Part 1
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Commonwealth legislation
This regulation implements the Foreign Acquisitions and Takeovers Act 1975, setting the practical rules for how foreign investment in Australian land, businesses and securities is reviewed—covering who counts as a foreign investor, monetary review thresholds, exemptions, registration and national‑security protections.
It affects foreign investors, foreign government investors, Australian counterparties and the Treasurer/FIRB, balancing openness to foreign capital with protection of sensitive sectors and national interests.
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Direct links to the current provisions in Foreign Acquisitions and Takeovers Regulation 2015.
This is the Foreign Acquisitions and Takeovers Regulation 2015.
This instrument is made under the Foreign Acquisitions and Takeovers Act 1975.
This Part defines terms that are used in this instrument.
Terms used in this instrument that are not defined in this Part may be defined in section 4 of the Act.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) asset;
(b) Australian business;
(c) Australian land;
(d) entity;
(e) foreign person;
(f) interest;
(g) security;
(h) share.
In this instrument:
Act means the Foreign Acquisitions and Takeovers Act 1975.
ADI has the same meaning as in the Banking Act 1959.
Note: ADI is short for authorised deposit‑taking institution.
aggregate interest of a specified percentage in an unincorporated limited partnership has the meaning given by subsection 17(3).
agreement country or region means any of the following countries or regions:
(a) the United States of America;
(b) New Zealand;
(c) Chile;
(d) Japan;
(e) the Republic of Korea;
(f) China;
(fa) Peru;
(g) Singapore;
(h) a country (other than Australia) for which the Comprehensive and Progressive Agreement for Trans‑Pacific Partnership, done at Santiago on 8 March 2018, is in force;
(i) the region of Hong Kong, China;
(j) the United Kingdom.
Note: The Agreement mentioned in paragraph (h) is in Australian Treaty Series [2018] ATS 23 and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
agreement country or region investor means an entity (within the ordinary meaning of the term) that is:
(a) an enterprise or a national of a country that is an agreement country or region; or
(b) an enterprise or a resident of a region that is an agreement country or region;
(other than a foreign government investor).
agribusiness: see section 12.
Note: Agribusiness is defined in section 4 of the Act.
agricultural land corporation has the meaning given by subsection 13(2).
agricultural land trust has the meaning given by subsection 13(3).
Australian and New Zealand Standard Industrial Classification Codes means the Australian and New Zealand Standard Industrial Classification Codes, as in force from time to time, published by the Australian Bureau of Statistics.
Australian land corporation has the meaning given by subsection 13(4).
Australian land trust has the meaning given by subsection 13(5).
Australian media business has the meaning given by section 13A.
businesses or entities certificate has the meaning given by section 42.
class value has the meaning given by subsections 21(3) and (5).
consideration has a meaning affected by subsection 14(2).
consideration for the acquisition or issue of a class of securities has the meaning given by subsection 21(4).
defence and intelligence personnel means:
(a) a member of the Australian Defence Force; or
(b) in relation to the Defence Department—the following:
(i) an APS employee in the Department;
(ii) a consultant engaged by the Secretary of the Department on behalf of the Commonwealth;
(iii) a person whose services are made available to the Department under an arrangement entered into by the Secretary of the Department on behalf of the Commonwealth; or
(c) in relation to an agency in the national intelligence community—the following:
(i) a member of the staff of the agency;
(ii) a consultant engaged by the agency;
(iii) a person whose services are made available to the agency or the head (however described) of the agency.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
direct interest in an entity or business has the meaning given by section 16.
education institution has the same meaning as in the Student Assistance Act 1973.
enterprise of a country or a region has the meaning given by section 7.
excluded provisions has the meaning given by section 28.
existing value has the meaning given by subsection 58(6).
foreign country, for the purposes of the definition of foreign intelligence agency, includes a region where:
(a) the region is a colony, territory or protectorate of a foreign country; or
(b) the region is part of a foreign country; or
(c) the region is under the protection of a foreign country; or
(d) a foreign country exercises jurisdiction or control over the region; or
(e) a foreign country is responsible for the region’s international relations.
foreign government investor has the meaning given by section 17.
foreign intelligence agency means a government body that has responsibility for:
(a) intelligence gathering for a foreign country; or
(b) the security of a foreign country.
GDP implicit price deflator value has the meaning given by subsection 58(6).
general insurer has the meaning given by the Insurance Act 1973.
government authority has the meaning given by subsection 44(3).
government body means:
(a) the government of a country; or
(b) an agency or authority of the government of a country; or
(c) the government of part of a country; or
(d) an agency or authority of the government of part of a country.
intelligence use includes security intelligence, foreign intelligence or financial intelligence.
inter‑modal transfer facility has the meaning given by the National Land Transport Act 2014.
land entity means an agricultural land corporation, an agricultural land trust, an Australian land corporation or an Australian land trust.
life company has the meaning given by the Life Insurance Act 1995.
mining operation has the meaning given by subparagraph 44(4)(b)(ii).
mining, production or exploration entity means an entity where the total value of legal or equitable interests in tenements held by the entity, or any subsidiary of the entity, exceeds 50% of the total asset value for the entity.
moneylending agreement means:
(a) an agreement entered into:
(i) in good faith and on ordinary commercial terms; and
(ii) in the ordinary course of carrying on a moneylending business;
except an agreement dealing with any matter unrelated to the carrying on of that moneylending business; or
(b) an agreement entered into:
(i) in good faith and on ordinary commercial terms; and
(ii) relating to the purpose of lending money or otherwise providing financial accommodation; and
(iii) by an entity that was created predominantly for that purpose by a person or entity in the ordinary course of carrying on a moneylending business;
except an agreement if:
(iv) the agreement deals with any matter unrelated to the purpose of lending money or otherwise providing financial accommodation and unrelated to the carrying on of that moneylending business; or
(v) the entity, before entering into the agreement, began carrying on a business unrelated to the purpose of lending money or otherwise providing financial accommodation; or
(c) for a person or entity that:
(i) is carrying on a moneylending business; or
(ii) was created predominantly for the purpose of lending money or otherwise providing financial accommodation by a person or entity in the ordinary course of carrying on a moneylending business; or
(iii) is a subsidiary or holding entity of a person or entity covered by subparagraph (i) or (ii);
an agreement to acquire an interest arising from a moneylending agreement (within the meaning of paragraph (a) or (b)).
