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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Foreign Ownership of Land
Bill 2012
A BILL FOR
An Act to provide for the disclosure of foreign ownership of certain land;
and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
4Holding corporations and
subsidiaries
5Substantial and controlling
interests in corporations and unit trusts
6Voting power
7Control of voting power
8Associates
9Trustee company common
funds
Part 2—Administration
10Register
11Accurately
completed prescribed forms
12Rectification of register
13Access to
information in register
14Delegation
15Annual report
Part 3—Notification of
ownership
16Disclosure of present
interest
17Disclosure of
acquisition
18Disclosure of disposal of interest
19Notification on ceasing to
be a foreign person
20Notification on becoming a
foreign person
21Other registries and transitional
22Registrar may require
additional information
23Registrar may enter information
Part 4—Offences
and penalties
section 22
25False or misleading
statements
26Offences by corporations
27General
penalty
Part 5—Forfeiture
and restraint
28Show cause,
Minister’s determination and appeal procedures
29Authorisation to
sell or recommended forfeiture
30Sale of relevant interest
in land
31Application of and accounting for proceeds of
sale
32Declaration of
forfeiture
33Effect of declaration of
forfeiture
34Documents of title
35Recording of authorised sales and
forfeiture declarations
36Restraining
orders
37Procedure on application for restraining
order
38Variation, revocation or discharge of order
Part 6—Miscellaneous
39Searches
40Service of
documents
41Evidentiary provisions
42Protection from
liability
43Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Foreign Ownership of Land
Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
acquire includes obtain, gain, receive or
acquire—
(a) by purchase, exchange or lease; and
(b) by will, devolution or operation of law; and
(c) by grant or gift; and
(d) by enforcement of a security;
agreement means any agreement, whether formal or informal and
whether express or implied;
corporation means any body corporate;
department means the administrative unit that is, under the
Minister, responsible for the administration of this Act;
director, in relation to a corporation,
includes—
(a) any person occupying or acting in the position of director of the
corporation, by whatever name called and whether or not validly appointed to
occupy or duly authorised to act in the position; and
(b) any person under whose directions or instructions the directors of the
corporation are accustomed to act
foreign corporation means a body (whether incorporated or
unincorporated) that is formed outside Australia and its external
Territories;
foreign natural person means a person—
(a) who is not an Australian citizen within the meaning of the
Australian Citizenship Act 1948 of the Commonwealth; and
(b) —
(i) whose continued presence in Australia is subject to a limitation as to
time imposed by law; or
(ii) who is not domiciled in Australia;
foreign person means—
(a) a foreign natural person; or
(b) a foreign corporation; or
(c) a corporation in which, on its last accounting date, a foreign natural
person or a foreign corporation holds a controlling interest; or
(d) a corporation in which, on its last accounting date, 2 or more
persons, each of whom is either a foreign natural person or a foreign
corporation, hold an aggregate controlling interest;
foreign trust means—
(a) a unit trust in which—
(i) a foreign person holds a controlling interest; or
(ii) 2 or more foreign persons hold an aggregate controlling
interest; on the last accounting date of the trust; and
(b) a trust (other than a unit trust)—
(i) in respect of which—
(A) not less than 15% of the total income of the trust was paid to or
applied for the benefit of a foreign person, alone or together with any
associate or associates of the foreign person; or
(B) not less than 40% of the total income of the trust was paid to or
applied for the benefit of 2 or more foreign persons, together with any
associate or associates of any of them,
during the most recent year of income in respect of the trust; or
(ii) in respect of which—
(A) not less than 15% of the capital of the trust is held by the trustee
of the trust for a foreign person, alone or together with any associate or
associates of the foreign person; or
(B) not less than 40% of the capital of the trust is held by the trustee
of the trust for 2 or more foreign persons, together with any associate or
associates of any of them,
on the last accounting date of the trust;
interest in land includes an estate or interest in land and
any improvements on the land but does not include—
(a) a security interest in land; or
(b) an estate or interest in an easement over land; or
(c) the estate or interest of a lessee of freehold land or a sublessee of
leasehold land where the term of the lease or the sublease, as the case may be,
including all options given under the lease or sublease, as the case may be,
does not exceed 25 years; or
(d) an estate or interest of a kind prescribed by the
regulations;
last accounting date means—
(a) for a corporation—the last day of the most recent financial year
for which the corporation reported, or was required to report, to its members
under section 314 of the Corporations Act 2001 of the
Commonwealth;
(b) for a trust—the last day of the most recent year of income for
the trust;
officer, in relation to a corporation,
includes—
(a) a director, secretary, executive officer or employee of the
corporation; and
(b) a receiver and manager of property of the corporation appointed under
a power contained in an instrument; and
(c) an official manager or deputy official manager of the corporation;
and
(d) a liquidator of the corporation appointed in a voluntary winding up of
the corporation; and
(e) a trustee or other person administering a compromise or arrangement
made between the corporation and another person or other persons;
but does not include—
(f) a receiver who is not also a manager; or
(g) a receiver and manager appointed by a court; or
(h) a liquidator appointed by a court;
prescribed form means—
(a) if a form is prescribed by regulation—that form; or
(b) in any other case—a form approved by the registrar;
register means the register maintained under
section 10;
registering authority means the person responsible for
keeping a register for dealings in land;
registrar means the Registrar-General;
relevant land means land other than land that is, in
accordance with a Development Plan under the
Development
Act 1993, zoned as being suitable for residential or industrial
purposes;
security interest means any mortgage, encumbrance or other
charge on land created for securing a loan or the payment of an annuity or sum
of money other than a loan, but does not include an interest created by a
transfer by way of security of the legal estate of an interest in
land;
share, in relation to a corporation, means a share in the
share capital of the corporation, and—
(a) includes stock into which all or any of the share capital of the
corporation has been converted; and
(b) except in
section 9—includes
an interest in such a share or in such stock;
year of income means a year of income within the meaning of
the Income Tax Assessment Act 1936 of the Commonwealth.
(2) In this Act—
(a) a person who directly or indirectly controls an interest in land will
be deemed to have acquired that interest; and
(b) a reference to acquire includes a reference to agreeing
to acquire.
(3) For the purposes of
this Act, the time of acquisition of an interest in land will
be—
(a) where the interest
in land is acquired as the result of the granting of a lease of Crown
land—the time when the lease commences; and
(b) where the interest
in land is acquired under an agreement—the time of entry into possession
of that interest; and
(c) where the interest in land is acquired otherwise than under
paragraph (a) or
(b)—the time when
the event that gave rise to the acquisition occurred.
(4) For the purposes of
subsection (3)(b),
the time of entry into possession in respect of an interest in land means the
time under an agreement when the person acquiring the interest is entitled
to—
(a) occupy, use and control that interest; or
(b) the rents and profits of that interest.
(5) For the purposes of the definition of foreign person, a
foreign natural person or a foreign corporation will be deemed to have a
controlling interest in a corporation where the person or the corporation, as
the case may be, has a controlling interest in the holding corporation of that
first corporation.
4—Holding
corporations and subsidiaries
(1) A reference in this Act to a holding corporation of
another corporation is a reference to a corporation of which that other
corporation is a subsidiary.
(2) For the purposes of this Act, but subject to
subsection (3)—
(a) a corporation will be deemed to be a subsidiary of another corporation
if that other corporation—
(i) is in a position to control more than one-half of the voting power in
the first corporation; or
(ii) holds more than one-half of the issued shares in the first
corporation (excluding any shares that carry no right to participate beyond a
specified amount in a distribution of either profits or capital); and
(b) a corporation will be deemed to be a subsidiary of another corporation
if the first corporation is a subsidiary of any corporation that is that other
corporation’s subsidiary (including a corporation that is that other
corporation’s subsidiary by another application or other applications of
this paragraph).
(3) In determining
whether a corporation is a subsidiary of another corporation—
(a) any shares held or power exercisable by that other corporation in a
fiduciary capacity will be treated as not held or exercisable by it;
and
(b) subject to
paragraphs (c) and
(d), any shares held or
power exercisable—
(i) by any person as a nominee for that other corporation (except where
that other corporation is concerned only in a fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other corporation, not
being a subsidiary that is concerned only in a fiduciary capacity,
will be treated as held or exercisable by that other corporation;
and
(c) any shares held or
power exercisable by any person under the provisions of any debentures of the
first corporation, or of a trust deed for securing any issue of such debentures,
will be disregarded; and
(d) any shares held or
power exercisable by, or by a nominee for, that other corporation or its
subsidiary (not being held or exercisable as mentioned in
paragraph (c)) will
be treated as not held or exercisable by that other corporation if the ordinary
business of that other corporation or its subsidiary, as the case may be,
includes the lending of money and the shares are held or the power is
exercisable solely by way of security for the purposes of a money lending
agreement.
5—Substantial
and controlling interests in corporations and unit trusts
(1) For the purposes of this Act—
(a) a person will be taken to hold a substantial interest in
a corporation or unit trust if the person, alone or together with any associate
or associates of the person, is in a position to control not less than 15% of
the voting power in the corporation or attached to the issued units in the unit
trust, as the case may be; and
(b) 2 or more persons will be taken to hold an aggregate
substantial interest in a corporation or unit trust if they, together
with any associate or associates of any of them, are in a position to control
not less than 40% of the voting power in the corporation or attached to the
issued units in the unit trust, as the case may be.
(a) a person holds a substantial interest in a corporation or unit trust;
or
(b) 2 or more persons hold an aggregate substantial interest in a
corporation or unit trust,
that person will be taken to hold a controlling interest in the corporation
or unit trust, or those persons will be taken to hold an aggregate controlling
interest in the corporation or unit trust as the case may be, unless the
Minister declares that, having regard to all the circumstances, that person
together with the associate or associates (if any) of that person is not, or
those persons together with the associate or associates (if any) of each of them
are not, in a position to determine the policy of the corporation or unit trust,
as the case may be.
(3) Where—
(a) a person holds a substantial interest, or 2 or more persons hold
an aggregate substantial interest, in a corporation; and
(b) that corporation is in a position to control all or any of the voting
power in another corporation,
that person or those persons together will be taken to be in a position to
control so much of the voting power of the other corporation as the first
corporation is in a position to control.
(4) An officer of a
corporation or the manager or trustee of a unit trust, as the case may be,
referred to in
subsection (2) may
apply to the Minister, at any time prior to the expiration of the periods
referred to in
sections 16(1),
17(1),
17(3),
19 and
20, seeking
a declaration that for the purposes of
subsection (2) a
person referred to in
subsection (2),
together with the associate or associates (if any) of that person, is not in a
position to determine the policy of the relevant corporation or unit trust, as
the case may be.
(5) For the purposes of calculating whether or not a notification has been
lodged within the time limits specified in
sections 16(1),
17(1),
17(3),
19 and
20, the
period of time during which an application made under
subsection (4)
is in the office of the Minister to the date of the notification to the
applicant of the Minister’s declaration will be excluded from that
calculation.
In this Act, a reference to the voting power in a corporation
or a unit trust is a reference to the maximum number of votes that might be cast
at a general meeting of the corporation or the unit-holders of the unit trust,
as the case may be.
A reference in this Act to control of the voting power in a
corporation or attached to the issued units in a unit trust is a reference to
control by the shareholders or unit-holders recorded in the share register or
unit-holders register of the corporation or the unit trust, as the case may
be.
For the purposes of this Act, the following persons are associates of a
person:
(a) the person’s spouse or a parent or remoter lineal ancestor, son,
daughter or remoter issue, brother or sister of the person;
(b) any trustee for the person;
(c) any trustee of a unit trust in which the person is a
unit-holder;
(d) any partner of the person;
(e) any corporation of which the person is an officer;
(f) where the person is a corporation—any officer of the
corporation;
(g) any employee or employer of the person;
(h) any officer of any corporation of which the person is an
officer;
(i) any employee of a natural person of whom the person is an
employee;
(j) any corporation 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 or, where the person is a corporation, of
the directors of the person;
(k) any corporation in accordance with the directions, instructions or
wishes of which, or of the directors of which, the person is accustomed or under
an obligation, whether formal or informal, to act;
(l) any corporation in which the person holds a substantial
interest;
(m) where the person is a corporation—a person who holds a
substantial interest in the corporation;
(n) any person who is, under this section, an associate of any other
person who is an associate of the person (including a person who is an associate
of the person by another application or other applications of this
paragraph).
9—Trustee
company common funds
For the purposes of this Act, where the legal estate of an interest in land
held at the commencement of this Act or acquired after the commencement of this
Act by a trustee company (within the meaning of the Trustee
Companies Act 1988) was acquired through the investment of moneys
forming part of a common fund of the trustee company, the interest in land held
or acquired, as the case may be, will be deemed not to be held or acquired by a
foreign person.
(1) The registrar must maintain a register called the Foreign Ownership
of Land Register.
(2) All prescribed forms lodged with the registrar form part of the
register.
(3) The register may be maintained wholly or partly—
(a) on paper, or electronically or in such other medium as the registrar
from time to time considers appropriate; and
(b) in such device for storing or processing information as the registrar
from time to time considers appropriate.
(4) The registrar may
from time to time cause a copy to be made, by the means approved from time to
time by the Minister for the purposes of this section, of any part of the
register, including any prescribed form and, on the registrar certifying that
the copy is an accurate copy of that part, that copy will form part of the
register.
(5) The registrar—
(a) may cause particulars recorded in one part of the register to be
recorded in another part of the register; and
(b) may cause to be deleted from a part of the register particulars that
the registrar is satisfied have been accurately recorded in another part of the
register.
(6) The registrar may cause to be destroyed any prescribed form which has
been copied under
subsection (4) and
that copy will be—
(a) recognised as a true copy of that part of the register; and
(b) received in evidence in any court or tribunal acting
judicially.
11—Accurately
completed prescribed forms
Each prescribed form lodged with the registrar must be completed so as to
clearly and accurately indicate in respect of each acquisition of an interest in
land such information as is prescribed.
Where the registrar is satisfied that there is an error or omission in the
register or a failure to comply with this Act in respect of any prescribed form
or acquisition, the registrar may do all things necessary to rectify the error,
omission or failure.
13—Access
to information in register
(1) Subject to
subsection (2), a
person may, on payment of the prescribed fee and during the hours and on the
days appointed by the registrar for that purpose—
(a) obtain particulars of information recorded or contained in the
register; and
(b) obtain extracts of particulars of information recorded or contained in
the register; and
(c) on the giving of adequate notice to allow its preparation—obtain
from the registrar copies of any statistical data available from the
computerised information recorded in the register.
(2) The registrar must
not, without the written authorisation of the Minister, provide to a person
particulars of information recorded or contained in the register that would
disclose or lead to the disclosure of the address of the principal place of
residence of a consul or a member of the staff of an embassy.
The registrar may delegate the registrar’s powers under this Act to
an officer or employee of the department.
(1) The registrar must,
as soon as practicable after 30 June in each year, prepare a report on the
administration of this Act during the previous period of 12 months and submit
the report to the Minister.
(2) The Minister is to cause each report submitted to the Minister under
subsection (1) to be
laid before both Houses of Parliament within 14 sitting days after it is
received by the Minister.
Part 3—Notification
of ownership
16—Disclosure
of present interest
(1) A foreign person
who has the legal estate of an interest in relevant land vested in the person
(other than as trustee) at the commencement of this Act, must, in respect of
that interest, lodge a duly completed prescribed form (a notification of
ownership) with the registrar not later than 12 months after that
commencement.
(2) Where the agent of a foreign person referred to in
subsection (1) duly
completes and lodges a notification of ownership on behalf of that foreign
person, that foreign person will be deemed to have duly completed the
notification of ownership in respect of the relevant interest in land.
(3) A person who has the legal estate of an interest in relevant land
vested in the person as trustee for a foreign person or foreign trust at the
commencement of this Act, must, in respect of that interest, lodge a duly
completed prescribed form (a trustee notification of ownership)
with the registrar not later than 12 months after that
commencement.
(1) A foreign person
who acquires the legal estate of an interest in relevant land (other than as
trustee for a foreign person or a foreign trust) after the commencement of this
Act, must, in respect of that interest, lodge a duly completed notification of
ownership with the registrar not later than 90 days after the date of that
acquisition.
(2) Where the agent of a person referred to in
subsection (1)
duly completes and lodges the notification of ownership on behalf of that
person, that person will be deemed to have duly completed the notification of
ownership in respect of the relevant interest in land.
(3) A person who
acquires the legal estate of an interest in relevant land as trustee for a
foreign person or a foreign trust after the commencement of this Act, must, in
respect of that interest, lodge a duly completed trustee notification of
ownership with the registrar not later than 90 days after the date of that
acquisition.
(4) A person who holds, as trustee, an interest (other than the legal
estate) in relevant land must, for the purposes of this Act, on the request of
the person who holds (as trustee) the legal estate of that interest, supply to
the person holding the legal estate the name, usual place of residence and
details of the interest held in respect of each person for whom the first person
holds as trustee and must state whether or not each such person is a foreign
person.
(5) Despite
subsections (1) and
(3), where an interest in
relevant land is acquired because of the death of a person—
(a) the personal representative of the deceased person will not be
required to lodge a trustee notification of ownership in respect of the interest
in land vested in the person as personal representative; and
(b) a person
beneficially entitled to an interest in the land of the deceased person will not
be required to lodge a notification of ownership before documents that result in
that interest vesting in the person beneficially entitled are lodged with the
relevant registering authority.
(6) Where a person referred to in
subsection (5)(b) is
under a legal disability and the person’s guardian duly completes and
lodges the notification of ownership referred to in that subsection on behalf of
that person, that person will be deemed to have duly completed the notification
of ownership in respect of the relevant interest in land.
18—Disclosure
of disposal of interest
(1) Where the legal estate of an interest in relevant land is registered
or recorded in the register or records of a relevant registering
authority—
(a) in the name of a foreign person; or
(b) in the name of a person who is the trustee for a foreign person or a
foreign trust,
and the legal estate is disposed of, the person in whose name the legal
estate is registered or recorded must, in respect of the legal estate, lodge a
notification of that disposal in the prescribed form with the registrar not
later than 90 days after the date on which that disposal took
place.
(2) Where—
(a) the legal estate of an interest in relevant land is registered or
recorded in the register or records of a relevant registering authority in the
name of a person who is not a foreign person, as trustee for a foreign person or
a foreign trust; and
(b) an interest other than the legal estate in that land is disposed of;
and
(c) because of that disposal, the person in whom the legal estate of that
interest in land was vested no longer holds the legal estate as trustee for a
foreign person or a foreign trust,
the person in whose name the legal estate was registered or recorded must,
in respect of the legal estate, lodge a notification of that disposal in the
prescribed form with the registrar not later than 90 days after the date on
which that disposal took place.
19—Notification
on ceasing to be a foreign person
(1) Where the legal
estate of an interest in relevant land is registered or recorded in the register
or records of a relevant registering authority—
(a) in the name of a foreign person (other than as trustee for a foreign
person or a foreign trust) and the person ceases to be a foreign person;
or
(b) in the name of a person, who is not a foreign person, as trustee for a
foreign person or a foreign trust and that foreign person or foreign trust
ceases to be a foreign person or foreign trust, as the case may be,
the person in whose name the legal estate is registered or recorded must,
in respect of that interest, lodge a notification of that cessation in the
prescribed form with the registrar not later than 90 days after the date on
which the cessation took place.
Maximum penalty: $2 500.
(2) Where the agent of a person required to lodge a notification under
subsection (1) duly
completes and lodges a notification in the prescribed form on behalf of that
person, that person will be deemed to have duly completed the notification in
respect of the relevant interest in land.
20—Notification
on becoming a foreign person
(1) Where the legal
estate of an interest in relevant land is registered or recorded in the register
or records of a relevant registering authority—
(a) in the name of a person (other than as trustee) who becomes a foreign
person; or
(b) in the name of a trustee for a person or trust who becomes a foreign
person or a foreign trust, as the case may be,
the person in whose name the legal estate is registered or recorded must,
in respect of that interest, lodge a duly completed notification in the
prescribed form with the registrar not later than 90 days after that person
or trust became a foreign person or a foreign trust, as the case may
be.
(2) Where the agent of a person required to lodge a notification under
subsection (1) duly
completes and lodges a notification in the prescribed form on behalf of that
person, that person will be deemed to have duly completed the notification in
respect of the relevant interest in land.
21—Other
registries and transitional
(1) Every person required to lodge a notification of ownership or trustee
notification of ownership with the registrar under
section 17 will be
deemed to have complied with the requirements of that section if that person,
within the period specified in that section, lodges with the relevant
registering authority a duly completed notification of ownership or trustee
notification of ownership, as the case may require, contemporaneously with such
other documents as are required to be lodged with that registering authority to
enable the registration or recording of the relevant acquisition.
(2) Every document that
is lodged with a registering authority after the commencement of this Act for
the registration or recording of a dealing in respect of an acquisition of an
interest in land to which
section 17(1) or
(3) applies, will, even
though the acquisition was made before the commencement of this Act, be
accompanied by—
(a) a notification of
ownership or trustee notification of ownership, as the case may require;
or
(b) a certificate of exemption referred to in
subsection (3);
or
(c) evidence, in the
prescribed form, that a notification of ownership or trustee notification of
ownership has been lodged with the registrar,
in respect of that acquisition, contemporaneously with such other documents
as are required to be lodged with that registering authority to enable the
registration or recording of that acquisition.
(3) Where an
acquisition of an interest in relevant land occurred prior to the commencement
of this Act the registrar may, in the registrar’s absolute discretion,
issue in respect of that acquisition a certificate of exemption in the
prescribed form, exempting that acquisition from the application of
subsection (2)(a)
and
(c).
(4) Despite any other Act or law to the contrary, a registering authority
must not register or record in its register or records any documents lodged with
that registering authority after the commencement of this Act, in respect of an
acquisition of an interest in relevant land where the registering authority is
not satisfied that
subsection (2) has
been complied with.
(5) Every notification of ownership or trustee notification of ownership,
as the case may be, lodged with a registering authority under this section must
be produced by that registering authority to the registrar within 30 days
of the registration or recording of the acquisition in respect of which it was
lodged with that registering authority.
22—Registrar
may require additional information
(1) The registrar may,
for the purpose of—
(a) ascertaining whether there is any liability on a person to lodge a
prescribed form; or
(b) ascertaining whether a person is required to comply with this Act or
whether the Act has been contravened or not complied with by a person in any
respect; or
(c) enquiring into any matter connected with the administration of this
Act,
by notice in writing, require a person—
(d) to give information of a kind and in a form or manner specified in the
notice or to produce records (or copies of records) of a kind specified in the
notice (being information or records believed to be within the knowledge, in the
custody or under the control of the person) at a place and within a time
specified in the notice, to the registrar or an officer authorised by the
registrar and specified in the notice; or
(e) to attend before the registrar or an officer authorised by the
registrar and specified in the notice at a time and place specified in the
notice and there to give information and to produce records of a kind specified
in the notice (being information or records believed to be within the knowledge,
in the custody or under the control of the person) and to answer questions or to
do all or any of those things.
(2) The registrar or an officer authorised by the registrar under
subsection (1) may
require information sought under this section to be given, verbally on oath or
in writing by statutory declaration, as the case may be, and for that purpose
the registrar, that officer or any justice may administer an oath or take a
declaration.
(3) The registrar or an officer authorised by the registrar under
subsection (1) may
cause to be made copies of or extracts from the whole or part of the information
or records produced under
subsection (1).
(4) A notice under
subsection (1) which
requires a person to give information to, to attend before or to produce records
to an officer authorised by the registrar under
subsection (1) may
specify that officer by name or by the office that the officer holds.
(5) Even though a notice issued under
subsection (1)
requires a person to give information to, to attend before or to produce records
to an officer whose name or office is specified in the notice, the registrar may
at any time (without notice to the person to whom the notice was given)
authorise another officer for that purpose to exercise any power or perform any
duty that the other officer would be able to exercise or perform if the other
officer were authorised under
subsection (1).
(6) The regulations may prescribe scales of expenses to be allowed to
persons whose attendance is required under this section.
23—Registrar
may enter information
Where in respect of an acquisition of an interest in relevant
land—
(a) a notification of ownership or trustee notification of ownership is
not lodged with the registrar under this Act; or
(b) a notification of ownership or trustee notification of ownership
lodged with the registrar is not complete in respect of any material
particular,
the registrar may, in respect of that acquisition and until correct or more
accurate particulars are provided to the registrar, record in the register such
particulars as the registrar considers appropriate for that
acquisition.
24—Offence
not to comply with
section 22
(1) A person who
contravenes a requirement made of the person under
section 22(1)
commits an offence against this Act.
Maximum penalty: $75 000.
(2) A person must not be convicted of an offence defined in
subsection (1) if
the court hearing the charge is satisfied—
(a) that the defendant could not, by the exercise of reasonable diligence,
have complied with the requirement to which the charge relates; or
(b) that the defendant complied with that requirement to the extent of the
defendant’s ability to do so.
(3) A person is not excused from complying with a requirement under
section 22 to give
information or answer a question on the ground that the information or answer
might tend to incriminate the person or make the person liable to a
penalty.
(4) Information given or an answer made by a person in complying with a
requirement under
section 22, which
might tend to incriminate the person or make the person liable to a penalty, is
not admissible against the person in any proceedings brought against the person
in a court in the State with a view to the punishment of the person for an
alleged offence except—
(a) proceedings in respect of an offence under this Act; or
(b) proceedings in respect of an offence in connection with verification
of the information or answer by oath or affirmation.
(5) Where a person
commits an offence defined in
subsection (1)—
(a) the offence will be
a continuing offence and be deemed to continue for as long as the requirement in
respect of which the offence was committed is not complied with; and
(b) the court may, on convicting the person of the offence, in addition to
any penalty that it may impose under
subsection (1),
order the person to pay a penalty of $10 000 for each day on which the
offence is, under
paragraph (a),
deemed to have continued to the date of the person’s conviction of the
offence.
(6)
Subsection (5)
applies even though the failure or conduct alleged against a defendant related
to a particular time or a particular period.
(7) Where a person has
been convicted of an offence against
subsection (1), the
court may, in addition to imposing a penalty that it may impose under
subsection (1) and,
where applicable,
subsection (5),
order the person to comply with the requirement in respect of which the offence
was committed.
(8) Where a court makes an order under
subsection (7), it
must specify in the order a place where and a time or period by or within which
the order is to be complied with.
(9) A person who contravenes an order made by a court under
subsection (7)
commits an offence against this Act.
Maximum penalty: $150 000.
(10) A person who after
conviction of an offence defined in
subsection (1) or
this subsection (the previous conviction) continues to fail to comply with the
requirement in respect of which the person incurred the previous conviction
commits an offence against this Act.
Maximum penalty: $15 000 for each day on which the person has
continued to fail to comply with the requirement from the date of the last
occurring previous conviction to the date of the person’s conviction for
the offence under this subsection last committed by the person.
(11) When a person is convicted of an offence as defined in
subsection (1) and
the court makes an order under
subsection (7), the
person will not be punished under
subsection (10) for
continuing to fail to comply with the requirement to which the order
relates.
25—False
or misleading statements
(1) A person must not
give an answer, whether orally or in writing, that is false or misleading in a
material particular to a question put to the person under
section 22.
Maximum penalty: $75 000.
(2) A person must not,
in providing information under
section 22, make a
statement or representation that is false or misleading in a material
particular.
Maximum penalty: $75 000.
(3) A person (including
the agent of a foreign person) must not, in communicating information to the
registrar in respect of the acquisition of an interest in relevant land by
completing a notification of ownership or trustee notification of ownership make
any answer, statement or representation that is false or misleading in a
material particular.
Maximum penalty: $75 000.
(4) It is a defence to a charge under
subsection (1) or
(2) to prove that the
defendant believed on reasonable grounds that the answer, statement or
representation was neither false nor misleading.
(5) It is a defence to a charge under
subsection (3) to
prove that when the answer, statement or representation was given or made, the
defendant believed on reasonable grounds the answer, statement or representation
was neither false nor misleading.
(6) For the purposes of this Act, a notification of ownership, trustee
notification of ownership or other prescribed form that is incorrectly completed
in a material particular is not a duly completed form.
(1) Where a corporation
commits an offence against this Act—
(a) the chairperson of directors, managing director or other governing
officer, by whatever name called, and every member of the governing body, by
whatever name called; and
(b) every person who in this State manages or acts or takes part in the
management or administration of the business of that corporation in this
State,
will be deemed to have committed an offence against this Act and will be
liable to be proceeded against and punished accordingly.
(2) It is a defence to a charge of an offence against this Act brought
against a person specified in
subsection (1) to
prove that the offence was committed without that person’s knowledge or
connivance and that the person could not by due diligence have prevented the
commission of the offence.
(3)
Subsection (1)
applies so as not to limit or affect in any way the liability of a corporation
to be proceeded against and punished for an offence against this Act.
(1) A person who contravenes a provision of this Act commits an offence
against this Act.
(2) Where no penalty is expressly provided, a person who commits an
offence against this Act is liable to a maximum penalty of—
(a) for a first offence—$75 000; or
(b) for a second or subsequent offence—$150 000.
Part 5—Forfeiture
and restraint
28—Show
cause, Minister’s determination and appeal procedures
(1) In this Part—
ERD Court means the Environment, Resources and Development
Court established under the
Environment,
Resources and Development Court Act 1993.
(2) Where in respect of
an interest in relevant land—
(a) a foreign person has the legal estate of an interest in relevant land
vested in the foreign person at the commencement of this Act or acquires the
legal estate of an interest in relevant land after the commencement of this Act
(other than as trustee); or
(b) a foreign person has the beneficial interest of an interest in
relevant land at the commencement of this Act or acquires the beneficial
interest of an interest in relevant land after the commencement of this
Act,
and the foreign person, where the foreign person has completed or is deemed
to have completed the notification of ownership, or the person who completed the
trustee notification of ownership in respect of the interest in relevant land
beneficially held or acquired by the foreign person, is convicted of an offence
(a prescribed offence)—
(c) against
section 16 or
20; or
(d) where it is incorrectly stated that the person beneficially entitled
to the interest in relevant land is not a foreign person—against
section 17,
the Minister may, by notice in writing—
(e) where the person convicted of the offence has not lodged an appeal
against conviction—within 30 days after the expiration of the time
for lodging an appeal against that conviction; or
(f) where the person convicted of the offence has appealed against that
conviction and on the final determination of that appeal the appeal is
dismissed—within 30 days of the dismissal of the appeal,
require the person who has the legal estate of the interest in relevant
land (a prescribed person) to show cause, in writing and within
60 days of the date of the issue of the notice, why that interest should
not be forfeited to the Crown under this Part.
(3) Where the Minister
issues a notice under
subsection (2), the
Minister must, in writing, immediately—
(a) notify each person who has a registered security interest in that
interest in relevant land; and
(b) on receiving written advice under
subsection (5) in
respect of any person who has an unregistered security interest in that interest
in relevant land, notify each such person; of the issue of the notice.
(4) Where the Minister
is of the opinion that—
(a) a prescribed offence in respect of an interest in relevant land has
been committed without the knowledge or connivance of the public officer of a
corporation, or a person in the State who manages or acts or takes part in the
management or administration of the business of that corporation in the State;
and
(b) the public officer or that person, as the case may be, had used the
person’s best endeavours to ascertain the correct percentage, for the
purposes of
section 5, of the
interest in relevant land owned by foreign persons,
the Minister must immediately notify those persons whom the Minister
notified under
subsections (2)
and
(3) that the Minister
does not intend to take any further action under this Part in respect of the
notice given under
subsection (2).
(5) A person (or a
person’s agent) who receives notification under
subsection (2)
must, within 30 days of the date of the issue of the notice or such
extended period as the Minister may allow, advise the Minister in writing of the
full and correct names and addresses of all persons who have an interest
(whether a security interest or otherwise and whether registered or
unregistered) in the interest in relevant land.
(6) Where the Minister
has issued a notice under
subsection (2) in
respect of an interest in relevant land, the Minister must, having considered
the written response (if any) to that notice and within 90 days of the
issue of that notice, determine whether or not that interest in relevant land
should be forfeited to the Crown.
(7) Where the Minister
determines under
subsection (6) that
an interest in relevant land should be forfeited to the Crown, the Minister
must—
(a) in writing, immediately notify those persons whom the Minister
notified under
subsections (2) and
(3) of the
Minister’s determination; and
(b) within 14 days after the Minister’s determination advertise
the determination in the Gazette and in a newspaper circulating in the locality
where the interest in land is situated.
(8) Where the Minister
determines under
subsection (6) that
an interest in relevant land should not be forfeited to the Crown, the Minister
must immediately notify those persons whom the Minister notified under
subsections (2)
and
(3) that the Minister
does not intend to take any further action under this Part in respect of the
notice given under
subsection (2).
(9) A prescribed person
may appeal to the ERD Court from a determination of the Minister made under
subsection (6) by
serving notice of appeal on the Minister not later than 42 days after the
person has been advised of the Minister’s determination.
(10) Service of the notice of appeal on the Minister may be effected by
serving it on the registrar.
(11) Not later than 7 days before the hearing of an appeal, the appellant
must notify the Minister and the registrar of the ERD Court whether the
appellant intends to rely on the written response (if any) to the notice given
under
subsection (2) or
whether the appellant proposes to adduce further evidence on the
appeal.
(12) Jurisdiction is conferred on the ERD Court to hear and consider
matters referred to it under this Part and to make determinations on the
matters.
29—Authorisation
to sell or recommended forfeiture
(a) a prescribed person
has not lodged an appeal under
section 28(9)
against the determination of the Minister made under
section 28(6);
or
(b) a prescribed person has appealed under
section 28(9)
against the determination of the Minister made under
section 28(6)
and on the final determination of that appeal the appeal is dismissed,
the Minister must, immediately, despite any other Act—
(c) where there is a
registered security interest in the interest in relevant land—without any
other authority than this Act, authorise the holder of the security interest, in
writing, to sell the interest in land under the procedures in this Part;
or
(d) where there is no
registered security interest in the interest in relevant land—recommend to
the Governor that the interest in land be forfeited to the Crown.
(2) Where the Minister takes action under
subsection (1), the
Minister must immediately notify—
(a) the person who has the legal estate of an interest in land, the
subject of the determination; and
(b) any person (other than the person authorised under
subsection (1)(a) to
sell the interest in land) whom the Minister has been advised in writing has a
security interest in the interest in land,
of the course of action adopted.
(3) Where the Minister,
under
subsection (1),
authorises the holder of a registered security interest in a relevant interest
in land to sell the interest in land, the holder may—
(a) where the holder
has advised the Minister in writing within 30 days (or such extended period
as the Minister may allow) of receiving written authorisation under
subsection (1)(c)
that the holder wishes to sell the interest in land; and
(b) on production of a statutory declaration to the Minister that the
holder of the registered security interest was not aware and had no knowledge of
the prescribed offence, the subject of the determination of the Minister under
section 28(6), at
the time of the execution of the relevant security interest,
without further notice whatsoever to the person who has the legal estate of
the interest in land, the subject of the determination, sell the interest in
land.
30—Sale
of relevant interest in land
(1) A person who is
authorised under
section 29(1) to
sell a particular interest in relevant land must arrange for the sale of the
interest in land within 6 months of the date of the Minister’s
written authorisation to that person to sell the interest in land.
(2) Despite
subsection (1),
where the Minister is of the opinion that it would be more appropriate, having
regard to market forces or other circumstances, that the sale of an interest in
land under
subsection (1)
should be delayed, the Minister may, from time to time, extend the period
referred to in that subsection.
(a) does not advise the Minister under
section 29(3)(a)
that the person wishes to sell the relevant interest in land; and
(b) does not sell the interest in land within the period of time referred
to in
subsection (1), or
such extended period as the Minister may allow under
subsection (2),
the Minister, without any other authority than this Act, may sell the
interest in land at the earliest occasion the Minister considers
appropriate.
(4) Every sale or attempted sale of an interest in land under this section
must, in the first instance, be by public auction.
(5) For the purposes of
transferring an estate or interest in an interest in land sold under this Part,
an instrument in the form prescribed or required by the relevant registering
authority and executed—
(a) by the person authorised under this Part to sell the relevant interest
in land; or
(b) by the Minister under
subsection (3),
will vest in the purchaser, free of all security interests (but subject to
all other existing interests whether registered or unregistered), the legal
estate of the interest in land sold as completely and effectually as if the
instrument had been executed by the registered owner of the interest in
land.
(6) A relevant registering authority must, on production of an instrument
of transfer executed under
subsection (5) and
where necessary a request for substitute title, record particulars of the
instrument and request (if any) in the relevant register and where necessary
issue a new title in the form required by the registering authority for the
interest in land despite
section 36(7) and
that an instrument of title to the land is not produced.
31—Application
of and accounting for proceeds of sale
(1) Where an interest
in relevant land is sold under the authority of this Part, the person receiving
the proceeds of the sale must immediately apply those proceeds—
(a) firstly, in payment of all costs, charges and expenses properly
incurred as incidental to the sale, or any attempted sale; and
(b) secondly, in payment, in order of priority, of any registered security
interests in the interest in land; and
(c) thirdly, subject to
subsection (3), in
payment of all claims made under that subsection; and
(d) fourthly, in
payment of the balance to the Consolidated Account.
(2) The Minister may recover by action in a court of competent
jurisdiction any proceeds of sale to be applied under
subsection (1)(d) as
a debt due to the Crown.
(3) A person who claims
an unregistered security interest in an interest in land sold under this Part,
may, within 90 days of the date of the sale of that interest, make
application to the Minister for a declaration under
subsection (4).
(4) Where a person
makes an application under
subsection (3) the
Minister may, where the Minister is satisfied that the person was not a party to
the commission of a prescribed offence in respect of the relevant interest in
land, declare the nature, extent and value of that person’s estate or
interest in the interest in land (including accruing interest (if
any)).
(5) A claim by a person for an estate or interest in an interest in land
forfeited or sold under this Part will be of no effect against the Crown unless
an application in respect of that estate or interest is made under
subsection (3) and
then only to the extent to which the proceeds of sale available under
subsection (1) will
permit.
(6) Where a sale referred to in
subsection (1) of an
interest in relevant land is made by the holder of a registered security
interest, the holder must give to the Minister a full written accounting
of—
(a) the debt due to the holder and any other holder of a registered
security interest in the relevant interest in land; and
(b) the costs, charges and expenses properly incurred as incidental to the
sale or any attempted sale; and
(c) the disbursement of the proceeds of the sale.
(1) The Governor may,
on the recommendation of the Minister made under
section 29(1)(d),
declare by order in council that the relevant interest in relevant land is
forfeited to the Crown and
section 33 will
apply.
(2) Every declaration of forfeiture made under
subsection (1)
will take effect from the date of its publication in the Gazette.
(3) Where the Governor under
subsection (1)
declares an interest in relevant land forfeited to the Crown, the Minister must
immediately notify the person who had the legal estate of the interest in land
the subject of the declaration of forfeiture.
33—Effect
of declaration of forfeiture
On the making of a declaration of forfeiture under
section 32, all
existing interests (whether registered or unregistered) in the interest in
relevant land to which the declaration relates will be preserved and continued
in existence in respect of that interest in land as if the declaration had not
been made and the interest in land to which the declaration relates may be sold
by the Minister as if it were a disposal of an interest in land by the Minister
under
section 30(3).
(1) A person who, in
respect of an interest in relevant land sold under
section 30, is in
possession of documents of title to the interest in land must deliver the
documents of title to a person authorised in that behalf by the Minister, on
demand of that authorised person.
(2) Where a person has delivered documents of title to an interest in
relevant land in compliance with
subsection (1), the
person is to be discharged from any duty or obligation had by the person to any
other person in relation to the disposition of the documents of title and from
all liability that, but for this subsection, might have arisen because of that
delivery.
35—Recording
of authorised sales and forfeiture declarations
(1) A registering authority, in respect of an interest in relevant land
sold under this Part, must—
(a) on lodgement with the registering authority of an instrument of
transfer executed under
section 30(5);
and
(b) on production to the registering authority of sufficient evidence of
the sale,
record particulars of the sale under this Part in the register in the
keeping of the registering authority and must do so despite any other Act or
that any relevant document of title to that interest is not produced to the
registering authority.
(2) Every order in council and authorisation of the Minister made under
this Part will be conclusive evidence of the matters contained in
them.
(1) Where in respect of
an interest in relevant land, a person has been, or is about to be, charged with
a prescribed offence, the Supreme Court may, on application made to it by the
registrar (on the directions of the Minister) make a restraining order in
respect of that interest, and such other ancillary order as it considers
appropriate.
(2) On the making of a restraining order—
(a) the management and control of the interest in relevant land to which
it relates will pass to the person named in the order as manager of that
interest and remain in that person while the order remains in force;
and
(b) the person whose interest is restrained by an order made under this
section, is incompetent in law to pass title to that interest while the order
remains in force; and
(c) a person who holds as trustee an interest in relevant land to which it
relates for the person whose interest is restrained will, while the order
remains in force, hold that interest for the person named in the order and must
deal with that interest as directed by the manager.
(3) The manager named in a restraining order is empowered to deal with
(other than to dispose of) that interest of which the person is manager in and
for the purposes of the management as if the manager were the absolute owner of
the interest subject always to the manager being prudent and diligent in the
management of the interest and to the manager complying with conditions
specified in the order as regulating the management of the interest.
