Part 1
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Commonwealth legislation
**What this instrument does (mechanics)
Establishes detailed ownership‑related record‑keeping, information and recognition rules for companies that operate airports ("airport‑operator companies"). It is made under the Airports Act 1996 and works with definitions in that Act and in the Schedule to the Act (see Part 1 and definitions, cl.5).
Requires airport‑operator companies to keep indexed records of any stakes held by foreign persons, airlines, or related members of a pair of airport companies; to update those records promptly and to retain them for a minimum period (see s9).
Gives the Minister the power to require specified information from airport‑operator companies (signed/verified statements, board resolutions, etc.), with at least 30 days to comply unless a period is stated in writing (see s10). Airport operators must also notify the Minister promptly if they have reason to believe an "unacceptable" foreign, airline or cross‑ownership situation exists, if central management and control has moved offshore, or if a majority of directors are not Australian citizens or foreign citizens ordinarily resident in Australia (see s11).
Allows airport‑operator companies to require third parties to provide information relevant to ownership matters, with requests to specify the information required, a 30‑day minimum compliance period and statutory‑declaration verification (see s12).
Specifies many categories of share interests that are to be "disregarded" for the purpose of applying the ownership provisions in the Schedule to the Act. Those categories include: double holding companies, certain indirect interest‑holders, nominated agents/custodians, Australian associates who do not act in concert with a foreign person, interests held by particular investment funds that obtain a Ministerial declaration (either as a "substantially Australian" fund or a "distanced" fund), and particular airport or airline‑linked holdings (see Part 3, especially ss13–24).
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Direct links to the current provisions in Airports (Ownership) Regulations 2024.
This instrument is the Airports (Ownership) Regulations 2024.
This instrument is made under the Airports Act 1996.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) airline;
(b) airport‑operator company;
(c) unacceptable airline‑ownership situation;
(d) unacceptable cross‑ownership situation;
(e) unacceptable foreign‑ownership situation.
(1) In this instrument:
Act means the Airports Act 1996.
details of a person means:
(a) if the person is an individual:
(i) the person’s name; and
(ii) the address of the person’s usual residence; and
(iii) the person’s citizenship, or (if the person claims more than one citizenship) each citizenship that the person claims; or
(b) if the person is a corporation:
(i) the corporation’s name; and
(ii) the place in which the corporation is incorporated; and
(iii) the address of the corporation’s registered office or principal office; or
(c) if the person is a foreign government body:
(i) the name of the relevant foreign state (within the meaning of the Foreign States Immunities Act 1985); and
(ii) the address of the body’s principal office.
entity has the meaning given by section 64A of the Corporations Act 2001.
investment fund means any of the following:
(a) a fund of the kind generally known as a unit trust (except a unit trust of the kind generally known as a discretionary trust);
(b) a statutory fund, within the meaning of the Life Insurance Act 1995, of a life insurance company;
(c) a superannuation entity, within the meaning of the Superannuation Industry (Supervision) Act 1993;
(d) an exempt public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993.
ownership matter has the meaning given by subsection 60(6) of the Act.
(2) An expression used in this instrument and in the Schedule to the Act has the same meaning in this instrument as it has in the Schedule to the Act.
Note: The following are examples of expressions used in this instrument and in the Schedule to the Act:
(a) associate;
(b) direct control interest;
(c) foreign government body;
(d) foreign person;
(e) interest in a share;
(f) ownership provisions;
(g) share;
(h) stake.
(1) A reference in this instrument to a person who holds a beneficial interest in the capital, or income, of an investment fund includes a reference to a person who holds: (a) an interest of that kind jointly with another person; and (b) an interest of that kind that is prospective because the person: (i) has entered into a contract to purchase a beneficial interest; or (ii) has a right, otherwise than by reason of holding an interest in the fund, to have a beneficial interest in the fund transferred to the person or to the person’s order (whether exercisable presently or in the future, and whether or not subject to a condition); or (iii) has a right to acquire a beneficial interest under an option (whether exercisable presently or in the future, and whether or not subject to a condition). (2) Subsection (1) applies regardless of: (a) the remoteness of the interest; or (b) the way in which the interest arose; or (c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to a restraint or restriction. (3) For the purposes of subsection (1), an interest is not a beneficial interest if: (a) the interest is held solely as security under a moneylending agreement that has not ceased to have effect; and (b) the ordinary business of the interest‑holder includes the lending of money. (4) If: (a) a person holds a beneficial interest in an investment fund as a loan security; and (b) the ordinary business of the person includes the lending of money; and (c) the loan security is enforced; and (d) as a result of the enforcement, the person becomes the holder of the interest; and (e) the person holds the interest for a continuous period (the holding period) beginning at the time when the security was enforced; the person is taken not to hold the interest at all times during so much of the holding period as occurs during whichever of the following periods is applicable: (f) the period of 90 days beginning when the security was enforced; (g) if the Minister, by written notice, allows a longer period—that longer period.
For the purposes of subsection 60(1) of the Act, this Part makes provision for and in relation to requiring a person: (a) to keep and retain records that are relevant to an ownership matter; and (b) to give information to the Minister that is relevant to an ownership matter; and (c) to give information to an airport‑operator company that is relevant to an ownership matter and that concerns the company.
To avoid doubt, it is declared that the requirements of this Part are in addition to, and not in substitution for, the requirements of the Corporations Act 2001.
(1) For the purposes of paragraph 60(1)(a) of the Act, an airport‑operator company must keep a record of: (a) any stake in the company that is held by a foreign person; and (b) any stake in the company that is held by an airline; and (c) if the company is a member of a pair of airport‑operator companies: (i) any stake in the company that is held by the other member of the pair; and (ii) any stake in the company that is held by a person that holds a stake in the other member of the pair; and (iii) any stake that the company holds in the other member of the pair. (2) The record must include, for each stake: (a) in the case of a stake that is composed of a direct control interest held by only one person: (i) the amount of the interest; and (ii) the type of interest held; and (iii) details of the person holding the interest; and (b) in the case of a stake that is composed of direct control interests held by 2 or more persons—the information mentioned in subparagraphs (a)(i), (ii) and (iii) about each of those interests.
Note: A person’s stake of a particular type in an airport‑operator company includes both the person’s direct control interest in the company and any direct control interests held by the person’s associates (see clause 11 of the Schedule to the Act).
(3) The record for a stake must: (a) be made as soon as reasonably practicable after the stake is acquired; and (b) be updated as soon as reasonably practicable after any increase or decrease in the stake; and (c) be retained: (i) until the end of the financial year after the financial year in which the record is made; or (ii) if the record is updated as referred to in paragraph (b)—the end of the financial year after the financial year in which the record was most recently so updated. (4) The records required to be kept under this section must be indexed in a way that allows the aggregate of stakes of a particular type, or held by a particular class of person, to be readily worked out.
Note: An airport‑operator company may commit an offence if it contravenes the requirements in this section to keep records (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, the Minister may, by written notice given to an airport‑operator company, require the company to give the Minister information specified in the notice about: (a) an ownership matter relating to the company; or (b) the location of the place where the central management and control of the company is ordinarily exercised; or (c) whether a director of the company is an Australian citizen or a foreign citizen ordinarily resident in Australia. (2) The notice may require the information to be given in a particular form or manner and within a specified period. (3) Without limiting subsection (2), the notice may require the information to be given in a written statement that complies with one or more of the following requirements: (a) a requirement that the statement is signed by a director of the company; (b) a requirement that the statement is verified by statutory declaration by a director of the company; (c) a requirement that the statement is approved by the directors of the company by resolution; (d) a requirement that the statement is accompanied by a copy of the resolution mentioned in paragraph (c). (4) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (5) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice. (6) An airport‑operator company must comply with a notice given to the company under subsection (1).
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, an airport‑operator company must give the Minister written notice as soon as reasonably practicable after it has reason to believe that: (a) one or more of the following situations exist in relation to the company: (i) an unacceptable foreign‑ownership situation; (ii) an unacceptable airline‑ownership situation; (iii) an unacceptable cross‑ownership situation; or (b) the central management and control of the company is no longer being ordinarily exercised at a place in Australia; or (c) a majority of the company’s directors are neither Australian citizens nor foreign citizens ordinarily resident in Australia. (2) The notice must include the following information: (a) the circumstance mentioned in paragraph (1)(a), (b) or (c) that the airport‑operator company believes exists; (b) the reason for the belief; (c) the steps taken, or intended to be taken, by the airport‑operator company to determine whether, in fact, the circumstance does exist; (d) the steps intended to be taken by the company to remedy the circumstance, if that circumstance does exist.
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(c) of the Act, a person must give information to an airport‑operator company if: (a) the information is relevant to an ownership matter that concerns the company; and (b) the company has, in writing, requested the person to give the information; and (c) the request specifies the kind of information the person is to give. (2) The request must specify a period of at least 30 days within which the information must be given to the airport‑operator company. (3) The information must be verified by statutory declaration.
Note: A person may commit an offence if the person does not give information to an airport‑operator company as required by this section (see subsection 60(4) of the Act).
This instrument is the Airports (Ownership) Regulations 2024.
This instrument is made under the Airports Act 1996.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) airline;
(b) airport‑operator company;
(c) unacceptable airline‑ownership situation;
(d) unacceptable cross‑ownership situation;
(e) unacceptable foreign‑ownership situation.
(1) In this instrument:
Act means the Airports Act 1996.
details of a person means:
(a) if the person is an individual:
(i) the person’s name; and
(ii) the address of the person’s usual residence; and
(iii) the person’s citizenship, or (if the person claims more than one citizenship) each citizenship that the person claims; or
(b) if the person is a corporation:
(i) the corporation’s name; and
(ii) the place in which the corporation is incorporated; and
(iii) the address of the corporation’s registered office or principal office; or
(c) if the person is a foreign government body:
(i) the name of the relevant foreign state (within the meaning of the Foreign States Immunities Act 1985); and
(ii) the address of the body’s principal office.
entity has the meaning given by section 64A of the Corporations Act 2001.
investment fund means any of the following:
(a) a fund of the kind generally known as a unit trust (except a unit trust of the kind generally known as a discretionary trust);
(b) a statutory fund, within the meaning of the Life Insurance Act 1995, of a life insurance company;
(c) a superannuation entity, within the meaning of the Superannuation Industry (Supervision) Act 1993;
(d) an exempt public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993.
ownership matter has the meaning given by subsection 60(6) of the Act.
(2) An expression used in this instrument and in the Schedule to the Act has the same meaning in this instrument as it has in the Schedule to the Act.
Note: The following are examples of expressions used in this instrument and in the Schedule to the Act:
(a) associate;
(b) direct control interest;
(c) foreign government body;
(d) foreign person;
(e) interest in a share;
(f) ownership provisions;
(g) share;
(h) stake.
(1) A reference in this instrument to a person who holds a beneficial interest in the capital, or income, of an investment fund includes a reference to a person who holds: (a) an interest of that kind jointly with another person; and (b) an interest of that kind that is prospective because the person: (i) has entered into a contract to purchase a beneficial interest; or (ii) has a right, otherwise than by reason of holding an interest in the fund, to have a beneficial interest in the fund transferred to the person or to the person’s order (whether exercisable presently or in the future, and whether or not subject to a condition); or (iii) has a right to acquire a beneficial interest under an option (whether exercisable presently or in the future, and whether or not subject to a condition). (2) Subsection (1) applies regardless of: (a) the remoteness of the interest; or (b) the way in which the interest arose; or (c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to a restraint or restriction. (3) For the purposes of subsection (1), an interest is not a beneficial interest if: (a) the interest is held solely as security under a moneylending agreement that has not ceased to have effect; and (b) the ordinary business of the interest‑holder includes the lending of money. (4) If: (a) a person holds a beneficial interest in an investment fund as a loan security; and (b) the ordinary business of the person includes the lending of money; and (c) the loan security is enforced; and (d) as a result of the enforcement, the person becomes the holder of the interest; and (e) the person holds the interest for a continuous period (the holding period) beginning at the time when the security was enforced; the person is taken not to hold the interest at all times during so much of the holding period as occurs during whichever of the following periods is applicable: (f) the period of 90 days beginning when the security was enforced; (g) if the Minister, by written notice, allows a longer period—that longer period.
