Skip to content

Definitions

Aggregate interest

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

  1. are in a position to control at least that percentage of the voting power or potential voting power in the entity; or
  2. hold interests in at least that percentage of the issued securities in the entity; or
  3. would hold interests in at least that percentage of the issued securities in the entity if securities in the entity were issued or transferred as the result of the exercise of rights of a kind mentioned in paragraph 15(1)(b) or (c) in the Foreign Acquisitions and Takeovers Act 1975

See Section 17(2) of Foreign Acquisitions and Takeovers Act 1975

Aggregate substantial interest

Two or more persons hold an aggregate substantial interest in an entity or trust if:

  1. for an entity—the persons hold an aggregate interest of at least 40% in the entity; or
  2. for a trust (including a unit trust)—the persons, together with any one or more associates of any of them hold, in the aggregate, beneficial interests in at least 40% of the income or property of the trust.

Note: See also sections 17 (meanings of interest and aggregate interest of a specified percentage in an entity) and 18 (rules relating to determining percentages of interests in entities) in the Foreign Acquisitions and Takeovers Act 1975

See Section 4 of Foreign Acquisitions and Takeovers Act 1975

Agribusiness

An Australian entity or Australian business is an agribusiness in the circumstances prescribed by the regulations (see Section 5 of the Foreign Acquisitions and Takeovers Act 1975).

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Agricultural Land

Means land in Australia that is used, or that could reasonably be used, for a Primary production business .

Note: The regulations may provide that land of a specified kind is not agricultural land. See subsection 37(3) of the Foreign Acquisitions and Takeovers Act 1975.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Asset

Includes an interest in an asset.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Associates

See Section 6 of the Foreign Acquisitions and Takeovers Act 1975.

Australian business

  1. (1) An Australian business is a business that is carried on wholly or partly in Australia in anticipation of profit or gain.
  2. (2) For the purposes of the Foreign Acquisitions and Takeovers Act 1975, a person who has an interest in a mining or production tenement is, as a result of having that interest, taken to carry on a business in Australia of exploiting that tenement in anticipation of profit or gain. The tenement is taken to be an asset of that business.

See Section 8 of the Foreign Acquisitions and Takeovers Act 1975.

Australian entity

Means an Australian corporation or an Australian unit trust.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Australian land

Means agricultural Land , commercial land , residential land or mining or production tenement .

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Commercial land

Means land in Australia or the seabed of the offshore area, other than land:

  1. used wholly and exclusively for a primary production business ; or
  2. on which there is at least one dwelling (except commercial residential premises); or
  3. on which the number of dwellings (except commercial residential premises) that could reasonably be built is less than the number prescribed by the regulations for the purposes of subparagraph (a)(ii) of the definition of residential land in Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Constituent document

Means an entity means any rules or other document constituting or establishing the entity or governing its activities, and includes:

  1. for a corporation—the constitution of the corporation; and
  2. for a unit trust—the trust deed for the trust.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Development

Means one or more multi‑storey buildings if:

  1. the buildings will be, are being or have been built; and
  2. the buildings are or were under one development approval; and
  3. the number of independent self‑contained dwellings (other than townhouses) that the buildings contain or will contain is at least the number prescribed by the regulations.

De minimis rule

A fee would otherwise be more than 25% of consideration

A fee of $1000 is payable if:

  1. the amount of the fee that would otherwise be payable is specified in sections 7 to 9 of the Foreign Acquisitions and Takeovers Imposition Fees Act 2015in the circumstances specified; and
  2. the fee is payable for:
    1. giving a notice of notifiable action under section 81 of the Foreign Acquisitions and Takeovers Act 1975; or
    2. giving a notice of a proposal to take an action that is not a notifiable action; and
  3. the action is the acquisition of an interest in securities, assets, Australian land or a mining, production or exploration tenement other than an action covered by item 2 of the table in subsection 8(1) of the Foreign Acquisitions and Takeovers Imposition Fees Act 2015; and
  4. the fee specified in the relevant section of Foreign Acquisitions and Takeovers Imposition Fees Act 2015 is more than 25% of the consideration for the acquisition.

Note 1: See also section 12 of the Foreign Acquisitions and Takeovers Imposition Fees Act 2015 (indexation of fees).

