AUSTRALIA has a federal election looming some time before the end of the year (it could be as soon as July 2, but others say September/October), which means that we can all look forward to the government going into ‘caretaker’ mode when parliament is dissolved.

During this caretaker period, the Foreign Investment Review Board (FIRB) will not make any decisions on applications relating to significant acquisitions by overseas entities.

From the date of payment of the relevant fee, FIRB has 30 days to make a decision in relation to the application (and a further 10 days to notify the applicant of its decision).

Where the FIRB requires additional time to consider an application, it can also seek an extension from the applicant.  When requested, the extension is usually granted on the basis that the alternative is that FIRB would make an interim order (prohibiting the acquisition for up to 90 days) which is published in the Commonwealth Gazette.

Backlog of applications

FIRB is still dealing with a backlog of applications following the change in the legislation in December last year and, in our experience, has recently been regularly seeking extensions to consider applications.

Given the likelihood of the government going into pre-election ‘caretaker mode’, now is the time to lodge your application for FIRB approval

Given the likelihood of the government going into pre-election ‘caretaker mode’, now is the time to lodge your application for FIRB approval, if there is to be any chance of getting it processed in a timely manner.

If you are looking at undertaking transactions requiring FIRB approval in the next few months, it is suggested that you talk to your advisors about prioritising lodgment of their FIRB application.

Editor’s note: Since this Legally Speaking column was written, Federal Treasurer Scott Morrison has this afternoon confirmed that the Government approval decision over the proposed S.Kidman sale to Chinese interests will not go ahead before the Federal election. Click this link for further details.

* Rodney Bell is a Partner and Specialist Agribusiness Lawyer with McCullough Robertson Lawyers, Brisbane. He can be contacted on 07 3233 8936.