Referral of the inquiry
On 28 October 2020, the Senate referred the provisions of the Foreign Investment Reform (Protecting Australia’s National Security) Bill 2020 (the bill) and the Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2020 (the fees imposition bill) to the Economics Legislation Committee (the committee) for inquiry and report by 26 November 2020.
Purpose of the bills
The bill makes a number of amendments to the Foreign Acquisitions and Takeovers Act 1975 (the Act) and other legislation, including:
introducing a national security review and providing the Treasurer with a last-resort power to issue a divestment order;
strengthening enforcement powers by increasing penalties, and providing for directions powers, and new monitoring and investigative powers;
closing potential gaps in the foreign investment screening regime;
expanding information sharing arrangements;
establishing a new register for some foreign owned assets, which will incorporate information in existing registers that will be discontinued; and
adding fees for new types of actions.
The date of effect of the changes is 1 January 2021.
The fees imposition bill amends the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (the Fees Act) to establish authority for the Fee Regulation to charge existing and new fees. As it currently stands, fee amounts are prescribed in the Fees Act and Fee Regulation.
Background and consultation
The Treasurer, the Hon Josh Frydenberg MP, announced the reforms on 5 June 2020, stating they would ensure the foreign investment framework ‘keeps pace with emerging risks and global developments, including similar changes to foreign investment regimes in comparable countries’.
The announcement followed earlier temporary changes to the foreign investment framework on 29 March 2020 giving the government oversight of all proposed foreign investments. The Treasurer stated reducing the threshold for proposed investments requiring approval to $0 was necessary to safeguard the national interest in light of the impact of COVID–19 on the Australian economy and business. He said:
The government recognises that foreign investment will play an important part in helping many businesses get to the other side—securing jobs and supporting our economic recovery…However, these measures are necessary to safeguard the national interest as the coronavirus puts intense pressure on the Australian economy and Australian businesses…it will give the government greater visibility and scrutiny of foreign investment proposals to ensure that they remain in the national interest.
In particular, the reforms announced in June would deal with national security risks, strengthen compliance measures, and streamline approval processes and administrative enhancements.
The bill’s Explanatory Memorandum identifies rapid technological developments and changes in the national security environment as key drivers of the growing risk posed by some potential foreign investment to Australia’s national interest. Additional details on the changes and how the legislation will address these factors were provided in the Treasury’s publication, Foreign Investment Reforms (June 2020), released on the day the reforms were announced.
As part of the reforms, the Treasurer and the Commissioner of Taxation will attain a range of enforcement, monitoring and investigative powers beyond that which they hold currently. The need for these powers was expanded upon in the Treasury’s policy document, which stated:
…there is a need to expand Treasury’s and the ATO’s compliance monitoring and enforcement tools. Other than in relation to residential property investments, the Treasurer’s enforcement powers are limited to seeking a civil penalty order or criminal prosecution. This is inhibiting the government’s ability to respond proportionally to issues of non-compliance. For example, court action has to be taken to enforce conditions, even if the breach of conditions was only minor. Additionally, the existing tools are out of step with those of comparable Australian market regulators.
Treasury undertook two rounds of consultation on the draft legislation and associated regulation in August and September 2020. In the first round of consultation from 31 July to 31 August 2020, 54 submissions were received, including 14 confidential submissions. In the second round, from 18 September to 2 October 2020, 26 submissions were received.
Following consultation, the Treasury states amendments were made with regard to:
adding safeguards to the use of the last-resort power;
modifying notification requirements for investors in circumstances of passive increases; and
consolidating overlapping registration obligations.
Temporary zero dollar threshold
Schedule three of the draft regulations released by the Treasury, Foreign Investment Reform (Protecting Australia’s National Security) Regulations 2020, will reinstate the thresholds, subject to a final decision that considers the ongoing impact of the pandemic on the economy and whether there remains an ongoing risk foreign investment in Australia could occur in ways that would be contrary to the national interest.
The Act and the bill make extensive references to ‘person’ or ‘persons’. The Acts Interpretation Act 1901 defines persons:
2C References to persons
In any Act, expressions used to denote persons generally (such
as ‘person’, ‘party’, ‘someone’, ‘anyone’, ‘no-one’, ‘one’,
‘another’ and ‘whoever’), include a body politic or corporate
as well as an individual.
Current operation of the Act
Under current legislation, monetary thresholds are the primary (but not only) mechanism for determining whether a proposed investment is subject to an assessment and approval process.
While for foreign government investors this is a zero dollar threshold, for private investors the threshold is ordinarily $275 million or almost $1.2 billion for investors from countries with which Australia has a free trade agreement. Other thresholds apply to land and agribusiness.
As noted above, draft regulation accompanying the bill proposes to reinstate the pre-existing monetary thresholds. Until such time the $0 threshold remains for all investments.
National interest test
If an investment proposal is subject to review (that is, it meets the various thresholds and requirements), the Treasurer examines the proposal against the national interest. The national interest ‘test’ is framed negatively, meaning there is a presumption foreign investment proposals should proceed, unless found contrary to the national interest. Treasury states:
…the framework operates not by approving proposed foreign investments based on their expected benefits, and instead by prohibiting investments if they are considered to be contrary to Australia’s national interest.
As a negative test it is not necessary to prove an investment is in the national interest only that it is not against the national interest. According to the Treasury, factors considered as part of the national interest ‘are not limiting factors’.
While being central to Australia’s foreign policy framework, there is no definition of the ‘national interest’ in the Act. The key foreign investment framework policy document, Australia’s Foreign Investment Policy, explains the national interest consists of a range of factors; the weight given to each varies depending on the nature of the enterprise and investor.
national security—the extent to which an investment could affect Australia’s ability to protect its strategic and security assets;
competition—whether an investment could result in an investor gaining control over market pricing and production of a good or service in Australia, or whether an investment could affect the make-up of a global industry and/or distort competitive market outcomes;
other Australian government policies—the impact on, amongst other things, taxation revenues or the environment;
economy and community—whether a restructure is proposed, how the investment will be funded, the level of Australian participation after acquisition, and how the investor will develop the project to ensure a fair return for the Australian people; and
character of the investor—the extent to which the investor operates on a transparent commercial basis and is subject to adequate regulation and supervision, its corporate governance practices, and whether it complies with the spirit and letter of Australian laws and acts in good faith in complying with conditions.
Significant and notifiable actions, and the Treasurer’s powers
The Act defines two types of actions (or foreign investments): significant actions and notifiable actions. Most significant actions are subject to voluntary notifications; notifiable actions are subject to mandatory notifications—that is, the Treasurer must be notified and approve the action before it can be taken.
The Act contains a number of conditions to determine whether a proposed foreign investment is a significant action (section 40) or notifiable action (section 47), including a threshold test and change in control test. The Act’s Regulations also specify certain significant actions are also notifiable actions. If a foreign person chooses to notify the Treasurer regarding a proposed significant action, it becomes a notifiable action.
Regardless of whether a significant action is notified, the Act gives the Treasurer powers to:
prohibit a proposed significant action (section 67);
require a significant action to be undone (section 69); and
if a significant action has been taken about which the Treasurer was not notified, and the Treasurer subsequently determines the action is contrary to the national interest, the Treasurer may make a disposal order to unwind the action, or impose legally enforceable conditions.
The Treasurer has the power to:
for an action that is notified, provide a no objection notification not imposing conditions (section 75);
for any action (significant or notifiable), provide a no objection notification imposing conditions (section 74); or
decide the action would be contrary to a the national interest and make an order prohibiting the proposed significant action (section 67).
In a limited number of circumstances, the Treasurer can order the disposal of an asset whose acquisition the Treasurer has previously approved. These circumstances (section 70) broadly include the person not complying with conditions attached to the no objection notification and subsequently being convicted of an offense or being the subject of a civil penalty order; and having an order under section 19B of the Crimes Act 1914 made against the person.
Under current legislation, the powers of the Treasurer to assess a foreign investment proposal are largely limited to a single point in time—typically the point at which the proposal is made. There are no provisions in the Act for any ongoing assessment of investments by individuals or organisations against the national interest or national security.
Although the Treasurer has the power to vary or revoke conditions made in a no objection notification imposing conditions (section 74(4)), this may only be done if the person consents to the new condition or variation, or if the new condition or variation does not disadvantage the person (section 74(6)).
Provisions of the bills
The bill contains three schedules with each schedule containing multiple parts:
Schedule 1 amends several pieces of legislation to introduce new actions, a national security review and last-resort provisions, as well as measures related to the integrity of the foreign investment regime, and some compliance and enforcement measures;
Schedule 2 deals with new compliance and enforcement powers; and
Schedule 3 provides for the Register of Foreign Ownership of Australian Assets.
The provisions of the fees imposition bill will be discussed under the Fees section below.
Given the length and complexity of the bill, the following discusses only the key amendments, and does so thematically, providing references to the item number in the bill in each schedule.
Definition of national security and other terms
The term ‘national security’ is used in different contexts in the bill, and is not defined. This is similar to the use of the ‘national interest’. For instance, it is used in the following ways:
contrary to national security;
prejudice Australia’s national security interests;
national security risk; and
national security concern.
Under the draft regulations, the definition of ‘national security’ is made in the National Security Information (Criminal and Civil Proceedings) Act 2004 and the Australian Security Intelligence Organisation Act 1979 (ASIO Act), with a minor modification. This definition is made for the purpose of the Regulation defining ‘national security business’ only, and is not the definition for ‘national security’ in the bill.
The National Security Information (Criminal and Civil Proceedings) Act 2004 defines:
national security means Australia’s defence, security, international relations or law enforcement interests;
security has the same meaning as in the Australian Security Intelligence Organisation Act 1979;
international relations means political, military and economic relations with foreign governments and international organisations; and
law enforcement interests includes interests in avoiding disruption to law enforcement, protecting law enforcement technologies, and protecting informants.
The bill’s draft regulations slightly modify this definition by specifying the reference to ‘international relations’ means political, military and economic relations with foreign persons and international organisations.
