The new Register of Foreign Ownership of Australian Assets
04 July 2023

A new Register of Foreign Ownership of Australian Assets came into effect on 1 July 2023, pursuant to Part 7A of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) and related regulations.
The new Register will subsume the existing residential land, agricultural land and water interest registers and will cover a broader range of interests held by foreign investors.
In general, foreign investors will need to notify the new Register within 30 days after they acquire or dispose of an interest or there is a change of at least 5% in the interest in an entity.
This new regime will only apply to new actions taken after 1 July 2023, meaning interests acquired prior to this date do not need to be notified (unless you become a foreign person while holding those interests). Additionally, FIRB's application fees have been updated for the new financial year (and is indexed annually), however there will be no fees payable in respect of notifications for the new Register.
This is an additional regime to the existing regime requiring foreign persons to seek foreign investment approval for certain acquisitions and actions.
If a foreign investor acquires any of the following types of interests after 1 July 2023, they must notify under the new Register:
Notice is required within 30 days of acquiring the interest. Generally, interests acquired prior to 1 July 2023 (and any disposals or changes to those interests) do not need to be notified.
However, if you become a foreign person and you hold any of the above interests listed at (1) to (7) (except in the case of (6), where the interest would not constitute a notifiable action), notice must also be given for each interest that you hold (regardless of when you acquired it).
After an interest is registered there are ongoing notification obligations – including notification when:
No.
The type of information that a foreign person needs to provide in the notice includes:
For a registrable interest that is an interest in Australian land, it must also include:
For a registrable interest that is an interest in an Australian business or entity, or in the assets of an Australian business or entity, it must also include:
For a registrable water interest, it must also include:
For a registrable interest that is an exploration tenement or a mining and production tenement:
A civil penalty may apply if a person fails to give a register notice when required. Further, the information provided must be accurate, factual and complete - an offence may be committed if false or misleading information or documents are provided.
As a practical step, foreign investors should confirm that they have internal procedures in place under which corporate activity is monitored and an assessment made in each case as to whether an action needs to be notified to the new Register.
Any existing procedures should be updated to capture the broader range of circumstances covered by the new Register. Foreign investors which have multiple business divisions may benefit from a centralised system of tracking and maintaining an internal record of corporate activity, investments, and compliance with the reporting requirements.
For changes to an interest, the obligation to notify arises from when the holder of the interest is aware, or ought reasonably to have become aware, of such a change. This provides some comfort to foreign investors who might have passive changes in their assets holdings, as the notice period does not commence immediately as the change arises. It will be necessary however to have procedures in place to reasonably monitor the occurrence of such changes.
Additionally, foreign persons are required to make records relating to register notices and keep those records for 5 years. Failure to do so may constitute an offence. Accordingly, it is necessary to internal procedures provide for appropriate keeping and retention of records.
Foreign investors should be aware that they will still need to report to FIRB on actions taken pursuant to a NoN or Exemption Certificate (EC) in compliance with the relevant conditions of the NoN or EC. We recommend checking that internal procedures include all reporting requirements under NoNs and ECs (whichever is applicable) and the FATA that are likely to arise for the foreign investor in the context of its business.
The new regime will not apply to some actions that are wholly exempt from the foreign investment regime, such as assets held as security under a moneylending agreement.
Foreign government investors must also give a register notice if they start an Australian business, acquire a direct interest in any Australian entity or business or acquire a legal or equitable interest in a tenement or an interest of at least 10% in securities in a mining, production or exploration entity.
Foreign government investors are not eligible for all of the exemptions under the FATA available to foreign investors. This broadens both the actions requiring approval under the FATA and the obligation to give a register notice. For example, the FATA only applies to an acquisition of an exploration tenement where the foreign investor is a foreign government investor. In addition, the monetary threshold test does not apply to foreign government investors, meaning a wider number of actions constitute a significant action and a notifiable action for foreign government investors and which will require a register notice to be given.
Most M&A transactions by foreign persons relating to acquisitions and disposals of interests in companies, assets and land will enliven reporting obligations under the new regime for both the buyer and the seller.
Similarly, restructures which involve the transfer of interests in shares, assets and/or land within a corporate group with foreign ownership will generally require notification to the new Register.
Foreign investors must provide register notices using the 'Online services for foreign investors' Australian Taxation Office portal. The previous notification of action webform will no longer be available.
You will need to take the following steps:
Step 1 (Set up a myGovID account): Establish a "myGovID", which is a digital identity application used to verify the identity of users who engage with online government services. You will need to download the myGovID app and complete basic details such as your full name, email address and date of birth.
Step 2 (Verify your identity): If you have an ABN, establish a myGovID with at least a 'Standard' or 'Strong' identity strength, and provide at least two of Australian identity documents. Acceptable Australian ID documents include a driver’s licence or learner’s permit, passport (not more than three years expired), birth certificate, visa (using your foreign passport), citizenship certificate, ImmiCard and Medicare card.
If you do not have an ABN, you will only need a "Basic" identity strength and so are not required to provide identity documents.
Step 3 (Register as a foreign investor): Register as a foreign investor by logging into the online services portal and completing the online form. You should be prepared to provide to the ATO:
You may appoint an agent to lodge register notices on your behalf.
Authors: Kylie Lane, Partner; Natsuko Ogawa, Partner; Lindy Randall, Partner; Pauline Tan, Partner; Olivia Sun, Lawyer.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.