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This is a Bill, not an Act. For current law, see the Acts databases.
2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Foreign Acquisitions Amendment
(Agricultural Land) Bill 2010
No. , 2010
(Senators Xenophon and Milne)
A Bill for an Act to amend the Foreign Acquisitions
and Takeovers Act 1975 to control acquisitions of
interests in agricultural land, and for related
purposes
i Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments about interests in Australian
agricultural land
3
Foreign Acquisitions and Takeovers Act 1975
3
Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010 1
A Bill for an Act to amend the Foreign Acquisitions
1
and Takeovers Act 1975 to control acquisitions of
2
interests in agricultural land, and for related
3
purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act may be cited as the Foreign Acquisitions Amendment
7
(Agricultural Land) Act 2010.
8
2 Commencement
9
This Act commences on the day after it receives the Royal Assent.
10
2 Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Amendments about interests in Australian agricultural land Schedule 1
Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010 3
Schedule 1--Amendments about interests in
1
Australian agricultural land
2
Foreign Acquisitions and Takeovers Act 1975
3
1 Section 5 (after the definition of Australia)
4
Insert:
5
Australian agricultural land means land situated in Australia that
6
is used predominantly for carrying on a business of primary
7
production.
8
Australian agricultural land corporation means a corporation to
9
which section 13E applies.
10
Australian agricultural land trust estate means a trust estate to
11
which section 13F applies.
12
2 Paragraph 5(3)(aa)
13
After "urban land", insert "or an interest in Australian agricultural
14
land".
15
3 After section 12C
16
Insert:
17
12D Interests in Australian agricultural land
18
(1) In this Act, interest in Australian agricultural land means:
19
(a) a legal or equitable interest in Australian agricultural land;
20
(b) an interest in a share in a company that owns Australian
21
agricultural land, being a share that entitles the holder to a
22
right to access, manage, oversee, make decisions in relation
23
to or profit from the land;
24
(c) an interest as lessee or licensee in a lease or licence giving
25
rights to occupy Australian agricultural land where the term
26
of the lease or licence (including any extension) is reasonably
27
likely, at the time the interest is acquired, to exceed 5 years;
28
(d) an interest in an arrangement involving the sharing of profits
29
or income from the use of, or dealings in, Australian
30
agricultural land;
31
Schedule 1 Amendments about interests in Australian agricultural land
4 Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010
(e) an interest in a share in an Australian agricultural land
1
corporation;
2
(f) an interest in a unit in an Australian agricultural land trust
3
estate; or
4
(g) if the trustee of an Australian agricultural land trust estate is a
5
corporation--an interest in a share in that corporation.
6
(2) For the purposes of this Act, an interest is an interest in Australian
7
agricultural land even if it is the only interest that exists in the land
8
or other thing concerned.
9
(3) For the purposes of this Act, a person acquires an interest in
10
Australian agricultural land even if:
11
(a) the person acquires the interest jointly with another person or
12
persons;
13
(b) the person has previously acquired an interest in Australian
14
agricultural land; or
15
(c) the interest is an increase in the amount of an existing interest
16
of the person in Australian agricultural land.
17
(4) For the purposes of this Act, where a person:
18
(a) enters into an agreement; or
19
(b)
acquires
an
option;
20
to acquire an interest in Australian agricultural land, the person
21
shall be taken to have acquired that interest in Australian
22
agricultural land.
23
(5) For the purposes of this Act, a person shall be taken not to acquire
24
an interest in Australian agricultural land if the person acquires the
25
interest:
26
(a) solely to hold as security for the purposes of a moneylending
27
agreement; or
28
(b) by way of enforcement of a security held solely for the
29
purposes of a moneylending agreement.
30
(6) For the purposes of this Act, a person shall be taken not to acquire
31
an interest in Australian agricultural land if the person acquires the
32
interest by will or by devolution by operation of law.
33
(7) A reference in this Act to the acquisition of an interest in
34
Australian agricultural land does not include a reference to the
35
acquisition of an interest in Australian agricultural land from:
36
Amendments about interests in Australian agricultural land Schedule 1
Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010 5
(a) the Commonwealth, a State or a Territory;
1
(b) a corporation constituted for a public purpose by a law of the
2
Commonwealth or of a State or Territory; or
3
(c) a local governing body.