Note 2: Item 2 of the table in subsection 8(1) of the Foreign Acquisitions and Takeovers Imposition Fees Act 2015 deals with actions to enter or terminate agreements or alter constituent documents.

Direct interest

A direct interest in an entity or business is:

  1. an interest of at least 10% in the entity or business; or
  2. an interest of at least 5% in the entity or business if the person who acquires the interest has entered a legal arrangement relating to the businesses of the person and the entity or business; or
  3. an interest of any percentage in the entity or business if the person who acquired the interest is in a position:
    1. to influence or participate in the central management and control of the entity or business; or
    2. to influence, participate in or determine the policy of the entity or business.

Note: Section 17 of the Foreign Acquisitions and Takeovers Act 1975 defines interest of a specified percentage in an entity. Section 5 of Foreign Acquisitions and Takeovers Regulation 2015 defines interest of a specified percentage in a business.

See Section 16 of the Foreign Acquisitions and Takeovers Regulation 2015.

Established dwelling

Means a dwelling (except commercial residential premises) on residential land that is not a new dwelling .

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

FATA

Means the Foreign Acquisitions and Takeovers Act 1975.

Foreign government investor

Section 17 of the Foreign Acquisitions and Takeovers Regulation 2015 (Regulation) defines ‘foreign government investor’ as:

  • a foreign government or separate government entity;
  • a corporation or trustee of a trust in which:
    • a foreign government or separate government entity, alone or together with one or more associates, holds a substantial interest (that is, an interest of at least 20 per cent); or
    • foreign governments or separate government entities of more than one foreign country (or parts of more than one foreign country), together with any one or more associates, hold an aggregate substantial interest (that is, an interest of at least 40 per cent);
  • a general partner of a limited partnership in which:
    • a foreign government or separate government entity, alone or together with one or more associates, holds an interest of at least 20 per cent; or
    • foreign governments or separate government entities of more than one foreign country (or parts of more than one foreign country), together with any one or more associates, hold an aggregate interest of 40 per cent or more;
  • a corporation, trustee or general partner of a kind described in the two dot points above, assuming the references to foreign government (or foreign governments) in those dot points include references to a foreign government investor (or foreign government investors) within the meaning of those dot points.

Under section 4 of the Act:

  • a ‘foreign government’ means an entity that is:
    • a body politic of a foreign country; or
    • a body politic of part of a foreign country; or
    • a part of a body politic of a foreign country or a part of a body politic of part of a foreign country;
  • a ‘separate government entity’ means an individual, corporation or corporation sole that is an agency or instrumentality of a foreign country or a part of a foreign country, but not part of the body politic of a foreign country or of a part of a foreign country.

Foreign government investors (and foreign governments) are ‘foreign persons’ for the purposes of the Act (section 4 of the Act and section 18 of the Regulation). This means that the requirements imposed by the Act apply to all foreign government investors unless an exemption in the Regulation applies. Exemptions in the Regulations apply to foreign government investors unless foreign government investors have been specifically excluded.

Foreign person

Foreign person means:

  1. an individual not ordinarily resident in Australia; or
  2. a corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest ; or
  3. a corporation in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest ; or
  4. the trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest ; or
  5. the trustee of a trust in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or
  6. (f) a foreign government; or
  7. (g) any other person, or any other person that meets the conditions, prescribed by the regulations.

Note: In certain circumstances, an associate of a foreign person may be taken to be a foreign person even if the associate is not a foreign person (see Subsection 54(7) of the Foreign Acquisitions and Takeovers Act 1975).

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Interest

  1. in a security—has the meaning given by section 9 of the Foreign Acquisitions and Takeovers Act 1975 ; and
  2. in an asset—has the meaning given by section 10 of the Foreign Acquisitions and Takeovers Act 1975 ; and
  3. in a trust—has the meaning given by section 11 of the Foreign Acquisitions and Takeovers Act 1975 ; and
  4. in Australian land—has the meaning given by section 12 of the Foreign Acquisitions and Takeovers Act 1975; and
  5. of a specified percentage in an entity—has the meaning given by section 17 of the Foreign Acquisitions and Takeovers Act 1975.

