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AUSTRALIA
COMPANY FORMATION SERVICES

 

FOREIGN INVESTMENT REGULATION
AND EXCHANGE CONTROL

 

In general, Australia has a liberal foreign investment and exchange control regime. Foreign investment is governed by Federal legislation and Federal Government policy. Exchange control is governed by Federal legislation and regulations.


FOREIGN INVESTMENT REGULATION
Foreign investment in Australia is regulated by the Foreign Acquisitions and Takeovers Act 1975 (FATA) and the Federal Government’s Foreign Investment Policy (Policy). The Minister responsible for making decisions under the regime is the Australian Federal Treasurer. The body that administers FATA is the Foreign Investment Review Board (FIRB).

FATA and the Policy apply to foreign persons. For the purposes of FATA and the Policy, foreign person means:

- a natural person who is not ordinarily resident in Australia (ordinarily resident, for a person other than an Australian citizen, means that person has resided in Australia for 200 days or more in the immediately preceding 12 months), or

- a corporation in which a natural person not ordinarily resident in Australia or a corporation incorporated overseas holds 15% or more of the corporation, or

- a corporation in which two or more of those persons or corporations hold 40% or more of the corporation, or

- the trustee of a trust in which a natural person not ordinarily resident in Australia or a corporation incorporated overseas holds a beneficial interest of 15% or more of the assets or income of the trust, or

- The trustee of a trust in which two or more of those persons or corporations hold a beneficial interest of 15% or more of the assets or income of the trust.

As a result of the implementation of the Australia-US Free Trade Agreement, certain US entities (prescribed foreign investors and prescribed foreign government investors) are exempt from the application of FATA and the Policy in respect of certain transactions (see below for further details).

NOTIFICATION
FATA requires notification to the Federal Treasurer of proposed acquisitions by foreign persons of:

- A substantial shareholding (15% by an individual, or 40% where two or more persons act together) in an Australian company with total assets valued in excess of A$50 million (A$800 million for prescribed foreign investors in non-sensitive sectors), or
- A substantial shareholding in an Australian company where more than 50% of its assets are Australian urban land.
FATA also requires notification of proposed acquisitions of Australian urban land. There is no threshold value. All proposed acquisitions must be notified, except:
- Non-residential commercial property that is valued at less than A$50 million (A$800 million for prescribed foreign investors) and is not vacant land, an accommodation facility or heritage listed, or
- Certain approved developments acquired off the plan, that is, before the proposed development is sold or occupied.

There are some further limited exemptions to notification in FATA’s regulations.

The Federal Government also provides for notification of any proposed acquisition of the assets of an Australian business (including rural land) valued in excess of A$50 million (A$800 million for prescribed foreign investors).

The Policy also requires notification to the Treasurer of proposals to establish new businesses where the total amount of the investment is A$10 million or more. Total investment means the total expenditure expected to be associated with the new business, including the value of any leased assets. (A prescribed foreign investor is not subject to this requirement.)

A new business requiring notification includes:

- The establishment of a business by a foreign interest not already operating in Australia
- The establishment of a new hotel or tourist facility, a new mining or raw materials processing project, and a new project in the agricultural, pastoral, forestry or fishing sectors, even if the foreign interest is already operating a similar business in Australia, and
- Diversification of a foreign interest already operating in Australia into an activity not previously undertaken by it in Australia.

The Federal Government also requires, under the Policy, notification of acquisitions of interests in the media sector of greater than 5%.

All proposed acquisitions by a foreign government, direct or indirect, must be notified (except for diplomatic representation).

Notification must be made to the Federal Treasurer through FIRB using a prescribed form. The Federal Treasurer has power in certain circumstances to order divestment of notifiable acquisitions which have not been notified.

ASSESSMENT
Once a proposed acquisition is notified to FIRB, the Federal Treasurer has 30 days (which can be extended) in which to decide whether or not to object to the acquisition. FATA allows the Federal Treasurer to prohibit an acquisition if satisfied that it would be contrary to the national interest. The Treasurer may attach conditions to a statement of no objection, where compliance with the conditions is necessary in order to prevent the proposal from being contrary to Australia’s national interest. The desired outcome of a notification is the issue by the Treasurer of a statement of no objection to the proposal (this statement is often referred to as FIRB approval).

Normally, where an acquisition is within the Policy, FIRB will promptly advise that the Treasurer has no objections to the acquisition, and it may not be necessary to wait the full 30 days before proceeding. Where an acquisition is examinable, FIRB will circulate the proposal among relevant Federal and State government departments and other bodies, such as the ACCC, to ascertain their views.

Under the current Policy, proposals in non-sensitive sectors involving total assets or investment of less than A$100 million generally will not be subject to detailed examination.

Previous announcements to expand foreign investment policy regarding acquisitions of Australian icons have not been formally adopted. However, if an acquisition is proposed that does involve an Australian icon, regardless of the industry sector, the proponent should proceed with the knowledge that FIRB will examine the proposal with that sensitivity in mind.

Additional restrictions apply to acquisitions in certain industries under the Policy (eg residential real estate, airlines and newspapers).

