transpacific trade agreements

Update: Full Report now attached inside this article."[...]There is an insufficient amount of publicly available information about agreements under negotiation, and independently sourced economic analyses of their likely benefits are not mandatory. In relation to the TPP, this has fuelled media speculation on the content of the agreement when certainty based on fact is required. It is unsatisfactory for complex trade agreements, which are years in the making, to be negotiated in secret and subject to stakeholder and parliamentary scrutiny for a few short months with no realistic capacity for text to be changed, and then for implementation of the legislation to be rushed through parliament unamended. This comes very close to making a mockery of the process and of parliament's involvement." (Alex Gallacher, SA, Australian Labor Party, Senate debates, Thursday, 25 June 2015, Foreign Affairs, Defence and Trade References Committee; Report [1])

I present the report of the Foreign Affairs, Defence and Trade References Committee on the Commonwealth's treaty-making process, together with a Hansard record of proceedings, documents presented to the committee. [...]

I am pleased to table this report of the Foreign Affairs, Defence and Trade References committee into Australia's treaty-making process. The timing of this report could not have been better. Only last week, the China-Australia Free Trade Agreement was signed, tabled in the Australian Parliament and referred to the Joint Standing Committee on Treaties, for inquiry and report within 20 joint-sitting days, consistent with the process that has been in place for two decades. The Trans-Pacific Partnership is also entering its final stages of negotiations, with parliamentarians told recently they could access the draft text, but only after signing a confidentiality agreement.

ChAFTA and the TPP have thrown into sharp relief evidence received by the committee from industry bodies, the union movement, academic experts and other stakeholders that the treaty-making process is in need of reform.

During the committee's hearing the Department of Foreign Affairs and Trade, DFAT, which is responsible for negotiating, consulting and finalising free trade agreements, was a lone voice in supporting the status quo. All of the 95 submissions received by the committee and every witness appearing before it over two days of hearings, with the exception of the department, argued that the current treaty-making process falls short on a number of counts.

First and foremost, all treaties, especially complex free trade agreements, are presented to the parliament and subject to scrutiny only 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.

Second, it is pointless for JSCOT to conduct its inquiries after the agreements are a done deal and signed by the government. This does not provide for an adequate level of oversight and scrutiny. Parliament should play a constructive role during negotiations and not merely rubber stamp agreements negotiated behind closed doors.

Third, the department's process of consultation is not working, contrary to what officers told the committee at a hearing. Meetings and briefings with stakeholders are plentiful but they are not as effective as they could be and fall way short of stakeholder expectations, adding to their frustration.

Finally, there is an insufficient amount of publicly available information about agreements under negotiation, and independently sourced economic analyses of their likely benefits are not mandatory. In relation to the TPP, this has fuelled media speculation on the content of the agreement when certainty based on fact is required. It is unsatisfactory for complex trade agreements, which are years in the making, to be negotiated in secret and subject to stakeholder and parliamentary scrutiny for a few short months with no realistic capacity for text to be changed, and then for implementation of the legislation to be rushed through parliament unamended. This comes very close to making a mockery of the process and of parliament's involvement.

In addressing these problems, this report steers a middle course between doing nothing, which appears to be the entrenched position of the coalition government, and recommending that treaties be subject to parliamentary approval, which is unlikely to garner political support any time soon.

The opposition favours incremental change building on the package of sensible reforms introduced by the government in 1996. This is why the report makes practical recommendations aimed at improving the level of transparency in negotiating treaties and the quality of consultations between DFAT and stakeholders, and making parliament a real player in treaty making.

Specifically, the report's key recommendations are: that the Joint Standing Committee on Treaties engage more in the oversight of trade agreements under negotiation and not wait until the end of the process; that parliamentarians and stakeholders be given access to treaty texts on a confidential basis during negotiations and not a token look at the end, as with the TPP; that trade agreements be subject to an independent cost-benefit analysis prepared up-front at the commencement of negotiations; and that a model agreement be developed as a template for all future agreements that deal with complex issues such as investor-state dispute settlement, intellectual property and copyright.

