Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 1 - PRELIMINARY  

SECTION 7   MEANING OF ENTERPRISE OF A COUNTRY OR REGION  
Enterprise of a country

7(1)    
An enterprise of a country is:

(a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or

(b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5);

that is not excluded under subsection (6).

Enterprise of a region

7(1A)    
An enterprise of a region is:

(a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or

(b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5A);

that is not excluded under subsection (8) or (9).

Entity of a country or a region

7(2)    
The entity is constituted or organised under a law of the country or a law of the region.

Note: For references to a law of the United States of America or China, see sections 9 and 9A .

7(3)    
The form in which the entity may be constituted or organised may be, but is not limited to, any of the following forms:

(a) a corporation;

(b) a trust;

(c) a partnership;

(d) a sole proprietorship;

(e) a joint venture;

(f) an unincorporated association.

7(4)    
It is immaterial whether the entity:

(a) is carried on for profit; or

(b) is owned or controlled privately.

Branch of an entity of a country

7(5)    
A branch of an entity (within the ordinary meaning of the term) is an enterprise of a country if:

(a) the entity is not described in subsections (2) to (4); and

(b) the branch is located in the country; and

(c) the branch is carrying on business activities in the country:

(i) in a way other than being solely a representative office; and

(ii) in a way other than being engaged solely in agency activities, including the sale of goods or services that cannot reasonably be regarded as undertaken in the country; and

(iii) by having its administration in the country.

Branch of an entity of a region

7(5A)    
A branch of an entity (within the ordinary meaning of the term) is an enterprise of a region if:

(a) the entity is not described in subsections (2) to (4); and

(b) the branch is located in the region; and

(c) the branch is carrying on business activities in the region:

(i) in a way other than being solely a representative office; and

(ii) in a way other than being engaged solely in agency activities, including the sale of goods or services that cannot reasonably be regarded as undertaken in the region; and

(iii) by having its administration in the region.

7(5B)    
For the purposes of working out under subsection (5A) whether a branch of an entity is an enterprise of Hong Kong, China, subsection (5A) applies as if:

(a) paragraphs (5A)(a) and (c) were omitted; and

(b) subsection (5A) also required the entity to be of a kind mentioned in subsections (2) to (4) for Hong Kong, China.

When entities or branches are not enterprises of a country

7(6)    
An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of a particular country if the Treasurer is satisfied that:

(a) it is owned or controlled by one or more persons of another country; and

(b) any one or more of the following applies:

(i) Australia does not maintain diplomatic relations with the other country;

(ii) Australia adopts or maintains measures relating to the other country or a person of the other country that have the effect of prohibiting transactions with the entity or branch;

(iii) the entity or branch has no substantial business activities in the particular country.

7(7)    
Without limiting subsection (6), an entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of China if the Treasurer is satisfied that:

(a) it is owned or controlled by one or more of the following:

(i) an individual who is usually resident in the territory of a relevant World Trade Organization member;

(ii) an entity that is constituted or organised under a law of a relevant World Trade Organization member; and

(b) the entity or branch has no substantial business activities in China.

When entities or branches are not enterprises of a region - general

7(8)    
An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of a particular region of a country if the Treasurer is satisfied that:

(a) it is owned or controlled by one or more persons of another country; and

(b) any one or more of the following applies:

(i) Australia does not maintain diplomatic relations with the other country;

(ii) Australia adopts or maintains measures relating to the other country or a person of the other country that have the effect of prohibiting transactions with the entity or branch;

(iii) the entity or branch has no substantial business activities in the particular region;

and the particular region is not Hong Kong, China.

When entities or branches are not enterprises of a region - Hong Kong, China

7(9)    
An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of Hong Kong, China if the Treasurer is satisfied that:

(a) subsection (10) applies to it; or

(b) the entity or branch has no substantial business activities in Hong Kong, China.

7(10)    
This subsection applies to an entity or branch if:

(a) it is owned or controlled by one or more of the following:

(i) an individual of a country who is not a resident of Hong Kong, China;

(ii) an entity constituted or organised under a law of a country that is not a law applying in Hong Kong, China; and

(b) Australia adopts or maintains measures relating to that country, or a person of that country, that have the effect of prohibiting transactions with the entity or branch.