The ASIO Act defines security as including the protection of the people, Commonwealth, and states and territories from: espionage; sabotage; politically motivated violence; promotion of communal violence; attacks on Australia’s defence system; or acts of foreign interference.
The bill provides no guidance on how the national security ‘test’ will be operationalised to require an assessment or be the basis of an assessment of whether an investment may be contrary to national security.
Other terms are used in the bill without a specific definition being provided. These include: public interest; and national interest.
Item 18 inserts a definition in section 4 for ‘national intelligence community’, specifying it has the same meaning as in the Office of National Intelligence Act:
national intelligence community means the following agencies:
(b) each intelligence agency;
(c) each agency with an intelligence role or function.
Item 11 defines a ‘core Part 3 action’, which is required for later provisions dealing with variations and exemption certificates (section 62B); contravening conditions (section 93); and civil penalties (including sections 98B, 98C, 98D, 98E and 98F). A core Part 3 action is:
a notifiable national security action that is not a significant action;
an action in respect of which the Treasurer has given notice under subsection 66A(4) (national security review of actions: notice of review); and
a reviewable national security action notified to the Treasurer.
National security review, call-in power, and last-resort power
Overview and rationale
Under current arrangements, investments that fall under thresholds cannot be assessed, and there is limited ability to rescind or alter an approval once it is provided (see discussion above). The government states this is problematic because:
…risks to Australia’s national interest, particularly national security, are increasing as a result of a confluence of developments—including rapid technological change and changes in the international security environment.
The proposed amendments will have the effect of bringing the majority of foreign investments, including investments that currently are not assessed because they fall below relevant thresholds, under the purview of the Act. This does not mean all investments will be assessed under the Act, rather, investments will be capable of being assessed under the Act against the national interest or national security.
Under the proposed amendments, in some circumstances the Treasurer will attain the ability to assess a proposed investment regardless of its value; to assess risks to national security over time; and in some situations force the divestment of an asset. The Treasurer will also have the ability to review a previously approved proposal if certain requirements are met (subject to application and transitional provisions discussed below).
Table 1.1: Overview of new actions and powers
Notifiable national security actions
A foreign person must notify the Treasurer before taking a notifiable action.
A foreign person must notify the Treasurer before taking a notifiable national security action or a notifiable action.
The Treasurer has powers for significant actions assessed against the national interest.
The Treasurer has powers for reviewable national security actions or significant actions not notified, if the action poses a national security concern. This power can be used for ten years after the investment.
A person may voluntarily notify of a proposed action.
A person may voluntarily notify of an action that could be reviewed under the call-in power. If the action is approved by the Treasurer, the call-in power is extinguished for that action.
The Treasurer cannot unilaterally amend a no objection notification or any conditions in the no objection notification if it is detrimental to the foreign person or without the foreign person’s consent.
The Treasurer can only order an action be undone after it has been approved in limited circumstances.
The Treasurer is able to give orders to reduce national security risks if:
there has been a material misstatement or omission in information provided to the Treasurer; or
relevant circumstances or the activities of the person have changed; and
all other options, including good faith negotiation and other regulatory powers, have been exhausted.
Source: Explanatory Memorandum
Notifiable national security action
The bill introduces a new type of action—a notifiable national security action that operates according to the type of investment, not the value of the investment. A notifiable national security action may also be a significant action or a notifiable action.
Item 72 of the bill defines the meaning of this type of action:
55B Meaning of notifiable national security action
(1)An action is a notifiable national security action if the action is taken, or
proposed to be taken, by a foreign person and the action is any of the
(a)to start a national security business;
(b)to acquire a direct interest in a national security business;
(c)to acquire a direct interest in an entity that carries on a national
(d)to acquire an interest in Australian land that, at the time of
acquisition, is national security land;
(e)to acquire a legal or equitable interest in an exploration
tenement in respect of Australian land that, at the time of
acquisition, is national security land.
Item 18 inserts definitions at section 4 for ‘national security business’ and ‘national security land’ that specify they have the ‘meaning prescribed by the regulations’.
Draft regulations provide the meaning of national security business that encompass twelve broad types of business. These include businesses that:
hold critical infrastructure assets within the meaning of the Security of Critical Infrastructure Act 2018 (SOCI Act);
are carriers or carriage service providers under the provisions of the Telecommunications Act 1997;
develop, manufacture or supply critical goods or critical technology intended for military end-use by defence and intelligence personnel (Australia or another country);
provide critical services to defence and intelligence personnel (Australia or another country);
store or have access to information that has a security classification; and
store, maintain or collect personal information collected by defence or intelligence agencies.
No definition of ‘national security land’ has yet been made in draft regulation. The Explanatory Memorandum states it will encompass land that is defence premises and land where a national intelligence agency has an interest, and that interest is publicly known or confirmable.
Item 27 inserts section 8A that defines the meaning of ‘starts a national security business’ as a ‘foreign person starts to carry on a national security business’. It does not include a situation where a person already carries on a national security business and establishes a new entity that carries on the same national security business.
Items 81 and 82 apply the notifiable national security action to stapled entities.
Items 133 to 136, and 139 to 141, repeal, and modify and apply existing notification requirements in sections 80 to 82 of the Act to a notifiable national security action.
Specifically, Item 134 repeals and substitutes a new simplified outline to specify a foreign person:
must give the Treasurer a notice before taking a notifiable national security action;
must not take an action during a certain period unless given a no objection notification; and
may be prevented from taking the action.
Offences and civil penalties
Items 143, 147 and 159 modify and apply existing offences and civil penalty provisions to notifiable national security actions. Specifically, Item 147 modifies section 84 to make it an offence to take a notifiable national security action before receiving a notice from the Treasurer.
Item 163 applies the existing provisions and penalties in section 91 for failing to give notice, to notifiable national security actions; and Item 173 applies the provisions in section 94 in relation to residential land.
Several items modify and apply existing offences for taking action before being permitted by section 82 of the Act, and apply a range of civil penalties. These penalties have been increased by amendments elsewhere in the bill (see discussion below).
Powers of the Treasurer
A number of items amend Part 3 of the Act to give the Treasurer certain powers with regard to notifiable national security actions, including the ability to review an action, prohibit an action, order an action to be undone, provide a no objection notification, and impose conditions.
Specifically, amendments to section 67(1A) of the Act (particularly Items 85 and 87) allow the Treasurer to make orders with regard to a notifiable national security action that is not a significant action (for instance, it falls under monetary and other thresholds), according to whether it would be contrary to national security, rather than contrary to the national interest. If a notifiable national security action is also a significant action, it is reviewed on national interest grounds and any orders are made on national interest grounds.
The bill is silent as to what constitutes an assessment on national security grounds and how this differs from an assessment on national interest grounds. As discussed above, one of the national interest factors is national security.
Under amendments made by Item 120, the Treasurer has the power under section 74 to vary a notification imposing conditions for a notifiable national security action by revoking a condition, imposing a new condition, or varying an existing condition. However, this is subject to section 74(6) that allows new or varied conditions only if the person consents or if the Treasurer is satisfied new or varied conditions do not disadvantage the person.
Application and transitional provisions
The following application and transitional provisions apply:
notification of notifiable national security actions is required for actions taken on or after 1 January 2021;
actions notified before this date because the action is a significant action, but a decision has not been made, will be considered under the Act against the national interest test; and
if a person notifies the Treasurer before 1 January 2021 of a notifiable national security action that will be taken on or after 1 January 2021, and the action is not a significant action or notifiable action, the notice will be taken to have been given on or after 1 January 2021.
In addition to the ability to review notifiable national security actions on national security grounds, through a call-in power the Treasurer will also have the ability to review other actions that may raise national security concerns:
reviewable national security actions; and
significant actions that are not notifiable actions or notifiable national security actions (that is, significant actions not notified).
Reviewable national security action
Reviewable national security actions are not actions related to a national security business, entity or land; they are actions in any sector or of any value that may raise national security concerns and are reviewable against Australia’s national security.
The term ‘reviewable national security action’ encompasses actions that are not captured by other parts of the Act and would not be otherwise subject to the Act. That is, an action cannot be a reviewable national security action if it is a significant action, a notifiable action or notifiable national security action. Neither can an action be a reviewable national security action if it has been previously approved by the Treasurer.
The provisions appear designed to deal with actions, regardless of size, that would provide some sort of control or influence (or additional control or influence) over an entity, and that may raise a national security concern. These actions, because they fall below relevant monetary thresholds, would not be otherwise encompassed by the Act and not be reviewable.
The Explanatory Memorandum states there are nine scenarios where a reviewable national security action may arise. Generally, these actions include:
acquiring a direct interest in an entity or business (of any percentage), land, or shares;
entering into an agreement relating to the affairs of an entity;
altering a constituent document of an entity;
acquiring an interest in assets of an Australian business;
entering or terminating a significant agreement with an Australian business; and
proposing to start an Australian business.
As a consequence of the action:
the foreign person may be in a position, or more of a position, to influence or participate in central management and control;
the foreign person may be in a position, or more of a position, to influence or participate in, or determine policy; or
one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a direct interest.
Other provisions specify the type of entity or land to which the type of action applies.
A number of other amendments are made to provide for this action, including several items specifying the meaning of ‘acquire an interest of a specified percentage in a business’ (Item 34 and Item 41).
Review of a reviewable national security action
The Treasurer’s call-in power is provided for in proposed section 66 (Item 83). The simplified outline details the Treasurer’s powers if an action is proposed to be taken or has been taken and the action is a reviewable national security action or a significant action that is not a notifiable action or notifiable national security action.
Under proposed section 66A—National security review of actions, the Treasurer may review these actions if the Treasurer considers the action may pose a national security concern. It is not clear what the trigger for such a review might be, what information the Treasurer might rely on, or how the national security test might be applied.
The Treasurer has the power to make orders to:
make an interim order before deciding whether to make an order prohibiting the action;
order the action be undone.
The Treasurer can also vary or revoke an order if satisfied it is not contrary to national security. Orders made by the Treasurer are notifiable instruments.
Proposed subsection 66A(2) states the Treasurer may only start a review of an action that has been taken within the time prescribed by the regulations. The draft regulations specify the Treasurer can use the call-in power for ten years from when the action is taken.
