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

I seek leave to amend general business notice of motion No. 469 standing in my name for today, relating to the Korea-Australia free trade agreement, by deleting paragraph (a)(iv).

Leave granted.

I move the motion as amended:

That the Senate—

(a) notes:

(i) that the Government has included Investor State Dispute Settlement (ISDS) clauses in the Korea-Australia Free Trade Agreement,

(ii) the concern about including ISDS clauses in trade agreements expressed by a number of legal experts, including Chief Justice French, and

(iii) reports that ISDS clauses are being negotiated by parties to the Trans Pacific Partnership Agreement; and

(b) acknowledges that agreeing to ISDS clauses in the Trans Pacific Partnership Agreement will subject Australia to increased risk of litigation.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I seek leave to make a brief statement.

Stephen Parry (President) Share this | Link to this | Hansard source

Leave is granted for one minute.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

The government is considering the inclusion of ISDS clauses in FTAs, on a case by case basis. It is important to remember that ISDS is not a new concept for Australia. We currently have ISDS clauses with 28 economies through four free trade agreements and 21 bilateral investment treaties. ISDS provides protection for those who choose to pursue new opportunities for Australia by investing abroad. The government has said that it is willing to consider the inclusion of ISDS provisions in the Trans Pacific Partnership Agreement if the balance of the package is in Australia's best interests and there are safeguards in ISDS for public welfare measures.

In the Korea-Australia Free Trade Agreement, Korea and Australia agreed to include an ISDS mechanism, which includes carve-outs and other safeguards in important areas such as public health and environment. In the -Australia Economic Partnership Agreement, Australia and Japan agreed not to include ISDS. JAEPA includes a review clause, which provides for future considerations of an ISDS mechanism. The different outcomes on ISDS in KAFTA and JAEPA reflect the government's case-by-case approach in the agreement reached during the negotiations.

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

I seek leave to make a short statement.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Leave is granted for one minute.

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

There are no safe carve-outs or exceptions for these investor-state dispute settlement clauses. They are being looked at all around the world. This is not just an issue in Australia around free trade; this is an enormous issue in Europe. The European Union have put their free-trade agreement negotiations on hold for the across the Atlantic free-trade negotiations, pending a large study into these ISDS clauses. They have been around for a long time. They no longer serve any function. The Productivity Commission said they are not needed. They only introduce risk into regulation.

The Australian government is currently being sued by Philip Morris International. That type of litigation against a public health measure could not have been prevented by any carve-outs or exceptions, unlike what the government are saying. John Howard, when he was Prime Minister, refused to sign ISDS clauses into his free-trade agreement with the US, saying that safeguards already in place and ISDS clauses were entirely unnecessary. This is just a way of getting a trade deal through, getting a headline and going up in the polls.

Question agreed to.