The Australian Government recognises the substantial economic and social contribution that foreign investment has made and the ongoing benefit it will bring in the future.
Foreign investment underpins higher rates of economic activity and employment, provides access to new technology and skills, facilitates access to overseas markets and promotes continued competition.
Australia’s foreign investment policy
The Foreign Acquisitions and Takeovers Act 1975 (the Act) provides a legislative framework to screen specified foreign investment. The Act is administered by the Treasury.
The Treasury advises that Australia adopts a pre‑establishment screening process that aims to provide a straightforward, low cost mechanism for reviewing the proposed operations of foreign investors. Foreign investors apply to the Foreign Investment Review Board (FIRB) if required.
This screening process provides foreign investors with assurance prior to outlaying finances. It applies to proposed foreign investment in Australian businesses and business assets, across any industry sector, including petroleum, which are valued at or above relevant annually indexed monetary thresholds.
Australia’s Foreign Investment Policy (the Policy), the Act and screening process are the responsibility of the Australian Treasurer, who receives advice from the FIRB when reviewing investment proposals to decide if they are contrary to Australia’s national interest. The Treasurer can block proposals that are contrary to the national interest or apply conditions to the way proposals are implemented to ensure they are not contrary to the national interest.
The Treasury advises that investment proposals are considered case-by-case against the national interest rather than against hard and fast rules.
The Treasury advises that the concept of national interest includes factors such as national security, competition, other Australian Government policies (such as tax and environmental policy), impact on the economy and the community, and the character of the investor.
Under the Act, the Treasurer has 30 days in which to consider an application and make a decision. The Treasurer may extend this period by up to a further 90 days by publishing an interim order, for example if a proposal is very complicated or where further information is required. Applicants will be notified of the Treasurer’s decision within 10 days of it being made.
Private foreign investors
Award of petroleum acreage
The Treasury advises that privately‑owned (i.e. non-foreign government) foreign investors do not need to seek approval before lodging an application to the Australian Government for the award of petroleum exploration acreage. Further, approval is not required for the grant of exploration acreage and the subsequent development of any petroleum discovery.
Mining tenement investments
The Treasury advises that, in relation to offshore petroleum activities, notification and approvals may be required by privately owned foreign investors for farm‑in/farm-out activities, equity acquisitions or acquisitions of existing interests in exploration permits, retention leases and production licences and/or production facilities. For further information, refer to sections 5 and 12A of the Act and in particular, paragraph 12A(1)(c).
Foreign persons need to apply to buy or take an interest in prospecting, exploration, production or mining tenements where:
- They provide the right to occupy Australian urban land and the term of the lease or licence (including extensions) is likely to exceed five years; or
- They provide an interest in an arrangement involving the sharing of profits or income from the use or, or dealings in, Australian urban land.
Where a mining tenement is developed to an operational mind, it will then be considered developed commercial property. Foreign persons need to apply to buy or take an interest in developed commercial property valued at $55 million or more.
Foreign government investors
The Treasury advises that, for foreign government investors, prior approval must be sought before making a direct investment in Australia, regardless of the value of the investment.
The Treasury advises that any investment of an interest of 10 per cent or more is considered to be a direct investment. Retaining an interest of 10 per cent or more following the enforcement of a security interest is also considered a direct investment.
Investments that involve interests below 10 per cent may also be considered direct investments if the acquiring foreign government investor is building a strategic stake in the target, or can use that investment to influence or control the target. In particular, an investment of less than 10 per cent must be notified if it includes any of the following:
- Preferential, special or veto voting rights;
- The ability to appoint directors or asset managers;
- Contractual agreements (e.g. agreements for loans, provision of services or off-take agreements); or
- Building or maintaining a strategic or long-term relationship with a target entity.
The Treasury advises that foreign government investors must also obtain foreign investment approval before starting a new business, or acquiring an interest in land, including any interest in a prospecting, exploration, mining or production tenement.
Application of Australia’s Foreign Investment Policy
The Treasury advises that, in relation to offshore petroleum activities, under the Policy all foreign government investors must apply to the Treasurer for foreign investment approval prior to acquiring an interest in an offshore petroleum title whether obtained through a cash bid or work program process (or any other process).
Potential bidders are advised to contact the FIRB via email@example.com if they have any questions.
“Foreign government investor” is defined under the Policy (available at www.firb.gov.au) as including:
- A body politic of a foreign country;
- Entities (including companies, trusts and limited partnerships) in which governments, their agencies or related entities from a single foreign country have an aggregate interest (direct or indirect) of 15 per cent or more;
- Entities in which governments, their agencies or related entities from more than one foreign country have an aggregate interest (direct or indirect) of 40 per cent or more; or
- Entities that are otherwise controlled by foreign governments, their agencies or related entities, and any associates, or could be controlled by them including as part of a controlling group.
Where a potential investor is not wholly foreign government owned, the Treasurer considers the size, nature and composition of any non-government interest including any restrictions on the exercise of rights as interest holders.
The Treasury advises that all foreign persons should notify the Australian Government before acquiring an interest of 15 per cent or more in an Australian business or corporation that is valued above A$252 million, or an offshore company whose Australian subsidiaries or gross assets are valued above A$252 million.
Notification requirements also apply where an acquisition by a foreign person would result in foreign persons holding an aggregate interest of 40 per cent or more in such Australian businesses or corporations. A threshold of A$1,094 million applies to New Zealand and United States investors as defined under the Policy.
The Treasury advises that the monetary values listed above are those for 2015. Thresholds are indexed annually on 1 January. Investors are advised to confirm notification requirements and relevant thresholds with the FIRB at the time of investment.
The Australian Government encourages potential investors to engage with the FIRB prior to lodging applications on significant proposals to allow timely consideration. Proposals are treated as in-confidence.
General enquiries: firstname.lastname@example.org
Compliance enquiries: FIRBCompliance@treasury.gov.au
Further information on the Policy and the Act is available on the FIRB site at www.firb.gov.au.
Assistance available from Austrade
The Australian Trade Commission – Austrade – contributes to Australia's economic prosperity by helping Australian businesses, education institutions, tourism operators, governments and citizens as they:
- develop international markets
- win productive foreign direct investment
- promote international education
- strengthen Australia's tourism industry
- seek consular and passport services.
Working in partnership with Australian state and territory governments, Austrade provides international investors with the information needed to establish or expand a business in Australia. Services for international investors include:
- initial coordination of investment enquiries and assistance
- information on the Australian business and regulatory environment
- market intelligence and investment opportunities
- identification of suitable investment locations and partners in Australia
- advice on Australian government programs and approval processes.
Our services for international companies are free, comprehensive and confidential.