Commonwealth Consolidated Acts Commonwealth Consolidated ActsForeign Acquisitions and Takeovers Act 1975
1 Section 4
Insert:
"authorised officer" means a person appointed as an authorised officer under subsection 101E(1).
"tier 3 infringement notice" has the meaning given by subsection 101(4).
2 Section 83
Omit:
Generally, the penalty for bodies corporate is 5 times the amount for individuals (see section 4B of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers Act).
An officer of a corporation who authorises or permits the corporation to commit an offence or contravene a civil penalty provision may also commit an offence or contravene a civil penalty provision. Similarly, an officer of a corporation may contravene a civil penalty provision by failing to prevent a contravention of the civil penalty provision by the corporation.
Civil penalty orders may be sought and infringement notices issued under the Regulatory Powers Act.
substitute:
An officer of a corporation who authorises or permits the corporation to commit an offence or contravene a civil penalty provision may also commit an offence or contravene a civil penalty provision. Similarly, an officer of a corporation may contravene a civil penalty provision by failing to prevent a contravention of the civil penalty provision by the corporation.
The Regulatory Powers Act applies in relation to civil penalty orders, infringement notices, searches and enforceable undertakings under this Act. The Treasurer may give directions if the Treasurer has reason to believe that a person has engaged, or is engaging, in conduct that contravenes, or will contravene, this Act.
3 Section 84 (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years, or 15,000 penalty units (or 150,000 penalty units if the person is a corporation), or both.
4 Section 85 (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years, or 15,000 penalty units (or 150,000 penalty units if the person is a corporation), or both.
5 Section 86 (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years, or 15,000 penalty units (or 150,000 penalty units if the person is a corporation), or both.
6 Section 87 (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years, or 15,000 penalty units (or 150,000 penalty units if the person is a corporation), or both.
7 Subsection 88(1) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years, or 15,000 penalty units (or 150,000 penalty units if the developer is a corporation), or both.
8 Section 89
Before "A person", insert "(1)".
9 Section 89 (penalty)
Repeal the penalty.
10 At the end of section 89
Add:
(2) A person who contravenes subsection (1) is liable to a civil penalty.
Penalty
(3) The maximum penalty for the contravention is the lesser of the following:
(a) 2,500,000 penalty units;
(b) the greater of the following:
(i) 5,000 penalty units (or 50,000 penalty units if the person is a corporation);
(ii) the amount worked out under section 98F for the action in relation to which the order was made.
11 Section 92
Before "A foreign person", insert "(1)".
12 Section 92 (penalty)
Repeal the penalty.
13 At the end of section 92
Add:
(2) A person who contravenes subsection (1) is liable to a civil penalty.
Penalty
(3) The maximum penalty for the contravention is the lesser of the following:
(a) 2,500,000 penalty units;
(b) the greater of the following:
(i) 5,000 penalty units (or 50,000 penalty units if the person is a corporation);
(ii) the amount worked out under section 98F for the action.
14 Section 93
Repeal the section, substitute:
Conditions in no objection notifications
(1) A person who is given a no objection notification must not contravene a condition specified in the notification that relates to a core Part 3 action.
(2) A person who contravenes subsection (1) is liable to a civil penalty.
(3) The maximum penalty for the contravention is the lesser of the following:
(a) 2,500,000 penalty units;
(b) the greater of the following:
(i) 5,000 penalty units (or 50,000 penalty units if the person is a corporation);
(ii) the amount worked out under section 98F for the core Part 3 action.
Conditions in notice imposing conditions
(4) A person who is given a notice imposing conditions must not contravene a condition specified in the notice that relates to an action.
(5) A person who contravenes subsection (4) is liable to a civil penalty.
(6) The maximum penalty for the contravention is the lesser of the following:
(a) 2,500,000 penalty units;
(b) the greater of the following:
(i) 5,000 penalty units (or 50,000 penalty units if the person is a corporation);
(ii) the amount worked out under section 98F for the action.
Conditions in exemption certificates
(7) A person who is specified in an exemption certificate must not contravene a condition specified in the certificate.
Civil penalty: 5,000 penalty units (or 50,000 penalty units if the person is a corporation).
15 Subsection 94(4)
Repeal the subsection, substitute:
Penalty
(4) The maximum penalty for the contravention is the greatest of the following:
(a) the amount of the capital gain that was made or would be made on the disposal of the interest in the relevant residential land;
(b) 25% of the consideration for the residential land acquisition;
(c) 25% of the market value of the interest in the relevant residential land.
Note 1: Consideration is defined by the regulations (see section 4).
Note 2: For how to work out the capital gain, see section 98.
16 At the end of Division 3 of Part 5
Add:
Subdivision D -- Other civil penalties
98A Contravening directions and interim directions
(1) A person contravenes this subsection if:
(a) the person:
(i) has been directed by the Treasurer under subsection 79R(3) in relation to a relevant contravention as mentioned in subsection 79R(1); or
(ii) has been directed by the Treasurer under subsection 79V(3) in relation to a relevant contravention as mentioned in subsection 79V(1); and
(b) the provision to which the relevant contravention relates is a civil penalty provision; and
(c) the person engages in conduct; and
(d) the person does so in contravention of the direction.
(2) A person who contravenes subsection (1) is liable to a civil penalty.
(3) The maximum penalty for the contravention is:
(a) unless paragraph (b) applies--5,000 penalty units; or
(b) if the person is a corporation--50,000 penalty units.
