Foreign Acquisitions and Takeovers Act 1975

PART 3 - POWERS OF TREASURER  

Division 2 - Orders relating to actions that are, or whose result would be, contrary to national security or the national interest  

Subdivision B - No objection notifications  

SECTION 74   NO OBJECTION NOTIFICATION IMPOSING CONDITIONS  

Application of this section

74(1)    
This section applies if:

(a) the Treasurer is satisfied that a significant action (other than a significant action covered by paragraph (1A)(b) is proposed to be taken (whether or not the Treasurer was given a notice relating to the action); or

(b)    

all of the following apply:

(i) the Treasurer is satisfied that a significant action has been taken;

(ii) the Treasurer was not given a notice relating to the action before the action was taken;

(iii) the action is not covered by paragraph (1A)(b); or

(c) all of the following apply:

(i) the Treasurer is satisfied that a significant action has been taken;

(ii) the Treasurer was given a notice relating to the action before the action was taken;

(iia) the action is not covered by paragraph (1A)(b);

(iii) the action was taken before the day mentioned in section 82 .

Note: See also sections 76 (content of no objection notification) and 77 (time limit on making orders and decisions).

74(1A)    

This section also applies if the following kinds of actions are proposed to be taken or have been taken:

(a)    a notifiable national security action that is not a significant action;

(b)    an action in respect of which the Treasurer has given a notice under subsection 66A(4) ;

(c)    a reviewable national security action that is notified to the Treasurer.

Note: See also sections 76 (content of no objection notification) and 77 (time limit on making orders and decisions).

Imposition of conditions

74(2)    
The Treasurer may:

(a) decide that the Commonwealth has no objection to the action if one or more of the following conditions were imposed:

(i) for paragraph (1)(a) - a condition that the Treasurer is satisfied is necessary to ensure the action, if taken, will not be contrary to the national interest;

(ii) for paragraphs (1)(b) and (c) - a condition that the Treasurer is satisfied is necessary to ensure that the action is not contrary to the national interest;

(iii) for subsection (1A) and in relation to an action proposed to be taken - a condition that the Treasurer is satisfied is necessary to ensure the action, if taken, will not be contrary to national security;

(iv) for subsection (1A) and in relation to an action that has been taken - a condition that the Treasurer is satisfied is necessary to ensure the action is not contrary to national security; and

(b) notify the person, in writing (the no objection notification ), of the conditions.

74(3)    
The no objection notification:

(a) must be given before the end of 10 days after the decision is made; and

(b) if a notice relating to the action was given - may be given to the person at an address (including an electronic address) specified in that notice as the address for service of notices relating to the action.

Variation and revocation of conditions

74(4)    

Subject to subsection (6), the Treasurer may:

(a)    in relation to an action of a kind mentioned in subsection (1) - vary a no objection notification given to a person in one or more ways mentioned in subsection (4A) if the Treasurer is satisfied that the variation is not contrary to the national interest; and

(b)    in relation to an action of a kind mentioned in subsection (1A) - vary a no objection notification given to a person in one or more ways mentioned in subsection (4A) if the Treasurer is satisfied that the variation is not contrary to national security.

74(4A)    

For the purposes of subsection (4), the Treasurer may vary a no objection notification in one or more of the following ways:

(a)    revoking a condition;

(b)    imposing a new condition;

(c)    varying an existing condition;

(d)    varying the information specified under section 76 .

74(5)    
The variation may be made on the Treasurer ' s own initiative.

Note: The variation may also be made on application by the person (see subsection 76(6) ).

74(6)    
The Treasurer may vary a no objection notification given to a person by imposing a new condition or varying an existing condition only if:

(a) the person consents to the new condition or the variation; or

(b) the Treasurer is satisfied that the new condition or variation does not disadvantage the person.

Statements in notices

74(7)    
For the purposes of this section:

(a) a notice relating to an action stating that a person has a right (including a right under an option) to acquire interests in securities, assets or Australian land is taken to be a statement that the person proposes to acquire the interests in the securities, assets or land; and

(b) a notice relating to an action stating that a person proposes to acquire a right (including a right under an option) to acquire an interest in a security, asset or Australian land is taken to be a statement that the person proposes to exercise that right.

Effect of notification on later actions

74(8)    
If:

(a) a person gives a notice to the Treasurer relating to more than one significant action proposed to be taken in relation to an entity or business; and

(b) the Treasurer is satisfied that the actions would result in a change in control of the entity or business; and

(c) the Treasurer gives a no objection notification to the person under this section in relation to the actions; and

(d) not all of the actions are taken; and

(e) the person gives a later notice to the Treasurer relating to a later action that is proposed to be taken in relation to the entity or business;

the giving of the no objection notification does not prevent the Treasurer from determining that there has been or will be a change in control of the entity or business as a result of the later action.

Note: See also subparagraph 79A(1)(b)(ii) .