Sam Dastyari (NSW, Australian Labor Party) Share this | Hansard source

I do want to acknowledge the large presence of people in the press gallery who have come to hear my words about ISDS! I want to thank them for making the effort. And I will confirm the rumours are true that at 12.20 today—

Senator Whish-Wilson interjecting—

No, the rumours are true! At 12.20 today there is going to be a pretty important announcement in the Senate chamber, when Senator Fifield finally confirms rumours that he is appearing on Dancing with the Stars. I do not have much time because I believe we are limited to 12.20, so I will try to cover all the ground that I want to cover. Firstly, I congratulate Senator Whish-Wilson for bringing this bill forward, the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, and for encouraging us to have this debate. The truth is that, for something as significant as ISDS, there has not been all that much interest. It is not a topic that, frankly, enough people understand or enough people have been talking about. That is unfortunate, considering the significance of all of this and the impact this can and will have.

It is important to take a step back and see where all this came from and why it was significant in the first place. The principle behind it, like a lot of principles, is not necessarily a bad one. I slightly disagree with some of what Senator Di Natale said, although I agree with his sentiment. I do not oppose the idea that corporations and businesses have a right to protect some of their investments and that they do have a right, especially when dealing with certain nations, including Third World nations, that do not have the same kind of natural law or rights that we have where a general's brother will suddenly start nationalising your business for their own gain. In those kinds of extreme circumstances there should not be some kind of international or trade vehicle that allows businesses to maintain and protect their rights and property. That, as a principle, I do not think is a bad thing. But what is incredibly unfortunate is what has happened in the ISDS debate and what we consistently see happen. What starts off as what seems like a fairly reasonable principle—that is, businesses that make huge investments in other nations should have some kind of capacity to protect their investment—is overtaken and distorted where big corporations are using free trade agreements to stymie or profit from what would otherwise be democratic, reasonable and rational decisions that governments make. Governments can and will from time to time be making decisions that will go against the interests of private corporations. But when they do it and they do it in the public good, they should have a right to be able to do that. Of course, within Australian law we believe that when this happens to Australian companies they should have an opportunity to participate in that process. We have a parliament and places like this so that we can have that kind of debate.

What is really worrying about the ISDS debate is that a corporation can take on a government without having to really make the public case, without even having to debate whether their actions are in the public interest or public good and, more unfortunately—and you see this happening right around the world—corporations are misusing ISDS provisions in obscure trade agreements, some of which go back 20 or 30 years, simply to give themselves a vehicle or an avenue to make those kinds of claims.

There is this idea that there is a handful of international lawyers who are becoming very wealthy in this quasi legal space. You also have a whole lot of senior lawyers, senior jurists, senior academics across the world who are highlighting the fact that it is a really big problem when a small group of people meet in a hotel room to resolve an ISDS dispute and make decisions that can have a significant impact of tens, hundreds or even billions of dollars on a national economy that should be entitled to make those decisions.

Where I slightly disagree with respect to this legislation—and where I disagree somewhat with Senator Whish-Wilson, for whom I have a lot of respect for on this issue—is prohibiting it as a rule. I do not think that is the right way to go. But I think we should be very aware of ensuring it is not part of how we engage in our own trade negotiations.

Those in the chamber who follow this stuff closely—and a lot of people follow this stuff a lot closer than I do—can tell you about where things are at with the Trans-Pacific Partnership and whether there will be ISDS provisions within that. I congratulate the former Howard government on taking out the ISDS provisions when they initially negotiated the free trade agreement with the US. I understand there is a lot of pressure from many corporations that it be included in future agreements. Those are not just domestic corporations; I think it is the big American companies that have been very outspoken in their support of including the ISDS provisions. The American government and the American congress itself have been quite supportive. The reason is that they have never been at the other end of it. The American system has never really been at the other end of losing one of these big disputes. Once that happens, and I think it is inevitable that it will happen, the tide will start to turn.

We need to look at what is in the Australian interest and what is in our own interest here. To highlight the concern, I want to use the most recent free trade agreement with South Korea as an example. Again, as a point of principle, a free trade agreement with South Korea is a good thing. Is it going to massively change the Australian economy? No. There are larger trade deals; there are smaller trade deals. But it is something that should be welcomed. The inclusion of the ISDS provisions is, I think, unfortunate. I think it has been made quite clear by the former trade minister at the time, Craig Emerson, and others that it was not something Labor was prepared to negotiate into the agreement. We felt that the agreement would have been better and that the agreement should not have included those ISDS provisions. Unfortunately, the current government had a different view. It passed it with the ISDS. Was that reason enough, as far as we were concerned, to oppose the whole free trade agreement? No. But it is unfortunate. We believe it could have been a better free trade agreement without ISDS. We certainly would have negotiated it so that it would not have been included.

More specifically, though, getting to Senator Whish-Wilson's bill, I think it is unfortunate that a whole chunk of Australian business and the Australian community are not really aware just of the significance of this ISDS debate for Australian society. Senator Di Natale made a reference to the most recent case, regarding tobacco and an obscure provision within a free trade agreement between Australia and Hong Kong that actually goes back to before Hong Kong even returned to being part of China. To be able to use that and latch onto that to make an argument against what I think was a very reasonable policy that was introduced by the Labor Party is concerning, and it should be concerning.

When we are seeing ISDS being used in that way, the international community has a right to be concerned. It should not be part of our free trade agreements. We should be quite outspoken in opposing it when we are looking at the TPP and other trade deals. I note that I am running out of time but I will say that Senator Whish-Wilson should be congratulated for bringing this forward. I do, however, believe there are better ways of tackling the ISDS issue than through this bill. While I will not personally be supporting the bill itself, I certainly support the sentiment that we should all be very, very concerned about ISDS and the risks that arise from it.