Glenn Sterle (WA, Australian Labor Party, Shadow Minister for Infrastructure, Transport, Cities and Regional Development (Senate)) Share this | Link to this | Hansard source

The committee is considering the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018 and a related bill. The question is on amendment (1) on sheet 8520.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I have some questions for the government, if the minister is able to answer some questions.

I want to know what the impact will be. This TPP agreement includes 22 clauses that are effectively on ice and that were insisted on by the United States in the first round of negotiations. This includes the intellectual property chapter, which contains a series of rules which lock in strong monopolies for patents on medicines at the expense of affordable access to medicines. This is particularly in relation to cancer medications and treatments, in addition to longer monopolies on data protection for biologic medicine. It's making it much harder and a much longer wait for affordable cancer medicines to be available. These clauses are effectively on ice. They haven't been deleted. Could the minister please explain how these clauses may be reinstated, should the United States agree to be a party to this agreement at any point from today onwards?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Thank you very much, Senator Hanson-Young, for that question. The answer is: yes, they can be reinstated if all parties agree.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Why is it that the Australian government and negotiators allowed them to stay in the agreements as simply on-ice clauses, as opposed to having them deleted? Surely the Australian people would like to know if their government tried to have these clauses deleted. If there is cancer medication and health advances available when dealing with the very traumatic issues of the various different cancers across the country that patients are suffering from today, that cancer medication should be as affordable as possible. I don't think that big pharmaceutical companies should be able to exploit time lines on patents to make them more expensive at the expense of patients being able to have access to that medication at an affordable rate. Could the government minister please explain whether they argued for those clauses to be deleted in the first place?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

The advice I have is that these were discussed amongst the 11 who signed and that the agreement was not to proceed with them at this stage. However, as I said, if there is agreement amongst all parties, they can be reinstated or adopted.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Did Australia, at any point, argue that they should be deleted?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

The advice I have is that was part of confidential negotiations between all 11 parties, but, after that, the decision was to retain them but not proceed with them without the United States.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Could the minister please put on the record for the chamber today what the government's position is? Do they believe that these clauses should remain in there or should they be deleted?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

The advice I have, Senator Hanson-Young, is that the Australian government did support them. Again, it was the agreement of all 11 parties not to proceed with them at this stage.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I'm trying to ascertain what the government's current position is. Would you support these clauses becoming live again or is the government's position that they should be deleted?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

ator REYNOLDS (—) (): Senator Hanson-Young, as I've said now three times, I believe the Australian government supported the decision of the other 10 parties to delete them at this time, but, again, there is the option, if the United States joins, to have the discussion again with the other 10 parties to reinstate them.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Can I just seek clarification. Do they become live as soon as the US signs up to the TPP or does each clause need to be renegotiated?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

As I've said, if the United States does rejoin, all 11 existing parties would have to discuss and all agree to proceed.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

In that instance, Minister, would there be a requirement to bring any change in terms and conditions back to either the JSCOT or, indeed, the parliament?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

I can confirm that the normal process and practice would occur in that case. Yes, it would come back to parliament and the JSCOT.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Could the minister please put on the record which types of cancer medication may become more expensive if these clauses become live?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator Hanson-Young, that is a hypothetical question which goes to a degree of detail that we don't have available, because it is a political hypothetical.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

No, it's not. It was a clause that was in there up until 12 months ago. So, surely the Australian government has information as to what types of medication would not be available at an affordable rate to Australians if, indeed, these clauses were to become unfrozen at the initiation of the United States.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

My advice is that there would be no change, because anything negotiated under the TPP-11 would be consistent with our existing Australian laws in relation to the PBS.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Could the minister please outline what these clauses would mean if they came back into effect?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator Hanson-Young, as I said in answer to your previous question, you're asking a hypothetical—

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

They were there 12 months ago.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