Proposed subsection 66A(4) specifies the Treasurer must give written notice of the review. Subsection 66A(5) specifies a number of instances where the Treasurer cannot review an action under the section, including:
the action has been notified to the Treasurer;
the person was given a no objection notification in relation to the action; or
the action is specified in an exemption certificate.
Item 129 repeals and substitutes a new section 77 that sets time limits for making orders and decisions. The amendments have the effect of requiring the Treasurer to make a decision within 30 days of the decision period starting (specified at section 77(6)). The person may request the decision period be extended; and the Treasurer under some circumstances may extend the decision period by up to 90 days (section 77A).
Amendments at Item 141 to subsection 82(1) limit a person taking an action after notice has been given before the earliest of:
ten days after the end of the decision period;
if an interim order is made, the end of the period specified in the order; or
the day a no objection notification is given.
Amendments at several items apply offences and civil penalty provisions in section 85 and Division 3 of Part 5 of the Act to reviewable national security actions.
Through amendments to section 74, the Treasurer can impose conditions to ensure the action will not be contrary to national security, revoke conditions, impose a new condition, and vary an existing condition. However, this power is subject to subsection 74(6) that specifies the Treasurer can only impose a new condition or vary an existing conditions if the person consents, or if it does not disadvantage the person.
Several items amend the exemption certificate provisions of the Act to allow a foreign person to seek an exemption certificate to undertake a program of acquisitions that would otherwise be reviewable national security actions. The Treasurer can vary or revoke an exemption certificate if satisfied it would not be contrary to national security.
Items 214 and 215 amend subsection 133(3) relating to the Treasurer’s ability to require information. Ordinarily the Treasurer must give a period of at least 14 days for the person to provide documents; for reviewable national security actions it may be less than 14 days.
Application and transitional provisions
Items 229 and 233 specify the call-in power can only be used by the Treasurer on actions taken or proposed to be taken on or after 1 January 2021.
If a person does notify of a reviewable national security action that will be taken on or after 1 January 2021 and the notice is given before 1 January 2021, the notice will be taken to have been given on or after 1 January 2021.
Under the last-resort power, the Treasurer will have the power, under certain circumstances and conditions, to review a previously approved action, and to impose conditions, vary existing conditions or force divestment, if national security concerns are identified.
Item 132 inserts Division 3—Last resort powers: orders to deal with national security risks arising after an initial assessment. Under these amendments, prior to using the last-resort power to issue an order, the Treasurer must undertake a national security review. No information is provided about the procedure or requirements of how such a review would be conducted.
Under proposed section 79A, the Treasurer may only undertake a national security review, including of an action that was previously approved (whether subject to conditions or not) or covered by an exemption certificate, on the following grounds:
the person notified the action to the Treasurer and made a statement that was false or misleading in a material particular, or that omitted a matter or thing without which the statement was misleading in a material particular;
the business, structure or organisation of the person has, or the person’s activities have, materially changed since the investment was approved or exemption certificate provided; or
the circumstances or market in which the action was, or is proposed to be, taken have materially changed since the time the investment was approved or the exemption certificate provided.
Under subsection 79A(2), during the review, the Treasurer must decide whether a national security risk relating to the action exists. In doing so, the Treasurer must obtain, and have regard to, advice from an agency in the national intelligence community about national security risks in relation to the action.
Prior to giving an order under the last-resort power, under proposed section 79C, the Treasurer must:
be satisfied a national security review has occurred;
any false or misleading statement or omission directly relates to the national security risk; or
if the risk is posed by a material change to the business, structure or organisation, it could not have been reasonably foreseen at the time the approval was provided or could have been reasonably foreseen but was only a remote possibility; or
if the risk is posed by a material change in the circumstances or market, the material change alters the nature of the national security risk posed at the time the action was approved;
reasonable steps have been taken to negotiate in good faith with the person to achieve an outcome of eliminating or reducing the national security risk;
requiring the person to comply with an order is reasonably necessary to eliminate or reduce the national security risk; and
the use of existing regulatory systems would not adequately eliminate or reduce the national security risk.
Proposed subsection 79D(2) specifies the prohibition orders the Treasurer may make in relation to different actions. If a prohibition order is made, subsection 79D(3) provides for additional orders to be made by notifiable instrument.
Proposed subsection 79E allows the Treasurer to make disposal orders in relation to certain actions.
Proposed subsection 79G allows the Treasurer to vary a no objection notification, specifically to:
varying an existing condition; or
vary the information specified in section 76 (content of a notification).
The Treasurer can vary or revoke conditions if the person was given a no objection notification and if the Treasurer is satisfied the variation is reasonably necessary for the purposes relating to eliminating or reducing the national security risk relating to the action. There is no requirement for the person to consent to the order, or for the Treasurer to be satisfied such an order would not disadvantage the person.
Under section 79H, if the person was not given a no objection notification, the Treasurer can impose conditions and must notify the person in writing. The Treasurer has the ability to later vary the conditions under section 79J if satisfied the variation is reasonably necessary for the purposes relating to eliminating or reducing the national security risk relating to the action. However, section 79P requires a person’s consent to the later variation or the variation to cause no disadvantage to the person.
Notices and secrecy
The bill contains notification requirements. In some circumstances a person who is subject to a review may not be notified; and the content of a notice may be completely redacted.
Under subsection 79A(3), a foreign investor may not receive notice a review is being undertaken if the Treasurer determines it would prejudice Australia’s national security interests to do so.
In other circumstances, the Treasurer is required to provide notice of the review. Provisions at 79A(3) prevent a person who has not yet taken an action from doing so until the review is completed and the Treasurer gives effect to the outcome of the review. If an action has been taken, the Treasurer may include in the notice a direction about the action or related activity the Treasurer considers necessary to address the national security risk. The Treasurer may also give further notices in writing until the review is complete.
Under section 79B, having reviewed an action, the Treasurer must give written notice to the person and either:
if a national security risk does not exist, include a statement to that effect; or
if a national security risk exists, include the reasons for deciding the risk exists in the notice.
However, under subsection 79B(2), the Treasurer can redact from the written notice:
any reasons that would disclose the national security risk or result in prejudice to Australia’s national interest; or
any information relied on in carrying out the review of the action on grounds of national security.
Subsection 79B(3) states:
To avoid doubt, a written notice to the person who proposes to take, or took, the action may be validly given under subsection (1) even if all the contents of the notice are redacted.
Review of the Treasurer’s decision
Under section 130A, a person may apply to the Administrative Appeals Tribunal (AAT) for review of a decision that a national security risk relating to the action exists.
Item 20 inserts a definition for ‘reviewable decision’ in section 4 of the Act: a decision of the Treasurer under Division 3 of Part 3 [Last-resort powers] that a national security risk exists in relation to an action.
Item 207 inserts a new Division 4—Review of decisions, into Part 7 of the Act. This deals with the process and procedure of review by the AAT of a decision of the Treasurer under section 79A. Under proposed section 130E, the Security Division of the Tribunal must review applications made under section 130A, and the proceedings are to be in private (subsection 130G(5)).
Amendments under this item include the following:
amongst other things, an applicant must include in an application to the Tribunal for a review of a reviewable decision, a copy of the written notice from the Treasurer, a statement indicating any part of the notice with which the applicant does not agree, and a statement setting out the grounds on which the application is made (section 130B);
the Tribunal must give a copy of the statement lodged with the application to the Treasurer, and if the application is for a review of a reviewable decision and an agency in the national intelligence community provided advice to the Treasurer, the Treasurer must give a copy of the documents to the agency (section 130C);
the Treasurer must provide the Tribunal within 30 days after receiving notice of the application a copy of the notice given to the person under subsection 79B(1), and a copy of the whole notice without redaction. The Tribunal cannot permit the applicant to have access to any copy of the notice without redaction or any matter to which the notice without redaction relates (section 130D); and
applicants may apply for a review of the Tribunal’s findings on the grounds the applicant has fresh evidence of material significance that was not available at the time of the previous review (subsection 130A(3)).
The bill limits the application of some sections of the AAT Act in regard to a review of a reviewable decision, including limiting the parties to the proceeding (subsection 130G(2)), and through proposed section 130N that states Division 2 of Part IV of the AAT Act (other than sections 32 and 33); and Division 3 of Part IV of the AAT Act, in addition to a number of other sections, do not apply.
Under proposed subsections 130G(8–10), the Treasurer is able to issue a national security certificate:
The Treasurer may, by signed writing, certify that evidence
proposed to be adduced, or submissions proposed to be made,
by or on behalf of the Treasurer, or the agency in the national
intelligence community that provided advice to the Treasurer,
are of such a nature that the disclosure of the evidence or
submissions would be contrary to national security.
See also subsection (19).
(9)If such a certificate is given:
(a)the applicant must not be present when the evidence is
adduced or the submissions are made; and
a person representing the applicant must not be present
when the evidence is adduced or the submissions are made unless the Treasurer consents.
(10)If a person representing the applicant is present when evidence
to which a certificate given under subsection (8) relates is
adduced or submissions to which such a certificate relates are
made, the representative must not disclose any such evidence or
submission to the applicant or to any other person.
Penalty: Imprisonment for 2 years.
The Treasurer also has the ability to issue a public interest certificate (proposed section 130H). A public interest certificate is not a legislative instrument.
130H Certain documents and information not to be disclosed in
review of reviewable decision
If the Treasurer certifies, by signed writing, that the disclosure
of information with respect to a matter stated in the certificate,
or the disclosure of the contents of a document, would be
contrary to the public interest:
(a)because it would prejudice Australia’s national security;
(b)because it would involve the disclosure of deliberations
or decisions of the Cabinet or a Committee of the Cabinet
or of the Executive Council; or
(c)for any other reason stated in the certificate that could
form the basis for a claim by the Crown in right of the
Commonwealth in a judicial proceeding that the
information or the contents of the document should not
the following provisions of this section have effect.
Subsection 130H(8) excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.
Further, subsection 130H(10) establishes that it is the duty for the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.