Note: For other rules relating to interests in a security, asset, trust or Australian land, see Section 13 to 15 of the Foreign Acquisitions and Takeovers Act 1975.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Joint tenants

Two or more persons that hold property jointly so that each owns an undivided share of the whole. Should one person die, their interest would pass to the surviving co-owner or co-owners.

Land

Includes

  1. a building (including a new dwelling or an established dwelling ) or a part of a building; and
  2. subsoil of land.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Land entity

Means an agricultural land corporation, an agricultural land trust, an Australian land corporation or an Australian land trust.

See Section 5 of the Foreign Acquisitions and Takeovers Act 1975.

Mining or production tenement

  1. a right (however described) under a law of the Commonwealth, a State or a Territory to recover minerals (such as coal or ore), oil or gas in Australia or from the seabed or subsoil of the offshore area, other than a right to recover minerals, oil or gas for the purposes of prospecting or exploring for minerals, oil or gas; or
  2. a right that preserves a right mentioned in paragraph (a); or
  3. a lease under which the lessee has a right mentioned in paragraph (a) or (b); or
  4. an interest in a right mentioned in paragraph (a) or (b) or under a lease mentioned in paragraph (c).

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

New dwelling

Means a dwelling (except commercial residential premises) that will be, is being or has been built on residential land and that:

  1. has not been previously sold as a dwelling; and
  2. either:
    1. has not been previously occupied; or
    2. if the dwelling is contained in a development and the dwelling was sold by the developer of the development—has not been previously occupied for more than 12 months in total.

Note: For when a dwelling is sold, see subsections 15(4) and (5) of the Foreign Acquisitions and Takeovers Act 1975.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Ordinarily resident

Means

  1. An individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if:
    1. the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and
    2. at that time:
      1. the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law; or
      2. the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law.
  2. Without limiting paragraph (1)(b), an individual’s continued presence in Australia is subject to a limitation as to time imposed by law if the individual is an unlawful non‑citizen within the meaning of the Migration Act 1958.

See Section 17(2) of the Foreign Acquisitions and Takeovers Act 1975.

Primary production business

Has the same meaning as in the Income Tax Assessment Act 1997.

Residential land

  1. Means land in Australia if:
    1. there is at least one dwelling on the land; or
    2. the number of dwellings that could reasonably be built on the land is less than the number prescribed by the regulations; and
  2. does not include land:
    1. used wholly and exclusively for a primary production business; or
    2. on which the only dwellings are commercial residential premises.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Security

Means a share in a corporation or a unit in a unit trust.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Significant agreement

A significant agreement with an Australian business is an agreement relating to:

  1. the leasing of, the letting on hire of, or the granting of other rights to use, assets of the business; or
  2. the participation by a person in the profits or central management and control of the business.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Substantial interest

A person holds a substantial interest in an entity or trust if:

  1. for an entity—the person holds an interest of at least 20% in the entity; or
  2. for a trust (including a unit trust)—the person, together with any one or more associates, holds a beneficial interest in at least 20% of the income or property of the trust.

Note 1: See also sections 17 (meanings of interest and aggregate interest of a specified percentage in an entity) and 18 (rules relating to determining percentages of interests in entities) of the Foreign Acquisitions and Takeovers Act 1975.

Note 2: For when a person acquires a substantial interest in an entity, see section 20 of the Foreign Acquisitions and Takeovers Act 1975.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Tenants in common

Means one who holds property in common with another person or persons so that each has a portion of interest in the whole property. On death, this portion of interest passes to an heir or devisee who then becomes a tenant in common with the surviving co-owner or co-owners.

Temporary resident

Means an individual who:

  1. holds a temporary visa under the Migration Act 1958 that allows the individual to remain in Australia for a continuous period of more than 12 months (disregarding the amount of that period remaining); or
  2. meets the following conditions:
    1. the individual is residing in Australia;
    2. the individual has applied for a permanent visa under the Migration Act 1958;
    3. the individual holds a bridging visa under that Act that allows the individual to remain in Australia until the application has been finally determined; or
  3. meets the conditions prescribed by the regulations.

See Section 4 of the Foreign Acquisitions and Takeovers Act 1975.

Vacant

Land is vacant if there is no substantive permanent building on the land that can be lawfully occupied by persons, goods or livestock.