Is Labour’s policy in breach of the FTA they signed?


The Party’s new policy to prevent non-residents from buying existing houses seemed inconsistent with the equal treatment Article of the NZ China FTA. That FTA was a proudly claimed achievement of the last Labour PM – Helen Clark.

The FTA’s definition of “investor” refers to a person “who seeks to make, is making, or has made an investment….”. So it clearly looks at prospective investments.

But a technical reading of the equal treatment Article suggests that it may demand equal treatment once an investment has been made, but does not protect intending investors.

Under Article 138 of the NZ FTA (National Treatment)  all investments and activities associated with such investments made by investors of both parties must be treated, “with respect to management, conduct, operation, maintenance, use, enjoyment or disposal”  no less favourably than investments of its own investors. The list does not include “acquisition” or similar words.

So under that provision a Chinese house buyer must be treated the same as a New Zealander after acquiring residential property, but the protection does not extend to prospective buyers. Whew for Labour!

But wait – another Article (the most favoured nation clause) commits New Zealand not to pass law that discriminates against Chinese investors in comparison with other overseas investors (such as Australians).

Article 139 requires that investors of [China] be treated no less favourably than investors of any third country [Australia] “with respect to admission, expansion, management, conduct, operation, maintenance, use, enjoyment and disposal” of investments.

So Chinese would-be  investors do not get direct rights to insist on investor equality but they can’t be treated worse than Australians.

Labour has said Australians would still be allowed to buy residential property under their policy. This would breach Article 139.

The policy may also breach the Malaysia FTA and the ASEAN FTA it seems.

Also at NBR reports:

It is a mark of how bogus the debate has become that Labour’s figures about foreign owners of New Zealand houses almost definitely include former leader Helen Clark and her four  houses.

The current Labour leader and Miss Clark’s successor as MP for Mt Albert, David Shearer, claimed at the weekend there are “more than 11,000 overseas investors [who] own properties here that they don’t live in”.

What Mr Shearer did not say is the figure comes from Inland Revenue’s numbers about “non-resident” taxpayers who pay taxes on houses they  own in New Zealand.

“Non-resident” taxpayers are largely made up of  expatriate New Zealanders and in this context are those who have gone overseas and who have rented out their properties here.

There are no figures on this but it is a highly common practice – although most who go overseas will have only one, or maybe two, properties to rent out and not, as in the case of Miss Clark, who departed to the United Nations in 2009, who owns four.

Half the Labour caucus have investment properties. If they all sold them to aspiring first home buyers, that would probably do more to help the market, than this policy!

Last year’s Productivity Commission report looked at the issue, but only in the context of immigrants buying houses.

In that context, it found the main inflow was – again– not from Asians, as Mr Shearer dog whistled at the weekend, but expatriate New Zealanders.

There is, the commission said, “no evidence of an inflow of foreign-born immigrants to an  area impacting on house prices”.

There is, though, “a strong positive relationship between inflows of returning New Zealanders into an area and local house prices (with a 1% increase in population resulting from an inflow of returning Kiwis associated with a 6%-9% increase in house prices)”.

The commission concluded the main cause for higher house prices in recent years is  shortage of supply, driven by a mix of investment nervousness since the end of 2007, plus poor regulation leading to slow consenting processes for new developments and some evidence of high building  costs because of a lack of competition.

Labour’s bid on housing, in short, is not aimed at what is causing problems in the housing market and will do nothing to solve them. It is aimed rather at the party’s political problems.

Mr Shearer’s weekend launch was a clear, unsubtle and some would say desperate bid to pick up votes from the segment of the population which does not like foreigners, especially foreigners of a different coloured skin, very much.

Labour is, in short, dog whistling for the New Zealand First and Green Party xenophobic vote.

It is classic dog whistle politics. Blame the immigrants and foreigners.

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