moneylending business means a business of lending money or otherwise providing financial accommodation.
most recent financial statement has the meaning given by subsection 23(2).
national of a country has the meaning given by section 8.
national security business has the meaning given by section 8AA.
national security land means:
(a) defence premises (within the meaning of section 71A of the Defence Act 1903, excluding subparagraph (a)(iii) of the definition of that expression); or
(b) land in which the Commonwealth, as represented by an agency in the national intelligence community, has an interest that:
(i) is publicly known; or
(ii) could be known upon the making of reasonable inquiries.
near‑new dwelling interest means an interest in a dwelling, if all of the following apply:
(a) the dwelling is contained in a development;
(b) an agreement to sell the interest in the dwelling had become binding;
(c) that agreement did not result in the transfer of title to the interest, and is no longer in force;
(d) the interest is to be sold under another agreement;
(e) the interest would be an interest in a new dwelling, to be acquired under the other agreement, if there were no agreements to which paragraphs (b) and (c) applied.
personal information has the same meaning as in the Privacy Act 1988.
property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action.
public infrastructure means:
(a) an airport or airport site (within the meaning of the Airports Act 1996); or
(b) a port (within the meaning of the Maritime Transport and Offshore Facilities Security Act 2003); or
(c) infrastructure for public transport (whether or not the infrastructure is operated or owned by a Commonwealth, State or Territory body); or
(d) a system or facility that is used to provide any of the following services to the public:
(i) the generation, transmission, distribution or supply of electricity;
(ii) the supply of gas;
(iii) the storage, treatment or distribution of water;
(iv) the treatment of sewage.
public utility means a body that provides any of the following products or services, or any similar products or services, to the public:
(a) reticulated products or services, such as electricity, gas, water, sewerage or drainage;
(b) telecommunication services;
(c) transport services.
registered scheme has the same meaning as in the Corporations Act 2001.
registrable superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
related body corporate has the same meaning as in the Corporations Act 2001.
relevant agreement country investor means an entity (within the ordinary meaning of the term) that is an enterprise or national of:
(a) the United States of America; or
(b) New Zealand; or
(c) Chile;
(other than a foreign government investor).
relevant subsidiary of an entity (the higher entity) means an entity that is:
(a) a subsidiary of the higher entity; and
(b) either:
(i) for a corporation—a relevant entity that is carrying on an Australian business; or
(ii) for a unit trust—a relevant entity the trustee of which holds assets of an Australian business.
relevant World Trade Organization member means any of the following members of the World Trade Organization established by the World Trade Organization Agreement:
(a) Hong Kong, China;
(b) Macao, China;
(c) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.
resident of a region has the meaning given by section 8A.
residential land (near‑new dwelling interests) certificate has the meaning given by section 43A.
residential land (other than established dwellings) certificate has the meaning given by section 43B.
resident trust means a trust that is taken to be a resident trust estate under subsection 95(2) of the Income Tax Assessment Act 1936.
responsible entity of a registered scheme has the same meaning as in the Corporations Act 2001.
retirement village has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.
RSE licensee has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
school has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.
sensitive business: see section 22.
Note: Sensitive business is defined in section 26 of the Act.
tenement means an exploration tenement or a mining or production tenement.
Note: Although an agreement giving rights that form the basis of a tenement may be any duration, the duration of the agreement must be at least 5 years for an interest in the agreement to be an interest in Australian land. (See the definitions of exploration tenement, mining or production tenement and interest in Australian land in sections 4 and 12 of the Act.)
tenements and mining, production or exploration entities certificate has the meaning given by section 43.
total asset value has the meaning given by section 20.
total earnings has the meaning given by subsection 12(2).
vacant:
(a) land is vacant if there is no substantive permanent building on the land that can be lawfully occupied by persons, goods or livestock; but
(b) despite paragraph (a), land is not vacant if a wind or solar power station is located on the surface of the land.
value, of an interest in Australian land held by an entity, includes the value of the entity’s interest (if any) in a wind or solar power station located on the land (whether on or beneath the surface).
value, of consideration, has the meaning given by subsections 14(3) to (4A).
wind or solar power station means:
(a) an accredited power station within the meaning of the Renewable Energy (Electricity) Act 2000 that is:
(i) a wind power station (incorporating one or more wind turbines); or
(ii) a solar electricity generation system; or
(b) any component of such an accredited power station that is taken to be a part of the power station for the purposes of the Renewable Energy (Electricity) Act 2000.
Note: For components of a wind or solar power station that are taken to be a part of the power station for the purposes of that Act, see clause 8 or 10 of Schedule 1 to the Renewable Energy (Electricity) Regulations 2001.
World Trade Organization Agreement means the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Note: The Agreement is in Australian Treaty Series 1995 No. 8 ([1995] ATS 8) and could in 2015 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Enterprise of a country (1) An enterprise of a country is: (a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or (b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5); that is not excluded under subsection (6). Enterprise of a region (1A) An enterprise of a region is: (a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or (b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5A); that is not excluded under subsection (8) or (9). Entity of a country or a region (2) The entity is constituted or organised under a law of the country or a law of the region.
Note: For references to a law of the United States of America or China, see sections 9 and 9A.
