With the Trans-Pacific Partnership (TPP) entering the final stages of negotiation, the Australian Senate has released a report slamming the Government’s approach to trade agreements, claiming that it is unnecessarily secretive, ignores the public, and has a poor level of independent analysis before treaties are signed. From The Canberra Times:
All treaties, including complex free-trade agreements, are only presented to the parliament and subject to scrutiny after they are signed by the government…
That parliament is faced with an all-or-nothing choice when considering legislation to bring an agreement into force prevents it from pursuing a key scrutiny and accountability responsibility…
It is no longer satisfactory for parliamentarians and other stakeholders to be kept in the dark during negotiations when Australia’s trading partners, including their industry stakeholders, have access under long-established and sensible arrangements.
Commenting on the report, Greens senator, Peter Whish-Wilson, was scathing of the lack of due process in Australia’s trade agreement negotiations:
The lack of transparency, consultation and analysis suit the agenda of multinational corporations, because none of the public policy changes being driven by these agreements would survive rigorous public scrutiny…
The Senate’s concerns over secrecy follow those of the Productivity Commission, who this week released its Trade and Assistance Review, which called on the texts of Australia’s trade deals to be publicly released for scrutiny before they are signed:
The emerging and growing potential for trade preferences to impose net costs on the community presents a compelling case for the final text of an agreement to be rigorously analysed before signing. Analysis undertaken for the Japan-Australia agreement reveals a wide and concerning gap compared to the Commission’s view of rigorous assessment.
In response to concerns around secrecy and the inclusion of tighter restrictions on patents and copyright, the Department of Foreign Affairs and Trade (DFAT) has released “fact sheet” attempting to dispel “common misconceptions” around the TPP.
In particular, DFAT dismisses concerns that negotiations have been held in secret, claiming it has undertaken widespread community consultation:
[DFAT] has engaged in over 1000 TPP stakeholder briefings and consultations between May 2011 and mid-2015. In addition to consultations with State and Territory Government representatives, a wide range of domestic stakeholders have been consulted, including representatives from peak industry bodies, individual companies, academics, unions, consumer groups, special interest groups and other organisations representing civil society. Many stakeholders have been consulted on several occasions.
Quite frankly, this defence doesn’t pass the laugh test. There is a world of difference between attending a bunch of stakeholder meetings, whereby DFAT bureaucrats feed you selective information and motherhood statements, and having access to the negotiating text and draft agreement.
DFAT also claims that the inclusion of investor-state dispute settlement (ISDS) clause under the TPP won’t undermine Australia’s sovereignty or ability to regulate in the national interest:
ISDS provisions provide an opportunity for investors, including Australian investors, to protect their investments overseas against expropriation and to ensure that they are afforded a certain minimum standard of treatment, and treated in a non-discriminatory manner. ISDS does not protect an investor from a mere loss of profits and does not prevent a Government from changing its policies or regulating in the public interest. Modern ISDS mechanisms incorporate explicit safeguards to re-affirm the right of governments to take decisions in the public interest, including in the areas of health and the environment, and reduce the chances that foreign investors bring frivolous claims.
And yet we have a wide range of experts recommending against the inclusion of ISDS.
Most notable among these is High Court Chief Justice Robert French, who is the most eminent judge in Australia, and someone that would know a thing or two about ISDS. Chief Justice French has warned explicitly on the tensions that can exist between these ISDS mechanisms and the legitimate functions of the legislative, executive and judicial branches of governments, and the implications for the rule of law in Australia.
The Productivity Commission also raised explicit concerns about ISDS in its latest Trade and Assistance Review, noting the significant ongoing costs to Australian taxpayers of funding the preparation and defence of such legal action by foreign companies.
DFAT also conveniently denies that the TPP would extend patent and copyright protections, despite the fact that the leaked drafts of the intellectual property chapter includes such protections:
The Government is negotiating intellectual property provisions in the TPP within the framework of Australia’s existing laws and policies and does not support any proposals that would require changes to Australia’s current intellectual property arrangements, including our copyright and enforcement regimes…
The Government has stated clearly that it will not accept an outcome in the TPP which adversely affects the Pharmaceutical Benefits Scheme or our health system more generally, or an outcome that increases the price of medicines for Australians.
Given strengthened intellectual property rules are a cornerstone of the US’ participation in the TPP, I remain highly skeptical that they won’t be included in the final deal.
Indeed, the Australia-US Free Trade Agreement (AUSFTA) included the extension of patent and copyright terms, which has lessened competition and increasing costs for Australian consumers of pharmaceutical and copyrighted product.
Let’s also not forget that when the AUSFTA was concluded in 2004, DFAT claimed that the agreement would deliver $4 billion of benefits to the Australian economy.
A decade later, the results came in and found AUSFTA had delivered negative trade outcomes, and likely net costs to Australians once the extension of patent and copyright terms are taken into account.
Despite DFAT’s positive spin, Australia is now poised to make the same mistakes all over again with the TPP as it made under the AUSFTA. Only this time on a much larger scale.
