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Wednesday, 11 August 2004
Page: 26099


Senator RIDGEWAY (10:33 AM) —I find that quite an extraordinary response from the minister to what are legitimate questions in relation to not only the amendment put forward but also the enabling legislation as it relates to the operation of the free trade agreement with the United States. The minister may consider this a philosophical or academic argument; the reality is that he keeps avoiding the question of what the free trade agreement talks about in terms of the consultation process being triggered. I do not believe he has provided any explanation at all, and the amendment goes to the extent of the enabling legislation to deal with that particular issue.

Presumably the officials sitting there can provide some advice. If they were involved in talks or negotiations on this particular article they must have had something in mind. Could they please explain what it is that they had in mind so that the parliament at least has some confidence in the consultation process that has been provided in the event that there might be a dispute? I acknowledge that the minister keeps saying that there is no right for an investor to an investor-state dispute resolution mechanism in this free trade agreement as compared with the North American Free Trade Agreement. But he still has not answered the question about article 11.16.1, which deals with triggering a consultation process.

I want to ask him some very specific questions, because he seems to think that the Australian Democrats have taken a very negative view. He has relied upon some of the real examples—not alarmist, not fanciful—that are happening in North America under NAFTA but he refers to Australian corporations. I would ask him and those who wrote up the agreement as it currently stands, which this amendment tries to deal with: in the context of Australian corporations, how does he envisage this particular consultation process working in practice? Can he give any examples that the officials or negotiators may have had in mind at the time? Is it possible and does he envisage that, under the triggered consultation process, US law, regulation, procedure, requirement or practice at all levels of government are challengeable in some form?

Isn't this proposed body, the joint committee, just another way of having private enforcement of a right granted to the US or for that matter an Australian corporation? How open and transparent will that arbitration body be, given that in many respects it is to the exclusion of the Australian people and therefore not within reach of the Australian government? I think Australians deserve to know how open that process will be. He believes that Australian corporations can talk to the Australian government and therefore the US counterpart in resolving a dispute. But how open and transparent will that process be?

I ask this question as well: in many instances aren't we going to find possible disputes concerning public policy being resolved in a private rather than a public way? How does the public get to contribute to that process? Ultimately we are talking about a body being established to deal with disputes that may arise concerning the way in which our laws, regulations and policies work in relation to the Australian people, so isn't that a fair and legitimate question to ask? Why won't the minister answer the real question, which is about article 11.16.1, in relation to a consultation process being triggered? Does he envisage—and did the negotiators envisage—that something might occur in the future? If so, what examples did they have in mind? It is a legitimate question and I think the government is obliged to answer it.