For the purposes of subsection 60(1) of the Act, this Part makes provision for and in relation to requiring a person: (a) to keep and retain records that are relevant to an ownership matter; and (b) to give information to the Minister that is relevant to an ownership matter; and (c) to give information to an airport‑operator company that is relevant to an ownership matter and that concerns the company.
To avoid doubt, it is declared that the requirements of this Part are in addition to, and not in substitution for, the requirements of the Corporations Act 2001.
(1) For the purposes of paragraph 60(1)(a) of the Act, an airport‑operator company must keep a record of: (a) any stake in the company that is held by a foreign person; and (b) any stake in the company that is held by an airline; and (c) if the company is a member of a pair of airport‑operator companies: (i) any stake in the company that is held by the other member of the pair; and (ii) any stake in the company that is held by a person that holds a stake in the other member of the pair; and (iii) any stake that the company holds in the other member of the pair. (2) The record must include, for each stake: (a) in the case of a stake that is composed of a direct control interest held by only one person: (i) the amount of the interest; and (ii) the type of interest held; and (iii) details of the person holding the interest; and (b) in the case of a stake that is composed of direct control interests held by 2 or more persons—the information mentioned in subparagraphs (a)(i), (ii) and (iii) about each of those interests.
Note: A person’s stake of a particular type in an airport‑operator company includes both the person’s direct control interest in the company and any direct control interests held by the person’s associates (see clause 11 of the Schedule to the Act).
(3) The record for a stake must: (a) be made as soon as reasonably practicable after the stake is acquired; and (b) be updated as soon as reasonably practicable after any increase or decrease in the stake; and (c) be retained: (i) until the end of the financial year after the financial year in which the record is made; or (ii) if the record is updated as referred to in paragraph (b)—the end of the financial year after the financial year in which the record was most recently so updated. (4) The records required to be kept under this section must be indexed in a way that allows the aggregate of stakes of a particular type, or held by a particular class of person, to be readily worked out.
Note: An airport‑operator company may commit an offence if it contravenes the requirements in this section to keep records (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, the Minister may, by written notice given to an airport‑operator company, require the company to give the Minister information specified in the notice about: (a) an ownership matter relating to the company; or (b) the location of the place where the central management and control of the company is ordinarily exercised; or (c) whether a director of the company is an Australian citizen or a foreign citizen ordinarily resident in Australia. (2) The notice may require the information to be given in a particular form or manner and within a specified period. (3) Without limiting subsection (2), the notice may require the information to be given in a written statement that complies with one or more of the following requirements: (a) a requirement that the statement is signed by a director of the company; (b) a requirement that the statement is verified by statutory declaration by a director of the company; (c) a requirement that the statement is approved by the directors of the company by resolution; (d) a requirement that the statement is accompanied by a copy of the resolution mentioned in paragraph (c). (4) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (5) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice. (6) An airport‑operator company must comply with a notice given to the company under subsection (1).
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, an airport‑operator company must give the Minister written notice as soon as reasonably practicable after it has reason to believe that: (a) one or more of the following situations exist in relation to the company: (i) an unacceptable foreign‑ownership situation; (ii) an unacceptable airline‑ownership situation; (iii) an unacceptable cross‑ownership situation; or (b) the central management and control of the company is no longer being ordinarily exercised at a place in Australia; or (c) a majority of the company’s directors are neither Australian citizens nor foreign citizens ordinarily resident in Australia. (2) The notice must include the following information: (a) the circumstance mentioned in paragraph (1)(a), (b) or (c) that the airport‑operator company believes exists; (b) the reason for the belief; (c) the steps taken, or intended to be taken, by the airport‑operator company to determine whether, in fact, the circumstance does exist; (d) the steps intended to be taken by the company to remedy the circumstance, if that circumstance does exist.
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(c) of the Act, a person must give information to an airport‑operator company if: (a) the information is relevant to an ownership matter that concerns the company; and (b) the company has, in writing, requested the person to give the information; and (c) the request specifies the kind of information the person is to give. (2) The request must specify a period of at least 30 days within which the information must be given to the airport‑operator company. (3) The information must be verified by statutory declaration.
Note: A person may commit an offence if the person does not give information to an airport‑operator company as required by this section (see subsection 60(4) of the Act).
For the purposes of paragraph 9(1)(c) of the Schedule to the Act, this Part sets out: (a) prescribed kinds of interests in shares; and (b) prescribed persons who hold those kinds of interests.
Note: Under paragraph 9(1)(c) of the Schedule to the Act, an interest of a prescribed kind in a share, being an interest held by such persons as are prescribed, must be disregarded for the purposes of the ownership provisions.
(1) This section applies if: (a) a foreign person has a stake in a company (holding company 2); and (b) holding company 2 has 100% of all types of direct control interests in another company (holding company 1); and (c) holding company 1 has 100% of all types of direct control interests in an airport‑operator company; and (d) holding company 1 and holding company 2 are both incorporated in Australia, and both have a share capital; and (e) holding company 2 is operated solely for the purpose of holding direct control interests in holding company 1 and at least one airport‑operator company; and (f) holding company 1 is operated solely for the purpose of holding direct control interests in one or more airport‑operator companies. Prescribed interest (2) An interest in a share that results in the foreign person having a stake in holding company 2: (a) is an interest of a prescribed kind only for the purpose of determining whether: (i) holding company 1, holding company 2 or the airport‑operator company mentioned in paragraph (1)(c) is a foreign person; or (ii) any of those companies is an associate of a foreign person; and (b) is to be disregarded only after it has been counted for the purposes of subclause 12(5) of the Schedule to the Act to calculate the stake that the foreign person holds in the airport‑operator company. Prescribed person (3) The foreign person mentioned in paragraph (1)(a) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest exists solely because the interest‑holder is a shareholder in a company that is none of the following: (a) a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975; (b) an airport lessee company; (c) a designated holding company mentioned in clause 14 of the Schedule to the Act; (d) a holding company to which section 14 of this instrument applies. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, in connection with that interest or any interest in an airport‑operator company: (a) the interest‑holder, although being an associate of a foreign person: (i) is not directly or indirectly controlled by the foreign person; and (ii) is not accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign person; and (iii) is not an associate, within the meaning of subclause 5(2) of the Schedule to the Act, of the foreign person; and (b) the foreign person does not have any direct control interest in the share. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
(1) This section applies to an interest in a share if the interest‑holder, although an associate of one or more persons in a group to which subclause 11(3) of the Schedule to the Act applies, is not a person in the group. Prescribed interest (2) The interest is an interest of a prescribed kind if, after being counted once for the ownership provisions in determining the total of the stakes of a particular type that the group holds in an airport‑operator company, the interest would, except for the operation of this section, be counted again for that purpose. Prescribed person (3) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
Application for investment fund to be declared a substantially Australian investment fund (1) A trustee or manager of an investment fund may, in writing, apply to the Minister for a declaration that the investment fund is a substantially Australian investment fund. Eligibility for declaration (2) An investment fund is eligible to be declared a substantially Australian investment fund if the investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. (3) For the purposes of subsection (2), a person is not taken to be a foreign person if: (a) the person holds a beneficial interest in the investment fund; and (b) the person is the trustee of another investment fund; and (c) the beneficial interest exists solely because the person is the trustee of the other investment fund; and (d) the other investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. Minister to decide if investment fund to be declared a substantially Australian investment fund (4) On application under subsection (1), the Minister must: (a) if reasonably satisfied that the investment fund is eligible to be declared a substantially Australian investment fund: (i) make the declaration; and (ii) within 7 days of making the declaration, give a copy of the declaration to the applicant and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Notice of refusal decision to be given (5) The Minister must, within 7 days of deciding to refuse to make a declaration, give the applicant written notice stating: (a) the reasons for the decision; and (b) the applicant’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
Prescribed interest and prescribed person (6) If a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force: (a) an interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action by the interest‑holder in the interest‑holder’s capacity as trustee or manager of the fund; and (b) the interest‑holder is a prescribed person. Minister to be advised of adverse facts or circumstances (7) If: (a) a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force; and (b) the interest‑holder is, or becomes, aware of the existence of a fact or circumstance that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; the interest‑holder must give the Minister written details of the fact or circumstance, before the end of 7 days after becoming aware of the fact or circumstance. Minister may require information about continuing eligibility of investment fund (8) The Minister may, by written notice given to the interest‑holder, require the interest‑holder to give the Minister, within any period and in the manner specified in the notice, specified information about the eligibility of the investment fund to continue to be declared a substantially Australian investment fund. (9) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (10) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action taken by the interest‑holder in the interest‑holder’s capacity as depositary or custodian for, or nominee of, another person. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder does not: (a) hold a beneficial interest in the share; or (b) have authority, by proxy or any other arrangement with the holder of the beneficial interest, to exercise in a discretionary way the voting rights attaching to the share.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if: (a) the interest is an interest in a share in an airline; and (b) the interest‑holder, in the interest‑holder’s capacity as the trustee or manager of an investment fund, is an associate of the airline; and (c) the interest exists solely as a result of an action by the interest‑holder in the interest‑holder’s capacity as trustee or manager of an investment fund. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if: (a) the Minister declares the investment fund, of which the interest‑holder is trustee or manager, to be a distanced investment fund; and (b) the declaration is in force. Application for investment fund to be declared a distanced investment fund (3) The interest‑holder may, in writing, apply to the Minister for a declaration that an investment fund is a distanced investment fund. Eligibility for investment fund to be declared (4) An investment fund is eligible to be declared a distanced investment fund if: (a) neither the trustee nor the manager of the investment fund is an associate (within the meaning of paragraph 5(1)(j) of the Schedule to the Act) of the airline; and (b) the investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. Minister to decide if investment fund to be declared a distanced investment fund (5) The Minister must: (a) if reasonably satisfied that the investment fund is eligible to be declared a distanced investment fund: (i) make the declaration; and (ii) within 7 days of making the declaration, give a copy of the declaration to the interest‑holder and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Reasons for refusal decision to be given (6) The Minister must, within 7 days of deciding to refuse to make a declaration, give the interest‑holder written notice stating: (a) the reasons for the decision; and (b) the interest‑holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
Minister to be advised of adverse facts or circumstances (7) If: (a) a declaration by the Minister that an investment fund is a distanced investment fund is in force; and (b) the interest‑holder is, or becomes, aware of the existence of a fact or circumstance that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; the interest‑holder must give the Minister written details of the fact or circumstance before the end of 7 days after becoming aware of it. Minister may require information about continuing eligibility of investment fund (8) The Minister may, by written notice given to the interest‑holder, require the interest‑holder to give the Minister, within any period and in the manner specified in the notice, specified information about the eligibility of the investment fund to continue to be declared a distanced investment fund. (9) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (10) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the result of the interest‑holder holding the interest is that an airline has a stake in the airport‑operator company for: (a) Archerfield Airport; or (b) Essendon Fields Airport; or (c) Jandakot Airport; or (d) Moorabbin Airport; or (e) Parafield Airport.
Note: The effect of disregarding those interests is that the limitations on ownership by airlines do not apply to the 5 airports mentioned.
Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, after being counted to determine the direct control interests held by the interest‑holder (the primary interest‑holder) in an airport‑operator company, the interest would, except for the operation of this section, also be counted to determine the size and type of stake held by an irrelevant associate. Prescribed person (2) The primary interest‑holder is a prescribed person. Irrelevant associate (3) For the purposes of subsection (1), a person is an irrelevant associate in relation to an interest in a share (a relevant share) held by the primary interest‑holder that results in the primary interest‑holder having a direct control interest in an airport‑operator company if: (a) the person is not a related entity of the primary interest‑holder; and (b) the person does not hold any direct control interest in the airport‑operator company arising from any relevant shares; and (c) the person is not an associate of the primary interest‑holder because of paragraph 5(1)(i) or (j), or subclause 5(2), of the Schedule to the Act. Related entities (4) For the purposes of subsection (3), an entity (the first entity) is a related entity of another entity (the second entity) if: (a) the first entity controls the second entity; or (b) the second entity controls the first entity; or (c) the first entity and the second entity are controlled by the same person. (5) For the purposes of subsection (4), a person controls an entity if: (a) for an entity that is a company—the person: (i) controls the entity within the meaning of section 50AA of the Corporations Act 2001; or (ii) has a direct control interest of at least 15% in the company; or (b) in any other case—the person controls the entity, within the meaning of section 50AA of the Corporations Act 2001.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, after being counted to determine the direct control interests held by an interest‑holder (the primary interest‑holder) in an airport‑operator company, the interest would, except for the operation of this section, also be counted to determine the size and type of stake held by an irrelevant associate. Prescribed person (2) The primary interest‑holder is a prescribed person. Irrelevant associates (3) For the purposes of subsection (1), a person is an irrelevant associate in relation to an interest in a share (a relevant share) held by the primary interest‑holder that results in the primary interest‑holder having a direct control interest in an airport‑operator company if: (a) the person is not a related entity of the primary interest‑holder; and (b) the person does not hold any direct control interest in the airport‑operator company arising from any relevant shares; and (c) the person is not an associate of the primary interest‑holder because of paragraph 5(1)(i) or (j), or subclause 5(2), of the Schedule to the Act; and (d) neither the primary interest‑holder nor the person is an airport entity. Airport entities (4) For the purposes of paragraph (3)(d), an airport entity is a person who: (a) owns, leases, controls or operates an airport; or (b) is a related entity of a person mentioned in paragraph (a). Related entities (5) For the purposes of subsections (3) and (4), an entity (the first entity) is a related entity of another entity (the second entity) if: (a) the first entity controls the second entity; or (b) the second entity controls the first entity; or (c) both the first entity and the second entity are controlled by the same person. (6) For the purposes of subsection (5), a person controls an entity if: (a) in the case of an entity that is a company, the person: (i) controls the entity within the meaning of section 50AA of the Corporations Act 2001; or (ii) has a relevant direct control interest in the company; or (b) in any other case—the person controls the entity, within the meaning of section 50AA of the Corporations Act 2001. Relevant direct control interest (7) For the purposes of this section, a relevant direct control interest is: (a) in determining whether the primary interest‑holder and the person are related entities for the purposes of paragraph (3)(a)—at least 15%; or (b) in determining whether a person is a related entity of a person mentioned in paragraph (4)(a)—at least 50%.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest is an interest in a share held by the interest‑holder in an airport‑operator company for: (a) Brisbane Airport; or (b) Melbourne (Tullamarine) Airport; or (c) Perth Airport.
Note: See subsection (8) for the limited purpose for which a prescribed interest may be disregarded.
Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if: (a) the Minister declares under subsection (4) that the interest‑holder satisfies the conditions set out in subsection (5); and (b) the interest‑holder, or an associate of the interest‑holder, acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport. Application for a declaration that conditions are satisfied (3) The interest‑holder, or an associate of the interest‑holder, may apply to the Minister, in writing, for a declaration under subsection (4) that the interest‑holder satisfies the conditions set out in subsection (5). Minister to decide if conditions are satisfied (4) On application under subsection (3), the Minister must: (a) if reasonably satisfied that the interest‑holder has made the application in good faith and satisfies the conditions in subsection (5): (i) make the declaration; and (ii) within 7 days of making the declaration give a copy of the declaration to the interest‑holder and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Conditions to be satisfied before declaration is made (5) For the purposes of subsections (2) to (4), the conditions are that the interest‑holder has, before the Minister makes the declaration: (a) given a written undertaking to the Minister: (i) to dispose of the prescribed interest; or (ii) to ensure that the interest‑holder’s stake in an airport‑operator company mentioned in subsection (1) is reduced, so that an unacceptable cross‑ownership situation does not (and would not, in the absence of this section) exist in relation to a pair of airport‑operator companies and in relation to the interest‑holder; within 12 months after the interest‑holder acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport; and (b) given the Minister, in writing, a firm strategy and timetable for complying with the undertaking under paragraph (a). Report to be provided if requested (6) If a declaration by the Minister under subsection (4) is in force in relation to an interest‑holder, the interest‑holder must, if requested by the Minister in writing, give the Minister a written report on the progress that the interest‑holder has made towards: (a) disposing of the prescribed interest; or (b) ensuring that interest‑holder’s stake in an airport‑operator company mentioned in subsection (1) is reduced; in accordance with the undertaking given under paragraph (5)(a). Interest‑holder must notify Minister if ceases to be willing or able to comply with conditions (7) If a declaration by the Minister under subsection (4) is in force in relation to an interest‑holder, and the interest‑holder ceases to be willing or able to comply with the undertaking given under paragraph (5)(a), the interest‑holder must advise the Minister in writing of that fact within 7 days after ceasing to be willing or able to comply. Prescribed interest to be disregarded for limited purpose (8) Despite subsection (1), a prescribed interest held by the interest‑holder, or by an associate of the interest‑holder, is disregarded only for the purposes of determining whether an unacceptable cross‑ownership situation is created by the acquisition of a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport in relation to which the undertaking under paragraph (5)(a) is given. When declaration ceases to have effect (9) A declaration under this section ceases to have effect at the end of 12 months after the interest‑holder acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport, unless it is revoked earlier. Notice of refusal decision to be given (10) The Minister must, within 7 days of deciding to refuse to make a declaration, give the applicant written notice stating: (a) the reasons for the decision; and (b) the interest‑holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
This Part sets out the circumstances in which a declaration made under section 18, 20 or 24 may be revoked.
Revocation of declarations made under subsection 18(4) (1) The Minister may revoke a declaration made under subsection 18(4) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed to give the Minister: (i) details of facts and circumstances in accordance with subsection 18(7); or (ii) information in accordance with a notice under subsection 18(8). Revocation of declarations made under subsection 20(5) (2) The Minister may revoke a declaration made under subsection 20(5) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed to give the Minister: (i) details of facts and circumstances in accordance with subsection 20(7); or (ii) information in accordance with a notice under subsection 20(8). Revocation of declarations made under subsection 24(4) (3) The Minister may revoke a declaration made under subsection 24(4) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed: (i) to comply with a request from the Minister for a report under subsection 24(6); or (ii) to advise the Minister in accordance with subsection 24(7). Reasons etc. for revocation (4) Before the end of 7 days after a declaration is revoked, the Minister must give the holder of the declaration written notice stating: (a) the reasons for the revocation; and (b) the holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
When revocation takes effect (5) A revocation takes effect 30 days after notification under subsection (4).
This Part provides for review by the Administrative Review Tribunal of certain decisions under this instrument.
(1) Applications may be made to the Administrative Review Tribunal for review of a decision of the Minister, under subsection 18(4), 20(5) or 24(4), to refuse to make a declaration. (2) Applications may be made to the Administrative Review Tribunal for review of a decision of the Minister, under subsection 26(1), (2) or (3), to revoke a declaration.
In this Part:
old Airports regulations means the Airports Regulations 1997, as in force immediately before the commencement of this section.
old Ownership regulations means the Airports (Ownership—Interests in Shares) Regulations 1996, as in force immediately before the commencement of this section.
(1) If: (a) a thing was done for a particular purpose under the old Ownership regulations or the old Airports regulations; and (b) the thing could be done for that purpose under this instrument; the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument. (2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a direction, notice, application, authorisation or other instrument being given or made.
Foreign‑owned investment funds (1) A declaration: (a) made under regulation 2.07 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 18 of this instrument. Investment fund whose trustee or manager is an associate of an airline (2) A declaration: (a) made under regulation 4.03 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 20 of this instrument. Specified airports (3) A declaration: (a) made under regulation 5.04 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 24 of this instrument. Notices requiring information (4) A notice: (a) given under regulation 3.24 of the old Airports regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a notice given under section 10 of this instrument. Requests for information (5) A request: (a) given under regulation 3.26A of the old Airports regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a request given under section 12 of this instrument.
This instrument is the Airports (Ownership) Regulations 2024.
This instrument is made under the Airports Act 1996.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) airline;
(b) airport‑operator company;
(c) unacceptable airline‑ownership situation;
(d) unacceptable cross‑ownership situation;
(e) unacceptable foreign‑ownership situation.
(1) In this instrument:
Act means the Airports Act 1996.
details of a person means:
(a) if the person is an individual:
(i) the person’s name; and
(ii) the address of the person’s usual residence; and
(iii) the person’s citizenship, or (if the person claims more than one citizenship) each citizenship that the person claims; or
(b) if the person is a corporation:
(i) the corporation’s name; and
(ii) the place in which the corporation is incorporated; and
(iii) the address of the corporation’s registered office or principal office; or
(c) if the person is a foreign government body:
(i) the name of the relevant foreign state (within the meaning of the Foreign States Immunities Act 1985); and
(ii) the address of the body’s principal office.
entity has the meaning given by section 64A of the Corporations Act 2001.
investment fund means any of the following:
(a) a fund of the kind generally known as a unit trust (except a unit trust of the kind generally known as a discretionary trust);
(b) a statutory fund, within the meaning of the Life Insurance Act 1995, of a life insurance company;
(c) a superannuation entity, within the meaning of the Superannuation Industry (Supervision) Act 1993;
(d) an exempt public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993.
ownership matter has the meaning given by subsection 60(6) of the Act.
(2) An expression used in this instrument and in the Schedule to the Act has the same meaning in this instrument as it has in the Schedule to the Act.
Note: The following are examples of expressions used in this instrument and in the Schedule to the Act:
(a) associate;
(b) direct control interest;
(c) foreign government body;
(d) foreign person;
(e) interest in a share;
(f) ownership provisions;
(g) share;
(h) stake.
(1) A reference in this instrument to a person who holds a beneficial interest in the capital, or income, of an investment fund includes a reference to a person who holds: (a) an interest of that kind jointly with another person; and (b) an interest of that kind that is prospective because the person: (i) has entered into a contract to purchase a beneficial interest; or (ii) has a right, otherwise than by reason of holding an interest in the fund, to have a beneficial interest in the fund transferred to the person or to the person’s order (whether exercisable presently or in the future, and whether or not subject to a condition); or (iii) has a right to acquire a beneficial interest under an option (whether exercisable presently or in the future, and whether or not subject to a condition). (2) Subsection (1) applies regardless of: (a) the remoteness of the interest; or (b) the way in which the interest arose; or (c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to a restraint or restriction. (3) For the purposes of subsection (1), an interest is not a beneficial interest if: (a) the interest is held solely as security under a moneylending agreement that has not ceased to have effect; and (b) the ordinary business of the interest‑holder includes the lending of money. (4) If: (a) a person holds a beneficial interest in an investment fund as a loan security; and (b) the ordinary business of the person includes the lending of money; and (c) the loan security is enforced; and (d) as a result of the enforcement, the person becomes the holder of the interest; and (e) the person holds the interest for a continuous period (the holding period) beginning at the time when the security was enforced; the person is taken not to hold the interest at all times during so much of the holding period as occurs during whichever of the following periods is applicable: (f) the period of 90 days beginning when the security was enforced; (g) if the Minister, by written notice, allows a longer period—that longer period.
For the purposes of subsection 60(1) of the Act, this Part makes provision for and in relation to requiring a person: (a) to keep and retain records that are relevant to an ownership matter; and (b) to give information to the Minister that is relevant to an ownership matter; and (c) to give information to an airport‑operator company that is relevant to an ownership matter and that concerns the company.
To avoid doubt, it is declared that the requirements of this Part are in addition to, and not in substitution for, the requirements of the Corporations Act 2001.
(1) For the purposes of paragraph 60(1)(a) of the Act, an airport‑operator company must keep a record of: (a) any stake in the company that is held by a foreign person; and (b) any stake in the company that is held by an airline; and (c) if the company is a member of a pair of airport‑operator companies: (i) any stake in the company that is held by the other member of the pair; and (ii) any stake in the company that is held by a person that holds a stake in the other member of the pair; and (iii) any stake that the company holds in the other member of the pair. (2) The record must include, for each stake: (a) in the case of a stake that is composed of a direct control interest held by only one person: (i) the amount of the interest; and (ii) the type of interest held; and (iii) details of the person holding the interest; and (b) in the case of a stake that is composed of direct control interests held by 2 or more persons—the information mentioned in subparagraphs (a)(i), (ii) and (iii) about each of those interests.
