Commonwealth: Foreign Investment Reform (Protecting Australia’s National Security) Act 2020 (Cth)

Foreign Investment Reform (Protecting Australia's National Security) Act 2020 No. 114, 2020 Compilation No. 1 Compilation date: 21 September 2021 Registered: 21 September 2021 This compilation only includes an editorial change About this compilation This compilation This is a compilation of the Foreign Investment Reform (Protecting Australia's National Security) Act 2020 that shows the text of the law as amended and in force on 21 September 2021 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules 4 Evaluation of operation of this Act and related legislation 5 Delegation Schedule 1—Main amendments Part 1—Amendment of the Foreign Acquisitions and Takeovers Act 1975 Foreign Acquisitions and Takeovers Act 1975 Part 2—Amendments of other Acts Administrative Appeals Tribunal Act 1975 Security of Critical Infrastructure Act 2018 Taxation Administration Act 1953 Part 3—Application and transitional provisions Division 1—National security reviews and last resort power Division 2—Other amendments Schedule 2—Compliance and enforcement Part 1—Amendments Foreign Acquisitions and Takeovers Act 1975 Part 2—Application provisions Division 1—General Division 2—Application of Regulatory Powers (Standard Provisions) Act 2014 Part 3—Contingent amendments Foreign Acquisitions and Takeovers Act 1975 Schedule 3—Register of Foreign Ownership of Australian Assets Part 1—Amendments Foreign Acquisitions and Takeovers Act 1975 Part 2—Repeals Register of Foreign Ownership of Water or Agricultural Land Act 2015 Part 3—Amendments consequential on repeal Foreign Acquisitions and Takeovers Act 1975 Part 4—Transitional provisions Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnote 5—Editorial changes An Act to amend the law relating to foreign acquisitions and takeovers, and for related purposes 1 Short title This Act is the Foreign Investment Reform (Protecting Australia's National Security) Act 2020. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 5 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 10 December 2020 2. Schedule 1 1 January 2021. 1 January 2021 3. Schedule 2, Parts 1 and 2 At the same time as the provisions covered by table item 2. 1 January 2021 4. Schedule 2, Part 3 The later of: 1 September 2021 (a) immediately after the commencement of the provisions covered by table item 2; and (paragraph (b) applies) (b) immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 5. Schedule 3, Part 1 Immediately after the commencement of the provisions covered by table item 2. 1 January 2021 6. Schedule 3, Parts 2 and 3 A single day to be fixed by Proclamation. 1 July 2023 However, if the provisions do not commence within the period of 4 years beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (F2023N00178) 7. Schedule 3, Part 4 At the same time as the provisions covered by table item 5. 1 January 2021 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 Evaluation of operation of this Act and related legislation (1) The Secretary must conduct an evaluation of the reforms implemented by this Act and the Foreign Acquisitions and Takeovers Fees Imposition Amendment Act 2020 (the foreign investment reform Acts), including: (a) legislative instruments made under the Foreign Acquisitions and Takeovers Act 1975 and the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 to implement the foreign investment reform Acts; and (b) administrative changes made to implement the foreign investment reform Acts. (2) The evaluation must start as soon as practicable, and in any event within 1 month, after this section commences. (3) The Secretary must give the Treasurer a written report of the evaluation before the end of the period of 12 months beginning on the day this section commences. (3) Without limiting subsection (1), the evaluation and report must consider: (a) the impact that the foreign investment reform Acts and their implementation have had on foreign investment in Australia and the broader Australian economy; and (b) whether the right balance is struck between welcoming foreign investment and protecting Australia's national interests. (4) The Treasurer must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Treasurer. (5) The Secretary must publish a copy of the report on the Department's website by no later than the day on which the report is tabled. 5 Delegation (1) The Secretary may, in writing, delegate the Secretary's powers or functions under section 4 to a person engaged under the Public Service Act 1999 who is employed in the Department. Schedule 1—Main amendments Part 1—Amendment of the Foreign Acquisitions and Takeovers Act 1975 Foreign Acquisitions and Takeovers Act 1975 1 Section 3 (paragraph beginning "This Act deals with") After "the action must", insert "in most cases". 2 Section 3 After: This Act deals with certain actions to acquire interests in securities, assets or Australian land, and actions taken in relation to entities (being corporations and unit trusts) and businesses, that have a connection to Australia. These actions are called significant actions. For an action to be a significant action, the action must result in a change in control involving a foreign person or be taken by a foreign person. insert: This Act also deals with actions taken by persons that have, or may have, implications for Australia's national security. These actions may or may not be significant actions. Actions relating to a national security business or national security land are notifiable national security actions. If an action is a reviewable national security action, or a significant action that is not a notifiable action or a notifiable national security action, the Treasurer may review the action if the Treasurer considers that the action may pose a national security concern. 3 Section 3 Omit "has taken a significant action", substitute "has taken an action". 4 Section 3 Omit "Some significant actions (called notifiable actions) must also be", substitute "Significant actions that are notifiable actions, and notifiable national security actions, must generally be". 5 Section 3 Omit "If a notice", substitute "Broadly, if a notice". 6 Section 4 Insert: AAT Act means the Administrative Appeals Tribunal Act 1975. 7 Section 4 (definition of acquire) Repeal the definition, substitute: acquire an interest of a specified percentage: (a) in a business—has the meaning given by section 19A; and (b) in an entity—has the meaning given by section 20. 