98B False or misleading information and documents
Information or documents relevant to no objection notification
(1) A person contravenes this subsection if:
(a) the person is given a no objection notification, or is specified in a no objection notification; and
(b) before the no objection notification was given, the person gave the Treasurer information that was or documents that were:
(i) relevant to the no objection notification; and
(ii) relevant to one or more core Part 3 actions to which the no objection notification relates; and
(c) the information was or the documents were false or misleading in a material particular.
(2) A person who contravenes subsection (1) is liable to a civil penalty.
(3) The maximum penalty for the contravention is the lesser of the following:
(a) 2,500,000 penalty units;
(b) the greater of the following:
(i) 5,000 penalty units (or 50,000 penalty units if the person is a corporation);
(ii) the sum of the amounts worked out under section 98F for each of the core Part 3 actions mentioned in subparagraph (1)(b)(ii).
Information or documents relevant to exemption certificate
(4) A person contravenes this subsection if:
(a) an exemption certificate relates to a person; and
(b) before the exemption certificate was given, the person gave the Treasurer information that was or documents that were:
(i) relevant to the exemption certificate; and
(ii) relevant to one or more core Part 3 actions to which the exemption certificate relates; and
(c) the information was or the documents were false or misleading in a material particular.
(5) A person who contravenes subsection (4) is liable to a civil penalty.
(6) The maximum penalty for the contravention is:
(a) unless paragraph (b) applies--5,000 penalty units; or
(b) if the person is a corporation--50,000 penalty units.
Information or documents may be false or misleading by omission
(7) To avoid doubt, for the purposes of this section, information or documents may be false or misleading in a material particular because of the omission of a matter or thing.
98C Failure to notify Treasurer of taking of action specified in no objection notification
(1) Subsection (2) applies if:
(a) a person:
(i) is given a no objection notification specifying one or more core Part 3 actions; or
(ii) is specified in a no objection notification specifying one or more core Part 3 actions; and
(b) the person takes one of those core Part 3 actions; and
(c) if regulations made for the purposes of this paragraph specify requirements--those requirements are met.
(2) The person must give the Treasurer a notice in accordance with subsection (3) no later than 30 days after the latest of the following days:
(a) the day on which the person took the core Part 3 action;
(b) the day on which the no objection notice was given;
(c) if the core Part 3 action is the acquisition of an interest in a security, asset, trust or Australian land, and section 15 applies in relation to the acquisition--the day on which the person acquired the interest in a security, asset, trust or Australian land (disregarding section 15).
Civil penalty: 250 penalty units.
(3) The notice must:
(a) describe the core Part 3 action; and
(b) state the day on which it was taken; and
(c) meet any other requirements specified in regulations made for the purposes of this paragraph.
98D Failure to notify taking of action related to exemption certificate
(1) Subsection (2) applies if:
(a) an exemption certificate relates to one or more core Part 3 actions; and
(b) the person to whom the exemption certificate relates takes one of those core Part 3 actions; and
(c) if regulations made for the purposes of this paragraph specified requirements--those requirements are met.
(2) The person must give the Treasurer a notice in accordance with subsection (3) no later than 30 days after the latest of the following days:
(a) the day on which the person took the core Part 3 action;
(b) if the core Part 3 action is the acquisition of an interest in a security, asset, trust or Australian land, and section 15 applies in relation to the acquisition--the day on which the person acquired the interest in a security, asset, trust or Australian land (disregarding section 15).
Civil penalty: 250 penalty units.
(3) The notice must:
(a) describe the core Part 3 action; and
(b) state the day on which it was taken; and
(c) meet any other requirements specified in regulations made for the purposes of this paragraph.
98E Failure to notify Treasurer of situations following core Part 3 action
(1) Subsection (2) applies if:
(a) any of the following conditions are satisfied:
(i) a person is given a no objection notification specifying one or more core Part 3 actions;
(ii) a person is specified in a no objection notification specifying one or more core Part 3 actions;
(iii) an exemption certificate relating to a person relates to one or more core Part 3 actions; and
(b) the person takes one of those core Part 3 actions; and
(c) a situation mentioned in subsection (2) arises after the person takes that core Part 3 action; and
(d) if that situation is the situation mentioned in paragraph (2)(a)--the person becomes aware, or ought reasonably to have become aware, of the situation; and
(e) if regulations made for the purposes of this paragraph specify requirements--those requirements are met.
(2) The situations are as follows:
(a) if none of the following paragraphs apply--there is a change in control of the entity or business to which the core Part 3 action relates;
(b) if the core Part 3 action is an acquisition of a direct interest in an Australian entity--the person ceases to have a direct interest in the Australian entity;
(c) if the core Part 3 action is an acquisition of an interest of any percentage in an entity or a business--the person starts to hold an interest of a percentage in the entity or business that is equal to or less than the interest of the percentage that the person held in the entity or business immediately before the acquisition;
(d) if the core Part 3 action is an acquisition of an interest in Australian land--the person ceases to hold all or part of that interest;
(e) if the core Part 3 action is an action specified in regulations made for the purposes of section 44 and the regulations specify one or more situations for the significant action for the purposes of this paragraph--any of those situations cease to exist;
(f) if the core Part 3 action is an action specified in regulations made for the purposes of section 44 and paragraph (e) of this subsection does not apply:
(i) if the core Part 3 action relates to acquiring an interest of at least a certain percentage in an entity or business--the person ceases to have an interest of at least that percentage in the entity or business; or
(ii) if the core Part 3 action relates to acquiring a direct interest in an entity or business--the person ceases to have a direct interest in the entity or business; or
(iii) if the core Part 3 action relates to starting a business--the person ceases to carry on the business; or
(iv) if the core Part 3 action relates to acquiring an interest in a tenement--the person ceases to hold all or part of that interest; or
(v) if the core Part 3 action relates to acquiring an interest of at least a certain percentage of the securities of an entity--the person ceases to have an interest of at least that percentage of the securities of the entity.