Note: A person’s stake of a particular type in an airport‑operator company includes both the person’s direct control interest in the company and any direct control interests held by the person’s associates (see clause 11 of the Schedule to the Act).
(3) The record for a stake must: (a) be made as soon as reasonably practicable after the stake is acquired; and (b) be updated as soon as reasonably practicable after any increase or decrease in the stake; and (c) be retained: (i) until the end of the financial year after the financial year in which the record is made; or (ii) if the record is updated as referred to in paragraph (b)—the end of the financial year after the financial year in which the record was most recently so updated. (4) The records required to be kept under this section must be indexed in a way that allows the aggregate of stakes of a particular type, or held by a particular class of person, to be readily worked out.
Note: An airport‑operator company may commit an offence if it contravenes the requirements in this section to keep records (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, the Minister may, by written notice given to an airport‑operator company, require the company to give the Minister information specified in the notice about: (a) an ownership matter relating to the company; or (b) the location of the place where the central management and control of the company is ordinarily exercised; or (c) whether a director of the company is an Australian citizen or a foreign citizen ordinarily resident in Australia. (2) The notice may require the information to be given in a particular form or manner and within a specified period. (3) Without limiting subsection (2), the notice may require the information to be given in a written statement that complies with one or more of the following requirements: (a) a requirement that the statement is signed by a director of the company; (b) a requirement that the statement is verified by statutory declaration by a director of the company; (c) a requirement that the statement is approved by the directors of the company by resolution; (d) a requirement that the statement is accompanied by a copy of the resolution mentioned in paragraph (c). (4) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (5) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice. (6) An airport‑operator company must comply with a notice given to the company under subsection (1).
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, an airport‑operator company must give the Minister written notice as soon as reasonably practicable after it has reason to believe that: (a) one or more of the following situations exist in relation to the company: (i) an unacceptable foreign‑ownership situation; (ii) an unacceptable airline‑ownership situation; (iii) an unacceptable cross‑ownership situation; or (b) the central management and control of the company is no longer being ordinarily exercised at a place in Australia; or (c) a majority of the company’s directors are neither Australian citizens nor foreign citizens ordinarily resident in Australia. (2) The notice must include the following information: (a) the circumstance mentioned in paragraph (1)(a), (b) or (c) that the airport‑operator company believes exists; (b) the reason for the belief; (c) the steps taken, or intended to be taken, by the airport‑operator company to determine whether, in fact, the circumstance does exist; (d) the steps intended to be taken by the company to remedy the circumstance, if that circumstance does exist.
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(c) of the Act, a person must give information to an airport‑operator company if: (a) the information is relevant to an ownership matter that concerns the company; and (b) the company has, in writing, requested the person to give the information; and (c) the request specifies the kind of information the person is to give. (2) The request must specify a period of at least 30 days within which the information must be given to the airport‑operator company. (3) The information must be verified by statutory declaration.
Note: A person may commit an offence if the person does not give information to an airport‑operator company as required by this section (see subsection 60(4) of the Act).
For the purposes of paragraph 9(1)(c) of the Schedule to the Act, this Part sets out: (a) prescribed kinds of interests in shares; and (b) prescribed persons who hold those kinds of interests.
Note: Under paragraph 9(1)(c) of the Schedule to the Act, an interest of a prescribed kind in a share, being an interest held by such persons as are prescribed, must be disregarded for the purposes of the ownership provisions.
(1) This section applies if: (a) a foreign person has a stake in a company (holding company 2); and (b) holding company 2 has 100% of all types of direct control interests in another company (holding company 1); and (c) holding company 1 has 100% of all types of direct control interests in an airport‑operator company; and (d) holding company 1 and holding company 2 are both incorporated in Australia, and both have a share capital; and (e) holding company 2 is operated solely for the purpose of holding direct control interests in holding company 1 and at least one airport‑operator company; and (f) holding company 1 is operated solely for the purpose of holding direct control interests in one or more airport‑operator companies. Prescribed interest (2) An interest in a share that results in the foreign person having a stake in holding company 2: (a) is an interest of a prescribed kind only for the purpose of determining whether: (i) holding company 1, holding company 2 or the airport‑operator company mentioned in paragraph (1)(c) is a foreign person; or (ii) any of those companies is an associate of a foreign person; and (b) is to be disregarded only after it has been counted for the purposes of subclause 12(5) of the Schedule to the Act to calculate the stake that the foreign person holds in the airport‑operator company. Prescribed person (3) The foreign person mentioned in paragraph (1)(a) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest exists solely because the interest‑holder is a shareholder in a company that is none of the following: (a) a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975; (b) an airport lessee company; (c) a designated holding company mentioned in clause 14 of the Schedule to the Act; (d) a holding company to which section 14 of this instrument applies. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, in connection with that interest or any interest in an airport‑operator company: (a) the interest‑holder, although being an associate of a foreign person: (i) is not directly or indirectly controlled by the foreign person; and (ii) is not accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign person; and (iii) is not an associate, within the meaning of subclause 5(2) of the Schedule to the Act, of the foreign person; and (b) the foreign person does not have any direct control interest in the share. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
(1) This section applies to an interest in a share if the interest‑holder, although an associate of one or more persons in a group to which subclause 11(3) of the Schedule to the Act applies, is not a person in the group. Prescribed interest (2) The interest is an interest of a prescribed kind if, after being counted once for the ownership provisions in determining the total of the stakes of a particular type that the group holds in an airport‑operator company, the interest would, except for the operation of this section, be counted again for that purpose. Prescribed person (3) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
Application for investment fund to be declared a substantially Australian investment fund (1) A trustee or manager of an investment fund may, in writing, apply to the Minister for a declaration that the investment fund is a substantially Australian investment fund. Eligibility for declaration (2) An investment fund is eligible to be declared a substantially Australian investment fund if the investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. (3) For the purposes of subsection (2), a person is not taken to be a foreign person if: (a) the person holds a beneficial interest in the investment fund; and (b) the person is the trustee of another investment fund; and (c) the beneficial interest exists solely because the person is the trustee of the other investment fund; and (d) the other investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. Minister to decide if investment fund to be declared a substantially Australian investment fund (4) On application under subsection (1), the Minister must: (a) if reasonably satisfied that the investment fund is eligible to be declared a substantially Australian investment fund: (i) make the declaration; and (ii) within 7 days of making the declaration, give a copy of the declaration to the applicant and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Notice of refusal decision to be given (5) The Minister must, within 7 days of deciding to refuse to make a declaration, give the applicant written notice stating: (a) the reasons for the decision; and (b) the applicant’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
Prescribed interest and prescribed person (6) If a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force: (a) an interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action by the interest‑holder in the interest‑holder’s capacity as trustee or manager of the fund; and (b) the interest‑holder is a prescribed person. Minister to be advised of adverse facts or circumstances (7) If: (a) a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force; and (b) the interest‑holder is, or becomes, aware of the existence of a fact or circumstance that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; the interest‑holder must give the Minister written details of the fact or circumstance, before the end of 7 days after becoming aware of the fact or circumstance. Minister may require information about continuing eligibility of investment fund (8) The Minister may, by written notice given to the interest‑holder, require the interest‑holder to give the Minister, within any period and in the manner specified in the notice, specified information about the eligibility of the investment fund to continue to be declared a substantially Australian investment fund. (9) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (10) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action taken by the interest‑holder in the interest‑holder’s capacity as depositary or custodian for, or nominee of, another person. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder does not: (a) hold a beneficial interest in the share; or (b) have authority, by proxy or any other arrangement with the holder of the beneficial interest, to exercise in a discretionary way the voting rights attaching to the share.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if: (a) the interest is an interest in a share in an airline; and (b) the interest‑holder, in the interest‑holder’s capacity as the trustee or manager of an investment fund, is an associate of the airline; and (c) the interest exists solely as a result of an action by the interest‑holder in the interest‑holder’s capacity as trustee or manager of an investment fund. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if: (a) the Minister declares the investment fund, of which the interest‑holder is trustee or manager, to be a distanced investment fund; and (b) the declaration is in force. Application for investment fund to be declared a distanced investment fund (3) The interest‑holder may, in writing, apply to the Minister for a declaration that an investment fund is a distanced investment fund. Eligibility for investment fund to be declared (4) An investment fund is eligible to be declared a distanced investment fund if: (a) neither the trustee nor the manager of the investment fund is an associate (within the meaning of paragraph 5(1)(j) of the Schedule to the Act) of the airline; and (b) the investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. Minister to decide if investment fund to be declared a distanced investment fund (5) The Minister must: (a) if reasonably satisfied that the investment fund is eligible to be declared a distanced investment fund: (i) make the declaration; and (ii) within 7 days of making the declaration, give a copy of the declaration to the interest‑holder and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Reasons for refusal decision to be given (6) The Minister must, within 7 days of deciding to refuse to make a declaration, give the interest‑holder written notice stating: (a) the reasons for the decision; and (b) the interest‑holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
Minister to be advised of adverse facts or circumstances (7) If: (a) a declaration by the Minister that an investment fund is a distanced investment fund is in force; and (b) the interest‑holder is, or becomes, aware of the existence of a fact or circumstance that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; the interest‑holder must give the Minister written details of the fact or circumstance before the end of 7 days after becoming aware of it. Minister may require information about continuing eligibility of investment fund (8) The Minister may, by written notice given to the interest‑holder, require the interest‑holder to give the Minister, within any period and in the manner specified in the notice, specified information about the eligibility of the investment fund to continue to be declared a distanced investment fund. (9) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (10) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the result of the interest‑holder holding the interest is that an airline has a stake in the airport‑operator company for: (a) Archerfield Airport; or (b) Essendon Fields Airport; or (c) Jandakot Airport; or (d) Moorabbin Airport; or (e) Parafield Airport.
Note: The effect of disregarding those interests is that the limitations on ownership by airlines do not apply to the 5 airports mentioned.
Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, after being counted to determine the direct control interests held by the interest‑holder (the primary interest‑holder) in an airport‑operator company, the interest would, except for the operation of this section, also be counted to determine the size and type of stake held by an irrelevant associate. Prescribed person (2) The primary interest‑holder is a prescribed person. Irrelevant associate (3) For the purposes of subsection (1), a person is an irrelevant associate in relation to an interest in a share (a relevant share) held by the primary interest‑holder that results in the primary interest‑holder having a direct control interest in an airport‑operator company if: (a) the person is not a related entity of the primary interest‑holder; and (b) the person does not hold any direct control interest in the airport‑operator company arising from any relevant shares; and (c) the person is not an associate of the primary interest‑holder because of paragraph 5(1)(i) or (j), or subclause 5(2), of the Schedule to the Act. Related entities (4) For the purposes of subsection (3), an entity (the first entity) is a related entity of another entity (the second entity) if: (a) the first entity controls the second entity; or (b) the second entity controls the first entity; or (c) the first entity and the second entity are controlled by the same person. (5) For the purposes of subsection (4), a person controls an entity if: (a) for an entity that is a company—the person: (i) controls the entity within the meaning of section 50AA of the Corporations Act 2001; or (ii) has a direct control interest of at least 15% in the company; or (b) in any other case—the person controls the entity, within the meaning of section 50AA of the Corporations Act 2001.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, after being counted to determine the direct control interests held by an interest‑holder (the primary interest‑holder) in an airport‑operator company, the interest would, except for the operation of this section, also be counted to determine the size and type of stake held by an irrelevant associate. Prescribed person (2) The primary interest‑holder is a prescribed person. Irrelevant associates (3) For the purposes of subsection (1), a person is an irrelevant associate in relation to an interest in a share (a relevant share) held by the primary interest‑holder that results in the primary interest‑holder having a direct control interest in an airport‑operator company if: (a) the person is not a related entity of the primary interest‑holder; and (b) the person does not hold any direct control interest in the airport‑operator company arising from any relevant shares; and (c) the person is not an associate of the primary interest‑holder because of paragraph 5(1)(i) or (j), or subclause 5(2), of the Schedule to the Act; and (d) neither the primary interest‑holder nor the person is an airport entity. Airport entities (4) For the purposes of paragraph (3)(d), an airport entity is a person who: (a) owns, leases, controls or operates an airport; or (b) is a related entity of a person mentioned in paragraph (a). Related entities (5) For the purposes of subsections (3) and (4), an entity (the first entity) is a related entity of another entity (the second entity) if: (a) the first entity controls the second entity; or (b) the second entity controls the first entity; or (c) both the first entity and the second entity are controlled by the same person. (6) For the purposes of subsection (5), a person controls an entity if: (a) in the case of an entity that is a company, the person: (i) controls the entity within the meaning of section 50AA of the Corporations Act 2001; or (ii) has a relevant direct control interest in the company; or (b) in any other case—the person controls the entity, within the meaning of section 50AA of the Corporations Act 2001. Relevant direct control interest (7) For the purposes of this section, a relevant direct control interest is: (a) in determining whether the primary interest‑holder and the person are related entities for the purposes of paragraph (3)(a)—at least 15%; or (b) in determining whether a person is a related entity of a person mentioned in paragraph (4)(a)—at least 50%.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest is an interest in a share held by the interest‑holder in an airport‑operator company for: (a) Brisbane Airport; or (b) Melbourne (Tullamarine) Airport; or (c) Perth Airport.
