DFAT's CPTPP "Myth Busters" document 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 and ISDS 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."
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".
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."
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.
The Australian Council of Trade Unions (ACTU) has unleashed on the revised Trans-Pacific Partnership (TPP) trade agreement (dubbed “TPP11”), which will reportedly allow employers unfettered access to ‘skilled’ migrant workers from member nations. From The Guardian:
The revived Trans-Pacific Partnership trade deal will allow at least six countries to access temporary skills shortage work visas without first testing the Australian market, unions have said.
According to the unions’ peak body, the Australian government has confirmed in consultations that employers will be able to hire workers from Canada, Mexico, Chile, Japan, Malaysia and Vietnam in 435 occupations without first advertising jobs to Australians.
The consultation from the Department of Foreign Affairs and Trade appears to confirm for the first time that the text of the new TPP11, negotiated after Donald Trump withdrew the United States from the agreement, will lower Australian barriers to skilled migrants…
The ACTU president, Ged Kearney, said the deal would mean that migrant workers could be brought in as nurses, engineers, electricians, plumbers, carpenters, bricklayers, tilers, mechanics and chefs.
“Clearly the only allegiance the Turnbull government values is to employers,” she said, accusing it of putting big business ahead of “the rights of workers and the national interest of Australia”.
“There has been no analysis of how this will affect local employment, nor have there been any safeguards proposed to protect these vulnerable workers.
“This agreement would be a disaster for Australia and we call on the Turnbull government to immediately cease negotiations until they have proved that the deal will not come at the cost of massively increased exploitation and unemployment”…
Recommendation 7: The committee recommends that the replacement of local workers by 457 visa workers be specifically prohibited.
Recommendation 8: The committee recommends that the current exemptions on labour market testing for ANZSCO skill levels 1 and 2 be removed.
Recommendation 9: The committee recommends that the Migration Regulations be amended to specify that labour market testing applies to all positions nominated by approved sponsors under labour agreements and Designated Area Migration Agreements.
Immigration should never be included in trade agreements. Immigration is covered in Australia’s ‘Migration Programme’, and there is little sense in negotiating away control of our sovereign borders other nations – and in the process diluting Australian wages and working conditions – for slightly improved market access.
Trade agreements should be for trade and nothing else.
Trump has just done something good. WhiteHouse.gov has announced, via President Trump, that the TPP deal will no longer have the United States as a participant. The TPP was one of Obama’s deeply unpopular 'achievements', in terms of trade deals, and Trump has quickly lived up to his promise to remove the United States from the deal. Will anti-Trump demonstrators who shout about 'democracy' concede that this is what most of us wanted and the thing that the power-elite pre-Trump were determined to withold from us? The MSM (mainstream media) will probably hardly report this or it will report it as disastrous, using econogabble and corporate talking heads for hire to confuse everyone.
For too long, Americans have been forced to accept trade deals that put the interests of insiders and the Washington elite over the hard-working men and women of this country. As a result, blue-collar towns and cities have watched their factories close and good-paying jobs move overseas, while Americans face a mounting trade deficit and a devastated manufacturing base.
With a lifetime of negotiating experience, the President understands how critical it is to put American workers and businesses first when it comes to trade. With tough and fair agreements, international trade can be used to grow our economy, return millions of jobs to America’s shores, and revitalize our nation’s suffering communities.
This strategy starts by withdrawing from the Trans-Pacific Partnership and making certain that any new trade deals are in the interests of American workers. President Trump is committed to renegotiating NAFTA. If our partners refuse a renegotiation that gives American workers a fair deal, then the President will give notice of the United States’ intent to withdraw from NAFTA.
In addition to rejecting and reworking failed trade deals, the United States will crack down on those nations that violate trade agreements and harm American workers in the process. The President will direct the Commerce Secretary to identify all trade violations and to use every tool at the federal government’s disposal to end these abuses.
To carry out his strategy, the President is appointing the toughest and smartest to his trade team, ensuring that Americans have the best negotiators possible. For too long, trade deals have been negotiated by, and for, members of the Washington establishment. President Trump will ensure that on his watch, trade policies will be implemented by and for the people, and will put America first.
By fighting for fair but tough trade deals, we can bring jobs back to America’s shores, increase wages, and support U.S. manufacturing.
North Korea has apparently just tested an H-bomb - a shocking development, even though some doubt it actually was a hydrogen bomb. Already, Washington lawmakers are grabbing the moment to push through reinforcement of America’s presence in the Asia Pacific, already catalyzed by the “pivot to Asia” plan aimed against China. As Europe lines up to strike lucrative deals with Beijing, Washington is growing increasingly worried, even counter-attacking with the Trans-Pacific Partnership agreement. The world is already an uneasy place, with Jihad rampant and now we have potentially deadly armament at the hands of unpredictable Pyongyang. Will the US and China be able to co-operate? Why is the West is so afraid of Beijing? This program dives deep into the world of Asia Pacific political games with the president of the Shanghai Institute of International studies, Dongxiao Chen, on Sophie&co. This interview was first published at https://www.rt.com/shows/sophieco/328252-us-china-sea-war/ on 8 Jan, 2016 09:53
Sophie Shevarnadze:Dongxiao Chen, president of the Shanghai Institute of International studies, it’s great to have you on our show today, welcome.
Dongxiao Chen: Thank you.
SS: So London has given President Xi a royal welcome recently, and that’s after UK criticizing China on a number of issues for years and years. What’s going on? Is UK after some lucrative deals or is it something else right now?
