House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Josh Frydenberg MP)

Chapter 5 - Register of Foreign Owned Australian Assets

Outline of chapter

5.1 Schedule 3 to the Bill creates a Register of Foreign Ownership of Australian Assets. The Register will incorporate the existing Register of Foreign Ownership of Water Entitlements and Register of Foreign Ownership of Agricultural Land, and create additional obligations to notify the Registrar of a broader range of interests.

5.2 The Register will mirror aspects of the Modernising Business Registers Program by streamlining and simplifying the process of registering, and maintaining flexible administration of the Register.

Context of amendments

5.3 Currently, the Commissioner administers the Register of Foreign Ownership of Water Entitlements and the Register of Foreign Ownership of Agricultural Land. A foreign person who has a registrable interest in water or in agricultural land is required to register that interest. The Commissioner also maintains a register of foreign owned residential property, based on reporting conditions imposed on foreign persons who acquire residential property.

5.4 The Australian Communications and Media Authority maintains a Register of Foreign Owners of Media Assets and the Department of Home Affairs maintains a Register of Critical Infrastructure Assets.

5.5 Under these current arrangements, the Government has limited visibility over transactions by foreign investors in certain sectors of the economy and, in particular, whether or not investments actually occur following foreign investment approval. The establishment of the new Register will increase the Government's visibility of foreign ownership in Australia, including visibility of interests held by foreign persons in all types of Australian land and in water.

5.6 The new Register will provide Government with a broad data set to aid future policy consideration and assist with efficient case processing by making more information available to decision makers on foreign ownership of specific assets in Australia.

Summary of new law

5.7 Schedule 3 to the Bill imposes obligations upon foreign persons to notify the Registrar of actions that occur about interests in Australian land, water, entities, businesses and other Australian assets.

5.8 Interests registered on the Register will generally only include legal interests, with a notable exception being equitable interests in leases or licences that arise for agricultural land (consistent with the current registration obligations for this type of land).

5.9 When interests are acquired and notified to the Registrar, this will generally create a 'registered circumstance' about the action. While a registered circumstance exists, there are ongoing obligations to notify the Registrar about certain changes to that circumstance (including when it ceases, such as when an interest in land is disposed of). A foreign person is also required to keep records for 5 years after a notice is given to the Registrar.

5.10 A civil penalty will apply for a failure to notify the Registrar where a registrable event occurs.

Comparison of key features of new law and current law

5.11 The following table provides a comparison of the key features of the new law and the current law.

Detailed explanation of new law

5.12 Schedule 3 to the Bill inserts a new Part 7A into the FATA, establishing the Register of Foreign Ownership of Australian Assets. This Part provides that a Registrar must be appointed by the Treasurer to administer the Register of Foreign Ownership of Australian Assets. Appointment will be made by legislative instrument. The Registrar must be a public service agency, or a body established for a public purpose, or a person appointed, by or under a law of the Commonwealth. [Schedule 3, items 2 and 8, definition of 'eligible Registrar appointee' in section 4 of the FATA, and sections 130R and 130S of the FATA]

5.13 A foreign person is required to notify the Registrar (known as giving a 'register notice') of certain prescribed events, or where there is a change to the registered circumstance arising from a previous register notice. [Schedule 3, items 2 and 8, definition of 'register notice' in section 4 of the FATA, and section 130W and Division 3 of Part 7A of the FATA].

5.14 For example, a foreign person who acquires an interest in Australian land must give a register notice relating to the acquisition. Upon giving the notice, a 'registered circumstance' arises, which will exist while the foreign person holds the interest in Australian land. When the person ceases to hold the interest in Australian land, the registered circumstance ceases and the foreign person must give another register notice relating to that cessation. Alternatively, if the person ceases to be a foreign person while the registered circumstance exists, the person must also give a register notice.

