Open for Litigation: Australia, and the Trans-Pacific Partnership

On the 28th May 2014, a petition signed by 1.8 million people worldwide was delivered to the Australian Parliament to protest against the radical secrecy surrounding the Trans-Pacific Partnership.

The Trans-Pacific Partnership is a sweeping trade agreement, spanning the Pacific Rim, and covering a score of topics. The trade deal has been shrouded in secrecy. Although trade negotiators and industry advisers have had access to the negotiating texts, the agreement has been kept hidden from parliaments, elected representatives, civil society, the media, and the general public. As such, observers have been dependent upon WikiLeaks publishing draft chapters of the Trans-Pacific Partnership — such as the Intellectual Property Chapter, and the Environment Chapter. An early version of the Investment Chapter has also been leaked.

A number of national and international organisations also called for an end to the secrecy surrounding the Trans-Pacific Partnership. The joint petition was organised by Avaaz, the Sum of Us, GetUp and The Sum of Us observed: ‘What little has been leaked about this trade deal is extremely worrying.’ The group was worried about the content of the trade agreement: ‘The Government is orchestrating the biggest corporate power grab in a generation by negotiating the Trans-Pacific Partnership trade deal behind closed doors.’ There has been a particular alarm over the inclusion of an investor-state dispute settlement regime in the trade agreement — which would allow foreign investors to challenge government laws and regulations in international arbitration tribunals.

Accepting the petition, a number of Australian politicians — including representatives from the Australian Labor Party and the Australian Greens — called for transparency in respect of the Pacific Rim deal. The petition was also supported by a number of community organisations and civil society groups — including the Electronic Frontiers Australia, the Public Health Association of Australia, and the fossil fuel divestment group,

Investor-State Dispute Settlement

Senator Peter Whish-Wilson of the Australian Greens discusses his bill to ban investor-state dispute settlement clauses

Senator Peter Whish-Wilson of the Australian Greens discusses his bill to ban investor-state dispute settlement clauses

At the lawns of the Australian Parliament, Senator Peter Whish-Wilson of the Australian Greens expressed concern about the presence of Trojan Horse investor clauses in the Trans-Pacific Partnership:

One area of critical importance is the Abbott Government’s indication they are willing to support ‘Trojan Horse’ provisions commonly called Investor-State Dispute Settlement clauses in current trade negotiations. Even former Prime Minister John Howard did not support Investor-State Dispute Settlement in the last Australia-United States Free Trade Agreement. Investor-State Dispute Settlement provisions are a Trojan Horse that open a can of worms, allowing multinationals to sue the Australian Government in the future if they claim a local, state or domestic law harms their profits.

Senator Whish-Wilson has introduced the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 into the Senate. The purpose of the Bill is to protect Australian laws by banning Investor State Dispute Settlement provisions.

In his second reading speech, Senator Peter Whish-Wilson commented upon the objective of the legislative bill:

Sovereign governments should not be challenged simply for making laws to govern their country or making a decision to protect their environment or the health of their citizens. What happens to laws governing coal seam gas legislation or the ban on genetically manipulated organisms in my home state of Tasmania? Under Investor-State Dispute Settlement, there is great uncertainty. Uncertainty that is unnecessary.

Senator Whish-Wilson commented that there was a need to protect Australian sovereignty and democracy from actions in international arbitration tribunals: ‘The Australian people elect their governments and their parliaments to design and implement legislation. Their sovereignty should be respected.’

The Foreign Affairs, Defence and Trade Legislation committee in the Australian Senate is holding an inquiry on the topic, and has received over a hundred submissions. Senator Whish-Wilson noted that there had been a great international interest in his bill to ban investor-state dispute settlement clauses.

Jobs, Labor Rights, and Industrial Relations

Kelvin Thomson of the Australian Labor Party on trade agreements and jobs

Kelvin Thomson of the Australian Labor Party on trade agreements and jobs

Kelvin Thomson — the member for Wills — spoke of behalf of the Australian Labor Party. He emphasized the need to consider the impact of trade agreements upon jobs and employment in Australia — particularly in manufacturing industries in Australia in Victoria and South Australia. Thomson stressed the need to protect equality in the processes of globalization. He expressed reservations about investor-state dispute settlement clauses being deployed against government initiatives.

Such concerns have been echoed by a number of industrial organisations. In 2014, Andrew Dettmer, National President of the Australian Manufacturing Workers Union commented: ‘Despite promises, there is as yet no agreement that the Trans-Pacific Partnership will contain enforceable commitments on labour rights to ensure that increased competition does not reduce working conditions. This is unacceptable.’ The Union made a submission to the inquiry into investor clauses, observing:

Investor-State Dispute Settlement provisions only serve to shift investment risk that rightly should be held by investors to the public. It is not the case that these investment provisions provide the public with access to the payoffs of this risk. They only enable corporations to seek compensation for costs incurred due to risk. This is effectively socialising the costs of private investment while keeping the benefits private.

