One of the very few alleged "checks and balances" in the Overseas Investment Act is the requirement that the persons owning and/or controlling the applicant transnational corporation be "of good character". Note that this only applies to individuals, not to the corporations themselves. CAFCA has been making "not of good character" complaints to the Overseas Investment Office (OIO) and its predecessor, the Overseas Investment Commission (OIC), since the late 1990s. It's a long story. Here's the link to articles about the subject on the Websites of CAFCA and Watchdog.

None Of Our Complaints Upheld - Until Now

On December 8th, 2016, I wrote to the OIO: "In light of the New York Stock Exchange delisting Agria, we request that you investigate whether the people owning and/or controlling Agria are of good character, and whether they should be allowed to continue to own and/or control PGG Wrightson" ( 'Agria Says It Will Fight New York Stock Exchange Delisting', Stuff, 10/11/16, Gerard Hutching).

"This is a quote from a New Zealand Herald article reporting the same thing: 'The Exchange said it had uncovered evidence demonstrating that the company and its management engaged in operations 'contrary to the public interest' and not in keeping with sound public policy pursuant to requirement of Exchange's Listed Company Manual'".

Unlike when making an Official Information Act request to the OIO (or any other Government agency) there is no time limit that the OIO has to meet to answer a "not of good character" complaint. By the end of 2018, two years after we laid our complaint, we'd had no decision from the OIO. But, right before Christmas (when news of this nature is traditionally, and quietly, released) the OIO included this in its cutely titled newsletter The PeriOIOdical (December 2018; "OIO Investigation Into Agria"): "The OIO has investigated the good character of Agria Singapore and former PGG Wrightson Chair Alan Lai in relation to Agria's shareholding in PGG Wrightson. Both Agria and Mr Lai have co-operated with the OIO investigation, following the United States Securities and Exchange Commission's investigation. The OIO, Agria and Mr Lai have reached a settlement agreement which required Agria to sell down below its 50.2% interest in PGG Wrightson (which it has now done in compliance with the agreement) and provided for penalty proceedings to be filed in the High Court".

We eventually did receive a letter from the OIO (29/1/19) which stated, in part: "By November 2016, the OIO had learnt of investigations into Agria by the United States Securities and Exchange Commission (SEC) and the New York Stock Exchange (NYSE). Agria and Mr Lai's representatives have kept us informed about both investigations".

"We acknowledge the interest CAFCA has shown in this matter, including sending us information in December 2016 about both investigations. Receiving information from the wider public, including groups like CAFCA, plays an important role in alerting us to potential breaches of the Overseas Investment Act. In the Agria case, the Overseas Investment Office had begun its investigation before receiving information from CAFCA...".

The letter concluded by offering us a "public version of the (High Court) judgment" once that has been delivered. CAFCA has accepted that offer. We'll chalk up this successful outcome as a first. More please. The whole subject of "good character" is one that needs to be front and centre in the Government's stage 2 review of the Overseas Investment Act, which is being undertaken in 2019.