Footnotes

Chapter 1 - Introduction

[1]        Journals of the Senate, No. 14, 24 November 2010, p. 423.

[2]        Journals of the Senate, No. 19, 10 February 2011, p. 583.

[3]        Explanatory memorandum, pp. 1-2.

[4]        The Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, pp. 3-5.

[5]        Australian Bureau of Statistics, 'Annual levels of foreign investment by industry, Table 15a', 53520 – International Investment Position, Australia: Supplementary Statistics, 2008, 10 February 2010.

[6]        Kali Sanyal, 'Foreign investment in Australia: recent developments: Background Note', Parliamentary Library, 1 April 2011, p. 7; Foreign Investment Review Board, Annual Report, various years.

[7]        Kali Sanyal, 'Foreign investment in Australia: recent developments: Background Note', Parliamentary Library, 1 April 2011, pp. 6-7; Australian Bureau of Statistics, International investment position, cat. No. 5352.0, op. cit.

[8]        Mr Morris, Deputy Executive Director, Australian Bureau of Agriculture and Resource Economics and Sciences, Committee Hansard, 12 April 2011, pp. 25-26.

[9]        Australian Bureau of Statistics, 'Proportion of businesses with foreign ownership, by employment size, by industry 2008-09', 8167001_200809 Selected Characteristics of Australian Business, 2008-09, 16 September 2010.

[10]      The Australian and New Zealand Standard Industrial Classification (ANZSIC), 2006 (Revision 1.0), http://www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/1292.0Contents12006%20(Revision%201.0)?opendocument&tabname=Summary&prodno=1292.0&issue=2006%20(Revision%201.0)&num=&view= (accessed 4 April 2011).

[11]      Kali Sanyal, 'Foreign investment in Australia: recent developments: Background Note', Parliamentary Library, 1 April 2011, p. 7.

[12]      Senator Nick Xenophon, Second Reading Speech, Senate Hansard, 24 November 2010, p. 2099.

[13]      Steve Lewis, 'Foreign investors make a grab for Australian farming land', Herald Sun, 15 November 2010; Stephen Crittenden, 'Selling The Farm', ABC News, http://www.abc.net.au/news/events/selling-the-farm/part1/ (accessed 21 March 2011); Andrew Marshall, 'Arab investors eye off Aussie farms', Farm Business, 10 February 2011, p. 30.

[14]      Treasury, 'Foreign Investment Policy in Australia—A brief history and recent development', Treasury Economic Roundup, Spring 1999, 1999.

[15]      Tom Switzer, 'Aussie jitters', The Wall Street Journal Asia, 22 May 2009, http://www.ipa.org.au/news/1864/aussie-jitters (accessed 4 April 2011).

[16]      Tom Switzer, 'Public attitudes towards foreign investment: AOIF Paper 2', December 2008, p. 9.

[17]      Tom Switzer , 'Aussie jitters', The Wall Street Journal Asia, 22 May 2009.

[18]      Senate Environment, Communications and the Arts References Committee, The impacts of mining in the Murray Darling Basin, December 2009, p. 2.

[19]      Senate Environment, Communications and the Arts References Committee, The impacts of mining in the Murray Darling Basin, December 2009, pp. 5-6.

[20]      Submission 1, p. 1.

[21]      Submission 2, p. 1.

[22]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009; Senate Environment, Communications and the Arts References Committee, The impacts of mining in the Murray Darling Basin, December 2009; Senate Select Committee on Agricultural and Related Industries, Food Production in Australia, August 2010.

[23]      Senate Select Committee on Agricultural and Related Industries, Food Production in Australia, August 2010, pp. 18-20.

[24]      Senate Select Committee on Agricultural and Related Industries, Committee Hansard, 5 March 2009, p. 8.

[25]      Senate Select Committee on Agricultural and Related Industries, Committee Hansard, 24 March 2009, p. 61.

[26]      Senate Select Committee on Agricultural and Related Industries, Food Production in Australia, August 2010, p. ix.

[27]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009, p. 61.

[28]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009, pp. 61-62.

[29]      Foreign Investment Review Board, Annual Report 2009-10, p. 3.

[30]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009, pp. ix-x.

