9

Practicalities

9.1 Fees

Fees are imposed for considering applications, not for approvals, and must be paid before an application will be considered. FIRB’s time limit to consider the application (see paragraph 9.3) does not start until the fee is paid.

The rules regarding the determining of FIRB fees are complex. The fee in any given case will depend on a range of factors, including: the type of target, the value of the transaction, the type of transaction, whether the application is for a no-objection notification or an exemption certificate, or whether the special fee adjustment rules apply.

In general terms, the fee for any single application can range from $2,000 up to $500,000. In many cases the higher the transaction value the higher the fee subject to a fee cap of $500,000.

Separately, there is an annual vacancy fee levied on foreign owners of residential property that has not been occupied, or genuinely available on the rental market, for less than 183 days in a 12-month period.

'The concept of 'national interest' is not defined in the legislation. The Treasurer has the power to determine on a case-by-case basis whether a proposed transaction will be contrary to the 'national interest'. The Policy states that the Government typically considers the following factors when assessing foreign investment proposals: national security; competition; other Australian government policies (including tax); impact on the economy and the community as well as employees; and character of the investor.'

9.2 FIRB applications, no-objection notifications, and conditions

Foreign persons are advised to make applications for FIRB approval to remove the risk of adverse orders (such as disposal) if the Treasurer decides the proposed transaction will be contrary to the 'national interest' or, in the case of notifiable national security actions and reviewable national security actions, contrary to 'national security'.

The concept of 'national interest' is not defined in the legislation. The Treasurer has the power to determine on a case-by-case basis whether a proposed transaction will be contrary to the 'national interest'. The Policy states that the Government typically considers the following factors when assessing foreign investment proposals: national security; competition; other Australian government policies (including tax); impact on the economy and the community as well as employees; and character of the investor.

Foreign investors should be aware that in many cases it is a criminal offence to proceed without approval (see paragraph 10). In response to an application the Treasurer (through FIRB) may decide that:

  • there are no objections to the proposal, and give a no-objection notification (commonly known as a 'FIRB approval') to the applicant accordingly;
  • there are no objections to the proposal provided certain conditions are met, and give a no-objection notification (commonly known as a 'FIRB approval') to the applicant imposing conditions (in which case the conditions notified to the acquirer are legally binding if the transaction proceeds); or
  • the proposal is contrary to the national interest or national security (as applicable), and make a public order prohibiting the transaction.

The Government has publicly stated that conditions are the regulatory mechanism by which it can allow foreign investment to occur while at the same time managing the risks to the national interest or national security associated with that investment. The types of conditions that have been imposed on previous FIRB approvals include:

  • reporting conditions, such as the requirement to provide FIRB with annual reports on whether or not the applicant has complied with Australian tax laws in relation to the proposed transaction, and also to provide FIRB with information regarding the applicant and target group's post-transaction equity and debt funding structure;

  • conditions to support national security, such as a requirement for at least half of the target's board to comprise Australian citizens and residents, and a requirement that the target's chairman be an independent director who is an Australian citizen and resident;

  • conditions relating to the treatment of sensitive data, which seek to mitigate risks of unauthorised access, corruption, denial or exfiltration, such as:
  • a requirement to develop and implement data security policies and procedures that extend beyond the requirements of general Australian law;
  • restrictions on access to specified data by directors, representatives and staff of the applicant;
  • restrictions on the location of data storage and access;
  • cybersecurity arrangements; and/or
  • reporting requirements in the event of a data breach;

  • conditions relating to sensitive infrastructure, which seek to mitigate risks relating to espionage and sabotage, such as a requirement that operational control or maintenance of sensitive assets generally occurs within Australia;

  • conditions relating to commercial property, which seek to mitigate risks relating to client security, such as:
  • notification to tenants of changes in ownership and/or property management; and/or
  • restrictions on investor access to the property;

  • conditions to support competition policy, such as restricting the aggregate ownership by associated investors in a specific industry or sub-market;

  • conditions designed to mitigate risks to the community or to the national or regional economy, such as:
  • a requirement to maintain company headquarters in Australia;
  • a requirement to maintain production facilities in specified regional areas without loss of employment for a specific period;
  • a requirement that there should have been an open opportunity for Australian investors to acquire a parcel of agricultural land before its purchase by a foreign investor; and

  • conditions to address the risk of land banking and speculation, such as a requirement to commence continuous construction on vacant land within a specified period and not to sell the land until construction is complete.

Finally, it should also be noted that the Treasurer has powers to request information and documents from other parties if relevant to an application (information request).