4
(8) Where the regulations provide that this Act, or a specified
5
provision of this Act, does not apply in relation to an acquisition,
6
of a kind specified in the regulations, of an interest in Australian
7
agricultural land (the subject land), this Act, or the provision, does
8
not so apply.
9
(9) Regulations made for the purposes of subsection (8) may not
10
provide that this Act, or any provision of this Act, does not apply
11
in relation to an acquisition of an interest in Australian agricultural
12
land, if the subject land is greater than 5 hectares in area.
13
4 After section 13D
14
Insert:
15
13E Australian agricultural land corporations
16
(1) For the purposes of this Act, a corporation is an Australian
17
agricultural land corporation if:
18
(a) where the corporation is not a holding corporation--the value
19
of its eligible land assets exceeds 50% of the value of its total
20
assets; or
21
(b) where the corporation is a holding corporation--the sum of
22
the values of the eligible land assets of the corporation and of
23
each of its subsidiaries exceeds 50% of the sum of the values
24
of the total assets of the corporation and of each of its
25
subsidiaries.
26
(2) Where a reasonable value of the eligible land assets or of the total
27
assets of a corporation is:
28
(a) shown in the last audited balance-sheet of the corporation; or
29
(b) if not shown in the last audited balance-sheet--shown in the
30
accounting records of the corporation;
31
the value of those assets as shown shall be taken to be their value
32
for the purposes of subsection (1).
33
Schedule 1 Amendments about interests in Australian agricultural land
6 Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010
(3) For the purposes of determining the values referred to in
1
paragraph (1)(b), any asset of a corporation that consists of shares
2
in any subsidiary of the corporation shall be disregarded.
3
(4) In this section:
4
eligible land assets, in relation to a corporation, means so much of
5
the corporation's total assets as consists of interests in Australian
6
agricultural land.
7
13F Australian agricultural land trust estates
8
(1) For the purposes of this Act, a trust estate is an Australian
9
agricultural land trust estate if it is a unit trust estate and the value
10
of so much of its total assets as consists of interests in Australian
11
agricultural land exceeds 50% of the value of its total assets.
12
(2) Where a reasonable value of the particular assets or of the total
13
assets of a trust estate is given in a valuation, that value shall be
14
taken to be their value at a particular time for the purposes of
15
subsection (1) if:
16
(a) the person giving the valuation was at the time of the
17
valuation a suitably qualified valuer acting at arm's length in
18
relation to the valuation;
19
(b) the valuation was made not more than 12 months before the
20
particular time; and
21
(c) the value of those assets had not increased significantly
22
between the time of the valuation and the particular time.
23
5 After section 21A
24
Insert:
25
21B Acquisitions of interests in Australian agricultural land
26
(1) In this section and in section 21C:
27
foreign person means:
28
(a) a foreign corporation in which a natural person not ordinarily
29
resident in Australia or a foreign corporation holds a
30
substantial interest; or
31
(b) a foreign corporation in which 2 or more persons, each of
32
whom is a natural person not ordinarily resident in Australia
33
Amendments about interests in Australian agricultural land Schedule 1
Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010 7
or a foreign corporation, hold an aggregate substantial
1
interest.
2
(2) Where the Treasurer is satisfied that:
3
(a) a foreign person proposes to acquire an interest in Australian
4
agricultural land which is greater than 5 hectares in area; and
5
(b) the proposed acquisition would be contrary to the national
6
interest;
7
the Treasurer may make an order prohibiting the proposed
8
acquisition.
9
(3) Where the Treasurer makes such an order in relation to an interest
10
in Australian agricultural land, he or she may also make an order in
11
relation to:
12
(a) a specified foreign person; or
13
(b) a specified foreign person and specified associates, or the
14
persons included in a specified class of associates, of that
15
person;
16
directing that that person shall not, or none of those persons shall,
17
whether alone or together with any other or others of them,
18
acquire:
19
(c) any interest in the land or other thing concerned; or
20
(d) any such interest except to a specified extent.
21
(4) Where a foreign person has acquired an interest in Australian
22
agricultural land and the Treasurer is satisfied that the acquisition
23
is contrary to the national interest, the Treasurer may make an
24
order directing the foreign person to dispose of that interest within
25
a specified period to any person or persons approved in writing by
26
the Treasurer.
