Stirling Griff (SA, Centre Alliance) Share this | Hansard source

I rise today to briefly speak on the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018 and a related bill and on the issues which need to be addressed before the TPP comes into force. As my colleague and I mentioned previously in this chamber, the Centre Alliance is not opposed to free trade agreements; however, we cannot support this implementation of the TPP. There are legitimate interests which need to be balanced against free trade. More importantly the sovereignty and integrity of our democracy cannot be delegated lightly. Chapter 9 of the TPP agreement, which deals with investor-state disputes, is of particular concern. I cannot support legislation that allows foreign investors to affect the ability of the Australian government to regulate on matters of public interest. If the agreement proceeds in its current form, it is only a matter of time before we will be liable for actions brought through ISDS provisions. We need only quickly look back to the Philip Morris case for an example of how a trade agreement can affect Australia. Even though the Philip Morris case was dismissed at a preliminary stage, the process was time-consuming and very costly. More importantly, this case arose from plain-packaging laws, which were so overwhelmingly supported by the public.

Whilst this may well have been the first case brought against Australia due to a trade agreement—in this instance due to an obscure Hong Kong-Australia investment treaty—we shouldn't get too comfortable in believing that, because this case was dismissed, the chances of a successful ISDS case against Australia are low. We need to assume and be prepared that, if the ISDS provisions are there, they will be used. Despite statements from TPP advocates that there are many safeguards in TPP-11, the fact that foreign investors can sue for compensation in international tribunals and totally bypass our own courts shows how biased against Australia this treaty would be.

Worldwide there are currently 855 known treaty based investor-state arbitrations involving public interest laws. Many of these are health related. During the joint standing committee's inquiry, Dr Deborah Gleeson of the Public Health Association of Australia stated:

We know that there is potential for corporations to use the threat of an investor-state dispute settlement case to deter governments from going down the path of introducing strong new public health measures, and that is a major concern.

One such potential issue is alcohol labelling. TPP-12 and TPP-11 both have provisions that any alcohol label from another country would not have to be changed if Australia implemented a requirement for health labelling. Instead the supplier would need only a supplementary label, which would not have the same prominence and, as some health experts have stated, could well deter governments from even considering implementing health warnings. Investment chapter article 9.16 contains five words—'otherwise consistent with this chapter'—which undermine what appears to be a safeguard and potentially give grounds for a dispute in a tribunal. Investment chapter annex 9-B, article 3(b), covering non-discriminatory regulatory actions, has the four-word get-out clause 'except in rare circumstances', which provides an incredible loophole for corporations to argue that their circumstances are indeed rare. These provisions have been used elsewhere, so it is highly likely that they will be used here in the future.

Another concern with the TPP is the provisions waiving labour market testing for contractual service suppliers. I simply could not support something that—in the midst of high rates of unemployment and low wages in Australia—would see jobs being filled by workers from overseas before first being offered to Australians. Labour market testing must occur in relation to contractual service suppliers entering or proposing to enter Australia, and these issues must be addressed before the TPP comes into force. We cannot rely on a promise that things will be fixed by the Labor Party after the fact. They must be addressed today.

Before I end this short contribution, I must make mention of the many—somewhat offending—suspended items in TPP-11, particularly those relating to patents. Why suspend? Why not remove them? Suspension means they can be re-enabled in the future with minimal effort and minimal consultation, something the overwhelming majority of us would not want to see happen.

To Labor, we will be supporting your amendment even though it means very little. It is obviously there to ease your conscience. If you truly care about the provisions you have flagged, now is the best opportunity to make them happen. Like us, oppose the bill until such time as these sensible changes are implemented.