Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 1 - PRELIMINARY  

SECTION 5  

5   DEFINITIONS  

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) asset;

(b) Australian business;

(c) Australian land;

(d) entity;

(e) foreign person;

(f) interest;

(g) security;

(h) share.

In this instrument:

acquire
(Repealed by FRLI No F2020L01568, Sch 1 [ 1] (effective 1 January 2021).)

Act
means the Foreign Acquisitions and Takeovers Act 1975 .

ADI
has the same meaning as in the Banking Act 1959 .

Note: ADI is short for authorised deposit-taking institution.

aggregate interest
of a specified percentage in an unincorporated limited partnership has the meaning given by subsection 17(3) .

agreement country
(Repealed by FRLI No F2019L01624, Sch 1 [ 1] (effective 17 January 2020).)

agreement country investor
(Repealed by FRLI No F2019L01624, Sch 1 [ 2] (effective 17 January 2020).)

agreement country or region
means any of the following countries or regions:

(a) the United States of America;

(b) New Zealand;

(c) Chile;

(d) Japan;

(e) the Republic of Korea;

(f) China;

(g) Singapore;

(h) a country (other than Australia) for which the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, done at Santiago on 8 March 2018, is in force;

(i) the region of Hong Kong, China;

(j) the United Kingdom.

Note: The Agreement mentioned in paragraph (h) is in Australian Treaty Series [2018] ATS 23 and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

agreement country or region investor
means an entity (within the ordinary meaning of the term) that is:

(a) an enterprise or a national of a country that is an agreement country or region; or

(b) an enterprise or a resident of a region that is an agreement country or region;

(other than a foreign government investor).

agribusiness
: see section 12 .

Note: Agribusiness is defined in section 4 of the Act.

agricultural land corporation
has the meaning given by subsection 13(2) .

agricultural land trust
has the meaning given by subsection 13(3) .

Australian and New Zealand Standard Industrial Classification Codes
means the Australian and New Zealand Standard Industrial Classification Codes, as in force from time to time, published by the Australian Bureau of Statistics.

Australian land corporation
has the meaning given by subsection 13(4) .

Australian land trust
has the meaning given by subsection 13(5) .

Australian media business
has the meaning given by section 13A .

businesses or entities certificate
has the meaning given by section 42 .

class value
has the meaning given by subsections 21(3) and (5) .

consideration
has a meaning affected by subsection 14(2) .

consideration for the acquisition or issue
of a class of securities has the meaning given by subsection 21(4) .

defence and intelligence personnel
means:

(a) a member of the Australian Defence Force; or

(b) in relation to the Defence Department - the following:

(i) an APS employee in the Department;

(ii) a consultant engaged by the Secretary of the Department on behalf of the Commonwealth;

(iii) a person whose services are made available to the Department under an arrangement entered into by the Secretary of the Department on behalf of the Commonwealth; or

(c) in relation to an agency in the national intelligence community - the following:

(i) a member of the staff of the agency;

(ii) a consultant engaged by the agency;

(iii) a person whose services are made available to the agency or the head (however described) of the agency.

Defence Department
means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903 .

direct interest
in an entity or business has the meaning given by section 16 .

education institution
has the same meaning as in the Student Assistance Act 1973 .

enterprise
of a country or a region has the meaning given by section 7 .

excluded provisions
has the meaning given by section 28 .

existing value
has the meaning given by subsection 58(6) .

exploration tenement
(Repealed by FRLI No F2020L01568, Sch 1 [ 3] (effective 1 January 2021).)

foreign country
, for the purposes of the definition of foreign intelligence agency , includes a region where:

(a) the region is a colony, territory or protectorate of a foreign country; or

(b) the region is part of a foreign country; or

(c) the region is under the protection of a foreign country; or

(d) a foreign country exercises jurisdiction or control over the region; or

(e) a foreign country is responsible for the region ' s international relations.

foreign government investor
has the meaning given by section 17 .

foreign intelligence agency
means a government body that has responsibility for:

(a) intelligence gathering for a foreign country; or

(b) the security of a foreign country.