8 Section 4 Insert: business includes any activity carried on by: (a) the Commonwealth, a State, a Territory or a local governing body; or (b) a body corporate established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or (c) an entity wholly owned by the Commonwealth, a State, a Territory, a local governing body or a body corporate covered by paragraph (b). 9 Section 4 (definition of Commonwealth entity) Repeal the definition. 10 Section 4 (definition of constituent document) Repeal the definition, substitute: constituent document of an entity or unincorporated limited partnership means any rules or other document constituting or establishing the entity or partnership or governing its activities, and includes: (a) for a corporation—the constitution of the corporation; and (b) for a unit trust—the trust deed for the trust; and (c) for an unincorporated limited partnership—the partnership agreement. 11 Section 4 Insert: core Part 3 action means any of the following: (a) a significant action (other than an action mentioned in paragraph (b)); (b) any of the following actions: (i) a notifiable national security action that is not a significant action; (ii) an action in respect of which the Treasurer has given notice under subsection 66A(4); (iii) a reviewable national security action that is notified to the Treasurer. 12 Section 4 (definition of decision period) Omit "77(5)", substitute "77(8)". 13 Section 4 (definition of general meeting) Repeal the definition, substitute: general meeting of an entity or unincorporated limited partnership means: (a) for a corporation—a general meeting of the corporation; or (b) for a unit trust—a meeting of unit holders of the trust that is held in accordance with a constituent document of the trust; or (c) for an unincorporated limited partnership—a meeting of partners of the partnership that is held in accordance with a constituent document of the partnership. 14 Section 4 Insert: general partner means a partner of a limited partnership whose liability relating to the partnership is not limited. head has the same meaning as in the Office of National Intelligence Act 2018. 15 Section 4 (after paragraph (c) of the definition of interest) Insert: (ca) in an unincorporated limited partnership—has the meaning given by section 11A; and 16 Section 4 (after paragraph (d) of the definition of interest) Insert: (da) in a business—has the meaning given by section 16A; and 17 Section 4 (after paragraph (e) of the definition of interest) Insert: ; and (f) of a specified percentage in an unincorporated limited partnership—has the meaning given by subsection 17(2A). 18 Section 4 Insert: limited partner means a partner of a limited partnership whose liability relating to the partnership is limited. limited partnership means an association of persons that: (a) was formed solely for the purposes of becoming a partnership where the liability of at least one partner relating to the partnership is limited; and (b) is recognised under a law of the Commonwealth, a State, a Territory, a foreign country or a part of a foreign country as such a partnership. national intelligence community has the same meaning as in the Office of National Intelligence Act 2018. national security business has the meaning prescribed by the regulations. national security land has the meaning prescribed by the regulations. 19 Section 4 (definition of no objection notification) Repeal the definition, substitute: no objection notification means: (a) a written notification given under subsection 74(2) and includes such a notification as varied under section 74, 76 or 79G; or (b) a written notification given under subsection 75(2) and includes such a notification as varied under section 76 or 79G. 20 Section 4 Insert: notice imposing conditions means a written notice given under subsection 79H(1) and includes such a notice as varied under section 79J, 79P or 79Q. notifiable national security action has the meaning given by section 55B. reviewable decision means a decision of the Treasurer under Division 3 of Part 3 that a national security risk exists in relation to an action. reviewable national security action has the meaning given by Division 4B of Part 2. starts a national security business has the meaning given by section 8A. starts an Australian business has the meaning given by section 8B. 21 Section 4 (definition of substantial interest) Omit "entity or trust", substitute "entity, trust or unincorporated limited partnership". 22 Section 4 (paragraph (a) of the definition of substantial interest) Repeal the paragraph, substitute: (a) for an entity or unincorporated limited partnership—the person holds an interest of at least 20% in the entity or partnership; or 23 Section 4 (note 1 to the definition of substantial interest) After "entity", insert "or unincorporated limited partnership". 24 Section 4 Insert: Tribunal means the Administrative Appeals Tribunal. 25 At the end of subsection 6(3) Add: ; or (h) both of the following apply: (i) both are partners of a limited partnership; (ii) at least one of them is a limited partner that is not in a position (whether alone or together with one or more persons who are, or would apart from this paragraph be, that partner's associates) to participate in the management and control of the partnership, or of any of the general partners of the partnership, in relation to any matter. 26 At the end of section 8 Add: (3) Without limiting subsection (1), a business is taken to be an Australian business for the purposes of this Act if: (a) the business is carried on wholly or partly in Australia, whether or not in anticipation of profit or gain, by: (i) the Commonwealth, a State, a Territory or a local governing body; or (ii) a body corporate established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or (iii) an entity wholly owned by the Commonwealth, a State, a Territory, a local governing body or a body corporate covered by subparagraph (ii); and (b) the business would, or could, be carried on in anticipation of profit or gain if it were carried on by someone other than: (i) a body referred to in subparagraph (a)(i) or (ii); or (ii) an entity referred to in subparagraph (a)(iii); or (iii) a foreign government; or (iv) a separate government entity. 27 After section 8 Insert: 8A Meaning of starts a national security business (1) A foreign person starts a national security business if the foreign person starts to carry on a national security business. (2) Despite subsection (1), if a foreign person carries on a national security business, the person does not start a national security business merely because the foreign person, alone or together with one or more persons, establishes a new entity: (a) that carries on the same national security business; or (b) for the purposes of acquiring interests in assets of the same national security business. 