Foreign Acquisitions and Takeovers Act 1975

PART 1 - PRELIMINARY  

Division 2 - Definitions  

Subdivision B - Some defined terms and rules of interpretation  

SECTION 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

18A(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

18A(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.

18A(3)    
Paragraph (2)(b) applies whether or not any person actually has the belief mentioned in that paragraph.

Modification of this Act

18A(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

18A(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

18A(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.