Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 4 - THRESHOLDS  

SECTION 52   LAND  

Land without threshold value

52(1)    

For subsection 52(1) of the Act, the following land is prescribed:

(a)    residential land, except residential land covered by subsection (2) of this section;

(b)    commercial land that is vacant;

(c)    a mining or production tenement, except a tenement being acquired by a relevant agreement country investor;

(d)    land (including land otherwise covered by subsection (4) or (5) of this section) acquired by a foreign government investor;

(e)    land held by an Australian land corporation or the trustee of an Australian land trust (except an agricultural land corporation or an agricultural land trust) if:

(i) the interest in Australian land that is acquired by a foreign person is an interest in a share in the corporation or a unit in the trust; and

(ii) the land is not covered by subsection (3) of this section.

Residential land not covered by subsection (1)

52(2)    
Residential land is covered by this subsection if:

(a)    the land is also commercial land that is not vacant; and

(b)    the area of land that is residential land (excluding any commercial residential premises) is less than 10% of the total area of the land; and

(c)    the value of the land that is residential land (excluding any commercial residential premises) is less than 10% of the total value of the land; and

(d)    a reasonable assessment of the area and value of the land was made in determining that the land is covered by paragraphs (b) and (c).

Note: The threshold for land covered by this subsection is in the table in subsection (5) .

Land held by Australian land corporation or trustee not covered by subsection (1)

52(3)    

Land held by an Australian land corporation or the trustee of an Australian land trust is covered by this subsection if:

(a)    

the total value of interests in the following land held by the corporation or trustee is less than 10% of the value of the total assets of the corporation or trustee:

(i) residential land, except interests in land covered by subsection (3A) ;

(ii) commercial land that is vacant;

(iii) a mining or production tenement; and

(b)    a reasonable assessment of the value of the interests was made in determining that the land is covered by paragraph (a).

Note: The threshold for land covered by this subsection is in the table in subsection (5) .

52(3A)    

The following land is covered by this subsection:

(a)    residential land covered by paragraph 38(5)(a) ;

(b)    residential land covered by subsection (2) of this section.

Threshold value for agricultural land

52(4)    

The following table prescribes a value for paragraph 52(2)(b) of the Act (agricultural land).

Threshold value for agricultural land
Item	For this kind of land …	the value (in millions of dollars) is …
1	agricultural land that is being acquired by a foreign person	15
2	agricultural land that is held by an agricultural land corporation or an agricultural land trust if the interest that is being acquired by a foreign person is an interest in a share in the corporation or a unit in the trust	15

Note: The threshold test and thresholds relating to agricultural land do not apply in relation to land acquired by a relevant agreement country investor or an enterprise or national (other than a foreign government investor) of Thailand (see subsection 40(2) ).

Threshold value for any other land

52(5)    

The following table prescribes values for paragraph 52(3)(b) of the Act (any other land).

Threshold value for any other land
Item	For this kind of land …	the value (in millions of dollars) is …
1	land described in paragraph 52(3)(a) of the Act if the land:	1,192
	(a)	is being acquired by an agreement country or region investor; and
	(b)	is not covered by item 1A
1A	land described in paragraph 52(3)(a) of the Act that:	60
	(a)	meets all the conditions mentioned in subsection (6) of this section; and
	(b)	is being acquired by an agreement country or region investor where the entity is an enterprise or resident of the region of Hong Kong, China
2	land described in paragraph 52(3)(a) of the Act that is:	50
	(a)	being acquired by an enterprise or national of Thailand (other than a foreign government investor); and
	(b)	used wholly and exclusively for a primary production business
3	land described in paragraph 52(3)(a) of the Act that:	60
	(a)	meets all the conditions mentioned in subsection (6) of this section; and
	(b)	is being acquired by a foreign person (except an agreement country or region investor)
3A	land described in paragraph 52(3)(a) of the Act that:	500
	(a)	is commercial land that is not vacant; and
	(b)	is not covered by item 3 of this table; and
	(c)	is being acquired by an enterprise, or a national, of the Republic of India:
		(i) that is not a foreign government investor; and
		(ii) that a reasonable person would conclude (having regard to all the circumstances) genuinely intends to use the land, as soon as practical after it is acquired and throughout the period that the enterprise or national holds the interest in the land, predominantly for the supply of a service through a commercial presence in Australia
4	land described in paragraph 52(3)(a) of the Act if:	275
	(a)	the land is not covered by item 3 of this table; and
	(b)	the land is held by an Australian land corporation or the trustee of an Australian land trust; and
	(c)	the interest in Australian land that is acquired by a foreign person (except an agreement country or region investor) is an interest in a share in the corporation or a unit in the trust; and
	(d)	the land is covered by subsection (3) of this section
5	land described in paragraph 52(3)(a) of the Act that is being acquired by any foreign person in any circumstances other than those mentioned in another item of this table	275

Note 1: A value prescribed by this section (except by subsection (4) and item 2 of the table in this subsection) is indexed under section 58 .

Note 2: Section 71 deals with the threshold value for land described in paragraph 52(3)(b) of the Act being acquired by an agreement country or region investor where the entity is an enterprise or national of Peru.

Conditions for lower threshold

52(6)    

For the purposes of items 1A and 3 of the table in subsection (5) , the conditions are the following:

(a)    the land is commercial land that is not vacant;

(b)    the interest in the land being acquired gives a right to occupy the land or to be involved in the central management and control of the entity that holds the land;

(c)    

any one or more of the following applies at the time the interest in the land is acquired:

(i) the land will be leased to the Commonwealth, a State, a Territory or a Commonwealth, State or Territory body, except land leased to bodies covered by subsection (6A);

(ii) the land will be fitted out specifically for a business of a kind mentioned in subsection (7) ;

(iii) the land will be fitted out specifically to store, handle or dispose of biological agents on the List of Security-sensitive Biological Agents (within the meaning of the National Health Security Act 2007 );

(iv) an authorisation under a law of the Commonwealth, a State or a Territory will allow materials that are regulated under that law to be produced or stored on the land;

(vi) a mining operation will operate on the land;

(vii) a stored communication (within the meaning of the Telecommunications (Interception and Access) Act 1979 ) will be stored on the land;

(viii) the failure of part of a network unit (within the meaning of the Telecommunications Act 1997 ) on the land will result in telephony or internet services not being provided on other land;

(ix) servers critical to an ADI (within the meaning of the Banking Act 1959 ) or a stock exchange in Australia will be located on the land;

(x) public infrastructure will be located on the land.

52(6A)    

This subsection covers a corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013 ) other than the following bodies:

(a)    the Australian Nuclear Science and Technology Organisation;

(b)    Comcare (the body corporate established under section 68 of the Safety, Rehabilitation and Compensation Act 1988 );

(c)    the CSC (short for Commonwealth Superannuation Corporation) within the meaning of the Governance of Australian Government Superannuation Schemes Act 2011 ;

(d)    the Commonwealth Scientific and Industrial Research Organisation;

(e)    the Reserve Bank of Australia.

52(7)    

For the purpose of subparagraph (6)(c)(ii) , the businesses are:

(a)    a business of a kind covered by paragraph 22(2)(b) (sensitive businesses); or

(b)    a business of providing storage of bulk data.

52(8)    

For the purposes of item 3A of the table in subsection (5) , 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).