Note: See subsection (8) for the limited purpose for which a prescribed interest may be disregarded.
Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if: (a) the Minister declares under subsection (4) that the interest‑holder satisfies the conditions set out in subsection (5); and (b) the interest‑holder, or an associate of the interest‑holder, acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport. Application for a declaration that conditions are satisfied (3) The interest‑holder, or an associate of the interest‑holder, may apply to the Minister, in writing, for a declaration under subsection (4) that the interest‑holder satisfies the conditions set out in subsection (5). Minister to decide if conditions are satisfied (4) On application under subsection (3), the Minister must: (a) if reasonably satisfied that the interest‑holder has made the application in good faith and satisfies the conditions in subsection (5): (i) make the declaration; and (ii) within 7 days of making the declaration give a copy of the declaration to the interest‑holder and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Conditions to be satisfied before declaration is made (5) For the purposes of subsections (2) to (4), the conditions are that the interest‑holder has, before the Minister makes the declaration: (a) given a written undertaking to the Minister: (i) to dispose of the prescribed interest; or (ii) to ensure that the interest‑holder’s stake in an airport‑operator company mentioned in subsection (1) is reduced, so that an unacceptable cross‑ownership situation does not (and would not, in the absence of this section) exist in relation to a pair of airport‑operator companies and in relation to the interest‑holder; within 12 months after the interest‑holder acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport; and (b) given the Minister, in writing, a firm strategy and timetable for complying with the undertaking under paragraph (a). Report to be provided if requested (6) If a declaration by the Minister under subsection (4) is in force in relation to an interest‑holder, the interest‑holder must, if requested by the Minister in writing, give the Minister a written report on the progress that the interest‑holder has made towards: (a) disposing of the prescribed interest; or (b) ensuring that interest‑holder’s stake in an airport‑operator company mentioned in subsection (1) is reduced; in accordance with the undertaking given under paragraph (5)(a). Interest‑holder must notify Minister if ceases to be willing or able to comply with conditions (7) If a declaration by the Minister under subsection (4) is in force in relation to an interest‑holder, and the interest‑holder ceases to be willing or able to comply with the undertaking given under paragraph (5)(a), the interest‑holder must advise the Minister in writing of that fact within 7 days after ceasing to be willing or able to comply. Prescribed interest to be disregarded for limited purpose (8) Despite subsection (1), a prescribed interest held by the interest‑holder, or by an associate of the interest‑holder, is disregarded only for the purposes of determining whether an unacceptable cross‑ownership situation is created by the acquisition of a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport in relation to which the undertaking under paragraph (5)(a) is given. When declaration ceases to have effect (9) A declaration under this section ceases to have effect at the end of 12 months after the interest‑holder acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport, unless it is revoked earlier. Notice of refusal decision to be given (10) The Minister must, within 7 days of deciding to refuse to make a declaration, give the applicant written notice stating: (a) the reasons for the decision; and (b) the interest‑holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
This Part sets out the circumstances in which a declaration made under section 18, 20 or 24 may be revoked.
Revocation of declarations made under subsection 18(4) (1) The Minister may revoke a declaration made under subsection 18(4) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed to give the Minister: (i) details of facts and circumstances in accordance with subsection 18(7); or (ii) information in accordance with a notice under subsection 18(8). Revocation of declarations made under subsection 20(5) (2) The Minister may revoke a declaration made under subsection 20(5) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed to give the Minister: (i) details of facts and circumstances in accordance with subsection 20(7); or (ii) information in accordance with a notice under subsection 20(8). Revocation of declarations made under subsection 24(4) (3) The Minister may revoke a declaration made under subsection 24(4) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed: (i) to comply with a request from the Minister for a report under subsection 24(6); or (ii) to advise the Minister in accordance with subsection 24(7). Reasons etc. for revocation (4) Before the end of 7 days after a declaration is revoked, the Minister must give the holder of the declaration written notice stating: (a) the reasons for the revocation; and (b) the holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
When revocation takes effect (5) A revocation takes effect 30 days after notification under subsection (4).
This Part provides for review by the Administrative Review Tribunal of certain decisions under this instrument.
(1) Applications may be made to the Administrative Review Tribunal for review of a decision of the Minister, under subsection 18(4), 20(5) or 24(4), to refuse to make a declaration. (2) Applications may be made to the Administrative Review Tribunal for review of a decision of the Minister, under subsection 26(1), (2) or (3), to revoke a declaration.
In this Part:
old Airports regulations means the Airports Regulations 1997, as in force immediately before the commencement of this section.
old Ownership regulations means the Airports (Ownership—Interests in Shares) Regulations 1996, as in force immediately before the commencement of this section.
(1) If: (a) a thing was done for a particular purpose under the old Ownership regulations or the old Airports regulations; and (b) the thing could be done for that purpose under this instrument; the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument. (2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a direction, notice, application, authorisation or other instrument being given or made.
Foreign‑owned investment funds (1) A declaration: (a) made under regulation 2.07 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 18 of this instrument. Investment fund whose trustee or manager is an associate of an airline (2) A declaration: (a) made under regulation 4.03 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 20 of this instrument. Specified airports (3) A declaration: (a) made under regulation 5.04 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 24 of this instrument. Notices requiring information (4) A notice: (a) given under regulation 3.24 of the old Airports regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a notice given under section 10 of this instrument. Requests for information (5) A request: (a) given under regulation 3.26A of the old Airports regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a request given under section 12 of this instrument.
For the purposes of paragraph 9(1)(c) of the Schedule to the Act, this Part sets out: (a) prescribed kinds of interests in shares; and (b) prescribed persons who hold those kinds of interests.
Note: Under paragraph 9(1)(c) of the Schedule to the Act, an interest of a prescribed kind in a share, being an interest held by such persons as are prescribed, must be disregarded for the purposes of the ownership provisions.
This instrument is the Airports (Ownership) Regulations 2024.
This instrument is made under the Airports Act 1996.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) airline;
(b) airport‑operator company;
(c) unacceptable airline‑ownership situation;
(d) unacceptable cross‑ownership situation;
(e) unacceptable foreign‑ownership situation.
(1) In this instrument:
Act means the Airports Act 1996.
details of a person means:
(a) if the person is an individual:
(i) the person’s name; and
(ii) the address of the person’s usual residence; and
(iii) the person’s citizenship, or (if the person claims more than one citizenship) each citizenship that the person claims; or
(b) if the person is a corporation:
(i) the corporation’s name; and
(ii) the place in which the corporation is incorporated; and
(iii) the address of the corporation’s registered office or principal office; or
(c) if the person is a foreign government body:
(i) the name of the relevant foreign state (within the meaning of the Foreign States Immunities Act 1985); and
(ii) the address of the body’s principal office.
entity has the meaning given by section 64A of the Corporations Act 2001.
investment fund means any of the following:
(a) a fund of the kind generally known as a unit trust (except a unit trust of the kind generally known as a discretionary trust);
(b) a statutory fund, within the meaning of the Life Insurance Act 1995, of a life insurance company;
(c) a superannuation entity, within the meaning of the Superannuation Industry (Supervision) Act 1993;
(d) an exempt public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993.
ownership matter has the meaning given by subsection 60(6) of the Act.
(2) An expression used in this instrument and in the Schedule to the Act has the same meaning in this instrument as it has in the Schedule to the Act.
Note: The following are examples of expressions used in this instrument and in the Schedule to the Act:
(a) associate;
(b) direct control interest;
(c) foreign government body;
(d) foreign person;
(e) interest in a share;
(f) ownership provisions;
(g) share;
(h) stake.
(1) A reference in this instrument to a person who holds a beneficial interest in the capital, or income, of an investment fund includes a reference to a person who holds: (a) an interest of that kind jointly with another person; and (b) an interest of that kind that is prospective because the person: (i) has entered into a contract to purchase a beneficial interest; or (ii) has a right, otherwise than by reason of holding an interest in the fund, to have a beneficial interest in the fund transferred to the person or to the person’s order (whether exercisable presently or in the future, and whether or not subject to a condition); or (iii) has a right to acquire a beneficial interest under an option (whether exercisable presently or in the future, and whether or not subject to a condition). (2) Subsection (1) applies regardless of: (a) the remoteness of the interest; or (b) the way in which the interest arose; or (c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to a restraint or restriction. (3) For the purposes of subsection (1), an interest is not a beneficial interest if: (a) the interest is held solely as security under a moneylending agreement that has not ceased to have effect; and (b) the ordinary business of the interest‑holder includes the lending of money. (4) If: (a) a person holds a beneficial interest in an investment fund as a loan security; and (b) the ordinary business of the person includes the lending of money; and (c) the loan security is enforced; and (d) as a result of the enforcement, the person becomes the holder of the interest; and (e) the person holds the interest for a continuous period (the holding period) beginning at the time when the security was enforced; the person is taken not to hold the interest at all times during so much of the holding period as occurs during whichever of the following periods is applicable: (f) the period of 90 days beginning when the security was enforced; (g) if the Minister, by written notice, allows a longer period—that longer period.
For the purposes of subsection 60(1) of the Act, this Part makes provision for and in relation to requiring a person: (a) to keep and retain records that are relevant to an ownership matter; and (b) to give information to the Minister that is relevant to an ownership matter; and (c) to give information to an airport‑operator company that is relevant to an ownership matter and that concerns the company.
To avoid doubt, it is declared that the requirements of this Part are in addition to, and not in substitution for, the requirements of the Corporations Act 2001.
(1) For the purposes of paragraph 60(1)(a) of the Act, an airport‑operator company must keep a record of: (a) any stake in the company that is held by a foreign person; and (b) any stake in the company that is held by an airline; and (c) if the company is a member of a pair of airport‑operator companies: (i) any stake in the company that is held by the other member of the pair; and (ii) any stake in the company that is held by a person that holds a stake in the other member of the pair; and (iii) any stake that the company holds in the other member of the pair. (2) The record must include, for each stake: (a) in the case of a stake that is composed of a direct control interest held by only one person: (i) the amount of the interest; and (ii) the type of interest held; and (iii) details of the person holding the interest; and (b) in the case of a stake that is composed of direct control interests held by 2 or more persons—the information mentioned in subparagraphs (a)(i), (ii) and (iii) about each of those interests.
Note: A person’s stake of a particular type in an airport‑operator company includes both the person’s direct control interest in the company and any direct control interests held by the person’s associates (see clause 11 of the Schedule to the Act).
