Foreign Investment Reform (Protecting Australia's National Security) Regulations 2020 (F2020L01568)

Schedule 2   Passive investments

Foreign Acquisitions and Takeovers Regulation 2015

8   At the end of section 17

Add:

(2) However, a person is not a foreign government investor if:

(a) the person is a corporation, trustee of a unit trust or general partner of an unincorporated limited partnership and would not be a foreign government investor but for:

(i) subparagraph (1)(b)(ii), (c)(ii) or (d)(ii); or

(ii) paragraph (1)(e) to the extent that it relates to any of those subparagraphs; and

(b) the corporation, trustee of the unit trust or general partner of the unincorporated limited partnership operates a scheme (within the ordinary meaning of that word) that has the following the features:

(i) persons make contributions, by way of consideration, to acquire rights to benefits produced by the scheme ( rights in the scheme ) (whether the rights are actual, prospective or contingent and whether they are enforceable or not);

(ii) any of the contributions are to be pooled to produce financial benefits, or benefits consisting of rights or interests (within the ordinary meaning of that word) in property, for the persons (the members ) who hold rights in the scheme;

(iii) an individual member is not able to influence any individual investment decisions, or the management of any individual investments, of the corporation, trustee or general partner under the scheme; and

(c) each foreign government or separate government entity that holds an interest in the corporation, unit trust or unincorporated limited partnership holds the interest only as a member of the scheme.

(3) Two or more persons (who are not associates of each other), hold an aggregate interest of a specified percentage in an unincorporated limited partnership if they, together with any one or more associates of any of them:

(a) are in a position to control at least that percentage of the voting power or potential voting power in the partnership; or

(b) are entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership on the dissolution of the partnership; or

(c) are entitled to at least that percentage of the total distributions of capital, assets or profits of the partnership otherwise than on the dissolution of the partnership.

(4) For the purposes of subsection (3), in determining the percentage of voting power or potential voting power that a person is in a position to control in an unincorporated limited partnership, disregard any votes that the person controls as a proxy or representative.