(3) The form in which the entity may be constituted or organised may be, but is not limited to, any of the following forms: (a) a corporation; (b) a trust; (c) a partnership; (d) a sole proprietorship; (e) a joint venture; (f) an unincorporated association. (4) It is immaterial whether the entity: (a) is carried on for profit; or (b) is owned or controlled privately. Branch of an entity of a country (5) A branch of an entity (within the ordinary meaning of the term) is an enterprise of a country if: (a) the entity is not described in subsections (2) to (4); and (b) the branch is located in the country; and (c) the branch is carrying on business activities in the country: (i) in a way other than being solely a representative office; and (ii) in a way other than being engaged solely in agency activities, including the sale of goods or services that cannot reasonably be regarded as undertaken in the country; and (iii) by having its administration in the country. Branch of an entity of a region (5A) A branch of an entity (within the ordinary meaning of the term) is an enterprise of a region if: (a) the entity is not described in subsections (2) to (4); and (b) the branch is located in the region; and (c) the branch is carrying on business activities in the region: (i) in a way other than being solely a representative office; and (ii) in a way other than being engaged solely in agency activities, including the sale of goods or services that cannot reasonably be regarded as undertaken in the region; and (iii) by having its administration in the region. (5B) For the purposes of working out under subsection (5A) whether a branch of an entity is an enterprise of Hong Kong, China, subsection (5A) applies as if: (a) paragraphs (5A)(a) and (c) were omitted; and (b) subsection (5A) also required the entity to be of a kind mentioned in subsections (2) to (4) for Hong Kong, China. When entities or branches are not enterprises of a country (6) An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of a particular country if the Treasurer is satisfied that: (a) it is owned or controlled by one or more persons of another country; and (b) any one or more of the following applies: (i) Australia does not maintain diplomatic relations with the other country; (ii) Australia adopts or maintains measures relating to the other country or a person of the other country that have the effect of prohibiting transactions with the entity or branch; (iii) the entity or branch has no substantial business activities in the particular country. (7) Without limiting subsection (6), an entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of China if the Treasurer is satisfied that: (a) it is owned or controlled by one or more of the following: (i) an individual who is usually resident in the territory of a relevant World Trade Organization member; (ii) an entity that is constituted or organised under a law of a relevant World Trade Organization member; and (b) the entity or branch has no substantial business activities in China. When entities or branches are not enterprises of a region—general (8) An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of a particular region of a country if the Treasurer is satisfied that: (a) it is owned or controlled by one or more persons of another country; and (b) any one or more of the following applies: (i) Australia does not maintain diplomatic relations with the other country; (ii) Australia adopts or maintains measures relating to the other country or a person of the other country that have the effect of prohibiting transactions with the entity or branch; (iii) the entity or branch has no substantial business activities in the particular region; and the particular region is not Hong Kong, China. When entities or branches are not enterprises of a region—Hong Kong, China (9) An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of Hong Kong, China if the Treasurer is satisfied that: (a) subsection (10) applies to it; or (b) the entity or branch has no substantial business activities in Hong Kong, China. (10) This subsection applies to an entity or branch if: (a) it is owned or controlled by one or more of the following: (i) an individual of a country who is not a resident of Hong Kong, China; (ii) an entity constituted or organised under a law of a country that is not a law applying in Hong Kong, China; and (b) Australia adopts or maintains measures relating to that country, or a person of that country, that have the effect of prohibiting transactions with the entity or branch.
General definition (1) A national of a country (other than the United States of America or China) is: (a) an individual who is a citizen of the country; or (b) an individual who is entitled to live indefinitely in the country. Definition for the United States of America (2) A national of the United States of America is: (a) a national of the United States of America, as defined in Title III of the Immigration and Nationality Act of the United States of America; or (b) a permanent resident of the United States of America. Definition for China (2A) A national of China is an individual who is a national of China according to the law of China, other than an individual who is usually resident within the territory of a relevant World Trade Organization member. Exception for New Zealand (3) Despite subsection (1), a national of New Zealand does not include an individual who: (a) is entitled to live in the Cook Islands, Niue or Tokelau; and (b) does not live in New Zealand.
(1) A business is a national security business if: (a) the business is carried on wholly or partly in Australia whether or not in anticipation of profit or gain; and (b) it is publicly known, or could be known upon the making of reasonable inquiries, that the business is of a kind referred to in subsection (2). (2) A business is of a kind referred to in this subsection if: (a) the business is a responsible entity (within the meaning of the Security of Critical Infrastructure Act 2018) for an asset; or (b) the business is an entity that is a direct interest holder in relation to a critical infrastructure asset (within the meaning of those terms in the Security of Critical Infrastructure Act 2018); or (c) the business is a carrier or nominated carriage service provider to which the Telecommunications Act 1997 applies; or (d) the business develops, manufactures or supplies critical goods that are, or are intended to be, for a military use, or an intelligence use, by: (i) defence and intelligence personnel; or (ii) the defence force of another country; or (iii) a foreign intelligence agency; or (e) the business develops, manufactures or supplies critical technology that is, or is intended to be, for a military use, or an intelligence use, by: (i) defence and intelligence personnel; or (ii) the defence force of another country; or (iii) a foreign intelligence agency; or (f) the business provides, or intends to provide, critical services to: (i) defence and intelligence personnel; or (ii) the defence force of another country; or (iii) a foreign intelligence agency; or (g) the business stores or has access to information that has a security classification; or (h) the business stores or maintains personal information, collected by the Australian Defence Force, the Defence Department or an agency in the national intelligence community: (i) of persons who are covered by the definition of defence and intelligence personnel; and (ii) which, if accessed, could compromise Australia’s national security; or (i) the business collects, as part of an arrangement with the Australian Defence Force, the Defence Department or an agency in the national intelligence community, personal information: (i) of persons who are covered by the definition of defence and intelligence personnel; and (ii) which, if disclosed, could compromise Australia’s national security; or (j) the business stores, maintains or has access to personal information of a kind mentioned in paragraph (i) which, if disclosed, could compromise Australia’s national security.
A resident of Hong Kong, China is an individual who is a permanent resident of Hong Kong, China.
In this instrument, a reference (whether or not expressly) to: (a) the territory of the United States of America includes Puerto Rico and the District of Columbia; and (b) a law of the United States of America includes a law that applies in a State of the United States of America or in any part of the territory of the United States of America.
(1) In this instrument, a reference (whether or not expressly) to China does not include a reference to a relevant World Trade Organization member.
Note: For example, a reference to the law of China does not include a reference to the law of a relevant World Trade Organization member.
(2) Subsection (1) does not apply to a reference to China used to identify a relevant World Trade Organisation member.
This Part prescribes various matters for the purposes of Part 1 of the Act (which deals mainly with interpretation). The main section in that Part is section 4 which lists all the terms defined for the purposes of the Act. That Part also contains some other rules of interpretation.
This Part prescribes:
(a) definitions for section 4 of the Act; and
(b) particular matters for definitions listed in that section; and
(c) some rules for interpreting the Act and this instrument, such as rules for valuing assets of entities or businesses, and for translating amounts expressed in foreign currencies.
(1) For the definition of agribusiness in section 4 of the Act, the following table prescribes the circumstances in which an Australian entity or Australian business is an agribusiness.