These are practical measures that improve stakeholder engagement during treaty negotiations and entrench democratic accountability through effective parliamentary scrutiny using the existing committee system These measures also better serve Australia's national interest by providing a more strategic and less reactive approach to treaty making.

The report's recommendations are consistent with the bipartisan approach of successive Australian governments to trade liberalisation, including the pursuit of free trade agreements. They do not question the constitutional parameters of treaty making or undermine the executive's authority to sign treaties or hinder the ability of the Australian government to implement free trade agreements in a timely fashion. The recommendations can be introduced quickly and without the need for legislation.

Put bluntly, the government has nothing to fear in supporting these measures. This report will lead to a better treaty-making process and, ultimately, better treaty outcomes for Australia in the future. Doing nothing is no longer an option. Treaty making in Australia faces a number of challenges which cannot be met by continuing with the existing process unchanged. These challenges include the changing nature of Australia's international obligations and their intrusion into domestic law and regulation; new methods of consultation and negotiation adopted in overseas jurisdictions resulting in less secrecy; and ensuring that DFAT is adequately resourced with the knowledge and skills to negotiate, conclude and review complex free trade agreements.

NOTES

[1] http://parlinfo.aph.gov.au/parlInfo/download/chamber/hansards/99c8aee1-aa1b-48da-8cdc-593fed2e4d62/toc_pdf/Senate_2015_06_25_3556.pdf;fileType=application%2Fpdf

[2] Thanks to OpenAustralia for its tracking capabilities and analysis of parliamentarian voting and other behaviour. For more on Alex Gallacher see http://www.openaustralia.org.au/senator/alex_gallacher/sa

Inside are three videos warning about the dangers of signing the TransPacific Trade agreements that global organisations want to get many countries, including Australia, to sign. The first is a very quick overview. In the second video, at Democracy Now, "Secretive Deal Isn’t about Trade, but Corporate Control", Julian Assange speaks in some detail on the subject. Sophie Shevardnadze's interview on with Katrina vanden Heuvel, editor of the Nation Magazine follows as a partial transcript with a link to the actual interview. We have previously published Kelvin Thomson's Australian opinion on the dangers here, which is in agreement with the other sources.

Find out more, speak up and spread the word:
http://www.StopFastTrack.com; http://www.ExposeTheTPP.org; http://www.sumofus.org/tpp

Julian Assange on the Trans-Pacific Partnership - Exclusive Interview by Democracy Now

As negotiations continue, WikiLeaks has published leaked chapters of the secret Trans-Pacific Partnership — a global trade deal between the United States and 11 other countries. The TPP would cover 40 percent of the global economy, but details have been concealed from the public.

TPP agreement will deal mortal blow to democracy in US - Nation magazine chief

The following is an extract from "TPP agreement will deal mortal blow to democracy in US - Nation magazine chief" from this video of Sophie Shevardnadze interviewing Katrina vanden Heuvel, editor of the Nation Magazine (United States).

SS: I want to talk about another deal that’s grabbing attention now in the U.S. and that’s the Trans-Pacific Partnership. However, the details of this agreement are unknown, Obama insists the TPP is not secret, but in reality, a deal that is supposed to affect millions of Americans is classified, and even members of Congress can’t just go and flip through the pages without minder hanging about. Why?

KVH: I don’t think it’s consistent with American principles, but I’ll tell you: it seems the trade agreements have been, for the last decades, negotiated this way. But, this time, because of a mobilization of labor groups, citizen groups, workers, people inside the Congress, business isn’t being done as usual. People are saying: “Enough! We don’t want this to be done in secrecy; we’ve learned enough from our history to see what these trade agreements have done to communities around the country and workers.” In fact, Sophie, one of the most controversial parts of the trade agreement is the investor dispute settlement provision – which is truly anti-American, allowing corporations to suit governments and countries if they try to institute health and safety measures. It was leaked by WikiLeaks, which is how people know about it. So we need a new way of doing business, we need a new way of doing trade. I’m not…progressives are not against trade, they are against the way banks and investment firms have dictated the terms of trade. In fact, the big fight over TPP is really about corporate power and who’s going to write the rules about the global game, so to speak. I think this is a wake-up moment, and I place it very clearly in this populous moment I described earlier.