8B Meaning of starts an Australian business (1) A foreign person starts an Australian business if: (a) the foreign person starts to carry on an Australian business; or (b) for a foreign person who already carries on an Australian business—the business starts a new activity that: (i) is not incidental to an existing activity of the Australian business; and (ii) is within a different Division under the Australian and New Zealand Standard Industrial Classification Codes from the current activities of the Australian business. (2) Despite subsection (1), if a foreign person carries on an Australian business, the person does not start an Australian business merely because the foreign person, alone or together with one or more persons, establishes a new entity: (a) that carries on the same Australian business; or (b) for the purposes of acquiring interests in assets of the same Australian business. 28 Subsection 9(1) (note 2) Omit "and trusts", substitute ", trusts and unincorporated limited partnerships". 29 At the end of section 9 Add: Buying‑back securities (6) The buying‑back of a security in an entity by the entity does not constitute an acquisition by the entity of an interest in a security in the entity. 30 Sections 10 and 11 (note 2) Omit "and trusts", substitute ", trusts and unincorporated limited partnerships". 31 After section 11 Insert: 11A Meaning of interest in an unincorporated limited partnership A person holds an interest in an unincorporated limited partnership if the person: (a) is in a position to control all or any of the voting power or potential voting power in the partnership; or (b) is entitled to any or all of the distributions of capital, assets or profits of the partnership on the dissolution of the partnership; or (c) is entitled to any or all of the distributions of capital, assets or profits of the partnership otherwise than on the dissolution of the partnership. Note: See also section 19 (tracing of substantial interests in corporations, trusts and unincorporated limited partnerships). 32 Paragraph 15(4)(a) Repeal the paragraph, substitute: (a) Part 4 (notices required for notifiable actions and notifiable national security actions, and may be given of other actions); 33 Subsection 15(5) (note) Repeal the note, substitute: Note: As a result of this subsection, the person acquires or sells the interest only when the provisions become binding. If the provisions do not become binding until one or more conditions are met, and one of those conditions is met only when the Treasurer has given an exemption certificate or no objection notification, then the person does not acquire or sell the interest before the Treasurer has given an exemption certificate or no objection notification. 34 After section 16 Insert: 16A Meaning of interest of a specified percentage in a business A person holds an interest of a specified percentage in a business if the value of the interests in assets of the business held by the person, alone or together with one or more associates of the person, is that specified percentage of the value of the total assets of the business. Note 1: See also paragraph (a) of the definition of acquire. Note 2: A percentage may be specified by referring to: (a) "20%"; or (b) "any percentage"; or (c) a "direct interest"; or (d) a percentage that a person holds in other assets. 35 Section 17 (at the end of the heading) Add "or unincorporated limited partnership". 36 After subsection 17(2) Insert: Meaning of interest of a specified percentage in an unincorporated limited partnership (2A) A person holds an interest of a specified percentage in an unincorporated limited partnership if the person, alone or together with one or more associates of the person: (a) is in a position to control at least that percentage of the voting power or potential voting power in the partnership; or (b) is entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership on the dissolution of the partnership; or (c) is entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership otherwise than on the dissolution of the partnership. 37 Subsection 17(3) After "entity", insert "or unincorporated limited partnership". 38 After section 18 Insert: 18A Increasing percentage of interests without acquiring additional interests in securities Effect of increase—person is taken to take an action of acquiring an interest in securities (1) A person is taken to take an action of acquiring an interest in securities in an entity if: (a) the person holds an interest of a particular percentage in the entity; and (b) the percentage interest that the person holds increases without the person acquiring interests in securities in the entity. Note: The combined effect of this subsection and other provisions of this Act may be that the person takes: (a) a significant action because of paragraph 40(2)(a) or (b) or 43(a) or section 44; or (b) a notifiable action because of paragraph 47(2)(a), (b) or (c) or section 48; or (c) a notifiable national security action because of paragraph 55B(1)(c) or (d); or (d) a reviewable national security action because of paragraph 55D(1)(a) or 55F(a). Effect of potential increase—person is taken to propose to take an action of acquiring an interest in securities (2) A person is taken to propose to take an action of acquiring an interest in securities in an entity if: (a) the person holds an interest of a particular percentage in the entity; and (b) there are reasonable grounds to believe that the percentage interest that the person holds may increase without the person acquiring interests in securities in the entity. (3) Paragraph (2)(b) applies whether or not any person actually has the belief mentioned in that paragraph. Modification of this Act (4) The following table has effect: Increasing percentage of interests without acquiring additional interests in securities—modification of this Act Item The following provisions of this Act … apply in relation to an action or proposed action that is taken to occur because of subsection (1) or (2) of this section as if … 1 subsection 20(1) (meaning of acquire an interest of a specified percentage in an entity) subsection 20(1) provided that the taking of the action resulted in the person acquiring an interest in the entity of the percentage that the person holds immediately after the action is taken. 2 paragraphs 47(2)(a) and (b) (meaning of notifiable action) those paragraphs only applied where the foreign person did not hold a direct interest or substantial interest (as the case requires) in the entity immediately before the action is taken. 