CD: Well, you see that nowadays we are living in an economically globalized world, and I think that the leaders, if they are really concerned of national interests, they should be more concerned about those practical and benefit of their economic interests. This should be always on their high agenda, and I think that to compare with the complementarity of both sides of the economic development and as well as this huge potential of this cooperation, not only on the economic side but on the other side - I think that that’s the main reason driving London more closer to Beijing.
SS: Lucrative deals, right?
CD: Yeah, to some extent.
SS: You know, this cozying up of UK and China towards each other has drawn criticism from Washington. Why is that two sovereign countries can’t have a relationship without irritating America?
CD: I think that some Washington people - I am not quite sure whether the President Obama or those officials publicly would criticize those economic relations between London and Beijing…
SS: But you know they’re annoyed, right? If I know, you should know…
CD: Yeah, of course, but there are some people, in Washington, they could not understand why: London used to be the closest ally and now seems to have shifted away from Washington and more closer to Beijing. I think that they could not adapt themselves to a more multi-polarized world in which China has much more important role, particularly in economic aspect, and that London, if it is to continue to maintain its status of financial center, then they should do something to strengthen its ties with Beijing, if they are going to try to maintain their status of financial center.
SS: You have also said that there’s need to rethink the regional security order in the Asia-Pacific region. That would actually mean challenging the existing American alliance system that is already in place. But would it still mean that it has to include the U.S. in the new order?
CD: Of course. I think that if we’re going to construct, or build up a regional order, sustainable. It should be an inclusive multilateral process, including those bilateral alliances. But how to make this inclusive multilateral process connected or aligned with those bilateral? Big question. This is not a problem on China’s side. This is the challenge for Washington, for the U.S., because they still believe that this regional architecture, this regional security order should be based upon the bilateral alliance excluding China. So, I think that this is the problem: obstacles that the U.S. should overcome.
SS: We’re going to talk about excluding China from this architecture a bit later, but first, I want to talk about America’s pivot to Asia - and I’m talking about America redeploying its military in the Asia-Pacific region. Is it a real threat to China or this move has little substance, actually?
CD: Well, conceptually speaking, it should not be perceived as an existing threat. Because, based upon our reading of so-called “pivoting” or rebalancing, it is multidimensional. Of course, Washington said that it is going to shift 60% of its military force to Asia-Pacific, but that’s only part of it. In addition to that the U.S. tried to reap the benefit of dynamic economic cooperation in Asia-Pacific. Washington tried to grasp this opportunity. So, that’s both the military dimension, as well as the economic dimension. U.S. said it also tries to be much more engaged with East Asia, Asia-Pacific, as a stabilizing force. So, we just have to look and see to what extent - because deeds speak louder than those words.
SS: Let’s, for now, let’s focus on the military aspect; we will get to the economic aspect and all of that. China has staked claims South China sea, and then its neighbors have turned to America to actually dispute these claims. Do you think claiming this territory is worth this diplomatic row?
CD: The tensions rising over the South China Sea are not by China, rather, because of some other countries, some of the Asian countries included. They have occupied these territories that have been long claimed by China, but for a long period of time China has showed its self-restraint, and we hope that we can shift those differences over those territories’ sovereignty, through this joint exploitation. This is our strategy which we have been carrying on for many-many years. We have never changed that. But nowadays it’s the U.S. who used to say that the U.S. has “no position”, “tries to maintain its neutrality”. Now it seems to me that the U.S. has its position and tries to stir up the tension. That makes problems.
SS: But you now see U.S. and its allies staging naval drills in the waters next to China, and you have the Chinese press that calls for the nation’s military to be ready for provocations. Can a real confrontation glare up here?
CD: So far, I think that we have given quite clear message to Washington that the South China Sea is most important area. If we can keep sealine communications safe, there will be for public good for all countries, including China and the U.S.. So, don’t try to stir up these tensions. Let’s manage these differences. If we can maintain the stability - because the so-called “freedom of navigation”, U.S. is very concerned. It’s not a matter here. So I think, why not we - Washington, Beijing - work together?
SS: Okay, but this was a very scholar-like answer that you just gave me. I’m asking, the way things stay now, with America and its allies staging drills in the waters next to China - do you think there’s a real chance of an actual confrontation or its overexaggerated?
CD: Of course. The possibilities always stay there. If we could not manage those differences, it is quite likely that those incidents may escalate or spin out of control, based upon a miscalculation. Both sides understand the differences there, but they try to avoid those confrontation, because it is in their common interest.
SS: Because, I mean, the confrontation between these two powerhouses would be insane to even really consider, right? To even start to consider, it’s crazy, that America and China could actually confront each other.
CD: Of course.
SS: But you have said that peace between China and America will end once their mutual interests exhaust each other. What exactly does that mean?
CD: I mean that for a sustainable workable big country-relationship, the common interest is important but not enough. Both sides should also cultivate the sense of mutual respect. If both sides could cultivate this sense of mutual respect and can build up this shared common understanding of what will the regional order look like, or what it should be, it is more likely for them to, you know, solve these differences, even if they could not see eye-to-eye on this specific issues, but they, at least, understand that these are specific issues, we shall not have these specific differences of interests to hijack overall relationship. So, this is what I mean that even if these common interests are exhausted, at least there’s common understanding of these important norms of interacting with each other.
SS: So, okay, let’s say common interests are exhausted, but other common issues aren’t worked on - then what comes instead of peace?
