Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 3 - EXEMPTIONS  

Division 2 - Exemptions applying for all purposes  

SECTION 27   MONEYLENDING AGREEMENTS  

27(1)    

The Act does not (subject to subsections (2) , (2A) and (3) ) apply in relation to an interest in securities, assets, a trust, Australian land or a tenement, or a registrable water interest, (the interest ) if:

(a)    the interest is:

(i) held solely by way of security for the purposes of a moneylending agreement; or

(ii) acquired by way of enforcement of a security held solely for the purposes of a moneylending agreement; and

(b)    

the entity that holds or acquires the interest is:

(i) the entity (the first entity ) that entered the moneylending agreement; or

(ii) a subsidiary or holding entity of an entity mentioned in subparagraph (i) or (ii) ; or

(iii) a person who is (alone or with others) in a position to determine the investments or policy of the first entity; or

(iv) a security trustee who holds or acquires the interest on behalf of a person or entity mentioned in any of subparagraphs (i) to (iii) ; or

(v) a receiver, or a receiver and manager, appointed by or in relation to a person or entity mentioned in any of subparagraphs (i) to (iv) .

Interests relating to residential land

27(2)    
For an interest in residential land where the first entity is not a foreign government investor, the Act does not apply in relation to the interest only if:

(a)    an entity (the key entity ) that is:

(i) the first entity; or

(ii) a holding entity of the first entity;

is an ADI, or otherwise licensed (whether or not in Australia) as a financial institution; and

(b)    

if the key entity is not an ADI:

(i) there are at least 100 holders of securities in the key entity; or

(ia) there are at least 100 members of the key entity; or

(ii) the key entity is listed for quotation in the official list of a stock exchange (whether or not in Australia).

Interests relating to national security land or national security businesses

27(2A)    

For an interest of any of the following kinds acquired by way of enforcement of a security as mentioned in subparagraph (1)(a)(ii) :

(a)    an interest in Australian land that, at the time of the acquisition, is national security land;

(b)    a legal or equitable interest in an exploration tenement in respect of Australian land that, at the time of the acquisition, is national security land;

(c)    an interest in an asset of a national security business;

(d)    an interest in securities in an entity that carries on a national security business;

the Act does not apply in relation to the interest only if the entity that acquires the interest is covered by subparagraph (1)(b)(v) .

Interests acquired by foreign government investors

27(3)    
For an interest acquired by a foreign government investor by way of enforcement of a security as mentioned in subparagraph (1)(a)(ii) , the Act does not apply in relation to the interest only if:

(a)    for a foreign government investor that is an ADI or a subsidiary of an ADI:

(i) 12 months have not passed since the acquisition of the interest; or

(ii) at least 12 months have passed since the acquisition of the interest and the foreign government investor is making a genuine attempt to dispose of the interest; or

(b)    otherwise:

(i) 6 months have not passed since the acquisition of the interest; or

(ii) at least 6 months have passed since the acquisition of the interest and the foreign government investor is making a genuine attempt to dispose of the interest.

Note: Examples of the kinds of actions that may constitute a genuine attempt to dispose of an interest include deciding on the method of disposal, and complying with any requirements of a law that apply before the interest can be disposed of.

Relationship between subsections (2), (2A) and (3)

27(4)    

Subsections (2) , (2A) and (3) do not limit each other.

Note: The effect of this section is that:

(a) acquisitions of interests mentioned in this section are not significant actions or notifiable actions; and

(b) such interests are to be disregarded for other purposes, such as in determining whether a person holds a substantial interest in an entity or is a subsidiary of another entity.