27
(5) Before the end of the period specified in the order or of that period
28
as extended under this subsection, the Treasurer may, by writing
29
signed by the Treasurer, extend or further extend that period or that
30
period as so extended, and in that event the order has effect as if
31
the period as so extended or further extended had been specified in
32
the order.
33
(6) For the purposes of subsection (4), but without limiting the
34
generality of that subsection:
35
(a) a foreign person shall be taken to have acquired an interest in
36
Australian agricultural land if the person becomes, with or
37
Schedule 1 Amendments about interests in Australian agricultural land
8 Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010
without the knowledge of the person, a beneficiary in a trust
1
estate (other than a deceased estate) that consists of or
2
includes an interest in Australian agricultural land; and
3
(b) where paragraph (a) applies and the trust estate is a
4
discretionary trust estate--a reference to the disposal of the
5
interest of the foreign person is a reference to the disposal of
6
such assignable benefits in relation to that trust estate as may
7
ultimately vest in that foreign person.
8
(7) The Treasurer shall not refuse to approve a person for the purposes
9
of subsection (4) unless the Treasurer is satisfied that the person is
10
a foreign person and that it would be contrary to the national
11
interest for that person to acquire the interest concerned.
12
21C The national interest--acquisitions of interests in Australian
13
agricultural land
14
(1) In determining whether the acquisition of an interest in Australian
15
agricultural land is contrary to the national interest for the purposes
16
of section 21B, the Treasurer must have regard to the following
17
matters:
18
(a) national security issues, including Australia's ability to
19
protect its strategic and security interests;
20
(b) any impact on competition and global industy or market
21
outcomes;
22
(c) any impact on Australian tax revenues;
23
(d) any impact on the Australian economy or the community,
24
including:
25
(i) whether the acquisition will, or is likely to, benefit
26
Australia (or any part of it or group of Australians);
27
(ii) whether the acquisition will, or is likely to, result in:
28
(A) the creation of new job opportunities in
29
Australia or the retention of existing jobs in
30
Australia that would or might otherwise be lost;
31
or
32
(B) the introduction into Australia of new
33
technology or business skills; or
34
(C) increased export receipts for Australia
35
exporters; or
36
Amendments about interests in Australian agricultural land Schedule 1
Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010 9
(D) added market competition, greater efficiency or
1
productivity, or enhanced domestic services, in
2
Australia; or
3
(E) the introduction into Australia of additional
4
investment for development purposes; or
5
(F) increased processing in Australia of Australia's
6
primary products;
7
(iii) whether Australia's economic interests are adequately
8
safeguarded and promoted, including looking at issues
9
of aggregation and vertical integration;
10
(iv) any relevant mitigating factors, such as whether an
11
Australian head office will be established or Australian
12
directors appointed to an entity seeking to invest;
13
(e) the character of the investor, including:
14
(i) whether the foreign person has business experience and
15
acumen relevant to the acquisition;
16
(ii) whether the foreign person has demonstrated financial
17
commitment to the acquisition;
18
(iii) whether the foreign person is of good character.
19
21D Information about acquisitions of interests in Australian
20
agricultural land
21
(1) The Treasurer must publish on the Treasury website, within 7 days
22
of receiving a notice under section 26B, details of the agreement to
23
which that notice relates, including the following:
24
(a) details identifying the person intending to enter into the
25
agreement, and the country of residence or place of business
26
of the person;
27
(b) the amount of the investment proposed under the agreement;
28
(c) the sector of the agricultural industry to which the interest in
29
agricultural land relates;
30
(d) any other details prescribed by the regulations.
31
(2) The Treasurer must publish on the Treasury website each week
32
while any notice referred to in subsection (1) is under consideration
33
by the Treasurer, updated information about the status of that
34
notice and about any decision the Treasurer makes about the
35
notice.
36
Schedule 1 Amendments about interests in Australian agricultural land
10 Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010
6 Section 22
1
Omit "or 21A(2)", substitute ", 21A(2) or 21B(2)".
2
7 Section 23
3
After "21A", insert ", 21B".
4
8 Section 24
5
Omit "or 21A(3) or (4)", substitute ", 21A(3) or (4), or 21B(3) or (4)".
6
9 Subsection 25(1A)
7
Omit "or 21A(2)", substitute ", 21A(2) or 21B(2)".
8
10 Subsection 25(1D)
9
Omit "or 21A(4)", substitute ", 21A(4) or 21B(4)".
