Melissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | Hansard source

Earlier this week I spoke in this place about a petition received by the cross-party group on the TPP from GetUp! and SumOfUs that had been signed by more than 305,000 Australians who say 'no' to the TPP. The parliamentary group also received a letter addressed to members of parliament from the Australian Fair Trade & Investment Network, or AFTINET, on behalf of 59 community organisations representing two million Australians. I seek leave to table the letter and the list of signatories.

Leave granted.

The concerns expressed in the letter appropriately sum up the major reasons why this parliament should be supporting the call for independent assessments of the text prior to the agreement being ratified. Those calls are that there should be an independent assessment of TPP economic costs and benefits as offered by the Productivity Commission, including costs and risks to government of ISDS and an extension of medicine and copyright monopolies; as well as an independent health, environment and human rights and labour rights assessment for the TPP.

It seems that the outrageously predatory behaviour on the part of tobacco companies in not respecting the laws and courts of sovereign nations and the public outcry over this behaviour has at least led to ISDS cases against tobacco regulation potentially being excluded under the terms of the TPP text. However, the other issue where the trade minister claims to have had a big win in TPP negotiations relates to the issue of market exclusivity for biologics. Under the relevant agreement in the TPP:

There would be market exclusivity for biologics provided through one of two options: at least eight years of data protection or at least five years of data protection and other measures to deliver a comparable outcome in the market.

As Dr Debra Gleeson of the School of Psychology and Public Health at La Trobe University has written about this:

The provisions relating to biologics are problematic and ambiguous. They appear to commit countries to providing either eight years of clinical trial data protection or five years of clinical trial data protection along with other measures to deliver comparable outcomes. While the Australian government has said that the regime for biologics in Australia will not change, the language leaves room for continued pressure by the United States to ensure that TPP countries prevent biosimilars from entering the market for eight years. The definition of biologics is very broad and likely to limit countries’ flexibility in determining the scope of the obligation. A review by the TPP Commission of both the length and scope of protection after 10 years provides a further mechanism for US pressure to expand and extend monopolies on expensive biologics.

So, rather than actually having achieved a protection for the five-year exclusivity period as claimed by the trade minister, it seems that that is not at all what the agreement does. It gives a very broad opening for companies to insist on eight years of data protection or five years of data protection and other measures to deliver a comparable outcome in the market. Undoubtedly this will ultimately impact in the cost of medicines going up.

For me, with the TPP the major issue is the investment chapter and investor state dispute settlement clauses because that is a chapter that magnifies the negative consequences and impacts of the other chapters. I have spoken about ISDS in this place before. I have noted the fact that foreign companies will have the power under the agreement to sue Australia in a private international tribunal for any laws, policies or court decisions that may impact upon their profits. With the exception potentially now of tobacco control, the trade minister has at various times described expressions of concern about ISDS as 'hysterical fear mongering'. But I would have to ask if the trade minister considers the Chief Justice of the High Court of Australia, the Productivity Commission, Nobel Prize winner Professor Joseph Stiglitz, or the UN special rapporteur on trade to be hysterical in warning against the inclusion of ISDS clauses in trade agreements?

And let's remember that these international tribunals hearing ISDS cases are not made up of independent judges but of corporate lawyers who can be acting for a multinational corporation one day and sitting on an arbitration panel the next. They do not apply any precedent and their decisions are not appealable, as Costa Rica has discovered to its detriment. Costa Rica was successfully sued for trying to protect endangered turtles even though there was supposed to be a carve out from environmental regulation.

Peru was sued by US led mining company Renco when a Peruvian court ordered Renco to clean up its lead pollution. This was another example of an environmental carve out that was ignored by the foreign investor and by the tribunal. Remember, if the tribunal ignores the very clear exemptions in the agreement, there is no appeal from the decision of the tribunal and so there is nothing you can do about it in any event.

We know that Egypt is being sued for raising the minimum wage. Germany is being sued for its decision to phase out nuclear power after Fukushima. El Salvador is being sued for refusing to issue a gold mining licence due to serious community health and environmental concerns. Canada is being sued for Quebec having put a moratorium on fracking pending an environmental review. Canada is being sued for a Canadian Supreme Court decision ruling two of Eli Lilly's medicine patents invalid.

In what I see as a supreme irony, given President Obama's vigorous championing of the TPP, just two months after the Obama administration rejected Trans Canada's bid to build the dangerous Keystone XL tar sands pipeline—a landmark victory for the movement to keep fossil fuels in the ground—the Canadian corporation announced it would retaliate by suing the United States under ISDS provisions in NAFTA, which is a TPP-like trade deal. This bodes extremely ill for government attempts to regulate or even make decisions for the benefit of the environment. As an arbitrator from Spain, Juan Fernandez Armesto, observed:

When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all. Three private individuals are entrusted with the power to review, without any restrictions or appeal procedure, all actions of the government, all decisions of the courts and all laws and regulations emanating from parliament.

Finally, I note that, according a comprehensive economic analysis by the World Bank, Australia stands to gain almost nothing from the TPP deal. The World Bank study shows that the TPP would boost Australia's economy by just 0.7 per cent by the year 2030 with the annual increase in growth being less than one half of one-tenth of one per cent. I think this analysis points to the reason behind the government's refusal to have any independent analysis and assessment of the TPP, because they are not sure that it will actually be shown to have any positive impact.

It does beg the bigger question of why a government would want to do this to its own people? To enter into an agreement that will bind its own hands, and the hands of governments into the future, to legislate and make policy in the public interest. It seems to me a fundamental breach of the public trust that holders of public office owe to the nation and the community at large.

I urge all concerned people to make submissions to the committees, including the treaties committee, that are looking into this matter and to take the opportunity now to call for the government to have independent assessments carried out. It is a very reasonable request and there does not seem to be any rational, reasonable reason that one would not have done that when one has the time. With other countries still needing to go through their processes for ratification, we should do the same.

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