You can make any political points and debate you want, but I'm just saying to you that they are hypothetical. Again, if they are activated at some point, it would come back to the parliament and come back to JSCOT, and there would be no implications, because they'd still be consistent with the PBS guidelines and rules.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Let's move on and see if we can get some answers to some other issues. Did the Australian government ever insist that ISDS clauses were not to be included in the TPP negotiations?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Of course not.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Could the minister please explain why that is the case—why Australia has not sought to have ISDS provisions deleted or why the government hasn't opted for side deals to prevent ISDS provisions being used against Australia by other countries, as has been done by New Zealand? Why hasn't Australia gone down that route? It seems absolutely crazy that the Australian government is signing us up to something that allows our government and our taxpayers to be sued by multinational companies. Was there any discussion at any point for side deals with any countries to get Australia out of this ridiculous situation where corporations will be able to sue Australian governments?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator Hanson-Young, as you'd be aware if you'd listened to the debate and to both the minister's and my speech yesterday, the Australian government very strongly supports the ISDS considerations in here. We heard the rhetoric from, I think, four Greens senators yesterday, ad nauseam, about neoliberalism and all of these other great Greens conspiracy buzzwords in relation to ISDS. But, as we both said yesterday, these are not new provisions. This conspiracy—I think you described it yesterday as a great neoliberal, whatever that means, conspiracy—about large corporations and losing sovereignty is simply nonsense. These are provisions that have been in place in other treaties for a considerable amount of time. There is no company that has been successful. As we heard yesterday, there was one company, and they were unsuccessful because the courts had no jurisdiction over that matter.

So, yes, they are reciprocal requirements. And if we're expecting to get that benefit out of the treaty ourselves, it is only logical that others expect us to provide the same clauses. There is no loss of sovereignty and there is no breach. In fact, if we did do that, we would now be in breach of the treaty itself. Penny Wong, Senator Kitching and Senator Farrell last night all gave very cogent arguments as to why this treaty must be signed. And if it's not, and if we did do anything with the ISDS or the labour-market testing then we would be in breach of this. Again, they gave very cogent reasons last night why this has to be moved without these amendments.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I would like to put on the record that whilst there has been one ISDS litigation against Australia, the Philip Morris case, and that's well-known, of course there is another matter on foot right now. Inconsistent with the views of DFAT, where they've said that in actual fact there are only limited circumstances where ISDS can be invoked, there is a matter on foot at this present moment where the government disputes the ability to litigate. I wonder if that particular matter had any impact on the consideration that the government had when discussing ISDS?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

I don't have advice on that second case and I'd imagine that, if it is before the courts, if the officials here are not aware of it and the minister's not aware of it, I can't comment on that matter further. And, clearly, even if we were aware of it, it would be a matter before the courts and we couldn't comment on it.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Indeed, it's not a matter before the courts, because as you well understand the ISDS is not litigated in a court, so it's not a matter sub judice. It can be commented on. I've asked the government, just to be very clear, how much that litigation is costing. Former Senator Xenophon and I went through a fairly detailed process in relation to the Philip Morris case. The government resisted. They eventually gave us the number on that: $39 million was spent on litigation. I have asked the Attorney to provide data on that, so the matter is live. It is not before a court and, indeed, the government's very well aware of it.

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

At this point I re-emphasise—and it's a point Senator Reynolds has made and it was a point made in the debate yesterday—that the purpose of ISDS provisions is to provide certainty for investors. Those are provisions that, yes, do flow in both directions. However, when the Philip Morris case is raised it should always be made clear that ultimately that case was not successful, that case did not proceed and that Australia's arguments for ensuring that case did not proceed were successful. However, these provisions provide protections for Australian entities and investors operating in other overseas jurisdictions in countries that sometimes have less well established judicial and legal frameworks, less predictable policy settings and possibly less regard for retrospective legislation or actions not being pursued than Australia has.

Senator Patrick asks about another matter. In relation to that other matter I'm happy to talk in a less public forum with Senator Patrick about some of the arguments that Australia may make in that regard. We continue to believe that on balance—and these matters are always a matter of balance—the benefits to Australians operating in other markets far outweigh the risks to Australia in the maintenance of these provisions, particularly when you then consider the carve-outs and exclusions    that are clearly made in them that enable the Australian government to continue to make policies in relation to health care, the environment, education standards or the like, which are clearly within the Australian national interest.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, can you give me—or this chamber or the people of Australia—an example of how the ISDS can be implemented or called upon by a multinational company on the Australian people?

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

The point that I just made—and the provisions have never been used successfully against Australia—is that these provisions have existed in our investment agreements and otherwise for more than 30 years. They're not some new concept dreamed up just the other day or exclusive to only this matter. They have been around for more than 30 years. There's only one case that's occurred to a point of finality. That case ultimately did not proceed and was thrown out, and the Australian government's position was upheld. So, no, I can't give you a case where they've been used successfully by a multinational company or any other against Australia, because none exists in 30 years of history.

There are, however, instances where Australian investors have, in limited cases, used these provisions. I'd also just note—and it's something that happens from the extremes at both ends of the chamber—the pejorative use of the term 'multinational companies'. These provisions could well be used by Australian family companies who also happen to invest in other markets and ought to have their investments protected, too.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, you misunderstood my question. I wasn't asking where it was used; I was asking what would trigger it to be used in Australia. What could the multinational company do to impose an ISDS on the Australian people?

