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

Schedule 3   Reinstating monetary thresholds

Foreign Acquisitions and Takeovers Regulation 2015

4   Part 4

Repeal the Part, substitute:

Part 4 - Thresholds

49 Simplified outline of this Part

Certain actions are only significant actions or notifiable actions if the threshold test is met. This Part prescribes values for that test.

There is a single threshold value for action taken in relation to agribusinesses.

For entities (being corporations or unit trusts) and Australian businesses other than agribusinesses, the threshold value depends on who takes the action and whether the action is taken in relation to a sensitive business.

The threshold value for land depends on who takes the action, the kind of land in relation to which the action is taken and other circumstances. Some land has no threshold value.

Most of the threshold values prescribed under this Part are indexed each year (see Part 5A).

50 Certain actions taken in relation to agribusiness

The following table prescribes a value for section 51 of the Act (agribusinesses) to the extent that that section relates to item 1 of the table in that section.

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

51 Taking action in relation to entities and businesses

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.

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

52 Land

Land without threshold value

(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)

(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)

(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).

(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

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

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

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

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

(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 ordispose 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.

(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.

(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.