CD: If we have a static perspective, if there’s no agreement on the vision of order or what order will be in future, it is very likely that both sides would not try to expand the list of their cooperation. They will just focus on their differences.
SS: Okay, so they just end their cooperation but it doesn’t mean they become adversaries.
CD: If both sides do not see each other as adversaries, if they believe that they can be partners for building a new world order, than they can find, they can expand these cooperative areas. For instance, if both sides could not agree with how to counter terrorism, then the terrorism itself will be an issue diving each other rather uniting each other. But if both sides can share their common understanding of how to counter terrorism ,then the terrorism, the so-called “third party issues” bring them together. So, aside of those existing bilateral common interests, there’s a huge number of potential common interests going beyond their bilateral scope, but that depends upon whether both sides -Washington and China can share some basic norms and visions of the future.
SS: I want to know your honest answer, your subjective opinion in this matter, not a scholar’s opinion - right now, if you put your hand on your heart, would you say America and China are partners or adversaries?
CD: Well, you know, China-U.S. relationship is extremely complicated. The single terms like “partner”, “adversary”, “competitor” is not sufficient enough to generalize. So, I would say that yes, it is a “competitive partnership”.
SS: So you’ve also said that when it comes to understanding Great Power relations, America has some blind spots. What do you mean?
CD: When I say that there’s a “blind spot”, I mean the U.S. strategic culture, their unique strategic culture, which, I would’ve called it a kind of “superpower autism”.
SS: Superpower autism?
CD: Egoism. You know, U.S., historically, because of its unique geographical location and also its culture of exceptionalism and in the past decades U.S. has enjoyed its superpower position and even a period of a unipolar moment. So, U.S. sometimes is too self-confident and always tries to reduce its own vulnerability to zero at the expense of other countries’ security. But, as a matter of fact, in real life, it’s impossible for a country to try to reduce its vulnerability to zero, but the U.S. try to pursue such kind of policy, what I call an “absolute security” - that is a kind of a blind spot, because when the U.S., Washington tries to pursue this absolute security, actually, it just puts other countries at a different level of threat, imposed by Washington, because U.S. would always try to enjoy, because of its technology, try to, you know, information superiority, cyber-superiority, military superiority or even try to control some of the outer space. That will impose a lot of challenges and security threats to other countries.
SS: So when President Obama comes out and says that the U.S. will not let China write the rules of the global economy - do you think it’s fair, that China can’t but for some reason America is entitled to it?
CD: Of course, it’s unfair. I think, we, Chinese, believe that we are living in a multipolar world and every country should have its own say in decision making of roles and norms.. It is impossible for a single country to try to set agenda. It’s not China, but of course, it’s not the U.S. We can compete. So, I think that all those countries should have their own voice. But nowadays there’s developing countries which are underrepresented…
SS: You’ve said that the voices of the developing countries aren’t heard enough - I wouldn’t call China a developing country, but I know that China ranks 6th in IMF voting share, as well as China is the second largest economy in the world. Is it fair that your country isn’t given a louder voice?
CD: Of course, we don’t believe that nowadays IMF or World Bank, those Bretton Woods systems need to be reformed, unless, I think, it could be a threat for the new balance of power, of the global economy. So far, this kind of reforms was slow. Partially, some of those reform proposals have been blocked by the U.S. within the Congress. It is unfair.
SS: Is that why China is coming up with the China-led Asia Infrastructure and Investment bank?
CD: It is partially a reason, because we believe that it will help, it will give some pressure on existing multinational institutions, including IMF and the World Bank to accelerate their reform pace and so I think it’s very good…
SS: So, it is about countering the Western influence after all?
CD: There is some competition, but it is also complimentary, because by reforming those reforming those existing multilateral economic institutions, it will also be beneficial in the long term for those developing countries. Because, even those developing countries, they believe that multilateral institutions - IMF or World Bank - they are too bureaucratic. It’s efficiency is so low, and they need to reform. But the Western interest there is to try and to block, to resist the reform. So we believe, we are rationally speaking, we think that if we can make this structure, organisation, much more clear, much more efficient - that will be good for all countries, not only for developing countries. So, at least, I’ve heard a lot of scholars and experts from Great Britain, from the U.S., they think that yes, it’s wrong for these kinds of reform proposals to be blocked in Washington DC or by the Congress.
SS: But what about politicians? Why do you think America reacted so actually about China coming up with the whole Asia Infrastructure Investment Bank, especially urging their partners like GB, France, Australia, Germany, not to join their venture - which they did anyways. Why were they so panicky about western countries joining this new institution?
CD: Washington, including President Obama himself have recognized that it’s a mistake. They totally misunderstand the mission and the function of the AIB. They believe that it is kind of counter-Western institution, it is kind of a conspiracy plan, that China, Beijing tried to set up a new kitchen; but actually, as China said, it’s not going to set up a new kitchen, but we are going to try to add up a new facility, make this old kitchen much more efficient. So that’s the way.
SS: Do you think America should join this venture?
CD: Of course, if they are willing to do that. I think that it is quite open. Chinese always keep Washington posted on process of AIB, including, we always even kept Tokyo informed, we always inform them about the status of what is going on and Washington, you know, they are quite clear about the process, it’s not secret, it’s not a “black box” operation.
SS: So, the U.S. has an extensive system of alliance in Asia Pacific. They’re actually coming up with a Trans-Pacific-Partnership deal right now, and they’re not being secretive about it - for them it's all about excluding China from the process. Should China be doing something more to counter that?
