Foreign Investment Reform (Protecting Australia's National Security) Act 2020 (114 of 2020)

Schedule 1   Main amendments

Part 1   Amendment of the Foreign Acquisitions and Takeovers Act 1975

Foreign Acquisitions and Takeovers Act 1975

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.