(3) The person must give the Treasurer a notice in accordance with subsection (4) no later than 30 days after the later of the following days:
(a) the day on which the situation mentioned in subsection (2) arose;
(b) the day on which the no objection notice or exemption certificate was given.
Civil penalty: 250 penalty units.
(4) The notice must:
(a) describe the core Part 3 action; and
(b) state the day on which it was taken; and
(c) describe the situation mentioned in subsection (2) that arose; and
(d) state the day on which it arose; and
(e) meet any other requirements specified in regulations made for the purposes of this paragraph.
Subdivision E -- Miscellaneous
98F Civil penalty amounts for penalty provision based on value
(1) For the purpose of working out the maximum penalty for a contravention of a civil penalty provision, the amount under this section for an action is 75% of the amount determined under subsection (3) for the action.
(2) For the purposes of subsection (1), if the relevant civil penalty provision is subsection 98B(1), treat the amount determined under subsection (3) of this section for the action as being the sum of the amounts, determined under subsection (3) of this section, for each of the core Part 3 actions mentioned in subparagraph 98B(1)(b)(ii).
(3) For the purposes of subsection (1), the amount for the action is:
(a) the value for the action worked out under the following table; or
(b) if no item of the table applies to the action:
(i) where the action is an acquisition--the value of the consideration for the acquisition; or
(ii) otherwise--the market value of the benefit obtained by the action.
Amount for actions | ||||
Item | For this kind of action ... | that is mentioned in any of these provisions ... | the amount is ... | |
1 | an acquisition of a direct interest in an entity or a business | paragraph 40(2)(a) (significant action) paragraph 47(2)(a) (notifiable action) paragraph 55B(1)(b) or (c) (notifiable national security action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the direct interest. | |
2 | an acquisition of an interest of any percentage in an entity or a business | paragraph 55D(1)(a) or subparagraph 55E(1)(a)(i) (reviewable national security action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interest. | |
3 | an acquisition of a substantial interest in an Australian entity | paragraph 47(2)(b) (notifiable action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the substantial interest. | |
4 | an acquisition of interests in securities in an entity | paragraph 40(2)(b) (significant action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interests. | |
5 | an issue of securities in an entity | paragraph 40(2)(c) (significant action) subparagraph 55D(2)(a)(i) (reviewable national security action) | the greater of the following: (a) the value of the consideration for the issue; (b) the market value of the securities. | |
6 | entering into an agreement | paragraph 40(2)(d) (significant action) subparagraph 55D(2)(a)(ii) (reviewable national security action)
| the greater of the following: (a) the value of the consideration for the entering into the agreement; (b) the market value of the benefit obtained by the entering into the agreement. | |
7 | an alteration of a constituent document of an entity | paragraph 40(2)(e) (significant action) subparagraph 55D(2)(a)(iii) (reviewable national security action) | the greater of the following: (a) the value of the consideration for the alteration; (b) the market value of the benefit obtained by the alteration. | |
8 | an acquisition of a direct interest in an Australian business that is an agribusiness | paragraph 41(2)(a) (significant action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the direct interest. | |
9 | an acquisition of interests in assets | paragraph 41(2)(b) (significant action) subparagraph 55E(1)(a)(ii) (reviewable national security action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interests. | |
10 | entering into or terminating a significant agreement with an Australian business | paragraph 41(2)(c) (significant action) subparagraph 55E(1)(a)(iii) (reviewable national security action) | the greater of the following: (a) the value of the consideration for the entering into or terminating of the significant agreement; (b) the market value of the benefit obtained by the entering into or terminating of the significant agreement. | |
11 | an acquisition of an interest in Australian land | section 43 (significant action) paragraph 47(2)(c) (notifiable action) paragraph 55B(1)(d) (notifiable national security action) section 55F (reviewable national security action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interest. | |
12 | starting a business | paragraph 55B(1)(a) (notifiable national security action) paragraph 55E(2)(a) (reviewable national security action) | the market value of the business. | |
13 | an acquisition of a legal or equitable interest in an exploration tenement in respect of Australian land | paragraph 55B(1)(e) (notifiable national security action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interest. | |
14 | if no previous item applies--an action specified in regulations that specify, or set out a method for determining, an amount for the action | regulations made for the purposes of section 44 (significant action) regulations made for the purposes of section 48 (notifiable action) | that amount. | |
15 | if no previous item applies--an action specified in regulations | regulations made for the purposes of section 44 (significant action) regulations made for the purposes of section 48 (notifiable action) | the greater of the following: (a) the value of the consideration for the action; (b) the market value of the benefit obtained by the action. | |
(4) In applying the table in subsection (3), disregard the effect of any exemption certificate.
(5) If the action is covered by more than one item of the table in subsection (3), treat the value of the action worked out according to that table as being the greatest of the amounts worked out under those items.
(6) For the purposes of this section:
(a) if there is no consideration for a thing--treat the value of the consideration for the thing as nil; and
(b) if the market value of a thing cannot be ascertained--treat the market value of the thing as nil.