[31]      The Hon. Wayne Swan MP, Deputy Prime Minister and Treasurer, 'Government Improves Transparency of Foreign Investment Screening Process', Media Release 009, 17 February 2008.

[32]      Mr Di Giorgio, Principal Adviser, Foreign Investment and Trade Policy Division, Treasury, Committee Hansard, 12 April 2011, p. 13.

[33]      The Hon. Wayne Swan, MP, Deputy Prime Minister and Treasurer, 'Government improves transparency of foreign investment screening process', Media Release No. 009, 17 February 2008.

[34]      The Treasury, Submission 10, p. 6.

[35]      The Hon. Bill Shorten, Assistant Treasurer and Senator the Hon. Joe Ludwig, Minister for Agriculture, Fisheries and Forestry, 'Government action to strengthen foreign investment transparency', Joint media release, 23 November 2010.

[36]      Australian Bureau of Statistics, Submission 5, p. 1.

[37]      Rural Industries Research and Development Corporation, Submission 4, p. 1.

Chapter 2 - Main provisions of the bill

[1]        Foreign Investment Policy, June 2010, revised for indexing January 2011, http://www.firb.gov.au/content/_downloads/Australias_Foreign_Investment_Policy_(English).pdf (accessed 23 May 2011).

[2]        The Board comprises four part-time Members and a full-time Executive Member, the Executive Member is the General Manager of Treasury's Foreign Investment and trade Policy Division and is the link between the Board and the Treasury. (Foreign Investment Review Board Annual Report 2009-10, pp. 4-5).

[3]        Treasury, Australia's Foreign Investment Policy, January 2011, p. 2.

[4]        FIRB website, http://www.firb.gov.au/content/publications.asp?NavID=5 (accessed 23 May 2011).

[5]        The Hon. Wayne Swan, Treasurer, 'Government Improves Transparency of Foreign Investment Screening Process', Media Release, 17 February 2008, [p. 1].

[6]        Treasury, Submission 10, p. 6.

[7]        Explanatory memorandum, [p. 1].

[8]        Explanatory memorandum, [p. 3].

[9]        Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, pp. 8-9; Explanatory memorandum, [p. 3].

[10]      Subsection 21B(4), Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, p. 7 and Explanatory memorandum, [p. 3].

[11]      Greater restrictions are placed on foreign acquisition in the banking sector, Australian international airlines, airports, shipping, media and communications (see Treasury, Australia's Foreign Investment Policy, January 2011, p. 3).

[12]      Treasury, Australia's Foreign Investment Policy, January 2011, p. 2.
The foreign investment policy was amended in February 2008 to include increased guidelines to be considered for investment proposals by foreign governments that are over and above those that apply to private sector proposals. (See The Hon. Wayne Swan, Treasurer, 'Government Improves Transparency of Foreign Investment Screening Process', Media Release, 17 February 2008).

[13]      Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, p. 7.

[14]      Explanatory memorandum, [p. 1].

[15]      Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, pp. 3-4; Explanatory memorandum, [p. 2].

[16]      Explanatory memorandum, [p. 1].

[17]      Subsection 12D(3), Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, p. 4.

[18]      Treasury, Submission 10, p. 6.

[19]      Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, p. 9; Explanatory memorandum, [p. 2].

[20]      Item 1, Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, p. 3; Explanatory memorandum, [p. 2].

[21]      Examples of businesses that fall into the primary production category can be found on the Australian Taxation Office's ruling on "Am I carrying on a business of primary production?"

[22]      Submission 10, p. 4.

[23]      Items 1 and 4, Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, pp. 5-6.

Chapter 3 - Issues raised regarding the bill

[1]        Mr Greg Mahony, Submission 6, p. 2; Treasury, Submission 10, p. 2.

[2]        Submission 10, p. 3.

[3]        Submission 10, p. 2.

[4]        The Hon. Bill Shorten, Assistant Treasurer and Senator the Hon. Joe Ludwig, Minister for Agriculture, Fisheries and Forestry, 'Government action to strengthen foreign investment transparency', Joint media release, 23 November 2010.

[5]        Mr Laurie, President, NFF, Committee Hansard, p. 54.

[6]        Committee Hansard, p. 46.

