2. Timing Considerations: Extension of the 30-days review period up to 90 days at the discretion of FIRB or the Australian government more broadly. Once an application for review has been submitted, FIRB has 30 days to determine whether approval will be granted. FIRB can extend the review timeline for a few reasons, including if additional information is required. As part of the FIRB Reforms, from January 1, 2027, Treasury plans to implement a new performance target of deciding all low- risk transactions within 30 days. Low-risk transactions are expected to include those where (a) the applicant has received FIRB approval in the past 24 months, is not subject to extrajudicial decision, and has no record of non-compliance or character concerns, and (b) where the proposed action is not in a sensitive sector or business, has no national interest sensitivities, and has a straightforward and transparent corporate transaction structure. FIRB can extend the review timeline if it so chooses, and extensions are routine. According to FIRB’s most recent quarterly report, the median time period for FIRB to process investment proposals (other than for residential real estate) is 36 days. From January 1, 2025, FIRB has a target to process 50% of applications within the initial statutory deadline of 30 days. The FIRB Reforms are expected to further reduce processing times for low-risk applications from January 1, 2027 if the new performance target is retained. When considering transaction timing, parties should take a conservative approach in estimating the length of FIRB reviews. This is especially important to consider if filing with FIRB at the end of the calendar year or nearing a federal election, as there will be a standstill period prior to the election of the new federal government.
These categories cover broad swaths of the Australian economy. Under the Security of Critical Infrastructure Act 2018, the following qualify as critical infrastructure sectors: ^ Communications; ^ Data storage and processing; ^ Defense; ^ Energy; ^ Food and grocery; ^ Financial services and markets; ^ Healthcare and medical; ^ Higher education and research;
^ Space technology; ^ Transportation; and ^ Water and sewerage.
It is important to note that the Treasurer retains “call-in powers” (which may be expanded if the FIRB Reforms become law). Certain national security actions or other actions for which FIRB approval was not sought can be “called in” for review by the Treasurer for a period of up to 10 years after the action was taken if the Treasurer thinks that such actions pose national security concerns. It is therefore advisable to consider whether a FIRB application should be made if there is any grey area. Additionally, the Treasurer can re-review actions that previously were approved by FIRB (post-January 1, 2021) to determine whether a national security risk exists if there has been a material change in circumstance, or material misstatement or omission, in the FIRB application.
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FDI and National Security Review
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