Foreign direct investment approvals

Our process­es for approv­ing invest­ment from abroad are puz­zling and incon­sis­tent with the way we gov­ern the rest of our econ­o­my. We have well-devel­oped laws and effi­cient insti­tu­tions to review com­mer­cial prac­tice, direc­tors’ respon­si­bil­i­ties, and trans­fer pric­ing and to ensure thatall Aus­tralians share in the eco­nom­ic ben­e­fits of growth. 

Why then do we have the Trea­sur­er stand­ing at the door to our invest­ment mar­ket mak­ing deci­sions on indi­vid­ual com­mer­cial rela­tion­ships and on who may, or may not, have a seat on an Aus­tralian com­pa­ny’s board? 

Should China’s largest resources and invest­ment com­pa­nies have to line up for lunch with the Prime Min­is­ter to ask whether they will be allowed to invest in Aus­tralia (“PM gives busi­ness heads-up off-course”, AFR 11 August)? 

Here’s an anal­o­gy. Could you imag­ine our biggest cus­tomers ask­ing the Prime Min­is­ter whether he will allow them to import from Australia? 

Nev­er. But invest­ment and trade are faces of the one coin; com­ple­ments, coun­ter­parts. Direct invest­ment is the strongest tie to our cus­tomers and sup­pli­ers around the world. Even more than trade, invest­ment makes a mar­ket bond. 

Would it not be bet­ter to base our invest­ment poli­cies, like our trade poli­cies, on long-term rela­tion­ships and evolv­ing com­mer­cial real­i­ties, rather than on arbi­trary, one-off hur­dles for firms at entry? 

Wayne Swan recent­ly gave us six ‘principles’—comprising five eco­nom­ic cri­te­ria and a nod to unex­plained ‘nation­al secu­ri­ty’ concerns—to sup­ple­ment the ‘nation­al inter­est test’ that he wields under the For­eign Takeovers Act. 

It’s dif­fi­cult to know whether to applaud his effort at trans­paren­cy or to ques­tion the absence of pri­or con­sul­ta­tion on whether any of the items on his list deserves to be there. 

The eco­nom­ic cri­te­ria, how­ev­er, are far too broad and uncer­tain in appli­ca­tion to be entrust­ed to a con­fi­den­tial tri­bunal like the FIRB. Those that are rel­e­vant to the con­duct of a busi­ness in Australia—including com­pet­i­tive behav­ior— can appro­pri­ate­ly and effec­tive­ly be applied by exist­ing author­i­ties whose deci­sions are reviewed by the Courts. 

Oth­ers such as ‘inde­pen­dence from for­eign gov­ern­ment’ and ‘adher­ence to busi­ness stan­dards’ are lit­tle more than insin­u­a­tions. Busi­ness stan­dards and norms dif­fer by coun­try, and they are shaped con­stant­ly by society’s chang­ing expec­ta­tions; they do not lend them­selves to one off assess­ments before the fact. 

Regret­tably, too, Mr Swan acknowl­edges there’s a sev­enth cri­te­ri­on that may trump them all, where Chi­na is con­cerned. He admits to a “pre­dis­po­si­tion to more care­ful­ly con­sid­er pro­pos­als by con­sumers to con­trol exist­ing pro­duc­ing firms.” 

Why this extra cau­tion on invest­ment for ver­ti­cal inte­gra­tion? Ver­ti­cal inte­gra­tion is the con­vey­or belt. There seem to be no sim­i­lar con­cerns when Japan­ese con­glom­er­ates (pre­sump­tive­ly ‘inde­pen­dent of a for­eign gov­ern­ment’) invest in min­er­als or ener­gy prop­er­ties. You’ll find no evi­dence of any con­cern if you look at the own­er­ship of coal mines in Queens­land or NSW

Why is Chi­nal­co’s inter­est in Rio, or Sinos­teel’s in Murchi­son, or Antam’s in Her­ald Resources or Chi­na Met­al­lur­gi­cal in Cape Lam­bert Iron Ore any different? 

It makes lit­tle sense, either, to dis­tin­guish between ‘green­fields’ and exist­ing projects when con­sid­er­ing invest­ments by our export cus­tomers. The eco­nom­ic val­ue of their direct invest­ment is the same. If the project risks dif­fer, the mar­ket will reflect that dif­fer­ence in the price. 

This is not to say we should put no con­di­tions on invest­ment from abroad. But no one should have to appeal to a polit­i­cal leader to do busi­ness in Australia. 

Instead, we should rely on exist­ing, review­able reg­u­la­to­ry author­i­ties to safe­guard com­pe­ti­tion and busi­ness stan­dards and on the mar­ket to set the price with­out guid­ance from obscure gov­ern­ment strategists. 

Share­hold­ers and oth­er asset own­ers are today’s losers from uncer­tain­ty in our rules for Chi­na’s invest­ments. Con­sumers, tax­pay­ers and the next gen­er­a­tions of Aus­tralians will be losers, too. Arbi­trary deci­sions on direct invest­ment will have major impli­ca­tions for Australia’s future trade pro­file. Chi­na has oth­er options; we have fixed assets. 

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