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FOREIGN ACQUISITIONS AND TAKEOVERS ACT 1975 - SECT 18A

Increasing percentage of interests without acquiring additional interests in securities

Effect of increase--person is taken to take an action of acquiring an interest in securities

  (1)   A person is taken to take an action of acquiring an interest in securities in an entity if:

  (a)   the person holds an interest of a particular percentage in the entity; and

  (b)   the percentage interest that the person holds increases without the person acquiring interests in securities in the entity.

Note:   The combined effect of this subsection and other provisions of this Act may be that the person takes:

(a)   a significant action because of paragraph   40(2)(a) or (b) or 43(a) or section   44; or

(b)   a notifiable action because of paragraph   47(2)(a), (b) or (c) or section   48; or

(c)   a notifiable national security action because of paragraph   55B(1)(c) or (d); or

(d)   a reviewable national security action because of paragraph   55D(1)(a) or 55F(a).

Effect of potential increase--person is taken to propose to take an action of acquiring an interest in securities

  (2)   A person is taken to propose to take an action of acquiring an interest in securities in an entity if:

  (a)   the person holds an interest of a particular percentage in the entity; and

  (b)   there are reasonable grounds to believe that the percentage interest that the person holds may increase without the person acquiring interests in securities in the entity.

  (3)   Paragraph   (2)(b) applies whether or not any person actually has the belief mentioned in that paragraph.

Modification of this Act

  (4)   The following table has effect:

 

Increasing percentage of interests without acquiring additional interests in securities--modification of this Act

Item

The following provisions of this Act ...

apply in relation to an action or proposed action that is taken to occur because of subsection   (1) or (2) of this section as if ...

1

subsection   20(1) (meaning of acquire an interest of a specified percentage in an entity)

subsection   20(1) provided that the taking of the action resulted in the person acquiring an interest in the entity of the percentage that the person holds immediately after the action is taken.

2

paragraphs 47(2)(a) and (b) (meaning of notifiable action )

those paragraphs only applied where the foreign person did not hold a direct interest or substantial interest (as the case requires) in the entity immediately before the action is taken.

3

item   1 of the table in section   51 (threshold test--acquiring a direct interest in an Australian entity that is an agribusiness)

the value mentioned in column 2 of that item were the total value, immediately after the action is taken, of all interests held by the person, alone or together with one or more associates:

(a) in the entity; or

(b) previously acquired from the entity.

4

paragraph   55B(1)(c) (meaning of notifiable national security action )

that paragraph only applied where the foreign person did not hold a direct interest in the entity immediately before the action is taken.

5

subsections   67(2) and 69(2) (orders)

subsections   67(2) and 69(2) authorised the Treasurer to make (subject to subsection   (5) of this section) an order directing the person to do within a specified period, or refrain from doing, specified acts or acts of a specified kind, and no other kind of order.

6

subsection   69(5) (extension of periods specified in certain disposal orders)

subsection   69(5) applied in relation to an order made under subsection   67(2) or 69(2), as those subsections apply because of item   5 of this table.

7

section   77 (time limit on making orders and decisions)

subsection   77(3) were omitted and column 2 of item   1 of the table in subsection   77(6) referred to the following events:

(a) the Treasurer receives a notice from a person stating that the action is proposed to be taken, before the action is taken;

(b) the Treasurer receives a notice from a person, stating that the action has been taken, before the end of 30 days after the action is taken.

8

subsections   79D(2) and 79E(2) (orders--last resort powers)

subsections   79D(2) and 79E(2) authorised the Treasurer to make (subject to subsection   (5) of this section) an order directing the person to do within a specified period, or refrain from doing, specified acts or acts of a specified kind, and no other kind of order.

9

subsection   79E(4) (extension of periods specified in certain disposal orders made in exercise of last resort powers)

subsection   79E(4) applied in relation to an order made under subsection   79D(2) or 79E(2), as those subsections apply because of item   8 of this table.

10

items   1 and 2 of the table in subsection   101AA(3) (threshold for distinction between tier 2 infringement notices and tier 3 infringement notices)

the value for the action mentioned in the relevant item were the total value, immediately after the action is taken, of all interests held by the person, alone or together with one or more associates:

(a) in the entity; or

(b) previously acquired from the entity.

11

(a) section   15 (interests acquired by entering agreements or acquiring options);

(b) section   68 (interim orders);

(c) subparagraph   74(1)(c)(iii) (no objection notification imposing conditions);

(d) paragraph   79A(3)(b) and subsection   79A(4) (notice of national security review prohibits taking of action until review completed);

(e) section   85A (offence for taking action while prohibited by this Act);

(f) section   92A (civil penalty for taking action while prohibited by this Act)

those provisions were omitted.

Purpose for which orders may be made

  (5)   An order may be made under subsection   67(2), 69(2), 79D(2) or 79E(2) as those subsections apply because of the table in subsection   (4) of this section, only for the purpose of restoring the percentage of interests that the person holds in the entity as nearly as possible to the percentage interest that the person held immediately before it increased.

Further modifications

  (6)   This Act also applies in relation to an action or proposed action that is taken to occur because of subsection   (1) or (2) of this section with the modifications prescribed by the regulations.



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