Commonwealth Numbered Acts

AIRPORTS ACT 1996 No. 42, 1996 - SCHEDULE

Schedule-Ownership definitions 1 Object
The object of this Schedule is to define terms used in Part 3 (which deals
with ownership restrictions). 2 Definitions
In Part 3 and this Schedule, unless the contrary intention appears:
acquisition includes an agreement to acquire, but does not include:

   (a)  an acquisition by will or by devolution by operation of law; or

   (b)  an acquisition by way of enforcement of a loan security.
aggregate substantial interest, in relation to a trust estate, has the meaning
given by clause 13.
arrangement has the meaning given by clause 4.
associate has the meaning given by clause 5.
constituent document, in relation to a company, means:

   (a)  the memorandum and articles of association of the company; or

   (b)  any rules or other documents constituting the company or governing its
        activities.
direct control interest has the meaning given by clause 12.
director includes any person occupying the position of director of a company,
by whatever name called.
discretionary trust means a trust where:

   (a)  a person (who may include the trustee) is empowered (either
        unconditionally or on the fulfilment of a condition) to exercise any
        power of appointment or other discretion; and

   (b)  the exercise of the power or discretion, or the failure to exercise
        the power or discretion, has the effect of determining, to any extent,
        either or both of the following:

        (i)    the identities of those who may benefit under the trust;

        (ii)   how beneficiaries are to benefit, as between themselves, under
               the trust.
foreign citizen means an individual who is not an Australian citizen.
foreign company means a company incorporated outside Australia.
foreign government body means:

   (a)  a foreign State (within the meaning of the Foreign States  Immunities
        Act 1985 ); or

   (b)  a separate entity of such a foreign State (within the meaning of that
        Act).
foreign person means:

   (a)  a foreign citizen not ordinarily resident in Australia; or

   (b)  a foreign government body; or

   (c)  a company where:

        (i)    a foreign citizen not ordinarily resident in Australia; or

        (ii)   a foreign government body; or

        (iii)  a foreign company; holds a particular type of stake in the
               company of not less than 15%; or

   (d)  a company where a group of 2 or more persons, each of whom is:

        (i)    a foreign citizen not ordinarily resident in Australia; or

        (ii)   a foreign government body; or

        (iii)  a foreign company; holds, in total, a particular type of stake
               in the company of not less than 40%; or

   (e)  the trustee of a trust estate in which:

        (i)    a foreign citizen not ordinarily resident in Australia; or

        (ii)   a foreign government body; or

        (iii)  a foreign company; holds a substantial interest; or

   (f)  the trustee of a trust estate in which 2 or more persons, each of whom
        is:

        (i)    a foreign citizen not ordinarily resident in Australia; or

        (ii)   a foreign government body; or

        (iii)  a foreign company; hold an aggregate substantial interest.
group includes:

   (a)  one person alone; or

   (b)  a number of persons, even if they are not in any way associated with
        each other or acting together.
increase, in relation to a stake in a company, includes an increase from a
starting point of nil.
interest in a share has the meaning given by clause 8.
officer, in relation to a company, includes:

   (a)  a director, secretary or employee of the company; or

   (b)  a receiver and manager of any part of the undertaking of the company
        appointed under a power contained in any instrument; or

   (c)  a liquidator of the company appointed in a voluntary winding-up.
ordinarily resident in Australia has the meaning given by clause 3.
ownership provisions means Part 3 and this Schedule.
power to appoint a director of a company has a meaning affected by clause 6.
practical control, in relation to an airport-operator company, has the meaning
given by section 55.
relative, in relation to a person, means:

   (a)  the person's spouse; or

   (b)  another person who, although not legally married to the person, lives
        with the person on a bona fide domestic basis as the husband or wife
        of the person; or

   (c)  a parent or remoter lineal ancestor of the person; or

   (d)  a son, daughter or remoter issue of the person; or

   (e)  a brother or sister of the person.
share, in relation to a company, means a share in the share capital of the
company, and includes:

   (a)  stock into which any or all of the share capital of the company has
        been converted; or

   (b)  an interest in such a share or in such stock.
stake, in relation to a company, has the meaning given by clause 11.
substantial interest, in relation to a trust estate, has the meaning given by
clause 13.
voting power has the meaning given by clause 10. 3 When foreign citizens are
ordinarily resident in Australia
For the purposes of the ownership provisions, a foreign citizen is ordinarily
resident in Australia at a particular time if, and only if:

