Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 4 - THRESHOLDS  

SECTION 51   TAKING ACTION IN RELATION TO ENTITIES AND BUSINESSES  

51(1)    
Subject to subsections (2) and (3) , the following table prescribes values for section 51 of the Act (entities and businesses) to the extent that that section relates to items 2 to 5 of the table in that section.

Threshold value for entities and businesses
Item	For action taken by …	the value (in millions of dollars) is …
1	an agreement country or region investor where the action relates to:	1,192
	(a) an entity, or a subsidiary of an entity, that is not carrying on a sensitive business or a trustee of a trust that does not hold assets of a sensitive business; or
	(b) a business that is not a sensitive business
2	any foreign person in any other circumstances	275

Note: A value prescribed by this section is indexed under section 58 .

51(2)    

The following table prescribes values for the purposes of section 51 of the Act to the extent that that section relates to items 2 to 3 of the table (entities) in that section.

Threshold value for entities
Item	For action taken by …	the value (in millions of dollars) is …
1	an enterprise, or a national, of the Republic of India (other than a foreign government investor) where:	500
	(a)	the action relates to an entity that:
		(i)	is not carrying on a sensitive business and does not hold assets of a sensitive business; and
		(ii)	is carrying on a business that supplies a service through a commercial presence in Australia; and
	(b)	no subsidiary, or holding entity, of the entity carries on a sensitive business or holds assets of a sensitive business; and
	(c)	either:
		(i)	the entity derives earnings from carrying on the business and the amount of those earnings before interest and tax, derived in the most recent financial year for which the financial accounts of the entity have been audited, exceeds 50% of the amount of the total earnings for the entity; or
		(ii)	the entity uses assets to carry on the business and the value of those assets exceeds 50% of the total asset value for the entity

51(3)    

The following table prescribes values for the purposes of section 51 of the Act to the extent that that section relates to items 4 and 5 (Australian businesses) of the table in that section.

Threshold value for Australian businesses
Item	For action taken by …	the value (in millions of dollars) is …
1	an enterprise, or a national, of the Republic of India (other than a foreign government investor) where:	500
	(a)	the action relates to an Australian business that:
		(i)	is not a sensitive business; and
		(ii)	supplies a service through a commercial presence in Australia; and
	(b)	the Australian business uses assets to supply the service and the value of those assets exceeds 50% of the value of the total assets of the business

51(4)    

For the purposes of subsections (2) and (3) , commercial presence and supply of a service have the same meaning as in the Australia-India Economic Cooperation and Trade Agreement, done at Melbourne and New Delhi on 2 April 2022, as in force from time to time.

Note: The Agreement could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).