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

205   After section 123

Insert:

123A Authorisation of disclosures about decisions where Commonwealth, State or Territory Minister or body etc. provided information

A person (the discloser ) may disclose protected information to a person (the recipient ) if:

(a) the recipient is:

(i) a Minister, an officer or an employee of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory; or

(ii) an officer or employee of a Commonwealth, State or Territory body; and

(b) the information relates to a decision (the relevant decision ) to make, or not to make, an order or decision under Part 3; and

(c) either:

(i) the recipient; or

(ii) if subparagraph (a)(ii) applies - another officer or employee of the Commonwealth, State or Territory body mentioned in that subparagraph;

provided information for the purposes of the making of the relevant decision; and

(d) the discloser reasonably believes the disclosure of the information may assist the recipient in the performance of the recipient's functions or duties, or the exercise of the recipient's powers, as a person mentioned in subparagraph (a)(i) or (ii).

123B Authorisation of disclosures to foreign governments and separate government entities

(1) A personmay disclose protected information to a foreign government or a separate government entity in relation to a foreign country (or a part of a foreign country) if:

(a) either:

(i) the person discloses the information in performing the person's functions or duties, or exercising the person's powers, under this Act; or

(ii) the person is satisfied the disclosure of the information will assist or enablethe foreign government or separate government entity to perform a function or duty, or exercise a power, of the government or entity; and

(b) the Treasurer is satisfied that the information relates to a matter in relation to which a national security risk may exist for Australia or the foreign country; and

(c) the Treasurer is satisfied that the disclosure is not contrary to the national interest; and

(d) the person is satisfied that the information will be used in accordance with an agreement to which subsection (2) applies; and

(e) the foreign government or separate government entity has undertaken not to use or further disclose the information except in accordance with the agreement or otherwise as required or authorised by law.

(2) This subsection applies to an agreement that is in force between:

(a) the Commonwealth or a Department of State, authority or agency of the Commonwealth; and

(b) one or more of the following:

(i) a foreign government;

(ii) a separate government entity.

(3) The Treasurer may, by writing, impose conditions to be complied with by a foreign government or a separate government entity in relation to protected information disclosed to it under subsection (1).

(4) An instrument under subsection (3) is not a legislative instrument.