New compliance and enforcement powers

From 1 January 2021, both the Treasurer and the Treasury have new powers to prevent, identify and respond to instances of non-compliance with Australia’s foreign investment laws.

  • An infringement notice may be given for contraventions of civil penalty provisions in the Act across all sectors, not just residential land.
  • Authorised officers (appointed employees in Treasury who have suitable training and experience) may enter premises either by consent or by court issued warrant, to:
    • Determine, using monitoring powers, whether the provisions of the Act are being complied with and information provided is correct.
    • Gather material, using investigation powers, relating to offence and civil penalty provisions of the Act.
    Monitoring powers and investigations powers are standard powers under the Regulatory Powers (Standard Provisions) Act 2014 (RPA).
  • The Treasurer may:
    • Enter into an enforceable undertaking with an investor or give a direction to prevent non-compliance or to rectify non-compliance, including where there is a reasonable belief that non-compliance has occurred or will occur.
    • Vary or revoke an exemption certificate, or revoke a no objection notification if false or misleading information was given that was relevant to the exemption certificate or no objection notification.  

These new powers are in addition to those that the Treasurer could exercise before 1 January 2021. Continuing powers include the power to order the disposal of an asset, or to prohibit an action, as well as the power to compel information and documents from an investor.