Foreign Acquisitions and Takeovers Act 1975

PART 3 - POWERS OF TREASURER  

Division 3 - Last resort powers: orders to deal with national security risks arising after an initial assessment  

Subdivision A - National security review required  

SECTION 79A   NATIONAL SECURITY REVIEW REQUIRED BEFORE ORDERS MAY BE MADE  

Bases on which Treasurer may review actions

79A(1)    
The Treasurer may review an action if the Treasurer is satisfied that:

(a)    any of the following apply:

(i) a no objection notification in relation to the action has been given and has not been revoked under section 76A ;

(ii) the action has been taken and, at the time it was taken, the action or the kind of action was specified in an exemption certificate in force under Division 5 of Part 2 or the regulations;

(iii) the action has been taken and, at the time it was taken, the interest or kind of interest to which the action relates was specified in an exemption certificate in force under Division 5 of Part 2 or the regulations;

(iv) an interim order in relation to the action was made and the Treasurer did not make an order under section 67 before the end of the period specified in the interim order;

(v) an order or decision under Division 2 was not made by the Treasurer in relation to the action before the end of the decision period;

(vi) a person was given a notice imposing conditions under section 79H in relation to the action; and

(b)    any of the following apply:

(i) the person notified the action to the Treasurer and made a statement, whether orally or in that notification, that was false or misleading in a material particular, or that omitted a matter or thing without which the statement was misleading in a material particular;

(ii) the business, structure or organisation of the person has, or the person ' s activities have, materially changed since the time paragraph (a) was satisfied;

(iii) the circumstances or market in which the action was, or is proposed to be, taken have materially changed since the time paragraph (a) was satisfied.

Treasurer to decide whether a national security risk exists

79A(2)    
When reviewing an action under this section, the Treasurer must decide whether a national security risk relating to the action exists. In doing so, the Treasurer must obtain, and have regard to, advice from an agency in the national intelligence community about national security risks in relation to the action.

Note: A person may apply to the Administrative Appeals Tribunal for review of a decision that a national security risk relating to the action exists: see section 130A .

Treasurer may give notice of review

79A(3)    
If the Treasurer reviews an action under this section:

(a)    the Treasurer must, unless it would prejudice Australia ' s national security interests to do so, notify the person, in writing, of the review; and

(b)    if the action has not been taken - the giving of the notice prohibits, by force of this paragraph, the taking of the action until the review of the action is completed and:

(i) an order made under this Division is registered under section 79M ; or

(ii) a no objection notification is varied under section 79G ; or

(iii) a notice imposing conditions is given to the person under section 79H or is varied under section 79J ; or

(iv) a notice is given under section 79B advising that a national security risk does not exist in relation to the action; and

(c)    if the action has been taken - the Treasurer may:

(i) in the notice - give any direction to the person in relation to the action or a related activity that the Treasurer considers necessary to address the national security risk; and

(ii) in writing and before the review is completed - give any subsequent direction to the person in relation to the action or a related activity that the Treasurer considers necessary to address the national security risk.

79A(4)    
For the purposes of paragraph (3)(b) and an exemption certificate, the giving of the notice also prohibits, by force of this subsection, an action in relation to interests or kinds of interests, or the kinds of actions, to which the certificate relates until the review of the action is completed and an event mentioned in any of subparagraphs (3)(b)(i) to (iv) has occurred.

79A(5)    
For the purposes of paragraph (3)(c), the Treasurer may not give a direction that would require the person to take action of a kind mentioned in section 79E .