How is Foreign Investment in Australia regulated?

Foreign Investment in Australia ➲ An Introduction

The Australian Government welcomes foreign investment that protects national and community interests and contributes to economic growth, innovation, and prosperity.

Certain types of foreign investment proposals are subject to governmental notification or reviewal by the Foreign Investment Review Board (FIRB), who follows guidelines and regulations set out in the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) and the Foreign Investment Policy, to determine whether the proposals are contrary to national interest.

The majority of foreign investment proposals are usually approved, with only 10 out of 108,990 applications being rejected from 2015 to 2018.

Once they are approved, foreign persons are obliged to follow Australia’s laws and regulations.

Who is a "foreign person"?

According to Foreign Acquisitions and Takeovers Act 1975 (Cth) (the FATA), a foreign person includes:

• Any individual who does not ordinarily reside in Australia; or
  ‍
• A corporation or trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, holds a substantial interest (at least 20%); or two or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate interest of at least 40%; or
  ‍
• A foreign government.
  

FIRB Approval Regime

Under ordinary (non COVID-19) circumstances, the Australian Government’s foreign investment policy relies on a broad screening regime that evaluates foreign acquisitions exceeding certain monetary thresholds* for both land and non-land investments.

Download PDF of Monetary Thresholds applicable from 1 January 2022

Monetary thresholds are indexed annually on 1 January, except for the $15million (cumulative) agricultural  land threshold for private investors and the $50 million agricultural land threshold for Thailand investors, which are not indexed.

'Notifiable Actions' and 'Significant Actions'

Acquisitions by a “foreign person” can be categorized as:

⚖️ “Significant Actions” or

⚖️ “Notifiable Actions”.

Notifiable Actions always require FIRB approval prior to the transaction.

These include:

• Acquisition of a direct interest in an Australian entity or business that is an agribusiness;
• Acquisition of a substantial interest (at least 20%) in an Australian entity; or
• Acquisition of an interest in Australian land. There does not need to be a change of control.

Significant Actions do not require FIRB approval.

These include an acquisition of interests in securities, assets or Australian land, or otherwise an action in relation to entities and business (e.g. entering into agreements) that:

• Meets the relevant monetary thresholds (adjusted yearly and published on the FIRB website) - during COVID these are all temporarily set to $0;
• Has a connection to Australia; and
• Other than in relation to the acquisition of interest in Australian land, results in a change of control involving a foreign person.

Further Resources:

Foreign Investment +/or Doing Business in Australia ➲ Primer + Quiz^

Intellectual Property [IP] Law ➲ Basic Quiz (Level 1: Australian IP)

Intellectual Property [IP] Law ➲ WIPO Quiz (Level 2: Global IP)

FIRB Guidance Note 35 Significant and Notifiable Actions (Last updated 1 July 2017)

Once you have completed our online Primer + Quizzes, we recommend you contact us with your detailed queries.

Notes:

* Foreign Policy is subject to change at anytime. This link was last accessed on 24 June 2022 (Thresholds noted on the link were applicable from 1 January 2022).

^ Our Foreign Investment +/or Doing Business in Australia Primer + Quiz has not yet been updated to incorporate [post-COVID] FIRB changes.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.