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="3" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Australian entities and Australian businesses that are agribusinesses</span></p></td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:44.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p><p class="TableHeading"><span>This kind of Australian entity or Australian business …</span></p></td><td style="width:44.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="TableHeading"><span>is an agribusiness if …</span></p></td></tr></thead><tbody><tr><td style="width:10.08%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:44.96%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>an Australian entity</span></p></td><td style="width:44.96%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) any one or more of the following entities (the </span><span style="font-weight:bold; font-style:italic">agribusiness entities</span><span>) derive earnings from carrying on a business of the kind mentioned in subsection</span><span> </span><span>(3):</span></p><p class="Tablei"><span>(i) the entity;</span></p><p class="Tablei"><span>(ii) a subsidiary of the entity; and</span></p><p class="Tablea"><span>(b) the amount of those earnings before interest and tax, derived by the agribusiness entities in the most recent financial year for which the financial accounts of the entity have been audited, exceeds 25% of the amount of the total earnings for the entity.</span></p></td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:44.96%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>an Australian entity</span></p></td><td style="width:44.96%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) any one or more of the following entities use assets in carrying on a business of the kind mentioned in subsection</span><span> </span><span>(3):</span></p><p class="Tablei"><span>(i) the entity;</span></p><p class="Tablei"><span>(ii) a subsidiary of the entity; and</span></p><p class="Tablea"><span>(b) the value of those assets exceeds 25% of the total asset value for the entity.</span></p></td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:44.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>an Australian business</span></p></td><td style="width:44.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) the business uses assets in carrying on a business of the kind mentioned in subsection</span><span> </span><span>(3); and</span></p><p class="Tablea"><span>(b) the value of those assets exceeds 25% of the value of the total assets of the business.</span></p></td></tr></tbody></table>
Note: See also sections 23 (value of assets of entities or businesses) and 24 (value of assets of entities that prepare consolidated financial statements).
Meaning of total earnings (2) The total earnings for the entity is the total of all earnings before interest and tax in that year by the entity and any one or more subsidiaries of the entity. Classes of business (3) The business must be carried on wholly or partly in any of the following classes of the Australian and New Zealand Standard Industrial Classification Codes: (a) any of the classes in Division A (agriculture, forestry and fishing); (b) any of the classes in Subdivision 11 of Division C (food product manufacturing), other than any of the following: (i) class 1113 (cured meat and smallgoods manufacturing); (ii) class 1132 (ice cream manufacturing); (iii) class 1162 (cereal, pasta and baking mix manufacturing); (iv) a class in group 117 (bakery product manufacturing); (v) class 1182 (confectionery manufacturing); (vi) a class in group 119 (other food product manufacturing). Mixed earnings and mixed‑use assets (4) For the purposes of this section: (a) earnings that are derived from carrying on a business that is not wholly in a class mentioned in subsection (3); or (b) the value of assets that are used in carrying on a business that is not wholly in a class mentioned in subsection (3); may be apportioned, on the basis of information available to a foreign person taking an action in relation to the business, between the part of the business that is in the class and the other parts of the business.
(1) This section prescribes the meanings of the following for section 4 of the Act: (a) agricultural land corporation; (b) agricultural land trust; (c) Australian land corporation; (d) Australian land trust.
Note: Any of these corporations or trusts may be formed or established in or outside Australia.
(2) A corporation (the entity) of a kind mentioned in column 1 of the table in subsection (6) is an agricultural land corporation if the value of interests in agricultural land mentioned in column 2 of the table exceeds 50% of the value of total assets mentioned in column 3 of the table. (3) A trust (the entity) of a kind mentioned in column 1 of the table in subsection (6) is an agricultural land trust if: (a) the entity is a unit trust; and (b) the value of interests in agricultural land mentioned in column 2 of the table exceeds 50% of the value of total assets mentioned in column 3 of the table. (4) A corporation (the entity) of a kind mentioned in column 1 of the table in subsection (6) is an Australian land corporation if the value of interests in Australian land mentioned in column 2 of the table exceeds 50% of the value of total assets mentioned in column 3 of the table. (5) A trust (the entity) of a kind mentioned in column 1 of the table in subsection (6) is an Australian land trust if: (a) the entity is a unit trust; and (b) the value of interests in Australian land mentioned in column 2 of the table exceeds 50% of the value of total assets mentioned in column 3 of the table. (6) The following table sets out the interests in land and total assets taken into account for land entities.
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="4" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Interests of land entities</span></p></td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:29.98%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p><p class="TableHeading"><span>Entity</span></p></td><td style="width:29.98%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="TableHeading"><span>Interests in land</span></p></td><td style="width:29.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p><p class="TableHeading"><span>Total assets</span></p></td></tr></thead><tbody><tr><td style="width:10.08%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:29.98%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>An Australian entity that:</span></p><p class="Tablea"><span>(a) is a holding entity; and</span></p><p class="Tablea"><span>(b) prepares financial statements or another document in accordance with subsection</span><span> </span><span>24(2) or (3)</span></p></td><td style="width:29.98%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Interests in agricultural land or Australian land (as the case requires) set out in the financial statements</span></p></td><td style="width:29.96%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Total assets set out in the financial statements or other document</span></p></td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:29.98%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Any other entity</span></p></td><td style="width:29.98%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Interests in agricultural land or Australian land (as the case requires) held by the entity or a trustee of the entity</span></p></td><td style="width:29.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Total assets of the entity or the trustee of the entity</span></p></td></tr></tbody></table>
(1) An Australian media business is an Australian business of doing one or more of the following: (a) publishing daily newspapers in Australia (including on websites from which all or part of those newspapers may be accessed); (b) broadcasting television or radio in Australia (including on websites from which all or part of those broadcasts may be accessed); (c) operating an electronic service covered by subsection (2). (2) An electronic service is covered by this subsection if: (a) the service delivers content over the internet; and (b) the service is operated wholly or partly for the purpose of serving Australian audiences; and (c) the service meets the content test in subsection (3); and (d) the service meets the threshold test in subsection (4). (3) An electronic service meets the content test in this subsection if: (a) the content delivered by the service consists predominantly of content that reports, investigates or explains: (i) issues or events that are relevant in engaging Australians in public debate and in informing democratic decision‑making; or (ii) current issues or events of public significance for Australians at a local, regional or national level; or (b) the content delivered by the service is delivered wholly or predominantly by way of programs of audio or video content. (4) An electronic service meets the threshold test in this subsection if it is reasonable to conclude that the average daily audience for the service exceeds 10,000 people in Australia. (5) In applying subsection (4) at a time, have regard to the shorter of the following periods: (a) the period of 12 months ending at that time; (b) the period since the service first started to be operated.
