Foreign Investment Reform (Protecting Australia's National Security) Act 2020 (114 of 2020)
Schedule 2 Compliance and enforcement
Part 1 Amendments
Foreign Acquisitions and Takeovers Act 1975
39 At the end of Subdivision A of Division 4 of Part 5
Add:
101AA Threshold for distinction between tier 2 infringement notices and tier 3 infringement notices
(1) The requirement in this subsection is met in relation to the alleged contravention if the value of the action to which the contravention relates, determined under subsection (3), falls short of:
(a) if the civil penalty provision is subsection 89(1):
(i) if that action is an acquisition of an interest in Australian land, and the Australian land is residential land - $5,000,000; or
(ii) otherwise - $275,000,000; or
(b) if the civil penalty provision is subsection 98B(1) or (4):
(i) if any of the core Part 3 actions mentioned in subparagraph 98B(1)(b)(ii) or 98B(4)(b)(ii) is an acquisition of an interest in Australian land, and the Australian land is residential land - $5,000,000; or
(ii) otherwise - $275,000,000; or
(c) if the civil penalty provision is subsection 91(1) or (2), section 92 or 92A or subsection 93(1), (4) or (7) - $275,000,000; or
(d) otherwise - $5,000,000.
(2) For the purposes of subsection (1), if the civil penalty provision is subsection 98B(1) or (4), treat the value of the action to which the contravention relates, determined under subsection (3) of this section, as being the sum of the values, determined under subsection (3) of this section, for each of the core Part 3 actions mentioned in subparagraph 98B(1)(b)(ii) or 98B(4)(b)(ii).
(3) For the purposes of subsection (1), the value of the action is:
(a) the value for the action worked out under the following table; or
(b) if no item of the table applies to the action:
(i) where the action is an acquisition - the value of the consideration for the acquisition; or
(ii) otherwise - the market value of the benefit obtained by the action.
|
Values of actions |
|||
|---|---|---|---|
|
Item |
This kind of action … |
that is mentioned in any of these provisions … |
has this value … |
|
1 |
an acquisition of a direct interest in an entity or a business |
paragraph 40(2)(a) (significant action) paragraph 47(2)(a) (notifiable action) paragraph 55B(1)(b) or (c) (notifiable national security action) |
the total of the following: (a) the value of the consideration for the acquisition; (b) the total value of the other interests held by the person, alone or together with one or more associates: (i) in the entity or business; or (ii) previously acquired from the entity or business. |
|
2 |
an acquisition of an interest of any percentage in an entity or a business |
paragraph 55D(1)(a) or subparagraph 55E(1)(a)(i) (reviewable national security action) |
the total of the following: (a) the value of the consideration for the acquisition; (b) the total value of the other interests held by the person, alone or together with one or more associates: (i) in the entity or business; or (ii) previously acquired from the entity or business. |
|
3 |
an acquisition of a substantial interest in an Australian entity |
paragraph 47(2)(b) (notifiable action) |
the higher of the following: (a) the total asset value for the entity; |
|
4 |
an acquisition of interests in securities in an entity |
paragraph 40(2)(b) (significant action) |
the higher of the following: (a) the total asset value for the entity; |
|
5 |
an issue of securities in an entity |
paragraph 40(2)(c) (significant action) subparagraph 55D(2)(a)(i) (reviewable national security action) |
the higher of the following: (a) the total asset value for the entity; |
|
6 |
entering into an agreement |
paragraph 40(2)(d) (significant action) subparagraph 55D(2)(a)(ii) (reviewable national security action) |
the total asset value for the entity to which the agreement relates. |
|
7 |
an alteration of a constituent document of an entity |
paragraph 40(2)(e) (significant action) subparagraph 55D(2)(a)(iii) (reviewable national security action) |
the total asset value for the entity. |
|
8 |
an acquisition of a direct interest in an Australian business that is an agribusiness |
paragraph 41(2)(a) (significant action) |
the total of the following: (a) the value of the consideration for the acquisition; (b) the total value of the other interests held by the person, alone or together with one or more associates: (i) in the business; or (ii) previously acquired from the business. |
|
9 |
an acquisition of interests in assets |
paragraph 41(2)(b) (significant action) subparagraph 55E(1)(a)(ii) (reviewable national security action) |
the value of the consideration for the acquisition. |
|
10 |
entering into or terminating a significant agreement with an Australian business |
paragraph 41(2)(c) (significant action) subparagraph 55E(1)(a)(iii) (reviewable national security action) |
the total value of the assets of the business. |
|
11 |
an acquisition of an interest in Australian land |
section 43 (significant action) paragraph 47(2)(c) (notifiable action) paragraph 55B(1)(d) (notifiable national security action) section 55F (reviewable national security action) |
the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interest. |
|
12 |
starting a business |
paragraph 55B(1)(a) (notifiable national security action) paragraph 55E(2)(a) (reviewable national security action) |
the market value of the business. |
|
13 |
an acquisition of a legal or equitable interest in an exploration tenement in respect of Australian land |
paragraph 55B(1)(e) (notifiable national security action) |
the greater of the following: (a) the value of the consideration for the acquisition; (b) the market value of the interest. |
|
14 |
if no previous item applies - an action specified in regulations that specify, or set out a method for determining, an amount for the action |
regulations made for the purposes of section 44 (significant action) regulations made for the purposes of section 48 (notifiable action) |
that amount. |
|
15 |
if no previous item applies - an action specified in regulations |
regulations made for the purposes of section 44 (significant action) regulations made for the purposes of section 48 (notifiable action) |
the greater of the following: (a) the value of the consideration for the action; (b) the market value of the benefit obtained by the action. |
(4) In applying the table in subsection (3), disregard the effect of any exemption certificate.
(5) If the action to which the contravention relates is covered by more than one item of the table in subsection (3), treat the value of the action worked out according to that table as being the greatest of the amounts worked out under those items.
(6) The requirement in this subsection is met in relation to the alleged contravention if:
(a) where the civil penalty provision is subsection 95(1) - the total of the market values of the interests referred to in that subsection falls short of $5,000,000; or
(b) where the civil penalty provision is subsection 95(4) - the greater of:
(i) the value of the consideration for the acquisition referred to in that subsection; and
(ii) the market value of the interest referred to in that subsection;
falls short of $5,000,000.
(7) The amounts mentioned in paragraphs (1)(a), (b) and (c) and (6)(a) and (b) may be indexed in accordance with regulations made for the purposes of subsection 139(2).
(8) For the purposes of this section:
(a) if there is no consideration for a thing - treat the value of the consideration for the thing as nil; and
(b) if the market value of a thing cannot be ascertained - treat the market value of the thing as nil.
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