 3)

[1] After regulation 2

insert

2A Prescribed interests in shares

For paragraph 11 (5) (c) of the Act, an interest in a share is prescribed if:

(a) the interest is of the kind described in regulation 2B; and

(b) the interest is held by a corporation (a foreign custodian company) that:

(i) is a foreign person; and

(ii) is the holder of an Australian financial services licence under Chapter 7 of the Corporations Act 2001; and

(iii) is in the business of providing custodian services to other persons in relation to the ownership of shares; and

(iv) holds a certificate mentioned in regulation 2C in respect of the interest.

2B Kind of interest

(1) For paragraph 2A (a), the interest is an interest in a share:

(a) in an Australian corporation; and

(b) in which the equitable interest is held by a person mentioned in subregulation (2); and

(c) in which the holder of the legal interest exercises voting rights associated with the interest only at the direction of the holder of the equitable interest in the share.

(2) For paragraph (1) (b), the person who holds the equitable interest in the share:

(a) must not be:

(i) the holder of the legal interest in the share; or

(ii) an associate of the holder of the legal interest in the share; and

(b) must be:

(i) a person who is not a foreign person; or

(ii) a person mentioned in subregulation (3).

(3) For subparagraph (2) (b) (ii), the person must be a foreign person who:

(a) does not hold a substantial interest in the Australian corporation mentioned in paragraph (1) (a); and

(b) is:

(i) a charitable institution operating in Australia primarily for the benefit of persons ordinarily resident in Australia; or

(ii) a trustee of a foreign-controlled trust established for charitable or benevolent purposes, where the beneficiaries of the trust are persons ordinarily resident in Australia; or

(iii) a life insurance company that operates in Australia and invests the assets of its statutory funds (within the meaning of the Life Insurance Act 1995) primarily for the benefit of policy holders ordinarily resident in Australia; or

(iv) an insurance company (other than a life insurance company) that operates in Australia and makes investments:

(A) from the reserves of the company; and

(B) consistent with the company’s obligations under the Insurance Act 1973; or

(v) a corporation that operates in Australia and maintains a superannuation fund for its employees (within the meaning of the Superannuation Industry (Supervision) Act 1993) for the benefit of the members of the fund or their dependents, being persons ordinarily resident in Australia, and makes investments of all or part of the assets of that fund; or

(vi) the responsible entity of a managed investment scheme registered under section 601EB of the Corporations Act 2001 that makes investments primarily for the benefit of scheme members ordinarily resident in Australia.

2C Certificate of exemption in respect of an interest

(1) A foreign custodian company may apply to the Treasurer for a certificate under subregulation (3).

(2) An application must be in writing.

(3) The Treasurer may certify that a foreign custodian company is exempt from the operation of the Act with respect to an interest in a share of the kind described in regulation 2B only if the Treasurer is satisfied that the certification is not contrary to the national interest.

(4) The Treasurer may make the certificate subject to conditions that are:

(a) necessary to ensure that the acquisition of an interest in a share of the kind described in regulation 2B will not be contrary to the national interest; and

(b) set out in the certificate.

[2] Regulation 3

omit

The Act does not apply

insert

For subsection 12A (8) of the Act, the Act does not apply

[3] Paragraph 3 (b)

omit

within the meaning of the Life Insurance Act 1945

insert

(within the meaning of the Life Insurance Act 1995)

[4] Paragraph 3 (d)

omit

within the meaning of the Occupational Superannuation Standards Act 1987,

insert

(within the meaning of the Superannuation Industry (Supervision) Act 1993),

[5] Subparagraph 3 (q) (i)

omit

within the meaning of the Migration Act 1958; or

insert

(within the meaning of the Migration Act 1958); or

[6] Subparagraphs 3 (q) (ii) and (iii)

omit

within the meaning of that Act; or

insert

(within the meaning of that Act); or

[7] Paragraph 3 (u)

omit

the Corporations Law

insert

the Corporations Act 2001

Notes

1. These Regulations amend Statutory Rules 1989 No. 177, as amended by 1991 No. 302; 1994 No. 295; 1995 No. 416; 1999 No. 199.

2. Notified in the Commonwealth of Australia Gazette on 30 March 2004.