10
11 After section 26A
11
Insert:
12
26B Compulsory notification of certain section 21B transactions
13
(1) In this section, person to whom this section applies means:
14
(a) a natural person not ordinarily resident in Australia;
15
(b) a corporation in which a natural person not ordinarily
16
resident in Australia or a foreign corporation holds a
17
substantial interest;
18
(c) a corporation in which 2 or more persons, each of whom is a
19
natural person not ordinarily resident in Australia or a foreign
20
corporation hold an aggregate substantial interest;
21
(d) the trustee of a trust estate in which a natural person not
22
ordinarily resident in Australia or a foreign corporation holds
23
a substantial interest; or
24
(e) the trustee of a trust estate in which 2 or more persons, each
25
of whom is either a natural person not ordinarily resident in
26
Australia or a foreign corporation, hold an aggregate
27
substantial interest.
28
(2) Where a person to whom this section applies:
29
(a) enters into an agreement by virtue of which he or she
30
acquires an interest in Australian agricultural land and did
31
Amendments about interests in Australian agricultural land Schedule 1
Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010 11
not, before entering into the agreement, furnish to the
1
Treasurer a notice stating his or her intention to enter into
2
that agreement; or
3
(b) having furnished a notice to the Treasurer stating his or her
4
intention to enter into an agreement by virtue of which he or
5
she is to acquire an interest in Australian agricultural land,
6
enters into that agreement before:
7
(i) the end of 40 days after the day on which the notice was
8
received by the Treasurer; or
9
(ii) the day on which advice is given that the
10
Commonwealth Government does not object to the
11
person entering into that agreement (whether or not the
12
advice is subject to conditions imposed under
13
subsection 25(1A));
14
whichever first occurs;
15
the person is guilty of an offence and is punishable, on conviction,
16
by a fine not exceeding 500 penalty units or imprisonment for a
17
period not exceeding 2 years, or both.
18
(3)
Where:
19
(a) a person enters into an agreement by virtue of which he or
20
she acquires an interest in Australian agricultural land; and
21
(b) the provisions of the agreement that relate to the acquisition
22
of the interest do not become binding until the fulfilment of a
23
condition or conditions set out in the agreement;
24
the person shall not be taken, for the purposes of subsection (2), to
25
have entered into the agreement until the time when those
26
provisions become binding.
27
(4) Without affecting the operation of section 25, this section does not
28
apply to an acquisition of an interest in Australian agricultural land
29
if:
30
(a) that interest is an interest in a share in a corporation; and
31
(b) the acquisition occurs because of a shareholder subscribing
32
for shares in the corporation; and
33
(c) the shares were subscribed for in pursuance of a resolution by
34
the corporation or the directors of the corporation agreeing to
35
make available a number of shares specified in, or
36
ascertained in accordance with, the resolution for allotment to
37
persons who were registered as the holders of shares in the
38
corporation on a day specified in the resolution; and
39
Schedule 1 Amendments about interests in Australian agricultural land
12 Foreign Acquisitions Amendment (Agricultural Land) Bill 2010 No. , 2010
(d) the proportion of the total shares made available for allotment
1
represented by the shares for which the shareholder so
2
subscribed is as near as practicable to the proportion of the
3
issued shares in the corporation, immediately before the day
4
specified in the resolution, that were held by the shareholder
5
immediately before that day.
6
(5) For the purposes of subsection (4), it is immaterial that the shares
7
in the corporation comprise 2 or more classes of shares to which
8
different rights are attached.
9
12 Section 27
10
Omit "or 26A", substitute ", 26A or 26B".
11
13 After subsection 35(4A)
12
Insert:
13
(4B) The orders that may be made under subsection (1) in relation to the
14
acquisition of an interest in Australian agricultural land include,
15
but are not limited to:
16
(a) an order restraining the exercise of any rights attached to any
17
interest held by the offender in the land or other thing
18
concerned;
19
(b) an order prohibiting or deferring the payment of any sums
20
due to the offender in respect of any such interest held by the
21
offender;
22
(c) an order directing the disposal of any such interest held by
23
the offender; and
24
(d) an order that any exercise of rights attached to any such
25
interest held by the offender be disregarded.
26
14 Subsection 35(4)
27
Omit "and (4A)", substitute ", (4A) and (4B)".
28
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