17 Subdivision A of Division 4 of Part 5 (heading)
Repeal the heading, substitute:
Subdivision A -- Application of the Regulatory Powers Act--Civil penalty provisions
18 Subsection 99(2)
Repeal the subsection, substitute:
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act:
(a) each of the Treasurer and the Commissioner of Taxation is an authorised applicant in relation to the civil penalty provisions of this Act (other than section 130ZV); and
(b) each of the Treasurer, the Commissioner of Taxation and the Registrar is an authorised applicant in relation to section 130ZV.
19 After subsection 99(2B)
Insert:
(2BA) The Registrar may, in writing, delegate to:
(a) any person to whom the Registrar may delegate any of the Registrar's other functions, as a kind of body or person mentioned in the definition of eligible Registrar appointee in section 4, under a law of the Commonwealth; or
(b) any person of a kind prescribed by the regulations;
the Registrar's powers and functions under Part 4 of the Regulatory Powers Act as an authorised applicant in relation to the civil penalty provisions of this Act.
20 Subsection 99(2C)
Omit "or (2B)", substitute ", (2B) or (2BA)".
21 Subsection 99(4)
Repeal the subsection, substitute:
Maximum penalties
(4) Subsection 82(5) of the Regulatory Powers Act does not apply in relation to the following provisions of this Act:
(a) section 89 (contravening orders under Part 3);
(b) section 91 (failing to give notice);
(c) section 92 (taking action before end of period);
(d) section 92A (taking action while prohibited by this Act);
(e) section 93 (contravening conditions);
(f) section 94 (acquisition of interests in residential land);
(g) section 95 (acquisition of interests in established dwellings);
(h) section 95A (taking action while prohibited by this Act);
(i) section 96 (contravening conditions in relation to residential land);
(j) section 98A (contravening directions and interim directions);
(k) section 98B (false or misleading information and documents);
(l) subsection 102(2) (liability of officers of corporations authorising or permitting contraventions);
(m) section 103 (civil penalties for officers of corporations failing to prevent contraventions).
22 After section 99
Insert:
Subdivision AA -- Application of the Regulatory Powers Act--Infringement notices
23 Paragraph 100(1)(a)
Repeal the paragraph, substitute:
(a) the provisions of Division 3 (civil penalties);
24 After paragraph 100(1)(b)
Insert:
(ba) subsection 115DA(1) (vacancy fee liability--false or misleading vacancy fee return);
25 After paragraph 100(1)(c)
Insert:
; (d) section 130ZV (civil penalty for failing to give notice to Registrar).
26 Subsection 100(2)
Repeal the subsection, substitute:
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act:
(a) a person appointed under subsection (3) is an infringement officer in relation to the provisions mentioned in subsection (1) (including section 130ZV); and
(b) a person appointed under subsection (3A) is an infringement officer in relation to section 130ZV.
27 After subsection 100(3)
Insert:
(3A) The Registrar may, in writing, appoint a person of a kind prescribed by the regulations.
28 Subsection 100(4)
Repeal the subsection, substitute:
Relevant chief executive
(4) For the purposes of Part 5 of the Regulatory Powers Act:
(a) each of the Secretary and the Commissioner of Taxation is the relevant chief executive in relation to the provisions mentioned in subsection (1) (other than section 130ZV); and
(b) each of the Secretary, the Commissioner of Taxation and the Registrar is the relevant chief executive in relation to section 130ZV.
29 After subsection 100(4B)
Insert:
(4BA) The Registrar may, in writing, delegate to:
(a) any person to whom the Registrar may delegate any of the Registrar's other functions, as a kind of body or person mentioned in the definition of eligible Registrar appointee in section 4, under a law of the Commonwealth; or
(b) any person of a kind prescribed by the regulations;
the Registrar's powers and functions under Part 5 of the Regulatory Powers Act as the relevant chief executive in relation to the provisions mentioned in subsection (1).
30 Subsection 100(4C)
Omit "or (4B)", substitute ", (4B) or (4BA)".
31 Subsection 100(5)
Omit "subsection 104(2),", substitute "subsections 104(2) and (3)".
32 Paragraph 100(5)(a)
Repeal the paragraph, substitute:
(a) for subparagraphs 104(1)(e)(ii) and (iii) of the Regulatory Powers Act--the following provisions of this Act:
(i) subsection 89(1) (contravening orders under Part 3);
(ii) subsections 91(1) and (2) (failing to give notice);
(iii) subsection 92(1) (taking action before end of period);
(iv) section 92A (taking action while prohibited by this Act);
(v) subsections 93(1), (4) and (7) (contravening conditions);
(vi) section 94 (acquisition of interests in residential land);
(vii) section 95 (acquisition of interests in established dwellings);
(viii) section 96 (contravening conditions in relation to residential land);
(ix) section 98A (contravening directions and interim directions);
(x) section 98B (false or misleading information and documents);
(xi) sections 98C, 98D and 98E (failure to notify);
(xii) subsection 115DA(1) (vacancy fee liability--false or misleading vacancy fee return); and
33 Paragraph 100(5)(b)
Repeal the paragraph, substitute:
(b) for subsection 104(2) or (3) of the Regulatory Powers Act--the provisions mentioned in paragraphs (1)(a), (b), (ba), (c) and (d) of this section.
34 At the end of subsection 100(6)
Add:
; and (c) for a tier 3 infringement notice (see subsection 101(4)):
(i) given to an individual--300 penalty units; and
(ii) given to a corporation--1,500 penalty units.
