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

40   Before Subdivision B of Division 4 of Part 5

Insert:

Subdivision AB - Application of the Regulatory Powers Act - Monitoring powers

101A Monitoring powers

Provisions subject to monitoring

(1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:

(a) a provision of this Act; or

(b) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act.

Note 1: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.

Note 2: Some provisions of this Act are taxation laws for the purposes of the Taxation Administration Act 1953 (see subsection 115B(2) and section 138). For provisions dealing with the Commissioner of Taxation's powers to obtain information and evidence in relation to taxation laws, see Division 353 in Schedule 1 to that Act.

Information subject to monitoring

(2) Information given in compliance or purported compliance with this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Related provisions

(3) For the purposes of Part 2 of the Regulatory Powers Act, each of the following provisions is related to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

(a) an offence provision, or a civil penalty provision, of the Taxation Administration Act 1953;

(b) an offence provision, or a civil penalty provision, of the Corporations Act 2001;

(c) a provision in Part 3 or 3B of the Register of Foreign Ownership of Water or Agricultural Land Act 2015.

Authorised applicant

(4) For the purposes of Part 2 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

(a) the Secretary;

(b) an authorised officer.

Authorised person

(5) For the purposes of Part 2 of the Regulatory Powers Act, an authorised officer is an authorised person in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

Issuing officer

(6) For the purposes of Part 2 of the Regulatory Powers Act, a person is an issuing officer in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2) if:

(a) the person is:

(i) a magistrate; or

(ii) a Judge of a court of a State or Territory; or

(iii) a Judge of the Federal Circuit Court of Australia or of the Federal Court of Australia; and

(b) if subparagraph (a)(iii) applies:

(i) the Minister has, in writing, nominated the person to be such an issuing officer; and

(ii) the person has consented to be such an issuing officer and the consent is in force.

Relevant chief executive

(7) For the purposes of Part 2 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

Relevant court

(8) For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant courtin relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia;

(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Person assisting

(9) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

Extension to external Territories

(10) Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1)and the information mentioned in subsection (2), extends to every external Territory.

Subdivision AC - Application of the Regulatory Powers Act - Investigation powers

101B Investigation powers

Provisions subject to investigation

(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

(a) an offence provision of this Act; or

(b) a civil penalty provision of this Act; or

(c) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act.

Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Related provisions

(2) For the purposes of Part 3 of the Regulatory Powers Act, each of the following provisions is related to evidential material that relates to a provision mentioned in subsection (1):

(a) an offence provision, or a civil penalty provision, of the Taxation Administration Act 1953;

(b) an offence provision, or a civil penalty provision, of the Corporations Act 2001;

(c) a provision in Part 3 or 3B of the Register of Foreign Ownership of Water or Agricultural Land Act 2015.

Authorised applicant

(3) For the purposes of Part 3 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1):

(a) the Secretary;

(b) an authorised officer.

Authorised person

(4) For the purposes of Part 3 of the Regulatory Powers Act, an authorised officer is an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

Issuing officer

(5) For the purposes of Part 3 of the Regulatory Powers Act, a person is an issuing officer in relation to evidential material that relates to the provisions mentioned in subsection (1) if:

(a) the person is:

(i) a magistrate; or

(ii) a Judge of a court of a State or Territory; or

(iii) a Judge of the Federal Circuit Court of Australia or of the Federal Court of Australia; and

(b) if subparagraph (a)(iii) applies:

(i) the Minister has, in writing, nominated the person to be such an issuing officer; and

(ii) the person has consented to be such an issuing officer and the consent is in force.

Relevant chief executive

(6) For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).

Relevant court

(7) For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia;

(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Person assisting

(8) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

Extension to external Territories

(9) Part 3 of the Regulatory Powers Act, as that Part applies in relation to a provisionmentioned in subsection (1), extends to every external Territory.

Subdivision AD - Application of the Regulatory Powers Act - Enforceable undertakings

101C Enforceable undertakings

Enforceable provisions

(1) The provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act.

Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Authorised person

(2) For the purposes of Part 6 of the Regulatory Powers Act, the Treasurer is an authorised person in relation to the provisions mentioned in subsection (1).

Relevant court

(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia;

(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Extension to external Territories

(4) Part 6 of the Regulatory Powers Act, as that Part applies in relation to a provisionmentioned in subsection (1), extends to every external Territory.

101D Publication of undertakings

(1) If the Treasurer accepts an undertaking in relation to a provision mentioned in subsection 101C(1), the Treasurer must ensure that the undertaking is published on a website maintained by the Department as soon as practicable after it is accepted.

(2) If an undertaking has not yet been published on a website maintained by the Department, the Treasurer may decide, in writing, that publishing the undertaking on such a website would be contrary to the national interest.

(3) If the Treasurer makes a decision under subsection (2) in relation to an undertaking, subsection (1) does not apply to the undertaking.

(4) A failure to comply with subsection (1) in relation to an undertaking does not affect the enforceability of the undertaking under Part 6 of the Regulatory Powers Act, as that Part applies in relation to the provisions of this Act.

Subdivision AE - Application of the Regulatory Powers Act - Miscellaneous

101E Appointment of authorised officers

(1) The Secretary may, in writing, appoint a person who is an APS employee who holds or performs the duties of an APS Level 6 position, or an equivalent or higher position, in the Department as an authorised officer for the purposes of this Division.

(2) The Secretary must not appoint a person as an authorised officer under subsection (1) unless the Secretary is satisfied that the person has suitable training or experience to properly perform the functions, or exercise the powers, of an authorised officer.

(3) An authorised officer must, in performing the authorised officer's functions or exercising the authorised officer's powers, comply with any directions of the Secretary.

(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

101F Delegation of certain powers and functions under the Regulatory Powers Act

Scope of this section

(1) This section applies in relation to powers ( relevant powers ) and functions ( relevant functions ) under the following provisions of the Regulatory Powers Act (as it applies in relation to this Act):

(a) Part 2 (monitoring powers);

(b) Part 3 (investigation powers);

(c) Part 6 (enforceable undertakings).

Note: Sections 99 and 100 deal with the delegation of powers and functions under Part 4 (civil penalty provisions) and Part 5 (infringement notices) of the Regulatory Powers Act (as it applies in relation to this Act).

Delegations by Treasurer

(2) The Treasurer may, in writing, delegate a relevant power or relevant function of the Treasurer to any of the following:

(a) the Secretary;

(b) an SES employee, or acting SES employee, in the Department;

(c) the Commissioner of Taxation.

Note: For the effect of a delegation to the Commissioner of Taxation, see section 138.

Delegations by Secretary

(3) The Secretary may, in writing, delegate a relevant power or relevant function of the Secretary to any of the following:

(a) an SES employee, or acting SES employee, in the Department;

(b) the Commissioner of Taxation.

Note: For the effect of a delegation to the Commissioner of Taxation, see section 138.

(4) However, subsection (3) does not apply in relation to the powers and functions of the Secretary as an authorised applicant under Part 2 or 3 of the Regulatory Powers Act (as it applies in relation to this Act).

Subdelegations by Commissioner of Taxation

(5) If a power or function is delegated to the Commissioner of Taxation under this section, the Commissioner may, in writing, subdelegate the power or function to an SES employee, or acting SES employee, in the Australian Taxation Office.

(6) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to the subdelegation in a way corresponding to the way in which they apply in relation to a delegation.

Directions

(7) In exercising powers or performing functions delegated or subdelegated by a person under this section, the delegate or subdelegate must comply with any directions of the person.

Delegations in relation to specified kinds of matters

(8) Without limiting this section or subsection 33(3A) of the Acts Interpretation Act 1901, a power or function may be delegated or subdelegated generally or only in relation to specified kinds of matters.