5.15 The Register must contain all the information obtained by the Registrar as a result of the register notice given to the Registrar, as well as any other relevant information obtained by the Registrar apart from information obtained under those notices. The Register will also contain all of the information given to the Registrar as part of the transitional arrangements, which is expected to include the Register of Foreign Ownership of Water Entitlements, the Register of Foreign Ownership of Agricultural Land, and the register of foreign owned residential property which is maintained by the Commissioner. [Schedule 3, item 8, sections 130T and 130U of the FATA]

5.16 Information on the Register will be able to be used, recorded or disclosed for any purpose that protected information can be used for under Division 3 of Part 7 of the FATA. In particular, the Register will be made available to specified persons, for the purposes of the administration of the FATA (this does not limit other purposes authorised by Division 3 of Part 7 of the FATA). [Schedule 3, items 7 and 8, sections 126A and 130V of the FATA]

Giving notice to the Registrar

5.17 A register notice given to the Registrar must be given in the manner and form prescribed by the data standards, and be given within 30 days of the applicable registrable event day. [ Schedule 3, item 8, section 130W of the FATA]

5.18 The registrable event day is different for each kind of register notice, and is the day specified by the provision requiring the register notice be given. [Schedule 3, item 2, definition of 'registrable event day' in section 4 of the FATA]

5.19 In general, the registrable event day for a register notice is the day on which the foreign person takes the action that triggers the requirement to give a register notice. For example, where a foreign person acquires an interest in Australian land, the registrable event day is the day on which the interest is acquired. However, for registrable water interests, the registrable event day for a notice is generally the last day of the financial year. This means that water events will be reported on an annual net basis, consistent with the notification timeframes in the current Register of Foreign Ownership of Water Entitlements. [Schedule 3, item 8, sections 130ZA and 130ZE of the FATA]

5.20 Regulations may extend the time after the registrable event day when a register notice must be given to the Registrar. Extensions may be granted generally or if specified conditions are met. Extensions may also be granted by a legislative instrument, or an administrative decision, made by the Treasurer under the regulations. [Schedule 3, item 8, section 130Z of the FATA]

5.21 The powers to grant extensions are expressed broadly, given the variety of transactions and circumstances that require a register notice be given to the Registrar.

5.22 The registrable event day disregards certain rules in the FATA which deem when certain interests are acquired, including section 15 and paragraphs 19A(1)(b) and 20(1)(b) of the FATA, so that the Register reflects the actual holding of interests. [Schedule 3, item 8, section 130X of the FATA]

5.23 The manner and form prescribed by the data standards for giving notices will be used to determine the information or documents that are required to be given to the Registrar as part of giving a register notice. Information given to the Registrar will be included on the Register. [Schedule 3, item 8, sections 130T and 130ZZ of the FATA]

5.24 As the data standards will prescribe the manner of giving register notices, the standard rules in the FATA for the manner of giving notices will not apply. [Schedule 3, item 10, subsection 135(4) of the FATA]

5.25 Failure to give a register notice within the time period and in the prescribed form is subject to a civil penalty provision of 250 penalty units. [Schedule 3, item 8, section 130ZV]

5.26 The obligation to comply with the registration requirement will continue until the requirement has been fulfilled. A foreign person who fails to comply with a registration requirement will commit a separate contravention in respect of that requirement in respect of each day during which the contravention occurs up to the time where the requirement is fulfilled (see section 93 of the Regulatory Act).

5.27 This civil penalty amount operates as an appropriate deterrent and is proportionate to the impact of non-compliance with registration requirements. This level of penalty also reflects the relative importance of registration in the context of the foreign investment review process. This penalty is consistent with penalty amounts in the FATA for comparable contraventions.

5.28 Where a person gives a register notice to the Registrar, this will generally give rise to a 'registered circumstance'. The cases when the registered circumstance ceases (meaning a further register notice to the Registrar is required) are predominantly set out in the provision that requires the initial register notice to be given. [Schedule 3, item 2, definition of 'registered circumstance' in section 4 of the FATA]

Events requiring notification to the Registrar

5.29 Only actions taken by foreign persons require a register notice be given to the Registrar. For instance, if a significant action in relation to an entity is taken by a person that is not a foreign person that action is not required to be notified to the Registrar.