CD: China felt the pressure of the TPP on multi-faceted aspects, because TPP, it’s negotiated in secret, we just do not know what it’s really about, particularly it is has a potential of an active impact on China’s interests. So, we always, you know, we were quite clear to Washington colleagues that they should let this process be much more transparent.
SS: So it’s about transparency, not about being included in the process?
CD: This is one thing - I said, multi-faceted aspects. It should be transparent so that we should know what is going on. Secondly, so far, a lot of these articles, particularly in regard to this state-owned enterprises reform, in regard to this information, digital economy, in regard to labor force standard - they are quite new.
SS: The more interesting question is, will they be able to isolate China? Will this bill somehow manage to isolate China?
CD: I think, it is impossible, because China’s trade volume, it’s market, is extremely important, so without China’s involvement into TPP, I think the influence of the TPP, well, would important, of course, but not that important. So, Washington has already said: “we welcome China, it all depends on China’s decision”. We still try to wait and see, because it all depends on China’s own economic reform, whether we are ready. But at the same time, think, TPP is... sometimes we feel pressure, sometimes we think it will be a kind of leverage to be used pushing forward a reform at home.
SS: Funny you say that, because I was speaking to American Congressman, his name is Brad Sherman, and he’s against TPP, but he actually argues that TPP would be beneficial for China, meaning, you know, all these goods are mostly assembled in China and then they’re sent to the U.S. via TPP members like Vietnam. What do you think, could it actually be beneficial to China?
CD: No, I think if China won’t join TPP, for a long period of time, based upon a lot of surveys, a lot of research, that this impact will obviously be felt on quite a number of industries in China, particularly given this trade transferring from China to other countries, like Vietnam, Mexico. So, the long-term here is quite clear that the impact is obvious. But in short term, I don't know. The short term is not so obvious.
SS: Dongxiao Chen, president of the Shanghai Institute of International studies, thank you very much for this interesting insight into China-U.S. relations. It’s been great talking to you.
The hour long video inside gives excellent analysis of what is wrong with the TPP. Basically it is an attempt to bring about an overarching corporate world government that will invalidate national and state laws wherever they disagree with it. But with this government there are no voters, there are no citizens, there is no recourse. What can you do about this? Contact your local MP and ask they what they intend to do to stop the TPP? Are they going to vote against it? Let us know their response. You can read the full text of the TPP here, thanks to the New Zealand Government: http://www.globalresearch.ca/the-full-text-of-the-trans-pacific-partnership-tpp/
Genetically Modified Food labeling would be outlawed
"Democratic Congressman Peter DeFazio denounced a provision discretely hidden in pending trade legislation that would allow governments or corporations to sue countries or states over laws that mandate the labelling of genetically modified foods.
If approved by Congress, the legislation called Trade Promotion Authority, also known as “fast track,” would not allow Congress to amend or filibuster free trade agreements negotiated by the president and would require and up or down vote within 90 days. (Source: This content was originally published by teleSUR at the following address:
"http://www.telesurtv.net/english/news/US-Lawmaker-Slams-Monsanto-Provision-in-Fast-Track-Bill-for-TPP-20150429-0030.html". If you intend to use it, please cite the source and provide a link to the original article. www.teleSURtv.net/english.)
The TPP and International Corporate Control
"As the devastating conclusions of these and other researchers awaken people globally to the dangers of Roundup and GMO foods, transnational corporations are working feverishly with the Obama administration to fast-track the Trans-Pacific Partnership, a trade agreement that would strip governments of the power to regulate transnational corporate activities. Negotiations have been kept secret from Congress but not from corporate advisors, 600 of whom have been consulted and know the details. According to Barbara Chicherio in Nation of Change:
The Trans Pacific Partnership (TPP) has the potential to become the biggest regional Free Trade Agreement in history. . . .
The chief agricultural negotiator for the US is the former Monsanto lobbyist, Islam Siddique. If ratified the TPP would impose punishing regulations that give multinational corporations unprecedented right to demand taxpayer compensation for policies that corporations deem a barrier to their profits.
. . . They are carefully crafting the TPP to insure that citizens of the involved countries have no control over food safety, what they will be eating, where it is grown, the conditions under which food is grown and the use of herbicides and pesticides.
Food safety is only one of many rights and protections liable to fall to this super-weapon of international corporate control. In an April 2013 interview on The Real News Network, Kevin Zeese called the TPP “NAFTA on steroids” and “a global corporate coup.” He warned:
No matter what issue you care about—whether its wages, jobs, protecting the environment . . . this issue is going to adversely affect it . . . .
If a country takes a step to try to regulate the financial industry or set up a public bank to represent the public interest, it can be sued . . . .
The Trans-Pacific Partnership Would Undermine Internet Freedom
"Remember SOPA - the "copyright" legislation before Congress last year that public outcry stopped cold? Well, the same corporations behind SOPA have pushed to insert its most pernicious provisions into TPP. Says who? The organizations that stopped SOPA like the Electronic Freedom Foundation and the ACLU.
Under this TPP proposal, Internet Service Providers could be required to "police" user activity (i.e. police YOU), take down internet content, and cut people off from internet access for common user-generated content.
Violations could be as simple as the creation of a YouTube video with clips from other videos, even if for personal or educational purposes.
Mandatory fines would be imposed for individuals' non-commercial copies of copyrighted material. So, downloading some music could be treated the same as large-scale, for-profit copyright violations.