Under proposed section 130K, the Tribunal may direct that whole or part of its findings, so far as they relate to a matter that has not been disclosed to the applicant, not be given to the applicant.
Amendment to the Security of Critical Infrastructure Act 2018
Item 225 amends the Security of Critical Infrastructure Act 2018 (SOCI Act) that directs the Minister of Home Affairs, for the purposes of paragraph 32(3)(d), to ignore Division 3 of Part 3 (Last Resort Powers) of the Act.
The bill’s Explanatory Memorandum explains the SOCI Act
…allows the Minister of Home Affairs to issue directions if there is a risk of an act or omission that would be prejudicial to security. However the direction can only be issued if the Minister is satisfied no other Commonwealth regulatory system could be used. As Schedule 1 to this bill introduces the Treasurer’s last-resort power, the Security of Critical Infrastructure Act 2018 is amended to provide that Act with priority over the last-resort power, that is the Minister of Home Affairs is able to issue directions under section 32 of the Security of Critical Infrastructure Act 2018.
Application and transitional provisions
Item 234 specifies the Treasurer’s last-resort power (Division 3 of Part 3) is only available for actions notified to the Treasurer (or taken, if they were not notified) on or after 1 January 2021.
Measures related to the integrity of the foreign investment framework
The bill makes further amendments to bring within the purview of the Act, acquisitions that currently fall outside the framework and cannot be examined against the national interest or national security. It also makes some technical amendments, and allows for greater information sharing.
Specifically, as detailed below, the bill will:
amend the definition of ‘significant action’ so a change of control is not required for certain acquisitions;
capture passive increases in holdings of securities;
amend the definition of Australian business to include state and territory business functions;
expand tracing rules to unincorporated limited partnerships;
make a range of amendments to the decision period, and orders prohibiting a proposal; and
provide for greater information sharing domestically and internationally.
Amending definition of significant action
The bill makes some amendments to the ‘change in control’ provision to capture within the foreign investment framework situations where a private investor who already has control of an entity increases their holdings over time.
Items 58 and 59 add subsections 40(7) and 41(6) to modify the meaning of significant action in the Act to specify that a change in control is not always a necessary condition for an action to be a significant action in the case when the person controls the entity immediately before the action is or is to be taken.
This provision, that a change in control is not always necessary for an action to be a significant action, applies to actions to acquire interests in securities in an entity, to issue securities in an entity or acquire interests in the assets of an Australian business.
These provisions apply to actions taken, or proposed to be taken, on or after 1 January 2021 (Item 241).
Passive increases in securities holdings
Item 38, by inserting a new section 18A, makes the passive increase in securities holdings an action under the Act. Under the amendment, a person is taken to take an action of acquiring an interest in securities in an entity if the person holds an interest of a particular percentage in the entity, and that percentage increases without the person acquiring interests in securities in the entity.
Item 38, inserting the table at 18A(4) modifies various provisions of the Act in regard to passive increases. A passive increase is only a notifiable action if the person did not hold a direct or substantial interest in the entity immediately before the action is taken. Similarly, an action is a notifiable national security action only if the person did not hold a direct interest in the entity immediately before the action was taken. Under the last-resort power, the Treasurer can only order the percentage of interests the person held prior to the increase be restored.
The Explanatory Memorandum explains this amendment provides for situations where share buybacks, in which a person does not participate, result in increased ownership of an entity.
This (including the table at section 18A(4)) and other amendments (Items 5 and 138) allow the person 30 days to notify the Treasurer after the action is taken, if required; and allow the Treasurer to direct the person to dispose of the interests, or to apply the last-resort power.
Item 38 also allows modifications to the Act to be prescribed by regulation—proposed section 18A(6). The bill’s Explanatory Memorandum states the purpose of this provision is to address any unintended consequences, in particularly, ‘the amendments should not inappropriately impede the operation of foreign investors or markets’.
Item 239 provides that the amendments apply in relation to a percentage interest in an entity that increases on or after 1 January 2021.
Item 8 inserts a definition for ‘business’, specifying it includes any activity (whether for profit or otherwise) carried on by a Commonwealth, state, territory or local governing body; a body corporate established for a public purpose by or under a law of the Commonwealth, state or territory; or an entity wholly owned by the Commonwealth, state, territory or local governing body.
The bill’s Explanatory Memorandum explains the intent of these amendments, in conjunction with proposed amendments to the regulations is that privatisation of certain government functions will not be exempt from being significant and notifiable actions.
The proposed amendments to the regulations will, according to the bill’s Explanatory Memorandum:
...provide that, where a foreign person acquires from government an interest in a national security business, national security land, or an Australian business the assets of which include an exploration tenement that is on national security land, the acquisition will not be exempt from the operation of the FATA [the Foreign Acquisitions and Takeovers Act].
The proposed amendments to the FATR [the Foreign Acquisitions and Takeovers Regulation 2015] would ensure that assets relevant to national security do not avoid scrutiny, including where the acquisition is from the Commonwealth, a State, a Territory or local governing body. These amendments will be made after Schedule 1 to this bill has received Royal Assent.
Extending tracing rules to unincorporated limited partnerships
Existing tracing rules—that do not apply to unincorporated limited partnerships—allow for substantial interests to be traced back through the ownership of relevant entities.
Tracing rules have the effect that a person is taken to hold interests in securities in companies or trusts which are lower in the corporate structure when certain requirements are met. The rules allow a person’s interests to be traced through many entities and allow the government to impose conditions on higher entities in an organisational structure.
Item 31 inserts a definition at section 11A for ‘interest in an unincorporated limited partnership’ that provides a means for establishing whether a person holds an interest through control of any voting power or potential voting power, or through an entitlement to any distribution of capital, assets of profits of the partnership—whether through dissolution or otherwise.
Various other definitions are also amended, including ‘constituent document’ (Item 10), ‘general meeting’ (Item 13), ‘interest’ (Item 15), and ‘substantial interest’ (Item 21 and Item 22). These, and other amendments (Item 35 amending section 17; Item 36 inserting subsection 17(2A)), allow for the expansion of tracing.
Several other items, including Items 35, 37, 39, 40–43, and 45, make further amendments to apply existing provisions to unincorporated limited partnerships and to deal with tracing of substantial interests.
By extending these tracing rules to unincorporated limited partnerships, the government states it will be able to effectively address national interest and security risks, particularly where limited partnerships are used as a vehicle for investment in critical infrastructure and other sensitive sectors.
The Treasurer will be able to extend or further extend the statutory decision period by up to 90 days without issuing an interim order or the person’s consent. As it currently stands, the Treasurer has 30 days to make a decision and this can only be extended if an interim order is made or the foreign person requests an extension.
Item 129 inserts a new section 77 that specifies the Treasurer is no longer restricted by time limits if the person takes the action before the end of the decision period. The section also provides for other later decision periods.
Amendments to the Act will substantially increase the information sharing provisions for protected information.
Table 1.2: Information sharing arrangements
Information provided by Commonwealth, state/territory minister or body
Protected information about a decision made under the Act cannot be disclosed to a Minister, an officer or employee of the C’wealth, state or territory or an officer or employee of the C’wealth, state or territory body, where they have provided information that assisted with the decision.
Protected information about decisions or orders made under the Act may be shared with a Minister, an officer or employee of the C’wealth, state or territory or an officer or employee of the C’wealth, state or territory body (the recipient), where they have provided information that assisted with the decision or order.
The information can be shared if the discloser reasonably believes the disclosure may assist the recipient in the performance of their functions or duties or exercise of power.
Information sharing with foreign governments
Protected information cannot be disclosed to a foreign overseas government.
Protected information may be shared with a foreign government and separate government entities where national security risks may exist and where it is not contrary to the national interest.
The information can only be shared if there is an agreement in place between the C’wealth and the other government entity.
Once the information is no longer required, it may not need to be destroyed, only de-identified.
Information sharing within the Commonwealth
Protected information may be disclosed under the Act to a Minister or an accountable authority of the C’wealth for the purposes of the administration of the prescribed list of Acts. The regulations can prescribe additional Acts.
In addition to the existing prescribed Acts, protected information may be disclosed under the Act for the purposes of administering three additional Acts: Competition and Consumer Act 2010; Australia’s Foreign Relations (State and Territory Arrangements) Act 2020; and the Northern Australia Infrastructure Facility Act 2016.
The Treasurer can prescribe additional Acts by legislative instrument.
In addition to disclosing information to a Minister, amendments will allow protected information to be disclosed to an individual employed by a Minister under the Members of Parliament (Staff) Act 1984 (MOPS Act), and an individual who is engaged by a Minister as a consultant under the MOPS Act.
Protected information may be disclosed to a Minister or an accountable authority of the C’wealth or departmental secretary responsible for agriculture, industry, investment promotion, taxation policy, foreign investment in Australia, defence and for national security purposes.
In addition to the existing permitted purposes, protected information may be disclosed under the Act for the purposes of a Minister discharging that Minister’s responsibility for matters about water, telecommunications and infrastructure.
Information sharing between Commissioner of Taxation and FIRB
The Commissioner is not permitted to disclose protected information to persons appointed by the C’wealth for the purposes of the Act.
The Commissioner may disclose protected information directly to persons appointed by the C’wealth for the purposes of the Act.
Disclosure of aggregate information
Protected information may only be disclosed if it is periodic aggregate information disclosed for reporting on the administration of the Act, and not reasonably capable of identifying a person.
Protected information under the Act can be disclosed if it does not or is not reasonably capable of identifying a person.
Source: The bill and Explanatory Memorandum
The amendments apply to the recording, disclosure or use of information on or after 1 January 2021, regardless of whether the information was obtained before, on, or after that day.
An agreement to share information with a foreign government may be in existence prior to 1 January 2021.
Schedule 2—Compliance and enforcement
Schedule 2 and some parts of Schedule 1 deal with compliance and enforcement and make a number of amendments to the Act including providing for:
expanding the infringement notice regime;
the revocation of no objection notifications and exemption certificates where false or misleading statements have been made;
uniform notification requirements;
monitoring and investigation powers; and
Unless otherwise stated, the item numbers in this section relate to Schedule 2.
