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Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 111, 2016-17 15 JUNE 2017

Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill 2017 Paula Pyburne Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Foreign investment framework ............................................... 3

Consultation ............................................................................ 3

Rationale for the Bill .............................................................. 4

Committee consideration .................................................... 4

Selection of Bills Committee.................................................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 4

Policy position of non-government parties/independents ..... 4

Position of major interest groups ......................................... 4

Financial implications .......................................................... 4

Statement of Compatibility with Human Rights .................... 4

Parliamentary Joint Committee on Human Rights .................. 4

Key issues and provisions..................................................... 4

Exemption certificates ............................................................. 5

New dwellings ....................................................................... 5

Foreign persons ..................................................................... 5

Established dwellings ............................................................ 5

By Regulation......................................................................... 6

Variations .............................................................................. 6

Application ............................................................................ 6

Notifiable actions..................................................................... 6

Interest in an Australian entity .............................................. 7

Interest in residential or agricultural land ............................. 7

Date introduced: 1 June 2017

House: House of Representatives

Portfolio: Treasury

Commencement: the day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

June 2017.

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Interest in commercial land .................................................. 8

Interest in a mining or production tenement ....................... 8

Action prescribed by Regulations .......................................... 8

Application ............................................................................ 8

Other fees ................................................................................ 8

Interest in securities .............................................................. 9

Significant action ................................................................... 9

Variation ................................................................................ 9

Concluding comments ......................................................... 9

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Purpose of the Bill The purpose of the Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill 2017 (the Bill) is to amend the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Fees Imposition Act) to simplify the existing fee framework.

Background Foreign investment framework The legislative framework for Australia’s foreign investment policy is set out in the Foreign Acquisitions and Takeovers Act 1975 (FATA) and the Fees Imposition Act and their associated Regulations.1 The FATA allows the Treasurer to review foreign investment proposals that meet certain criteria. The Treasurer has the power to block foreign investment proposals or apply conditions to the way proposals are implemented to ensure they are not contrary to the national interest.

The current foreign investment regime came into effect on 1 December 2015. Compared to the former regime, it features:

• stricter and more flexible penalties

• a substantial filing fee regime

• tighter rules relating to certain sectors (such as agriculture and critical infrastructure)

• an exemption certificate scheme for certain investments

• a more stringent approach to foreign government investors and

• the creation of a register of foreign held interests in agricultural land and water.2

The Fees Imposition Act and the Foreign Acquisitions and Takeovers Fees Imposition Regulation 2015 set the fees for foreign investment applications and notices.

Consultation Once the foreign investment regime had been implemented, the Government engaged in ongoing consultation with stakeholders on how the reforms were working in practice. Unintended consequences stemming from the 2015 reforms and opportunities for red tape reduction were duly identified.3

Accordingly the Treasury circulated a consultation paper in March 2017 seeking formal views from stakeholders on a suite of proposed changes in the areas of residential land, non-vacant commercial land, low sensitivity business investment, and fees.4

Relevant to this Bills Digest the consultation paper acknowledges that ‘the fees framework can be difficult for stakeholders to apply and burdensome to administer. There are also situations where the size of the fee varies with the form of the investment’.5 The consultation paper describes the problem as follows:

The foreign investment framework necessarily casts a broad net in relation to actions required to be notified to the Treasurer for review. However, in practice a small percentage of acquisitions that must be notified raise national interest concerns that result in the Treasurer imposing conditions or prohibiting the proposal.

This results in a higher than desirable regulatory impost on business proposals that are of low sensitivity and have to be notified.

Foreign government investors in particular have voiced concerns about the degree of regulatory burden since foreign government investor screening requirements were brought into the legislative framework. While this provided more certainty, these investors are also now required to notify certain acquisitions under the legislation

1. P Pyburne, Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015 [and] Foreign Acquisitions and Takeovers Fees Imposition Bill 2015, Bills digest, 52, 2015-16, Parliamentary Library, Canberra, 23 November 2015. 2. R Graham, Proposed changes to Australia's foreign investment regime, Briefing note, Clifford Chance, Sydney, March 2017. 3. Treasury, ‘Foreign investment framework 2017 legislative package’, Treasury website, 8 March 2017. 4. Ibid.

5. Treasury, Foreign investment framework: 2017 legislative package, Consultation paper, Treasury, Canberra, March 2017, p. 2.

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regardless of the size and value of the investment, pay fees, and are subject to potential penalties for non-compliance. 6

The consultation period closed on 29 March 2017. At the time of writing this Bills Digest, no submissions had been published on the Treasury website.