[7]        Submission 10, pp. 8-9; National Farmers Federation, Submission 11, pp. 3-4.

[8]        Submission 11, pp. 3-4.

[9]        Mr Laurie, President, National Farmers Federation, Committee Hansard, 12 April 2011, p. 54.

[10]      Mr Hill, Director of Policy WA Farmers Federation, Committee Hansard, p. 44.

[11]      ABARES, Committee Hansard, p. 30.

[12]      Mr Di Giorgio, Principal Adviser, Foreign Investment and Trade Policy Division, Treasury, Committee Hansard, pp. 2-3.

[13]      Foreign Investment Review Board Annual Report 2009-10, pp. 15-17.

[14]      Treasury, answer to question on notice no. 9, 12 April 2011 (received 24 May 2011), p. 15.

[15]      Mr Bugg, Assistant Statistician, Industry and Environment and Statistics Branch, ABS, Committee Hansard, p. 15.

[16]      ABS, Committee Hansard, p. 17

[17]      ABS, Committee Hansard, p. 17.

[18]      Treasury, Committee Hansard, pp. 7-8.

[19]      Treasury, Submission 10, p. 2.

[20]      Treasury, Submission 10, p. 2.

[21]      Submission 10, p. 8.

[22]      ABS, Committee Hansard, p. 17.

[23]      ABARES, Committee Hansard, p. 25.

[24]      ABARES, Committee Hansard, p. 25.

[25]      ABARES, Committee Hansard, p. 26.

[26]      Submission 10, p. 7.

[27]      The bill was enacted as the Foreign Takeovers Act 1975. This Act was amended in 1989 under the title Foreign Acquisitions and Takeovers Act (FATA).

[28]      The Hon. Francis Stewart, Minister for Tourism and Recreation and Minister Assisting the Treasurer, House of Representatives Hansard, 22 May 1975, p. 2678.

[29]      Mr Di Giorgio, Principal Adviser, Foreign Investment and Trade Policy Division, Treasury, Committee Hansard, p. 3.

[30]      Submission 10, p. 7; Clayton Utz, 'New foreign takeover controls on farms?', 25 November 2010, http://www.claytonutz.com/publications/news/201011/25/new_foreign_takeover_controls_on_farms.page (accessed 2 May 2011), [p. 2].

[31]      Overseas Investment Act 2005, s. 17; Overseas Investment Regulations 2005, 28.

[32]      Ms McClure, Manager, New Zealand Overseas Investment Office, Committee Hansard, pp. 35 and 37.

[33]      New Zealand Overseas Investment Office, answer to question on notice, 12 April 2011 (received 28 April 2011).

[34]      Mr Hill, Senior Advisor, Treasury, Committee Hansard, p. 4.

[35]      Mr Hill, Senior Advisor, Treasury, Committee Hansard, p. 4.

[36]      Submission 10, p. 7.

[37]      Explanatory Memorandum, [p. 2].

[38]      Mr Hill, Director of Policy, WA Farmers Federation, Committee Hansard, p. 41.

[39]      Submission 10, p. 9.

[40]      Treasury, Australia's Foreign Investment Policy, January 2011, p. 5.

[41]      Treasury, Australia's Foreign Investment Policy, January 2011, p. 4.

[42]      Foreign Investment Review Board Annual Report 2009-10, pp. 8-9.

[43]      Ms McClure, Manager, New Zealand Overseas Investment Office, Committee Hansard, p. 35.

[44]      Ms McClure, Manager, New Zealand Overseas Investment Office, Committee Hansard, p. 36.

[45]      Committee Hansard, p. 61.

[46]      Mr Morris, Deputy Executive Director, ABARES, Committee Hansard, p. 30.

[47]      A 1995 OECD review of Foreign Direct Investment in the US does not suggest any restrictions on investment in agricultural land. See http://www.oecd.org/dataoecd/4/54/34383483.pdf (accessed 3 May 2011).

[48]   The Farm Service Agency Foreign Investment Disclosure Handbook includes definitions of who is a foreign person, what is agricultural land and what is a reportable interest. See http://www.fsa.usda.gov/Internet/FSA_File/1-afida_r02_a02.pdf (accessed 3 May 2011).

