Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Hansard source

Today we have before us legislation, the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018 and related bill, implementing the Trans-Pacific Partnership agreement. This deal started in 2005, nearly thirteen years ago, immediately following the failure of the Doha multilateral trade rounds. It didn't get supercharged until after 2010, when President Obama put his stamp on it, but it has been a long time coming. We need to ask ourselves as a chamber why that is. Why has it taken nearly 13 years for the Trans-Pacific Partnership agreement to come to us in legislation? You can draw your own conclusions. It's extremely complex, divisive, controversial and unpopular. I say to the senators in the chamber here today and those listening: for six years I have been campaigning against this so-called trade deal. Senator Milne before me opposed the Trans-Pacific Partnership agreement in 2010, and my colleague Senator Hanson-Young has done an excellent job in recent years flying the Greens flag on this.

There is a good reason that we oppose the TPP. This is a corporate takeover of our democracy, to put it in a nutshell. You can come in here and bung on as much as you want with speeches written for you by staffers about what a great deal this is for the country; if you have a look at it closely, you'll see that we already have bilateral trade deals with the majority of countries in the TPP 11, with very limited increases in market access. This is not a free trade deal in the way the coalition are describing it; this is much more about services and investment. This is a deal for large multinational corporations.

Let me tell you a little bit more about this. When the TPP negotiations were underway there was no access at all for community groups or other stakeholders, apart from big corporations who had exclusive access. They were covered completely by commercial-in-confidence clauses about what could be disclosed. And, of course, we had our DFAT negotiators, who I for five years tried to get answers from at every estimates and who, seemingly, felt insulted when we asked them questions about what was going on behind closed doors. And it wasn't just us in this country, I know our counterparts and stakeholders I've dealt with in other countries have had very similar issues. We have a deal that's essentially synchronising laws and regulations around things as important as investment and services. Things that cover nearly every facet of our lives in this country are being negotiated behind closed doors by people who aren't responsible to parliament.

What did I do when I took on this issue in 2012? I looked at our treaty-making process and I initiated an inquiry, which went for some time. I recommend senators have a read of that inquiry report. It's called Blind agreement: reforming Australia's treaty-making process. When the Foreign Affairs, Defence and Trade Committee released this report I don't think there was any disagreement from any senator from any political party that our treaty-making process was in dire need of change and of reform. The report stated:

The committee correctly identifies that the scope and complexity of 'modern trade' or 'partnership' agreements—such as the Trans Pacific Partnership (TPP) Agreement—makes the case for reform compelling.

The committee identified, 'three major areas for urgent reform: transparency, consultation and independence'. The committee also acknowledged that:

The incursion of modern trade or partnership negotiations into matters of domestic policy and public interest is such that they now function as a 'de facto level of government'.

What have we done to reform our treaty-making process? Absolutely nothing. We've done absolutely nothing.

The Greens put in a dissenting report at the end of that committee inquiry. Unfortunately, while we got general agreement that our treaty-making process was in urgent need of reform, the Labor Party said: 'We're a party of government. We don't want to jeopardise the executive power that goes with government.' But that's ultimately the tension within trade deals. The executive is the one who control trade deals with their department, the Department of Foreign Affairs and Trade and other negotiators. When they've got the deal to a point where they think it's good they then give it to parliament. Guess what? It goes through a JSCOT rubber-stamp process—a government-controlled committee. We have a references committee that is opposition-controlled and that often recommends change but nothing ever happens. We get lock, stock and barrel. We either vote for the whole lot or we can reject it. There are some good things in these trade deals. Why can't we change it? It's just not possible under our treaty-making process. It's a joke that we get given thousands of pages of text around these extremely complex trade deals and investment deals that cover just about every aspect of our lives in this country and elsewhere and we can't change a bloody thing; and if we do it jeopardises the entire deal, so nobody does.

I've seen it with the Japanese free trade deal. I've seen it with the Korean free trade deal. I have looked at it in relation to the Chinese free trade deal, the RCEP agreement and the new Indonesian deal underway. It's the same thing: no move at all to reform our treaty-making process. I recommend senators read that report, because there are a number of recommendations about what we can do to reform our treaty-making process so that we don't get ourselves into this situation here, this farce, where we have to say yes or no to thousands of pages of detail on extremely complex matters of investment and trade.

Now, the Greens support trade, but we support fair trade. One of the reasons the Doha round of multilateral negotiations, which included all WTO members, fell apart was that there was enormous hostility from civil society all around the world. In what is now commonly called the battle of Seattle, nearly 40,000 people turned up in Seattle to protest against globalisation and the rules being written, behind closed doors, by multinational corporations for sovereign nations like Australia with compliant governments—the same governments who were taking donations from those large corporations—to the exclusion of civil society and parliaments around the world. So it fell apart.

Why did the Greens—Senator Milne and I and others—make an early decision not to support the Trans-Pacific Partnership? We have a fundamental philosophy that every environmental problem on this planet and just about every social problem on this planet is caused by a business or commercial activity. I want senators to reflect on that. Whether it's climate change, the warming of our oceans, the loss of half the Great Barrier Reef, overfishing, the trashing of our forests or the pollution of rivers—you name it—it's caused by business activity. So, when all the business CEOs are in one room secretly negotiating a deal, why wouldn't we include externalities and rules and regulations that control the business activity that causes all these problems and undermines workers' rights—all the kinds of criticisms that have been raised by my party in this debate?

