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Wednesday, 11 August 2004
Page: 26094


Senator BROWN (10:05 AM) —So we have the admission from the government that the free trade agreement, for all its thousand pages, does not tell this parliament how the handling of a dispute between this country and the United States, or between a corporation in this country and a corporation in the United States, under the free trade agreement is to be arbitrated. We do know it can be arbitrated—we have got that much from the minister. We must take it from the minister's reply that it will not be in an Australian court.


Senator Hill —How can you say that from what I said?


Senator BROWN —Because I asked you directly whether it would be in an Australian court, and you ducked it.


Senator Hill —I said it would be agreed between the state parties.


Senator BROWN —Then will it be in an Australian court?


Senator Hill —It depends on what the parties agree.


The TEMPORARY CHAIRMAN (Senator Knowles)—It would probably be easier if we had a formal response.


Senator BROWN —It is not much use the minister getting angry about this. It is very important material.


Senator Hill —I'm not angry. You just keep putting words in my mouth.


Senator BROWN —The minister says I'm putting words in his mouth but, no, I want words from his mouth that are direct.


Senator Hill —You take no notice of what is said on the other side.


Senator BROWN —The problem for the minister is that he is giving this committee no definition of the arbitration system at all. He says anything will do.


Senator Hill —I didn't say that.


Senator BROWN —Yes, you did.


Senator Hill —No, I didn't.


Senator BROWN —You did. The minister put no limit at all on the options available, but I can tell you he will not get to his feet and say it will be in an Australian court because that is not an option. He will not get to his feet and say it will be in a US court because that is not an option, nor are the appeals systems of those courts an option. This will be an arbitration system, set up artificially under the committee by the agreement of the governments and the corporations involved, outside the reach of our parliament. That is what is wrong here—there will be a new, concocted, unspecified legal system, to be fabricated by the executive of the day and the US executive of the day, outside the reach of this parliament.

If the government and the Labor Party think that the Greens, for one—and, I suspect, the Democrats and One Nation for two and three—are simply going to wash their hands of their responsibility to see that there are not judicial systems set up outside the reach of our own law, that executives can fabricate judicial systems to meet the needs of the day and that this parliament has no ability to reach into that fabrication and have a say in it, then they seriously underestimate the Greens and, I suspect, the whole crossbench. The Labor Party might agree that a future Howard government or some other government down the line can leave Australia's judicial system on the shelf, but we do not. It will be sidelined. The Americans are not going to agree to it arbitrating. While some new system is fabricated—and the minister will not specify what it is—it will be left to the corporations involved.

Where is this parliament if we transfer the ability to establish judicial processes to the corporate sector? That is effectively what is being instituted here, with the Labor Party in agreement—a judicial system that suits the corporate sector, outside the reach of citizens. They cannot enjoin in this as third parties. It will not be there. There will be no standing for ordinary Australians in this judicial system. It is concocted to get outside the reach of Australian law and to be outside the reach of Australian citizens and to be outside the reach of the Australian parliament, not least this Senate. Is the Labor Party really going to vote for that? How could the Labor Party vote for that, with all the ramifications that flow from it? Which Australian citizen is going to have access to this fabricated legal system outside the rules of 100 years, as laid down by this parliament and developed under the courts, right through to the High Court of this nation? No-one.

The aggrieved corporate interests—the powerful, the wealthy—through the executive, will be able to establish such a court and seek their own justice. The average Australian will be shut out of that justice. Therefore, this is tantamount to a national injustice. Parliaments, whether they be Australian or American, should not leave citizens without access to a judicial system for which those citizens will pay the price of judgment. But that is what this government, along with the American administration, has devised and that is what this Labor Party is going to vote for.

I will get a bit closer to it. I ask the minister to explain some matters in relation to the joint committee which is to overview the setting up of institutional arrangements and administration. In chapter 21 of the US-Australia free trade agreement, in section A, under the heading `Institutional Arrangements and Dispute Settlement'—and that is what we are about at the moment—it states:

The Parties hereby establish a Joint Committee to supervise the implementation of this Agreement and to review the trade relationship between the Parties.

