House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Treasurer, the Hon J. B. Hockey MP)

Chapter 5 - Fees

Outline of chapter

5.1 Part 6 of the Bill specifies:

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when certain fees are payable;

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the Treasurer is not required to take any action in relation to certain applications or notices before the applicable fee is paid; and

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the Treasurer may waive the whole or part of a fee if the Treasurer is satisfied that it is not contrary to the national interest to waive or remit the fee.

Context of amendments

5.2 Currently, no fees or charges are payable when making an application or giving a notice under the Act. The imposition of fees helps fund the costs of considering applications, the introduction of a specialised investigative and enforcement area within the Australian Taxation Office (ATO), improvements in the collection of data about foreign investment in Australia, and an increase in the resources dedicated to the investigation of alleged breaches of the Act. The introduction of fees is also consistent with the Australian Government's policy that the full cost of regulating a particular sector should generally be recovered from that sector.

Detailed explanation of new law

When are fees payable?

5.3 A person who applies for an exemption certificate, gives notice of a notifiable action, or gives a notice in relation to a proposal to take a significant action that is not a notifiable action must pay a fee when the notice is given or an application made. A fee is also payable if the Treasurer makes a decision or order under new Part 3 of the Act relating to a significant action and a person has not notified the Treasurer. A fee payable under this Act that does not relate to an application made or a notice given by the person may be recovered by the Treasurer, on behalf of the Commonwealth, as a debt due to the Commonwealth. [Schedule 1, item 4, section 113]

5.4 To comply with section 55 of the Constitution, a fee imposed under new Part 6 is imposed as a tax by the Foreign Acquisition and Takeovers Fees Imposition Bill 2015. The imposition of fees ensures that those who undertake activities regulated by this Act rather than the general community bear the costs relating to the administration of the Act, including the costs of monitoring compliance with the legislation, investigating alleged breaches and commencing enforcement proceedings in appropriate cases.

Requirement for fees to be paid before Treasurer exercises powers

5.5 Where a fee is payable for making an application or giving a notice, a person is taken not to have given the notice or made the application until the fee has been paid or the fee has been waived. [Schedule 1, item 4, section 114]

Waiver and remissions of fees

5.6 The Treasurer may waive or remit the whole or a part of a fee that is payable under this Act if the Treasurer is satisfied that it not contrary to the national interest to waive or remit the fee. [Schedule 1, item 4, section 115]