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Wednesday, 8 February 2017
Page: 419


Ms TEMPLEMAN (Macquarie) (16:18): When I first rose in November last year to begin this speech on the report on the Trans-Pacific Partnership the world was a different place. Donald Trump had just been elected President, but there was a view that perhaps the TPP would survive. However, even then, many of us believed the TPP was already finished, and I quoted a colleague who said that it was as dead as a dodo. I think it is important as I speak on the Joint Standing Committee on Treaties report on the TPP to highlight the issues that I think we should be very careful with as we negotiate trade agreements going forward. In fact, I believe we may well have had a lucky escape from some of the provisions of the TPP. Of course, for some agriculture and service sectors the agreement had the potential to boost their trade, but not without cost to the wider economy. I want to ensure that some of the concerns I and other Labor MPs had are on the record.

There is no doubt that the TPP was an ambitious project. It was a proposed deal between 11 countries: Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, the United States, Singapore and Vietnam. The pact was aimed at deepening economic ties between those nations. While the aim was to boost investment flows between the countries and further boost their economic growth, I cannot describe it as a free trade agreement. It actually puts in place complex rules that govern the relationships between these countries, and I have concerns in five areas: the lack of independent analysis, the so-called ISDS provisions, the impact on workers' rights, the safe harbour copyright provisions and the secrecy with which the deal was negotiated.

To the first one, the lack of independent analysis: there is a total absence of independent economic analysis around the benefits and concessions contained in the TPP. This was identified time and time again in public hearings. The best data we had was that there would have been a 0.7 per cent increase in GDP by 2030, based on a World Bank analysis. I had to look twice at that figure. It is not a lot, given what we are giving up. While the committee can hear a lot of expert witnesses, it is not the same as independent analysis, and most people recommended someone like the Productivity Commission. I think those sorts of reports should be made available to parliament not just before this committee considers the agreements but before they are signed and certainly before the legislation is endorsed. As the Australian Chamber of Commerce and Industry told the committee:

There is little academic study of the technical components of what is being negotiated, nor study of the outcomes of past negotiations to ensure their intended goals were achieved.

So I am pleased to see that recommendation in the final report.

Along with this, I would urge for greater transparency on the negotiation of these treaties. This is reflected in recommendation 1, where we call on the government to consider changing its approach so that security-cleared representatives from business and other organisations can see the positions that Australia is putting. There is no doubt that negotiations are done in a much less inclusive way here than in, for instance, Europe.

Where the committee did not agree and therefore we have a dissenting report is on the investor-state dispute settlement provisions. These are designed to give some protections for investors and provide a mechanism for resolving disputes. To bring an ISDS case, a foreign investor must believe that an arbitrary or capricious action of the government has caused them to lose their investment. However, effectively what ISDS does is allow private, non-Australian-based companies to take legal action against the Australian government, action that Australian businesses do not get to take. So it tilts the playing field away from Australian businesses. It also exposes the Australian government to potentially large, unfunded liabilities, depending on the decisions that an international tribunal makes about laws that have been passed in Australia. You have to wonder why we need ISDS in treaties with countries that have a strong rule of law, like the US. In June 2016 Labor said that a Labor government would not allow ISDS in future agreements, and that position has not changed.

I turn to the issue of workers' rights and safety. The TPP allowed a free flow of workers from countries which are signatories to the treaty. I note that there was vigorous questioning of both union witnesses and departmental officials about the level of skills testing that would be required for, for example, electricians. There were no assurances that satisfied me. While a shortage of certain workers is a legitimate reason for bringing in foreign workers, standards must apply. On that point of market need: the TPP gave access to temporary foreign labour without market testing. These temporary workers, brought in by contracted service providers, could be accredited by overseas processes rather than through mandatory skills assessment here in Australia. I personally would have liked our concerns to have been more firmly articulated in the final report because it has the potential to be yet another undermining of workers' health and safety, of community safety and of the wages system.

They are some of the issues that were heavily talked about during our hearings on the joint standing committee. Another issue that absorbed a lot of time was discussion around safe harbour legislation and provisions. The committee report recommended that the government progress safe harbour amendments in the proposed copyright amendment bill. This is an area where I fear the consequences of an ill-considered set of rules. They could be disastrous for Australian writers and creators.

Safe harbour provisions are designed to protect rights holders and internet service providers by stopping internet service providers from being sued for hosting illegally uploaded copyright content if they remove that content. Until now, our policies in Australia have made a distinction between organisations that provide the facilities for online services and those that actually provide the content itself. I think it is really important to keep this distinction, as content services have a different level of control than those entities that merely act as a conduit. So I worry about the consequences of proceeding with the proposed copyright amendment bill. I am concerned that disrupting an existing commercial environment which today allows content owners and creators to enter into commercial agreements for the use of the content. That is what they do now. Not only will these changes reduce the incentives for content providers to enter into agreements for the licensing of their services; they will also reduce incentives for those who are creating new content. I think a more holistic approach is required in reviewing the safe harbour scheme. We need to be very careful that decisions made in these agreements do not lead to a dimming of Australian voices and cultures.

The TPP is a bit of a moot point. We know the TPP is absolutely dead. We know that it is not going to proceed. But what is a concern is that the findings of our committee may be used as an excuse to proceed with other similar agreements. Some of the agreement was great, and the committee agreed on many things. We know the dairy industry would benefit. We know the cattle industry would benefit. We know the wine industry would benefit. But I think we always have to ask: 'At what cost? Who is the loser?' When you have a GDP improvement of 0.7 per cent over 15 years you have to wonder if maybe there is not a better deal that could be done for Australia. After all, we are in there negotiating. If we allowed Australian businesses, farmers and producers of all types to be more involved in the behind-the-scenes negotiations with the appropriate security clearance as they do in the European Union then we would no doubt get a much better result with far fewer downsides. The one area where there cannot be negotiation is on ISDS. That should not ever be part of any of the deals that we do.