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

In the rephrasing of the question, Senator Hanson, you've clearly gone to a hypothetical scenario of what a company could seek. Companies can seek to do things all the time. Philip Morris sought to use the provisions against Australia. They were unsuccessful.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I want to go back to the matter that has been raised. I want to clarify for the chamber that the matter I was referring to is actually a matter being raised under the Australia-US Free Trade Agreement. They are exercising a right to not be treated any differently to another nation that may well have an ISDS right. So that's the controversy. I just wanted to clear that up. But I do want to ask a question. No doubt as you diligently went through the negotiations—and I understand that you say that the position of the government was to support ISDS—when you got to those provisions you would have worked through those provisions. At that point in time, was the negotiating team aware of what New Zealand was doing in respect of the side letters that they were having written up?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

In relation to what New Zealand did, my understanding is that that was done at the end of the negotiations and wasn't actually part of the discussions and negotiations that Australia took part in. It was a separate side arrangement that New Zealand did.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Also, as part of those deliberations—and I understand the timing may have been an issue here—it's quite apparent now that the European Union are walking away from ISDS and not allowing them to be included in free trade agreements. Indeed, under NAFTA, President Trump has managed to remove that as well. I'm wondering: in the consideration of government, firstly, did that occur after the government had already negotiated the ISDS position for the TPP? Alternatively, what effect or what consideration has the government given to other First World nations that are now pulling away from ISDS? Have they conducted an analysis of why they're doing that and considered those particular instances?

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

The government—and I, as a relatively new trade minister—will always consider the best possible approach that we can take in each and every trade negotiation.

It is for others, such as the EU, to make and determine their own positions. However, I do emphasise the point made before—that provisions that provide a degree of investment certainty to Australian businesses operating in other jurisdictions are, we think, important. They provide that opportunity for Australian businesses to look abroad, to invest abroad and to create opportunities that then may see profits and opportunities repatriated back to Australia to some extent. Encouraging that activity by Australian businesses is good for us. It's also good for the nation in which they're investing; they are creating jobs and opportunities and paying taxes in that nation. We ought to be realistic enough to recognise that Australia is a stand-out nation in global terms, when you look at matters such as the rule of law, judicial process and, frankly, governments of both political persuasions acting in generally responsible ways that don't go and see retrospective actions that could be detrimental to investment decisions that have been taken. Not every other nation has such a strong track record. That's why we think, on balance, such provisions are useful and important for Australian companies and their operations overseas.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Thank you, Minister, for articulating the thought process that you went through. Obviously, if I went to the Europeans or to the US, they probably would think about matters in much the same way as you have; but they've managed to come to a different conclusion. The burden of my question is: have you looked at their reasoning and have we discussed with the Europeans, and indeed the US, why they have now taken a different course on ISDS? We may well benefit from some of their experience. I'm just wondering if we've had conversations, whether we've looked to why it is that they have done what they've done, and then tried to consider whether or not that was relevant for Australia. Maybe you did and maybe you came to a different conclusion. I'm just going to the due diligence that you've been through in coming to the conclusion you have come to.

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

I have indicated the thought process and the benefits that we see, on balance, to Australian companies. I have also indicated that, in relation to future trade negotiations and deliberations, we will always seek to apply the best practice provisions that we can see as being available to Australia in our operations as a nation at any time. In relation to the EU, I think it's important not to completely mischaracterise the EU's stance. I'm advised that the EU has stated that investment agreements, where deemed necessary, should in principle be negotiated in parallel to FTAs. On 20 March this year the European Council adopted and published the negotiating directives for a convention establishing a multilateral court for the settlement of investment disputes. So the EU is looking at processes that do still provide for the impartial settlement of investment disputes. Both the EU-Canada Comprehensive Economic and Trade Agreement and the EU-Vietnam free trade agreement include ISDS and foresee setting up a permanent multilateral mechanism and contain such reference to it. So to simply take the argument and suggest that the EU have said 'no ISDS or equivalent' would be a misrepresentation of the position.

