monopolies

DFAT's CPTPP "Myth Busters" document[1] attracted further scrutiny today when OSIA criticised the document's brazen denial---despite a widely publicised history to the contrary---of the secrecy employed throughout the TPP (and subsequently CPTPP) negotiations. This follows hot on the heels of OSIA's criticism of the document's comments on economic modelling[2] and ISDS[3] as biased and misleading.

The DFAT document described as a myth that "The Government negotiated the deal in secret''. This belies a long and well documented history of the process's near complete lack of public transparency. Indeed DFAT themselves have said the exact opposite about TPP negotiations before: in 2013 DFAT Acting First Assistant Secretary Ms Elizabeth Bowes, stated in Senate Estimates "...in fact the process whereby the negotiating texts remain confidential is consistent with standard international treaty negotiating practice so that applies across the board."[4]

The Attorney-General's Department's response to an FOI request during TPP negotiations stated: "At the start of the TPP process it was agreed that ... all participants would maintain the confidentiality of ... the negotiating texts, proposals of each government, accompanying explanatory material, emails related to the substance of the negotiations} ... Australia has signed a letter to this effect".[5]

Such comments directly contradict DFAT's current claim that the negotiations did not take place in secret and only strengthen the common understanding this was a secret deal, the details of which were agreed without input or review from the Australian public.

"DFAT and the government understand how deeply unpopular secret trade deals are, particularly ones containing as many questionable elements as CPTPP, but are no longer willing to admit that this is exactly how they agreed to undertake these proceedings", said OSIA Director Josh Stewart, "The Australian public should not be locked out of the room for negotiations such as these, only permitted to see and contribute to the results after the terms are final."

None of the five bullet points given by DFAT under this "myth" disprove it. Instead they merely assert that versions of the TPP text were released at various points. Whilst true, in each case that did not happen until after the negotiations had concluded.

During negotiations, the only industry consultation in Australia was an infrequent series of very general briefings. Without any access to draft text, such "consultation" is little more than a sham; it does not counteract the secrecy. OSIA has warned of the dangers of secret negotiation previously.[6,7,8]

"We understand the original TPP secrecy was forced upon the other eleven Parties by the USTR," said OSIA Company Secretary Jack Burton, "What we find doubly egregious is that once the US withdrawal from TPP had removed the source of that constraint, DFAT failed to insist upon genuine transparency in negotiating the new CPTPP. Negotiating these sorts of treaties in secret is outright anti-democratic."

References

[1] #10;[2] <a href=" http:="">http://osia.com.au/f/osia_cptpp_pr2a.pdf
[3] http://osia.com.au/f/osia_cptpp_pr2b.pdf
[4] http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Festimate%2Fe5978688-d9d0-4d41-8457-a1e7edec2726%2F0002;query=Id%3A%22committees%2Festimate%2Fe5978688-d9d0-4d41-8457-a1e7edec2726%2F0001%22
[5] https://www.righttoknow.org.au/request/107/response/666/attach/13/Decision%20letter.pdf
[6] http://osia.com.au/f/osia_trans_pacific_partnership_submission_0.pdf
[7] http://osia.com.au/f/osia_sub_201603_jscot.pdf
[8] http://parlinfo.aph.gov.au/parlInfo/download/committees/commjnt/a6fa4bc7-9c2e-4788-9378-e676fc0a3f53/toc_pdf/Joint%20Standing%20Committee%20on%20Treaties_2016_10_07_4491_Official.pdf;fileType=application%2Fpdf

About OSIA

Open Source Industry Australia Ltd (OSIA) represents & promotes the Australian open source software industry by:
Ensuring that the Australian business, government and education sectors derive sustainable financial and competitive advantage through the adoption of open source and open standards;
Helping Australian Governments to achieve world leadership in providing a policy framework supportive of open standards and of the growth and success of the Australian open source industry; and
Ensuring Australia's global standing as the preferred location from which to procure open source services & products.
OSIA's members are organisations in Australia who invest in or build their future on the unique advantages of open source software.

Paternalism: When dominant big business make secret comments to governments – there is a problem. 25-Sep COSBOA has expressed deep concern at the existence of a confidential briefing letter provided to the Federal Cabinet from the Business Council of Australia (BCA), arguing against an effects test in competition regulation.

The fact that this letter is confidential and unavailable to the public and other industry groups is highly concerning and COSBOA calls on the BCA to immediately release this letter for scrutiny and comment from other interest groups.

Paul Nielsen, Chairman of COSBOA said today, “We note, as reported in the AFR (24 Sept 15), that the Chairman of the BCA, Catherine Livingstone has provided a confidential eight page briefing letter on 25 August to the Federal Cabinet that spells out the BCA’s case against an effects test, including an attachment containing their views on unintended consequences.

“Whilst we understand the need for secret inter-governmental briefings from departments such as Defence on security matters, the BCA and its members are public companies and competition policy affects the whole business community – not just the big businesses that make up the BCA,” said Mr Nielsen.

Mr Nielsen further questioned whether the clandestine document was provided at the behest of the Government. “If that is the case, has the Government requested a similar briefing letter from organisations with a different view? So far all anyone has seen from the BCA are assumptions to ‘protect their patch’ and fly in the face of organisations and regulators like the ACCC, who are chartered with protecting and preserving the rights of the whole community, not just big business.

“Given that Competition Policy and the proposed changes to the effects test by the Government’s own Harper Review will affect all businesses in Australia, we are dismayed that the BCA should try and unduly influence Government policy under a sinister cloak of secrecy. What do they have to hide?” asked Mr Nielsen.

Peter Strong, CEO of COSBOA added: “The only comment that we have seen from the confidential briefing from the BCA is that an effects test will ‘put at risk developments such as the iPhone’. The iPhone was developed in a country that has an effects test, the USA. There is an argument that it was because of the effects test that innovators were able to prosper and grow in that country. What other pieces of misinformation are in the BCA’s submission?

“COSBOA, and its members, as well as many regulators, noted economists and the broader community, know the power and influence held by this small number of big businesses is having a hugely negative effect on innovation and productivity in Australia. An effects test will aid the ACCC to make informed assessment of competition and ensure any dominance is good for the economy and not just for a few big businesses,” said Mr Strong.

NOTES

1. The Council of Small Business Australia (COSBOA) was founded in 1979 and was incorporated in 1985.
2. COSBOA is Australia’s peak body exclusively representing the interests of small businesses.
3. For more information on COSBOA visit: http://www.cosboa.org.au/
4. Connect through social media channels:
Facebook: /COSBOA
Twitter: @COSBOA
5. COSBOA is a long-time advocate of small business on issues from taxation and workplace relations, through to competition law and retail tenancy.
6. The goals of COSBOA are to promote and support the development of small businesses in Australia and the council recognises that it is a national imperative for Australia that the needs of small business are on the national policy agenda.