Foreign investment in leases and licences

Authored by the LexisNexis Legal Writer team

The Foreign Acquisitions and Takeovers Act 1975 (Cth) (the Act) imposes limits on foreign ownership of Australian real estate, including certain leases and licences. It is supplemented by the Foreign Acquisitions and Takeovers Regulation 2015 (Cth) (the Regulations).

This guidance note only considers the application of the Act and Regulations to leases and licences. Guidance Note: Foreign investment in Australian land provides more information on the foreign investment framework for Australian land generally, and it is recommended to read that guidance prior to or in conjunction with this guidance note.

For additional guidance on foreign investment (including investment in assets other than Australian land), see Practical Guidance Mergers & Acquisitions guidance (subscription required) Overview: Related legal considerations — Foreign Investment Review Board: Introduction to Australia’s foreign investment approval regime / Overview — Introduction to Australia’s foreign investment approval regime.

Background

The Act restricts foreign persons from acquiring certain leases, licences or other occupation rights in certain types of Australian land.

Exceptions can apply to certain foreign persons, depending on the types or values of the interests being acquired.

There are different categories of Australian land depending on its use and location (eg residential, commercial, agricultural etc). Different monetary thresholds apply to the different categories of land before the foreign investment framework restricts the acquisition (and different monetary thresholds can apply depending on where the foreign person is located or what type of investor the foreign person is, due to free trade agreements or other government policies).