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Tuesday, 10 August 2004
Page: 26041


Senator HILL (Minister for Defence) (5:44 PM) —Senator Harris wanted me to assure him that the document that he was waving around was the real document and that it had not been doctored in some way afterwards. I am not sure which one he was waving around, but the one that I think we all have was signed by Minister Vaile and US Trade Representative Zoellick in Washington. Senator Harris's copy certainly looks like the one I have. That was the final text, and that is it. I do not think there is any conspiracy in that regard. There were earlier drafts and the final draft was scrubbed, but the text that was signed I think is the text that Senator Harris and I have.

He was concerned about the expropriation provisions. As I understand it, the domestic law of Australia is not changed in that regard and, as far as the international relationship is concerned, the agreement in effect restates what is customary international law. Article 11.7 `Expropriation and compensation' states:

Neither Party may expropriate or nationalise a covered investment either directly or indirectly through measures equivalent to expropriation or nationalisation ... except:

(a) for a public purpose ...

But I think of particular importance to Senator Harris is clause (c), which says it must be:

on payment of prompt, adequate, and effective compensation—

which is the domestic law. Then you get to, I can see, the more complex issue of whether an action is expropriation or not in terms of a regulation that government might set for some good purpose that can have an indirect detrimental consequence on somebody's investment or business. Some of those issues are not straightforward. They have to be examined in the detail of every individual case, but I think the important thing is that when we look to annex 11-B, to which I think Senator Harris was referring, I am told that that is consistent with what is Australia's current domestic law. There is no secret agenda in that. It of course deals with the situation of indirect expropriation. I could read it but I do not think there is much point in doing so. If there is a problem of interpretation as far as Senator Harris is concerned, I am happy to have a go at it but perhaps it would be more useful to get some form of official interpretation for him or his constituents who may be concerned. The important thing is that I am told that it is consistent with the existing domestic law.

Senator Ridgeway is difficult to answer. I gained the impression from listening to Senator Ridgeway—and I guess it reflects the Democrats position—that they simply do not believe in these agreements. They believe that, at every step when you make a concession to another state in order to get the advantage of a trade benefit, the concession is too great a risk to bear. To talk about I think it was Lifeline as being under threat—and I do not see Senator Ridgeway as an alarmist—is an unhelpful contribution.

This agreement is designed to expand trade opportunities by reducing barriers. Each side agrees to do that and each side has no-go zones and you see if you can determine an outcome that, as I said, can facilitate an economic growth in trade whilst preserving what you believe is important—in our instance in areas such as the environment, public health, the cultural sector, quarantine and others. We believe we have done that appropriately, and it has been subject to two parliamentary inquiries. I think it is reasonable to assume that this debate is now on the basis of a well informed public. As I said, I do not think we will ever convince the Democrats, but it is the government's view that we have been able to protect what is important whilst at the same time providing new opportunities for economic growth, which was our objective. Our objective was always a win-win outcome, and we believe this agreement achieves that goal. Senator Ridgeway raised quarantine, but I thought, with respect, the issues he raised were ones that I had addressed both earlier today and last night, and there is not much point in repeating what I said.