(1) This section prescribes the meaning of consideration for section 4 of the Act. (2) The consideration for an acquisition of an interest in securities, assets, Australian land or a tenement, or for an issue of securities in an entity, includes the following: (a) consideration in any form; (b) any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999), or equivalent tax under a law of a foreign country or a part of a foreign country, that is payable in relation to the acquisition or issue; (c) any consideration that is contingent on the occurrence or non‑occurrence of a particular event. Assessing the value of consideration (3) The value of the consideration for an acquisition of an interest in securities, assets, Australian land or a tenement, or for an issue of securities in an entity, is: (a) if there is an agreement relating to the acquisition or issue and the parties to the agreement are not dealing at arm’s length, or if there is no agreement that sets out the value of the consideration—a reasonable assessment of the value of the consideration for the acquisition or issue; or (b) otherwise—the value of the consideration set out in the agreement relating to the acquisition or issue. (4) Without limiting paragraph (3)(a), an assessment of consideration is reasonable on a particular day if it is worked out on the basis of: (a) for an acquisition of an interest in securities, assets, Australian land or a tenement that has a publicly available price—a price that was publicly available no more than 7 days earlier; and (b) for an acquisition of an interest in securities made under a takeover bid (whether under the Corporations Act 2001 or a law of a foreign country or part of a foreign country)—the first amount specified for the interest in the bidder’s statement (within the meaning of the Corporations Act 2001) or any equivalent document under a law of a foreign country or part of a foreign country. (4A) Despite subsection (3), the value of the consideration for the acquisition of an interest in Australian land is to be adjusted under this subsection if: (a) the interest is: (i) an interest as lessee in a lease; or (ii) an interest as licensee in a licence; giving rights to occupy agricultural land, commercial land or residential land; and (b) the term of the lease or licence (including any extension or renewal) is reasonably likely, at the time the interest is acquired, to exceed 20 years; and (c) there is an agreement relating to the acquisition that sets out the value of the consideration and the parties to the agreement are dealing at arm’s length (see paragraph (3)(b)). The value of the consideration for the acquisition is adjusted to be the following: Start formula start fraction 20 over Term of the lease or licence (including any extension or renewal) end fraction times Value of the consideration apart from the adjustment under this subsection end formula Consideration for acquisition of interests in securities of foreign entities (5) The consideration for the acquisition of an interest in securities in a foreign entity may be apportioned between the relevant Australian business or Australian entity and any other business or entity on the basis of the earnings before interest and tax of the Australian business or Australian entity and the other business or entity.
For paragraph (c) of the definition of development in section 4 of the Act, the number of independent self‑contained dwellings is 50.
For the definition of direct interest in section 4 of the Act, a direct interest in an entity or business is: (a) an interest of at least 10% in the entity or business; or (b) an interest of at least 5% in the entity or business if the person who acquires the interest has entered a legal arrangement relating to the businesses of the person and the entity or business; or (c) an interest of any percentage in the entity or business if the person who acquired the interest is in a position: (i) to influence or participate in the central management and control of the entity or business; or (ii) to influence, participate in or determine the policy of the entity or business.
Note: Section 16A of the Act defines interest of a specified percentage in a business. Section 17 of the Act defines interest of a specified percentage in an entity.
(1) For the purposes of the definition of foreign government investor in section 4 of the Act, a person is a foreign government investor if the person is: (a) a foreign government or separate government entity; or (b) a corporation in which: (i) a foreign government or separate government entity holds a substantial interest; or (ii) foreign governments or separate government entities of more than one foreign country (or parts of more than one foreign country) hold an aggregate substantial interest; or (c) the trustee of a trust in which: (i) a foreign government or separate government entity holds a substantial interest; or (ii) foreign governments or separate government entities of more than one foreign country (or parts of more than one foreign country) hold an aggregate substantial interest; or (d) the general partner of an unincorporated limited partnership in which: (i) a foreign government or separate government entity holds a substantial interest; or (ii) foreign governments or separate government entities of more than one foreign country (or parts of more than one foreign country) hold an aggregate interest of at least 40%; or (e) a corporation, trustee or partner of a kind described in paragraph (b), (c) or (d) assuming the references to foreign government (or foreign governments) in those paragraphs included references to a foreign government investor (or foreign government investors): (i) within the meaning of those paragraphs; or (ii) as a result of a previous application of this paragraph. (2) However, a person is not a foreign government investor if: (a) the person is a corporation, trustee of a unit trust or general partner of an unincorporated limited partnership and would not be a foreign government investor but for: (i) subparagraph (1)(b)(ii), (c)(ii) or (d)(ii); or (ii) paragraph (1)(e) to the extent that it relates to any of those subparagraphs; and (b) the corporation, trustee of the unit trust or general partner of the unincorporated limited partnership operates a scheme (within the ordinary meaning of that word) that has the following features: (i) persons make contributions, by way of consideration, to acquire rights to benefits produced by the scheme (rights in the scheme) (whether the rights are actual, prospective or contingent and whether they are enforceable or not); (ii) any of the contributions are to be pooled to produce financial benefits, or benefits consisting of rights or interests (within the ordinary meaning of that word) in property, for the persons (the members) who hold rights in the scheme; (iii) an individual member is not able to influence any individual investment decisions, or the management of any individual investments, of the corporation, trustee or general partner under the scheme; and (c) each foreign government or separate government entity that holds an interest in the corporation, unit trust or unincorporated limited partnership holds the interest only as a member of the scheme. (3) Two or more persons (who are not associates of each other), hold an aggregate interest of a specified percentage in an unincorporated limited partnership if they, together with any one or more associates of any of them: (a) are in a position to control at least that percentage of the voting power or potential voting power in the partnership; or (b) are entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership on the dissolution of the partnership; or (c) are entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership otherwise than on the dissolution of the partnership. (4) For the purposes of subsection (3), in determining the percentage of voting power or potential voting power that a person is in a position to control in an unincorporated limited partnership, disregard any votes that the person controls as a proxy or representative.
