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Wednesday, 11 August 2004
Page: 26100


Senator BROWN (10:39 AM) —The minister gave a very telling reprimand to the Senate a while ago when he said that this Senate committee should not be discussing the free trade agreement and that it was something for the Howard government executive and the Bush administration to deal with. How dare the minister come in here and tell this Senate that it should not be discussing the free trade agreement and its impact on Australians. What an arrogance it is of Minister Hill, representing Prime Minister Howard, to tell this Senate that it should get on with the enabling legislation here and ignore the free trade agreement. What a licence it is—and an affront to democracy—that the government should be lecturing the Senate about its responsibilities in such as way as to say, `Drop them, leave them and confine yourselves to what we want.' The arrogance of this government is becoming insufferable. I am talking not only of its arrogant attitude towards the people of this country but of its pompous arrogance towards the Senate because it does not want the free trade agreement to be debated in this place. How dare the government!

If the government believes that it is going to coerce the Greens—or, I suspect, other members of the crossbench—into desisting their questioning on matters which are important to the whole community in that free trade agreement then it is picking on the wrong people. I can tell the committee that there is no intention by the Greens to filibuster here at all. We want to get on with other matters. The difficulty here, of course, is the failure of the minister to provide answers to very simple questions. If you come back to it and try again, then so be it. If the government were providing answers here to questions about what this free trade agreement means and how it is going to work and defining the fuzzy provisions which are riddled through this treaty then we could move on.

The treaty is a huge document. What troubles me greatly is that in the next couple of days we are not going to even touch on many of the issues. Look at copyright of simple things like CDs. There are piracy provisions in here which mean that citizens who simply copy things without any commercial intent are subject to draconian retribution. We are not even going to get to discuss things like that or to ask what, specifically, the provision means. That has all been decided by this government in secret meetings with the Bush administration. And the government comes in here now and says to the Senate: `You mustn't discuss this free trade agreement. We're the authority here. This parliament doesn't count.' Well, they are talking to the wrong people.

Then the minister—verballing, as ever—gets up and says, `The Greens oppose growth.' Growth is a beautiful thing. You only have to look at any child to know that. But when you get uneven growth, when you get one component of society growing disproportionately to the rest, in medical terms that is called a tumour, and it can be fatal. The Greens are very much in favour of even, healthy growth—not unbridled growth favouring the already powerful in society—but keeping some restriction on that while encouraging free enterprise.

We make no apology for that. That is what parliaments are about. If you believe in unbridled growth, which is ultimately self-defeating in the way I have just described, then you abolish the parliament. That is effectively what the minister is arguing at the moment: this parliament should be abolished as far as this free trade agreement is concerned; it is subsidiary and it does not count. As I said, tell that to somebody else.

Coming back to chapter 21 of the free trade agreement and the dispute resolution mechanism, section B—which is headed just that: `Dispute Settlement Proceedings'— article 21.2 says that the US administration and the Australian administration will set up a process for the settlement or the avoidance of disputes to look at what the dispute is and then to establish penalties if either side has been found remiss in carrying out the provisions of the free trade agreement. The chap-ter says that a panel will be set up. Article 21.3, `Administration of Dispute Settlement Proceedings', paragraph 2 says:

The Joint Committee—

that is, the faceless appointees of the executives—

shall establish the amounts of remuneration and expenses to be paid to panellists.

Who is going to pay for that? It is the taxpayers. The very people who are being sidelined, who should have no role in this process, are being asked to pay for it. We have a court system which is paid for gladly by the Australian people because they have access to it. But here we have a fake court, a fabricated court, set up to make these almighty decisions affecting the people of Australia and the ordinary folk in the United States which is paid for by them but to which they have no access.

Chapter 21 says a little further on that the panel will consider whether or not to accept requests by nongovernmental entities to have an input to the dispute. So, if the panel wants to, it totally ignores everybody. You can put up a submission, but do not expect a hearing and do not expect that submission to be listened to. Then it goes on to talk about the choice of the forum, saying:

Where a dispute regarding any matter arises under this Agreement and under another trade agreement to which both Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.

So whoever complains—and I can assure you that, because of the disparity between the sizes and the numbers of companies, it will largely be a United States entity—will select the forum in which to settle the dispute. It goes on:

Once the complaining Party has requested a panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the others.

Most of these hearings are going to be in the United States, not in Australia.

The chapter goes on to talk about consultations and about the establishment of the panel. It says:

Unless the Parties agree otherwise:

(a) The panel shall have three members.

(b) Each Party shall appoint one panellist, in consultation with the other Party, within 30 days after the matter has been referred to a panel. If a Party fails to appoint a panellist within such period, a panellist shall be selected by lot from the contingent list established under paragraph 4 to serve as the panellist appointed by that Party.

(c) The Parties shall endeavour to agree on a third panellist who shall serve as chair.

(d) If the Parties are unable to agree on the chair within 30 days ... the chair shall be selected by lot ...

So we now have a lottery entering into this dispute resolution system. No rules are set down; whoever draws the long straw is selected. It says:

The date of establishment of the panel shall be the date on which the chair is appointed.

And on it goes. There are rules of procedure, which include the protection of confidential information. That raises the question: what about the reach of freedom of information into this complex, unestablished, undefined, arbitrary arbitration system? Will the freedom of information law of the United States, established way back in 1963—the Swedes were there long before, but nevertheless it was a trailblazing piece of legislation—have reach into this free trade dispute apparatus and indeed into the whole apparatus set up here? The same goes for the Australian freedom of information set-up. I ask the minister: does the complex apparatus being set up here come within the reach of the freedom of information laws of this country or of the United States?