(3) The record for a stake must: (a) be made as soon as reasonably practicable after the stake is acquired; and (b) be updated as soon as reasonably practicable after any increase or decrease in the stake; and (c) be retained: (i) until the end of the financial year after the financial year in which the record is made; or (ii) if the record is updated as referred to in paragraph (b)—the end of the financial year after the financial year in which the record was most recently so updated. (4) The records required to be kept under this section must be indexed in a way that allows the aggregate of stakes of a particular type, or held by a particular class of person, to be readily worked out.
Note: An airport‑operator company may commit an offence if it contravenes the requirements in this section to keep records (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, the Minister may, by written notice given to an airport‑operator company, require the company to give the Minister information specified in the notice about: (a) an ownership matter relating to the company; or (b) the location of the place where the central management and control of the company is ordinarily exercised; or (c) whether a director of the company is an Australian citizen or a foreign citizen ordinarily resident in Australia. (2) The notice may require the information to be given in a particular form or manner and within a specified period. (3) Without limiting subsection (2), the notice may require the information to be given in a written statement that complies with one or more of the following requirements: (a) a requirement that the statement is signed by a director of the company; (b) a requirement that the statement is verified by statutory declaration by a director of the company; (c) a requirement that the statement is approved by the directors of the company by resolution; (d) a requirement that the statement is accompanied by a copy of the resolution mentioned in paragraph (c). (4) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (5) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice. (6) An airport‑operator company must comply with a notice given to the company under subsection (1).
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, an airport‑operator company must give the Minister written notice as soon as reasonably practicable after it has reason to believe that: (a) one or more of the following situations exist in relation to the company: (i) an unacceptable foreign‑ownership situation; (ii) an unacceptable airline‑ownership situation; (iii) an unacceptable cross‑ownership situation; or (b) the central management and control of the company is no longer being ordinarily exercised at a place in Australia; or (c) a majority of the company’s directors are neither Australian citizens nor foreign citizens ordinarily resident in Australia. (2) The notice must include the following information: (a) the circumstance mentioned in paragraph (1)(a), (b) or (c) that the airport‑operator company believes exists; (b) the reason for the belief; (c) the steps taken, or intended to be taken, by the airport‑operator company to determine whether, in fact, the circumstance does exist; (d) the steps intended to be taken by the company to remedy the circumstance, if that circumstance does exist.
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(c) of the Act, a person must give information to an airport‑operator company if: (a) the information is relevant to an ownership matter that concerns the company; and (b) the company has, in writing, requested the person to give the information; and (c) the request specifies the kind of information the person is to give. (2) The request must specify a period of at least 30 days within which the information must be given to the airport‑operator company. (3) The information must be verified by statutory declaration.
Note: A person may commit an offence if the person does not give information to an airport‑operator company as required by this section (see subsection 60(4) of the Act).
For the purposes of paragraph 9(1)(c) of the Schedule to the Act, this Part sets out: (a) prescribed kinds of interests in shares; and (b) prescribed persons who hold those kinds of interests.
Note: Under paragraph 9(1)(c) of the Schedule to the Act, an interest of a prescribed kind in a share, being an interest held by such persons as are prescribed, must be disregarded for the purposes of the ownership provisions.
(1) This section applies if: (a) a foreign person has a stake in a company (holding company 2); and (b) holding company 2 has 100% of all types of direct control interests in another company (holding company 1); and (c) holding company 1 has 100% of all types of direct control interests in an airport‑operator company; and (d) holding company 1 and holding company 2 are both incorporated in Australia, and both have a share capital; and (e) holding company 2 is operated solely for the purpose of holding direct control interests in holding company 1 and at least one airport‑operator company; and (f) holding company 1 is operated solely for the purpose of holding direct control interests in one or more airport‑operator companies. Prescribed interest (2) An interest in a share that results in the foreign person having a stake in holding company 2: (a) is an interest of a prescribed kind only for the purpose of determining whether: (i) holding company 1, holding company 2 or the airport‑operator company mentioned in paragraph (1)(c) is a foreign person; or (ii) any of those companies is an associate of a foreign person; and (b) is to be disregarded only after it has been counted for the purposes of subclause 12(5) of the Schedule to the Act to calculate the stake that the foreign person holds in the airport‑operator company. Prescribed person (3) The foreign person mentioned in paragraph (1)(a) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest exists solely because the interest‑holder is a shareholder in a company that is none of the following: (a) a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975; (b) an airport lessee company; (c) a designated holding company mentioned in clause 14 of the Schedule to the Act; (d) a holding company to which section 14 of this instrument applies. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, in connection with that interest or any interest in an airport‑operator company: (a) the interest‑holder, although being an associate of a foreign person: (i) is not directly or indirectly controlled by the foreign person; and (ii) is not accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign person; and (iii) is not an associate, within the meaning of subclause 5(2) of the Schedule to the Act, of the foreign person; and (b) the foreign person does not have any direct control interest in the share. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
(1) This section applies to an interest in a share if the interest‑holder, although an associate of one or more persons in a group to which subclause 11(3) of the Schedule to the Act applies, is not a person in the group. Prescribed interest (2) The interest is an interest of a prescribed kind if, after being counted once for the ownership provisions in determining the total of the stakes of a particular type that the group holds in an airport‑operator company, the interest would, except for the operation of this section, be counted again for that purpose. Prescribed person (3) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
Application for investment fund to be declared a substantially Australian investment fund (1) A trustee or manager of an investment fund may, in writing, apply to the Minister for a declaration that the investment fund is a substantially Australian investment fund. Eligibility for declaration (2) An investment fund is eligible to be declared a substantially Australian investment fund if the investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. (3) For the purposes of subsection (2), a person is not taken to be a foreign person if: (a) the person holds a beneficial interest in the investment fund; and (b) the person is the trustee of another investment fund; and (c) the beneficial interest exists solely because the person is the trustee of the other investment fund; and (d) the other investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. Minister to decide if investment fund to be declared a substantially Australian investment fund (4) On application under subsection (1), the Minister must: (a) if reasonably satisfied that the investment fund is eligible to be declared a substantially Australian investment fund: (i) make the declaration; and (ii) within 7 days of making the declaration, give a copy of the declaration to the applicant and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Notice of refusal decision to be given (5) The Minister must, within 7 days of deciding to refuse to make a declaration, give the applicant written notice stating: (a) the reasons for the decision; and (b) the applicant’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
Prescribed interest and prescribed person (6) If a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force: (a) an interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action by the interest‑holder in the interest‑holder’s capacity as trustee or manager of the fund; and (b) the interest‑holder is a prescribed person. Minister to be advised of adverse facts or circumstances (7) If: (a) a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force; and (b) the interest‑holder is, or becomes, aware of the existence of a fact or circumstance that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; the interest‑holder must give the Minister written details of the fact or circumstance, before the end of 7 days after becoming aware of the fact or circumstance. Minister may require information about continuing eligibility of investment fund (8) The Minister may, by written notice given to the interest‑holder, require the interest‑holder to give the Minister, within any period and in the manner specified in the notice, specified information about the eligibility of the investment fund to continue to be declared a substantially Australian investment fund. (9) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (10) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action taken by the interest‑holder in the interest‑holder’s capacity as depositary or custodian for, or nominee of, another person. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder does not: (a) hold a beneficial interest in the share; or (b) have authority, by proxy or any other arrangement with the holder of the beneficial interest, to exercise in a discretionary way the voting rights attaching to the share.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if: (a) the interest is an interest in a share in an airline; and (b) the interest‑holder, in the interest‑holder’s capacity as the trustee or manager of an investment fund, is an associate of the airline; and (c) the interest exists solely as a result of an action by the interest‑holder in the interest‑holder’s capacity as trustee or manager of an investment fund. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if: (a) the Minister declares the investment fund, of which the interest‑holder is trustee or manager, to be a distanced investment fund; and (b) the declaration is in force. Application for investment fund to be declared a distanced investment fund (3) The interest‑holder may, in writing, apply to the Minister for a declaration that an investment fund is a distanced investment fund. Eligibility for investment fund to be declared (4) An investment fund is eligible to be declared a distanced investment fund if: (a) neither the trustee nor the manager of the investment fund is an associate (within the meaning of paragraph 5(1)(j) of the Schedule to the Act) of the airline; and (b) the investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. Minister to decide if investment fund to be declared a distanced investment fund (5) The Minister must: (a) if reasonably satisfied that the investment fund is eligible to be declared a distanced investment fund: (i) make the declaration; and (ii) within 7 days of making the declaration, give a copy of the declaration to the interest‑holder and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Reasons for refusal decision to be given (6) The Minister must, within 7 days of deciding to refuse to make a declaration, give the interest‑holder written notice stating: (a) the reasons for the decision; and (b) the interest‑holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
Minister to be advised of adverse facts or circumstances (7) If: (a) a declaration by the Minister that an investment fund is a distanced investment fund is in force; and (b) the interest‑holder is, or becomes, aware of the existence of a fact or circumstance that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; the interest‑holder must give the Minister written details of the fact or circumstance before the end of 7 days after becoming aware of it. Minister may require information about continuing eligibility of investment fund (8) The Minister may, by written notice given to the interest‑holder, require the interest‑holder to give the Minister, within any period and in the manner specified in the notice, specified information about the eligibility of the investment fund to continue to be declared a distanced investment fund. (9) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (10) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the result of the interest‑holder holding the interest is that an airline has a stake in the airport‑operator company for: (a) Archerfield Airport; or (b) Essendon Fields Airport; or (c) Jandakot Airport; or (d) Moorabbin Airport; or (e) Parafield Airport.
Note: The effect of disregarding those interests is that the limitations on ownership by airlines do not apply to the 5 airports mentioned.
Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, after being counted to determine the direct control interests held by the interest‑holder (the primary interest‑holder) in an airport‑operator company, the interest would, except for the operation of this section, also be counted to determine the size and type of stake held by an irrelevant associate. Prescribed person (2) The primary interest‑holder is a prescribed person. Irrelevant associate (3) For the purposes of subsection (1), a person is an irrelevant associate in relation to an interest in a share (a relevant share) held by the primary interest‑holder that results in the primary interest‑holder having a direct control interest in an airport‑operator company if: (a) the person is not a related entity of the primary interest‑holder; and (b) the person does not hold any direct control interest in the airport‑operator company arising from any relevant shares; and (c) the person is not an associate of the primary interest‑holder because of paragraph 5(1)(i) or (j), or subclause 5(2), of the Schedule to the Act. Related entities (4) For the purposes of subsection (3), an entity (the first entity) is a related entity of another entity (the second entity) if: (a) the first entity controls the second entity; or (b) the second entity controls the first entity; or (c) the first entity and the second entity are controlled by the same person. (5) For the purposes of subsection (4), a person controls an entity if: (a) for an entity that is a company—the person: (i) controls the entity within the meaning of section 50AA of the Corporations Act 2001; or (ii) has a direct control interest of at least 15% in the company; or (b) in any other case—the person controls the entity, within the meaning of section 50AA of the Corporations Act 2001.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, after being counted to determine the direct control interests held by an interest‑holder (the primary interest‑holder) in an airport‑operator company, the interest would, except for the operation of this section, also be counted to determine the size and type of stake held by an irrelevant associate. Prescribed person (2) The primary interest‑holder is a prescribed person. Irrelevant associates (3) For the purposes of subsection (1), a person is an irrelevant associate in relation to an interest in a share (a relevant share) held by the primary interest‑holder that results in the primary interest‑holder having a direct control interest in an airport‑operator company if: (a) the person is not a related entity of the primary interest‑holder; and (b) the person does not hold any direct control interest in the airport‑operator company arising from any relevant shares; and (c) the person is not an associate of the primary interest‑holder because of paragraph 5(1)(i) or (j), or subclause 5(2), of the Schedule to the Act; and (d) neither the primary interest‑holder nor the person is an airport entity. Airport entities (4) For the purposes of paragraph (3)(d), an airport entity is a person who: (a) owns, leases, controls or operates an airport; or (b) is a related entity of a person mentioned in paragraph (a). Related entities (5) For the purposes of subsections (3) and (4), an entity (the first entity) is a related entity of another entity (the second entity) if: (a) the first entity controls the second entity; or (b) the second entity controls the first entity; or (c) both the first entity and the second entity are controlled by the same person. (6) For the purposes of subsection (5), a person controls an entity if: (a) in the case of an entity that is a company, the person: (i) controls the entity within the meaning of section 50AA of the Corporations Act 2001; or (ii) has a relevant direct control interest in the company; or (b) in any other case—the person controls the entity, within the meaning of section 50AA of the Corporations Act 2001. Relevant direct control interest (7) For the purposes of this section, a relevant direct control interest is: (a) in determining whether the primary interest‑holder and the person are related entities for the purposes of paragraph (3)(a)—at least 15%; or (b) in determining whether a person is a related entity of a person mentioned in paragraph (4)(a)—at least 50%.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest is an interest in a share held by the interest‑holder in an airport‑operator company for: (a) Brisbane Airport; or (b) Melbourne (Tullamarine) Airport; or (c) Perth Airport.