The submission concludes that ‘investor-state dispute settlement clauses are neither necessary to secure foreign investment, nor necessary to conclude trade agreements that are in the nation’s interests.’

Copyright Law, IT Pricing and The Digital Economy

Australian Parliament House

Australian Parliament House

The Trans-Pacific Partnership also poses a threat to a free and open internet. Jon Lawrence from the Electronic Frontiers Australia was concerned that the Trans-Pacific Partnership would override domestic initiatives in respect of copyright law reform:

EFA is strongly opposed to the continuing secrecy around the negotiations for the Trans-Pacific Partnership. In an agreement as comprehensive as the Trans-Pacific Partnership, this secrecy provides opportunities for serious policy laundering. Extreme copyright measures, only revealed in leaks of the text, would force ISPs to be copyright cops and see consumers and small businesses facing criminal sanctions for minor breaches of copyright. These are just some example of the provisions that would be unlikely to pass through parliament if presented in isolation.

Jon Lawrence warned that ‘the secrecy around the The Trans-Pacific Partnership negotiations is inherently anti-democratic.’ He observed: ‘With several reforms in the area of copyright currently being considered EFA is especially concerned that the The Trans-Pacific Partnership may threaten the ability of the Australian Parliament to reform Australia’s copyright law to meet the needs of current and future generations.’ In particular, the group was concerned about the impact of the agreement upon the push for a defence of fair use for Australia, and the introduction of IT Pricing reforms. There is also a danger that investor-state dispute settlement clauses will be deployed against any progressive reforms in respect of the digital economy.

Public Health

Dr Margaret Chan of the World Trade Organization on Trade and Health

Dr Margaret Chan of the World Trade Organization on Trade and Health

Michael Moore — the director of the Public Health Association of Australia — was concerned about the impact of the Trans-Pacific Partnership upon public health. He raised concerns about the lobbying of Big Tobacco, Big Food, and Big Alcohol in respect of the international trade agreement. Michael Moore warned of the dangers of investor-state dispute settlement. He observed that investor clauses had been deployed to challenge landmark public health initiatives such as the plain packaging of tobacco products.

Michael Moore cited the recent remarks of Dr Margaret Chan, the Director-General of the World Health Organization at the World Health Assembly.

International trade has many consequences for health, both positive and negative. One particularly disturbing trend is the use of foreign investment agreements to handcuff governments and restrict their policy space. For example, tobacco companies are suing governments for compensation for lost profits following the introduction, for valid health reasons, of innovative cigarette packaging. In my view, something is fundamentally wrong in this world when a corporation can challenge government policies introduced to protect the public from a product that kills.

Accordingly, there is a need to ensure that the Trans-Pacific Partnership does not undermine public health initiatives — in respect of tobacco control; drug pricing; access to essential medicines; food labelling; nutrition; and alcohol regulation.

The Environment, Biodiversity and Climate Change

Charlotte Wood of discusses the Trans-Pacific Partnership and Climate Change

Charlotte Wood of discusses the Trans-Pacific Partnership and Climate Change

There has been much fear over the Trans-Pacific Partnership being deployed to strip away environmental regulations in Australia.

Charlotte Wood of expressed her concerns about the impact of the Trans-Pacific Partnership upon the environment, biodiversity, and climate change:

The Trans-Pacific Partnership will undermine decades of work by progressive governments, citizens and NGOs to protect our climate and environment from exploitation. In particular, efforts to move our economies beyond fossil fuels will face major obstacles, as the Trans-Pacific Partnership grants the fossil fuel industry new rights to ignore legislative wins we secure to limit fossil fuel investment and expansion.

In particular, Wood was concerned that policies designed to address climate change, curb fossil fuel expansion and reduce air pollution could be challenged under investor-state dispute settlement clauses in the Trans-Pacific Partnership. has made a submission to the Australian Senate on the dangers of investor-state dispute settlement to the environment. As Kyla Tienhaara has written, investor clauses have been used to facilitate the expropriation of environmental governance.

Wood concluded: ‘With climate change accelerating at an ever-increasing pace and our communities and ecosystems under attack from coal, oil and gas extraction, the Trans-Pacific Partnership would deliver a massive free-kick to the fossil fuel industry to ramp up its radical expansion agenda.’ She maintained: ‘It is incumbent upon our governments to release and then stop this damaging deal and put people and the planet ahead of profits’.

Dr. Matthew Rimmer is an Associate Professor at the ANU College of Law and an associate director of the Australian Centre for Intellectual Property in Agriculture. He has written extensively on patent law and intellectual property, climate change, access to medicines and traditional knowledge.

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