Australian register of foreign land holding

Generally, foreign investors must report to the updated Register within a 30-day window following the acquisition or sale of land.

What interests require notification?

Foreign investors must report the acquisition of the following categories of interests to the new Register if acquired after 01 July 2023:

Interests in Australian land, excluding equitable interests, unless such equitable interest pertains to a lease or license on agricultural land that exceeds 5 years;Legal interests in shares or units of an Australian land corporation/trust or in the trustee of an Australian land trust;Interests in exploration tenements;Water interests that can be registered;Actions categorised as notifiable under the FATA concerning Australian businesses or entities, such as purchasing shares or assets;Actions deemed significant actions under the FATA for Australian businesses or entities, precisely where a No Objection Notification (NoN) has been received or the Treasurer has exercised their call-in authority; andActions considered national security actions under the FATA concerning Australian businesses or entities.

The Register should be notified within 30 days of securing the interest. Generally, interests obtained before 01 July 2023 are exempt from notification.

Is the Register publicly available?

No.

What changes require subsequent notifications?

Once an interest is recorded in the Register, there are continuing responsibilities to provide updates, including notifications for the following situations:

Termination of the "registered circumstance”, such as sale of the land or securities or the conclusion of a lease;Modifications in the type of interest, for instance, when commercial land is converted into residential land;Changes concerning water interests, like alterations in water volume or the proportion of water resources owned;Variations in the ownership percentage in an entity by 5% or more compared to what was initially reported, including involuntary shifts like security holding dilution;Becoming a non-foreign individual; orTransitioning from being a foreign government investor.

In these cases, updating the Register with the pertinent changes is mandatory.

What this means for mergers and acquisitions

The new regulatory framework imposes reporting responsibilities on foreign entities involved in mergers and acquisitions (M&A) related to the buying or selling of interests in corporations, assets, and land. Both buyers and sellers will generally be obligated to notify under this system.

Similarly, corporate restructurings that include the transfer of interests in shares, assets, or land within a group with foreign ownership will typically necessitate notifications to the updated Register.

How to submit notifications

Foreign investors must notify the Australian Taxation Office's “online services for foreign investors” portal.

Step 1: 

Create a myGovID account. First, set up an account at  myGovID, a digital identity verification app to facilitate secure interactions with online government services. Download the myGovID app and fill out basic information like your full name, email address, and date of birth.

Step 2: 

Identity Verification. If you have an Australian Business Number (ABN), you must establish a myGovID account with at least a “standard” or “strong” identity strength level. You'll also need to provide at least two forms of Australian ID, which can include a driver's license or learner's permit, passport (not expired more than three years), birth certificate, visa (using a foreign passport), citizenship certificate, ImmiCard, or Medicare card.

A “basic” identity strength level is sufficient for those without an ABN, and no additional identity documents are required.

Step 3: 

Foreign Investor Registration. Log in to the online services portal and fill out the registration form to identify as a foreign investor. Be prepared to supply the Australian Taxation Office (ATO) with the following:

Prior interactions with ATO's online services, if any;The entity's registration details if the foreign investor is an entity or a business;The date your entity or business became a foreign investor; andContact information, including a primary business contact.

You may also designate an agent to file register notifications on your behalf.

Ross Forrester is a Tax Director at Westcourt in Perth, Australia. He is the Asian Chair for the GGI International Tax Practice Group (ITPG) and the Vice Chair for The Tax Institute in Western Australia. He also represents Western Australia on the Tax Institute’s National Small and Medium Enterprises Technical Committee. Ross has broad tax experience in global family business wealth matters and in all aspects of structuring into and out of Australia.