Australia – GVT Foreign Acquisition/Takeover

Australia – GVT Foreign Acquisition/Takeover

On 15 December 2021, AST GVT registered foreign acquisitions act compilation.

  • AST GVT issued 26th compilation of the Foreign acquisitions and takeovers act 1975, registered 15 December 2021, showing text of law as amended, in force on 8 December 2021.

Overview

  • An act relating to the foreign acquisition of certain land interests and to the foreign acquisition and foreign control of certain business enterprises and mineral rights.

Purpose

  • Act deals with certain actions to acquire interests in securities, assets, Australian land.
  • Actions taken in relation to entities -corporations and unit trusts- and businesses, that have a connection to Australia - these actions are called significant actions.
  • For an action to be a significant action, the action must in most cases result in a change in control involving a foreign person or be taken by a foreign person.
  • Act also deals with actions taken by persons that have/may have implications for Australia‚Äôs national security - these actions may or may not be significant actions.
  • Actions re national security business/land are notifiable national security actions.
  • If an action is a reviewable national security action, or a significant action that is not a notifiable action or a notifiable national security action, the Treasurer may review the action if the Treasurer considers that the action may pose a national security concern.
  • If a person proposes to take or has taken an action, Treasurer can do one or more of the following: decide that the Commonwealth has no objection to the action.
  • Impose conditions on the action; prohibit the action; require the action to be undone, for example, by requiring the disposal of an interest that has been acquired.
  • Offences and civil penalties apply for failing to comply with an order made prohibiting an action, or requiring an action to be undone; or a condition imposed on an action.
  • Significant actions that are notifiable actions, and notifiable national security actions, must generally be notified to the Treasurer before the actions can be taken.
  • Offences, civil penalties may apply if a notifiable action is taken without notice given.
  • If a notice has been given stating that a significant action is proposed to be taken, the action must not be taken before the end of a specified period - generally of 40 days.
  • Or an additional period of up to 90 days from the registration of an interim order.
  • Fees payable re applications, orders made, notices, notifications given under the act.
  • Person must make, keep records for purposes of this act, including re significant actions and notifiable actions; this information is called protected information.
  • It may be disclosed only for certain purposes; a person who obtains, uses or discloses protected information other than as authorised by this act may commit an offence.
  • The Register of foreign ownership of Australian assets is kept under part 7A of the act.
  • Register records certain actions re interests acquired, held, disposed of by foreign persons; a foreign person who takes such action must give register notice to registrar.
  • In some circumstances, other people must also give notices to the register.
  • A civil penalty applies to a failure to give a notice under part 7A.

Effectiveness

  • The compiled version of the act is in force from 8 December 2021.