3 item 1 of the table in section 51 (threshold test—acquiring a direct interest in an Australian entity that is an agribusiness) the value mentioned in column 2 of that item were the total value, immediately after the action is taken, of all interests held by the person, alone or together with one or more associates: (a) in the entity; or (b) previously acquired from the entity. 4 paragraph 55B(1)(c) (meaning of notifiable national security action) that paragraph only applied where the foreign person did not hold a direct interest in the entity immediately before the action is taken. 5 subsections 67(2) and 69(2) (orders) subsections 67(2) and 69(2) authorised the Treasurer to make (subject to subsection (5) of this section) an order directing the person to do within a specified period, or refrain from doing, specified acts or acts of a specified kind, and no other kind of order. 6 subsection 69(5) (extension of periods specified in certain disposal orders) subsection 69(5) applied in relation to an order made under subsection 67(2) or 69(2), as those subsections apply because of item 5 of this table. 7 section 77 (time limit on making orders and decisions) subsection 77(3) were omitted and column 2 of item 1 of the table in subsection 77(6) referred to the following events: (a) the Treasurer receives a notice from a person stating that the action is proposed to be taken, before the action is taken; (b) the Treasurer receives a notice from a person, stating that the action has been taken, before the end of 30 days after the action is taken. 8 subsections 79D(2) and 79E(2) (orders—last resort powers) subsections 79D(2) and 79E(2) authorised the Treasurer to make (subject to subsection (5) of this section) an order directing the person to do within a specified period, or refrain from doing, specified acts or acts of a specified kind, and no other kind of order. 9 subsection 79E(4) (extension of periods specified in certain disposal orders made in exercise of last resort powers) subsection 79E(4) applied in relation to an order made under subsection 79D(2) or 79E(2), as those subsections apply because of item 8 of this table. 10 items 1 and 2 of the table in subsection 101AA(3) (threshold for distinction between tier 2 infringement notices and tier 3 infringement notices) the value for the action mentioned in the relevant item were the total value, immediately after the action is taken, of all interests held by the person, alone or together with one or more associates: (a) in the entity; or (b) previously acquired from the entity. 11 (a) section 15 (interests acquired by entering agreements or acquiring options); those provisions were omitted. (b) section 68 (interim orders); (c) subparagraph 74(1)(c)(iii) (no objection notification imposing conditions); (d) paragraph 79A(3)(b) and subsection 79A(4) (notice of national security review prohibits taking of action until review completed); (e) section 85A (offence for taking action while prohibited by this Act); (f) section 92A (civil penalty for taking action while prohibited by this Act) Purpose for which orders may be made (5) An order may be made under subsection 67(2), 69(2), 79D(2) or 79E(2) as those subsections apply because of the table in subsection (4) of this section, only for the purpose of restoring the percentage of interests that the person holds in the entity as nearly as possible to the percentage interest that the person held immediately before it increased. Further modifications (6) This Act also applies in relation to an action or proposed action that is taken to occur because of subsection (1) or (2) of this section with the modifications prescribed by the regulations. 39 Section 19 (heading) Omit "and trusts", substitute ", trusts and unincorporated limited partnerships". 40 Subsections 19(1) and (2) Repeal the subsections, substitute: Tracing—general (1) Subsection (2) applies (subject to subsection (3)) if: (a) a person holds a substantial interest in: (i) a corporation (the higher party); or (ii) a trust (a trustee of which is a higher party); or (iii) an unincorporated limited partnership (a general partner of which is a higher party); including because of one or more applications of this section; and (b) the higher party: (i) is in a position to control all or any of the voting power or potential voting power in a corporation or unincorporated limited partnership (the lower party); or (ii) holds interests in all or any of the shares in a corporation (the lower party); or (iii) holds an interest in a trust or unincorporated limited partnership (the lower party), other than the partnership mentioned in subparagraph (a)(iii) (if that subparagraph applies). (2) For the purposes of this Act: (a) if subparagraph (1)(b)(i) applies—the person is taken to be in a position to control the voting power or potential voting power in the lower party that the higher party is in a position to control; or (b) if subparagraph (1)(b)(ii) applies—the person is taken to hold the interests in the shares in the lower party that the higher party holds; or (c) if subparagraph (1)(b)(iii) applies—the person is taken to hold the interest in the lower party that the higher party holds. Tracing—effect of intermediate unincorporated limited partnerships (2A) Subsection (2B) applies (subject to subsection (3)) if: (a) a person holds a substantial interest in an unincorporated limited partnership (the higher partnership); and (b) there are one or more unincorporated limited partnerships (each of which is an intermediate partnership in relation to the higher partnership) that are general partners of: (i) the higher partnership; or (ii) another intermediate partnership in relation to the higher partnership (because of one or more applications of this paragraph); and (c) a general partner (the intermediate partner) of any of those intermediate partnerships: (i) is in a position to control all or any of the voting power or potential voting power in a corporation or another unincorporated limited partnership (the lower party), including because of the operation of paragraph (2)(a); or (ii) holds interests in the shares of a corporation (the lower party), including because of the operation of paragraph (2)(b); or (iii) holds an interest in a trust or another unincorporated limited partnership (the lower party), including because of the operation of paragraph (2)(c). (2B) For the purposes of this Act: (a) if subparagraph (2A)(c)(i) applies—the person is taken to be in a position to control the voting power or potential voting power in the lower party that the intermediate partner is in a position to control; or (b) if subparagraph (2A)(c)(ii) applies—the person