General partners of limited partnerships (1) For paragraph (g) of the definition of foreign person in section 4 of the Act, a person is a foreign person if: (a) the person is a general partner of a limited partnership; and (b) either: (i) an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest in the limited partnership; or (ii) 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government hold an aggregate interest of at least 40% in the limited partnership. Certain foreign government investors (2) For paragraph (g) of the definition of foreign person in section 4 of the Act, a person is a foreign person if: (a) the person is a foreign government investor; and (b) apart from this subsection, the person would not be a foreign person.
For subparagraph (a)(ii) of the definition of residential land in section 4 of the Act, the number of dwellings is 10.
(1) This section prescribes the meaning of total asset value for an entity for section 4 of the Act. Entities that are not holding entities (2) The total asset value for an entity that is not a holding entity is the value of the assets mentioned in subsection (5) of the entity.
Note: See also section 23 (value of assets of entities or businesses).
Holding entities (3) The total asset value for a holding entity that does not prepare financial statements or another document in accordance with subsection 24(2) or (3) is the aggregate value of the assets, mentioned in subsection (5) of this section, of: (a) the entity; and (b) each relevant subsidiary of the entity (disregarding any securities in those subsidiaries of the holding entity).
Note 1: See subsections (6) and (7) for valuing stapled securities and the assets of entities operating on a unified basis.
Note 2: See also section 23 (value of assets of entities or businesses).
(4) The total asset value for a holding entity that prepares financial statements or another document in accordance with subsection 24(2) or (3) is the aggregate value of the total assets, mentioned in subsection (5) of this section, set out in the financial statements or other document.
Note: See also section 23 (value of assets of entities or businesses).
Assets of entities that are taken into account (5) The assets of an entity that are taken into account for the purposes of this section are: (a) for an Australian entity—the total assets of the entity; and (b) for a foreign entity—the total relevant Australian assets, and any other assets in Australia, of the entity.
Note: For the definition of relevant Australian assets, see section 4 of the Act.
Entities whose securities are stapled (6) If any of the securities in an entity (the first entity) whose assets are valued under this section can only be transferred together with securities in one or more other entities whose assets would not (apart from this subsection) be valued under this section, the value of the assets of the first entity is taken to include the value of the assets mentioned in subsection (5) of the other entities. Entities operating on a unified basis (7) If: (a) an entity (the first entity) whose assets are valued under this section has entered an arrangement with one or more other entities resulting in the entities being under a legal obligation to operate on a unified basis; and (b) the value of the assets of the other entities would not (apart from this subsection) be valued under this section; the value of the assets of the first entity is taken to include the value of the assets mentioned in subsection (5) of the other entities.
(1) This section prescribes the meaning of total issued securities value for an entity for section 4 of the Act. (2) The total issued securities value for an entity is the total of the class values worked out under subsection (3) or (5) for each class of securities in the entity. Meaning of class value (3) The class value for a class of securities in an entity is worked out using the following formula if securities in that class are being acquired or issued: Start formula start fraction The consideration for the acquisition or issue of that class of securities over The number of securities in that class to be acquired or issued end fraction times The total number of issued securities in that class immediately before the acquisition or issue end formula (4) The consideration for the acquisition or issue of a class of securities is: (a) for an acquisition of interests in securities—the total consideration for the acquisition of securities in that class; or (b) for an issue of securities—the total issue price of all the securities in that class to be issued.
Note: Consideration is defined in section 14. The consideration for the acquisition of an interest in securities in a foreign entity may be apportioned in certain cases (see subsection 14(5)).
(5) The class value for a class of securities in an entity is worked out using the following formula if securities in that class are not being acquired or issued: Start formula The market value of securities in that class times The total number of issued securities in that class immediately before the acquisition or issue of the other class or classes of securities in that entity end formula
(1) This section prescribes conditions for subsection 26(1) of the Act. (2) A business is a sensitive business if: (a) the business is carried on wholly or partly in any of the following sectors (including such a business relating to infrastructure for those sectors): (i) media; (ii) telecommunications; (iii) transport; or (b) the business is wholly or partly: (i) the supply of training or human resources to, the manufacture of military goods, equipment or technology for, or the supply of military goods, equipment or technology to, the Australian Defence Force or other defence forces; or (ii) the manufacture or supply of goods, equipment or technology able to be used for a military purpose; or (iii) the development, manufacture or supply of, or the provision of services relating to, encryption and security technologies and communications systems; or (iv) the extraction of (or the holding of rights to extract) uranium or plutonium or the operation of a nuclear facility.
(1) For the purposes of paragraph 26A(2)(d) of the Act, a right held by an irrigation infrastructure operator (within the meaning of the Water Act 2007) is not a registrable water entitlement to the extent that this right: (a) is a right to hold or take water from a water resource for another person who has an irrigation right (within the meaning of the Water Act 2007); or (b) is a right to deliver water to water users, including water lost in transit from its source to end users due to seepage, leakage, evaporation or other similar effects. (2) Subsection (1) applies to rights that start to be held before, on or after the commencement of this section.
(1) For section 27 of the Act, the value on a particular day of an asset of an entity or business is (subject to subsections (3) and (4) of this section) the following value: (a) if there is a most recent financial statement and an event affecting the value of the asset as shown in that financial statement has not occurred since the financial statement was most recently audited or reviewed—the value of the asset as shown in the financial statement; (b) otherwise—the value of the asset as shown on that day in the accounting records of the entity or business. (2) The most recent financial statement, in relation to a day, is the financial statement of the entity or business that was most recently audited or reviewed by an auditor before that day. (3) Subsection (1) does not apply if the value shown is not a reasonable value. (4) This section does not limit how the value of an asset of an entity or business may be determined.
(1) This section applies in relation to an entity that prepares consolidated financial statements. (2) If the entity’s consolidated financial statements are prepared in accordance with the international financial reporting standards, the value of the assets of the entity is the value set out in those statements. (3) If an entity produces financial statements or another document (each of which is the reconciliation document) for the purpose of reconciling the value of the assets of the entity set out in the entity’s consolidated financial statements with the value produced using the method, set out in the international financial reporting standards, for valuing assets for consolidated financial statements, the value of the assets of the entity is the value set out in the reconciliation document.