35 Section 101 (heading)
Repeal the heading, substitute:
36 Paragraphs 101(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) the person:
(i) unless subparagraph (ii) applies--notified (for the purposes of this Act) the Treasurer (or the Commissioner of Taxation on behalf of the Treasurer) of conduct that was the same, or substantially the same, as the conduct constituting the alleged contravention; or
(ii) if the civil penalty provision is section 130ZV--notified (for the purposes of this Act) the Treasurer, the Commissioner of Taxation on behalf of the Treasurer or the Registrar of conduct that was the same, or substantially the same, as the conduct constituting the alleged contravention; and
(c) at the time when the person made that notification, the Commonwealth had not yet indicated to the person, in writing, that the Commonwealth was considering investigating the conduct constituting the alleged contravention.
37 After subsection 101(1)
Insert:
(1A) For the purposes of paragraph (1)(c), treat the Commonwealth as having indicated to the person, in writing, that the Commonwealth was considering investigating the conduct constituting the alleged contravention if the Commonwealth gave the person any of the following:
(a) a notice in writing requiring or inviting the person to show cause why the Commonwealth should not investigate that conduct;
(b) a notice in writing indicating that the Commonwealth might issue an infringement notice in relation to that conduct;
(c) any other similar notice in writing.
38 Subsection 101(2)
Repeal the subsection, substitute:
(2) An infringement notice is a tier 2 infringement notice if:
(a) the notice relates to an alleged contravention by a person of a civil penalty provision of this Act; and
(b) subsection (1) does not apply in relation to the person and the conduct constituting the alleged contravention; and
(c) any of the following apply:
(i) the civil penalty provision is a provision covered by subsection (3);
(ii) if the civil penalty provision is not subsection 95(1) or (4)--the requirement in subsection 101AA(1) is met in relation to the alleged contravention;
(iii) if the civil penalty provision is subsection 95(1) or (4)--the requirement in subsection 101AA(6) is met in relation to the alleged contravention.
(3) For the purposes of subparagraph (2)(c)(i), this subsection covers the following provisions:
(a) subsections 97(1), (1A) and (2);
(b) sections 98A, 98C, 98D and 98E;
(c) subsections 115D(1), 115DA(1) and 115G(1);
(d) section 130ZV.
(4) An infringement notice is a tier 3 infringement notice if:
(a) the notice relates to an alleged contravention by a person of a civil penalty provision of this Act; and
(b) subsections (1) and (2) do not apply in relation to the person and the conduct constituting the alleged contravention.
(5) Despite subsections (2) and (4), an infringement notice is a tier 2 infringement notice (and is not a tier 3 infringement notice ) if:
(a) apart from this subsection, the infringement notice would be a tier 3 infringement notice; and
(b) the Treasurer has decided that the infringement notice is covered by subsection (6).
(6) The Treasurer may decide that an infringement notice is covered by this subsection if:
(a) the infringement notice has not yet been given to the person; and
(b) the Treasurer considers that it is appropriate for the infringement notice to be covered by this subsection, having regard to the matters set out in subsection (7).
(7) For the purposes of paragraph (6)(b), the matters are as follows:
(a) the conduct of the person after the alleged contravention, including:
(i) the nature of the steps (if any) that the person has taken to address the alleged contravention; and
(ii) the extent (if any) to which the person has cooperated with the Treasurer and the Commissioner of Taxation to address the alleged contravention;
(b) whether the infringement notice being covered by subsection (6) would not be contrary to the national interest.
39 At the end of Subdivision A of Division 4 of Part 5
Add:
101AA Threshold for distinction between tier 2 infringement notices and tier 3 infringement notices
(1) The requirement in this subsection is met in relation to the alleged contravention if the value of the action to which the contravention relates, determined under subsection (3), falls short of:
(a) if the civil penalty provision is subsection 89(1):
(i) if that action is an acquisition of an interest in Australian land, and the Australian land is residential land--$5,000,000; or
(ii) otherwise--$275,000,000; or
(b) if the civil penalty provision is subsection 98B(1) or (4):
(i) if any of the core Part 3 actions mentioned in subparagraph 98B(1)(b)(ii) or 98B(4)(b)(ii) is an acquisition of an interest in Australian land, and the Australian land is residential land--$5,000,000; or
(ii) otherwise--$275,000,000; or
(c) if the civil penalty provision is subsection 91(1) or (2), section 92 or 92A or subsection 93(1), (4) or (7)--$275,000,000; or
(d) otherwise--$5,000,000.
(2) For the purposes of subsection (1), if the civil penalty provision is subsection 98B(1) or (4), treat the value of the action to which the contravention relates, determined under subsection (3) of this section, as being the sum of the values, determined under subsection (3) of this section, for each of the core Part 3 actions mentioned in subparagraph 98B(1)(b)(ii) or 98B(4)(b)(ii).
(3) For the purposes of subsection (1), the value of the action is:
(a) the value for the action worked out under the following table; or
(b) if no item of the table applies to the action:
(i) where the action is an acquisition--the value of the consideration for the acquisition; or
(ii) otherwise--the market value of the benefit obtained by the action.