Note: See subsection (8) for the limited purpose for which a prescribed interest may be disregarded.
Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if: (a) the Minister declares under subsection (4) that the interest‑holder satisfies the conditions set out in subsection (5); and (b) the interest‑holder, or an associate of the interest‑holder, acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport. Application for a declaration that conditions are satisfied (3) The interest‑holder, or an associate of the interest‑holder, may apply to the Minister, in writing, for a declaration under subsection (4) that the interest‑holder satisfies the conditions set out in subsection (5). Minister to decide if conditions are satisfied (4) On application under subsection (3), the Minister must: (a) if reasonably satisfied that the interest‑holder has made the application in good faith and satisfies the conditions in subsection (5): (i) make the declaration; and (ii) within 7 days of making the declaration give a copy of the declaration to the interest‑holder and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Conditions to be satisfied before declaration is made (5) For the purposes of subsections (2) to (4), the conditions are that the interest‑holder has, before the Minister makes the declaration: (a) given a written undertaking to the Minister: (i) to dispose of the prescribed interest; or (ii) to ensure that the interest‑holder’s stake in an airport‑operator company mentioned in subsection (1) is reduced, so that an unacceptable cross‑ownership situation does not (and would not, in the absence of this section) exist in relation to a pair of airport‑operator companies and in relation to the interest‑holder; within 12 months after the interest‑holder acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport; and (b) given the Minister, in writing, a firm strategy and timetable for complying with the undertaking under paragraph (a). Report to be provided if requested (6) If a declaration by the Minister under subsection (4) is in force in relation to an interest‑holder, the interest‑holder must, if requested by the Minister in writing, give the Minister a written report on the progress that the interest‑holder has made towards: (a) disposing of the prescribed interest; or (b) ensuring that interest‑holder’s stake in an airport‑operator company mentioned in subsection (1) is reduced; in accordance with the undertaking given under paragraph (5)(a). Interest‑holder must notify Minister if ceases to be willing or able to comply with conditions (7) If a declaration by the Minister under subsection (4) is in force in relation to an interest‑holder, and the interest‑holder ceases to be willing or able to comply with the undertaking given under paragraph (5)(a), the interest‑holder must advise the Minister in writing of that fact within 7 days after ceasing to be willing or able to comply. Prescribed interest to be disregarded for limited purpose (8) Despite subsection (1), a prescribed interest held by the interest‑holder, or by an associate of the interest‑holder, is disregarded only for the purposes of determining whether an unacceptable cross‑ownership situation is created by the acquisition of a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport in relation to which the undertaking under paragraph (5)(a) is given. When declaration ceases to have effect (9) A declaration under this section ceases to have effect at the end of 12 months after the interest‑holder acquires a stake in the airport‑operator company for Sydney (Kingsford‑Smith) Airport, unless it is revoked earlier. Notice of refusal decision to be given (10) The Minister must, within 7 days of deciding to refuse to make a declaration, give the applicant written notice stating: (a) the reasons for the decision; and (b) the interest‑holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
This Part sets out the circumstances in which a declaration made under section 18, 20 or 24 may be revoked.
Revocation of declarations made under subsection 18(4) (1) The Minister may revoke a declaration made under subsection 18(4) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed to give the Minister: (i) details of facts and circumstances in accordance with subsection 18(7); or (ii) information in accordance with a notice under subsection 18(8). Revocation of declarations made under subsection 20(5) (2) The Minister may revoke a declaration made under subsection 20(5) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed to give the Minister: (i) details of facts and circumstances in accordance with subsection 20(7); or (ii) information in accordance with a notice under subsection 20(8). Revocation of declarations made under subsection 24(4) (3) The Minister may revoke a declaration made under subsection 24(4) if the Minister reasonably believes that: (a) a fact or circumstance exists that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; or (b) the holder of the declaration has failed: (i) to comply with a request from the Minister for a report under subsection 24(6); or (ii) to advise the Minister in accordance with subsection 24(7). Reasons etc. for revocation (4) Before the end of 7 days after a declaration is revoked, the Minister must give the holder of the declaration written notice stating: (a) the reasons for the revocation; and (b) the holder’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
When revocation takes effect (5) A revocation takes effect 30 days after notification under subsection (4).
This Part provides for review by the Administrative Review Tribunal of certain decisions under this instrument.
(1) Applications may be made to the Administrative Review Tribunal for review of a decision of the Minister, under subsection 18(4), 20(5) or 24(4), to refuse to make a declaration. (2) Applications may be made to the Administrative Review Tribunal for review of a decision of the Minister, under subsection 26(1), (2) or (3), to revoke a declaration.
In this Part:
old Airports regulations means the Airports Regulations 1997, as in force immediately before the commencement of this section.
old Ownership regulations means the Airports (Ownership—Interests in Shares) Regulations 1996, as in force immediately before the commencement of this section.
(1) If: (a) a thing was done for a particular purpose under the old Ownership regulations or the old Airports regulations; and (b) the thing could be done for that purpose under this instrument; the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument. (2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a direction, notice, application, authorisation or other instrument being given or made.
Foreign‑owned investment funds (1) A declaration: (a) made under regulation 2.07 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 18 of this instrument. Investment fund whose trustee or manager is an associate of an airline (2) A declaration: (a) made under regulation 4.03 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 20 of this instrument. Specified airports (3) A declaration: (a) made under regulation 5.04 of the old Ownership regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a declaration made under section 24 of this instrument. Notices requiring information (4) A notice: (a) given under regulation 3.24 of the old Airports regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a notice given under section 10 of this instrument. Requests for information (5) A request: (a) given under regulation 3.26A of the old Airports regulations; and (b) in force immediately before the commencement of this section; has effect, from that commencement, as if it were a request given under section 12 of this instrument.
(1) This section applies if: (a) a foreign person has a stake in a company (holding company 2); and (b) holding company 2 has 100% of all types of direct control interests in another company (holding company 1); and (c) holding company 1 has 100% of all types of direct control interests in an airport‑operator company; and (d) holding company 1 and holding company 2 are both incorporated in Australia, and both have a share capital; and (e) holding company 2 is operated solely for the purpose of holding direct control interests in holding company 1 and at least one airport‑operator company; and (f) holding company 1 is operated solely for the purpose of holding direct control interests in one or more airport‑operator companies. Prescribed interest (2) An interest in a share that results in the foreign person having a stake in holding company 2: (a) is an interest of a prescribed kind only for the purpose of determining whether: (i) holding company 1, holding company 2 or the airport‑operator company mentioned in paragraph (1)(c) is a foreign person; or (ii) any of those companies is an associate of a foreign person; and (b) is to be disregarded only after it has been counted for the purposes of subclause 12(5) of the Schedule to the Act to calculate the stake that the foreign person holds in the airport‑operator company. Prescribed person (3) The foreign person mentioned in paragraph (1)(a) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if the interest exists solely because the interest‑holder is a shareholder in a company that is none of the following: (a) a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975; (b) an airport lessee company; (c) a designated holding company mentioned in clause 14 of the Schedule to the Act; (d) a holding company to which section 14 of this instrument applies. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person.
Prescribed interest (1) An interest in a share is an interest of a prescribed kind if, in connection with that interest or any interest in an airport‑operator company: (a) the interest‑holder, although being an associate of a foreign person: (i) is not directly or indirectly controlled by the foreign person; and (ii) is not accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the foreign person; and (iii) is not an associate, within the meaning of subclause 5(2) of the Schedule to the Act, of the foreign person; and (b) the foreign person does not have any direct control interest in the share. Prescribed person (2) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
(1) This section applies to an interest in a share if the interest‑holder, although an associate of one or more persons in a group to which subclause 11(3) of the Schedule to the Act applies, is not a person in the group. Prescribed interest (2) The interest is an interest of a prescribed kind if, after being counted once for the ownership provisions in determining the total of the stakes of a particular type that the group holds in an airport‑operator company, the interest would, except for the operation of this section, be counted again for that purpose. Prescribed person (3) The interest‑holder mentioned in subsection (1) is a prescribed person if the interest‑holder is not a foreign person.
Application for investment fund to be declared a substantially Australian investment fund (1) A trustee or manager of an investment fund may, in writing, apply to the Minister for a declaration that the investment fund is a substantially Australian investment fund. Eligibility for declaration (2) An investment fund is eligible to be declared a substantially Australian investment fund if the investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. (3) For the purposes of subsection (2), a person is not taken to be a foreign person if: (a) the person holds a beneficial interest in the investment fund; and (b) the person is the trustee of another investment fund; and (c) the beneficial interest exists solely because the person is the trustee of the other investment fund; and (d) the other investment fund is a fund in which a beneficial interest in less than 40% of the capital, and 40% of the income, is held by persons who are foreign persons. Minister to decide if investment fund to be declared a substantially Australian investment fund (4) On application under subsection (1), the Minister must: (a) if reasonably satisfied that the investment fund is eligible to be declared a substantially Australian investment fund: (i) make the declaration; and (ii) within 7 days of making the declaration, give a copy of the declaration to the applicant and publish a notice of the declaration on the Department’s website; or (b) if not so satisfied—refuse to make the declaration. Notice of refusal decision to be given (5) The Minister must, within 7 days of deciding to refuse to make a declaration, give the applicant written notice stating: (a) the reasons for the decision; and (b) the applicant’s right to have the decision reviewed by the Administrative Review Tribunal.
Note: See section 28 for review of decisions.
Prescribed interest and prescribed person (6) If a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force: (a) an interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action by the interest‑holder in the interest‑holder’s capacity as trustee or manager of the fund; and (b) the interest‑holder is a prescribed person. Minister to be advised of adverse facts or circumstances (7) If: (a) a declaration by the Minister that an investment fund is a substantially Australian investment fund is in force; and (b) the interest‑holder is, or becomes, aware of the existence of a fact or circumstance that, had it existed and been known to the Minister at the time the declaration was made, is likely to have resulted in the Minister refusing to make the declaration; the interest‑holder must give the Minister written details of the fact or circumstance, before the end of 7 days after becoming aware of the fact or circumstance. Minister may require information about continuing eligibility of investment fund (8) The Minister may, by written notice given to the interest‑holder, require the interest‑holder to give the Minister, within any period and in the manner specified in the notice, specified information about the eligibility of the investment fund to continue to be declared a substantially Australian investment fund. (9) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (10) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This instrument is the Airports (Ownership) Regulations 2024.
This instrument is made under the Airports Act 1996.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) airline;
(b) airport‑operator company;
(c) unacceptable airline‑ownership situation;
(d) unacceptable cross‑ownership situation;
(e) unacceptable foreign‑ownership situation.
(1) In this instrument:
Act means the Airports Act 1996.
details of a person means:
(a) if the person is an individual:
(i) the person’s name; and
(ii) the address of the person’s usual residence; and
(iii) the person’s citizenship, or (if the person claims more than one citizenship) each citizenship that the person claims; or
(b) if the person is a corporation:
(i) the corporation’s name; and
(ii) the place in which the corporation is incorporated; and
(iii) the address of the corporation’s registered office or principal office; or
(c) if the person is a foreign government body:
(i) the name of the relevant foreign state (within the meaning of the Foreign States Immunities Act 1985); and
(ii) the address of the body’s principal office.
entity has the meaning given by section 64A of the Corporations Act 2001.
investment fund means any of the following:
(a) a fund of the kind generally known as a unit trust (except a unit trust of the kind generally known as a discretionary trust);
(b) a statutory fund, within the meaning of the Life Insurance Act 1995, of a life insurance company;
(c) a superannuation entity, within the meaning of the Superannuation Industry (Supervision) Act 1993;
(d) an exempt public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993.
ownership matter has the meaning given by subsection 60(6) of the Act.