5.30 These events may overlap, meaning multiple register notices may be required. However, the data standards may provide for these notices to be combined into a single notice. [Schedule 3, item 8, subsection 130W(5) and paragraph 130ZZ(2)(j) of the FATA]

5.31 If, after the registrable event day but before a register notice is given, the person ceases to be a foreign person or the registered circumstance that would have arisen upon notification had already ceased to exist, a register notice is required to be given to the Registrar but no registered circumstance will arise. [Schedule 3, item 8, subsections 130W(3) and (4) of the FATA]

Notification of events relating to Australian land or exploration tenements

5.32 For an interest in Australian land or an exploration tenement, a foreign person is required to give a register notice where any of the following events occur:

•

the foreign person acquires an interest in Australian land [Schedule 3, item 8, section 130ZA of the FATA];

•

the foreign person acquires an interest in an exploration tenement [Schedule 3, item 8, section 130ZB of the FATA]; or

•

the person became a foreign person while holding interests in Australian land or an exploration tenement [Schedule 3, item 8, section 130ZC of the FATA];

5.33 A 'registered circumstance' will exist in relation to these events while the foreign person holds the interest in Australian land or the exploration tenement. [Schedule 3, item 8, subsections 130ZA(2) and (3), 130ZB(2) and (3) and 130ZC(2) and (3) of the FATA]

5.34 The 'registrable event day' is the day the person acquired the interest or became a foreign person. [Schedule 3, item 8, subsections 130ZA(4), 130ZB(4) and 130ZC(4) of the FATA]

5.35 Where a foreign person has a registered circumstance being the holding of an interest in Australian land or exploration tenement, and the foreign person is aware or ought reasonably to have been aware that the interest has changed to become an interest in a different kind of Australian land or exploration tenement, the person is required to give a register notice about the change. The 'registrable event day' is the day the person became aware, or ought to have become aware, of the change. [Schedule 3, item 8, section 130ZD of the FATA]

5.36 Schedule 3 to the Bill does not require register notices to be given about equitable interests, other than equitable interests that may arise for leases or licenses in agricultural land, referred to in paragraph 12(1)(c) of the FATA.

5.37 Australian land has the meaning provided under section 4 of the FATA, and an interest in Australian land has the meaning provided under section 12 of the FATA (see also other provisions of the FATA, such as sections 13 and 14).

5.38 An exploration tenement is defined under section 4 of the FATA. For the purposes of giving a register notice, an interest in an exploration tenement has the same meaning as an interest in Australian land, and includes anything else about the tenement prescribed by the regulations. [Schedule 3, items 2 and 8, definition of 'exploration tenement' in section 4 of the FATA, and subsection 130ZB(5) of the FATA]

Notification of events relating to registrable water interests

5.39 For a registrable water interest, a foreign person is required to give a register notice where either of the following events occur:

•

the foreign person acquires a registrable water interest [Schedule 3, item 8, section 130ZE of the FATA]; or

•

the person became a foreign person while holding a registrable water interest [Schedule 3, item 8, section 130ZF of the FATA].

5.40 A registered circumstance for these events exists while the foreign person holds the registrable water interest. [Schedule 3, item 8, subsections 130ZE(2) and (3) and 130ZF(2) and (3) of the FATA]

5.41 As noted above, these events are required to be notified annually on a net basis (that is, a register notice only needs to be given if the person is still a foreign person and holds the registrable water interest at the end of the financial year). This means the registrable event day for these events is the last day of the financial year. [Schedule 3, item 8, subsections 130ZE(4) and 130ZF(4)]

5.42 Where a foreign person has a registered circumstance about holding a registrable water interest, and on any day or days in a financial year the volume of water or share of a water resource referred to in the interest changes, and the person still holds the interest at the end of the financial year, the person is required to give a register notice to the Registrar about that change. The registrable event day is the last day of the financial year. [Schedule 3, item 8, section 130ZG]

5.43 A registrable water interest means a registrable water entitlement or a contractual water right under a contract or deed whose term, including any extension or renewal, exceeds 5 years. [Schedule 3, item 2, definition of 'registrable water interest' in section 4 of the FATA]

5.44 A registrable water entitlement means an irrigation right (within the meaning of the Water Act 2007) or a right (including an Australian water access entitlement) conferred by or under a State or Territory law to hold or take water from a water resource in Australia. [Schedule 3, items 2 and 3, definition of 'registrable water entitlement' in sections 4 and 26A of the FATA]