Innovation would be stifled as the creation and sharing of user-generated content would face new barriers, and as monopoly copyrights would be extended. The TPP proposes to impose copyright protections for a minimum of 120 years for corporate-created content.
Breaking digital locks for legit purposes, such as using Linux, could subject users to mandatory fines. Blind and deaf people also would be harmed by this overreach, as digital locks can block access to audio-supported content and closed captioning." (Sourc: http://www.exposethetpp.org/TPPImpacts_InternetFreedom.html)"
At the bottom there is a link to a zip file containing all chapters or one can read and save each chapter PDF individually. The lengthy text contains a lot of business newspeak. However, various chapters deal with history’s biggest free trade move yet, pharmaceutical industries, business conduct in third-world and developing countries, agriculture, state-owned enterprises and designated monopolies (interesting terminology), government procurement, competition policies, and e-commerce.
In October, WikiLeaks claimed that they had a leaked copy of the full text and it contained information on trade secrets and top-down control of the Internet that are indeed found in chapter 18.
It is referred to as the “Agreement,” although most of the world’s people have never had any say at all in the decisions foisted on them below.
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 )
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.
Maryland Wilson, President of the Australian Wildlife Protection Council, announced today (June 30, 2015) that Queensland LNP Senator Barry O’Sullivan will have a singular focus when he spearheads an Australian government trade delegation to China to try to seal the deal on kangaroo meat exports. #kangaroo#exploitation. The Trans Pacific Partnership agreements, if they go through, would worsen the already terrible situation of many Australian native animals and could provoke species extinctions.
Calling to friends of wildlife, and drawing attention to the plight of kangaroos as particularly urgent, President Wilson said:
"This is a huge issue now.
We could lose our independence as a nation with global trade agreements
Kangaroos will be global 'asset', not just our native wildlife, protected as they are,
With more than 1.3 billion people in China, with an appetite for kangaroo meat, it's unsustainable. Nobody really knows how many kangaroos in Australia, and numbers have plummeted in NSW. They are hated because they cause "grazing pressure" (they eat grass!) and the government wants every blade for livestock - despite the drought over Queensland."
Donate to the AWPC to help Maryland's entirely volunteer non-profit organisation continue its great service to Australian wildlife. AWPC is a tiny organisation that punches above its weight, made up largely of hands-on activists. Download the AWPC Donation form.
THESE TWO EVENTS occurring on opposite sides of the Pacific should trigger ring alarm bells with the Australian public because the Abbott government is on the brink of signing away our sovereign rights (ISDS clause) amongst other things.
What is the TPP?
Firstly, what is the TPP? The U.S. trade representative’s official description is:
... an ambitious,21st-century Trans-Pacific Partnership (TPP) agreement that will enhance trade and investment among the TPP partner countries, promote innovation, economic growth and development, and support the creation and retention of jobs.
The US aims to revive its geopolitical, strategic and economic influence in the Asian region to counter the ascent of China, in part through constructing a region-wide legal regime that serves the interests of, and is enforceable by, the US and its corporations.
So this proposed TPP “agreement” involves Australia as well as a host of other potential member nations including Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Canada, Japan, Mexico, Vietnam and the United States. South Korea has also indicated it may sign up.
How far off is agreement on the TPP?
The deal is essentially done in terms of agreement between the 12 countries which make up this bloc and could be signed by end of the year. Fast-tracking the TPP has removed a major impediment in the United States. Fast-tracking is summarised by journalist Dave Johnson as follows:
With fast track, Congress agrees to set aside its duties under Article 1 section 8 of the Constitution and vote on TPP within 90 days of it being signed, to severely limit discussion and debate, not to filibuster the agreement in the Senate and not to amend it not matter what problems turn up after the agreement is revealed. Fast track essentially pre-approves the Trans-Pacific Partnership (TPP) agreement (and future trade bills) before the public gets a chance to know what is in it.'
Overnight, Reuters reported that the Senate voted 60 to 38 giving Obama the power to negotiate the TPP and other trade deals and fast track them through Congress. The bill goes next to President Obama for his signature
Australia’s process for approving trade agreements is not so different to the U.S.’s fast-track process.
The Trade Minister presents the text to the Cabinet, which is made up of the Prime Minister and other Cabinet Ministers. The decision to sign the text is made by Cabinet, not the whole Parliament.
The text cannot be changed after it is signed.
Parliament only votes on the implementing legislation, not on the whole text of the agreement. The Trans-Pacific Partnership (TPP), for example, has 29 chapters and only a few of these will require changes to legislation.”
However, many other chapters will restrict the ways in which current and future Australian governments can legislate, but will not require legislation. For example, the inclusion of the right of foreign investors to sue governments over domestic legislation (investor-state dispute settlement or ISDS) does not require a change to Australian legislation. Other changes, like changes to the Pharmaceutical Benefits Scheme, could be done by changing regulation rather than through legislation.
As many journalists and commentators have argued, agreements like the TPP have dubious benefits for the populations of the countries involved.
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
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.
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.
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.
This article was originally published at bloggerme.com.au Since Tony Abbott was elected, Australia has progressed with two trade agreements that place Australia at risk of Investor-State Dispute Systems (ISDS) — one already signed with Korea (which definitely includes ISDS) and another close to agreement with Japan (which may include an ISDS). ISDS creates a parallel legal system that allows foreign investors to sue Australian taxpayers if Australia passes laws that reduce the value of their investments or their profits.
ISDS is so controversial (dangerous) that popular resistance against it is holding up the Transatlantic Trade and Investment Partnership agreement between America and the E.U. Indonesia has just announced that it is terminating over 60 bi-lateral trade agreements due to its concerns about ISDS clauses in those agreements.
