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

My question is to the Cabinet Secretary, Senator Sinodinos, representing the Minister for Trade and Investment. George Kahale is chairman of the world's leading arbitration law firm defending governments being sued under investor state dispute settlement provisions. Mr Kahale has said this week that the supposed safeguards in the investment chapter of the Trans-Pacific Partnership Agreement do not immunise our government and the Australian people from being sued by big corporations using ISDS. Mr Kahale also said that article 9.15, which supposedly provides safeguards, is negated by the phrase 'unless otherwise consistent with this chapter'. Mr Kahale also said that if the trade minister is saying that Australia is not at risk of being sued for making new or changing existing environmental regulations then the minister is wrong. Senator, do you agree with Mr Kahale's assessment that claims Australia is protected by supposed new safeguards in the TPP are, in his words, 'nonsense'? Do you agree that the words 'unless otherwise consistent with this chapter' negate these protections?

Arthur Sinodinos (NSW, Liberal Party, Cabinet Secretary) Share this | Link to this | Hansard source

I do not agree with the gentleman you have quoted. I have not seen what he has had to say. I have seen other opinions provided by lawyers, in the private sector, who support what the government is saying. I think you will probably find—depending on which barrow is being pushed by which particular group—you will have all sorts of interpretations put upon that chapter. But the interpretation we have taken, based on the best legal advice and the efforts of the trade minister is to ensure that under the investor-state dispute settlement provisions we protect our capacity to legislate in the public interest in sensitive policy areas, which include health, which include the environment. We have carved out our tobacco measures so they cannot be challenged in any way, and there are a number of safeguards around procedure, which will make it easier for groups that may have issues with the way ISDS works to be represented in any proceedings as well.

People seem to forget that this is a reciprocal arrangement. What will happen is that this provides protection to Australian investors in other countries where their legal systems may not be as advanced or sophisticated as ours. This is, very much, a two-way street.

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

Mr President, I ask a supplementary question. Senator, Mr Kahale also said that most favoured nation-status provisions within the TPP investment chapter provide big corporations with a loophole, which enables them to go treaty shopping and use ISDS clauses with impunity within existing agreements that most suit their claims. Given the high level of public concern over the inclusion of ISDS in the TPP, why did our governments agree and sign up to such dangerous provisions?

Arthur Sinodinos (NSW, Liberal Party, Cabinet Secretary) Share this | Link to this | Hansard source

I am happy to arrange a briefing for the senator with people from the office of the trade minister and any legal advisers you want who will verify what I am saying, what Mr Robb, the trade and investment minister, is saying, about the safeguards that have been built into these processes. These safeguards are very important, in terms of public policy areas that I mentioned, like health and the environment. There will be no capacity for whether it is the most favoured nation clause or any other clause to cut across our capacity to legislate in that public interest.

Let me remind you that it was this Prime Minister, Mr Turnbull, and the trade minister, Mr Robb, who stood up to the full force of the US trade representative, the White House and the President on issues like biologics and got a deal, which reflects our circumstances and guarantees that our pharmaceutical prices, our health related prices, will not go up as a result of doing this deal.

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

Mr President, I ask a further supplementary question. Senator, given experts are stating ISDS safeguards in TPP are as weak as water, can the government provide a guarantee to the Australian people that we will not be sued by foreign corporations for its tougher climate-change regulation into the future—for example, by legislating a new carbon reduction program or increasing the renewal energy target, by putting moratoriums on coal seam gas or by closing dirty coalmines?

Arthur Sinodinos (NSW, Liberal Party, Cabinet Secretary) Share this | Link to this | Hansard source

I may well ask the good senator whether his party will give a guarantee not to use technicalities of the law to stop major job-generating projects in places like Queensland. I find it a bit rich that you seek to attack these provisions and, at the same time, are always telling us and lecturing us about signing up to international conventions, of all sorts, which hobble the capacity of the Australian government to do things that we regard as being in the Australian national interest.

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

Pause the clock. Order!

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

Mr President, I rise on a point of order on relevance. I asked if the senator could give a guarantee—a very simple request—that the Australian people will not be sued into the future through the TPP investment chapter provision.

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

I will remind the cabinet secretary of the question and advise him he has 30 seconds in which to answer.

Arthur Sinodinos (NSW, Liberal Party, Cabinet Secretary) Share this | Link to this | Hansard source

I am happy to give a guarantee that under the TPP Australia will be a richer and more prosperous country in the decades ahead, and the ISD provisions will work to our advantage.