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

207   At the end of Part 7

Add:

Division 4 - Review of decisions

130A AAT review of decisions

(1) An application may be made to the Tribunal for review of a decision of the Treasurer under section 79A that a national security risk exists in relation to an action.

(2) The application may be made by, or on behalf of, a person who has been given a notice by the Treasurer under subsection 79B(1) that such a national security risk exists.

(3) At any time after the Tribunal has given its findings in relation to the review to the applicant, the applicant may apply for a review of the Tribunal's findings on the ground that the applicant has fresh evidence of material significance that was not available at the time of the previous review.

(4) If the Tribunal is satisfied that an application under subsection (3) is justified, the Tribunal may review its previous findings and:

(a) this Act; and

(b) the AAT Act;

apply in relation to such a review, and the findings of such a review, as if it were a review of a reviewable decision.

Interaction with the AAT Act

(5) Subsections (2) and (3) apply despite subsection 27(1) of the AAT Act.

130B Manner of applying for review

(1) An application to the Tribunal for a review of a reviewable decision:

(a) in respect of an application referred to in subsection 130A(1) - must be accompanied by:

(i) a copy of the written notice mentioned in subsection 79B(1) that was given to the applicant; and

(ii) a statement indicating any part of the notice with which the applicant does not agree; and

(iii) a statement setting out the grounds on which the application is made; and

(b) in respect of an application referred to in subsection 130A(3) - must set out the grounds on which the application is made.

Note: See also subsection 29(1) of the AAT Act, which contains other requirements for making an application to the Tribunal.

Interaction with the AAT Act

(2) Subsection (1) applies despite paragraph 29(1)(c) of the AAT Act.

130C Notice of application

(1) If an application is made to the Tribunal for the review of a reviewable decision, the Tribunal must cause a copy of the application and, if applicable, a copy of the statement lodged with the application, to be given to the Treasurer.

(2) If an application is made to the Tribunal for the review of a reviewable decision and an agency in the national intelligence community provided advice to the Treasurer in relation to the decision to which the application relates, the Treasurer must cause a copy of the documents mentioned in subsection (1) to be given to the agency.

Interaction with the AAT Act

(3) This section has effect despite section 29AC of the AAT Act.

130D Treasurer to lodge certain material with Tribunal

(1) If a person has applied to the Tribunal for review of a reviewable decision, the Treasurer must, within 30 days after receiving notice of the application, lodge with the Tribunal:

(a) a copy of the notice given to the person under subsection 79B(1); and

(b) a copy of the whole of the notice (without redaction).

(2) The Tribunal must not, at any time, permit the applicant to have access to any copy or particulars of the notice (without redaction) or any matter to which the notice (without redaction) relates.

130E Security Division of the Tribunal to review applications

Despite subsection 17B(1) of the AAT Act, the powers of review in respect of applications referred to in section 130A may be exercised by the Tribunal only in the Security Division of the Tribunal.

130F Orders for non-publication and non-disclosure

Despite subsection 35AA(1) of the AAT Act, subsection 35AA(2) applies in relation to a proceeding in which the Tribunal reviews a reviewable decision.

130G Procedure for review

Review of reviewable decision

(1) If an application for a review of a reviewable decision is made to the Tribunal, the Tribunal is to review the decision in accordance with this section.

Parties

(2) Despite section 30 of the AAT Act, the parties to the proceeding are the Treasurer and the applicant but the agency in the national intelligence community that provided advice to the Treasurer in relation to the decision is entitled to adduce evidence and make submissions.

Treasurer must present all relevant information

(3) It is the duty of the Treasurer to present to the Tribunal all relevant information available to the Treasurer, whether favourable or unfavourable to the applicant.

Member may require parties to attend etc.

(4) A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.

Proceedings to be in private

(5) The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time.

Right of parties etc. to be present

(6) Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by:

(a) the Treasurer; or

(b) the agency in the national intelligence community that provided advice to the Treasurer.

(7) The Treasurer or a person representing the Treasurer, and a person representing the agency in the national intelligence community that provided advice to the Treasurer, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.

National security certificate

(8) 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.

Note: 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

(b) 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.

Protection of identity of person giving evidence

(11) If the head of an agency in the national intelligence community so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the agency is not revealed.

Evidence and submissions

(12) The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Treasurer and any evidence or submissions that the agency in the national intelligence community that provided advice to the Treasurer may wish to adduce or make.

(13) The Tribunal must next permit the applicant, if the applicant so wishes, to adduce evidence before, and make submissions to, the Tribunal.

(14) The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence.

(15) If a person invited or summoned to give evidence under subsection (14) is a member of staff in an agency in the national intelligence community, subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the agency in the national intelligence community that provided advice to the Treasurer.