The bill amends maximum penalties applicable to certain offences; introduces new offences; and new penalties for breaches of certain civil penalty provisions. The table below summarises key changes.
The bill’s Explanatory Memorandum states monetary penalties under the Act are low compared to those available to other business regulators, and the changes, including to imprisonment terms, reflect the seriousness of offences, act as a deterrent, and effectively punish those who commit offences.
A range of different penalties are applied in different parts of the Act. These are summarised in the table below.
Table 1.3: Provisions increasing penalties or creating new offences
s.84 Failing to give notice (Item 3)
Partly new provision; imprisonment for 3 years, or 750 penalty units, or both for existing provision
Imprisonment for 10 years, or 15,000 penalty units (or 150,000 penalty units if the person is a corporation), or both
s.85 Taking action before end of period (Item 4)
Partly new provision; imprisonment for 3 years, or 750 penalty units, or both for existing provision
s.85A Taking action while prohibited by this Act (Item 155—Schedule 1)
s.86 Contravening orders under Part 3 (Powers of the Treasurer) (Item 5)
Imprisonment for 3 years, or 750 penalty units, or both
s.87 Contravening conditions (Item 6)
Imprisonment for 3 years, or 750 penalty units, or both
s.88(1) Failing to advertise new dwellings (Item 7)
Imprisonment for 3 years, or 750 penalty units, or both
s.88A Contravening directions and interim directions (Item 158—Schedule 1)
Division 3—Civil penalties
s.89 Contravening orders under Part 3 (Powers of the Treasurer) (Item 10)
250 penalty units
Maximum penalty is the lesser of the following:
(a) 2,500,000 penalty units;
(b) the greater of the following:
(i) 5,000 penalty units
(or 50,000 penalty
units if the person
is a corporation);
(ii) the amount
worked out under
section 98F for the
action in relation to
which the order
s.91 Failing to give notice (Item 167—Schedule 1)
Partly new provision; 250 penalty units for existing part of provision
s.92 Taking action before end of period (Items 11–13)
250 penalty units
s.92A Taking action while prohibited by this Act (Item 172—Schedule 1)
s.93(1–3) Contravening conditions in a no objection notification (Item 14)
250 penalty units
s.93(4–6) Contravening conditions in notice imposing conditions (Item 14)
250 penalty units
s.93(7) Contravening conditions in exemption certificates (Item 14)
250 penalty units
5,000 penalty units (or 50,000 penalty units if the person is a corporation)
s.94 Acquisition of interest in residential land (Item 15)
Partly new provision; for existing part of provision—maximum is greater of following:
(a) 10% of the consideration for the residential land acquisition
(b) 10% of the market value of the interest in the relevant residential land
Maximum penalty is the greatest of the following:
(a) the amount of the capital gain that was made or would be made on the disposal of the interest in the relevant residential land;
(b) 25% of the consideration for the residential land acquisition;
(c) 25% of the market value of the interest in the relevant residential land
s.95A Taking action while prohibited by this Act (Item 176—Schedule 1)
s.97(1A) Conditions in notice imposing conditions
250 penalty units
Subdivision D—Other civil penalties
s.98A Contravening directions and interim directions (Item 16)
(a) unless paragraph (b) applies—5,000 penalty units; or
(b) if the person is a corporation—50,000 penalty units
s.98B(1) False or misleading information and documents (Item 16)
New provision for information or documents relevant to no objection notification
Maximum penalty is the lesser of the following:
(a) 2,500,000 penalty units;
(b) the greater of the following:
(i) 5,000 penalty
units (or 50,000
penalty units if the
person is a
(ii) the amount
worked out under
section 98F for the
action in relation
to which the order
s.98B(2) False or misleading information and documents (Item 16)
New provision for information or documents relevant to exemption certificate
Maximum penalty: (a) unless paragraph (b) applies—5,000 penalty units; or (b) if the person is a corporation—50,000 penalty units
s.98C Failure to notify Treasurer of taking of action specified in no objection notification (Item 16)
250 penalty units
s.98D Failure to notify taking of action related to exemption certificate (Item 16)
s.98E Failure to notify Treasurer of situations following core Part 3 action (Item 16)
s.133 Treasurer may require information (Item 44)
Imprisonment for 6 months or 30 penalty units, or both
Imprisonment for 6 months or 250 penalty units, or both
s.100(6)(c) Infringement notice (tier 3) (Item 34)
Individual—300 penalty units; corporation—1,500 penalty units
s.130ZV Failing to give notice to Registrar (Item 8—Schedule 3)
250 penalty units
Item 16 also inserts section 98F that provides for the calculation of civil penalty amounts for penalty provisions based on value. The item provides calculation for 15 types of actions, including the acquisition of a direct interest in an entity or a business; an acquisition of an interest of any percentage in an entity or a business; an issue of securities in an entity; entering into an agreement; an alteration of a constituent document of an entity; and starting a business.
Item 21 repeals and substitutes a new subsection 99(4) that specifies subsection 82(5) of the Regulatory Powers Act that relates to determining a pecuniary penalty does not apply in relation to some provisions of the Act. Subsection 82(5) of Regulatory Powers Act specifies if the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision.
Amendments to the Act provide that the pecuniary penalty for body corporates is 10 times the penalty specified for some civil penalty provisions. The Explanatory Memorandum explains this is ‘necessary and appropriate to ensure that a corporation does not obtain financial benefits from illegal behaviour’.
Expanding the infringement notice regime
Several items expand the application and scope of the infringement notice regime provided for under Part 5 of the Regulatory Powers Act. Infringement notices are currently available only for ‘less serious’ breaches of the Act and only in the case of residential real estate investments. There are currently two levels of breach where an infringement notice penalty is available:
tier 1—where a person discloses the breach to the Commonwealth;
tier 2—when the breach is discovered by means other than self-disclosure.
Items 22–25 make a range of changes to the section 100 infringement notices provisions of the Act to allow infringement notices to be issued if an officer believes on reasonable grounds the person has contravened an additional range of civil penalty provisions of the Act, including:
provisions of Division 3 (civil penalties);
subsection 115DA(1) (vacancy fee liability—false or misleading vacancy fee return); and
subsection 140ZV (civil penalty for failing to give notice to Registrar).
Item 26 and Item 27 and existing section 100(3) specify an infringement officer is appointed by the Secretary and must be a person who holds, or performs the duties of, an APS 6 position, or an equivalent or higher position within the Department or the Australian Taxation Office. The Registrar (see below) may also appoint an infringement officer. Item 28 identifies the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act (Infringement notices).
Item 32, inserting a new paragraph 100(5)(a), specifies certain requirements for the content of infringement notices under the Regulatory Powers Act are not required for an infringement notice under the Act. The Explanatory Memorandum states the item excludes content that may be ‘irrelevant, impracticable or difficult to determine in the FATA [the Act] context’ such as the particulars of time, day and place, or the maximum civil penalty that a court could impose where this amount is based on the value of an action.
Tier 1 infringement notice
Several items amend the existing definition of a tier 1 infringement notice. Item 36 specifies it is the Treasurer or the Commissioner of Taxation on behalf of the Treasurer who must be notified, and that at the time when the person makes the notification, the Commonwealth has not yet indicated to the person it is considering investigating the conduct.
Tier 2 infringement notice
Tier 2 and tier 3 infringement notices apply when a person does not self-notify voluntarily of a breach of the Act.
Item 38 repeals and inserts a new subsection 101(2) that identifies a tier 2 infringement notice. In particular, this item (in conjunction with Item 39) specifies a tier 2 infringement notice (and possibly a tier 1 infringement notice, but not a tier 3 infringement notice) applies to the following provisions (amongst others):
contravening conditions in a no objection notification, in a notice imposing conditions and conditions in an exemption certificate in relation to residential land;
failing to notify the taking an action in a no objection notification or exemption certificate;
failing to notify the Treasurer of situations following a core Part 3 Action;
failing to give a vacancy fee return, failing to ensure the return does not contain information that is false or misleading in a material particular, and failing to keep records with regard to liability for a vacancy fee; and
failing to give notice to the Registrar.
The rationale in the Explanatory Memorandum is that it is considered more appropriate that certain civil penalty provisions are classed as tier 2 infringement notices to ensure that penalties in an infringement notice are not higher than the related civil penalty amount.
Item 39 specifies the threshold for distinction between tier 2 and tier 3 infringement notices. A tier 2 infringement notice applies where the value of the action is less than either: $5 million for an acquisition of an interest in Australian residential land, or otherwise $275 million.
Item 39 also includes a valuation table to determine the value of the action to which the contravention of the civil penalty provision relates.
Tier 3 infringement notice
The Treasury states infringement notices are commonly used for minor breaches that are likely to occur frequently and can be assessed using objective criteria, for instance in cases where reporting requirements are not met, or where an investor submits a retrospective application to rectify a breach. Item 38 introduces a tier 3 infringement notice for ‘non-compliance of high-value acquisitions’.
Item 38 inserts provisions for a tier 3 infringement notice at subsections 101(4) to 101(7). Although section 39 introduces thresholds for the distinction between a tier 2 infringement notice and a tier 3 infringement notice, amendments at Item 38 allow the Treasurer to decide a tier 3 infringement notice is a tier 2 infringement notice having considered the conduct of the person after the alleged contravention including any steps taken to address the alleged contravention and cooperation with authorities, and if such a decision would not be contrary to the national interest.
Limitations on the use of infringement notices
Although not contained in the bill, the Explanatory Memorandum states infringement notices should be limited to situations where imposing the penalty does not reflect a judgement as to the person’s guilt or liability:
The infringement notice regime is expanded to civil penalty provisions, where it is generally expected that an infringement notice be issued on the basis of straightforward factual questions, without involving discretion from the infringement officer. For example, where the contravention involves a failure to notify arising where an objective circumstance, such as an acquisition occurs. However, the FATA [the Act] regulates actions that can be factually complex. Where the factual circumstances raise doubt as to whether a contravention has occurred, it is not intended that an infringement notice be issued.