(a) The Joint Committee shall be composed of government officials of each Party—

that is, each country—

and shall be co-chaired by (i) the United States Trade Representative for the United States and (ii) the Minister for Trade for Australia, or their respective designees.

First up, we have the joint committee which is going to be overseeing this dispute mechanism with the minister for trade on either side. Note here, all other values left aside, that this is about trade and money. It is not about jobs lost in the manufacturing industry or about representatives of workers. It is not about farmers' worries about quarantine. It is not about the environment, social justice, our health system, our Pharmaceutical Benefits Scheme or intellectual property. No, it is about the trade representatives from each country. Under the current system, Mr Vaile will become joint chair with Mr Zoellick, from the United States—or their respective designees. So they can name anybody they like.

The minister, without reference to parliament, can name anybody he—or in the future it may be a she—likes to head up this all-powerful arbitration system outside our courts, outside our parliament and outside the reach of Australians. Article 21.1(b) states that the joint committee—that is, those ministers or their respective designees, whomever they appoint:

... may establish and delegate responsibilities to ad hoc and standing committees, working groups, or other bodies, and seek the advice of non-governmental persons or groups.

This is dynamite stuff. We will have people whose primary interest is trade right in the thick of it, who are faceless to this parliament and unknown to this country, who are appointed by the trade minister of the day, setting up and delegating a whole range of other organisations to what is called under the agreement ad hoc `standing committees, working groups, or other bodies'. And they may `seek the advice of non-governmental persons or groups.' Who are they? They are people interested in trade and people in the corporate sector. The joint committee will:

(a) review the general functioning of this Agreement;

(b) review and consider specific matters related to the operation and implementation of this Agreement in the light of its objectives;

(c) facilitate the avoidance and settlement of disputes arising under this Agreement ...

There we have it: `facilitate the avoidance and settlement of disputes'. So, if you cannot avoid it, the joint committee, these faceless designees, will facilitate—that is, will set up the arbitration system for the settlement of disputes. They can:

... consider and adopt any amendment to this Agreement or other modification to the commitments therein, subject to completion of necessary legal procedures by each Party ...

I do not know what `subject to completion of necessary legal procedures' may mean, but these faceless, outside people, who are non-elected—there will be no input by Australians—will be able to `consider and adopt any amendment to the agreement' subject to whatever legal proceedings there are. If there are legal requirements to bring those before the parliament, I hope the minister will explain those requirements when I sit down.

The faceless, unelected person or persons may `as appropriate, issue interpretations of the agreement'. That is, they may interpret all the fuzz words and fuzz provisions of this agreement that have been the centre point of the debate. They may also:

... consider ways to further enhance trade relations between the Parties and to further the objectives of this Agreement ...

There is no mention there of social justice, of Indigenous concerns, of quarantine, of intellectual property or of cultural enhancement. Then we come to point (g), which says the committee may `take such other action as the parties may agree'—that is, as the executives outside the parliament may agree. They may take any action. The free trade agreement also says:

Unless the Parties agree otherwise, the Joint Committee shall convene:

(a) in regular session every year to review the general functioning of the Agreement and such other issues as the Parties may agree—

that is, the executive governments—

with such sessions to be held alternately in the territory of each Party—

that is, in Australia and the US. Point (b) continues:

... in special session within 30 days of the request of a Party, with such sessions to be held in the territory of the other Party or at such location as may be agreed by the Parties.

Now comes section 4:

The Joint Committee shall adopt its own rules of procedure.

There is nothing in here about what this joint committee is going to do or how it may proceed. This unelected, faceless, unnamed ayatollah of trade will be setting the rules, with no reference to parliament and no reference to the people of Australia. Senator Conroy's reaction to that says—


Senator Conroy —I was laughing at your terminology.


Senator BROWN —It is serious terminology. You may laugh, but I do not think there would be many Australians laughing with you if they understood it.


Senator Conroy —Ayatollah of trade? You're having too good a time there, Senator Brown.


Senator BROWN —Ayatollah of trade, tsar of trade—that is what is happening here. They are going to be appointed outside the reach of this parliament. What is more, the all-powerful body to be set up sets its own rules—we do not determine them in this parliament. The Labor Party is about to give the government the right to do that through this process. (Time expired)