Australia: HG makes submissions to the Joint Standing Committee on Treaties on ChAFTA

Agribusiness Alert: 28 July 2015
Last Updated: 5 August 2015
Article by Nicole Radice and Lea Fua

On 27 July 2015, HopgoodGanim Lawyers Partner, and head of the firm's Agribusiness practice, Nicole Radice, and Senior Associate Lea Fua appeared as witnesses before the Joint Standing Committee on Treaties (JSCOT). HopgoodGanim Lawyers was invited to make submissions in respect of the Free Trade Agreement between the Government of Australia and the Government of the People's Republic of China (ChAFTA) from an Agribusiness perspective.

Our submissions to JSCOT are set out below.

Chapter 2 – Trade in Goods

Chapter 2 of ChAFTA requires Australia and China to eliminate and not increase or introduce new customs duty on imports of an originating good from either country.

An exception to this is found in Article 2.14 which allows China a Special Agricultural Safeguard Measure. This measure allows China to apply additional customs duty where certain triggers are met in relation to the import from Australia of:

  • Fresh, chilled, and frozen bovine carcasses and meat; and
  • Sweetened and unsweetened milk and cream in solid forms.

Australia is China's dominant beef supplier with 57% of the import market. Tariffs on beef imports which currently range from 12% to 25% will be eliminated over nine years.

Between 2013 and 2014, Australia exported 161,000 tonnes of beef to China worth $787 million. China can avail itself of the safeguard measure where Australia's exports exceed a set annual safeguard trigger volume. The trigger volume starts at 170,000 tonnes and increases each year. The safeguard measure, if it is triggered, allows China to apply additional customs duty on the beef and dairy products.

Given the growth in Australian beef exports to China, the risk here is that the trigger is reached and China is able to apply additional customs duty. While there is a review process to consider removal of the safeguard, the process for this is not clearly set out in ChAFTA.

The availability of the safeguard measure to China is concerning and a clear process for the removal of the safeguard should be articulated.

Foreign investment in Agriculture

Investment in Australian Agriculture is not dealt with directly in ChAFTA but is set out in the Foreign Investment Policy of the Foreign Investment Review Board (FIRB) and will potentially be set out in proposed amendments to Australia's Foreign Acquisition and Takeovers Act.

Australia's need for foreign investment in Agriculture is no more clearly demonstrated than in the Agricultural Competitiveness White Paper which was recently released by the Federal Government. The white paper sets out the Government's policy approach to Agriculture, which includes a $4 billion commitment to the policy.

Under Australia's Foreign Investment Policy, foreign persons must seek prior approval for a proposed acquisition of an interest in rural land where the cumulative value of rural land that the foreign person and any associates already holds exceeds, or immediately following the proposed acquisition is likely to exceed, $15 million.

The Investment Policy also provides that the cumulative $15 million threshold will apply to all privately-owned investors except those from the United States, New Zealand, Chile, Singapore and Thailand. Private investors from these countries are subject to the following higher investments thresholds in Agriculture:

  • for Singaporean and Thai investors acquiring a substantial interest in a primary production business valued above $50 million; and
  • for United States, New Zealand and Chilean investors acquiring a substantial interest in a primary production business valued above $1.094 billion.

Investments in agriculture by foreign state-owned enterprises will continue to require mandatory pre-approval by FIRB regardless of the country of origin.

The Investment Policy also states that the Federal Government intends to introduce legislation which will require that, from 1 July 2015, foreign persons and foreign government investors holding interests in agricultural land must register those interests with the Australian Taxation Office (regardless of value of that land).

In respect of Chinese investments in Australian rural land, it is not clear whether the ChAFTA will result in an increase in the current threshold of $15 million for private investors to a level which aligns with private investors from other countries with which Australia has entered into free trade agreements.

Clearly, the Government intends to monitor more closely the acquisition of interests in Australian rural land by foreign persons and will ensure that the rural land register that is being proposed is an open and transparent method to do so.

However, the threshold for the acquisition of an interest in rural land by Chinese private investors should align with the current threshold levels which are available to private investors from the United States, New Zealand and Chile. Given the significant trading relationship between Australia and China and the proposed rural land register, a higher threshold for acquisitions of rural land by Chinese private investors is justified.

The Federal Government is proposing an overhaul of Australia's foreign investment laws. Under this overhaul it is currently being proposed that application fees will be introduced. Currently, applications to FIRB do not attract any application fees.

For investments in Agriculture, the following application fees are being proposed:

  • For rural land valued at $1 million or less – an application fee of $5,000 will apply
  • For rural land valued at greater than $1 million – an application fee of $10,000 incremental per $1 million in rural land value which will be capped at $100,000
  • Investments in Agribusinesses – an application fee of $25,000 or $100,000 where the proposed investment is greater than $1 billion.