SS: But the people who are most outspoken about being against this deal are trade unions and worker’s rights groups and environmentalists – those are the ones, the people who traditionally are on Obama’s side. Now, if the agreement is going to hurt them…

KVH: This is an interesting, very interesting new alignment, but it’s a very interesting new alignment that President Obama is essentially fighting the core elements of his own party. This is not fully new, because President Bill Clinton with NAFTA 20 years or so ago was also at war with his own party. But this coalition is far stronger, Sophie, far stronger, because… President Obama accuses his own coalition of peddling recycled arguments – no. This coalition has learned from history, workers have learned on their own backs, communities have died, jobs have gone, factories closed – but others are now standing up and saying: “enough! We want true enforcement mechanisms of labor and environmental protection; we want to know what’s in the agreement.” How is this truly American to have agreements, conceived in secret with private corporate courts overseeing and arbitrating agreements? No, enough!

SS: Now, you’re also saying that TPP means loss of jobs and sinking middle class, extreme inequality. But those who are in favor say that it would actually benefit the U.S. companies and create new jobs at home. Why are they wrong?

KVH: I think you need to look at history. Those were the same arguments, Sophie, peddled, 15-20 years ago, and we haven’t seen those benefits. Again, not against trade or globalization, but the way the rules have been written have shown that they don’t benefit workers, they don’t increase wages, and they don’t help environmental problems. So, I think, we need to step back – and there are, by the way, good proposals, the Congressional progressive caucus, the group of about 80 Representatives in the House, have put forward an alternative. I think we need to end this particular round, step back and think anew about what a fair trade deal would mean. Finally, President Obama now seems to be…you know, there are new arguments, the new arguments are now about how we need to really counter China in setting the rules of the global economy. This is very tricky, to use this trade agreement for that purpose.

SS: But just really quickly, in a nutshell, can you really undermine China in the region, economically? I mean, is that really possible?

KVH: No. In fact, China is already between the partnership with Russia, the Investment Bank it has set up, bringing in both the UK, I think, and Germany; what you want to do is engage, you don’t want to have a so-called “pivot”, which essentially is countering or jettisoning the relationships. So no, I don’t think so.

SS: Thank you so much for this wonderful interview, we were talking to Katrina vanden Heuvel, editor of the Nation Magazine, talking about what needs to change in U.S. foreign policy and if the 2016 president hopefuls will stand a chance of delivering this change. That’s it for this edition of Sophie&Co, I will see you next time.

Kelvin Thomson's response to a question about how Multilateral Trade Agreements (such as the transpacific partnership agreements) might affect Australia's ability to control immigration numbers and to control the awarding of local jobs to local firms. He describes how this might be problematic and does not think we should sign any treaties containing an "Investor state dispute settlement clause." He explains why. He also discusses the process which sounds as if it has a distinct bias towards corporations and against citizens. What you can do: Contact your MP and ask them what they are doing and what they have done to stop any signing of treaties with these clauses. If they cannot show they have done anything to stop them, and do not undertake to do so, then let us know and we will publish this information and their photo. (Transcript and video inside.)

Transcript of Kelvin Thomson responds on Multilateral treaties

This question was asked after Kelvin's speech about Intergenerational Equity, where he mentioned multilateral trade treaties..
(Headings and emphases by Candobetter.net editor, for clarity.)

QUESTION: I noticed that you mentioned the multilateral trade agreements. I'm just wondering. I haven't had time to get into them myself and I'd really appreciate a speech in Parliament about their impact on our ability to control immigration and also to control the awarding of local jobs to local firms and things. And anything else you can think of. Can you speak on it off the cuff for a minute?