is taken to hold the interests in the shares in the lower party that the intermediate partner holds; or (c) if subparagraph (2A)(c)(iii) applies—the person is taken to hold the interest in the lower party that the intermediate partner holds. Section does not apply for certain purposes 41 After section 19 Insert: 19A Meaning of acquire an interest of a specified percentage in a business (1) A person acquires an interest of a specified percentage in a business if the person: (a) starts to hold an interest of that percentage in the business; or (b) would start to hold an interest of that percentage in the business on the assumption that the person held interests in assets of the business that are interests that the person has offered to acquire; or (c) for a person who already holds an interest of that percentage in the business: (i) starts to hold additional interests in assets of the business; or (ii) would start to hold additional interests in assets of the business if interests in assets of the business were transferred as the result of the exercise of rights of a kind mentioned in paragraph 15(1)(b) or (c). Note: A percentage may be specified by referring to: (a) "20%"; or (b) "any percentage"; or (c) a "substantial interest" or a "direct interest"; or (d) a percentage that a person holds in another entity. (2) For the purposes of subsection (1), a reference to a person offering to acquire interests in assets of a business includes a reference to a person making or publishing a statement (however expressed) that expressly or impliedly invites a holder of interests in assets to offer to dispose of interests in assets. 42 Subsection 21(1) (note) Omit "or trusts", substitute ", trusts or unincorporated limited partnerships". 43 Subsection 22(1) After "an entity", insert "or unincorporated limited partnership". 44 Subsection 22(1) After "the entity", insert "or partnership". 45 Subsection 22(2) After "an entity" (first occurring), insert "or unincorporated limited partnership". 46 Subsection 22(2) After "the entity" (wherever occurring), insert "or partnership". 47 Subsection 22(3) After "an entity", insert "or unincorporated limited partnership". 48 Paragraph 22(3)(a) After "the entity", insert "or partnership". 49 Subsection 22(4) After "an entity", insert "or unincorporated limited partnership". 50 Subsection 22(4) After "the entity", insert "or partnership". 51 Section 23 After "an entity", insert "or unincorporated limited partnership". 52 Section 29 (heading) Omit "and entities", substitute ", entities and unincorporated limited partnerships". 53 Paragraph 29(b) After "corporations", insert "and unincorporated limited partnerships". 54 Subsection 37(5) Omit "paragraph (4)(a)", substitute "subsection (4)". 55 Part 2 (heading) Repeal the heading, substitute: Part 2—Actions to which this Act applies 56 Section 38 Repeal the section, substitute: 38 Simplified outline This Part defines the concepts of significant action, notifiable action, notifiable national security action and reviewable national security action. The Treasurer has powers under Part 3 in respect of these kinds of actions. 57 Section 39 (paragraph beginning "Broadly") After "the action must", insert "in most cases". 58 At the end of section 40 Add: (7) However, the last condition in subsection (6) is not required to be met if: (a) paragraph (2)(b) applies and the action is or is to be taken by a foreign person who controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken; or (b) paragraph (2)(c) applies and a foreign person controls the entity (whether alone or together with one or more associates) immediately before the action is or is to be taken. 59 At the end of section 41 Add: (6) However, the third condition in subsection (5) is not required to be met if: (a) paragraph (2)(b) applies; and (b) the action is or is to be taken by a foreign person who controls the business (whether alone or together with one or more associates) immediately before the action is or is to be taken. 60 Section 46 (paragraph beginning "A notifiable action") Omit "a proposed", substitute "an". 61 Section 46 (paragraph beginning "Unlike") Omit "Unlike for a significant action, there", substitute "There". 62 Paragraph 47(2)(a) Repeal the paragraph, substitute: (a) to acquire a direct interest in: (i) an Australian entity that is an agribusiness; or (ii) an Australian business that is an agribusiness; 63 Subsection 47(4) Omit "paragraph (2)(a) or (b)", substitute "subparagraph (2)(a)(i) or paragraph (b)". 64 Section 50 (paragraph beginning "Two important tests") After "whether there has been a change in control.", insert "The threshold test is also important in determining whether an action is a notifiable action.". 65 Section 50 (paragraph beginning "One or more persons") Omit "One or more persons who hold a substantial interest or an aggregate substantial interest in an entity are taken to control the entity.", substitute "A person who holds a substantial interest in an entity is taken to control the entity.". 66 Section 51 Omit "a significant", substitute "an". 67 Section 51 (table, heading to column 1) Omit "Significant action", substitute "Kind of action". 68 Section 51 (after table item 2) Insert: 2A Acquiring a substantial interest in an Australian entity The higher of the following: (a) the total asset value for the entity; (b) the total issued securities value for the entity 69 Subsection 53(1) Repeal the subsection (not including the heading), substitute: (1) If: (a) an action relating to an entity, business or land is covered by an agreement; and (b) the threshold test is met in relation to the action and the entity, business or land; the threshold test is met for the action even if the test is not met for another action covered by the agreement (whether or not relating to the same entity, business or land). 70 Subsection 53(2) Omit "threshold test is met" (first occurring), substitute "threshold test is met". 71 Paragraph 54(4)(b) Repeal the paragraph, substitute: (b) without limiting paragraph (a), in relation to the acquisition of interests in securities in an entity or an issue of securities in an entity—the person holds a substantial interest in the entity. 