For those private investors acquiring an interest in Agribusinesses which have substantial landholdings, it would be concerning if the proposed new application fees would result in those foreign investors having to pay not only an application fee for the acquisition of interests in rural land, but also the acquisition of interest in an Agribusiness.

Further clarity is required in relation to the FIRB application fees which are proposed to apply to investments in rural land and Agribusinesses.

Chapter 9 - Investments

National Treatment

Article 9.3 of ChAFTA deals with the reciprocal national treatment by each country of the investments of investors of the other country.

Specifically:

  • Australia shall accord to investors of China treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, management, conduct, operation and sale or other disposition of investments in its territory; and
  • China shall accord to investors of Australia treatment no less favourable than that it accords, in like circumstances, to its investors with respect to the expansion, management, conduct, operation and sale or other disposition of investments in its territory.

The key difference in the requirement for each of the countries to apply reciprocal national treatment is that:

  • Australia is required to apply to an investor from China treatment no less favourable than it accords to Australian investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory; while
  • China is only required to apply equal national treatment to "the expansion, management, conduct, operation and sale or other disposition of investments in its territory";
  • The critical difference here is that there is no requirement on China to apply equal national treatment to investments by investors of Australia which is the "establishment and acquisition" of investments in China.

The difference (as the terminology suggests) here is that Australian investments in China which covers the "establishment and acquisition" of Australian investments in China may not receive equal national treatment by the Chinese government under the ChAFTA.

Future work program

The Investment Chapter is yet to be finalised and is on-going. In this respect, Chapter 9 sets out a future work program that a Committee on Investment is to look into. This committee is to be established.

Article 9.9 of ChAFTA requires the parties to undertake a review of the investment legal framework, as set out in ChAFTA, no later than 3 years after the date of entry into force of ChAFTA.

Australia and China are required to commence negotiations on a comprehensive Investment Chapter which will reflect the outcome of the review to be undertaken.

The future work program will include further articles to be added which will deal with:

  • Minimum standard of treatment;
  • Expropriation;
  • Transfers;
  • Performance requirements;
  • Senior management and board of directors;
  • Investment-specific state to state dispute settlement; and
  • The application of investment protections and ISDS to services supplied through commercial presence.

This presents an opportunity for community consultation for the further articles to be added.

Australia and China entered into the Australia-China Bilateral Investments Treaty in 1988 which affords certain protections to investments made by Australian and Chinese investors in each other's territory such as protection from unlawful expropriation and an obligation on the host state to ensure fair and equitable treatment towards investment.

It is assumed that the future work program is intended to agree on further articles in the Investment Chapter which will replace the Australia-China BIT; however this should be clarified.

Chapter 15 – Investor-State Dispute Settlement

A number of Australia's other bilateral free trade agreements also include Investor-State Dispute Settlement (ISDS) provision, and there have been some concerns raised in relation to the inclusion of ISDS provisions in the ChAFTA.

Put generally, ISDS allows a private investor to take action against a government as a result of policy changes by that government which has an adverse impact on the investor's investments. ISDS provisions are intended to reduce the political risks to foreign investors of government actions. They are additional to a country's regular legal system for settling disputes, and other mechanisms available to business to reduce their foreign risks, such as insurance and specific company-to-government agreements.

The Australian Government has been the subject of only one ISDS arbitration action so far; namely, the action by tobacco company Philip Morris against the Australian government as a result of plain packaging laws introduced by the Gillard Government in 2011. Other countries have also been subject to ISDS arbitration including for example:

  • In Germany in 2011 when a Swedish energy company commenced action against Germany claiming 1.4 billion euro as a result of strict restrictions on a coal-fired power plant. The same company has also commenced another ISDS claim against Germany as a result of Germany's decision to phase out the use of nuclear power;
  • The Canadian province of Quebec has placed a moratorium on fracking which has resulted in the revocation of exploration licence of an American resource company which is now suing the Canadian government for USD$230 million.

The key risks associated with ISDS provisions are as follows:

  • The quantum of claims under ISDS provisions are substantial and have the potential to adversely affect the wider economy if the claim is successful and compensation is paid;
  • ISDS action against a government, or the threat thereof, can affect government policy or, as in one case against the Government of Canada, require a government to change its policies;
  • ISDS cases are presided over by a tribunal of usually three arbitrators and not a court. The arbitrators are not bound by precedent (although in our experience they pay respect to legal precedent), however, this creates uncertainty in how decisions can be arrived at.

It should be noted that ISDS is also available to protect Australian investors who are investing overseas in countries with whom we have a bilateral agreement.

It would be useful for an independent body such as the Productivity Commission to be commissioned to look into the value of ISDS provisions for encouraging foreign investment into Australia and the risks involved.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nicole Radice
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.