Recent FIRB reforms: Rock solid or merely prospective?

Authors: Frank Main, Hannah Kim, Jay Leary, Simon Reed

On 1 May 2024, the Australian government unveiled key reforms it intends to roll out as part of its 'Future Made in Australia' agenda, previously described as a "major overhaul" of Australia's foreign investment laws. In this article, we run through the implications of the proposed reforms, particularly with respect to future foreign investment in Australian critical minerals.

The quick read

• Foreign investment in critical minerals will be closely scrutinised.
• The time taken by the Australian Foreign Investment Review Board (FIRB) to assess investments in critical minerals has significantly increased.
• To help reduce the current assessment period, the Treasurer has announced extra resourcing for FIRB.
• In addition, the Government is encouraging potential investors to seek approval early and provide fuller information with their applications.

Overview

On 1 May 2024, Treasurer Jim Chalmers addressed the Lowy Institute on the key reforms under Australia’s Foreign Investment Policy as part of the government’s Future Made in Australia agenda. The key takeaway from the proposed reforms is that there would be increased scrutiny by the Treasurer on investments by foreign entities which the Government considers “high-risk” in order to protect Australia’s national interest, which includes the critical minerals sector, and a streamlining of “low-risk” investments.

The Treasurer has flagged that the purpose of the reforms is to:

1. Dedicate greater resources to reviewing and scrutinising foreign investment proposals in sensitive and “high risk” sectors, such as critical minerals, critical infrastructure, critical technology, and those that involve sensitive data sets and investments near defence sites;
2. In relation to investments involving national security concerns (i.e. an interest in a national security business or national security land), strengthen monitoring and enforcement activity, including by bolstering the Treasurer’s capability to undertake on-site visits and the Treasurer’s call-in power to review investments which may pose a national security concern.
3. Increase scrutiny of tax arrangements by multinational companies, including arrangements that are overly complex.
4. Increase the Government’s reviewing policy and legislative settings and undertake increased analysis into sensitive sectors (such as critical minerals).

It is anticipated that the changes will not be legislated, and that most foreign investors will see an improvement in the speed of processing from 1 July 2024.

Streamlining Australia's foreign investment framework

Under the proposed reforms, the Government will streamline the consultation and assessment of “low-risk” foreign investment proposals, depending on the type of investor, target of their investment and the structure of the transaction. In particular, the Treasurer noted, “Streamlining means investors who we already know, who are making investments that don’t raise any sensitivities, and who have a good compliance record, get decisions faster.”

The Treasurer has hinted that proposed investments considered “low-risk” and an indication of where faster approvals may occur would involve:

• passive institutional investors and investors with a strong track record of compliance;
• investments in non-sensitive sectors (such as manufacturing, professional services, commercial real estate, new housing and mining of non-critical minerals, and investments not near to sensitive Australian Government facilities); and
• transactions where the ownership structure is clear.

In order to achieve an expedited process, the Government has committed to a new target of processing 50% of investment proposals within the initial statutory timeframe of 30 days, from January 2025.

Practical effect of other proposed reforms

The Treasurer has also anticipated other practical changes that investors will experience as a result of the reforms from 1 July 2024, include that:

• Investors will be provided refunds of application fees for foreign investments that do not proceed because the investor was unsuccessful in a competitive bid process.
• Implementing an exemption for passive or low-risk interfunding transactions from mandatory notification requirements and fees under the foreign investment framework.
• Removing duplication in the assessment of competition issues between the foreign investment framework and the merger control system.
• Alongside streamlining assessment, improved communication to investors when they can expect longer timeframes in the assessment of investment proposals, including earlier notification of any high tax risks or national security risks.

What does this mean for future investments in critical minerals in Australia?  

Although the Treasurer has anticipated that most foreign investors are likely to see an improved timeliness on FIRB’s processing of applications from 1 July 2024, it remains to be seen how the reforms will impact investments in the critical minerals sector, as this is one of the sectors identified by the Government as being sensitive and “high-risk”. The Treasurer has maintained that every investment will continue to be considered on a case-by-case basis.

As noted above, the risk-based approach will be informed by the investor (who), the target of their investment (what), and the structure of the transaction (how) – this practically means that transactions involving non-critical minerals may receive decisions faster. Investors should be aware of the Australian Critical Minerals List, which currently consists of 31 minerals (including nickel, which was added in early 2024). Notably, the proposed reforms exclude those minerals on the Strategic Materials List, which currently consists of copper, aluminium, phosphorous, tin and zinc.

In order to expedite the Treasurer’s assessment of proposed investments (irrespective of the nature of the investment), it is encouraged that investors provide complete, up-front disclosure in foreign investment applications. In particular, clear disclosures to FIRB relating to the following will assist the Treasurer’s overall determination on whether the proposed transaction is not contrary to the national interest:

• the investor’s strong record of compliance with the foreign investment framework;
• clear articulation on the proposed investment structure; and
• earlier engagement with the Treasury on the proposed investment.

The Treasury will be publishing further details and public guidance on the Government’s approach to foreign investment and tax integrity over the coming months.

We will continue to monitor any updates, as well as the effects of these proposed reforms and how the reforms may expedite the process for certain investors seeking to obtain the Treasurer’s approval for proposed investments in the critical minerals sector.

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