LI 2025/D13 - Explanatory Statement

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Foreign Acquisitions and Takeovers Regulation 2015

Draft Explanatory Statement

General outline of instrument

1. This instrument is made under subsection 58M(1) of the Foreign Acquisitions and Takeovers Regulation 2015 (the Regulations).

2. This instrument allows the Registrar to extend the period in paragraph 130W(2)(b) of the Foreign Acquisitions and Takeovers Act 1975 (the Act) in which a register notice must be given to the Registrar.

3. The instrument is a legislative instrument for the purposes of the Legislation Act 2003.

Date of effect

4. This instrument commences on the day after it is registered on the Federal Register of Legislation.

Background

5. Part 7A of the Act contains legislation in relation to the Register of Foreign Ownership of Australian Assets (the Register). The Register records certain actions (for example, acquisitions) relating to interests in land, water, entities, businesses and other assets in Australia. It also requires foreign persons who have undertaken such actions to register the interests they acquire or dispose of as a result of the action. The register notice that is given may result in the creation of a registered circumstance in relation to the person, and the person may be required to give further register notices such as where the nature of the interest changes or ceases, or the person is no longer a foreign person.

6. A register notice must be given to the Registrar of the Register within 30 days of the registrable event date.

7. The Commissioner of Taxation was appointed as the Registrar under the Commonwealth Registers (Appointment of Registers) Instrument 2021 and commenced as Registrar on 29 November 2022.

8. Section 130Z of the Act allows for a regulation to be made for extending the period in paragraph 130W(2)(b) for providing a register notice. Section 58M of the Regulations allows for the Treasurer to, by legislative instrument, make a provision for and in relation to extending the period in paragraph 130W(2)(b) of the Act in which a register notice must be given to the Registrar.

9. Section 5 of the Foreign Acquisitions and Takeovers (Registrar) Delegations 2023 delegates to the Registrar the Treasurer's power under section 58M of the Regulations to, by legislative instrument, make provision for extending the period in paragraph 130W(2)(b) of the Act in which a register notice must be given to the Registrar.

Effect of this instrument

10. This instrument allows the Registrar to extend the period in paragraph 130W(2)(b) of the Act in which a person must provide a register notice to the Registrar.

11. Section 5 of the legislative instrument allows the Registrar to, by notice in writing, extend the period by any number of days and grant any number of subsequent extensions.

12. In practice, foreign persons seeking an extension of the period in paragraph 130W(2)(b) of the Act will need to specify their preferred period.

Factors the Registrar may take into account in granting an extension

13. In determining whether and for what period an extension of time to lodge a register notice should be granted, the Registrar may take into account any of the following factors:

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the type of action(s) and interest(s) to be registered,

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the timing of the request for an extension of time to lodge a register notice,

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the foreign person's explanation for failing to lodge a register notice within the time limit,

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the foreign person's efforts in complying with their register obligations,

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the complexity of the foreign person's register obligations,

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the number of register obligations that have arisen because of a single transaction or series of transactions,

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whether the foreign person is in possession of all information required to complete a register notice,

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whether there are system issues with the ATO Online Services for Foreign Investors (OSFI),

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the foreign person's compliance history with the Act,

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any other circumstance that the Registrar considers relevant.

Examples

Example 1

14. OfficeTech Pty Ltd, an Australian company owned by foreign shareholders, entered a 7-year commercial lease which commenced on 1 July 2025. It had 30 days to provide a register notice for this lease. OfficeTech Pty Ltd has always been compliant with its foreign investment obligations. OfficeTech Pty Ltd was not aware that commercial leases needed to be registered. After learning about the Register, they conducted an internal review and confirmed this was the only asset yet to be registered. The company disclosed the breach to the Registrar and sought an extension of time to lodge a register notice. Given OfficeTech Pty Ltd's compliance history, it may be appropriate to grant an extension.

Example 2

15. Land Development Co Ltd, a foreign owned property developer, acquires a large plot that it intends to subdivide and sell in multiple land releases. For Stage 1 of their subdivision, they create 200 individual lots. Each lot will need to registered on completion of the subdivision and issuing of the individual land titles. Land Development Co Ltd is unable to meet the requirement to register all lots within 30 days. As Land Development Co Ltd has substantial concurrent register obligations, it may be appropriate to grant an extension.

Example 3

16. Petrol Station Ltd is a large company which was acquired by Foreign Co on 1 November 2024. This takeover resulted in Petrol Station Ltd becoming a foreign person and having register obligations for all of its assets. Petrol Station Ltd identified that it will not be able to practically register all of the assets within 30 days. On 10 November 2024, Petrol Station Ltd requested an extension of time to lodge its register notices. As Petrol Station Ltd has requested an extension before the end of the 30-day register notice period, and has substantial concurrent register obligations, it may be appropriate to grant an extension.