Rationale for the Bill As part of its 2017-18 Budget the Government determined:

Decreasing the number of fee-tiers will reduce complexity and achieve more equitable fee outcomes. In addition, implementing more standardised fees for acquisitions of similar values and legislating current fee waiver principles will provide a more transparent and consistent approach. 7

Although the consultation paper covered a range of issues, the Bill deals only with the matter of fees. It does not amend the FATA.

Committee consideration Selection of Bills Committee At the time of writing this Bills Digest, the Bill had not been referred for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills At the time of writing this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills had not commented on the Bill.

Policy position of non-government parties/independents At the time of writing this Bills Digest the position of non-government parties and independents in relation to the proposed changes to the Fees Imposition Act had not been stated.

Position of major interest groups It has not been possible to assess the position of major interest groups in relation to the proposals in this Bill.

Financial implications According to the Explanatory Memorandum to the Bill, ‘streamlining business fees will have a revenue cost of $400,000 over the forward estimates’.8

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.9

Parliamentary Joint Committee on Human Rights At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights had not commented on the Bill.

Key issues and provisions A person who applies for an exemption certificate, gives notice of a notifiable action, or gives a notice in relation to a proposal to take a significant action that is not a notifiable action, must pay a fee when the notice is given or an application is made.10 Applications are not considered made and notices are not considered given until the

6. Ibid., p. 10, paragraphs 65-67. 7. Australian Government, Budget 2017: a foreign investment regime that facilitates investment and protects the national interest, Fact sheet, Australian Government, Canberra. 8. Explanatory Memorandum, Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill

2017, p. 3.

9. The Statement of Compatibility with Human Rights can be found at page 27 of the Explanatory Memorandum to the Bill. 10. Foreign Acquisitions and Takeovers Act, section 113. These actions are explained below.

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correct fee has been paid or waived.11 The Treasurer may waive fees if he, or she, is satisfied that it is not contrary to the national interest to do so.12 The Bill operates to set the fees with effect from 1 July 2017. Fees in subsequent years are subject to annual indexation.13

Exemption certificates Under the foreign investment framework, foreign persons may receive individual approval for a specific property prior to making the purchase. Broad pre-approval through ‘exemption certificates’ can be granted for eligible foreign persons seeking to acquire an established dwelling (the Established Dwelling Exemption Certificate (EDEC)), or for developers seeking to sell new dwellings to foreign persons (the New Dwelling Exemption Certificate (NDEC)).14 Currently, subsection 6(1) of the Fees Imposition Act sets out in table form the fees for applications relating to different categories of exemption certificates.

Item 1 of the Bill repeals subsections 6(1) and (2) and inserts proposed subsections 6(1), 6(2) and 6(2A) into the Fees Imposition Act. Proposed subsection 6(1) remains in table form. The table provides that some fees are determined in accordance with formulae set out at proposed subsections 6(2) and 6(2A). In particular, proposed subsection 6(2) contains a method statement for calculating the fee for an exemption certificate on an established dwelling where the consideration for acquisition is more than $1 million but less than or equal to $10 million. Similarly, proposed subsection 6(2A) contains a method statement for calculating the fee for an exemption certificate on an established dwelling where the consideration for acquisition is more than $10 million. The effect of the changes is as follows.

New dwellings The fee for exemption certificates for new dwellings15 is currently expressed as a single amount16 which is subject to annual indexation. The method for calculating the fee is unchanged. The amount of the fee has been increased slightly to reflect the 1 July 2017 indexation increase to the current base amount.17 According to the Explanatory Memorandum to the Bill, this category of exemption certificate ‘picks up commercial property developers’.18

Foreign persons The fee for exemption certificates in relation to foreign persons acquiring one or more interests in Australian land19 is currently calculated using a two-tiered test so that the amount payable is dependent upon whether the consideration for the acquisition is $1 billion or less.20 If the consideration is $1 billion or less, the application fee set out under the current provision is $25,000. If the consideration is more than $1 billion, the application fee set out under the current provision is $100,000. Under the Bill, the amount of the fee will be expressed as a single amount—$35,000.21

Established dwellings The fee for an exemption certificate in respect of an established dwelling22 is currently calculated using a two-tiered test based on whether the consideration for the acquisition is less than, or more than, $1 million. Where the consideration is $1 million or less, the fee is $5,000. Where the consideration is more than $1 million