9.3 Timing

Once a FIRB application has been lodged (and FIRB confirms that the application fee has been paid) there is a statutory time period for the Treasurer to make a decision, and if no decision is made then no further orders can be made (that is, the Treasurer cannot prohibit or unwind a transaction if a decision is not made in time). The general rule is that the Treasurer has 30 calendar days to make a decision and a further 10 calendar days to notify the applicant.

However, there are several ways this timeframe can be extended:

  • if an information request is made (see paragraph 9.2), the clock stops until the request has been satisfied;
  • the Treasurer may also make an interim order (which is publicly available) which has the effect of prohibiting a transaction on a temporary basis (up to 90 calendar days), effectively extending the time for the Treasurer to make a final decision;
  • the Treasurer can unilaterally extend the timeframe by up to 90 calendar days (and this is in addition to the power to make an interim order); and
  • an applicant can request that the timeframe be extended. The usual circumstances in which an applicant will request an extension is where FIRB indicates that it requires further time to assess an application and asks that the applicant consider requesting an extension – this is a common occurrence. In that situation an applicant will usually agree to make an extension request to avoid a public interim order being made or the application being rejected.

Despite the statutory time period there is no certainty that FIRB approval will be given by a particular time given that either FIRB or the applicant may take steps that extend that timeframe.

9.4 FIRB consultation

Before making a recommendation to the Treasurer (or his delegate) on whether to approve an application, FIRB consults broadly with Commonwealth, state and territory government departments and agencies, and in particular with the Australian Competition and Consumer Commission (ACCC), the Australian Taxation Office (ATO) and, where critical infrastructure assets (such as telecommunications, gas, electricity, water and ports) are involved, the Critical Infrastructure Centre which is part of the Commonwealth Attorney-General's Department.

The ATO will undertake a ‘tax risk assessment’ of each FIRB application. Following input from the ATO, FIRB might recommend that the Treasurer (or their delegate) impose ‘tax conditions’ on approvals. While FIRB will consult closely with the ACCC, FIRB is entitled to adopt its own position on competition matters even if the ACCC clears a transaction. The Critical Infrastructure Centre undertakes a national security risk assessment of a proposal where the target is or has critical infrastructure assets, and then provides advice to FIRB.

These regulatory interdependencies can lead to timing and transaction risks. It is therefore important to analyse likely issues early – especially competition and tax issues – and develop an integrated strategy to manage those risks.

9.5 Confidentiality and information sharing

The Government's stated policy is that it respects any ‘commercial-in-confidence’ information it receives from an applicant and ensures that appropriate security is provided. Further, it is government policy not to provide applications to third parties outside of the Government unless it has permission or it is ordered to do so by a court of competent jurisdiction, and the Government has stated it will defend this policy through the judicial system if needed.

However, the Government can share information obtained under the FATA (including the contents of an application for FIRB approval), both within government and also with foreign governments. Information can only be shared with the government of a foreign country where national security risks may exist for Australia or the foreign country, and where it is not contrary to the Australian national interest. The information can only be shared if there is an agreement in place between the Australian government and the relevant foreign government.

9.6 Record keeping requirements

The FATA requires records relating to foreign investment notices and applications to be maintained. Failure to keep such records is an offence under the FATA.

A person must make and keep records of every act, transaction, event or circumstance relating to the matters shown for the length of time specified in the following table.

Action, transaction, event or circumstance

Significant actions, notifiable actions, notifiable national security actions, actions specified in exemption certificates, and reviewable national security actions notified to the Treasurer

Length of time the record must be kept

5 years

after the action is taken by the person

Action, transaction, event or circumstance

Compliance with conditions in a no objection notification and an exemption certificate

Length of time the record must be kept

2 years

after the condition ceases to apply to the person

Action, transaction, event or circumstance

The disposal of an interest in residential land if the acquisition of the interest by the person was a significant action, notifiable action or notifiable national security action, or would have been a significant action, notifiable action or notifiable national security action if the action had not been specified in an exemption certificate, or was a reviewable national security action notified to the Treasurer

Length of time the record must be kept

5 years

after the interest is disposed of by the person

Action, transaction, event or circumstance

Any register notice required to be given to the Registrar of the Register of Foreign Ownership of Australian Assets

Length of time the record must be kept

5 years

after the register notice is given to the Registrar

Foreign Investment in Australia

Managing complex foreign investment approvals for those investing into Australia from overseas, expanding existing Australian business through acquisitions, or running a sale process that will attract foreign interest.

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