   (a)  the foreign citizen has been in Australia during 200 or more days in
        the period of 12 months immediately preceding that time; and

   (b)  at that time, one of the following subparagraphs applies:

        (i)    the foreign citizen is in Australia and has permission to
               remain in Australia indefinitely;

        (ii)   the individual is not in Australia but has a right to re-enter
               Australia and, on re-entry, to be granted permission to remain
               in Australia indefinitely;

        (iii)  the individual is in Australia, is a New Zealand citizen, holds
               a New Zealand passport and has a special category visa under
               section 32 of the Migration Act 1958;

        (iv)   the individual is not in Australia, is a New Zealand citizen,
               holds a New Zealand passport and, on re-entry to Australia,
               would have the right to be granted a special category visa
               under section 32 of the Migration Act 1958. 4 Entering into an
               agreement or arrangement

(1) For the purposes of the ownership provisions, a person is taken to have
proposed to enter into an agreement or arrangement if the person takes part
in, or proposes to take part in, negotiations with a view to entering into the
agreement or arrangement.

(2) A reference in the ownership provisions to entering into an agreement or
arrangement includes a reference to altering or varying an agreement or
arrangement.

(3) A reference in the ownership provisions to entering into an arrangement is
a reference to entering into any formal or informal scheme, arrangement or
understanding, whether expressly or by implication and, without limiting the
generality of the foregoing, includes a reference to:

   (a)  entering into an agreement; or

   (b)  creating a trust, whether express or implied; or

   (c)  entering into a transaction; and a reference in the ownership
        provisions to an arrangement is to be construed accordingly.

(4) A reference in the ownership provisions to an arrangement does not include
a reference to a moneylending agreement. 5 Associates

(1) For the purposes of the ownership provisions, the following persons are
associates of a person:

   (a)  a relative of the person;

   (b)  a partner of the person;

   (c)  a company of which the person is an officer;

   (d)  if the person is a company-an officer of the company;

   (e)  an employee or employer of the person;

   (f)  an officer of a company of which the person is an officer;

   (g)  an employee of an individual of whom the person is an employee;

   (h)  the trustee of a discretionary trust where the person or another
        person who is an associate of the person by virtue of another
        paragraph of this subclause benefits, or is capable (whether by the
        exercise of a power of appointment or otherwise) of benefiting, under
        the trust, either directly or through any interposed companies,
        partnerships or trusts;

   (i)  a company whose directors are accustomed or under an obligation,
        whether formal or informal, to act in accordance with the directions,
        instructions or wishes of the person;

   (j)  a company where the person is accustomed or under an obligation,
        whether formal or informal, to act in accordance with the directions,
        instructions or wishes of the company;

   (k)  a company in which the person has, apart from this paragraph, a
        particular type of stake of not less than 15%;

   (l)  if the person is a company-a person who holds, apart from this
        paragraph, a particular type of stake in the company of not less than
        15%;

   (m)  a person who is, because of this subclause, an associate of any other
        person who is an associate of the person (including a person who is an
        associate of the person by any other application or applications of
        this paragraph).

(2) If a person (the first person) enters, or proposes to enter, into an
arrangement with another person (the second person) that relates to any of the
following matters:

   (a)  the first person and the second person being in a position, by acting
        together, to control any of the voting power in a company;

   (b)  the power of the first person and the second person, by acting
        together, to appoint or remove a director of a company;

   (c)  the situation where one or more of the directors of a company are
        accustomed or under an obligation, whether formal or informal, to act
        in accordance with the directions, instructions or wishes of the first
        person and the second person acting together; then, the second person
        is taken to be an associate of the first person for the purposes of
        the application of a provision of the ownership provisions in relation
        to the matter concerned. 6 Power to appoint director

(1) A reference in the ownership provisions to a power to appoint a director
includes a reference to such a power whether exercisable with or without the
consent or concurrence of any other person.