[49]      Foreign Holdings of U.S Agricultural Land through February 28, 2009, http://www.apfo.usda.gov/Internet/FSA_File/afida_2010.pdf, (accessed 2 May 2011).

[50]      Agricultural Foreign Investment Disclosure Act 1978, sec 3506 and sec 3505.

[51]      Treasury, Australia's Foreign Investment Policy, January 2011, pp. 2–3.
Greater restrictions are placed on foreign acquisition in the banking sector, Australian international airlines, airports, shipping, media and communications

[52]      Ms Sue Wilmott, Submission 1, pp. 1-2; Mr Patrick Bourke, Submission 2, p. 1; Caroona Coal Action Group, Submission 3, p. 1.

[53]      North Johnston and Lake Eacham Landcare, Submission 7, p. 1.

[54]      WA Farmers Federation, Committee Hansard, p. 39.

[55]      WA Farmers Federation, Committee Hansard, p. 41.

[56]      WA Farmers Federation, Committee Hansard, p. 39.

[57]      NFF, Committee Hansard, p. 58.

[58]      Mr Laurie, President, NFF, Committee Hansard, p. 55.

[59]      New Zealand Overseas Investment Office, Committee Hansard, p. 34.

[60]      New Zealand Treasury, Committee Hansard, p. 33.

[61]      New Zealand Overseas Investment Office, Committee Hansard, p. 35.

[62]      Submission 10, p. 7.

[63]      Submission 6, p. 1.

[64]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009, p. 51.

[65]      Treasury, answer to question on notice no. 6, 12 April 2011 (received 24 May 2011), pp. 8-9.

[66]      Committee Hansard, p. 47.

[67]      Mr Norton, President, WA Farmers Federation, Committee Hansard, p. 39.

[68]      Ms Moyes, Analyst, New Zealand Treasury, Committee Hansard, p. 33.

[69]      Mr Patrick Colmer, General Manager, Foreign Investment and Trade Policy Division, Treasury, Senate Economics References Committee, Committee Hansard, 22 June 2009, pp. 11–12.

[70]      Standing Committee on Economics, Trade Practices (Creeping Acquisitions) Amendment Bill 2007, August 2008

[71]      Senate Economics Legislation Committee, Trade Practices Amendment (Material Lessening of Competition—Richmond Amendment) Bill 2009.

[72]      Standing Committee on Economics, Trade Practices (Creeping Acquisitions) Amendment Bill 2007, August 2008, p. 9.

[73]      Senate Economics Legislation Committee, Trade Practices Amendment (Material Lessening of Competition—Richmond Amendment) Bill 2009, p. 26.

[74]      The Hon. Dr Craig Emerson, Second Reading Speech, House of Representatives Hansard, 27 May 2010, p. 2.

[75]      Senate Economics Legislation Committee, Competition and Consumer Amendment Bill 2010, p. 14
https://www.aph.gov.au/Senate/committee/economics_ctte/competition_consumer_10/report/report.pdf (accessed 20 May 2011).

[76]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009, p. 5.

[77]      Committee Hansard, pp. 11, 16-18.

[78]      Treasury, Australia's Foreign Investment Policy, January 2011, p. 2.

[79]      Mr Morris, Deputy Executive Director, ABARES, Committee Hansard, p. 31.

[80]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009, p. x.

[81]      Senate Economics References Committee, Foreign Investment by state-owned entities, September 2009, p. x.

[82]      Mr Mahony, Committee Hansard, p. 46; New Zealand Treasury, Submission 9; Submission 10, p. 10.

[83]      Committee Hansard, p. 46.

[84]      Submission 9.

[85]      New Zealand Treasury, Committee Hansard, p. 34.

[86]      Submission 10, p. 10.

[87]      National treatment is defined by the World Trade Organisation (WTO) as treating foreigners and residents equally.  Typically the obligation is expressed in Australia's FTAs as follows:

"1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments."

[88]      That is, under these agreements, the investor-state dispute settlement provisions only apply to breaches of the agreements in respect of investments already established in Australia.

[89]      Treasury, answer to question on notice no. 7, 12 April 2011 (received 24 May 2011), pp. 10-11.

