PROPERTY UPDATE: Temporary changes to foreign investment framework

In response to the severe economic implications of the COVID-19 crisis, the Australian Government has announced temporary changes to Australia’s foreign investment framework

The following changes took effect from 10:30pm AEDT, 29 March 2020 (Effective Date):

the monetary screening thresholds for all foreign investments under the Foreign Acquisitions and Takeovers Act 1975 (Cth) (Act) have been reduced to $0;

the Foreign Investment Review Board (FIRB) will be extending its statutory review deadline from 30 days to up to 6 months to allow sufficient time to review and process all foreign investment approval applications; and

the FIRB will prioritise urgent applications for investments that directly protect and support Australian businesses and jobs.

The new measures do not change the meaning of a ‘significant action’ or a ‘notifiable action’ under the Act. However, the measures affect the monetary threshold component of those definitions.

Monetary screening thresholds now $0

Prior to the Effective Date, there were already a range of proposed acquisitions that were subject to $0 thresholds under the existing rules, for example all acquisitions by foreign government investors and residential land proposals.  

Under the changes all proposed foreign acquisitions into Australia subject to the Act will now be considered a ‘notifiable action’, regardless of the value of the investment, and require approval from the Treasurer before the action can be taken. From a property perspective, the blanket $0 threshold will most significantly impact acquisitions of interests in developed commercial land.  Previously these acquisitions had a monetary threshold of $275 million (unless the proposed acquisition was considered to be sensitive,1 in which case the threshold was $60 million, or by a privately owned investor from one of Australia’s free trade agreement partner countries or regions,2 in which case the threshold was $1,192 million), and so only a very small percentage of these transactions in Western Australia required approval.

These changes also extend to investments in Australian agricultural land, which were previously subject to a minimum cumulative threshold of $15 million.

The $0 threshold will only apply to agreements entered into after the changes were announced. That is, the changes will not apply to agreements for the acquisition of Australian assets entered into prior to the Effective Date, including in relation to those acquisitions that have not yet occurred, regardless of whether there are unmet conditions or not.

Extended timeframes

As a result of the reduction to all monetary screening thresholds, the FIRB expects to receive a high volume of applications. New applicants as well as those with applications currently in the screening process, should expect the decision period for your foreign investment application involving significant actions and/or exemption certificates to extend beyond the 30 day period provided under the Act to make a determination. 3

Prioritised applications

An ‘urgent application’ will be determined on a case by case basis.

Priority will be given to urgent applications for investments that directly protect and support Australian businesses and Australian jobs, taking account of any commercial deadlines related to the proposed investment.

If your application has any commercial imperatives or broader economic impacts for Australia or if there are any commercial deadlines related to your proposed investment, evidence supporting these facts should be submitted together with your application.  For those applications currently in the screening process, this evidence should be submitted to your FIRB case officer, along with your FIRB case number, as soon as practicable.

Practical implications

In light of the changes to Australia’s foreign investment framework, parties to real estate transactions should be alive to the following issues:

• all sales of developed commercial real estate (such as office buildings, industrial sites, medical centres and shopping centres) will now require FIRB approval. Developed commercial real estate is commonly sold to foreign investors. Therefore:

1. sellers should consider the possibility that a short settlement may be more difficult to achieve; and
2. foreign buyers who wish to offer competitive purchasing terms (which may be particularly attractive to distressed sellers who require a short settlement or unconditional offer), should consider obtaining an exemption certificate for a program of acquisitions of interest in kinds of land. This will enable the foreign investor to make an unconditional offer to purchase the Australian asset and settle quickly. However, unless your proposed program of acquisitions has any commercial deadlines or commercial imperatives or broader economic impact, a determination on your application may be delayed.

• parties to sale contracts entered into before the Effective Date but have not yet applied for or obtained FIRB approval, will need to consider whether the FIRB approval deadline under the contract remains appropriate. If there is concern that the deadline will not be met, the parties may need to consider amending the deadline date and/or submitting an application for urgent processing of the application; and
• parties who propose to enter into a new sale contract or an existing pro-forma sale contract, will need to consider whether the contract should be made subject to revised FIRB conditions.

We expect that further information will be released in due course on the legislative regime that will underpin the monetary threshold changes. In the meantime, please contact us if you wish to discuss how these changes may impact your proposed transaction or if you require assistance amending or preparing a sale contract to capture these changes.