Foreign investors in Australia should be aware of recent regulations which have raised the examination thresholds under the country's Foreign Acquisitions and Takeovers Act 1975 (FATA).
The FATA gives the Treasurer, acting on the advice of the Foreign Investments Review Board, broad powers to block the foreign acquisition of Australian companies, businesses and urban land on ‘national interest’ grounds. The examination thresholds determine whether a foreign investment proposal is subject to screening.
The Treasurer's powers to block foreign acquisitions on the basis of national interest now apply only where the target company's gross assets exceed A$100 million (up from A$50 million). Monetary thresholds for the examination of upstream acquisitions of foreign holding companies have also been raised. The Treasurer’s powers will now apply only where, among other things, the value of interests in Australian urban land (including mineral rights) owned by the foreign target, or the gross value of the assets of its Australian subsidiaries, exceed A$200 million (previously A$50 million).
Notification requirements for certain transactions have also been relaxed in line with the increased thresholds but the higher A$831 million monetary threshold that applies to US investors in certain non-sensitive sectors is unchanged.
While the increased monetary thresholds will help reduce the regulatory requirements for certain offshore takeovers and restructurings involving Australian assets, the provisions of the FATA remain complex. Foreign investors should always seek advice prior to any direct or indirect acquisition of Australian assets.
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