Free Trade Held Captive

Atop the Department of Foreign Affairs and Trade (DFAT) website the department’s mission statement, “Advancing the interests of Australia and Australians internationally” – a fairly redundant aim, should the Trans Pacific Partnership Agreement (TPPA) be signed by the Australian government. A number of documents relating to the negotiations have been leaked in the previous year, and from these we can discern the direction of the agreement, and to some extent the impact it may have on the general public.

The TPPA is a US-driven initiative set to replace our current free trade agreement signed with the United States in 2005. All eight negotiating nations must sign the TPPA, or forgo their current agreement with the US (all or nothing). Negotiations commenced in secret in 2008, the chapters concerning intellectual property and investment have since been leaked. DFAT refused comment on the leaked documents, and public submissions regarding the TPPA were thoroughly ignored when it comes to transparency. The only information available on DFAT’s website amounts to vague fluff about free-trade. More than 300 transnational corporations are involved in the negotiations, whilst the biggest stakeholder (the public) has been kept in the dark for the last five years.

On June 12th 2012, the TPPA chapter concerning investment was leaked to the public. The copy was analysed by the Public Citizens Global Trade Watch ( and is verified as authentic. A few interesting details can be gleamed from Trade Watch’s analysis. Essentially, the investment chapter will give unprecedented powers to corporations, at the expense of national sovereignty and consumers. The legislative process will be utterly choked by the TPPA and leaving the general public without recourse.

It will allow corporations to sue signatory governments for passing laws that diminish their profits (environmental protection laws, workplace relations, other essential legal protections established by government). The investment chapter details the creation of arbitration tribunals to deal with the myriad of lawsuits this agreement will produce. No limit is specified on payouts, which will come from government treasuries. These tribunals will be comprised of three private attorneys, with no conflict of interest limitations and will presumably be very lucrative for a few hundred international lawyers.

It has been reported that Australian negotiators said no to the inclusion of investor rights to sue, but given the take-it-or-leave-it stance of the United States one can’t help but question how effective their objections will be in shaping the final agreement. The idea that companies should be able to sue governments for protecting their environment, their people and their treasury is utterly contemptible.

In 2012 public interest groups gained access to the TPPA chapter on Intellectual Property (IP). The Electronic Frontier Foundation’s analysis is extremely grim. Essentially, signatory nations will have to alter their existing IP legislation to a model far closer to the United States (SOPA et al).The IP chapter provides media conglomerates with the power to fine users (external to individual nation’s legal systems), remove entire websites and act as copyright police without oversight or limitation.. The provisions included would turn all internet uses into suspected copyright criminals and it appears that content sharing in general will be criminalized by the TPPA.

A public submission made to DFAT by ANU Lecturer Ruth Townsend and Associate Professor Thomas Faunce concluded that “The Pharmaceutical Research and Manufacturers of America (PhRMA) submissions for the TPPA show that PhRMA will be urging the USTR in the TPPA negotiations to seek a variety of provisions that are monopolistic and protectionist in nature. They relate to intellectual property and to a desire to tie up the drug regulatory agencies of other nations in red tape to facilitate the profit-making of US multinationals. Amongst the specific provisions mentioned above as possible PhRMA targets in the TPPA negotiations are linkage evergreening, data exclusivity and reference pricing.”

From what we’ve seen so far, the TPPA has very little to do with trade, trade barriers between negotiating parties are already very low. Stronger copyright and patent protection, along with data exclusivity, is the opposite of free trade. They involve increased government intervention in the market; they restrict competition and lead to higher prices for consumers. The published chapters read as if they’ve been handed directly to the negotiators by wealthy transnational corporations. Public consultation in Australia and abroad has been minimal. The fact that the TPPA isn’t an election issue should send alarm bells ringing, both parties know that the agreement will wreak havoc and for reasons unknown to us are keeping very tight lipped on the subject.

Some of the provisions in the leaked TPPA material include real benefits for Australia, but the strings attached are long and dark. Our officials are entrusted to represent their constituencies’ interests rather than the interests of those with resources to burn – it’s a reasonable request that at minimum the public be consulted and made well aware of the consequences of becoming the 52nd state of the Monsanto-Pfizer-DuPont-Cargill-Koch-Coke-Raytheon-ExxonMobil Empire.

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