Foreign Acquisitions and Takeovers Act 1975

PART 1 - PRELIMINARY  

Division 2 - Definitions  

Subdivision A - Dictionary of definitions  

SECTION 4   4   DICTIONARY OF DEFINITIONS  


In this Act:

6 month period
has the meaning given by subsection 113(3) .

acquire
an interest of a specified percentage in an entity has the meaning given by section 20 .

acquisition of property
has the same meaning as in paragraph 51(xxxi) of the Constitution.

aggregate interest
of a specified percentage in an entity has the meaning given by subsection 17(2) .

aggregate substantial interest
: 2 or more persons hold an aggregate substantial interest in an entity or trust if:


(a) for an entity - the persons hold an aggregate interest of at least 40% in the entity; or


(b) for a trust (including a unit trust) - the persons, together with any one or more associates of any of them hold, in the aggregate, beneficial interests in at least 40% of the income or property of the trust.

Note: See also sections 17 (meanings of interest and aggregate interest of a specified percentage in an entity) and 18 (rules relating to determining percentages of interests in entities).

agribusiness
: an Australian entity or Australian business is an agribusiness in the circumstances prescribed by the regulations.

agricultural land
means land in Australia that is used, or that could reasonably be used, for a primary production business.

Note: The regulations may provide that land of a specified kind is not agricultural land (see subsection 37(3) ).

agricultural land corporation
has the meaning prescribed by the regulations.

agricultural land trust
has the meaning prescribed by the regulations.

asset
includes an interest in an asset.

associate
has the meaning given by section 6 .

Australia
, when used in a geographical sense, includes the external Territories.

Australian business
has the meaning given by section 8 .

Australian corporation
means a corporation formed in Australia.

Australian entity
means an Australian corporation or an Australian unit trust.

Australian land
means agricultural land, commercial land, residential land or a mining or production tenement.

Australian land corporation
has the meaning prescribed by the regulations.

Australian land trust
has the meaning prescribed by the regulations.

Australian subsidiary
of a foreign entity means an Australian entity that is a subsidiary of the foreign entity.

Note: For the definition of subsidiary , see section 21 .

Australian unit trust
means a unit trust:


(a) the trustee of which holds relevant Australian assets; or


(b) the trustee of which carries on an Australian business; or


(c) the central management and control of which is in Australia; or


(d) in which one or more persons who are ordinarily resident in Australia hold more than 50% of the beneficial interests in the income or property of the unit trust; or


(e) that is listed for quotation in the official list of a stock exchange in Australia.

change in control
has the meaning given by section 54 .

civil penalty provision
has the same meaning as in the Regulatory Powers Act.

commercial land
means land in Australia or the seabed of the offshore area, other than land:


(a) used wholly and exclusively for a primary production business; or


(b) on which there is at least one dwelling (except commercial residential premises); or


(c) on which the number of dwellings (except commercial residential premises) that could reasonably be built is less than the number prescribed by the regulations for the purposes of subparagraph (a)(ii) of the definition of residential land in this section.

commercial residential premises
has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 .

Commonwealth entity
has the same meaning as in the Public Governance, Performance and Accountability Act 2013 .

Commonwealth, State or Territory body
includes a Department of State, or an authority or agency, of the Commonwealth, a State or a Territory.

consideration
has the meaning prescribed by the regulations.

constituent document
of an entity means any rules or other document constituting or establishing the entity or governing its activities, and includes:


(a) for a corporation - the constitution of the corporation; and


(b) for a unit trust - the trust deed for the trust.

controls
:


(a) the voting power - has the meaning given by section 23 ; and


(b) an entity or business - has the meaning given by subsections 54(4) and (5) .

debenture
includes:


(a) debenture stock, bonds and notes; and


(b) any other document evidencing or acknowledging indebtedness of an entity, whether or not constituting a charge on the assets of the entity.

decision period
has the meaning given by subsection 77(5) .

determines the policy
of a business of exploiting a mining or production tenement has a meaning affected by section 24 .

development
means one or more multi-storey buildings if:


(a) the buildings will be, are being or have been built; and


(b) the buildings are or were under one development approval; and


(c) the number of independent self-contained dwellings (other than townhouses) that the buildings contain or will contain is at least the number prescribed by the regulations.

direct interest
has the meaning prescribed by the regulations.

director
includes any person occupying the position of director (however described) of a corporation.

engage in conduct
includes fail or refuse to engage in conduct.

enters
has a meaning affected by section 25 .

entity
means a corporation or a unit trust.

established dwelling
means a dwelling (except commercial residential premises) on residential land that is not a new dwelling.