(1) For section 27 of the Act, this section applies if: (a) the Act requires the determination of a value (however described) of a thing; and (b) either: (i) that value has been expressed in an agreement or other document only in a currency that is not Australian dollars; or (ii) a notice is given for the purposes of the Act in relation to an acquisition of an interest or an issue of securities in an entity and there is no agreement relating to the acquisition or issue.
Note: Examples of a thing whose value is required by the Act to be determined include assets (and interests in assets) and consideration.
(2) The value of the thing is the value expressed in Australian dollars, worked out using the following exchange rate for the end of the day covered by subsection (3): (a) if the Reserve Bank of Australia publishes a daily exchange rate for the currency—that exchange rate; (b) otherwise—any exchange rate: (i) that is publicly or commercially available; and (ii) that it is reasonable to use. (3) The day covered by this subsection is: (a) either: (i) for subparagraph (1)(b)(i)—the day the agreement is entered into or the document is made; or (ii) for subparagraph (1)(b)(ii)—any of the 7 days before the notice is given; or (b) if there is no exchange rate published or made publicly available on that day or any of those days—the day before that day or the earliest of those days (as the case requires) on which the exchange rate was most recently published or made publicly available.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This is the Foreign Acquisitions and Takeovers Regulation 2015.
This instrument is made under the Foreign Acquisitions and Takeovers Act 1975.
This Part defines terms that are used in this instrument.
Terms used in this instrument that are not defined in this Part may be defined in section 4 of the Act.
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) asset;
(b) Australian business;
(c) Australian land;
(d) entity;
(e) foreign person;
(f) interest;
(g) security;
(h) share.
In this instrument:
Act means the Foreign Acquisitions and Takeovers Act 1975.
ADI has the same meaning as in the Banking Act 1959.
Note: ADI is short for authorised deposit‑taking institution.
aggregate interest of a specified percentage in an unincorporated limited partnership has the meaning given by subsection 17(3).
agreement country or region means any of the following countries or regions:
(a) the United States of America;
(b) New Zealand;
(c) Chile;
(d) Japan;
(e) the Republic of Korea;
(f) China;
(fa) Peru;
(g) Singapore;
(h) a country (other than Australia) for which the Comprehensive and Progressive Agreement for Trans‑Pacific Partnership, done at Santiago on 8 March 2018, is in force;
(i) the region of Hong Kong, China;
(j) the United Kingdom.
Note: The Agreement mentioned in paragraph (h) is in Australian Treaty Series [2018] ATS 23 and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
agreement country or region investor means an entity (within the ordinary meaning of the term) that is:
(a) an enterprise or a national of a country that is an agreement country or region; or
(b) an enterprise or a resident of a region that is an agreement country or region;
(other than a foreign government investor).
agribusiness: see section 12.
Note: Agribusiness is defined in section 4 of the Act.
agricultural land corporation has the meaning given by subsection 13(2).
agricultural land trust has the meaning given by subsection 13(3).
Australian and New Zealand Standard Industrial Classification Codes means the Australian and New Zealand Standard Industrial Classification Codes, as in force from time to time, published by the Australian Bureau of Statistics.
Australian land corporation has the meaning given by subsection 13(4).
Australian land trust has the meaning given by subsection 13(5).
Australian media business has the meaning given by section 13A.
businesses or entities certificate has the meaning given by section 42.
class value has the meaning given by subsections 21(3) and (5).
consideration has a meaning affected by subsection 14(2).
consideration for the acquisition or issue of a class of securities has the meaning given by subsection 21(4).
defence and intelligence personnel means:
(a) a member of the Australian Defence Force; or
(b) in relation to the Defence Department—the following:
(i) an APS employee in the Department;
(ii) a consultant engaged by the Secretary of the Department on behalf of the Commonwealth;
(iii) a person whose services are made available to the Department under an arrangement entered into by the Secretary of the Department on behalf of the Commonwealth; or
(c) in relation to an agency in the national intelligence community—the following:
(i) a member of the staff of the agency;
(ii) a consultant engaged by the agency;
(iii) a person whose services are made available to the agency or the head (however described) of the agency.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
direct interest in an entity or business has the meaning given by section 16.
education institution has the same meaning as in the Student Assistance Act 1973.
enterprise of a country or a region has the meaning given by section 7.
excluded provisions has the meaning given by section 28.
existing value has the meaning given by subsection 58(6).
foreign country, for the purposes of the definition of foreign intelligence agency, includes a region where:
(a) the region is a colony, territory or protectorate of a foreign country; or
(b) the region is part of a foreign country; or
(c) the region is under the protection of a foreign country; or
(d) a foreign country exercises jurisdiction or control over the region; or
(e) a foreign country is responsible for the region’s international relations.
foreign government investor has the meaning given by section 17.
foreign intelligence agency means a government body that has responsibility for:
(a) intelligence gathering for a foreign country; or
(b) the security of a foreign country.
GDP implicit price deflator value has the meaning given by subsection 58(6).
general insurer has the meaning given by the Insurance Act 1973.
government authority has the meaning given by subsection 44(3).
government body means:
(a) the government of a country; or
(b) an agency or authority of the government of a country; or
(c) the government of part of a country; or
(d) an agency or authority of the government of part of a country.
intelligence use includes security intelligence, foreign intelligence or financial intelligence.
inter‑modal transfer facility has the meaning given by the National Land Transport Act 2014.
land entity means an agricultural land corporation, an agricultural land trust, an Australian land corporation or an Australian land trust.
life company has the meaning given by the Life Insurance Act 1995.
mining operation has the meaning given by subparagraph 44(4)(b)(ii).
mining, production or exploration entity means an entity where the total value of legal or equitable interests in tenements held by the entity, or any subsidiary of the entity, exceeds 50% of the total asset value for the entity.
