Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 3 - EXEMPTIONS  

Division 4 - Other exemptions  

Subdivision A - Exemptions relating to particular actions  

SECTION 41A   EXEMPTION - FOREIGN PERSONS IN WHICH FOREIGN CUSTODIAN CORPORATIONS HAVE INTERESTS  

41A(1)    

This section applies in relation to the following provisions:

(a)    section 55B of the Act (meaning of notifiable national security action );

(b)    Division 3 of Part 2 of the Act (meaning of notifiable action );

(c)    Part 4 of the Act (notices required for notifiable actions and notifiable national security actions, and may be given of other actions);

(d)    any other provision of the Act or the regulations to the extent that it relates to either of those provisions.

Note: Part 7A of the Act does not apply in relation to an action taken by a foreign person mentioned in subsection (2) of this section: see section 58KB of this instrument.

41A(2)    

The provisions mentioned in subsection (1) do not apply in relation to any action taken by a foreign person if, when the action is taken:

(a)    the foreign person is a corporation, the trustee of a trust or the general partner of a limited partnership (see subsection 18(1) ); and

(b)    

an interest or part of an interest (the custodian share ) in that corporation, trust or limited partnership is held by a corporation of the kind mentioned in paragraph 30(1)(a) (the foreign custodian corporation ); and

(c)    

the custodian share is held in the course of the foreign custodian corporation ' s business of providing the custodian services mentioned in paragraph 30(1)(a) ; and

(d)    the foreign person would not be a foreign person if:

(i) in a case in which there is only one foreign custodian corporation to which paragraphs (b) and (c) apply - that foreign custodian corporation did not hold the custodian share to which paragraph (c) applies; or

(ii) in a case in which there are 2 or more foreign custodian corporations to which paragraphs (b) and (c) apply - none of those foreign custodian corporations held the custodian shares to which paragraph (c) applies.

Example:

Foreign custodian corporations are foreign persons (see paragraph 30(1)(a) ). A foreign custodian corporation ( Corporation FC ) holds a total interest of 25% in another corporation ( Corporation F ). No other foreign person holds an interest in Corporation F. Corporation FC ' s interest makes Corporation F a foreign person because it is a substantial interest (at least 20%).

15% of Corporation FC ' s interest in Corporation F is a custodian share to which paragraph (2)(c) applies. That paragraph does not apply to 10% of the interest. Corporation F would not be a foreign person if it were not for the custodian share held by Corporation FC (see paragraph (2)(d) ).

The provisions mentioned in subsection (1) do not apply in relation to any action taken by Corporation F.