11. Foreign Acquisitions and Takeovers Act, section 114. 12. Foreign Acquisitions and Takeovers Act, section 115. 13. Fees Imposition Act, section 12. 14. Treasury, Foreign investment framework: 2017 legislative package, op. cit., p. 3, paragraph 16. 15. Foreign Acquisitions and Takeovers Act, section 57. 16. Fees Imposition Act, subsection 6(1), table items 1 and 5 respectively. 17. Fees Imposition Act, proposed subsection 6(1), table item 1. 18. Explanatory Memorandum, Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill

2017, p. 15. 19. Foreign Acquisitions and Takeovers Act, section 58. Note that the term ‘interest in Australian land’ is defined in section 12 of the Foreign Acquisitions and Takeovers Act. 20. Fees Imposition Act, subsection 6(1), table item 2. 21. Fees Imposition Act, proposed subsection 6(1), table item 2. 22. Foreign Acquisitions and Takeovers Act, section 59.

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the amount is worked out using the formula set out in existing subsection 6(2) of the Fees Imposition Act.23 The Bill inserts a three-tiered test so:

• where the consideration for the acquisition is $1 million or less the fee is $5,50024

• where the consideration for the acquisition is more than $1 million but less than or equal to $10 million the fee is worked out using the method statement in proposed subsection 6(2)25

• where the consideration for the acquisition is more than $10 million the fee is worked out using the method statement in proposed subsection 6(2A).26

By Regulation Currently, for exemption certificates provided for by Regulation,27 the fee is worked out according to a method prescribed by Regulation—but not more than $25,000.28 The Bill differentiates between such an exemption certificate for residential land or otherwise. Where the exemption certificate is a residential land certificate the amount continues to be worked out as prescribed by Regulations.29 Where the exemption certificate is for otherwise than residential land the fee is worked out as prescribed by Regulations—but is not more than $35,000.30

Variations Currently the fee for a variation of an exemption certificate is expressed as a single amount—$5,000.31 The Bill inserts a three-tiered test so that the fee levied is dependent upon the nature of the original exemption certificate.32

According to the Explanatory Memorandum to the Bill the new fees outlined above:

… will have the effect of better aligning fees across different categories of investment to achieve a more equitable regime. This change will create a new low value fee tier avoiding the need for fee waivers to be applied in many cases where the fee is disproportionate to the size of the transaction. 33

Application Subitem 12(1) of the Bill provides that the amendments to section 6 of the Fees Imposition Act apply in relation to a fee payable for an application for an exemption certificate made on or after 1 July 2017.

Notifiable actions A foreign person who proposes to take a notifiable action must give a notice to the Treasurer before taking the action.34 A notifiable action is a proposed action by a foreign person:

• to acquire a direct interest in an Australian entity or Australian business that is an agribusiness; or

• to acquire a substantial interest in an Australian entity; or

• to acquire an interest in Australian land.35

23. Fees Imposition Act, subsection 6(1), table item 3. 24. Fees Imposition Act, proposed subsection 6(1), table item 3(a). 25. Fees Imposition Act, proposed subsection 6(1), table item 3(b). 26. Fees Imposition Act, proposed subsection 6(1), table item 3(c). 27. Foreign Acquisitions and Takeovers Act, section 63. 28. Fees Imposition Act, subsection 6(1), table item 4. 29. Fees Imposition Act, proposed subsection 6(1), table item 4(a). 30. Fees Imposition Act, proposed subsection 6(1), table item 4(b). 31. Fees Imposition Act, subsection 6(1), table item 5. 32. Fees Imposition Act, proposed subsection 6(1), table items 5(a)-(c). 33. Explanatory Memorandum, Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill

2017, p. 6.

34. Foreign Acquisitions and Takeovers Act, section 81. 35. Foreign Acquisitions and Takeovers Act, section 46. Generally, the action is only notifiable if the entity, business or land meets the threshold test. A different threshold test applies for certain notifiable actions taken in relation to agribusinesses.

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Currently the fees payable for giving notice of a notifiable action are set out in table form in subsection 7(1) of the Fees Imposition Act. The table provides that some fees are determined in accordance with the formula in subsection 7(2) and the cap in subsection 7(3). Item 3 of the Bill repeals and replaces the whole of section 7. The effect of the changes is as follows.

Interest in an Australian entity Currently, where the action is to acquire a direct interest36 in an Australian entity or an Australian business that is an agribusiness or to acquire a substantial interest37 in an Australian entity, there is a two-tiered test.38 The test is based on the consideration for the acquisition. Where the consideration is $1 billion or less the fee is $25,000. Otherwise the fee is $100,000.

