News & Insights

As of 1 July 2023, a new Register of Foreign Ownership of Australian Assets (Register) came into effect under Part 7A of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (Act). The Act is also accompanied by the Foreign Acquisitions and Takeovers Amendments (Register of Foreign Ownership and Other Matters) Regulations 2023 (Cth) (Regulations).

Registration will only be required for acquisitions that occur on or after 1 July 2023.

What’s included and what’s not

The Register will be operated by the ATO. It will give the Federal Government increased oversight of foreign-held assets while also seeking to consolidate some existing registers, such as the:

• Register of Foreign Ownership of Agricultural Land;
• Register of Foreign Ownership of Water Entitlements; and
• ATO’s register of foreign-held interests in residential land.

However, the Register will not include the:

• Register of Foreign Owners of Media Assets; and
• Register of Critical Infrastructure Assets.

What does the register capture

The Register requires notification of an:

• acquisition of interests in the following types of land (even if the Foreign Investment Review Board (FIRB) approval is not required):
  • residential land
  • commercial land
  • agricultural land
  • national security land
• acquisitions of interests in mining, production and exploration tenements;
• acquisitions of registrable water assets; and
• acquisitions of business assets or interests, including starting an Australian business, where a foreign person makes an acquisition that requires FIRB approval.

How to report under the new Register

To report an acquisition under the new Register, the foreign person is required to set up an online account at the ATO’s online services for foreign investors. To do this, the foreign person will require a myGovID.

Once the foreign person has set up their own account, they can authorise a representative to act on their behalf, provided that the representative has both a myGovID (and their full legal name matches the myGovID) and an appropriate email address.

The process to authorise a representative varies depending on whether the foreign person has an ABN or ARBN. Instructions on how to authorise a representative are available on the ATO website.

What is required when notifying the ATO under the new Register

The following is required when notifying the ATO under the new Register:

• reason for providing the register notice;
• date the registrable interest was acquired;
• consideration or price paid for the registrable interest; and
• percentage of the registrable interest held or owned.

For a registrable interest that is an interest in Australian land, you will also need:

• the land details;
• the title holding type;
• the nature or type of the land (including whether it is commercial, residential or agricultural land);
• the current and intended use of the land;
• the location of the land;
• the size of the land; and
• information about any relevant leave.

For a registrable interest that is an Australian business or entity, you will need the:

• business or entity name;
• business or entity identifier (ABN or ACN);
• relevant Australia and New Zealand Standard Industrial Classification (ANZSIC) code;
• main location of the business or entity;
• business structure and the industry sector of the business or entity; and
• the circumstances in which a significant agreement was entered into or terminated, or a constituent document was altered.

Acquisitions that are exempt from the Register

Acquisitions that are exempt from registration fall under the following categories:

• acquisitions by money lenders;
• revenue streams from mining or production tenements; and
• exploration tenements acquired by non-government foreign investors.

The following acquisitions are not required unless a FIRB approval was issued, or the call-in power was exercised:

• sale by operation of law;
• acquisition from an Australian government body;
• passive acquisitions of less than 10 per cent in an Australian land entity;
• acquisitions of land by Australian citizens who do not ordinarily reside in Australia; and
• acquisitions pursuant to the easement exemption.

For more information on the new Register and what is required from you and your business, please contact our team for assistance.

Looking for a detailed resource on what will be captured under the new Register? Our team of experts have put together a detailed table of registerable interests for you to access.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.