In Australia, Greens Senator Peter Whish-Wilson has introduced the Trade and Foreign Investment (Protecting the Public Interest) Act 2014 into the Senate. The Bill aims to protect Australian laws by banning ISDS provisions which enable foreign investors to sue governments (ours or others).
The Department of Foreign Affairs and Trade (DFAT) argues that the latest ISDS agreements are "improved" versions that protect Australia's interests and that new ISDS agreements will replace. Others argue that old ones will still be in place, so the new ones can not offer any improvement.These statements were made at the recent DFAT stakeholder meeting for the TPP held in Melbourne on March 26. See the article TPP a high quality trade agreement - for multinationals, on the Independent Australia site for more information on this meeting and the TPP process in general.
There is an inquiry by the Senate Foreign Affairs, Defence and Trade Committee into the Bill and AFTINET has been asked to supply some points and references for people and organisations who want to make submissions.
Submission to the Senate Foreign Affairs, Defence and Trade Committee into the ISDS Bill close on 11 April 2014. The Reporting Date for the Report of the Inquiry: 16 June 2014, so public hearings will probably be held in May.
Below are 6 points (produced by AFTINET, with references) explaining why the government’s “safeguards “in the Korea FTA won’t work, and the latest information about Indonesia, Germany and France opposing ISDS in trade agreements.
1. ISDS has developed expanded legal rights for investors which are not found in national legal systems
ISDS enables foreign investors to sue governments for compensation in an international tribunal if they can claim that a domestic law or policy “harms” their investment. ISDS has expanded beyond its original intention, which was to pay monetary compensation to foreign investors in the event of the actual expropriation or taking of their property by host governments. There has been an expansion of legal concepts like “indirect expropriation” and “fair and equitable treatment” beyond the scope of their meaning in national legal systems, to enable investors to lodge claims against domestic law or policy on the grounds that it reduces the value of their investment.
(United Nations Committee on Trade and Development, (UNCTAD), 2000, p. 11)
2. Increasing numbers of ISDS cases against health and environmental legislation
There are increasing numbers of cases in which foreign investors are suing governments for hundreds of millions of dollars over health, environment and other public interest legislation. Recent examples include:
the Philip Morris Tobacco Company suing Australia and Uruguay over regulation of tobacco packaging for public health reasons
the Eli Lilly pharmaceutical company suing the Canadian national government over a court decision to refuse a medicine patent
the US Lone Pine mining company suing the Québec provincial government of Canada over environmental regulation of shale gas mining
the Swedish energy company, Vattenfall, suing the German government over its decision to phase out nuclear energy.
(Gaukrodger and Gordon OECD, 2014, p. 7, Public Citizen Table of Cases, 2014).
3. Costs to government and taxpayers
Both the costs of running cases(OECD estimates an average of $8 million per case, with some cases costing up to $30 million) and the compensation awarded to foreign investors, (often hundreds of millions and in some cases billions of dollars) can discourage governments from proceeding with legitimate domestic legislation. The highest compensation award so far is $1.8 billion against the government of Ecuador. This is damaging for any government, but particularly damaging for developing countries, and can have a freezing effect on legitimate domestic legislation.
(Gaukrodger and Gordon, OECD, 2012, p. 19, UNCTAD, 2013a, p. 3)
4. Lack of legal protections found in domestic legal systems
The disputes are heard by international investment tribunals, operating in under different sets of rules, but all of which lack the safeguards of national legal systems in the following ways.
The proceedings are not made public unless both parties agree and even the results of proceedings can remain secret, unlike national legal systems, where proceedings and results are public
The arbitrators can also be practising advocates, and so lack the independence of judges in national legal systems
There is no system of precedents, and no appeal system, so decisions lack consistency
Third-party funding of cases, described by the OECD as “a new industry composed of institutional investors who invest in litigation by providing finance in return for a stake in a legal claim” has encouraged a growing industry of investment law firms which actively solicit business and encourage large claims.
(UNCTAD, 2013b, p. 1, Gaukrodger and Gordon, OECD, 2014, p. 36)
5. Recent “safeguards” in ISDS clauses to protect health, environment and other public interest legislation have not been effective
There are claims that recent changes to the wording of ISDS clauses in trade and investment agreements like the Korea-Australia Free Trade Agreement (KAFTA) are “safeguards” which will prevent foreign investors from suing governments over health, environment or other public interest legislation.
But the first “safeguard” sentence in the KAFTA reads: "except in rare circumstances non-discriminatory regulatory actions by a party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations" (KAFTA chapter 11, annex 2B). Many legal experts have pointed out that the phrase "except in rare circumstances" leaves a very big loophole, which recent cases have used to advantage. The second “safeguard” is a more limited definition of "fair and equitable treatment" for foreign investors (KAFTA chapter 11, clause 11.5.2 and Annex 2A). However tribunals have ignored these limitations and applied the previous higher standard. A third “safeguard” is a reference to the general protections for “human, animal or plant life” in article XX of the WTO General agreement on Tariffs and Trade (KAFTA Article 22.1). This article has only been successful in one out of 35 cases in the WTO which have attempted to use it to safeguard health and environmental legislation.