Of course, as I said, each area of a trade agreement, when we enter into new deliberations, ought to be thought of in a wise and sensible way about how we get the best possible outcomes in the interests of Australia—across goods, across services, across investment and across the whole range of different factors that a comprehensive trade agreement encompasses. When it comes to investment, providing certainty and stability around investment is important. I've outlined the reasons as to why we think, on balance, there's far greater upside for Australian businesses investing overseas than there are risks. Indeed, there are a number of cases and instances where Australian companies have taken advantage of those provisions and been successful, unlike the fact that nobody has ever been successful in using them against Australia.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Thank you, Minister. In effect, you're indicating that you have done some work. You've looked at what the Europeans have done, and I thank you for clarifying that situation. Maybe this can be taken on notice if you don't know the answer, or you can perhaps come back to the chamber. Having looked at the differences, we can see there's clearly a reason why they have taken a different pathway. The sensible thing in this circumstance, I imagine—and I know you try to do your work as diligently as possible—would be to examine, perhaps, the jurisdictional issues, the bounds in which the claims may get made and all of those sorts of things that the Europeans are doing slightly differently, no doubt from lessons learned. They have had a number of ISDS cases brought against them, so they have, perhaps, more experience. I ask whether or not you could give some advice as to what their motives were, what they're trying to do with this new arrangement and, indeed, why we don't think those new arrangements would be applicable for Australia.

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

I think those matters are probably best dealt with at the opportunities presented to Senator Patrick to ask questions that can be referred to some of the trade negotiators and trade officials at estimates next week.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

You say the ISDS has not been used in Australia apart from by the tobacco company; they did, but they weren't successful. If there were a challenge under the ISDS and it were successful, who would be responsible for paying the fine or the moneys?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

) ( ): Senator Hanson, that's a purely hypothetical question, and I don't believe we're in a position to answer a hypothetical question on a case that doesn't exist.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Sorry, that is not an answer—that it's hypothetical. You have put the ISDS in the agreement. You must know that if a multinational company were to sue the government—they must sue someone—then someone has to be responsible for paying that. So it is not a hypothetical question in any way whatsoever, and the people of Australia demand an answer and should have an answer to that. Are the taxpayers responsible for the fine?

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

Senator Hanson, if the government of Australia goes and seizes land from individuals and they seek compensation for that, the government of Australia is indeed responsible for that or for other assets or for other things that might be, in that way, taken upon as a claim against Australia. They could well be taken upon, in most instances, as a claim under normal domestic law and processes were the government of Australia to act in such a way. Governments of Australia of both political persuasions don't tend to act in those ways. That's why, of course, these provisions have not been used successfully against Australia. They have been used successfully by Australian businesses operating elsewhere, and I would have thought, Senator Hanson, that you would have believed that Australia's systems of government were capable and responsible and did not pose a threat to investors but that perhaps Australian businesses operating in other markets deserved appropriate protections.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, if you believe that we have a very good government and system in Australia, why put the ISDS in in the first place? The whole fact is you have not answered the question. Who is responsible for paying it? If you have a multinational company that comes out here and is then suing the government, whether because of a change of legislation which has caused it to lose profits from its business or for whatever other reason, is the taxpayer responsible for that payment?

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

Senator Hanson, I'll try to spell it out even more simply than I did in the previous answer. If Australian governments undertake actions that would, in most cases, be a breach of our constitutional principles or our laws of the land and that in some way damage, in a retrospective sense, the investments of investors, governments are held to account for that.

Overwhelmingly that happens through our domestic legal processes. If you go and seize the assets of a company unfairly, they'll sue you in a court of law, because Australia's court system and legal frameworks recognise and respect that already, but the ISDS would provide an additional fallback, potentially, for investors in Australia. The reasons that the ISDS has never been used successfully are twofold. First, Australian governments don't tend to behave in that way. Second, if they did, our domestic legal procedures already provide probably better, easier and more secure avenues for investors to take action against governments that behave in such ways against basic principles.

Senator Hanson, you asked the question: why would we include such provisions? It is to protect Australian companies operating in other markets, to protect Australian businesses who think: 'You know what? I can do better than just doing business in Australia; I can also grow my business by operating in other countries, in other investment scenarios.' And we ought to back those businesses. We can be a tiny, shallow, little, inward-looking country if you like and not actually encourage our businesses to look outwards or we can be a nation that encourages Australian businesses to seize investment opportunities to go and work in other nations, and these provisions provide some protection over and above the domestic legal frameworks of those countries. We support them because, on balance, they are proven, over time, to give greater protection to Australian businesses operating in more uncertain legal environments than they give to foreign investors operating in Australia's well-established and quite certain and secure legal environment.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

I would like to outline the opposition's position in regard to these amendments. There are a series of amendments and I won't waste the committee's time by speaking on each and every amendment. I explained yesterday the opposition's position on these questions in general terms. This bill is effectively a customs bill. It's not subject to amendment in terms of whether or not we like the agreement. It's not a question of ratification. It is a bill that seeks to implement the tariff reductions that come into force as a result of this agreement. We should be clear about what we're actually doing here.