FIRB not only accepts the notification of proposals on behalf of the Treasurer and undertakes the assessment of them, but it also monitors compliance with conditions imposed by the Treasurer on statements of no objection. This is particularly so in relation to property conditions such as the commencement of continuous construction on a property within 12 months of approval. Non-compliance with a condition can result in the exercise of the Treasurer’s power of divestiture.

In addition to approvals under FATA, certain types of acquisitions may require other special approvals (eg acquisitions in the banking and media industries). Also, where a target has a substantial market share in an Australian market for goods or services, authorization may need to be obtained from the ACCC.

Land in the State of Queensland is affected by the Foreign Ownership of Land Register Act 1988 (Qld). This legislation does not prevent foreign ownership of land but merely records it. It does require registration by foreign persons who already own an interest in land. The Queensland Government policy on foreign investment is to ensure an approach consistent with that adopted by FIRB.

FATA AND US INVESTORS

Prescribed foreign investors
For the purposes of FATA, and as a result of the Australia-US Free Trade Agreement, the following definitions apply:

Prescribed foreign investor is either a US national (being a national or permanent resident of the United States of America) or a US enterprise (being an entity, or branch of an entity, which is constituted or organized under a law of the US. A branch of that entity must be located in the US and carrying on a business there), and

Prescribed foreign government investor is a body politic of the US.
For the purposes of the Policy, a US investor is a national or permanent resident of the US, a US enterprise, or a branch of an entity located in the US and carrying on business activities there.

Note that future agreements between Australia and other countries may result in other countries becoming prescribed foreign investors for the purposes of FATA.

Exemptions from notification for US entities
The following types of transactions are exempt from notification:

Direct investments or acquisition by US entities in:
- Existing Australian business in non-sensitive sectors, or
- Developed non-residential commercial real estate, where the total asset value or acquisition cost (whichever is higher) is under A$800 million, and

Takeovers by US entities of offshore companies whose Australian subsidiaries or assets are valued at under A$800 million, or account for less than 50% of the target company’s global assets

Direct investment by US entities in new business, irrespective of value, and

Direct acquisition by US entities of interests in financial sector companies irrespective of value (although an application may still be required to be given to the Treasurer under the Financial Sector (Shareholdings) Act 1998).

Sensitive sectors
The A$800 million threshold will not apply if the proposed acquisition or investment is within a sensitive sector. The following have been identified as sensitive sectors:

Urban land (with the exception of acquisitions of interests in developed commercial real estate)
Media sector, including direct (that is, non-portfolio) investment irrespective of size and portfolio investments of 5% or more
Direct investments by foreign governments or their agencies, or companies with a greater than 15% direct or indirect holding by a foreign government or agency, or otherwise regarded as controlled by a foreign government, irrespective of size
Existing Australian business with total assets of A$50 million or more in:

- The telecommunications sector
- The transport sector, including airport facilities, rail infrastructure, international and domestic aviation and shipping services provided either within or to and from Australia
- The manufacture or supply of training, human resources or military goods, equipment or technology to the Australian or other defence forces
- The manufacture or supply of goods, equipment or technologies able to be used for a military purpose
- The development, manufacture or supply of, or provision of services relating to, encryption and security technologies and communication systems, and
- The extraction of (or holding the right to extract) uranium or plutonium, or the operation of nuclear facilities, and
- Newspapers, broadcasting, Telstra, Commonwealth Serum Laboratories, Qantas Airways Limited, Australian international airports, federal leased airports, urban land and shipping.

What is direct investment?
Treasury does not apply a tracing exercise to determine whether the entity actually making the proposed investment or acquisition is ultimately owned by a US entity. The US entity must be the actual entity which is acquiring or investing in the Australian business or assets.

This means, for example, that a Cayman Island corporation which, although it can trace its ownership to a US entity as a wholly-owned subsidiary, will not gain the benefit of the US entity threshold exemptions from notification. This non-tracing provides the strange result that, if a US entity is owned, for example, by a Malaysian corporation, provided that the US entity is the entity making the direct investment in the asset or business, it will have the benefit of the increased threshold.

Is the acquisition of a beneficial interest a direct investment?
Treasury takes the view that in the case of a US entity acquiring a beneficial interest, it will have the benefit of the increased threshold. If the holder of the legal interest is either an Australian entity or a US entity, no notice will be required where the proposal is in a non-sensitive sector and the Australian assets are less than A$800 million. However, if the trustee is a foreign person but not a US entity, the increased threshold will not apply and the acquirer of the legal interest (trustee or custodian) will continue to be subject to the existing A$50 million threshold. That is, any applicable exemption will be determined by the status of the entity holding the legal interest (that is, the trustee or custodian), rather than the status of the beneficial interest holder (the beneficiary).

EXCHANGE CONTROL
Both Australian and foreign currencies may be brought into and sent out of Australia freely. From time to time restrictions are imposed for reasons of foreign policy, but not normally for economic reasons.

Some international transfers of funds must be reported to the Australian Transaction Reports and Analysis Centre under the Financial Transaction Reports Act 1988 (Cth). This is aimed at detecting tax evasion and identifying the proceeds of crime, rather than at exchange control.


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