72 After section 55 Insert: Division 4A—Meaning of notifiable national security action Subdivision A—Simplified outline 55A Simplified outline This Division defines the concept of a notifiable national security action. Subdivision B—Meaning of notifiable national security 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 following: (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 security business; (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. (2) For the purposes of paragraph (1)(e), a person acquires a legal or equitable interest in an exploration tenement even if: (a) the person has previously acquired an interest in an exploration tenement; or (b) the interest is an increase in the amount of an existing interest of the person in an exploration tenement. (3) The regulations may provide, in relation to exemption certificates in force under regulations made for the purposes of section 63, that an action of a specified kind is not a notifiable national security action. Division 4B—Meaning of reviewable national security action Subdivision A—Simplified outline 55C Simplified outline This Division defines the concept of a reviewable national security action. The Treasurer may review an action of this kind under Part 3, as well as a significant action that is not a notifiable action or notifiable national security action, if the Treasurer considers that the action may pose a national security concern. Subdivision B—Meaning of reviewable national security action 55D Meaning of reviewable national security action—entities Meanings (1) An action is a reviewable national security action if: (a) the action is taken, or proposed to be taken, by a person and the action is to acquire an interest of any percentage in an entity; and (b) as a result of the action or proposed action: (i) a foreign person acquires, or will acquire, a direct interest in the entity and that acquisition, or proposed acquisition, is not a significant action, notifiable action or notifiable national security action; or (ii) a foreign person will be in a position, or more of a position, to influence or participate in the central management and control of the entity; or (iii) a foreign person will be in a position, or more of a position, to influence, participate in or determine the policy of the entity; and (c) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action. Note: For the definition of entity, see subsection (3). (2) An action is also a reviewable national security action if: (a) the action is taken, or proposed to be taken, by a person and the action is: (i) to issue securities in an entity; or (ii) to enter an agreement relating to the affairs of an entity and under which 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 in the entity; or (iii) to alter a constituent document of an entity as a result of which 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 in the entity; and (b) in the case to which subparagraph (a)(i) applies—as a result of the action or proposed action: (i) a foreign person acquires, or will acquire, a direct interest in the entity and that acquisition, or proposed acquisition, is not a significant action, notifiable action or notifiable national security action; or (ii) a foreign person will be in a position, or more of a position, to influence or participate in the central management and control of the entity; or (iii) a foreign person will be in a position, or more of a position, to influence, participate in or determine the policy of the entity; and (c) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action. Note: For the definition of entity, see subsection (4). Definitions of entity (3) For the purposes of subsection (1), the entity must be: (a) for an acquisition of interests in shares: (i) a corporation that carries on an Australian business, whether alone or together with one or more other persons; or (ii) the holding entity of such a corporation; or (b) for any other action relating to a corporation: (i) an Australian corporation that carries on an Australian business, whether alone or together with one or more other persons; or (ii) the holding entity (other than a foreign corporation) of such a corporation; or (c) for an action relating to a unit trust: (i) an Australian unit trust; or (ii) a holding entity of an Australian unit trust. (4) For the purposes of subsection (2), the entity must be: (a) for an acquisition of interests in shares or an issue of shares: (i) a corporation that is a relevant entity that carries on an Australian business, whether alone or together with one or more other persons; or (ii) the holding entity of such a corporation; or (b) for any other action relating to a corporation: (i) an Australian corporation that carries on an Australian business, whether alone or together with one or more other persons; or (ii) the holding entity (other than a foreign corporation) of such a corporation; or (c) for an action relating to a unit trust: (i) an Australian unit trust; or (ii) a holding entity of an Australian unit trust. 55E Meaning of reviewable national security action—businesses (1) An action is a reviewable national security action if: (a) the action is taken, or proposed to be taken, by a person and the action is any of the following: (i) to acquire an interest of any percentage in an Australian business; (ii) to acquire an interest in the assets of an Australian business; (iii) to enter or terminate a significant agreement with an Australian business; and (b) as a result of the action or proposed action: (i) a foreign person acquires, or will acquire, a direct interest in the Australian business and that acquisition, or proposed acquisition, is not a significant action, notifiable action or notifiable national security action; or (ii) a foreign person will be in a position, or more of a position, to influence or participate in the central management and control of the Australian business; or (iii) a foreign person will be in a position, or more of a position, to influence, participate in or determine the policy of the Australian business; and (c) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action. (2) An action is also a reviewable national security action if: (a) the action is taken, or proposed to be taken, by a foreign person and the action is to start an Australian business; and (b) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action. 55F Meaning of reviewable national security action—land An action is a reviewable national security action if: (a) the action is taken, or proposed to be taken, by a foreign person and the action is to acquire an interest in Australian land; and (b) the action is or was not otherwise a significant action, a notifiable action or a notifiable national security action. 55G Actions that are not reviewable national security actions—exemption certificates The regulations may provide, in relation to exemption certificates in force under regulations made for the purposes of section 63, that an action of a specified kind is not a reviewable national security action. 