The Bill changes the two-tiered test to a three-tiered test so:

• where the consideration for the acquisition is $10 million or less—the fee is $2,00039

• where the consideration for the acquisition is more than $10 million but less than or equal to $1 billion—the fee is $25,30040 and

• where the consideration for the acquisition is more than $1 billion—the fee is $101,500.41

Interest in residential or agricultural land Currently, where the notifiable action is to acquire an interest in residential land or agricultural land, there is a two tiered test which applies in the same way whether the land is residential land or agricultural land.42 Where the consideration for the acquisition is $1 million or less the fee is $5,000. Otherwise the fee is worked out in accordance with existing subsections 7(2) and (3). Importantly, where the acquisition is of an interest in agricultural land, the fee is capped at $100,000.

The Bill differentiates between agricultural land and residential land. Whilst a three-tiered test based on the consideration for the acquisition is applied to both categories of land, the monetary amounts are not the same. The effect of these changes is:

• for agricultural land:

- if the consideration is $2 million or less—the fee is $2,00043 - if the consideration is more than $2 million but less than or equal to $10 million—the fee is $25,30044 and - if the consideration is more than $10 million—the fee is $101,500.45 • for residential land:

- if the consideration is $1 million or less—the fee is $5,50046 - if the consideration is more than $1 million but less than or equal to $10 million—the fee is worked out using the method statement in proposed subsection 7(2)47 and

36. Section 16 of the Foreign Acquisitions and Takeovers Regulation 2015 provides that a direct interest in an entity or business is (a) an interest of at least 10 per cent in the entity or business or (b) an interest of at least five per cent 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 (c) an interest of any percentage in the entity or business if the person who acquired the interest is in a position to influence or participate in the central management and control of the entity or business or to influence, participate in or determine the policy of the entity or business.

37. Section 4 of the Foreign Acquisitions and Takeovers Act provides that a person holds a substantial interest in an entity or trust if (a) for an entity—the person holds an interest of at least 20 per cent in the entity or (b) for a trust (including a unit trust)—the person, together with any one or more associates, holds a beneficial interest in at least 20 per cent of the income or property of the trust.

38. Fees Imposition Act, subsection 7(1), table item 1. 39. Fees Imposition Act, proposed subsection 7(1), table item 1(a). 40. Fees Imposition Act, proposed subsection 7(1), table item 1(b). 41. Fees Imposition Act, proposed subsection 7(1), table item 1(c). 42. Fees Imposition Act, subsection 7(1), table item 2. 43. Fees Imposition Act, proposed subsection 7(1), table item 2(a). 44. Fees Imposition Act, proposed subsection 7(1), table item 2(b). 45. Fees Imposition Act, proposed subsection 7(1), table item 2(c). 46. Fees Imposition Act, proposed subsection 7(1), table item 3(a). 47. Fees Imposition Act, proposed subsection 7(1), table item 3(b).

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- if the consideration is more than $10 million—the fee is worked out using the method statement in proposed subsection 7(3).48

Interest in commercial land Currently, where the notifiable action is to acquire an interest in commercial land other than commercial land that is vacant, the fee is expressed as a single amount—$25,000.49 Where the notifiable action is to acquire an interest in commercial land that is vacant, the fee is expressed as a single amount—$10,000.50

The Bill operates so that the fee for notifying an intention to acquire an interest in commercial land is the same whether the land is vacant or not. The Bill inserts a three-tiered test based on the consideration for the acquisition so:

• if the consideration is $10 million or less—the fee is $2,00051

• if the consideration is more than $10 million but less than or equal to $1 billion—the fee is $25,30052 and

• if the consideration is more than $1 billion—the fee is $101,500.53

Interest in a mining or production tenement Where the notifiable action is to acquire an interest in a mining or production tenement, the fee is currently expressed as a single amount—$25,000.54 Under the Bill the fee continues to be expressed as a single amount— $25,300.55

Action prescribed by Regulations Where the notifiable action is one that is prescribed by Regulations the fee is an amount prescribed by Regulations or worked out using a method set out in regulations, but is not more than $100,000.56

The Bill retains the method for calculating the fee but increases the maximum amount payable to $101,500.57

Application Subitem 12(2) of the Bill provides that the amendments to section 7 of the Fees Imposition Act apply in relation to a fee payable for a notice of notifiable action given on or after 1 July 2017.

Other fees Under the FATA, a significant action is an action to acquire interests in securities, assets or Australian land, or otherwise take action in relation to entities (being corporations and unit trusts) and businesses, that have a connection to Australia. For an action to be a significant action, the action must result in a change in control involving a foreign person or be taken by a foreign person.58 Some significant actions are notifiable actions.59

Section 8 of the Fees Imposition Act provides for other fees to be paid in the circumstances that are set out in the table in subsection 8(1). Item 4 of the Bill repeals and replaces items 1 and 2 of that table. The effect of the amendments is set out below.