(2) For the purposes of the ownership provisions, a person is taken to have
the power to appoint a director if:

   (a)  the person has the power (whether exercisable with or without the
        consent or concurrence of any other person) to veto such an
        appointment; or

   (b)  a person's appointment as a director of the company follows
        necessarily from that person being a director or other officer of the
        first-mentioned person. 7 Meaning of entitled to acquire
For the purposes of the ownership provisions, a person is entitled to acquire
anything if the person is absolutely or contingently entitled to acquire it,
whether because of any constituent document of a company, the exercise of any
right or option or for any other reason. 8 Meaning of interest in a share

(1) Subject to this clause, a person holds an interest in a share if the
person has any legal or equitable interest in the share.

(2) A person is taken to hold an interest in a share if:

   (a)  the person has entered into a contract to purchase the share; or

   (b)  the person has a right (otherwise than because of having an interest
        under a trust) to have the share transferred to the person or to the
        person's order (whether the right is exercisable presently or in the
        future and whether or not on the fulfilment of a condition); or

   (c)  the person has a right to acquire the share, or an interest in the
        share, under an option (whether the right is exercisable presently or
        in the future and whether or not on the fulfilment of a condition); or

   (d)  the person is otherwise entitled to acquire the share or an interest
        in the share; or

   (e)  the person is entitled (otherwise than because of having been
        appointed as a proxy or representative to vote at a meeting of members
        of the company or of a class of its members) to exercise or control
        the exercise of a right attached to the share.

(3) Subclause (2) does not, by implication, limit subclause (1).

(4) A person is taken to hold an interest in a share even if the person holds
the interest in the share jointly with another person.

(5) For the purpose of determining whether a person holds an interest in a
share, it is immaterial that the interest cannot be related to a particular
share.

(6) An interest in a share is not to be disregarded only because of:

   (a)  its remoteness; or

   (b)  the manner in which it arose; or

   (c)  the fact that the exercise of a right conferred by the interest is, or
        is capable of being made, subject to restraint or restriction. 9
        Certain interests in shares to be disregarded

(1) For the purposes of the ownership provisions, the following interests must
be disregarded:

   (a)  an interest in a share held by a person whose ordinary business
        includes the lending of money if the person holds the interest as a
        loan security;

   (b)  an interest in a share held by a person, being an interest held by the
        person because the person holds a prescribed office;

   (c)  an interest of a prescribed kind in a share, being an interest held by
        such persons as are prescribed;

   (d)  an interest in a share held by the Commonwealth.

(2) For the purposes of the ownership provisions, if:

   (a)  a person holds an interest in a share as a loan security; and

   (b)  the ordinary business of the person includes the lending of money; and

   (c)  the loan security is enforced; and

   (d)  as a result of the enforcement of the loan security, the person
        becomes the holder of the share; and

   (e)  the person holds the share for a continuous period (the holding
        period) beginning at the time when the security was enforced; the
        person's interest in the share must be disregarded at all times during
        so much of the holding period as occurs during whichever of the
        following periods is applicable:

   (f)  the period of 90 days beginning when the security was enforced;

   (g)  if the Minister, by written notice given to the person, allows a
        longer period-the end of that longer period. 10 Voting power

(1) A reference in the ownership provisions to the voting power in a company
is a reference to the total rights of shareholders to vote, or participate in
any decision-making, concerning any of the following:

   (a)  the making of distributions of capital or profits of the company to
        its shareholders;

   (b)  the constituent document of the company;

   (c)  any variation of the share capital of the company.

(2) A reference in the ownership provisions to control of the voting power in
a company is a reference to control that is direct or indirect, including
control that is exercisable as a result of or by means of arrangements or
practices:

   (a)  whether or not having legal or equitable force; and

   (b)  whether or not based on legal or equitable rights.

(3) If the percentage of total rights to vote or participate in
decision-making differs as between different types of voting or
decision-making, the highest of those percentages applies for the purposes of
this clause.

(4) If a company:

   (a)  is limited both by shares and by guarantee; or

   (b)  does not have a share capital; this clause has effect as if the
        members or policy holders of the company were shareholders in the
        company. 11 Stake in a company

(1) A particular type of stake that a person holds in a company at a
particular time is the aggregate of:

   (a)  the direct control interests in the company of that type that the
        person holds at that time; and

   (b)  the direct control interests in the company of that type held at that
        time by associates of the person.