These same “safeguards” in recent trade agreements like the Central American Free Trade Agreement and the Peru-US Free Trade Agreement have not prevented foreign investors from launching cases against environmental legislation. For example:
the Government of El Salvador has been sued by Pacific Rim Mining Corporation under the Central American Free Trade agreement, over a ban on mining to protect the nation’s limited groundwater resources
the US-based Renco Group is using ISDS in the Peru-US free Trade Agreement to contest a local court decision that it was responsible for pollution from its lead mine. Both cases are ongoing and may take several years.
(see case studies in Public Citizen, 2010, 2013, 2014)
6. Increasing numbers of governments are withdrawing from ISDS
Increasing numbers of governments are reviewing and terminating their involvement in ISDS. These include members of the European Union like France and Germany, Brazil, Argentina and eight other countries in Latin America, India and South Africa. Indonesia has recently announced it will terminate all 67 of bilateral investment treaties.
(Gaukrodger and Gordon, OECD, 2012, p.7, European Parliamentary Research Service, 2014. p.2, Bland and Donnan, 2014)
?David Gaukrodger and Catherine Gordon, (2012), “Investor-state dispute settlement: a scoping paper for the investment policy community”, OECD Working Papers on International Investment, no. 2012/3, OECD Investment Division, Paris, December. www.oecd.org/daf/inv/investment-policy/WP-2012_3.pdf
March in March 1[Note from candobetter.editor] Abbott took government by playing on the fears of Australians, supported by the Murdoch press. Fears that have been built up and sustained through systems of secrecy, lies and deception. This is the emerging pattern of westernised governments and corporations across the globe. And these techniques depend upon violence, fear and coercion. All of which were evident in the Manus Island riots and killing, despite attempts to demonise the victims (Howard pulled a similar trick with Tampa).
The truth is that refugees, particularly those arriving by boat, form a tiny percentage of immigration into Australia, and could not come close to the “legal” immigration figures (see here for Asylum Seeker Myths). Not to mention that we are bound by law to accept them, under our international agreements. The vast majority of immigration is officially encouraged specialist migration, done not out of any grand vision for Australian society, but solely to feed the industrial growth model which is destroying the planet and leading not to higher prosperity for Australians, but significantly lower in terms of: levels of debt; less choices of jobs; less educational opportunities; crowded transport systems; hideous urban living developments and ongoing destruction of the natural environment.
In fact, it is this failing growth model that is mostly causing the refugee problem in the first place. Our dependence on fossil fuels, Australia’s collaboration and support of the U.S in global manipulations to establish regimes that serve the interests of a wealthy elite; the general extraction of the resources of less developed nations; manipulations of markets by multi-nationals which ensure that those nations at the bottom of the global food chain can never climb up, the list goes on. The WTO has never delivered the necessary agreements on agriculture that would eliminate subsidies by the U.S and other wealthy nations so as to allow developing nations to compete fairly. In the WTO’s own words: “developing countries […] say developed countries have failed to implement the agreements in a way that would benefit developing countries’ trade.”
George Monbiot – a respected journalist for The Guardian newspaper - is exactly right when he states: “The real threat to the national interest comes from the rich and powerful".
The manipulation of corporations is well captured in the following video parody of the Coal Industry – coal which is now polluting Gippsland as it has been polluting Chinese cities for years – to the sure detriment of their children’s long-term health. Not to mention 8 million acres of Chinese land so polluted that food cannot be grown on it. It is in such nations that the dark underside of our growth based consumerism is hidden from view, and the less said about it in the corporate controlled media, the better:
The underlying fact is the whole destructive system is based on force. Even the most passive resistance cannot be tolerated and must be removed by force, as Occupiers around the world found out in 2012 (including in Melbourne). This is confirmed by Oxford Professor Avner Offer who says this model is: “a warrant for inflicting pain.”
Offer also says: “Economics tells us that everything anyone says should be motivated by strategic self-interest. And when economists use the word ‘strategic’ they mean cheating” and he concludes: “one of the consequences of this is that economists are not in a strong position to tell society what to do.”
It is this coercive, cheats based system that the Abbott government firmly believes in and supports, and it is because of the faults and failures of this system that we must march in March.
#fnMarch1" id="fnMarch1">1. #txtMarch1">⇑ Candobetter Editor: Some of us are a little cautious about urging readers to jump on a popular bandwagon without citing good cause. We have tried to find out who is organising it and the origins of the March in March. The 'about' page of the associated website is not very informative, but gives a link [which facebook questions, but just put it in your browser, it's okay] to a blog by Sally McManus, http://sallymcmanus.net/Secretary of the Australian Services Union NSW & ACT Branch. The blog makes many valid complaints about Abbott, notably re Workchoices revisit risk, although does not make the point that ALP state and Federal governments have been agents of similar ills. McManus does not acknowledge the tweedledum/dummer systemic political problem in Australia. Basically you are asked to march on faith and you are not told how this will make a difference, except perhaps you are meant to assume that Abbott might be constrained by a show of people marching in the street. Because of the reach of this campaign, we assume that there must be a lot of money behind it, probably because it will garner information (via the website) of value for the financers. GetUp and the SumOfUs are examples of other organisations that do this in the guise of marshalling popular protest. March in March could just be after potential contacts who might be valuable to the union movement or the ALP, but also for various refugee activist and other political groups, commercial groups and the Abbott government itself. Readers should be aware of this when they add their facebook page or give personal information out. Nothing wrong with giving information to a union or to a political party, but they should be upfront in asking. On the March in March there is no way of contacting the organisers for more information, which is also troubling. We have also not been able to find out who Joanne Newers is, the author of the pyramaid shaped note at the bottom of this article.