A regulator should not be exercising significant discretion in determining the level of penalty to be imposed on a recipient by way of infringement notice, other than in strict accordance with factual criteria set out in the legislation.
Revocation of notifications for the provision of false or misleading information
Item 126 (Schedule 1) inserting a new section 76A allows for the revocation of no objection notifications if the Treasurer reasonably believes that before a no objection notification was given to a person, the person gave the Treasurer information that was or documents that were:
relevant to the no objection notification; and
false or misleading in a material particular.
Under subsection 76A(3), the Treasurer may revoke a no objection notification (made with or without conditions) if:
the Treasurer is satisfied that before the no objection notification
was given the person (or another person specified in the
notification) gave the Treasurer information that was or
documents that were:
(i) relevant to the no objection notification; and
(ii) false or misleading in a material particular; and
(b)the Treasurer has given the person a notice under subsection (2)
in respect of the no objection notification; and
(c)the revocation is made no later than 120 days after the day on
which the Treasurer gave the person that notice.
If the Treasurer makes a decision to revoke a no objection notification, this decision must be made within 120 days of the Treasurer advising the person the Treasurer is considering revoking the notification (subsection 76A(3)).
Under proposed subsection 76A(7), if the Treasurer revokes the no objection notification, the Treasurer may make an order prohibiting the action (if it has not been taken) or a disposal order, or provide a no objection notification with or without imposing conditions, as if the no objection notification had never been given and the relevant decision had never been made.
In a similar way, Item 79 (Schedule 1) inserts a new section 62A allowing the Treasurer to vary or revoke an exemption certificate if the Treasurer is satisfied documents relevant to the exemption certificate were false or misleading in a material particular.
Section 62B (Item 79, Schedule 1) specifies actions already taken while a revoked or varied exemption certificate was in force would not retrospectively become a significant action or other ‘core Part 3 action’ as a consequence of the exemption certificate being revoked or varied. However, the relevant action may become a significant action or other core Part 3 action from the time when the revocation or variation is made or takes effect. This will allow the Treasurer to exercise powers in relation to significant actions or other core Part 3 actions.
Item 16 (Schedule 2) makes providing false or misleading information and documents liable for a civil penalty (see above).
Uniform notification requirements
Currently, the extent of foreign investments in Australia the Treasurer is expected to regulate is unknown. This is because under current legislation, a foreign person only has to notify the Treasurer the foreign person has taken an action if this is a condition placed on the approval (that is, contained in a no objection notification imposing conditions, and that specific condition is included). If a person receives an unconditional no objection notification there is no requirement to notify if and when the action occurs, a similar issue applies to actions taken under exemption certificates.
Item 16 (Schedule 2) creates civil penalties for a range of situations, including:
failing to notify the Treasurer of taking an action specified in a no objection notification (section 98C);
failing to notify of an action related to an exemption certificate (section 98D); and
failing to notify the Treasurer of situations following core Part 3 actions, such as a change in control of the entity, the person ceases to have a direct interest, the person reduces an interest, the person ceases to hold in interest in Australian land, and if any situations specified in the regulations cease to exist (section 98E).
Item 132 (Schedule 1) inserts a number of provisions into the Act, including a new Division 5—Treasurer directions, into Part 3—Powers of Treasurer. Proposed section 79R allows the Treasurer to give a direction to a person if the Treasurer has reason to believe:
a person has engaged, or is engaging, in conduct that constitutes a contravention of a provision of the Act; or
a person will engage in conduct that would constitute a contravention of a provision of the Act.
The Treasurer may require a person to, amongst other things:
comply with conditions in a no objection notification or exemption certificate; and/or
comply with specifications in the Regulations.
Under proposed subsections 79R(6) and 79R(7), the Treasurer can make directions if a consequence or possible consequence arising from the relevant contravention is that the composition of the group of senior officers of a corporation is considered contrary to the national interest. In such a case the Treasurer can direct that a specified person ceases to be a senior officer, ensure a specified person does not become a senior officer, ensure specified kinds of persons (such as non-Australian citizens) cease to be senior officers or do not become senior officers, and ensure a specified proportion of senior officers are not specified kinds of persons.
Proposed section 79R(8) allows a direction from the Treasurer to refer to external material.
Written directions provided by the Treasurer are not legislative instruments (subsection 79R(9)) and under proposed subsection 79S need not be published if the Treasurer decides publishing the direction would be contrary to the national interest.
The Treasurer has the power to vary and revoke a direction (proposed section 79U) if doing so is not contrary to the national interest and can decide not to publish a variation or revocation if satisfied doing so would be contrary to the national interest.
Under section 88A, contravening a direction or interim direction is a criminal offence and carries a penalty of up to 10 years imprisonment or 15,000 penalty units for an individual and 150,000 for a corporation, or both (see penalties above and Item 158 of Schedule 1).
Under section 98A (Item 16 of Schedule 2), if the contravention relates to a civil penalty provision, the contravention or direction is a civil penalty provision (see above) and the maximum penalty is 5,000 penalty units for an individual and 50,000 for a corporation.
Monitoring and investigation powers
A number of provisions in the bill, and the existing Act, require the power to monitor and investigate. As it currently stands, information gathering powers under the Act rely on the ability of the Treasurer to require information under section 133, and on desk-top and paper-based auditing and compliance monitoring.
The Explanatory Memorandum highlights current deficiencies in the ability of the Treasury to monitor compliance and be certain entities are meeting the requirements of the Act:
At times the existing information gathering power is insufficient to draw compliance conclusions with respect to certain conditions (for example, conditions requiring the installation or removal of surveillance and communications equipment).
Item 40 inserts a new section 101A that makes provisions of the Act subject to monitoring under Part 2 of the Regulatory Powers Act. Part 2 of the Regulatory Powers Act creates a framework for:
monitoring whether the provisions of an Act or legislative instrument have been, or are being, complied with;
monitoring whether information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is correct.
Part 2 of the Regulatory Powers Act also provides for an authorised person to enter premises for the purposes of monitoring. Entry must be with the consent of the occupier of the premises or under a monitoring warrant.
Proposed subsection 101A(2) specifies information given in compliance or purported compliance with this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
Proposed subsection 101A(3) establishes related provisions for the purpose of monitoring powers, specifying offence provisions or civil penalty provisions of the Taxation Administration Act 1953 and the Corporations Act 2001, and provisions of Part 3 or 3B of the Register of Foreign Ownership of Water or Agricultural Land Act 2015. According to the Explanatory Memorandum, if a thing is found in the course of executing a monitoring warrant that may be evidence of the contravention of a related provision, an authorised person is permitted to secure that thing in serious or urgent circumstances to prevent it from being concealed or destroyed.
Other subsections at 101A specify authorised applicant, authorised person, issuing officer, relevant chief executive, relevant court, person assisting, and extension to external territories.
Item 40 also inserts a new section 101B (investigation powers) that similarly makes provisions of the Act subject to investigation under Part 3 of the Regulator Powers Act. This part of the Regulatory Powers Act creates a framework for gathering material that relates to the contravention of offence provisions and civil penalty provisions. Under Part 3:
an authorised person may enter premises if the authorised person suspects on reasonable grounds that there may be material on the premises related to the contravention of an offence provision or a civil penalty provision that is subject to investigation under Part 3;
entry must be with the consent of the occupier of the premises or under an investigation warrant; and
an authorised person who enters premises may exercise investigation powers. The authorised person may be assisted by other persons if that assistance is necessary and reasonable and another Act empowers the authorised person to do so.
Parts 2 and 3 of the Regulatory Powers Act specify a monitoring or investigation warrant may only be issued by an issuing officer if the issuing officer is satisfied, by information on oath or affirmation:
that it is reasonably necessary that one or more authorised persons should have access to the premises for the purpose of determining whether a provision subject to monitoring is being complied with or information subject to monitoring is correct (section 32); or
that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises (section 70).
The issuing officer must be provided, either orally or by affidavit, any information required concerning the grounds on which the issue of the warrant is being sought.
Item 40 (Schedule 2) inserts a new Subdivision AD—Application of the Regulatory Powers Act—Enforceable undertakings, and proposed subsection 101C makes the provisions of the Act enforceable under Part 6 of the Regulatory Powers Act.
Under Part 6 of the Regulatory Powers Act:
an authorised person may accept an undertaking relating to compliance with a provision that is enforceable under Part 6;
the undertaking may be enforced in a relevant court; and
the orders that may be made by a relevant court include an order directing compliance, an order requiring any financial benefit from the failure to comply to be surrendered and an order for damages.
Under proposed subsection 101D the Treasurer does not have to publish an undertaking if the Treasurer decides to do so would be contrary to the national interest.
Items 47 and 48 of Schedule 2 clarify how the Commissioner of Taxation may use the Commissioner’s powers under the Regulatory Powers Act and Taxation Administration Act.
Application and transitional provisions
The Explanatory Memorandum advises the following application and transitional provisions apply:
expanding availability of infringement notices—apply in relation to contraventions of the foreign investment rules on or after 1 January 2021 (Item 52, Schedule 2);
penalties—amendments will apply in relation to contraventions that occur on or after 1 January 2021 (Item 51, Schedule 2);
failing to give notice—amendments apply to contraventions that occur on or after 1 January 2021 (Item 50, Schedule 2);
infringement notices and civil penalty for vacancy fee lodgements—apply in relation to vacancy fee returns given on or after 1 January 2021 (Item 53, Schedule 2);
incorrect statements—Treasurer can revoke a no objection notification or revoke or vary an exemption certificate where information or documents that were false or misleading were given in relation to the no objection notification or exemption certificate to the Treasurer before, on or after 1 January 2021. As the amendments apply in relation to information or documents given to the Treasurer before, on or after 1 January 2021, the amendments may apply for no objection notifications and exemption certificates issued before, on or after 1 January 2021. The amendments providing for the effect of revoking or varying an exemption certificate apply to revocations or variations made on or after 1 January 2021 (Item 166 and Item 243, Schedule 1);
civil penalties or infringement notices—may apply for contraventions involving false or misleading information or documents given on or after 1 January 2021. A civil penalty or infringement notice will not apply for information or documents given before 1 January 2021
(Item 49 and Item 52, Schedule 2)
notification of actions—apply in relation to no objection notices and exemption certificates given on or after 1 January 2021
(Item 50, Schedule 2);
direction powers—where the relevant conditions for making a direction or interim direction were met on or after 1 January 2021 (Item 245, Schedule 1);
monitoring powers—apply in relation to compliance with the provisions of the Act and information given in compliance with a provision of the Act before, on or after 1 January 2021 (Item 55, Schedule 2);
investigation powers—apply in relation to contraventions or suspected contraventions of any offence provision or civil penalty provision of the Act, or an offence against the Crimes Act or the Criminal Code that relates to the Act that occurs before, on or after 1 January 2021 (Item 56, Schedule 2); and
enforceable undertakings—relating to compliance with the Act given on or after 1 January 2021 (Item 57, Schedule 2).