I've raised this issue too—and, by the way, it's in the treaty reform bill—and the only answer we've ever got is: 'It's not the right forum for that, Senator. It's not the right forum for dealing with emissions.' Well, what is? The Kyoto Protocol? The Paris Agreement? Look at that. The fact is that what we are about to sign up to here, including state-to-state settlements and investor-state dispute settlements, are binding agreements. They are binding agreements. But do you think, between 11 or 12 countries, we can get anywhere near a binding agreement on environmental protections? Look at Japan. Japan took the leadership on the TPP-11 when the US pulled out. Only a few weeks ago, they threatened to walk out of the International Whaling Commission because they didn't get their way. So much for rules-based order! The legislation before us today has come to us from Shinzo Abe, the Japanese Prime Minister, the same Prime Minister who's agitating to increase the size of Japan's whaling fleet and walk away completely from an international rules-based order banning whaling, including in the Australian Whale Sanctuary in the Southern Ocean. Do you think there is something in the TPP that might hold the Japanese to account on an activity like killing cetaceans? There are a few platitudes in there, but there is nothing binding so that we can turn around to Japan and say: 'Wait a second. You want to be our friend and ally on all these things to do with investment. What the about the protection of cetaceans?' That's what Australians feel strongly about. What about action on emissions or the illegal trade in wildlife? There is nothing at all binding in these agreements on that, because it's not a priority. It's not a priority for the corporations that cause a lot of these problems, and it's clearly not a priority for our government or for most governments around the world. That's why civil society have been fighting these multilateral agreements: because they want fair trade. They don't mind trade agreements, but they want agreements that are fair for all stakeholders, not just agreements that are written for business.

Let's talk about investor-state dispute settlements, another thing that you, Mr Acting Deputy President Sterle, may not be surprised that I wanted to know a lot more about when I was carrying the can for this portfolio. Once again, I had the committee's agreement to have another wide-ranging inquiry into ISDS, on my Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, and it went for 18 months. We were the only parliament—the only parliament in the world—that had an inquiry into ISDS and banning ISDS. I had the French consulate and other people contacting us. There was a lot of interest in this inquiry. It has been quoted in journals all around the world since the inquiry.

Oddly enough, we got hundreds of pages of evidence from witnesses—including ISDS experts and lawyers who conduct investor-state dispute settlement cases—and there was agreement in the committee that these ISDS clauses had certainly outlived their use-by date and weren't necessary anymore. Yet do you think we could get them banned from future trade deals, like the Greens push for? The committee said, 'No, we're not going to ban these, because it might tie one hand behind our back in negotiations.' That was the key reason. If a country wants to include an investor-state dispute settlement clause, it may end up complicating future trade deals. Where's the principle that we shouldn't be giving special rights to corporations to sue sovereign governments in this day and age? If I've done anything in this place, it's stand up to excessive corporate power. That's what this TPP is; it's a blueprint for excessive corporate power.

I must say, I was very disappointed that, in a speech he made just two weekends ago, the Leader of the Opposition, Bill Shorten, commented that there's never been a better time to be a multinational corporation. He was saying that sarcastically, yet it seems as though Labor is going to vote for this legislation and give them exactly what they want. They have spent 13 years trying to get this legislation through this parliament and other parliaments—that is 13 years of opposition all around the world to the TPP, not just here in Australia but elsewhere. Here are some of the conclusions from the report on ISDS:

(a) Litigation using ISDS has proliferated in recent times and this is likely to increase into the future.

(b) ISDS clauses have outlived their usefulness and are now under review in a number of countries and trade negotiations, including 10 countries in Latin America, South Africa, India, Indonesia and the European Union …

In fact, the new NAFTA negotiations have excluded ISDS between US and Canada, so they are backtracking on the use of ISDS. The report continues:

(c) There is no evidence that ISDS clauses have any economic benefits for trade or investment, however the risks of using them are clear and supported by evidence and numerous case studies.

(d) Trade deals are changing from historic "market access trade" … considerations to facilitating … "foreign investment" … laws and policies in a wide range of areas, including public health, patents on medicines, the environment, food labelling, Internet use and privacy and local media content …

All these are in the TPP. As I said earlier, nearly every aspect of life in this country is going to be impacted by this trade deal, yet now is when parliament gets to look at it—at the very end of 13 years of negotiations. The report continues:

This makes the inclusion of ISDS more dangerous.

…    …     …

(f) There was strong evidence presented to the inquiry that ISDS "safeguard" clauses can and have been reinterpreted and overturned through the arbitration process.

Lastly but most importantly the report states:

(g) Parliament has no oversight or control over the inclusion of ISDS in trade negotiations—

except that we can reject the entire trade bill before us today because of the inclusion of ISDS clauses in the agreement.

I've only got a few minutes left to go before question time, but let me say this—