GDP implicit price deflator value
has the meaning given by subsection 58(6) .

general insurer
has the meaning given by the Insurance Act 1973 .

general partner
(Repealed by FRLI No F2020L01568, Sch 4 [ 3] (effective 1 January 2021).)

government authority
has the meaning given by subsection 44(3) .

government body
means:

(a) the government of a country; or

(b) an agency or authority of the government of a country; or

(c) the government of part of a country; or

(d) an agency or authority of the government of part of a country.

intelligence use
includes security intelligence, foreign intelligence or financial intelligence.

interest
(Repealed by FRLI No F2020L01568, Sch 1 [ 5] (effective 1 January 2021).)

inter-modal transfer facility
has the meaning given by the National Land Transport Act 2014 .

land entity
means an agricultural land corporation, an agricultural land trust, an Australian land corporation or an Australian land trust.

life company
has the meaning given by the Life Insurance Act 1995 .

limited partner
(Repealed by FRLI No F2020L01568, Sch 4 [ 3] (effective 1 January 2021).)

limited partnership
(Repealed by FRLI No F2020L01568, Sch 4 [ 3] (effective 1 January 2021).)

mining operation
has the meaning given by subparagraph 44(4)(b)(ii) .

mining, production or exploration entity
means an entity where the total value of legal or equitable interests in tenements held by the entity, or any subsidiary of the entity, exceeds 50% of the total asset value for the entity.

moneylending agreement
means:

(a) an agreement entered into:

(i) in good faith and on ordinary commercial terms; and

(ii) in the ordinary course of carrying on a moneylending business;

except an agreement dealing with any matter unrelated to the carrying on of that moneylending business; or

(b) an agreement entered into:

(i) in good faith and on ordinary commercial terms; and

(ii) relating to the purpose of lending money or otherwise providing financial accommodation; and

(iii) by an entity that was created predominantly for that purpose by a person or entity in the ordinary course of carrying on a moneylending business;

except an agreement if:

(iv) the agreement deals with any matter unrelated to the purpose of lending money or otherwise providing financial accommodation and unrelated to the carrying on of that moneylending business; or

(v) the entity, before entering into the agreement, began carrying on a business unrelated to the purpose of lending money or otherwise providing financial accommodation; or

(c) for a person or entity that:

(i) is carrying on a moneylending business; or

(ii) was created predominantly for the purpose of lending money or otherwise providing financial accommodation by a person or entity in the ordinary course of carrying on a moneylending business; or

(iii) is a subsidiary or holding entity of a person or entity covered by subparagraph (i) or (ii) ;

an agreement to acquire an interest arising from a moneylending agreement (within the meaning of paragraph (a) or (b) ).

moneylending business
means a business of lending money or otherwise providing financial accommodation.

most recent financial statement
has the meaning given by subsection 23(2) .

national
of a country has the meaning given by section 8 .

national security business
has the meaning given by section 8AA .

national security land
means:

(a) defence premises (within the meaning of section 71A of the Defence Act 1903 , excluding subparagraph (a)(iii) of the definition of that expression); or

(b) land in which the Commonwealth, as represented by an agency in the national intelligence community, has an interest that:

(i) is publicly known; or

(ii) could be known upon the making of reasonable inquiries.

near-new dwelling interest
means an interest in a dwelling, if all of the following apply:

(a) the dwelling is contained in a development;

(b) an agreement to sell the interest in the dwelling had become binding;

(c) that agreement did not result in the transfer of title to the interest, and is no longer in force;

(d) the interest is to be sold under another agreement;

(e) the interest would be an interest in a new dwelling, to be acquired under the other agreement, if there were no agreements to which paragraphs (b) and (c) applied.

personal information
has the same meaning as in the Privacy Act 1988 .

property
means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action.

public infrastructure
means:

