Commercial law noticeboard, August 2021 - Foreign investment reforms: consultation open
Major reforms to Australia’s foreign investment framework came into effect on 1 January 2021. These included the following amendments.
From 1 January 2021, notifiable national security actions trigger compulsory notification based on a nil monetary threshold.
Further, a new “call-in power” enables the Treasurer to review significant actions that are not notifiable and another new category of actions, “reviewable national security actions”, against the new national security test, and to make orders if the Treasurer is satisfied that the action would be, or that the result of the action is, contrary to national security.
The Treasurer has a national security last report power to review an action covered by a no objection notice, exemption certificate, deemed clearance or a prior use of the last resort power if certain false or misleading information was provided, or the business of the original “applicant” has materially changed, or there has been a material change in circumstances.
For significant actions involving entities or businesses, the condition that there be a change in control will not apply if the relevant foreign person already has control immediately prior to when the action is proposed to occur.
A number of changes were also made to statutory exemptions which operate as exemptions from all or parts of the Foreign Investments and Takeovers Act 1975 (Cth).
Stakeholders may make submissions to Treasury until 31 August 2021.
The reforms to the regime are examined in Thomson Reuters' Foreign Investment in Australia by the authors Marcus Clark and Andrew Wong.