Australia FDI control
Produced in partnership with King & Wood Mallesons

The following Competition practice note produced in partnership with King & Wood Mallesons provides comprehensive and up to date legal information covering:

  • Australia FDI control
  • 1. What is the applicable legislation?
  • 2. Which government or other body (or bodies) reviews foreign investments?
  • 3. What is the scope of the foreign investment regime? Does it only apply to specific sectors or types of investors (eg foreign or non-EU / non-WTO)? Are there specific rules for certain types of investors (eg state-owned enterprises)?
  • 4. What are the triggers or thresholds for the regime to apply? What types of transactions are caught? Is there a minimum level of shareholding or a control test that applies? Are there any other thresholds that need to be met (eg based on turnover or market shares)?
  • 5. Are there any exceptions that may apply?
  • 6. Is there any discretion to review transactions that do not meet any thresholds for review?
  • 7. What are the grounds for review, eg public or national security or other grounds?
  • 8. What level of discretion do the relevant authorities have to approve or reject transactions? Is there scope for any other body to intervene?
  • 9. Where a transaction is caught by the regime, is notification mandatory and must closing be suspended pending clearance?
  • More...

Australia FDI control

A conversation with Intan Eow, Partner–Mergers and Acquisitions in the Sydney office of international law firm King & Wood Mallesons, on key issues on foreign direct investment (FDI) control in Australia.

1. What is the applicable legislation?

The primary legislation governing the acquisitions of Australian business, entities or land by foreign persons and other actions by foreign persons is the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA). The Foreign Acquisitions and Takeovers Regulations 2015 (Cth) (FATR) supplements FATA and sets out further details of the framework.

In addition, the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth) and its accompanying regulations further enhance the Australian FDI regulatory regime.

2. Which government or other body (or bodies) reviews foreign investments?

The Australian Federal Treasurer is ultimately responsible for all decisions relating to foreign investment. Australia’s foreign investment regime empowers the Treasurer to make orders in respect of foreign investment proposals that are considered by the Treasurer to be contrary to the national interest. Certain investments by foreign persons require notification to the Federal Treasurer and prior approval (a ‘no objection notification’, commonly referred to as ‘FIRB approval’) before proceeding with the investment.

The Treasurer is advised and assisted by the Foreign Investment Review Board (FIRB), which is an administrative body with no statutory existence. Applications to the Treasurer under the FATA are made through the

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