Will our sovereign rights be signed away with the Trans-Pacific Partnership (the TPP) Agreement? Matthew Mitchell examines the likelihood in this article.Originally posted on the Australian Independent Media Network
Currently our government is negotiating the TPP with America (and other nations) in a secret process. This process and many proposed elements of the agreement have been universally condemned by civil society. In particular the Investor-State Dispute Settlement (ISDS) system, which the Abbott government has indicated it may accept. The ISDS has been protested against by over 30 civil society organisations in Australia (in a letter published by AFTINET) and also by judges, lawyers and academics globally (in an open letter) arguing that it:
“threatens to undermine the justice systems in our various countries”
“the increasing use of this mechanism to skirt domestic court systems and the structural problems inherent in the arbitral regime are corrosive of the rule of law and fairness.”
In fact, if agreed to, the ISDS would effectively sell out our sovereignty over our nation as described in the Huffington Post:
“From leaked drafts, terms of the Trans-Pacific deal have come under fire for proposing to grant corporations the political power to directly challenge government regulations in international court. This sovereignty issue has long been a sticking point for both conservatives and progressive members of Congress, as the right to challenge government rules had been restricted to sovereign nations under World Trade Organization pacts and other deals.”
How is it that a government of a democratic country with a constitution can consign its populations to a system of law that sits above the country’s own constitution and legal system? Effectively signing away the democratic and constitutional protections that people thought they had, and believed could only be changed by referendum?
The answer is: Through treaties. And, as I will argue, this is a fault (or loophole) in our current constitution.
The Productivity Commission’s 2010 Trade Report explains the process of joining treaties. The report indicates that an agreement is signed before being tabled in Parliament with the approval of Cabinet (Chapter 15, p 298):
“The power to enter into treaties is an executive power within Section 61 of the Australian Constitution and accordingly, is the formal responsibility of the Executive rather than the Parliament”.
But even though Cabinet has approved the Prime Minister to sign the treaty, Australia is not formally committed until the implementing legislation is passed as is explained in the report: “However, the power to implement treaties is a legislative power, conferred on the parliament by section 51(xxix) of the Constitution.”
“Once the parties agree on the final text of the TPP Agreement, the Government will make the agreement available publicly and open to scrutiny before the Parliament considers passing it into law.
After Ministers table the final TPP text in the Parliament, the Parliament’s Joint Standing Committee on Treaties will coordinate a public review of the agreement.
The Committee can then invite submissions and evidence at public hearings, to help determine whether it should recommend to Parliament that the TPP be ratified.”
Thus once the required implementing legislation is passed by Parliament, the treaty is ratified and comes into effect. There are two important catches here. These are explained by AFTINET and I will include AFTINET’s explanations below (bold emphasis my own):
“The Trade Minister presents the text to the Cabinet, which is made up of the Prime Minister and other Cabinet Ministers. The decision to sign the text is made by Cabinet, not the whole Parliament.
The text cannot be changed after it is signed.”
“Parliament only votes on the implementing legislation, not on the whole text of the agreement. The Trans-Pacific Partnership (TPP), for example, has 29 chapters and only a few of these will require changes to legislation.”
“However, many other chapters will restrict the ways in which current and future Australian governments can legislate, but will not require legislation. For example, the inclusion of the right of foreign investors to sue governments over domestic legislation (investor-state dispute settlement or ISDS) does not require a change to Australian legislation. Other changes, like changes to the Pharmaceutical Benefits Scheme, could be done by changing regulation rather than through legislation.
In other words, Parliament may never see, or vote on, the Investor-state Dispute Settlement system. And perhaps there are many other nasties hidden in the agreement that Parliament will never see or debate. Just a fraction of the treaty will pass through Parliament, but once that happens all the others aspects come into play as commitments we will have made, including elements that may diminish, restrict or penalise the actions and powers of our own Parliament.
Now, this may not always be a bad thing. Australia has made a commitment to be part of the UN, and has signed UN treaties on human rights and other issues. These also give up elements of our sovereignty, requiring our government to meet certain international standards and obligations. There is of course, an important different in being held to account by a body run by other sovereign and (mostly) democratic nations rather than a tribunal convened, run and filled by corporate lawyers – such as the ISDS would require. But in relation to signing away sovereignty the two are similar. The main difference is that in one case our rights are protected, in the other they are weakened.
So how do we ensure that our sovereign rights are only signed away when it benefits citizens? In relation to this, perhaps keep in mind that constitutions are a mechanism to restrict the powers of governments (so as to protect the rights of the people governed). If we had a perfect constitution and government that completely represented the will of the majority of people, then perhaps no other protections would be needed. But the experience of the world is different, often governments do pass legislation that deprives people of their rights and of justice (and the TPP is perhaps an example of that). So what can be done to ensure that the only treaties that are signed are those that are approved by the people? I suggest that requires a change to our constitution. If governments are going to sign away our sovereignty at least let that depend on the result of a referendum. I would suggest that this would be appropriate following the signing (so that it clear what is agreed and proposed) during what is now the public review conducted by the Joint Standing Committee of Parliament.
Of course, even with the addition of a referendum, the success of this process would depend on the public having full and reliable information on what is being signed, and its implications. This requires a somewhat unbiased and open press, reaffirming the need for public broadcasters such as the Government owned ABC, and perhaps other alternatives also. Given our highly concentrated media ownership, access to unbiased information is an issue Australia needs to address, and perhaps a system of grants to support independent media (based on readership) may be something to be considered as an option here.