exemption certificate
means a certificate given under:


(a) section 57 , 58 or 59 ; or


(b) regulations made for the purposes of section 63 .

foreign corporation
means a foreign corporation to which paragraph 51(xx) of the Constitution applies.

foreign entity
means an entity that is not an Australian entity.

foreign government
means an entity (within the ordinary meaning of the term) that is:


(a) a body politic of a foreign country; or


(b) a body politic of part of a foreign country; or


(c) a part of a body politic mentioned in paragraph (a) or (b).

foreign government investor
has the meaning prescribed by the regulations.

foreign person
means:


(a) an individual not ordinarily resident in Australia; or


(b) a corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or


(c) a corporation in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or


(d) the trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or


(e) the trustee of a trust in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or


(f) a foreign government; or


(g) any other person, or any other person that meets the conditions, prescribed by the regulations.

Note: In certain circumstances, an associate of a foreign person may be taken to be a foreign person even if the associate is not a foreign person (see subsection 54(7) ).

general meeting
of an entity means:


(a) for a corporation - a general meeting of the corporation; or


(b) for a unit trust - a general meeting of the unit holders of the trust.

holding entity
has the meaning given by subsection 21(4) .

independent director
has the meaning given by section 7 .

interest
:


(a) in a security - has the meaning given by section 9 ; and


(b) in an asset - has the meaning given by section 10 ; and


(c) in a trust - has the meaning given by section 11 ; and


(d) in Australian land - has the meaning given by section 12 ; and


(e) of a specified percentage in an entity - has the meaning given by section 17 .

Note: For other rules relating to interests in a security, asset, trust or Australian land, see sections 13 to 15 .

interim order
means an order made under section 68 .

just terms
has the same meaning as in paragraph 51(xxxi) of the Constitution.

land
includes:


(a) a building (including a new dwelling or an established dwelling) or a part of a building; and


(b) subsoil of land.

land register
means a register kept under a law of the Commonwealth, a State or a Territory in which interests (within the ordinary meaning of the term) in Australian land are registered.

lease
includes a sublease.

long term lease
means a lease granted by the Commonwealth, a State or a Territory for a term (including any extension or renewal) that is reasonably likely, at the time the lease is granted, to exceed 20 years.

mining or production tenement
means:


(a) a right (however described) under a law of the Commonwealth, a State or a Territory to recover minerals (such as coal or ore), oil or gas in Australia or from the seabed or subsoil of the offshore area, other than a right to recover minerals, oil or gas for the purposes of prospecting or exploring for minerals, oil or gas; or


(b) a right that preserves a right mentioned in paragraph (a); or


(c) a lease under which the lessee has a right mentioned in paragraph (a) or (b); or


(d) an interest in a right mentioned in paragraph (a) or (b) or under a lease mentioned in paragraph (c).

near-new dwelling acquisition
has the meaning given by subsection 113(4A) .

near-new dwelling interest
has the same meaning as in regulations made for the purposes of section 63 (exemption certificates provided for by the regulations).

new dwelling
means a dwelling (except commercial residential premises) that will be, is being or has been built on residential land and that:


(a) has not been previously sold as a dwelling; and


(b) either:


(i) has not been previously occupied; or

(ii) if the dwelling is contained in a development and the dwelling was sold by the developer of the development - has not been previously occupied for more than 12 months in total.

Note: For when a dwelling is sold, see subsections 15(4) and (5) .

new dwelling acquisition
has the meaning given by subsection 113(4) .

no objection notification
has the meaning given by subsections 74(2) and 75(2) .

notifiable action
has the meaning given by Division 3 of Part 2 .

occupation day
has the meaning given by section 115C .

officer
of an entity includes the following:


(a) for a corporation - a director of the corporation;


(b) for a unit trust:


(i) the trustee of which is an individual - the trustee; and

(ii) the trustee of which is a corporation - a director of the trustee; and

(iii) in any case - any other individual involved in the central management and control of the trust;


(c) a person who is, or a person in a group of persons who are, in a position to determine the investments or policy of the entity or a trustee of the entity;


(d) a person who makes, or participates in making, decisions that affect the whole, or a substantial part of, the business of the entity;


(e) a person who has the capacity to affect significantly the financial standing of the entity;


(f) a receiver and manager of any part of the business of the entity appointed under a power contained in any instrument;


(g) an administrator of the entity;


(h) an administrator under a deed of company arrangement executed by the entity;


(i) a liquidator of the entity appointed in a voluntary winding up.

offshore area
means:


(a) the exclusive economic zone of Australia; or


(b) the continental shelf of Australia.

ordinarily resident
has a meaning affected by section 5 .

potential voting power
has the meaning given by section 22 .

primary production business
has the same meaning as in the Income Tax Assessment Act 1997 .

proposes
:


(a) to acquire an interest in securities, assets or Australian land - has a meaning affected by subsection 16(1) ; and


(b) to enter or terminate an agreement - has a meaning affected by subsection 16(2) .

protected information
has the meaning given by section 120 .