KELVIN THOMSON MP for WILLS: It is a very serious issue. In the past, the trade agreements were directed at tariffs and quotas - getting rid of tariffs and quotas - but they are pretty much gone. So if you enter into a trade agreement with another country now - with Korea or China or whoever - the issue is, what do they want? And the sorts of things that they want are freeing up of anything in the way of restriction between movement of people, freeing up of foreign ownership restrictions, and things of that nature. So, some of these agreements now have jumped into the area - I think - of diminishing our democratic capacity to determine our own future.

"Investor state dispute settlement clause"

And, in particular, there is a thing called the "Investor state dispute settlement clause", which is in a number of trade agreements. It's not in all of them. It is in the Korean one. It's not in the Japanese one. I assume it's in the China one, but they haven't released it yet - which is another matter of concern about these trade agreements. They get signed and we only get to see them some distance down the track.

But the Investor state dispute settlement clause allows corporations to sue governments if they believe that the decisions of governments impact adversely on their bottom line.

Health impacts

And the classic example of this is when the previous government introduced plain packaging on tobacco products that - and I think it's Phillip Morris - got themselves incorporated in Hong Kong expressly to take advantage of an investor state dispute settlement clause that we've had as part of a trade agreement with Hong Kong. And they are now suing Australia on the grounds that the plain packaging legislation disadvantages them. Now, that in itself is problematic from my point of view. I believe that governments need to be able to make democratic decisions - in this case in the health interests of the nation.

Environment impacts

It's equally problematic in relation to environmental issues. For example, there are foreign companies that wish to engage in coal-seam mining in New South Wales and Queensland and the like, and you have the prospect that if governments there knock them back, that they will be sued in relation to the Investor state dispute settlement clause.

Settlement of disputes lack normal legal standards

One feature of these clauses, which again is very unsatisfactory, is that it's not that you go to some international court which rules - you know, where you've got judges of the High Court, for example, sitting there. They are arbitration arrangements and the arbitrators come and go. They can be people who are acting for the company one day and sitting as an arbitrator the next, and then acting for a company on the day after that. So that the normal legal protection and rules concerning precedent and - you know - traditional independence and the like, are not present, in terms of these disputes.

We should not enter agreements with investor-state dispute settlement clauses in them

And my own view is that we should not enter into any trade agreements which have investor state dispute settlement clauses.

QUESTION: But do members of Parliament have any control over the signing of these things? Do they get to see the agreement?

KELVIN THOMSON: What happens, Sheila, is that the Executive has control over the treaty-making process and they enter into treaties. The treaties get layed on the floor of the Parliament and Parliament has a Treaties Committee which I chaired for quite a number of years and I'm now the Deputy Chair of - so I do have some experience with this. The Parliamentary committee takes evidence, takes submissions and so on. We can listen to people and make recommendations.

Abbot Liberal Government has majority on the Treaties Committee

There is a government majority on the Treaties Committee, as on Parliamentary Committees generally, and so you don't want to be sort of too carried away about the capacity of the Committee to do much once the treaty has been signed, but we make recommendations about whether the treaty should proceed to ratification and, from time to time Treaties Committee has made serious recommendations in relation to ratification and talked about provisions in particular treaties they regarded as unsatisfactory, but we don't have the capacity to look at treaties in the same way that United States members of the Congress do, for example. [Indistinct ?It's said that] they are able to scrutinise the text of treaties and know what is being negotiated. They're not supposed to tell people about it.

Double Standard: Corporations given privileged info; Civil Society kept in the dark

But this question about the negotiation of treaties and the process being followed is interesting because - so when the Treaties Committee talks to civil society, not government organisations and so on - they say, 'This is a highly secret process. No-one knows what's going on.' You know, the train goes into a tunnel and comes out the end of the tunnel and you've got this treaty. But when we talk to corporations, or agriculture groups and the like, they say, 'Oh, no, it's a good process. You know, they tell us what's going on and they keep us informed.' So, it's clear that there is a double standard at work. There are some people who are kept informed and know what's being discussed and negotiated, and a lot of people who don't.