5.45 A contractual water right means a right under a contract or deed to all or part of another person's registrable water entitlement, water allocation or a right of a kind specified in the regulations. [Schedule 3, item 2, definitions of 'contractual water right', section 4 of the FATA]

5.46 Each of these expressions, and the definitions of Australian water access entitlement, water allocation and water resource are defined on an equivalent basis to the definitions in the Agricultural Land and Water Register Act. [Schedule 3, item 2, definitions of 'Australian water access entitlement', 'water allocation' and 'water resource' in section 4 of the FATA]

Notification of events relating to entities and businesses

5.47 For entities and businesses, a foreign person is required to give a register notice where any of the following events occur:

•

the foreign person takes an action that is a significant action under section 40 or 41 of the FATA:

-

that was taken when covered by a no objection notification or a notice imposing conditions;

-

that was notified to the Treasurer before being taken (this includes where no decision was made by the Treasurer during the relevant decision period);

-

that was reviewed by the Treasurer under the national security call-in powers, and for which the Treasurer has given a notice under those powers; or

-

for which a no objection notification or a notice imposing conditions was given after the action was taken;

[Schedule 3, item 8, sections 130ZH and 130ZI of the FATA]

•

a foreign person takes an action that is a notifiable action relating to an entity or business; [Schedule 3, item 8, section 130ZJ of the FATA]

•

a foreign person takes a notifiable national security action about an entity or business; [Schedule 3, item 8, section 130ZK of the FATA]

•

a foreign person takes reviewable national security action in relation to an entity or business:

-

that was taken when covered by a no objection notification or a notice imposing conditions;

-

that was notified to the Treasurer before being taken;

-

that was reviewed by the Treasurer under the national security call-in powers, and for which the Treasurer has given a notice under those powers; or

-

for which a no objection notification or a notice imposing conditions was given after the action was taken;

[Schedule 3, item 8, sections 130ZL and 130ZM of the FATA]

•

a person becomes a foreign person while holding an interest in an entity or business, where the action taken to acquire that interest would have constituted a notifiable action or a notifiable national security action if taken immediately after becoming a foreign person. [Schedule 3, item 8, sections 130ZO and 130ZP of the FATA]

5.48 A registered circumstance generally arises for the action taken. Where the action is about a foreign person acquiring an interest of a particular percentage in an entity or business, the registered circumstance generally exists while the person holds an interest of any percentage in the entity or business. This is notwithstanding the initial threshold requiring registration. The effect of this is that while the initial register notice is given when the interest meets the prescribed threshold (for example, where a substantial interest, or 20 per cent, is acquired), the registered circumstance will remain on the Register at any percentage, unless the interest held by the foreign person ceases to exist (that is, drops to 0 per cent).

5.49 The registrable event day will generally be when the person took the action or became a foreign person.

5.50 Where a registered circumstance relates to an interest of a particular percentage in an entity or business, and the foreign person is aware or ought reasonably to have been aware that the interest has differed by five percentage points or more, the person is required to give a register notice to the Registrar about the change. The registrable event day is the day the person became aware, or ought to have become aware, of the change. [Schedule 3, item 8, section 130ZN of the FATA]

5.51 The events relating to entities and businesses requiring a register notice to be given, and the associated registered circumstance, are set out in more detail below.

5.52 A foreign person is required to give a register notice when the following significant actions are taken about an entity or business, with a registered circumstance existing while the following conditions are met:

Table 5.1

[Schedule 3, item 8, sections 130ZH and 130ZI of the FATA]

5.53 A foreign person is required to give a register notice when the following notifiable actions are taken about an entity or business (including before the person became a foreign person), with a registered circumstance existing while the following conditions are met.

Table 5.2

[Schedule 3, item 8, sections 130ZJ and 130ZO of the FATA]

5.54 A foreign person is required to give a register notice when the following notifiable national security actions are taken in relation to an entity or business (including before the person became a foreign person), with a registered circumstance existing while the following conditions are met.