48. Fees Imposition Act, proposed subsection 7(1), table item 3(c). 49. Fees Imposition Act, subsection 7(1), table item 3. 50. Fees Imposition Act, subsection 7(1), table item 4. 51. Fees Imposition Act, proposed subsection 7(1), table item 4(a). 52. Fees Imposition Act, proposed subsection 7(1), table item 4(b). 53. Fees Imposition Act, proposed subsection 7(1), table item 4(c). 54. Fees Imposition Act, subsection 7(1), table item 5. 55. Fees Imposition Act, proposed subsection 7(1), table item 5. The Explanatory Memorandum states that the increase from $25,000 to $25,300

‘incorporate[s] 2016-17 financial year indexation’: Explanatory Memorandum, Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill 2017, p. 24. 56. Fees Imposition Act, subsection 7(1), table item 6. 57. Fees Imposition Act, proposed subsection 7(1), table item 6. 58. Foreign Acquisitions and Takeovers Act, section 39. 59. Foreign Acquisitions and Takeovers Act, section 38.

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Interest in securities Currently, if the action is to acquire an interest in securities in an entity that is not a substantial interest in the entity, to issue securities in an entity or to acquire interests in assets of an Australian business then the fee payable is calculated based on consideration for the issue or acquisition. Where the consideration is $1 billion or less the fee is $25,000. Otherwise, the fee is $100,000.60

The Bill inserts a three-tiered test based on the consideration for the acquisition so:

• if the consideration is $10 million or less—the fee is $2,00061

• if the consideration is more than $10 million but less than or equal to $1 billion—the fee is $25,30062 and

• if the consideration is more than $1 billion—the fee is $101,500.63

Significant action Where the action is:

• to enter an agreement relating to the affairs of the entity and under which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person)64

• to alter a constituent document of the entity as a result of which one or more senior officers of the entity will be under an obligation to act in accordance with the directions, instructions or wishes of a foreign person who holds a substantial interest in the entity (or of an associate of such a foreign person)65

• to enter or terminate a significant agreement66 with an Australian business

the fee is currently expressed as a single figure, being $25,000.67 The Bill retains the fee as a single figure but reduces the amount payable to $10,100.68

Variation Currently a fee applies where a person seeks to vary a no objection notification under subsection 76(6) of the FATA.69 The current fees set out in subsection 8(2) are:

• if the action specified in the notification is an acquisition of an interest in Australian land—$5,000

• otherwise—$10,000.

Item 5 of the Bill replaces the reference to Australian land with a reference to residential land and increases the fee to $5,100. Item 6 of the Bill increases the other fee to $10,100.

Concluding comments The Bill is said to arise from stakeholder comments following the significant changes to Australia’s foreign investment framework—including the imposition of fees—in 2015.70 This represented a significant change to the manner in which Australia dealt with foreign persons (which includes foreign governments71) who wished to invest in this country.

60. Fees Imposition Act, subsection 8(1), table item 1. 61. Fees Imposition Act, proposed subsection 8(1), table item 1(a). 62. Fees Imposition Act, proposed subsection 8(1), table item 1(b). 63. Fees Imposition Act, proposed subsection 8(1), table item 1(c). 64. Foreign Acquisitions and Takeovers Act, paragraph 40(2)(d). 65. Foreign Acquisitions and Takeovers Act, paragraph 40(2)(e). 66. Section 4 of the Foreign Acquisitions and Takeovers Act, provides that a significant agreement with an Australian business is an agreement

relating to the leasing of, the letting on hire of, or the granting of other rights to use, assets of the business; or the participation by a person in the profits or central management and control of the business. 67. Fees Imposition Act, subsection 8(1), table item 2. 68. Fees Imposition Act, proposed subsection 8(1), table item 2. 69. Fees Imposition Act, subsection 8(2). 70. Parliament of Australia, ‘Foreign Acquisitions and Takeovers Legislation Amendment Bill 2015 homepage’, Australian Parliament website. 71. Foreign Acquisitions and Takeovers Act, section 4.

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The bulk of the amendments in this Bill either set a capped fee or provide for a three-tiered test which allows for the calculation of the relevant fee depending on the consideration for the specific acquisition. The amendments should provide a more consistent approach to fees.72

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72. Explanatory Memorandum, Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee Streamlining and Other Measures) Bill 2017, p. 5.