(16) If:

(a) a party presents the party's case to the Tribunal; and

(b) after that case has been presented, the other party adduces evidence; and

(c) the Tribunal thinks that, because of evidence adduced by the other party, the first-mentioned party should be further heard;

the Tribunal must give the first-mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates.

(17) A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question.

Dismissal of application

(18) If the applicant fails within a reasonable time:

(a) to proceed with the application; or

(b) to comply with a direction by the Tribunal in relation to the application;

the President or an authorised member may dismiss the application without proceeding to review the reviewable decision.

National security certificate not a legislative instrument

(19) A certificate made under subsection (8) is not a legislative instrument.

130H Certain documents and information not to be disclosed in review of reviewable decision

Scope

(1) This section applies to a proceeding in which the Tribunal reviews a reviewable decision.

Treasurer may issue public interest certificate

(2) 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; or

(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 be disclosed;

the following provisions of this section have effect.

Note: See also subsection (11).

Protection of information etc.

(3) A person who is required by or under this Act or the AAT Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46 of the AAT Act, do all things necessary to ensure:

(a) that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and

(b) in respect of a document produced to the Tribunal - that the document is returned to the person by whom it was produced.

(4) Subsection (3) does not apply in relation to disclosure to the Treasurer or the Treasurer's representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a).

Disclosure of information etc.

(5) If:

(a) the Treasurer has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph (2)(a) or (b); and

(b) the presiding member presiding is satisfied that the interests of justice outweigh the reason stated by the Treasurer;

the presiding member may authorise the disclosure of the information, or of the contents of the document to, the applicant.

What presiding member must consider in deciding whether to authorise disclosure of information etc.

(6) In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5):

(a) the presiding member must take as the basis of the presiding member's consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but

(b) the presiding member must pay due regard to any reason stated by the Treasurer in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest.

Disclosure of information etc. to staff of Tribunal

(7) This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal's staff in the course of the performance of the person's duties as a member of the Tribunal's staff.

Public interest

(8) This section 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.

Copy of document

(9) If the Treasurer has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first-mentioned document as if the copy were the original document.

Duty of Tribunal

(10) It is the duty of 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.

Public interest certificate not a legislative instrument

(11) A certificate made under subsection (2) is not a legislative instrument.

130J Tribunal's decision on review

Despite subsection 43(1A) of the AAT Act, section 43 of the AAT has effect subject to section 130K of this Act.

Note: See also paragraph 130N(c).

130K Findings of Tribunal

Findings

(1) Once the Tribunal has concluded a review of a reviewable decision, the Tribunal must make and record its findings in relation to the reviewable decision. Those findings may state the Tribunal's opinion as to the correctness of, or justification for, any opinion, advice or information contained in the decision.

Copies of findings to be given to parties etc.

(2) Subject to subsection (3), the Tribunal must cause copies of its findings to be given to the applicant and the Treasurer.

(3) The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant.

Applicant may publish findings

(5) Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that the applicant thinks fit, the findings of the Tribunal given to the applicant.

Tribunal may attach comments to findings

(6) The Tribunal may attach to a copy of findings to be given to the Treasurer under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Department of the Treasury that have come to the Tribunal's attention as a result of a review.

(7) The Tribunal must give the Treasurer a copy of any comments attached as mentioned in subsection (6).

130L Restriction on Treasurer's powers after review

If the Tribunal has made findings upon a review of a reviewable decision, the Treasurer must not exercise the Treasurer's powers under this Act in respect of the action concerned that is not in accordance with those findings except on the basis:

(a) of matters or material changes occurring after the review; or

(b) of which evidence was not available at the time of the review.

130M Costs

(1) If:

(a) a person makes an application to the Tribunal under section 130A for a review of a reviewable decision; and

(b) the applicant was, in the opinion of the Tribunal, successful, or substantially successful, in the application for review; and

(c) the Tribunal is satisfied that it is appropriate to do so in all the circumstances of the case;

the Tribunal may order that the costs reasonably incurred by the applicant in connection with the application, or any of those costs that is determined by the Tribunal, be paid by the Commonwealth.

Interaction with the AAT Act

(2) For the purposes of section 69A of the AAT Act, the Commonwealth is taken to be a party to the proceeding referred to in subsection (1) of this section.

130N Interaction with the AAT Act

The following do not apply in relation to a proceeding for the review of a reviewable decision:

(a) Division 2 of Part IV of the AAT Act (other than sections 32 and 33 of the AAT Act);

(b) Division 3 of Part IV of the AAT Act;

(c) sections 35, 36, 36A, 36B, 36C, 36D, 37, 38, 39 and 43AAA of the AAT Act.

Note: The application of other provisions of the AAT Act are modified in their application under this Division.