Table 5.3

[Schedule 3, item 8, sections 130ZK and 130ZP of the FATA]

5.55 A foreign person is required to give a register notice when the following reviewable national security actions are taken in relation to an entity or business, with a registered circumstance existing while the following conditions are met.

Table 5.4

[Schedule 3, item 8, sections 130ZL and 130ZM of the FATA]

Events requiring notification under the regulations

5.56 Regulations may prescribe further circumstances that require a register notice to be given to the Registrar. The regulations may prescribe any registered circumstance created when the register notice is given (to determine if there are ongoing notification requirements to give register notices), when the registered circumstance ceases, and the registrable event day for the notice (to determine when the register notice must be given). [Schedule 3, item 8, section 130ZU of the FATA]

5.57 This power is likely to be used to require notification of events that occur relating to other provisions in the regulations (such as provisions of the regulations that prescribe further notifiable actions). The regulation-making power is required because these registration requirements will need to be tailored to match those other provisions of the regulations.

Notification of cessation of registered circumstances and ceasing to be a foreign person

5.58 Where a registered circumstance relates to a foreign person, the person is required to give a register notice where either of the following events occur:

•

where the foreign person is aware, or ought reasonably to have been aware, that the registered circumstance has ceased [Schedule 3, item 8, section 130ZQ of the FATA]; or

•

where the foreign person ceases to be a foreign person [Schedule 3, item 8, section 130ZR of the FATA].

5.59 Where a person ceases to be a foreign person and a register notice is provided in accordance with section 130ZR, the registered circumstances relating to the person will cease but no register notice is required under section 130ZQ. [Schedule 3, item 8, subsection 130ZR(2)]

5.60 The data standards will be able to provide for a foreign person to have access to information on the Register about the registered circumstances about that person, to assist them to comply with these subsequent requirements to give register notices. [Schedule 3, item 8, paragraph 130ZZ(2)(f) of the FATA]

5.61 In a case where the foreign person dies, or is a corporation that is wound up, the register notice under section 130ZR is instead required to be given by an executor, administrator or liquidator (see below).

Register notices given by agents and requirements relating to persons who die or corporations that are wound up

5.62 An agent of a foreign person is able to give a register notice on the foreign person's behalf; however, the obligation remains with the foreign person to ensure the Registrar is notified. [Schedule 3, item 8, section 130Y of the FATA].

5.63 Where an agent gives a register notice to the Registrar on behalf of a person, the person on whose behalf the notice was given is the person required to keep records about the notice. [Schedule 3, item 5, paragraph 117(1)(e) of the FATA]

5.64 Where one or more registered circumstances exists in relation to a foreign person:

•

if that person is an individual and the person dies, the executor or administrator of the person's estate must give a register notice to the Registrar (the registrable event day is the day the executor or administrator is appointed) [Schedule 3, item 8, subsections 130ZR(4) and (5) of the FATA]; or

•

if that person is corporation and is wound up, the liquidator of the corporation must give a register notice to the Registrar (the registrable event day is the day the corporation is wound up) [Schedule 3, item 8, subsections 130ZR(6) and (7) of the FATA].

5.65 Where a person was required to give a register notice to the Registrar but dies before giving the notice, the executor or administrator of the estate is required to give a register notice to the Registrar in relation to that event. The registrable event day for such a notice is the day the executor or administrator is appointed, despite the registrable event day that would otherwise apply for that notice. [Schedule 3, item 8, section 130ZS of the FATA]

5.66 Where a corporation was required to give a register notice to the Registrar of an event but is wound up before giving the notice, the liquidator of the corporation is required to give a register notice to the Registrar about that event, despite the registrable event day that would otherwise apply for that notice. The registrable event day for such a notice is the day the corporation is wound up, despite the registrable event day that would otherwise apply for that notice. [Schedule 3, item 8, section 130ZT of the FATA]

5.67 The data standards will be able to provide for an executor or administrator of the estate of a person being wound up, or a liquidator of a company being wound up, to have access to information on the Register about the registered circumstances relating to that person, to assist them to comply with these requirements to give register notices. [Schedule 3, item 8, paragraph 130ZZ(2)(g) of the FATA]

