On 2 December 2021, the Security Legislation Amendment (Critical Infrastructure) Act 2021 (Cth) received Royal Assent. The Act expands the definition of critical infrastructure assets from electricity, water, ports and gas to include energy, data, finance, healthcare, space, defence and more.
This regulatory regime is entirely bespoke to Australia, is by some distance the most far-reaching of any equivalent legislation around the world and is changing rapidly.
At the same time, private equity sponsor, core-plus and listed investors are looking for opportunities to deploy enormous pools of capital into secure assets with multi-decade earnings horizons and infrastructure-like qualities. Traditional investment opportunities involving steady-yielding assets that have been attractive to infrastructure and superannuation funds are increasingly rare, so those investors are moving up the risk curve to find acceptable returns while private equity funds are deploying secure asset or core-plus type strategies and meeting them in the middle. This middle ground is squarely in the zone of these critical infrastructure assets - sectors that are growing in importance, and which matter profoundly to the lives of consumers.
Successfully executing transactions involving critical Australian infrastructure assets has always required a deep knowledge of traditional M&A, financing and infrastructure concepts, but now demands an understanding of the increasingly complex regulatory environment around data security, national interest and ESG considerations.
G+T is a leading Australian law firm and is expert in all the legal considerations surrounding investing in and operating critical Australian infrastructure assets.
Critical healthcare assets
Australia has an aging population and a need for substantial investment in health care and aged care infrastructure. Funding for healthcare represents the largest expenditure of government funding in this country. Similarly, the adoption of health technology, personalised medicine and in home care is changing the paradigm for the provision of health services. As with energy, this is as much about data and decentralisation, creating significant new regulatory issues and considerations for government and investors.
G+T is advising Virtus Health on its approaches from BGH and CapVest and advised on the recent acquisitions of Agillex Biolabs by Healius, Avance CRO by Riverside, QScan by Morrison & Co and Canberra Imagine Group by Sonic. Gilbert + Tobin worked on the Royal Commission into Aged Care Quality and Safety, as solicitors assisting the Commonwealth. G+T also advised the Department of Health on its response to the COVID-19 pandemic and the Department of Defence on the warehousing, maintenance and distribution of medical supplies for the ADF.
The energy industry is undergoing rapid transformation. Decarbonisation will be the defining mega-trend of the coming decades. The demands from global financial markets, investors, shareholders and community-led groups to transition to lower emissions technology is impacting the entire Australian economy. Equally, the energy security challenges caused by the transition are leading to complex regulatory and technology issues and transactional opportunities. This technological and emissions shift also means that energy is moving from a geographic based industrial era to a dispersed technological era with economics becoming driven more by data and AI.
In the last 18 months, G+T has advised on the 2 largest renewables deals ever in Australia – advising the PowAR Consortium (QIC, Future Fund, AGL) on its take private of Tilt Renewables and Infigen Energy on the off market takeover battle by Iberdrola SA and UAC Energy. G+T advised Harbour Energy on its $14.4 billion bid for Santos. Please see our Energy expertise page for more information.
Banking, insurance, financial market and payment infrastructure are absolutely fundamental to the functioning of the economy, are increasingly dependent on mobile based technology and have a complex and overlapping regulatory regime. In addition to the specific critical asset legislation designed to capture financial infrastructure, current regulatory proposals include the attempt to increase the Treasurer’s powers to classify financial service providers as designated payments systems and set binding directions.
G+T advised on the $39 billion acquisition of Afterpay by Square, Inc, the largest public M&A deal in Australia’s history and the largest ever cross border fintech deal globally. G+T also advised KKR on the acquisition of a 55% interest in Colonial First State and joint venture with CBA and major Australian financial institutions in relation to investigations by ASIC and APRA in relation to allegations of anti-money laundering laws and related class actions and the Australian Stock Exchange on its landmark replacement of the securities clearing and settlement system with a distributed ledger based system.
Agriculture and water assets, as well as utilities and the supply chains that support these services, are essential in every sense. Water assets are evolving in the face of urbanisation and climate change in what is a famously contested regulatory space. Agriculture assets are increasingly being seen as secure assets by large managers of capital but come with substantial ESG and political considerations.
G+T was defence adviser to GrainCorp in connection with ADM’s takeover bid, a highly politicised approach for a major Australian agricultural infrastructure provider that was rejected on national interest grounds. G+T advised Rubicon Water on its IPO (a business that assists governments and irrigation water authorities to modernise antiquated irrigation infrastructure to address the challenges of increasing water scarcity) and Twynam Agricultural Group on the disposal of its agricultural properties, water entitlements and agribusinesses which were the first to receive FIRB approval after the advertising policy changes. G+T advised NSW Ports on its successful defence of proceedings commenced by the ACCC regarding the privatisation of Port Botany and Port Kembla. G+T consultant Peter Waters is part of the Federal Government’s Department of Infrastructure, Transport, Regional Development and Communications Agri-tech Expert Working Group.