AUSTRALIA Law and Practice Contributed by: Alberto Colla, Keith Tan, Hugh McDonald and Dean Zinn, MinterEllison
which, if exceeded, will require FIRB approval. The thresholds vary based on the type of invest - ment, the country of origin of the investor and whether the investor is characterised as an FGI. Sensitive businesses Businesses in certain sensitive sectors such as media, telecommunications, transport, defence, and military-related industries may attract more scrutiny and may require approval regardless of the value of the investment. National interest All foreign investment proposals are examined case-by-case to assess whether they are con - trary to Australia’s national interest. Factors considered can include the impact on national security (see 2.6 National Security Review ), competition, the economy, the community, and the investor’s character. Consultation To inform its assessment of whether a foreign investment proposal is contrary to Australia’s national interest, FIRB consults with a range of government departments and agencies. Conditions The Treasurer may impose conditions on an investment to ensure that Australia’s national interest is appropriately protected. These include conditions to ensure Australian taxation laws are complied with, conditions relating to the storage of and access to customer data, cybersecurity conditions, and governance conditions. “Standstill” It is an offence to complete (close) or otherwise proceed with a proposed transaction before receiving FIRB clearance. The penalties are imprisonment and/or substantial fines. Transac - tion documents may be signed prior to obtain -
ing FIRB clearance, provided there is a condi - tion precedent relating to FIRB clearance and the agreement does not become unconditional before receiving that clearance. Timeframe The timeframe for approval varies significantly depending on a range of factors such as: • the complexity of the proposed transaction; • the sensitivity of the sector; • the character and country of origin of the applicant; • whether the acquisition raises potential antitrust (competition), national interest or national security concerns; and • whether the application straddles a shut- down period for FIRB over late December to mid-January and whether the application straddles a federal election period, during which FIRB typically enters a caretaker mode. Considering these broad variables, approval can take as little as six weeks for straightfor - ward applications and several months for more complex or sensitive ones. No avenue of appeal The Treasurer’s decision on whether to grant FIRB clearance is final; that is, there is no avenue of appeal. 2.4 Antitrust Regulations In Australia, the Competition and Consumer Act 2010 (CCA), which is administered and enforced by the ACCC, regulates the acquisition of shares or assets which have the effect or are likely to have the effect of substantially lessening com - petition (SLC) in any Australian market. The CCA applies to domestic and offshore transactions.
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