Record keeping requirements

5.68 A person who is required to give a register notice to the Registrar must keep records for five years after the notice is given to the Registrar. Section 119 of the FATA makes it a criminal offence of strict liability to fail to keep records as required by the FATA. [Schedule 3, items 5 and 6, paragraphs 117(1)(e) and 118(d) of the FATA]

Information-gathering powers

5.69 The Treasurer currently has the power to require persons to provide information or produce documents relevant to the exercise of the Treasurer's powers under the FATA. This power will be expanded to enable the Treasurer to require persons to provide information or produce documents about information on the Register, or that may be on the Register, or relating to circumstances in which a person is required to give a register notice to the Registrar. [Schedule 3, item 9, subsection 133(1) of the FATA]

5.70 The Treasurer will be able to delegate these expanded information-gathering powers to the Registrar, in addition to the existing powers of delegation. [Schedule 3, item 13, subsection 137(2A) of the FATA]

Administrative provisions

5.71 The Registrar is empowered to make data standards, which are disallowable legislative instruments. The data standards relate to how information is collected, authenticated, stored, corrected, updated and may be provided to persons about whom the information relates. They may also prescribe internal processes and procedures to be followed by the Registrar and their delegates. For example, the data standards may prescribe the information required when giving a register notice to the Registrar, including details of the foreign person, the nature and details of the interest, and whether the interest was acquired under the national security test, as well as documents that must accompany the notice. These examples are not exhaustive. The data standards may not override any legislative requirement in relation to the Register. [Schedule 3, item 8, section 130ZZ of the FATA]

5.72 The Treasurer may give general directions to the Registrar about the administration of the Register, including about data standards to be made by the Registrar. The Registrar must comply with a direction given by the Treasurer. [Schedule 3, item 8, section 130ZW of the FATA]

5.73 The Registrar is able to delegate its powers and functions to a person that it may delegate powers to under another law of the Commonwealth, or to a person prescribed by the regulations. Additionally, where the Registrar has been delegated powers by the Treasurer, the Registrar may sub-delegate those powers to any of those persons. However, a power to make a legislative instrument may not be delegated or sub-delegated by the Registrar (such as to make data standards, or to make a legislative instrument under the regulations to extend the period for giving a register notice). A delegate or sub-delegate of the Registrar must comply with any written directions issued by the Registrar. [Schedule 3, items 8 and 13, section 130ZX and subsection 137(2A) of the FATA]

5.74 The Treasurer's power to appoint the Registrar, and to give directions to the Registrar, will not be able to be delegated. The power to extend the period for giving a register notice will be able to be delegated to the Secretary of the Treasury, the Commissioner or an SES employee, or acting SES employee, in the Department of the Treasury or the Commissioner (in addition to being delegable to the Registrar). [Schedule 3, items 11 and 12, subsections 137(1) and (2) of the FATA]

5.75 Information on the Register is able to be used, recorded or disclosed for any purpose that protected information can be used for under Division 3 of Part 7 of the FATA. In particular, the Register can be made available to specified persons, for the purposes of the administration of the FATA (this does not limit other purposes authorised by Division 3 of Part 7 of the FATA). [Schedule 3, items 7 and 8, sections 126A and 130V of the FATA]

5.76 Consistent with the existing practices for similar registers, the information on the Register will not be publicly available and will not be able to be inspected by the public.

5.77 The Registrar is required to give the Treasurer an annual report to be tabled in Parliament, using de-identified statistical information from the Register. The Commissioner must give the report to the Treasurer as soon as practicable after 30 June each year. [Schedule 3, item 8, section 130ZY of the FATA]

Consequential amendments

5.78 Consequential amendments enable the Registrar to seek civil penalty orders, and to issue infringement notices, about a person failing to give a register notice to the Registrar. [Schedule 2, items 18, 19, 20, 25, 26, 27, 28, 29, 30, 36 and 38, sections 99, 100 and 101 of the FATA]

5.79 The Agricultural Land and Water Register Act will be repealed. This repeal will take place when the new Register of Foreign Ownership of Australian Assets starts to operate. At this time, the existing Register of Foreign Ownership of Water Entitlements and Register of Foreign Ownership of Agricultural Land will be incorporated into the new Register. [Schedule 3, item 14, Register of Foreign Ownership of Water or Agricultural Land Act 2015]

5.80 For continuity of reporting obligations, as well as to ensure the transfer of information from one Register to another, it would not be desirable to repeal the Agricultural Land and Water Register Act any time prior to the new Register being established.