(2) An expression used in this instrument and in the Schedule to the Act has the same meaning in this instrument as it has in the Schedule to the Act.
Sets out processes for applying for and granting Ministerial declarations (e.g. declaring an investment fund "substantially Australian" (s18) or a fund a "distanced investment fund" (s20)), the Minister's publication and notification duties, duties on declarants to report adverse facts and to supply further information, and grounds and procedures for the Minister to revoke such declarations (ss18, 20, 24, 26). There is a right to merits review by the Administrative Review Tribunal of declaration refusals and revocations (s28).
Includes transitional savings so existing declarations, notices and requests made under older regulations continue to have effect (ss30–31).
Who is affected
Why it matters (purpose claims and practical testing)
The stated intent is to implement the ownership provisions in the Schedule to the Airports Act by: (a) creating clear record and reporting obligations so the government can track compliance; and (b) defining specific classes of interests that should be ignored when calculating ownership stakes so that the statutory ceilings operate as intended (see s7, s13).
Implementation costs and compliance burdens: airport operators must design indexed records, gather data about beneficial ownership, obtain statutory declarations and respond to Ministerial notices (s9–12). Trustees/managers of funds must prepare applications, strategies and possibly ongoing reports if granted declarations (ss18, 20, 24). Those are direct administrative costs paid by companies and funds.
Ministerial discretion and administrative risk: the Minister has several discretionary decisions (grant/refuse declarations, revoke them, require further information). Decisions must be made on a reasonableness standard and are reviewable by the Administrative Review Tribunal (ss18(4), 20(5), 24(4), 26, 28). Discretion creates implementation risk for investors who rely on a declaration to treat an interest as disregarded.
Effects on private enterprise and markets: the regulations leave the statutory ownership ceilings in place but create recognised carve‑outs and administrative pathways (e.g. declarations for certain funds, specific airports where airline ownership limits are not applied) that alter which holdings count toward those ceilings (Part 3). Those carved‑out categories concentrate benefits on particular investors or asset classes (trustees/managers who obtain declarations; owners of the five smaller airports listed in s21), while compliance costs are spread across airport operators and investors who must document and verify positions.
Trade‑offs and substitution effects: the ability to obtain Ministerial declarations (and the specific carve‑outs for certain airports) may encourage structuring through Australian incorporated holding companies, use of nominated custodians, or fund structures that meet the 40% thresholds (s14–20). The instrument also contains anti‑avoidance and timing rules (e.g. counting then disregarding in specified order, 90‑day safe harbour after enforcement of loan security) to limit tactical structuring (ss6(4), 14(2)).
Bottom line (who pays, who decides, what changes): airport‑operator companies and their investors pay the compliance costs. The Minister decides on declarations, notices and revocations (with limited tribunal review). The practical change is a more detailed, administrable set of rules about what counts as ownership and what can be ignored, and clearer processes for information flow between airport operators, investors and the Minister (see ss7–12; Part 3; ss18, 20, 24, 26, 28).
Note: The following are examples of expressions used in this instrument and in the Schedule to the Act:
(a) associate;
(b) direct control interest;
(c) foreign government body;
(d) foreign person;
(e) interest in a share;
(f) ownership provisions;
(g) share;
(h) stake.
(1) A reference in this instrument to a person who holds a beneficial interest in the capital, or income, of an investment fund includes a reference to a person who holds: (a) an interest of that kind jointly with another person; and (b) an interest of that kind that is prospective because the person: (i) has entered into a contract to purchase a beneficial interest; or (ii) has a right, otherwise than by reason of holding an interest in the fund, to have a beneficial interest in the fund transferred to the person or to the person’s order (whether exercisable presently or in the future, and whether or not subject to a condition); or (iii) has a right to acquire a beneficial interest under an option (whether exercisable presently or in the future, and whether or not subject to a condition). (2) Subsection (1) applies regardless of: (a) the remoteness of the interest; or (b) the way in which the interest arose; or (c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to a restraint or restriction. (3) For the purposes of subsection (1), an interest is not a beneficial interest if: (a) the interest is held solely as security under a moneylending agreement that has not ceased to have effect; and (b) the ordinary business of the interest‑holder includes the lending of money. (4) If: (a) a person holds a beneficial interest in an investment fund as a loan security; and (b) the ordinary business of the person includes the lending of money; and (c) the loan security is enforced; and (d) as a result of the enforcement, the person becomes the holder of the interest; and (e) the person holds the interest for a continuous period (the holding period) beginning at the time when the security was enforced; the person is taken not to hold the interest at all times during so much of the holding period as occurs during whichever of the following periods is applicable: (f) the period of 90 days beginning when the security was enforced; (g) if the Minister, by written notice, allows a longer period—that longer period.
For the purposes of subsection 60(1) of the Act, this Part makes provision for and in relation to requiring a person: (a) to keep and retain records that are relevant to an ownership matter; and (b) to give information to the Minister that is relevant to an ownership matter; and (c) to give information to an airport‑operator company that is relevant to an ownership matter and that concerns the company.
To avoid doubt, it is declared that the requirements of this Part are in addition to, and not in substitution for, the requirements of the Corporations Act 2001.
(1) For the purposes of paragraph 60(1)(a) of the Act, an airport‑operator company must keep a record of: (a) any stake in the company that is held by a foreign person; and (b) any stake in the company that is held by an airline; and (c) if the company is a member of a pair of airport‑operator companies: (i) any stake in the company that is held by the other member of the pair; and (ii) any stake in the company that is held by a person that holds a stake in the other member of the pair; and (iii) any stake that the company holds in the other member of the pair. (2) The record must include, for each stake: (a) in the case of a stake that is composed of a direct control interest held by only one person: (i) the amount of the interest; and (ii) the type of interest held; and (iii) details of the person holding the interest; and (b) in the case of a stake that is composed of direct control interests held by 2 or more persons—the information mentioned in subparagraphs (a)(i), (ii) and (iii) about each of those interests.
Note: A person’s stake of a particular type in an airport‑operator company includes both the person’s direct control interest in the company and any direct control interests held by the person’s associates (see clause 11 of the Schedule to the Act).
(3) The record for a stake must: (a) be made as soon as reasonably practicable after the stake is acquired; and (b) be updated as soon as reasonably practicable after any increase or decrease in the stake; and (c) be retained: (i) until the end of the financial year after the financial year in which the record is made; or (ii) if the record is updated as referred to in paragraph (b)—the end of the financial year after the financial year in which the record was most recently so updated. (4) The records required to be kept under this section must be indexed in a way that allows the aggregate of stakes of a particular type, or held by a particular class of person, to be readily worked out.
Note: An airport‑operator company may commit an offence if it contravenes the requirements in this section to keep records (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, the Minister may, by written notice given to an airport‑operator company, require the company to give the Minister information specified in the notice about: (a) an ownership matter relating to the company; or (b) the location of the place where the central management and control of the company is ordinarily exercised; or (c) whether a director of the company is an Australian citizen or a foreign citizen ordinarily resident in Australia. (2) The notice may require the information to be given in a particular form or manner and within a specified period. (3) Without limiting subsection (2), the notice may require the information to be given in a written statement that complies with one or more of the following requirements: (a) a requirement that the statement is signed by a director of the company; (b) a requirement that the statement is verified by statutory declaration by a director of the company; (c) a requirement that the statement is approved by the directors of the company by resolution; (d) a requirement that the statement is accompanied by a copy of the resolution mentioned in paragraph (c). (4) If a period is specified in the notice as the period within which the information must be given to the Minister, the period must be at least 30 days. (5) If no period within which the information must be given to the Minister is specified in the notice, the information must be given to the Minister within 30 days of the date of the notice. (6) An airport‑operator company must comply with a notice given to the company under subsection (1).
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(b) of the Act, an airport‑operator company must give the Minister written notice as soon as reasonably practicable after it has reason to believe that: (a) one or more of the following situations exist in relation to the company: (i) an unacceptable foreign‑ownership situation; (ii) an unacceptable airline‑ownership situation; (iii) an unacceptable cross‑ownership situation; or (b) the central management and control of the company is no longer being ordinarily exercised at a place in Australia; or (c) a majority of the company’s directors are neither Australian citizens nor foreign citizens ordinarily resident in Australia. (2) The notice must include the following information: (a) the circumstance mentioned in paragraph (1)(a), (b) or (c) that the airport‑operator company believes exists; (b) the reason for the belief; (c) the steps taken, or intended to be taken, by the airport‑operator company to determine whether, in fact, the circumstance does exist; (d) the steps intended to be taken by the company to remedy the circumstance, if that circumstance does exist.
Note: An airport‑operator company may commit an offence if it does not give information to the Minister as required by this section (see subsection 60(4) of the Act).
(1) For the purposes of paragraph 60(1)(c) of the Act, a person must give information to an airport‑operator company if: (a) the information is relevant to an ownership matter that concerns the company; and (b) the company has, in writing, requested the person to give the information; and (c) the request specifies the kind of information the person is to give. (2) The request must specify a period of at least 30 days within which the information must be given to the airport‑operator company. (3) The information must be verified by statutory declaration.
Note: A person may commit an offence if the person does not give information to an airport‑operator company as required by this section (see subsection 60(4) of the Act).
This instrument is the Airports (Ownership) Regulations 2024.
This instrument is made under the Airports Act 1996.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) airline;
(b) airport‑operator company;
(c) unacceptable airline‑ownership situation;
(d) unacceptable cross‑ownership situation;
(e) unacceptable foreign‑ownership situation.
(1) In this instrument:
Act means the Airports Act 1996.
details of a person means:
(a) if the person is an individual:
(i) the person’s name; and
(ii) the address of the person’s usual residence; and
(iii) the person’s citizenship, or (if the person claims more than one citizenship) each citizenship that the person claims; or
(b) if the person is a corporation:
(i) the corporation’s name; and
(ii) the place in which the corporation is incorporated; and
(iii) the address of the corporation’s registered office or principal office; or
(c) if the person is a foreign government body:
(i) the name of the relevant foreign state (within the meaning of the Foreign States Immunities Act 1985); and
(ii) the address of the body’s principal office.
entity has the meaning given by section 64A of the Corporations Act 2001.
investment fund means any of the following:
(a) a fund of the kind generally known as a unit trust (except a unit trust of the kind generally known as a discretionary trust);
(b) a statutory fund, within the meaning of the Life Insurance Act 1995, of a life insurance company;
(c) a superannuation entity, within the meaning of the Superannuation Industry (Supervision) Act 1993;
(d) an exempt public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993.
ownership matter has the meaning given by subsection 60(6) of the Act.
(2) An expression used in this instrument and in the Schedule to the Act has the same meaning in this instrument as it has in the Schedule to the Act.
Note: The following are examples of expressions used in this instrument and in the Schedule to the Act:
(a) associate;
(b) direct control interest;
(c) foreign government body;
(d) foreign person;
(e) interest in a share;
(f) ownership provisions;
(g) share;
(h) stake.
(1) A reference in this instrument to a person who holds a beneficial interest in the capital, or income, of an investment fund includes a reference to a person who holds: (a) an interest of that kind jointly with another person; and (b) an interest of that kind that is prospective because the person: (i) has entered into a contract to purchase a beneficial interest; or (ii) has a right, otherwise than by reason of holding an interest in the fund, to have a beneficial interest in the fund transferred to the person or to the person’s order (whether exercisable presently or in the future, and whether or not subject to a condition); or (iii) has a right to acquire a beneficial interest under an option (whether exercisable presently or in the future, and whether or not subject to a condition). (2) Subsection (1) applies regardless of: (a) the remoteness of the interest; or (b) the way in which the interest arose; or (c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to a restraint or restriction. (3) For the purposes of subsecti
This is an opening excerpt, not the complete document.