Example 3A

17. Petrol Station Ltd was granted an extension to register all of its assets by 31 December 2024. Petrol Station Ltd has commenced registering each of its assets. However, on 19 December 2024 Petrol Station Ltd requested a further extension of time to lodge its register notices as there are substantially more register obligations than identified at the time of the initial request for extension. Given Petrol Station Ltd's ongoing engagement with the Registrar, and the active steps it has already taken to lodge register notices in respect of the transaction, it may be appropriate to grant a further extension.

Example 4

18. Aus Investment Fund is a closely held fund owned by foreign government investors. It undertakes substantial daily trading activities in land securities. Each transaction is a registrable event. Aus Investment Fund has written to the Registrar seeking assistance on how it would be able to comply with its register obligations. Aus Investment Fund is unable to collect all of the required data and report this to the Register within 30 days of each transaction, but conducts monthly internal reporting which is completed 10 business days after the end of the month. Once this reporting is completed, Aus Investment Fund needs further time to lodge the relevant register notices. Due to the high volume of acquisitions, the timing of the availability of quality assured data, the ongoing request to the Registrar for assistance, and substantial corresponding registration requirements, it may be appropriate to grant an extension. This may need to be applied for periodically for each series of transactions.

Example 5

19. A foreign person acquired a residential property on 5 March 2024 and sought to register the asset. They realised they did not have all the information required for a valid register notice and sought this information from their conveyancer on 20 March 2024. The conveyancer said they would provide the information to the foreign person on 10 April 2024. On 1 April 2024, the foreign person wrote to the Registrar requesting an extension as they did not have access to the information required to lodge a register notice. As all of the required information is not available to the foreign person and a timely request for an extension, with an accompanying explanation has been made, it may be appropriate to grant an extension.

Example 6

20. Foreign Gov Co holds a substantial interest in Global Investment Fund. Global Investment Fund acquired Aus Mining Co Pty Ltd on 10 May 2024 which was a notifiable action for both Foreign Gov Co and Aus Mining Co Pty Ltd for which notice was provided. Foreign Gov Co has had difficulty setting up their OSFI account due to time differences and security issues, resulting in delays. Due to the delay, their 30-day window to provide a register notice has passed. Foreign Gov Co disclosed this issue to the Registrar and is seeking an extension. Due to the delays experienced with the OSFI system, and Foreign Gov Co's willingness to comply, it may be appropriate to grant an extension.

Example 7

21. Takeover Co Pty Ltd acquired Mining Group Ltd, an Australian corporate group, on 31 January 2024 resulting in every entity in the group becoming a foreign person. A subsidiary of Mining Group Ltd holds a substantial interest in Aus Explore Pty Ltd, an exploration company holding both mining and exploration tenements. Aus Explore Pty Ltd is now a foreign person as a result of Takeover Co Pty Ltd's acquisition of Mining Group Ltd and has register obligations. Aus Explore Pty Ltd only becomes aware of its register obligations on 30 April 2024 and writes to the Registrar for clarification of its obligations and to request an extension of time to lodge register notices. As Aus Explore Pty Ltd's registration requirements have arisen due to the changes impacting one of its substantial shareholders (and has not arisen as a result of its own actions), and its willingness to comply on discovery of the issue, it may be appropriate to grant an extension.

Compliance cost assessment

22. To be advised.

Consultation

23. Subsection 17(1) of the Legislation Act 2003 requires that the Commissioner is satisfied that appropriate and reasonably practicable consultation has been undertaken before they make a determination.

24. As part of the consultation process, you are invited to comment on the draft determination and its accompanying draft explanatory statement.

Please forward your comments to the contact officer by the due date.

Statement of compatibility with human rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Foreign Acquisitions and Takeovers (Register Notices – Extensions of Time) Instrument 2025

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

This instrument allows the Registrar to extend the period in which a register notice must be provided by a foreign person by any period of time. The Registrar can also grant any number of subsequent extensions.

Human rights implications

This legislative instrument does not engage any of the applicable rights or freedoms. The instrument allows the Registrar to provide a foreign person with additional time to comply with their registration obligations. This will help ease the compliance burden on foreign persons.

Conclusion

This legislative instrument is compatible with human rights as it does not raise any human rights issues.

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Draft published 18 June 2025

Robert Heferen AO
Commissioner of Taxation

Legislative References:
Foreign Acquisitions and Takeovers Act 1975
The Act

Foreign Acquisitions and Takeovers Regulations 2015
The Act

Foreign Acquisitions and Takeovers (Registrar) Delegations 2023
The Delegations

Foreign Investment Reform (Protecting Australia's National Security) Act 2020
The Act

Human Rights (Parliamentary Scrutiny) Act 2011
The Act

Legislation Act 2003
The Act

Related Legislative Determinations:
LI 2025/D13 - Legislative Instrument