Under current legislative arrangements, the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Fees Act) and the Fee Regulation establish the specific fees and exemptions for fees payable when giving notice under the Act. The fees are calculated based on the notification type, the value of the transaction or assets and the number of actions being taken. However, the fee may be higher or lower depending on the type of agreements in place, whether it is a variation, and whether any exemptions or lower fee rules apply. All fees imposed are a tax.
The fees imposition bill will amend the Fees Act to establish authority for the Fee Regulation to charge existing and new fees. The fees imposition bill repeals Part 2 of the Fees Act with most of the provisions currently in that section transferred to Regulation. Fee amounts will be prescribed in Regulation.
The following fees remain payable when a person:
applies for an exemption certificate or a variation of an exemption certificate;
gives notice of a notifiable action;
gives notice about a proposal to take a significant action that is not a notifiable action;
applies for a variation of a no objection notification; and
when a person has been given an order or has been provided a no objection notification without giving the Treasurer a notice relating to the action specified in the order or notification.
Amendments establish new fees for the new actions: notifiable national security action; reviewable national security action that has been notified to the Treasurer; and an action for which the Treasurer has given the person a notice because the action may pose a national security concern. Fees are payable when a person applies to vary a notice imposing conditions that was given to the person.
The fees imposition bill establishes a maximum fee cap and allows for the indexation of the maximum cap.
Table 1.4: Comparison of old and new fee arrangements
Fees are payable on applications and notices made under the Act. Fee amounts are prescribed in the Fees Act and Fee Regulation.
Fees are payable on applications and notices made under the Act. All fee amounts are to be prescribed in the Fee Regulation, which can prescribe fee amounts including specifying:
a fee amount or method;
different fee amounts or methods;
a nil amount or a method resulting in a nil amount;
a method for a fee if two or more fees are payable in relation to a single agreement;
a method for a fee if the action is covered by multiple actions; and
an initial amount, and then later determining a reduced amount or nil amount.
No current arrangement
Fees are payable for a notifiable national security action.
No current arrangement
Fees are payable when the Treasurer issues a notice that a reviewable national security action or significant action that has not been notified may pose a national security concern.
Fees are payable for actions notified to the Treasurer that are not notifiable.
Fees are also payable for reviewable national security actions that are voluntarily notified to the Treasurer.
No current arrangement
Fees are payable for retrospective notifications for all notifiable, notifiable national security and significant actions.
A fee is payable if a person applies to vary their no objection notification.
Fees when a person applies to vary a no objection notification or notice imposing conditions.
No current arrangement
Fees are payable when a person gives notice of a retrospective action that was a notifiable action but not a significant action if the action was taken between 1 December 2015 and the commencement of the bill.
All joint tenants in a joint tenancy arrangement are required to submit the vacancy fee return.
Only one person in a joint tenancy arrangement submits the vacancy fee return, in order to determine the applicable vacancy fee liability.
Source: Explanatory Memorandum
Schedule 3—Register of foreign owned assets
Schedule 3 of the bill creates a Register of Foreign Ownership of Australian Assets. The Register will incorporate and discontinue existing separate registers—Register of Foreign Ownership of Water Entitlements and Register of Foreign Ownership of Agricultural Land—by repealing the Register of Foreign Ownership of Water or Agricultural Land Act 2015 (Register Act).
The Register will not contain all foreign owned assets—generally only those that have been notified or been the subject of some of the Treasurer’s new powers under the bill. The information on the Register will not be publicly available.
Definitions and miscellaneous provisions
Item 1 (Schedule 3) modifies the simplified outline of the Act to include the Register:
The Register of Foreign Ownership of Australian Assets is kept under Part 7A.
The Register records certain actions relating to interests acquired, held or disposed of by foreign persons. A foreign person who takes such an action (which may or may not be a significant action or a notifiable action, or otherwise covered by this Act) must give a register notice to the Registrar. In some circumstances, other people must also give notices to the Register. A civil penalty applies to a failure to give a notice under Part 7A.
Item 2 (Schedule 3) inserts several definitions into section 4 of the Act, including for some definitions currently in the Register Act.
Item 3 (Schedule 3) inserts 26A Meaning of registrable water entitlement. This is the same definition in the Register Act, which is repealed at Item 14.
Record keeping and disclosure of information
Items 4–6 (Schedule 3) extend and slightly modify the existing record-keeping provisions in the Act to the Register.
Item 7 (Schedule 3) inserts section 126A to allow the Registrar to disclose information. This item means the Register will be captured by changes to the protected information provisions (discussed above) including sections 122, 123A and 123B.
Item 8 (Schedule 3) inserts a new Part 7A—The Register of Foreign Ownership of Australian Assets, into the Act. Provisions in this section create a requirement for a register notice to be provided to the Registrar. When this occurs, a registered circumstance is established. This creates further reporting requirements.
Section 130P provides a simplified outline, including:
The Register of Foreign Ownership of Australian Assets records certain actions relating to interests in land, water, entities, businesses and other assets in Australia.
The Register is kept by the Registrar, which is a body or person appointed by the Treasurer.
Generally, a foreign person who acquires or disposes of such an interest must give a register notice to the Registrar. The register notice may result in there being a registered circumstance in relation to the person, and the person may be required to give further register notices in relation to the registered circumstance…
No fee is payable for giving a register notice under this Part…
A civil penalty applies to a failure to give a notice as required by this Part.
Division 2—The Register of Foreign Ownership of Australian Assets, comprises sections 130Q to 130Z and includes provisions relating to the following:
Register commencement day on or after the day Part 2 of Schedule 3 commences (130Q);
appointment of the Registrar by notifiable instrument (130R);
requirement of the Registrar to keep the Register (130S);
overview of information to be kept in the Register (130T);
additional information the Registrar may add to the Register, including information obtained under the Foreign Investment Reform (Protecting Australia’s National Security) Act 2020 (130U);
disclosure of information (see below) (130V);
requirements for giving notice to the Registrar before the end of 30 days after the registrable event (except in certain circumstances) and details for events that may have ceased before notice is given or where single events might result in notices given under more than one provision (130W);
establishing the registrable event day (130X);
agents may give notice (130Y); and
regulations may extend time for giving notice (130Z).
Proposed section 130V specifies the circumstances in which the Registrar may disclose information in the Register. The Register will not be publicly available, however, under 130V(1), information may be disclosed to the Treasurer, Secretary, Commissioner of Taxation, employees of the Treasury and Tax Office, and other persons appointed for the purposes of the Act. Subsection 130V(3) has the effect that the provisions for the sharing of information under Division 3 of Part 7 apply to the Register. This means information on the Register, whilst not publicly available, can be shared under certain circumstances with other government departments, state/territory governments, and foreign governments.
Proposed section 130Z allows for extensions to time for giving notice to the Registrar to be made by regulation. Regulations may be made for the purposes of providing extensions on the grounds certain conditions are met and the Treasurer has the power to impose such conditions generally or in particular cases. Regulations may also provide for extensions that apply to specified persons, confer a power to make a decision of an administrative character; and confer a power on the Treasurer to make a legislative instrument providing for anything that may, under section 130Z, be provided for by the regulations.
Division 3—Requirements to give register notices to the Registrar contains section 130ZA to 130ZU. Key provisions in this division are discussed below. In general, once notice is given, a registered circumstance is created, which ceases if the person ceases to hold the interest. A registered circumstance gives rise to certain ongoing reporting obligations.
Subdivision A deals with Register requirements relating to interests in land and includes requirements in the following circumstances:
a foreign person acquires an interest in Australian land, and an equitable interest in a lease or licence expected to exceed 5 years in agricultural land (section 130ZA);
interests in exploration tenements, allowing for ‘interest’ to be prescribed by the regulations (130ZB);
a person becomes a foreign person while holding an interest in land (130ZC); and
a change in nature of interest in land (130ZD).
Subdivision B establishes requirements relating to registrable water interests including when:
a foreign person acquires a registrable water interest (130ZE);
a person becomes a foreign person while holding a registrable water interest (130ZF); and
there is a change to certain characteristics of a registrable water interest, such as a change in volume of water (130ZG).
Subdivision C (Items 130ZH–130ZP) relates to requirements for interests in businesses or entities and includes requirements for:
notifiable national security actions;
a reviewable national security action that has been notified, or for which a no objection notification (with or without conditions) has been given, or for which the Treasurer has issued a notification the action will be reviewed;
a change in interest in an entity or business; and
a person becomes a foreign person while holding interest in an entity or business or while carrying on or holding an interest in a national security business.
Proposed section 130ZQ requires notice when a registered circumstance ceases and section 130ZR when a foreign person ceases to be a foreign person while registered circumstances exist.
Further provisions (sections 130ZS and 130ZT) are made specifying the requirements relating to persons who die, or corporations that are wound up before notice is given, and for a corporate liquidator to give notice.
Section 130ZU allows for the regulations to prescribe additional requirements for giving notice; and section 130ZV establishes a civil penalty for failing to give notice to the Registrar.
Section 130ZY requires the Registrar to give the Treasurer, for presentation to the Parliament, a report for each financial year that includes ‘statistics derived by the Registrar from information in the Register’. The statistics in this report must not identify, or be reasonably capable of being used to identify, a person.
