Foreign Acquisitions and Takeovers Amendment (Exemptions and Other Measures) Regulations 2017 (F2017L00811)

Schedule 1   Exemptions

Foreign Acquisitions and Takeovers Regulation 2015

6   At the end of Subdivision A of Division 4 of Part 3

Add:

41A Exemption - foreign persons in which foreign custodian corporations have interests

(1) This section applies in relation to the following provisions:

(a) Division 3 of Part 2 of the Act (meaning of notifiable action);

(b) Part 4 of the Act (notice of notifiable actions and significant actions);

(c) any other provision of the Act to the extent that it relates to either of those provisions.

(2) The provisions mentioned in subsection (1) do not apply in relation to any action taken by a foreign person if, when the action is taken:

(a) the foreign person is a corporation, the trustee of a trust or the general partner of a limited partnership (see subsection 18(1)); and

(b) an interest or part of an interest (the custodian share ) in that corporation, trust or limited partnership is held by a corporation of the kind mentioned in paragraph 30(a) (the foreign custodian corporation ); and

(c) the custodian share is held in the course of the foreign custodian corporation's business of providing the custodian services mentioned in paragraph 30(a); and

(d) the foreign person would not be a foreign person if:

(i) in a case in which there is only one foreign custodian corporation to which paragraphs (b) and (c) apply - that foreign custodian corporation did not hold the custodian share to which paragraph (c) applies; or

(ii) in a case in which there are 2 or more foreign custodian corporations to which paragraphs (b) and (c) apply - none of those foreign custodian corporations held the custodian shares to which paragraph (c) applies.

Example: Foreign custodian corporations are foreign persons (see paragraph 30(a)). A foreign custodian corporation ( Corporation FC ) holds a total interest of 25% in another corporation ( Corporation F ). No other foreign person holds an interest in Corporation F. Corporation FC's interest makes Corporation F a foreign person because it is a substantial interest (at least 20%).

15% of Corporation FC's interest in Corporation F is a custodian share to which paragraph (2)(c) applies. That paragraph does not apply to 10% of the interest. Corporation F would not be a foreign person if it were not for the custodian share held by Corporation FC (see paragraph (2)(d)).

The provisions mentioned in subsection (1) do not apply in relation to any action taken by Corporation F.