(2) In calculating the stake that a person holds in a company, a direct
control interest held because of subclause 12(5) is not to be counted under
paragraph (1)(a) to the extent to which it is calculated by reference to a
direct control interest in the company that is taken into account under
paragraph (1)(b).

(3) For the purpose of calculating the total of the stakes of a particular
type that a group of persons holds in a company, if a particular stake that a
person holds in a company would be counted more than once because the person
is an associate of one or more other persons in the group, that interest is to
be counted only once. 12 Direct control interests in a company

(1) A person holds a direct control interest in a company at a particular time
equal to the percentage of the total paid-up share capital of the company in
which the person holds an interest at that time.

(2) A person also holds a direct control interest in a company at a particular
time equal to the percentage of the voting power in the company that the
person is in a position to control at that time.

(3) A person also holds a direct control interest in a company at a particular
time equal to the percentage that the person holds, or is entitled to acquire,
at that time of the total rights to distributions of capital or profits of the
company to its shareholders on winding-up.

(4) A person also holds a direct control interest in a company at a particular
time equal to the percentage that the person holds, or is entitled to acquire,
at that time of the total rights to distributions of capital or profits of the
company to its shareholders, otherwise than on winding-up.

(5) If:

   (a)  a person holds a particular type of direct control interest (including
        a direct control interest that is taken to be held because of one or
        more previous applications of this subclause) in a company (the first
        level company); and

   (b)  the first level company holds the same type of direct control interest
        in another company (the second level company); the person is taken to
        hold that type of direct control interest in the second level company
        equal to the percentage worked out using the formula:
first level percentage x second level percentage where: first level percentage
means the percentage of the direct control interest held by the person in the
first level company. second level percentage means the percentage of the
direct control interest held by the first level company in the second level
company. 13 Substantial interests in trust estates

(1) For the purposes of the ownership provisions:

   (a)  a person is taken to hold a substantial interest in a trust estate if
        the person, alone or together with an associate or associates, holds a
        beneficial interest in not less than 15% of the corpus or income of
        the trust estate; and

   (b)  2 or more persons are taken to hold an aggregate substantial interest
        in a trust estate if the persons, together with an associate or
        associates, hold, in the aggregate, beneficial interests in not less
        than 40% of the corpus or income of the trust estate.

(2) For the purposes of subclause (1), if, under the terms of a trust, a
trustee has a power or discretion as to the distribution of the income or
corpus of the trust estate to beneficiaries, each beneficiary is taken to hold
a beneficial interest in the maximum percentage of income or corpus of the
trust estate that the trustee is empowered to distribute to that beneficiary.
14 Airport holding companies in which foreign persons have direct control
interests

(1) This clause applies if:

   (a)  a foreign person holds a particular type of direct control interest in
        a company (the designated holding company); and

   (b)  the designated holding company holds the same type of direct control
        interest in a particular airport-operator company (the eligible
        airport-operator company); and

   (c)  if the eligible airport-operator company is the airport-lessee company
        for Sydney (Kingsford-Smith) Airport or the airport-lessee company for
        Sydney West Airport-the designated holding company is operated solely
        for:

        (i)    the purpose of holding direct control interests in the
               airport-lessee company for Sydney (Kingsford-Smith) Airport and
               the airport-lessee company for Sydney West Airport; and

        (ii)   such other purposes (if any) as are prescribed; and

   (d)  if the eligible airport-operator company is neither the airport-lessee
        company for Sydney (Kingsford-Smith) Airport nor the airport-lessee
        company for Sydney West Airport-the designated holding company is
        operated solely for the purpose of holding direct control interests in
        one or more airport-operator companies; and

   (e)  the designated holding company is incorporated, or taken to be
        incorporated, under the Corporations Law of a State or internal
        Territory; and

   (f)  the designated holding company has a share capital.

(2) In determining, for the purposes of section 40, whether there is a group
of foreign persons who hold, in total, that type of stake in the eligible
airport-operator company of more than 49%:

   (a)  the stake of that type that the foreign person holds in the eligible
        airport-operator company is to be calculated on the basis that the
        designated holding company is taken not to be an associate of the
        foreign person; and

   (b)  the designated holding company is taken not to be a foreign person.

(3) Subclause 12(5) is to be disregarded for the purposes of subclause (1) of
this clause. Note: Subclause 12(5) deals with deemed direct control interests.