Section 130ZZ allows for the Registrar, by legislative instrument, to determine data standards.
Some changes with regard to low-risk foreign investment will be made through regulation:
exempting certain investments made by entities who are currently classified as ‘Foreign Government Investors’. This exemption will apply only where no foreign government investor has or could be perceived to have influence or control over the investment or operational decisions of the entity or any of its underlying assets;
exempting revenue streams in relation to mining and production tenements; and
exempting acquisitions of interests in land acquired by private investors as a result of obtaining a right in an exploration tenement unless the land is national security land.
Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill
The Scrutiny of Bills Committee (scrutiny committee) considered the fees imposition bill and raised concern that guidance in relation to the method of fee calculation under proposed section 6 should be provided in the primary legislation to allow for greater parliamentary scrutiny.
The scrutiny committee is of the view:
…it is for the Parliament, rather than makers of delegated legislation, to set a rate of tax. Therefore, where a fee is imposed as a tax, the committee considers that guidance in relation to the level of a charge should be included on the face of the primary legislation.
The scrutiny committee welcomed the inclusion in the primary legislation of the cap on the amount of fees that may be charged under the regulations. However, it requested the Treasurer’s advice as to whether guidance in relation to the method of calculation of the fees in proposed section 6, which are imposed as taxes, can be included on the face of the bill.
Foreign Investment Reform (Protecting Australia’s National Security) Bill
The scrutiny committee raised several concerns about the bill, including significant matters left to delegated legislation. The committee highlighted the following delegated legislation concerns:
‘national security business’ and ‘national security land’—the Explanatory Memorandum does not provide an adequate justification for definitions that are integral to the operation and purpose of the bill to be defined in delegated legislation, with particular concern the definitions are of relevance to criminal offences (Item 18, Schedule 1);
exemption certificates—there is insufficient justification for delegated legislation to provide that an action of a specified kind is not a notifiable national security action or reviewable national security action (Item 72, Schedule 1); and
disclosures to Commonwealth ministers and bodies—statements as to administrative flexibility are not sufficient justification for leaving significant matters to delegated legislation, such as the Treasurer being able determine by legislative instrument further laws to which the disclosure provisions apply (Item 204, Schedule 1).
The scrutiny committee also raised concerns about broad delegation of administrative power; broad discretionary power; and privacy. The committee considers that proposed section 79R gives the Treasurer a broad discretionary power to give directions in circumstances where the Treasurer only needs to have ‘reason to believe’ that a contravention has occurred, is occurring or will occur. This is justified on efficiency grounds. The scrutiny committee is of the view a desire to provide a quick and efficient response to remedy a breach (or a potential future breach) of the Act is not a sufficient justification for providing the Treasurer and their delegates such a broad discretionary power. It also raises concerns about potentially sensitive or private information being published online and about the Treasurer’s power to delegate the directions power to a large class of persons.
Further concerns were raised about the adequacy of parliamentary oversight and privacy. These concerns are in relation to section 123B that will allow protected information to be provided to foreign governments, potentially trespassing on personal rights and liberties, including privacy. The concerns are heightened by the lack of parliamentary oversight of any relevant international agreement. The scrutiny committee seeks the minister’s advice on whether minimum protections and safeguards related to privacy that must be in international agreements can be set out in primary legislation, and that the primary legislation specifies the agreements must be tabled in the Parliament.
In relation to the merits review provisions (Item 207, Schedule 1), the committee is of the view the Explanatory Memorandum provides no justification as to why limits have been placed on AAT proceedings that may impact an applicant’s right to a full and independent merits review, including the right to a fair hearing, and also to subsequent judicial review.
The retrospective application of fees for actions not notified (Item 247, Schedule 1) raises concern for the scrutiny committee. The scrutiny committee is of the view there is insufficient detail in the Explanatory Memorandum for the committee to determine whether any persons are likely to be adversely affected.
The scrutiny committee raises further concerns about the broad delegation powers and matters left to delegated legislation with regard to the Registrar, including being able to delegate to a relatively large class of people, powers and functions under Parts 4 and 5 of the Regulatory Powers (Standard Provisions) Act (Item 19, Schedule 2; Item 29, Schedule 2), and under section 130ZX any or all functions and powers, except the power to make a legislative instrument under section 7A (Item 8, Schedule 3). The committee is of the view delegations should be confined and where broad delegations are provided for, the explanation for the necessity should be included in the Explanatory Memorandum. In this instance, the committee states the Explanatory Memorandum does not provide a justification.
Finally, the scrutiny committee highlights significant penalties where maximum terms of imprisonment and monetary penalties have increased from those in relation to the existing offences in the Act. The committee is of the view sufficient information for the imposition of the penalties, particularly those involving imprisonment, is not provided in the Explanatory Memorandum. The committee states, ‘while the Explanatory Memorandum explains that the offences and civil penalty provisions have been framed to ensure consistency in the penalties compared to other regulators, the committee notes that specific examples have not been provided’.
The scrutiny committee is awaiting a response from the Treasurer.
Regulatory and financial impact
Rationale for legislation
The regulatory impact statement (RIS) rationalises the new actions and powers implemented by the bill, including monitoring and compliance powers, largely on national security grounds.
The RIS acknowledges the importance of foreign investment to the Australian economy, but emphasises risks from foreign investment to Australia’s national interest, particularly national security, have increased and will continue to evolve over time. Drawing upon OECD research, the statement attributes these risks to a confluence of developments, including:
technological developments and digitalisation that have turned personal data into a sensitive asset;
a shift in global economic weights that has created new dependencies, interests and threats;
heightened sensitivity over the control of assets that constitute critical infrastructure; and
new and more widely shared concerns, in addition to espionage and sabotage, about diversity of suppliers and access to advanced technology.
The statement argues Australia’s foreign investment framework has a screening gap for low-value private foreign investments that, even in the most sensitive sectors, can occur without any assessment or evaluation.
The framework also requires a ‘credible monitoring and enforcement capability’ to ensure investors comply with foreign investment rules, including conditions placed on investment. The RIS states, ‘over recent years, as the risks from foreign ownership have increased, so too has the use of conditions’.
According to the government, the effective regulation of foreign investment requires also quality, accurate, and current foreign investment data.
Assessment of regulatory impact
The RIS assesses three options for reform in each of the ‘policy packages’: status quo, balanced approach, and a significant increase in the protection of Australia’s assets. The RIS ultimately settles on the ‘balanced approach’.
The regulatory costs estimated for an approach to ‘balance’ each part of the reforms are summarised below.
Table 1.5: Summary of regulatory cost—balanced approach
National security provisions including national security test
Compliance and enforcement powers
Register of foreign ownership of Australian assets
Modernising ICT platform
Source: Explanatory Memorandum
National security test
The introduction of the national security test is expected to result in an average of 161 additional applications each year with a regulatory burden of $5.4 million on investors. The government’s additional resourcing will be approximately $3.4 million and will be recovered from reform to the application fee framework.
Although the number of applications is expected to stay largely the same, the government suggests greater clarity and readability in the legislation will reduce regulatory burden for investors. It is estimated the reforms will reduce the aggregate regulatory burden faced by investors under the foreign investment framework by approximately $775,000 each year.
Compliance and enforcement powers
The government estimates no increased regulatory burden on investors from the expansion of compliance and enforcement powers. The additional powers to monitor compliance and address non-compliance will increase the functions of the Treasurer, Treasury and ATO. The increased resourcing will be approximately $9.3 million per annum over the next ten years and will be recovered from investors through the reform to the fee framework.
The government estimates streamlining will result in 60 fewer foreign investment applications each year, which will reduce the aggregate regulatory burden on investors by approximately $1.9 million.
The government does not expect there to be significant costs to investors for the purposes of the Register and estimates an additional 1,800 events registered by foreign investors each year, in addition to the approximately 13,500 events already registered under existing obligations. The aggregate burden is in addition to the existing $500,000 regulatory cost. The government’s expenditure of approximately $86.3 million over four years for a new ICT platform will be recovered from investors through the application fee framework.
By reducing the complexity of the fee framework, the government estimates the aggregate regulatory cost on investors will be reduced by approximately $650,000 each year. Although there will be higher fees, foreign investors will bear the cost of administering the regime.
Modernising the ICT platform
The new IT system will streamline the submission process and requirements to provide information. The estimated reduction in regulatory burden is approximately $650,000 each year.
The benefits and costs for each of the ‘policy packages’ is summarised below.
Table 1.6: Summary of benefits and costs of regulatory changes
National security provisions
Enables government oversight of actions that could be contrary to national security
New notification requirements for actions that could be contrary to national security; increased workload to process new actions
Expands the range of actions the government will have powers over, without increasing regulatory burden; more efficient and more informed case assessments
Information flows will remain limited to certain purposes
Compliance and enforcement
Additional monitoring, investigative and enforcement powers consistent with other regulators; increased penalty amounts for proportionate penalties
Increased staffing to implement the monitoring, investigative and enforcement powers; associated increased training requirements
Streamlining less sensitive investments
Fewer reporting obligations for lower risk investments
Decrease in regulatory oversight of actions that may be contrary to national interest
Register of foreign ownership of Australian assets
Faster and more robust case processing, with improved compliance monitoring; better data set to aid future policy considerations
Additional regulatory burden; financial cost to government for IT build
No financial cost to Australian taxpayers; fairer and simpler fee framework
Some foreign investors will pay more
Cases handled more quickly and more efficiently, with compliance activities more effectively managed; greatest reduction in regulatory burden
IT build and delivery will require additional government funding
Source: Explanatory Memorandum
Conduct of the inquiry
The committee advertised the inquiry on its website and wrote to relevant stakeholders and interested parties inviting submissions by 10 November 2020. The committee received 17 submissions, which are listed at Appendix 1.
The committee held a public hearing on Wednesday, 18 November 2020. The names of witnesses who appeared at the hearing are at Appendix 2.
The committee thanks all individuals and organisations that contributed to the inquiry.
Hansard references throughout this document relate to the proof Hansard. Please note that the page numbering may differ between the proof and final Hansard.