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Tuesday, 10 August 2004
Page: 25985


Senator BROWN (1:42 PM) —That sort of glib response is not going to help us. Let me give the full quote so that the minister can consider it and come back with a more informative and appropriate response. This quote comes from the statement issued by the six US environmental organisations. They say that the Australia-US free trade agreement:

... does not include an `investor suit' mechanism that permits foreign investors to directly challenge environmental laws and regulations before international tribunals. We welcome the exclusion of such a mechanism.

Senator Hill knows that, I know that and everybody who was here last night knows that. That deals with the glib response that he just gave. The groups go on to say:

However, the AUSFTA still explicitly leaves the door open to direct suits by multinational investors before ad-hoc international tribunals. Article 11.16.1 of the agreement permits the executives of the two governments to establish an ad-hoc investor suit process in particular cases, without any approval or oversight by either the U.S. Congress or the Australian parliament ...

So we get no say in it. The statement continues:

By allowing foreign investors to bypass domestic legal processes, investment suits permitted under this procedure would undermine democratic governance concerning public interest policies. Moreover, we—

that is, the environment groups, and it is their lawyers who are speaking to us through this letter—

continue to have significant concerns about the substantive rights provided to foreign investors in the AUSFTA. The agreement provides multinational businesses rights that are similar to those in NAFTA and other agreements. Under NAFTA, both Mexico and Canada have already lost cases ...

We then get to the quote I made earlier. So I say to the minister: yes, there is not an investor suit mechanism here, but there are other mechanisms by which governments under pressure from the corporate sector can establish ad hoc investor suit processes in particular cases without any approval or oversight by this parliament. Is that wrong? If so, let us have the minister show us where it is wrong. When these ad hoc decision-making processes are set up, decisions can bypass domestic legal processes. As the environment groups say, `investment suits permitted under this procedure would undermine democratic governance concerning public interest'. Is that wrong? If it is, let us have the minister explain how.