AUSTRALIA Law and Practice Contributed by: Scott Colvin, Warren Scott and Lachlan Speirs, Archer Scott Lawyers
Archer Scott Lawyers Level 27 101 Collins Street 3000 Melbourne Australia Tel: +61 03 8777 2221 Email: Scott.colvin@archerscott.com.au Web: www.archerscott.com.au
1. Legal System 1.1 Legal System and Judicial Order
For foreign investors, the practical consequence is that the rules most relevant to acquiring and operat - ing a business – ie, company, competition, consumer, foreign investment, intellectual property and tax law – are federal and apply uniformly across the country. State-based differences in property, duty and leasing matter chiefly to multi-site and franchised operations, which may need to account for variation between jurisdictions. 2. Restrictions on Foreign Investments 2.1 Approval of Foreign Investments Foreign investment is regulated by the Foreign Acqui - sitions and Takeovers Act 1975 (Cth) and the Foreign Acquisitions and Takeovers Regulation 2015, sup - ported by Australia’s Foreign Investment Policy and published guidance. The Foreign Investment Review Board is a non-statutory body that advises the Treas - urer, who is the decision-maker; the Treasury’s Foreign Investment Division administers the regime, and clear - ances are given as a no objection notification. A foreign person must generally notify, and obtain a decision, before taking certain actions. The most com - mon triggers are acquiring a substantial interest (20% or more) in an Australian entity, or acquiring interests in Australian land or businesses, where the relevant monetary threshold is met. A national security overlay applies separately: acquiring a direct interest (10% or more, or any interest conferring control or influence) in a national security business or national security land is notifiable regardless of value, as is starting such a business.
Australia is a common law jurisdiction whose legal tradition derives from England. It is a federation com - prising six states and two self-governing territories, operating under a written federal Constitution that dis - tributes power between the Commonwealth (national) and the states. Law is sourced from legislation enacted by the Com - monwealth and state parliaments and from the com - mon law and equity developed by the courts, applied through the doctrine of precedent. The Common - wealth Parliament legislates within enumerated heads of power: the corporations power is the foundation of nationally uniform company, competition and con - sumer laws, while areas such as real property, con - veyancing, stamp duty and retail leasing remain prin - cipally matters of state law. The High Court of Australia sits at the apex of the judicial system as the final court of appeal and the arbiter of constitutional questions. Federal jurisdiction is exercised mainly by the Federal Court of Australia, which hears corporations, competition, consumer, intellectual property, taxation and administrative mat - ters, and by the Federal Circuit and Family Court. Each state and territory has its own hierarchy, headed by a Supreme Court with a Court of Appeal, beneath which sit intermediate and lower courts, and merits review of many government decisions lies with the Administra - tive Review Tribunal and its state equivalents.
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