Values of actions | ||||
Item | This kind of action ... | that is mentioned in any of these provisions ... | has this value ... | |
1 | an acquisition of a direct interest in an entity or a business | paragraph 40(2)(a) (significant action) paragraph 47(2)(a) (notifiable action) paragraph 55B(1)(b) or (c) (notifiable national security action) | the total of the following: (a) the value of the consideration for the acquisition; (b) the total value of the other interests held by the person, alone or together with one or more associates: (i) in the entity or business; or (ii) previously acquired from the entity or business. | |
2 | an acquisition of an interest of any percentage in an entity or a business | paragraph 55D(1)(a) or subparagraph 55E(1)(a)(i) (reviewable national security action) | the total of the following: (a) the value of the consideration for the acquisition; (b) the total value of the other interests held by the person, alone or together with one or more associates: (i) in the entity or business; or (ii) previously acquired from the entity or business. | |
3 | an acquisition of a substantial interest in an Australian entity | paragraph 47(2)(b) (notifiable action) | the higher of the following: (a) the total asset value for the entity; (b) the total issued securities value for the entity. | |
4 | an acquisition of interests in securities in an entity | paragraph 40(2)(b) (significant action) | the higher of the following: (a) the total asset value for the entity; (b) the total issued securities value for the entity. | |
5 | an issue of securities in an entity | paragraph 40(2)(c) (significant action) subparagraph 55D(2)(a)(i) (reviewable national security action) | the higher of the following: (a) the total asset value for the entity; (b) the total issued securities value for the entity. | |
6 | entering into an agreement | paragraph 40(2)(d) (significant action) subparagraph 55D(2)(a)(ii) (reviewable national security action)
| the total asset value for the entity to which the agreement relates. | |
7 | an alteration of a constituent document of an entity | paragraph 40(2)(e) (significant action) subparagraph 55D(2)(a)(iii) (reviewable national security action) | the total asset value for the entity. | |
8 | an acquisition of a direct interest in an Australian business that is an agribusiness | paragraph 41(2)(a) (significant action) | the total of the following: (a) the value of the consideration for the acquisition; (b) the total value of the other interests held by the person, alone or together with one or more associates: (i) in the business; or (ii) previously acquired from the business. | |
9 | an acquisition of interests in assets | paragraph 41(2)(b) (significant action) subparagraph 55E(1)(a)(ii) (reviewable national security action) | the value of the consideration for the acquisition. | |
10 | entering into or terminating a significant agreement with an Australian business | paragraph 41(2)(c) (significant action) subparagraph 55E(1)(a)(iii) (reviewable national security action) | the total value of the assets of the business. | |
11 | an acquisition of an interest in Australian land | section 43 (significant action) paragraph 47(2)(c) (notifiable action) paragraph 55B(1)(d) (notifiable national security action) section 55F (reviewable national security action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interest. | |
12 | starting a business | paragraph 55B(1)(a) (notifiable national security action) paragraph 55E(2)(a) (reviewable national security action) | the market value of the business. | |
13 | an acquisition of a legal or equitable interest in an exploration tenement in respect of Australian land | paragraph 55B(1)(e) (notifiable national security action) | the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interest. | |
14 | if no previous item applies--an action specified in regulations that specify, or set out a method for determining, an amount for the action | regulations made for the purposes of section 44 (significant action) regulations made for the purposes of section 48 (notifiable action) | that amount. | |
15 | if no previous item applies--an action specified in regulations | regulations made for the purposes of section 44 (significant action) regulations made for the purposes of section 48 (notifiable action) | the greater of the following: (a) the value of the consideration for the action; (b) the market value of the benefit obtained by the action. | |
(4) In applying the table in subsection (3), disregard the effect of any exemption certificate.
(5) If the action to which the contravention relates is covered by more than one item of the table in subsection (3), treat the value of the action worked out according to that table as being the greatest of the amounts worked out under those items.
(6) The requirement in this subsection is met in relation to the alleged contravention if:
(a) where the civil penalty provision is subsection 95(1)--the total of the market values of the interests referred to in that subsection falls short of $5,000,000; or
(b) where the civil penalty provision is subsection 95(4)--the greater of:
(i) the value of the consideration for the acquisition referred to in that subsection; and
(ii) the market value of the interest referred to in that subsection;
falls short of $5,000,000.
(7) The amounts mentioned in paragraphs (1)(a), (b) and (c) and (6)(a) and (b) may be indexed in accordance with regulations made for the purposes of subsection 139(2).
(8) For the purposes of this section:
(a) if there is no consideration for a thing--treat the value of the consideration for the thing as nil; and
(b) if the market value of a thing cannot be ascertained--treat the market value of the thing as nil.
40 Before Subdivision B of Division 4 of Part 5
Insert:
Subdivision AB -- Application of the Regulatory Powers Act--Monitoring powers
Provisions subject to monitoring
(1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:
(a) a provision of this Act; or
(b) an offence provision of the Crimes Act 1914 or the Criminal Code , to the extent that it relates to this Act.
Note 1: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.
Note 2: Some provisions of this Act are taxation laws for the purposes of the Taxation Administration Act 1953 (see subsection 115B(2) and section 138). For provisions dealing with the Commissioner of Taxation's powers to obtain information and evidence in relation to taxation laws, see Division 353 in Schedule 1 to that Act.
Information subject to monitoring
(2) Information given in compliance or purported compliance with this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the Regulatory Powers Act, each of the following provisions is related to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) an offence provision, or a civil penalty provision, of the Taxation Administration Act 1953 ;
(b) an offence provision, or a civil penalty provision, of the Corporations Act 2001 ;
(c) a provision in Part 3 or 3B of the Register of Foreign Ownership of Water or Agricultural Land Act 2015 .
Authorised applicant
(4) For the purposes of Part 2 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) the Secretary;
(b) an authorised officer.
Authorised person
(5) For the purposes of Part 2 of the Regulatory Powers Act, an authorised officer is an authorised person in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Issuing officer
(6) For the purposes of Part 2 of the Regulatory Powers Act, a person is an issuing officer in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2) if:
(a) the person is:
(i) a magistrate; or
(ii) a Judge of a court of a State or Territory; or
(iii) a Judge of the Federal Circuit Court of Australia or of the Federal Court of Australia; and
(b) if subparagraph (a)(iii) applies:
(i) the Minister has, in writing, nominated the person to be such an issuing officer; and
(ii) the person has consented to be such an issuing officer and the consent is in force.