moneylending agreement means:
(a) an agreement entered into:
(i) in good faith and on ordinary commercial terms; and
(ii) in the ordinary course of carrying on a moneylending business;
except an agreement dealing with any matter unrelated to the carrying on of that moneylending business; or
(b) an agreement entered into:
(i) in good faith and on ordinary commercial terms; and
(ii) relating to the purpose of lending money or otherwise providing financial accommodation; and
(iii) by an entity that was created predominantly for that purpose by a person or entity in the ordinary course of carrying on a moneylending business;
except an agreement if:
(iv) the agreement deals with any matter unrelated to the purpose of lending money or otherwise providing financial accommodation and unrelated to the carrying on of that moneylending business; or
(v) the entity, before entering into the agreement, began carrying on a business unrelated to the purpose of lending money or otherwise providing financial accommodation; or
(c) for a person or entity that:
(i) is carrying on a moneylending business; or
(ii) was created predominantly for the purpose of lending money or otherwise providing financial accommodation by a person or entity in the ordinary course of carrying on a moneylending business; or
(iii) is a subsidiary or holding entity of a person or entity covered by subparagraph (i) or (ii);
an agreement to acquire an interest arising from a moneylending agreement (within the meaning of paragraph (a) or (b)).
moneylending business means a business of lending money or otherwise providing financial accommodation.
most recent financial statement has the meaning given by subsection 23(2).
national of a country has the meaning given by section 8.
national security business has the meaning given by section 8AA.
national security land means:
(a) defence premises (within the meaning of section 71A of the Defence Act 1903, excluding subparagraph (a)(iii) of the definition of that expression); or
(b) land in which the Commonwealth, as represented by an agency in the national intelligence community, has an interest that:
(i) is publicly known; or
(ii) could be known upon the making of reasonable inquiries.
near‑new dwelling interest means an interest in a dwelling, if all of the following apply:
(a) the dwelling is contained in a development;
(b) an agreement to sell the interest in the dwelling had become binding;
(c) that agreement did not result in the transfer of title to the interest, and is no longer in force;
(d) the interest is to be sold under another agreement;
(e) the interest would be an interest in a new dwelling, to be acquired under the other agreement, if there were no agreements to which paragraphs (b) and (c) applied.
personal information has the same meaning as in the Privacy Act 1988.
property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action.
public infrastructure means:
(a) an airport or airport site (within the meaning of the Airports Act 1996); or
(b) a port (within the meaning of the Maritime Transport and Offshore Facilities Security Act 2003); or
(c) infrastructure for public transport (whether or not the infrastructure is operated or owned by a Commonwealth, State or Territory body); or
(d) a system or facility that is used to provide any of the following services to the public:
(i) the generation, transmission, distribution or supply of electricity;
(ii) the supply of gas;
(iii) the storage, treatment or distribution of water;
(iv) the treatment of sewage.
public utility means a body that provides any of the following products or services, or any similar products or services, to the public:
(a) reticulated products or services, such as electricity, gas, water, sewerage or drainage;
(b) telecommunication services;
(c) transport services.
registered scheme has the same meaning as in the Corporations Act 2001.
registrable superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
related body corporate has the same meaning as in the Corporations Act 2001.
relevant agreement country investor means an entity (within the ordinary meaning of the term) that is an enterprise or national of:
(a) the United States of America; or
(b) New Zealand; or
(c) Chile;
(other than a foreign government investor).
relevant subsidiary of an entity (the higher entity) means an entity that is:
(a) a subsidiary of the higher entity; and
(b) either:
(i) for a corporation—a relevant entity that is carrying on an Australian business; or
(ii) for a unit trust—a relevant entity the trustee of which holds assets of an Australian business.
relevant World Trade Organization member means any of the following members of the World Trade Organization established by the World Trade Organization Agreement:
(a) Hong Kong, China;
(b) Macao, China;
(c) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.
resident of a region has the meaning given by section 8A.
residential land (near‑new dwelling interests) certificate has the meaning given by section 43A.
residential land (other than established dwellings) certificate has the meaning given by section 43B.
resident trust means a trust that is taken to be a resident trust estate under subsection 95(2) of the Income Tax Assessment Act 1936.
responsible entity of a registered scheme has the same meaning as in the Corporations Act 2001.
retirement village has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.
RSE licensee has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
school has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.
sensitive business: see section 22.
Note: Sensitive business is defined in section 26 of the Act.
tenement means an exploration tenement or a mining or production tenement.
Note: Although an agreement giving rights that form the basis of a tenement may be any duration, the duration of the agreement must be at least 5 years for an interest in the agreement to be an interest in Australian land. (See the definitions of exploration tenement, mining or production tenement and interest in Australian land in sections 4 and 12 of the Act.)
tenements and mining, production or exploration entities certificate has the meaning given by section 43.
total asset value has the meaning given by section 20.
total earnings has the meaning given by subsection 12(2).
vacant:
(a) land is vacant if there is no substantive permanent building on the land that can be lawfully occupied by persons, goods or livestock; but
(b) despite paragraph (a), land is not vacant if a wind or solar power station is located on the surface of the land.
value, of an interest in Australian land held by an entity, includes the value of the entity’s interest (if any) in a wind or solar power station located on the land (whether on or beneath the surface).
value, of consideration, has the meaning given by subsections 14(3) to (4A).
wind or solar power station means:
(a) an accredited power station within the meaning of the Renewable Energy (Electricity) Act 2000 that is:
(i) a wind power station (incorporating one or more wind turbines); or
(ii) a solar electricity generation system; or
(b) any component of such an accredited power station that is taken to be a part of the power station for the purposes of the Renewable Energy (Electricity) Act 2000.
Note: For components of a wind or solar power station that are taken to be a part of the power station for the purposes of that Act, see clause 8 or 10 of Schedule 1 to the Renewable Energy (Electricity) Regulations 2001.
World Trade Organization Agreement means the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Note: The Agreement is in Australian Treaty Series 1995 No. 8 ([1995] ATS 8) and could in 2015 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Enterprise of a country (1) An enterprise of a country is: (a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or (b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5); that is not excluded under subsection (6). Enterprise of a region (1A) An enterprise of a region is: (a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or (b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5A); that is not excluded under subsection (8) or (9). Entity of a country or a region (2) The entity is constituted or organised under a law of the country or a law of the region.
Note: For references to a law of the United States of America or China, see sections 9 and 9A.
(3) The form in which the entity may be constituted or organised may be, but is not limited to, any of the following forms: (a) a corporation; (b) a trust; (c) a partnership; (d) a
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