73 Section 56 Omit: An exemption certificate is a certificate given by the Treasurer that specifies an interest or an interest of a kind that, if acquired by a foreign person, does not give rise to a significant action or a notifiable action. The certificate may also specify conditions that are required to be complied with in order for an acquisition of the interest not to be a significant action or notifiable action. 74 Subsection 60(2) Repeal the subsection, substitute: (2) An exemption certificate may: (a) in respect of a certificate taken to be given under section 57, 58 or 59—deal with the interests or kinds of interests to which the certificate relates; or (b) in respect of a certificate taken to be given under the regulations—deal with the interest or kinds of interests, or the action or kinds of actions, to which the certificate relates. 75 Paragraph 61(4)(b) Repeal the paragraph, substitute: (b) in respect of a certificate taken to be given under section 57, 58 or 59—the interests or kinds of interests to which the certificate relates; and (ba) in respect of a certificate taken to be given under the regulations—the interest or kinds of interests, or the action or kinds of actions, to which the certificate relates; and 76 Section 62 (heading) Repeal the heading, substitute: 62 Variation or revocation of exemption certificates—general 77 Subsection 62(1) Repeal the subsection, substitute: (1) If, in giving an exemption certificate to a person, the Treasurer was satisfied that the relevant acquisition or action was not contrary to the national interest, the Treasurer may vary or revoke the certificate if the Treasurer is satisfied that the variation or revocation is not contrary to the national interest. (1A) If, in giving an exemption certificate to a person, the Treasurer was satisfied that the relevant action was not contrary to national security, the Treasurer may vary or revoke the certificate if the Treasurer is satisfied that the variation or revocation is not contrary to national security. 78 Subsection 62(3) Omit "Subdivision", substitute "Division". 79 After section 62 Insert: 62A Variation or revocation of exemption certificates—false or misleading information or documents (1) The Treasurer may give a notice under subsection (2) if the Treasurer reasonably believes that before an exemption certificate was given the person to whom the certificate relates gave the Treasurer information that was or documents that were: (a) relevant to the exemption certificate; and (b) false or misleading in a material particular. (2) The Treasurer may give the person a notice, in writing, that the Treasurer is considering varying or revoking the exemption certificate because the Treasurer has the reasonable belief mentioned in subsection (1). (3) The Treasurer may vary or revoke an exemption certificate relating to a person if: (a) the Treasurer is satisfied that before the exemption certificate was given the person gave the Treasurer information that was or documents that were: (i) relevant to the exemption certificate; and (ii) false or misleading in a material particular; and (b) the Treasurer has given the person a notice under subsection (1) in respect of the exemption certificate; and (c) the variation or revocation is made no later than 120 days after the day on which the Treasurer gave the person that notice. Note: Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to a power under this Division to give an exemption certificate (see subsection 62(3)). (4) To avoid doubt, for the purposes of this section, information or documents may be false or misleading in a material particular because of the omission of a matter or thing. (5) The Treasurer must notify the person, in writing, of the variation or revocation before the end of 10 days after the revocation is made. (6) This section does not limit the circumstances in which the Treasurer may vary or revoke an exemption certificate. (7) This section applies to an exemption certificate that is taken to be given under section 61. 62B Effect of revocation or variation of exemption certificate (1) This section applies if: (a) an exemption certificate relates to an action; and (b) either: (i) the exemption certificate is revoked under section 62 or 62A; or (ii) the exemption certificate is varied under section 62 or 62A, and as a result of the variation the exemption certificate no longer relates to the action. (2) Despite sections 45 and 49, subsection 55B(3) and section 55G, the operation of those sections and subsections in relation to the exemption certificate do no prevent the action, from the time mentioned in subsection (3), from being any of the following: (a) a significant action; (b) a notifiable action; (c) a notifiable national security action; (d) a reviewable national security action. (3) The time is: (a) if the revocation or variation specifies a time when it comes into effect—that time; or (b) otherwise—the time when the revocation or variation is made. (4) Subsection (5) applies if: (a) at the time the action was taken: (i) it was not a core Part 3 action; or (ii) it was not contrary to the national interest or to national security; and (b) as a result of the operation of subsection (2), the action becomes a core Part 3 action at the time mentioned in subsection (3). (5) To avoid doubt, the Treasurer may make an order under section 69 (disposal orders) in relation to the action despite the fact that, at the time the action was taken: (a) it was not a core Part 3 action; or (b) it was not contrary to the national interest or to national security. 80 Section 63 (note) Repeal the note, substitute: Note: The regulations may provide, in relation to exemption certificates in force under regulations made for the purposes of this section, that an action of a specified kind is not: (a) a significant action (see subsection 45(3)); or (b) a notifiable action (see subsection 49(2)); or (c) a notifiable national security action (see subsection 55B(3)); or (d) a reviewable national security action (see section 55G)). 81 Paragraph 65(1)(c) Repeal the paragraph, substitute: (c) the target is not: (i) an Australian entity; or (ii) an entity carrying on an Australian business; or (iii) an entity carrying on a national security business; or (iv) the holding entity of an entity mentioned in subparagraph (ii) or (iii); as is required for the action to be a significant action, notifiable action, notifiable national security action or reviewable national security action; and 82 Paragraph 65(1)(d) Omit "or (iii)", substitute ", (iii) or (iv)". 