FOREIGN ACQUISITIONS AND TAKEOVERS ACT 1975 - SECT 69 Disposal orders
FOREIGN ACQUISITIONS AND TAKEOVERS ACT 1975 - SECT 69
Disposal orders(1) The Treasurer may, by notifiable instrument, make an order under subsection (2) if the Treasurer is satisfied that:
(a) a significant action (other than a significant action covered by subparagraph (1A)(a)(ii)) has been taken; and
(b) the result of the significant action is contrary to the national interest.
Note: See also sections 70 (limitation on making disposal orders) and 77 (time limit on making orders and decisions).
(1A) The Treasurer may, by notifiable instrument, make an order under subsection (2) if the Treasurer is satisfied that:
(a) an action of any of the following kinds has been taken:
(i) a notifiable national security action that is not a significant action;
(ii) an action in respect of which the Treasurer has given a notice under subsection 66A(4);
(iii) a reviewable national security action that is notified to the Treasurer; and
(b) the result of the action is contrary to national security.
Note: See also sections 70 (limitation on making disposal orders) and 77 (time limit on making orders and decisions).
(2) The Treasurer may make an order in accordance with the following table.
Powers of Treasurer to require disposal of interests | ||
Item | If the action was ... | the Treasurer may make an order directing ... |
1 | to acquire: (a) a direct interest in an entity or Australian business; or (b) a direct interest in an Australian entity, or an Australian business, that is an agribusiness; or (c) an interest in securities in an entity; or (d) an interest of any percentage in an entity or an Australian business; or (e) an interest in assets of an Australian business; or (f) a direct interest in a national security business; or (g) a legal or equitable interest in an exploration tenement, and that action is to be taken by a foreign person who is not a foreign government investor | the person who acquired the interest to dispose of the interest within a specified period to one or more persons who are not associates of the person. |
1A | to acquire: (a) an interest of any percentage in an entity or an Australian business; or (b) an interest in assets of an Australian business | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
2 | to enter an agreement mentioned in paragraph 40(2)(d) or subparagraph 55D(2)(a)(ii) | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
3 | to alter a constituent document of an entity as mentioned in paragraph 40(2)(e) or subparagraph 55D(2)(a)(iii) | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
4 | to start an Australian business, and that action was taken by a foreign person who is not a foreign government investor | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
4A | to start a national security business | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
5 | to enter a significant agreement with an Australian business | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
6 | to terminate a significant agreement with an Australian business | specified persons to do within a specified period, or refrain from doing, specified acts or acts of a specified kind. |
7 | to acquire an interest in Australian land | the person who acquired the interest to dispose of that interest within a specified period to one or more persons who are not associates of the person. |
8 | to take any significant action prescribed by regulations made for the purposes of section 44 | a specified person to do a thing prescribed by regulations made for the purposes of this item. |
Orders made under table item 7
(3) Without limiting item 7 of the table in subsection (2):
(a) a foreign person is taken to have acquired an interest in Australian land if the person becomes (with or without the knowledge of the person) a beneficiary in a trust that consists of or includes the interest; and
(b) if the trust is a discretionary trust--a reference to the disposal of the interest of the foreign person is a reference to the disposal of any assignable benefits in relation to that trust that may ultimately vest in that foreign person.
Orders made under table items 2, 3, 5 or 6
(4) Unless subsection (4A) applies, if the Treasurer is satisfied as mentioned in subsection (1), an order under any of items 2, 3, 5 or 6 of the table in subsection (2) may be made only for the purpose of:
(a) restoring the control of the entity or business as closely as possible to the position in which it was before the significant action was taken; or
(b) preventing the occurrence of a change in control of the entity or business.
(4A) If the Treasurer is satisfied as mentioned in subsection (1A), an order under any of items 1A, 2 or 3 of the table in subsection (2) may be made only for the purpose of:
(a) restoring the foreign person's position to influence or participate in the central management and control of the entity as closely as possible to what is was before the action was taken; or
(b) restoring the foreign person's position to influence or participate, participate in or determine the policy of the entity as closely as possible to what is was before the action was taken.
(5) Before the end of a period specified in an order made under
any of items 2, 3, 5 or 6 of the table in subsection (2) (or
that period as extended under a previous application of this subsection), the
Treasurer may, in writing, extend the period. The order has effect as if the
period as extended had been specified in the order.