An Australian entity ceases to be a "foreign person" or ceases to be a "foreign government investor"
An Australian entity which is a "foreign person" or "foreign government investor" (because of interests held in it by foreign investors) and has previously notified interests in Australian land, entities or businesses to the Register, must report when it ceases to be a "foreign person" or "foreign government investor" (eg. because a foreign investor's percentage interests in the Australian entity decreases).
Disposals of certain interests in Australian land (regardless of value)
A "foreign person" must report any disposal of:
- a freehold interest in Australian land or an interest in an exploration tenement; or
- a lease of Australian land, with a term likely to exceed 5 years,
that was previously notified to the Register, regardless of the value of the investment.
Change in interests in Australian land previously notified to the Register
Changes in interests in Australian land previously notified to the Register
If a foreign person has previously notified an interest in Australian land to the Register, it must also report changes in the nature of the land (such as the relevant land changing from residential land to commercial land).
When and how to notify "registrable interests" to the Registrar
Where notice is required to be given to the Registrar, the notice must be given within 30 days of the "registrable event day" (which varies depending on the type of event but is generally the date on which the notifiable event occurs or when the person is aware, or ought reasonably to have been aware that the relevant event has occurred).
The Australian Taxation Office (ATO) will be launching a new online platform through which investors will be able to report interests for the new Register. A third party will be able to be authorised by a foreign investor to give notice on behalf of the foreign investor.
No fee is payable for notifying a registered circumstance. However, civil penalties apply for a failure to give notice within the requisite 30-day period.
Will the Register be public?
The Register will not be a public register. The information on the Register will be subject to similar rules as those that apply to other information relating to foreign investment in Australia under the FATA (ie that information can be disclosed to other government bodies to enable them to perform their functions or exercise their powers under the FATA).
Information on the Register will also be permitted to be disclosed to a person to whom information on the register relates.
Interaction with existing reporting regimes
Currently, under the FATA a person must notify the Treasurer within 30 days of taking certain actions approved under a no objection notification or an exemption certificate as well as certain notifiable situations after the action has been taken (such as the relevant interest ceases or changes, or the entity or business the interest relates to ceases to exist). From 1 July 2023, these circumstances will also need to be notified to the Registrar in order to be recorded on the new Register. To reduce duplication, the Draft Regulations provide that by giving a notice to the Registrar of a registered circumstance this will also satisfy any other equivalent reporting obligations to the Treasurer under the FATA in relation to the same action (noting that this would not extend to bespoke reporting conditions included in a no objection notification or an exemption certificate).
On commencement of the new Register, the following registers maintained by the ATO will be repealed and all information will be incorporated into the new Register:
- Register of Foreign Ownership of Agricultural Land;
- Register of Foreign Ownership of Water Entitlements; and
- Register of Residential Land.
All circumstances required to be reported in relation to these registers will instead be reported to the Registrar and recorded on the new Register.
The Register of Foreign Owners of Media Assets maintained by the Australian Communications and Media Authority and the Register of Critical Infrastructure Assets administered by the Cyber and Infrastructure Security Centre will continue to operate.