I don't think the number of times you repeat the same question over and over again changes one thing. You've got your answer from the government. The government's position has been explained quite clearly, to my mind. I don't agree with what the government has said. The Labor Party doesn't agree with what the government has said, and we will seek to make changes to these measures if there is a change of government at the next election. But, when it comes to the specifics of these measures, the Labor Party will not be supporting any of these amendments. We will not be supporting any of these amendments, because they are essentially irresponsible, reckless and, frankly, against the national interest. They have been moved by South Australian senators, and I am surprised that they don't have a better understanding of their own domestic industrial interests. I would have thought that an understanding of what is actually going on in the steel industry would be pertinent, that an understanding of what is actually happening in the meat industry would be pertinent; and that an understanding of what is going on in the cotton industry and the wine industry in South Australia—and seafood, horticulture, cereal and what have you—would be a matter of some significance.

I don't agree with many of the provisions that this government has embarked upon, but I don't want to see circumstances, as a result of actions taken by this Senate, which advantage New Zealand and Canada against the interests of Australia. And what we've been asked to endorse here is a proposition which would do exactly that: provide advantage to our international competitors. That you can possibly suggest that that would be in the national interest strikes me as somewhat more demented than is normal in this place. Those are the circumstances in which we've been asked to consider these provisions today.

So, the Labor Party won't be supporting these propositions. This is a tariff bill that goes to change the structure of the tariff provisions. If you want to talk about the general principles of the TPP, you had the chance in the second reading debate yesterday, and you did so. But you won't be able to prosecute it through these specific amendments with our support.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

I thank Senator Carr for his contribution yesterday and again today. For many of the reasons that Senator Carr has been so clear on in this place, the government also will not be supporting any of the amendments before the Senate on these bills. I thank all senators for their contributions on this bill. But, as Senator Carr has just noted, these are customs amendment bills, and the majority of the debate has been a re-prosecution of issues that go to the heart of the TPP itself and not to these customs amendment bills. So, as I said, I thank all senators for their contributions to this debate, and the government will not be supporting the amendments before the Senate.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

To clarify, the case that I was referring to is APR Energy Holdings Limited and the Commonwealth of Australia. I'd also like to ask the minister to confirm for me a circumstance—and I apologise: I use a hypothetical, just to give context to the question—where Australia changes a policy in this place that gives rise to an application under ISDS. The government may say that that's not likely, but actually that's not a matter for the government to decide. An applicant can simply make the application, and you can contest jurisdiction or the appropriateness of that. Say we have a situation where a policy has changed and an international company makes an application and they choose to do so, because they can, and to use ISDS as the mechanism for doing so. I just want to confirm that in the same circumstances an Australian company who is affected by the policy change doesn't have the ability to make application under ISDS for the same potential damage to the Australian company.

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

Australian companies operating domestically within Australia of course have all the protections of Australian law, underpinned by the constitutional protections that provide for a range of protections and scenarios. I don't believe there are any scenarios in which you could suggest that an investor into Australia received greater or preferential access to have a dispute settled than an Australian company with all the prerogatives of Australian domestic law available to them.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

The burden of my question really relates to, in circumstances in which the company chooses not to use the court—because of course the multinationals can use our court system; we don't constrain them in any way from doing that—the difference between an Australian company raising an ISDS application and an international company raising an ISDS application, because that's the mechanism they wish to go down. Can an Australian company raise an ISDS application against the Australian government?

Simon Birmingham (SA, Liberal Party, Minister for Trade) Share this | Link to this | Hansard source

I don't believe that would be the case. I stand to be corrected, and will double-check for the senator. But, as I indicated in my answer to Senator Hanson previously, if you look at the reasons ISDS has not been used against the Australian government, you will find that there are two primary reasons. One relates to the behaviour of Australian governments of both persuasions, which don't give cause to the types of behaviours that would necessitate the use of an ISDS provision or indeed any other claims against Australian governments. The second reason relates to the strength of the rule of law that is operable in Australia and the opportunities that investors in Australia, be they domestic or foreign investors, have to pursue any claims they may have against Australian governments in relation to the decisions of those governments.

So I think the compounding factors there are such that, as I say, there's no scenario I can conceive of where an ISDS provision would provide preferential access for people to dispute matters in Australia in a way that couldn't be done through normal domestic provisions and arrangements.

Progress reported.