[90]      Treasury, answer to question on notice no. 1, 12 April 2011 (received 24 May 2011), pp. 1-2.

[91]      Ms Sue Wilmott, Submission 1, p. 1; Mr Patrick Bourke, Submission 2, p. 1; Caroona Coal Action Group, Submission 3, pp. 1-2; NFF, Submission 11, pp. 5-6.

[92]      Senator Nick Xenophon, Second Reading Speech, Senate Hansard, 24 November 2010, p. 2099.

[93]      Senate Select Committee on Agricultural and Related Industries, Food Production in Australia, August 2010, pp. 20-21.

[94]      Submission 11, p. 5.

[95]      Submission 11, p. 5.

[96]      Submission 11, p. 5.

[97]      Submission 11, p. 4.

[98]      Submission 11, p. 6.

[99]      Committee Hansard, p. 46.

[100]    Submission 6, p. 2.

[101]    Mr Di Giorgio, Principal Advisor, Foreign Investment and Trade Policy Division, Treasury, Committee Hansard, p. 10.

[102]    Mr Morris, Deputy Executive Director, ABARES, Committee Hansard, p. 31.

[103]    ABARES, Science and economic insights, Agriculture and Food, Issue 1, 2011, 'Global food security: facts, issues and implications', 18 May 2011, p. 9.

[104]    ABARES, Science and economic insights, Agriculture and Food, Issue 1, 2011, 'Global food security: facts, issues and implications', 18 May 2011, p. 9.

[105]    ABARES, Science and economic insights, Agriculture and Food, Issue 1, 2011, 'Global food security: facts, issues and implications', 18 May 2011, p. 9.

[106]    The Hon. Bill Shorten, Assistant Treasurer and Senator the Hon. Joe Ludwig, Minister for Agriculture, Fisheries and Forestry, 'Government action to strengthen foreign investment transparency', Joint Media Release, 23 November 2010.

Chapter 4 - Implementation and drafting considerations

[1]        Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 1 of 2011, 9 February 2011, p. 8.

[2]        Senate Standing Committee for the Scrutiny of Bills, Second Report of 2011, 2 March 2011, pp. 54-58.

[3]        Submission 10, pp. 10-11.

[4]        Submission 10, p. 9.

[5]        Submission 10, p. 4.

[6]        Submission 10, p. 10.

[7]        Submission 10, p. 11.

[8]        Submission 10, p. 11.

[9]        Submission 10, p. 11.

Dissenting Report by Senator Nick Xenophon and Senator Christine Milne

[1]        Foreign Investment Review Board, Annual Report 2008-2009, Chapter 1,

http://www.firb.gov.au/content/publications/annualreports/2008-2009/Chapter1.asp,

accessed 14 June 2011

[2]        Foreign Investment Review Board, Policy and Supporting Documents,

http://www.firb.gov.au/content/policy.asp?NavID=1, accessed 14 June 2011

[3]        Foreign Acquisitions Amendment (Agricultural Land) Bill 2010, Explanatory memorandum,    p. 2.

[4]        Foreign Investment Review Board, Who Are We, http://firb.gov.au/content/who.asp?NavID=48, accessed 14 June 2011

[5]        Proof Committee Hansard, 12 April 2011, p. 30.

[6]        Proof Committee Hansard, 12 April 2011, p. 13.

[7]        Answers to Questions on Notice, Department of the Treasury, 12 April 2011, p. 14.

[8]        Proof Committee Hansard, 12 April 2011, p. 33.

[9]        Proof Committee Hansard, 12 April 2011, p. 35.

[10]      Reuters, UN Says Food Production May Be Lost By 2050, 17 February 2009, http://www.reuters.com/article/2009/02/17/us-food-idUSTRE51G46W20090217, accessed 14 June 2011

[11]      Stephen Crittenden, 'Selling The Farm', ABC News, http://www.abc.net.au/news/events/selling-the-farm/part1/ (accessed 21 March 2011); Andrew Marshall, 'Arab investors eye off Aussie farms', Farm Business, 10 February 2011, p. 30.

[12]      National Farmers' Federation, Submission 11, p. 4.

[13]      Proof Committee Hansard, 7 June 2010, p. 46.