83 Section 66 Repeal the section, substitute: 66 Simplified outline of this Part This Part deals with the powers that the Treasurer has if an action is proposed to be taken or has been taken. The Treasurer may review actions in the circumstances set out in Division 1A. Such actions are reviewable national security actions, and significant actions that are not notifiable actions or notifiable national security actions. The Treasurer may make orders and decisions of a kind mentioned below in relation to any actions so reviewed. If an action is proposed to be taken, the Treasurer may prohibit the action. The Treasurer may make an interim order before deciding whether to make an order prohibiting an action. If an action has been taken, the Treasurer may order that the action be undone (for example, by requiring an acquisition to be disposed of). Instead of making an order, the Treasurer may give a notification (called a no objection notification) stating that the Commonwealth does not object to an action. The Treasurer may impose conditions on an action. If the Treasurer is given a notice that an action is proposed to be taken or reviews an action under Division 1A, the Treasurer must make a decision under this Part within a certain period, although the period may be extended. A person must not take the action during this period unless the person is given a no objection notification. The Treasurer also has last resort powers to deal with national security risks arising in relation to an action. If the Treasurer is permitted to review the action, the Treasurer may make orders to eliminate or reduce any such risks. Division 1A—Review of reviewable national security actions 66A National security review of actions Review allowed if action may pose a national security concern (1) Subject to subsection (5), the Treasurer may review: (a) a reviewable national security action; or (b) a significant action that is not a notifiable action or notifiable national security action; if the Treasurer considers that the action may pose a national security concern. Note 1: See also section 77 (time limit on making orders and decisions) and Parts 5 (offences and civil penalties) and 6 (fees). Note 2: In reviewing the reviewable national security action, the Treasurer may seek information: see section 133. When review may begin (2) The Treasurer may only start a review of an action that has been taken within the time prescribed by the regulations. (3) For the purposes of subsection (2), the following provisions are to be disregarded: (a) paragraphs 15(1)(b) and (c); (b) paragraphs 17(1)(c) and (2)(c); (c) subparagraphs 19A(1)(c)(ii) and 20(1)(c)(iii). Notice of review (4) If the Treasurer reviews an action mentioned in subsection (1), the Treasurer must give written notice to the person who has taken, or who proposes to take, the action, of the review. Actions not reviewable in certain circumstances (5) The Treasurer may not review an action under this section if, at the time a review would otherwise start, any of the following apply: (a) the action has been notified to the Treasurer; (b) a person was given a no objection notification in relation to the action; (c) the action or the kind of action is specified in an exemption certificate that is in force under Division 5 of Part 2 or the regulations; (d) the action has been taken and, at the time it was taken, the action or the kind of action was specified in an exemption certificate in force under Division 5 of Part 2 or the regulations; (e) an order or decision under Division 2 or 3 of this Part has been made by the Treasurer in relation to the action. 84 Division 2 of Part 3 (heading) Repeal the heading, substitute: Division 2—Orders relating to actions that are, or whose result would be, contrary to national security or the national interest 85 Section 67 (heading) Omit "significant". 86 Paragraph 67(1)(a) After "significant action", insert "(other than a significant action covered by subparagraph (1A)(a)(ii))". 87 After subsection 67(1) Insert: (1A) The Treasurer may, by notifiable instrument, make an order under subsection (2) if the Treasurer is satisfied that: (a) an action of any of the following kinds is proposed to be taken: (i) a notifiable national security action that is not a significant action; (ii) an action in respect of which the Treasurer has given a notice under subsection 66A(4); (iii) a reviewable national security action notified to the Treasurer; and (b) taking the action would be contrary to national security. Note: See also section 77 (time limit on making orders and decisions) and Parts 5 (offences and civil penalties) and 6 (fees). 88 Subsection 67(2) (table heading) Omit "significant". 89 Subsection 67(2) (table, heading to column headed "If the significant action is …") Omit "significant". 90 Subsection 67(2) (cell at table item 1, column headed "If the significant action is …") Repeal the cell, substitute: to acquire: (a) a direct interest in an entity or Australian business; or (b) a direct interest in an Australian entity, or an Australian business, that is an agribusiness; or (c) an interest in securities in an entity; or (d) an interest of any percentage in an entity or an Australian business; or (e) an interest in assets of an Australian business; or (f) a direct interest in a national security business; or (g) a legal or equitable interest in an exploration tenement, and that action is to be taken by a foreign person who is not a foreign government investor 91 Subsection 67(2) (cell at table item 3, column headed "If the significant action is …") Repeal the cell, substitute: to enter an agreement mentioned in paragraph 40(2)(d) or subparagraph 55D(2)(a)(ii) 92 Subsection 67(2) (cell at table item 4, column headed "If the significant action is …") Repeal the cell, substitute: to alter a constituent document of an entity as mentioned in paragraph 40(2)(e) or subparagraph 55D(2)(a)(iii) 93 Subsection 67(2) (table item 5) Repeal the item, substitute: 5 to start an Australian business, and that action is to be taken by a foreign person who is not a foreign government investor the starting of the whole or a part of the Australian business. 5A to start a national security business the starting of the whole or a part of the national security business. 94 Subsection 67(3) (table, heading to column "If the significant action is …") Omit "significant". 95 Subsection 67(3) (cell at table item 1, column headed "If the significant action is …") Repeal the cell, substitute: to acquire: (a) a direct interest in an entity; or (b) a direct interest in an Australian entity that is an agribusiness; or (c) an interest of any percentage in an entity; or (d) an interest in securities in an entity 96 Subsection 67(3) (table item 2) Repeal the item, substitute: 2 to acquire: