10

Enforcement

Significant criminal and civil penalties can apply for non-compliance with the FATA. For instance, for failure to give notice of a 'notifiable action' or 'notifiable national security action', or for taking an action notified to FIRB prior to receiving FIRB approval, or for contravening an order made by the Treasurer, or for contravening a FIRB approval condition, or for the giving of false or misleading information relating to a FIRB application:

  • maximum criminal penalty of:
  • for an individual – 10 years' imprisonment or 15,000 penalty units or both (compared to the current three years or 750 penalty units or both);
  • for a corporation – 150,000 penalty units (compared to the current 3,750 penalty units); and

  • maximum civil penalty of the lesser of the following:
  • 2.5 million penalty units; or
  • the greater of the following: (i) 5,000 penalty units (or 50,000 penalty units if the person is a corporation); and (ii) a specified amount referable to the value of the relevant action (there is a table in the legislation setting out how to calculate the specified amount) – whereas under the previous regime the maximum civil penalty was 250 penalty units for an individual and 1,250 penalty units for a corporation

Currently, one penalty unit equates to $222.

The Criminal Code extends liability to persons who incite others to commit an offence (which may include officers of a corporation that is in breach). Anti-avoidance rules also apply.

In addition to seeking criminal and civil penalties, the Treasurer has a range of enforcement tools, including:

  • the power to impose fines under an infringement notice regime;

  • broad monitoring and investigative powers;

  • power to accept enforceable undertakings from foreign persons;

  • power to give directions to persons in order to prevent or address suspected breaches of the FIRB regime; and

  • power to revoke a FIRB approval where relevant information provided by the applicant prior to the grant of the approval was false or misleading in a material particular.

Connect with our leading FIRB Team

Our team is at the forefront of FIRB changes and well placed to help you plan ahead as you execute your Australian investment strategy.

Allens is an independent partnership operating in alliance with Linklaters LLP. © 2020 Allens, Australia