5.81 Following the repeal of the Agricultural Land and Water Register Act, consequential amendments will be made to repeal various provisions in the FATA about that Act. [Schedule 3, items 15 to 18, subsections 101A(3) and 101B(2) of the FATA]

5.82 Consequential amendments will also be made to the simplified outlines in the FATA to refer to the Register. [Schedule 3, items 1 and 4, sections 3 and 116 of the FATA]

Application and transitional provisions

5.83 The Register and associated amendments apply on a day declared by the Treasurer by legislative instrument, or four years after commencement, whichever is earlier. [Schedule 3, item 8, section 130Q of the FATA]

5.84 The timeframe of up to 4 years before the commencement of the new Register is required to ensure all necessary arrangements are made prior to the Registrar being appointed to establish the new Register. In particular, systems will need to be established to enable the new Register to be established, and to ensure continuity of the existing Registers as they are transitioned to the new Register.

5.85 When the Agricultural Land and Water Register Act is repealed, all information on the Register of Foreign Ownership of Water Entitlements and the Register of Foreign Ownership of Agricultural Land will be incorporated into the new Register of Foreign Ownership of Australian Assets established by Part 7A of the FATA. [Schedule 3, item 24]

5.86 Transitional provisions will ensure the continuity of the requirements to give notices about events about agricultural land and water as that information is moved to the new Register. [Schedule 3, items 19 to 23]

5.87 In particular:

•

if, at the time the new Register commences, a foreign person holds an agricultural land or water interest notified to the Commissioner for an outgoing Register, then the person will be taken to have a registered circumstance for the new Register about that agricultural land or water interest (with the ongoing register notice obligations applying to that registered circumstance) [Schedule 3, subitems 20(1) and (2) and 21(1) and (2)]

•

if a person was a foreign person that held an agricultural land or water interest previously notified to the Commissioner for an outgoing Register, but the person ceases to be a foreign person or ceases to hold the interest before the new Register commences and the person has not already notified the Commissioner of the cessation, then:

-

the person will not have a registered circumstance on the Register; but

-

the person will be required to give a register notice to the new Registrar about the cessation.

[Schedule 3, subitems 20(1) and (3) and 21(1) and (3)]

5.88 If a foreign person holds an agricultural land or water interest for which the person was required to notify the Commissioner for an outgoing Register, but the person has not already notified the Commissioner, then the person will be required to give a register notice to the new Registrar about the interest. [Schedule 3, items 22 and 23]

5.89 The Treasurer may, by legislative instrument, make transitional rules relating to the Register. [Schedule 3, item 24]

5.90 These transitional rules may provide for arrangements to facilitate transfer information to the new Register from the Register of Foreign Ownership of Water Entitlements and the Register of Foreign Ownership of Agricultural Land. These rules may otherwise make transitional provision relating to the repeal of the Agricultural Land and Water Register Act.

5.91 These rules will also be able to provide for the transfer of other information collected for the purposes of the FATA into the new Register, such as the register of foreign ownership of residential land maintained by the Commissioner. This power will be sufficiently broad to enable the Treasurer to facilitate the transfer of all relevant information onto the new Register.

5.92 The transitional rules will also be able to create transitional registered circumstances about information transitioned onto the new Register, including providing for when those registered circumstances cease. This is necessary to enable ongoing Register obligations to apply about information transitioned onto the Register, for example where a person then ceases to hold the relevant interest. Transitional registered circumstances must arise no later than 12 months after the Register commencement day.

5.93 Transitional rules may be made or amended up to 12 months after the Register commencement day. After that period, the Treasurer will only have the ability to revoke the transitional rules.

5.94 The Commissioner will be required to give a final report for the Parliament under section 34 of the Agricultural Land and Water Register Act, following the repeal of that Act. [Schedule 3, item 25]