Foreign Acquisitions and Takeovers Act 1975

PART 5 - OFFENCES AND CIVIL PENALTIES  

Division 4 - Miscellaneous  

Subdivision C - Recovering unpaid penalties  

SECTION 104   CREATION OF CHARGE ON LAND  

104(1)    
This section applies in relation to land if:

(a) a court finds that a person has contravened Division 3 of this Part (civil penalties); and

(b) a pecuniary penalty is imposed on the person in relation to the contravention; and

(c) the person has an interest in Australian land covered by subsection (2) that can be registered on a land register; and

(d) either:

(i) the contravention relates to the acquisition of the interest in the land; or

(ii) the Treasurer makes a declaration under section 105 that this section applies in relation to the land.

Note: Subsection (5) contains an exception to this section (proceeds of crime orders).

Kinds of interests covered by this subsection

104(2)    
The interest in Australian land is either:

(a) an interest under a long term lease; or

(b) any other legal or equitable interest (within the ordinary meaning of the term) in Australian land, except:

(i) an interest under a lease (except a long term lease); or

(ii) an interest under a licence; or

(iii) an interest in a mining or production tenement; or

(iv) an interest in an easement; or

(v) an interest giving a right (known as a profit à prendre) to take something off another person ' s land, or to take something out of the soil of that land; or

(vi) an interest held on trust for another person; or

(vii) an interest of a kind prescribed by the regulations.

Creation of charge

104(3)    
A charge is created on land to which this section applies to secure the payment of the penalty.

104(4)    
The charge is created at the time:

(a) if subparagraph (1)(d)(i) applies - the penalty is imposed; or

(b) if subparagraph (1)(d)(ii) applies - the declaration comes into force.

Exception in relation to proceeds of crime orders

104(5)    
This section does not apply if at the time mentioned in subsection (4):

(a) a restraining order is in force in relation to the land under Part 2-1 of the Proceeds of Crime Act 2002 ; or

(b) a forfeiture order is in force in relation to the land under Part 2-2 of that Act; or

(c) an order (however described) of a kind prescribed by the regulations is in force in relation to the land under a law of the Commonwealth, a State or a Territory.