Relevant chief executive
(7) For the purposes of Part 2 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Relevant court
(8) For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(9) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Extension to external Territories
(10) Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), extends to every external Territory.
Subdivision AC -- Application of the Regulatory Powers Act--Investigation powers
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:
(a) an offence provision of this Act; or
(b) a civil penalty provision of this Act; or
(c) an offence provision of the Crimes Act 1914 or the Criminal Code , to the extent that it relates to this Act.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Related provisions
(2) For the purposes of Part 3 of the Regulatory Powers Act, each of the following provisions is related to evidential material that relates to a provision mentioned in subsection (1):
(a) an offence provision, or a civil penalty provision, of the Taxation Administration Act 1953 ;
(b) an offence provision, or a civil penalty provision, of the Corporations Act 2001 ;
(c) a provision in Part 3 or 3B of the Register of Foreign Ownership of Water or Agricultural Land Act 2015 .
Authorised applicant
(3) For the purposes of Part 3 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) the Secretary;
(b) an authorised officer.
Authorised person
(4) For the purposes of Part 3 of the Regulatory Powers Act, an authorised officer is an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).
Issuing officer
(5) For the purposes of Part 3 of the Regulatory Powers Act, a person is an issuing officer in relation to evidential material that relates to the provisions mentioned in subsection (1) if:
(a) the person is:
(i) a magistrate; or
(ii) a Judge of a court of a State or Territory; or
(iii) a Judge of the Federal Circuit Court of Australia or of the Federal Court of Australia; and
(b) if subparagraph (a)(iii) applies:
(i) the Minister has, in writing, nominated the person to be such an issuing officer; and
(ii) the person has consented to be such an issuing officer and the consent is in force.
Relevant chief executive
(6) For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).
Relevant court
(7) For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(8) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
Extension to external Territories
(9) Part 3 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1), extends to every external Territory.
Subdivision AD -- Application of the Regulatory Powers Act--Enforceable undertakings
Enforceable provisions
(1) The provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Treasurer is an authorised person in relation to the provisions mentioned in subsection (1).
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(4) Part 6 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1), extends to every external Territory.
101D Publication of undertakings
(1) If the Treasurer accepts an undertaking in relation to a provision mentioned in subsection 101C(1), the Treasurer must ensure that the undertaking is published on a website maintained by the Department as soon as practicable after it is accepted.
(2) If an undertaking has not yet been published on a website maintained by the Department, the Treasurer may decide, in writing, that publishing the undertaking on such a website would be contrary to the national interest.
(3) If the Treasurer makes a decision under subsection (2) in relation to an undertaking, subsection (1) does not apply to the undertaking.
(4) A failure to comply with subsection (1) in relation to an undertaking does not affect the enforceability of the undertaking under Part 6 of the Regulatory Powers Act, as that Part applies in relation to the provisions of this Act.
Subdivision AE -- Application of the Regulatory Powers Act--Miscellaneous
101E Appointment of authorised officers
(1) The Secretary may, in writing, appoint a person who is an APS employee who holds or performs the duties of an APS Level 6 position, or an equivalent or higher position, in the Department as an authorised officer for the purposes of this Division.
(2) The Secretary must not appoint a person as an authorised officer under subsection (1) unless the Secretary is satisfied that the person has suitable training or experience to properly perform the functions, or exercise the powers, of an authorised officer.
(3) An authorised officer must, in performing the authorised officer's functions or exercising the authorised officer's powers, comply with any directions of the Secretary.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
101F Delegation of certain powers and functions under the Regulatory Powers Act
Scope of this section
(1) This section applies in relation to powers ( relevant powers ) and functions ( relevant functions ) under the following provisions of the Regulatory Powers Act (as it applies in relation to this Act):
(a) Part 2 (monitoring powers);
(b) Part 3 (investigation powers);
(c) Part 6 (enforceable undertakings).
Note: Sections 99 and 100 deal with the delegation of powers and functions under Part 4 (civil penalty provisions) and Part 5 (infringement notices) of the Regulatory Powers Act (as it applies in relation to this Act).
Delegations by Treasurer
(2) The Treasurer may, in writing, delegate a relevant power or relevant function of the Treasurer to any of the following:
(a) the Secretary;
(b) an SES employee, or acting SES employee, in the Department;
(c) the Commissioner of Taxation.
Note: For the effect of a delegation to the Commissioner of Taxation, see section 138.
Delegations by Secretary
(3) The Secretary may, in writing, delegate a relevant power or relevant function of the Secretary to any of the following:
(a) an SES employee, or acting SES employee, in the Department;
(b) the Commissioner of Taxation.
Note: For the effect of a delegation to the Commissioner of Taxation, see section 138.
(4) However, subsection (3) does not apply in relation to the powers and functions of the Secretary as an authorised applicant under Part 2 or 3 of the Regulatory Powers Act (as it applies in relation to this Act).
Subdelegations by Commissioner of Taxation
(5) If a power or function is delegated to the Commissioner of Taxation under this section, the Commissioner may, in writing, subdelegate the power or function to an SES employee, or acting SES employee, in the Australian Taxation Office.
(6) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to the subdelegation in a way corresponding to the way in which they apply in relation to a delegation.
Directions
(7) In exercising powers or performing functions delegated or subdelegated by a person under this section, the delegate or subdelegate must comply with any directions of the person.
Delegations in relation to specified kinds of matters
(8) Without limiting this section or subsection 33(3A) of the Acts Interpretation Act 1901 , a power or function may be delegated or subdelegated generally or only in relation to specified kinds of matters.
41 After section 115D
Insert:
115DA Vacancy fee liability--false or misleading vacancy fee return
(1) A person who gives a vacancy fee return to the Commissioner of Taxation for the purposes of subsection 115D(1) must ensure that the return does not contain information that is false or misleading in a material particular.
Civil penalty: 250 penalty units.
(2) To avoid doubt, for the purposes of subsection (1), information or documents may be false or misleading in a material particular because of the omission of a matter or thing.
42 After subparagraph 115K(2)(b)(i)
Insert:
(ia) subsection 115DA(1) (vacancy fee liability--false or misleading vacancy fee return);
43 Subsection 119(1) (penalty)
Repeal the penalty, substitute:
Penalty: 250 penalty units.
44 Subsection 133(5) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 6 months or 250 penalty units, or both.
45 After paragraph 135(3)(b)
Insert:
(ba) a notification for the purposes of paragraph 101(1)(b); and
(bb) a notification for the purposes of subsection 98C(2), 98D(2) or 98E(3) (notices after no objection notification or exemption certificate); and
46 At the end of section 137
Add:
Powers and functions under the Regulatory Powers Act
(8) This section does not apply in relation to a power or function that a person has under the Regulatory Powers Act (as it applies in relation to this Act).
Note: Powers and functions of this kind may be delegated under sections 99, 100 and 101F.
47 Subsection 138(1) (heading)
Repeal the heading, substitute:
Powers of Commissioner of Taxation as a result of delegation under section 137
48 After subsection 138(3)
Insert:
Powers of Commissioner of Taxation as a result of delegation under section 101F
(3A) Subsections (1) to (3) apply in relation to a delegation to the Commissioner of Taxation under section 101F in the same way as they apply in relation to a delegation to the Commissioner under section 137.
Note: Section 101F allows for the delegation to the Commissioner of certain powers and functions under the Regulatory Powers Act (as it applies in relation to this Act).
(3B) However, for the purposes of applying subsection (2) in relation to a delegation to the Commissioner of Taxation under section 101F, treat that subsection as including the following paragraph:
(da) sections 353 - 10 and 353 - 15 (powers to obtain information and evidence and access premises);
Part 2 -- Application provisions
49 Application--false or misleading information and documents and section 98B
Section 98B of the Foreign Acquisitions and Takeovers Act 1975 , as inserted by this Schedule, applies in relation to information or documents given to the Treasurer on or after 1 January 2021.
50 Application--failure to notify and sections 98C, 98D and 98E
Sections 98C, 98D and 98E of the Foreign Acquisitions and Takeovers Act 1975 , as inserted by this Schedule, apply in relation to no objection notifications and exemption certificates given on or after 1 January 2021.
51 Application--penalties
The following apply in relation to contraventions that occur on or after 1 January 2021:
(a) the amendments made by this Schedule to sections 84, 85, 86, 87, 88, 89, 92, 93, 94, 119 and 133 of the Foreign Acquisitions and Takeovers Act 1975 ;
(b) section 98F of that Act, as inserted by this Schedule.
52 Application--infringement notices
The following apply in relation to contraventions that occur on or after 1 January 2021:
(a) the amendments made by this Schedule to sections 100 and 101 of the Foreign Acquisitions and Takeovers Act 1975 ;
(b) section 101AA of that Act, as inserted by this Schedule.
53 Application--vacancy fee liability--false or misleading vacancy fee return
Section 115DA of the Foreign Acquisitions and Takeovers Act 1975 , as inserted by this Schedule, applies in relation to returns given on or after 1 January 2021.
Division 2--Application of Regulatory Powers (Standard Provisions) Act 2014
54 Definitions
In this Division:
Act means the Foreign Acquisitions and Takeovers Act 1975 .
amended Act means the Act as in force immediately after the commencement time.
commencement time means the start of 1 January 2021.
55 Application--monitoring powers
Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under the amended Act, applies in relation to the following:
(a) determining whether a provision mentioned in subsection 101A(1) of the amended Act has been complied with before, at or after the commencement time;
(b) determining whether information given in compliance, or purported compliance, with the Act before, at or after the commencement time is correct.
56 Application--investigation powers
Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under the amended Act, applies in relation to a contravention, or suspected contravention, of a provision mentioned in subsection 101B(1) of the amended Act that occurs before, at or after the commencement time.
57 Application--enforceable undertakings
Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under the amended Act, applies in relation to undertakings given at or after the commencement time.
Part 3 -- Contingent amendments
Foreign Acquisitions and Takeovers Act 1975
58 Subparagraph 101A(6)(a)(iii)
Omit "Federal Circuit Court of Australia", substitute "Federal Circuit and Family Court of Australia (Division 2)".
59 Paragraph 101A(8)(b)
Omit "Federal Circuit Court of Australia", substitute "Federal Circuit and Family Court of Australia (Division 2)".
60 Subparagraph 101B(5)(a)(iii)
Omit "Federal Circuit Court of Australia", substitute "Federal Circuit and Family Court of Australia (Division 2)".
61 Paragraph 101B(7)(b)
Omit "Federal Circuit Court of Australia", substitute "Federal Circuit and Family Court of Australia (Division 2)".
62 Paragraph 101C(3)(b)
Omit "Federal Circuit Court of Australia", substitute "Federal Circuit and Family Court of Australia (Division 2)".