(a) an airport or airport site (within the meaning of the Airports Act 1996 ); or

(b) a port (within the meaning of the Maritime Transport and Offshore Facilities Security Act 2003 ); or

(c) infrastructure for public transport (whether or not the infrastructure is operated or owned by a Commonwealth, State or Territory body); or

(d) a system or facility that is used to provide any of the following services to the public:

(i) the generation, transmission, distribution or supply of electricity;

(ii) the supply of gas;

(iii) the storage, treatment or distribution of water;

(iv) the treatment of sewage.

public utility
means a body that provides any of the following products or services, or any similar products or services, to the public:

(a) reticulated products or services, such as electricity, gas, water, sewerage or drainage;

(b) telecommunication services;

(c) transport services.

registered scheme
has the same meaning as in the Corporations Act 2001 .

registrable superannuation entity
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

related body corporate
has the same meaning as in the Corporations Act 2001 .

relevant agreement country investor
means an entity (within the ordinary meaning of the term) that is an enterprise or national of:

(a) the United States of America; or

(b) New Zealand; or

(c) Chile;

(other than a foreign government investor).

relevant subsidiary
of an entity (the higher entity ) means an entity that is:

(a) a subsidiary of the higher entity; and

(b) either:

(i) for a corporation - a relevant entity that is carrying on an Australian business; or

(ii) for a unit trust - a relevant entity the trustee of which holds assets of an Australian business.

relevant World Trade Organization member
means any of the following members of the World Trade Organization established by the World Trade Organization Agreement:

(a) Hong Kong, China;

(b) Macao, China;

(c) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.

resident
of a region has the meaning given by section 8A .

resident trust
means a trust that is taken to be a resident trust estate under subsection 95(2) of the Income Tax Assessment Act 1936 .

residential care
has the same meaning as in the Aged Care Act 1997 .

residential land (near-new dwelling interests) certificate
has the meaning given by section 43A .

residential land (other than established dwellings) certificate
has the meaning given by section 43B .

responsible entity
of a registered scheme has the same meaning as in the Corporations Act 2001 .

RSE licensee
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

retirement village
has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 .

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

sensitive business
: see section 22 .

Note: Sensitive business is defined in section 26 of the Act.

starts an Australian business
(Repealed by FRLI No F2020L01568, Sch 1 [ 7] (effective 1 January 2021).)

tenement
means an exploration tenement or a mining or production tenement.

Note: Although an agreement giving rights that form the basis of a tenement may be any duration, the duration of the agreement must be at least 5 years for an interest in the agreement to be an interest in Australian land. (See the definitions of exploration tenement , mining or production tenement and interest in Australian land in sections 4 and 12 of the Act.)

tenements and mining, production or exploration entities certificate
has the meaning given by section 43 .

total asset value
has the meaning given by section 20 .

total earnings
has the meaning given by subsection 12(2) .

vacant

(a) land is vacant if there is no substantive permanent building on the land that can be lawfully occupied by persons, goods or livestock; but

(b) despite paragraph (a), land is not vacant if a wind or solar power station is located on the surface of the land.

value
, of consideration, has the meaning given by subsections 14(3) to (4A) .

value
, of an interest in Australian land held by an entity, includes the value of the entity ' s interest (if any) in a wind or solar power station located on the land (whether on or beneath the surface).

wind or solar power station
means:

(a) an accredited power station within the meaning of the Renewable Energy (Electricity) Act 2000 that is:

(i) a wind power station (incorporating one or more wind turbines); or

(ii) a solar electricity generation system; or

(b) any component of such an accredited power station that is taken to be a part of the power station for the purposes of the Renewable Energy (Electricity) Act 2000 .

Note: For components of a wind or solar power station that are taken to be a part of the power station for the purposes of that Act, see clause 8 or 10 of Schedule 1 to the Renewable Energy (Electricity) Regulations 2001 .

World Trade Organization Agreement
means the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994.

Note: The Agreement is in and could in 2015 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).