Regulatory Powers Act
means the Regulatory Powers (Standard Provisions) Act 2014 .

relative
has the same meaning as in the Income Tax Assessment Act 1997 .

relevant Australian assets
means:


(a) Australian land, including legal and equitable interests (within the ordinary meaning of the term) in such land; or


(b) securities in an Australian entity.

relevant entity
means any of the following:


(a) an Australian entity;


(b) a foreign corporation:


(i) that holds relevant Australian assets; or

(ii) that is a holding corporation of one or more Australian corporations;


(c) a holding entity of such a foreign corporation or of an Australian unit trust.

Note: A holding entity mentioned in paragraph (c) may be a foreign corporation of a kind that is not mentioned in paragraph (b).

residential land
:


(a) means land in Australia if:


(i) there is at least one dwelling on the land; or

(ii) the number of dwellings that could reasonably be built on the land is less than the number prescribed by the regulations; and


(b) does not include land:


(i) used wholly and exclusively for a primary production business; or

(ii) on which the only dwellings are commercial residential premises.

residential land acquisition
means a notifiable action to acquire an interest in residential land.

residential land (near-new dwelling interests) certificate
has the same meaning as in regulations made for the purposes of section 63 (exemption certificates provided for by the regulations).

residentially occupied
has the meaning given by section 115C .

scheme
means:


(a) any agreement, understanding, promise or undertaking:


(i) whether express or implied; and

(ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; and


(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

Secretary
means the Secretary of the Department.

security
means a share in a corporation or a unit in a unit trust.

senior officer
of an entity means an officer of the entity under any of paragraphs (a) to (e) of the definition of officer in this section, except an independent director of the entity.

sensitive business
has the meaning given by section 26 .

separate government entity
means an individual, corporation or corporation sole that:


(a) is an agency or instrumentality of a foreign country or a part of a foreign country; and


(b) is not part of the body politic of a foreign country or of a part of a foreign country.

share
of a corporation means a share in the share capital of the corporation, and includes:


(a) stock into which all or any of the share capital of the corporation has been converted; and


(b) except in section 9 , an interest in such a share or in such stock.

significant action
has the meaning given by Division 2 of Part 2 .

significant agreement
with an Australian business is an agreement relating to:


(a) the leasing of, the letting on hire of, or the granting of other rights to use, assets of the business; or


(b) the participation by a person in the profits or central management and control of the business.

subsidiary
has the meaning given by subsections 21(1) to (3) .

substantial interest
: a person holds a substantial interest in an entity or trust if:


(a) for an entity - the person holds an interest of at least 20% in the entity; or


(b) for a trust (including a unit trust) - the person, together with any one or more associates, holds a beneficial interest in at least 20% of the income or property of the trust.

Note 1: See also sections 17 (meanings of interest and aggregate interest of a specified percentage in an entity) and 18 (rules relating to determining percentages of interests in entities).

Note 2: For when a person acquires a substantial interest in an entity, see section 20 .

temporary resident
means an individual who:


(a) holds a temporary visa under the Migration Act 1958 that allows the individual to remain in Australia for a continuous period of more than 12 months (disregarding the amount of that period remaining); or


(b) meets the following conditions:


(i) the individual is residing in Australia;

(ii) the individual has applied for a permanent visa under the Migration Act 1958 ;

(iii) the individual holds a bridging visa under that Act that allows the individual to remain in Australia until the application has been finally determined; or


(c) meets the conditions prescribed by the regulations.

this Act
includes the regulations.

threshold test is met
has the meaning given by Subdivision B of Division 4 of Part 2 .

tier 1 infringement notice
has the meaning given by subsection 101(1) .

tier 2 infringement notice
has the meaning given by subsection 101(2) .

total asset value
for an entity has the meaning prescribed by the regulations.

total issued securities value
for an entity has the meaning prescribed by the regulations.

unpaid vacancy fees
has the meaning given by section 115K .

unpaid vacancy penalties
has the meaning given by section 115K .

vacancy fee
has the meaning given by section 115C .

vacancy year
has the meaning given by section 115C .

voting power
has the meaning given by subsection 22(1) .




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