(4) Where a restraining order has been made, the applicant for the
restraining order must cause a copy of the order to be given to every person
who, to the applicant’s knowledge—
(a) has the legal estate of the relevant interest in land; and
(b) has a registered security interest in the relevant interest in
land.
(5) A person or the
trustee, agent or servant of that person—
(a) to whose interest in land a restraining order made under
subsection (1)
relates; or
(b) to whom a copy of a restraining order made under
subsection (1) has
been given or is deemed to have been given,
must not attempt to do or purport to do any act in disobedience to or
wilful disregard of the order, while it remains in force.
(6) A person who contravenes
subsection (5) in
respect to any order made by a judge is guilty of an offence.
Maximum penalty:
(a) in the case of an individual—5 years imprisonment;
or
(b) in the case of a corporation—$200 000.
(7) On production to
the person of a copy of a restraining order made under this section, a person
charged with the keeping of registers relating to an interest in land referred
to in the order must not register any dealing with respect to that interest
without the written consent of the Minister until the order has been revoked or
discharged.
37—Procedure
on application for restraining order
(1) On an application under
section 36 for a
restraining order, the Supreme Court may require notice of the application to be
given to such person as it considers should be informed of the
proceedings.
(2) Every person to whom notice of an application under
section 36 for a
restraining order has been given is entitled to be heard with respect to the
matter of the application.
(3) Where notice of an application under
section 36 for a
restraining order is given to a foreign person in respect of whose interest in
relevant land a restraining order is sought or to another person who holds that
interest as trustee, the notice will have effect as if it were a copy of a
restraining order duly made in respect of that foreign person’s interest,
until the matter of the application has been disposed of.
38—Variation,
revocation or discharge of order
(1) A restraining order made under
section 36 is
discharged—
(a) if at the expiration of the period ordered by the Supreme Court in
that regard, proceedings against a person have not been commenced in respect of
a prescribed offence; or
(b) if the person charged with committing the offence, because of which
charge the restraining order was made, has been acquitted of the charge or the
charge has been withdrawn; or
(c) if the person charged with committing the offence, because of which
the restraining order was made, having been convicted of the charge, has had the
person’s conviction quashed on appeal, unless the court hearing the appeal
otherwise orders; or
(d) if the Minister gives a notice under
section 28(4) or
28(8); or
(e) if an appeal under
section 28(9) to the
ERD Court is upheld; or
(f) on lodgement with the relevant registering authority of an instrument
of transfer executed under
section 30(5).
(2) A restraining order made under
section 36 may, on
application made to the Supreme Court, be varied or revoked at any time for any
reason appearing to the Supreme Court to be sufficient.
(3) On an application for revocation of a restraining order, the applicant
must cause notice of the application to be given to—
(a) the manager of the interest in relevant land to which the restraining
order relates; and
(b) such other person as the Supreme Court considers should be informed of
the proceedings,
and the manager and such other person are entitled to be heard with respect
to the matter of the application.
Every officer having the charge of records which are available for search
by the public must permit the registrar and any person authorised by the
registrar in that behalf, free of charge, to make searches of and to make copies
of or extracts from any documents of title, or records in the department,
registry or office relating to any acquisition of an interest in relevant land
or matter in which the registrar is or may, for the purposes of this Act, be
interested.
(1) Where under this Act, a document or notice is required or permitted to
be given to or served on a person, the document or notice may be given or
served—
(a) where the person is a natural person—by giving it to or serving
it personally on the person or by sending it by post to the person at the
person’s usual or last known place of abode or business; or
(b) where the person is a corporation—by leaving it at or sending it
by post to the registered office of the corporation.
(2) If a document left at or sent by post to the address of the registered
office of a corporation will not be, or is not likely to be, received by the
corporation, a document may be served on the corporation by delivering a copy of
the document personally to each of 2 directors of the corporation who
reside in the State or by sending a copy of the document by post to each of
2 such directors at the address of those directors last known to the person
sending the copy of the document.
(3) In this section registered office, of a corporation,
means—
(a) its registered
office under the Corporations Act 2001 of the Commonwealth;
or
(b) if
paragraph (a) does
not apply—
(i) its principal place
of business in the State; or
(ii) if
subparagraph (i)
does not apply, its principal place of business in Australia.
In any proceedings under this Act—
(a) it will not be necessary to prove the appointment of the Minister, the
registrar or a delegate of the registrar to do an act or take a proceeding;
and
(b) a signature purporting to be that of the Minister, the registrar or a
delegate of the registrar will be taken to be the signature it purports to be
until the contrary is proved; and
(c) a document purporting to be a copy of or an extract (certified by the
registrar) from a document lodged in the land registry will, on its production
in that proceeding be evidence and, in the absence of evidence to the contrary,
conclusive evidence of—
(i) in the case of an office copy—the last document and its
contents; or
(ii) in the case of an extract—of the matters contained in the
document; and
(d) a certificate purporting to be that of the registrar as to the time
when a document of or from which an office copy or extract has been produced in
evidence, was lodged in the land registry will be evidence and, in the absence
of evidence to the contrary, conclusive evidence of the fact and time of the
lodgement of the document; and
(e) proof of exemption from a provision of the Act will be on the person
who relies on the exemption; and
(f) it will not be necessary to prove the authority of a person to do an
act or take a proceeding in the absence of evidence to the contrary.
No liability attaches to the Crown or any person on account of any act or
thing—
(a) done or omitted to be done under this Act; or
(b) done or omitted to be done bona fide for the purposes of this Act and
without negligence.
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Act.
(2) Without limiting the generality of
subsection (1),
those regulations may make provision—
(a) regulating the duties of the registrar and other officers employed in
the administration of this Act; and
(b) regulating the form of reports under this Act, and the procedure to be
followed in respect of those reports; and
(c) the form of the register and the particulars to be entered in the
register; and
(d) fees in respect of any matter under this Act and their payment,
recovery or waiver; and
(e) exemptions (conditional or unconditional) from specified provisions of
this Act; and
(f) fines, not exceeding $10 000, for offences against the regulations;
and
(g) facilitation of proof of the commission of offences against the
regulations.
(3) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister or any
other person.