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Wednesday, 11 August 2004
Page: 26206


Senator BROWN (6:04 PM) —I thank Senator Nettle. This amendment is titled `Reservation to agreement'. It is extremely important for empowering this parliament. As I said earlier in the day, it is very important that the Labor Party look carefully at it because it is putting forward a plan to improve the accountability to parliament within the terms of the free trade agreement. The free trade agreement gives both parties, Australia and the United States, the ability to make determinations, reservations—as the term is—or interpretive declarations under international form and law to clarify matters within the agreement before the agreement comes into effect.

The Greens' amendment clarifies some of the critical matters that have been worrying the Australian public, business groups variously, the opposition and community groups. If the committee will bear with me, I will read the amendment out because it is self-explanatory. It states:

(1) Before the entry into force of the ... Agreement ... the Commonwealth is required by this section to make a reservation or interpretive declaration in the terms set out in subsections (2) to (10).

Here we go—first of all relating to the Pharmaceutical Benefits Scheme. This would be the interpretation set by Australia, by the Commonwealth, by this parliament, of what is now fuzz, indeterminate words and unexplained components of the agreement if we were to let it stand. The interpretation is set out in this amendment, and this is the interpretation that will stand as if the Labor Party supports this Greens' amendment along with our friends on the crossbench. It states:

(2) Nothing in the Agreement is contrary to, or is to be interpreted in a way which undermines the objectives of, the National Medicines Policy and in particular the first objective of that Policy which is to ensure timely access to the medicines that Australians need, at a cost individuals and the community can afford.

(3) Nothing in the Agreement is contrary to, or is to be interpreted in a way which undermines, the Declaration on the TRIPS agreement

that is, the international agreement on intellectual property—

and public health adopted at the Ministerial Conference of the World Trade Organization at Doha on 14 November 2001.

(4) Article 17.10.4 of the Agreement must not be interpreted so as to permit the practice of “evergreening” brand name pharmaceutical products.

(5) For the purposes of subsection (4), evergreening means the practice whereby a brand-name manufacturer stockpiles patent protection, for the purpose of extending the period of time for which patent protection is granted, by obtaining separate patents on multiple attributes of a single product.

Finally, under the Pharmaceutical Benefits Scheme interpretation, it states:

(6) The review process set out in Article 2(f) of annex 2-C of the Agreement is to be interpreted as referring to a process which is not binding.

That means that if a `review process'—and, if I heard Four Corners properly the other night, in America that includes an appeal process—makes a determination which cuts across the matters that I have just read out under this amendment, it would not be binding.

The second interpretation subclause is to do with environment and health laws which are affected by the free trade agreement. Under the Greens' amendment they would be interpreted this way:

(7) Annex 11-B of the Agreement is to be interpreted so that regulatory actions by the Commonwealth, a State or a local government, designed and applied to achieve legitimate public welfare objectives, including the protection of public health, safety, or the environment, will not constitute indirect expropriations.

That means that, where any level of government in Australia legislates for good health, safety or the environment, they cannot be sued by a United States corporation. That is pretty important and sensible stuff. It further states:

(8) Under Article 11.16 of the Agreement, consultations on investor-state dispute settlement, on any matter, will not include arbitration between an investor and a party.

In other words, as a result of a lawsuit against the government, again, Australian taxpayers cannot be forced to pay thousands, millions or billions of dollars to a US corporation that is aggrieved because representatives in Australia have made a law for the good of the country. We then come to the issue of local content. The interpretation in the Greens' amendment runs this way:

(9) Nothing in the Agreement is contrary to, or is to be interpreted as infringing, Australia's right to ensure local content in broadcasting and audiovisual services, including new media formats, at or above the standard specified in section 9 of the Broadcasting Services (Australian Content) Standard 1999 or section 5 of the Television Program Standard 23—Australian Content in Advertising as in force on 4 August 2004.

Then there are some explanatory notes. That interpretation is saying that nothing in this agreement will bind the hands of this parliament from legislating to protect or increase—even if it wants to in the future—requirements for local content in broadcasting in this country. Again, that is very sensible stuff, and this is a subclause that clears the air. We move to quarantine. The Greens' amendment states:

(10) The Committee on Sanitary and Phytosanitary Matters established under Article 7.4 of the Agreement and the Standing Technical Working Group on Animal and Plant Health Measures established under Annex 7-A of the Agreement will adopt the precautionary principle when assessing bilateral animal and plant health matters, notwithstanding Article 4(a) of Annex 7-A of the Agreement.

That means that, where a determination is to be made under the free trade agreement about the quarantine safety of Australia, the precautionary principle is to be adopted. It has to be proven to be safe rather than the country having to prove it is safe or the inverse of the precautionary principle: `Let it happen and stop it after it has been shown to be unsafe and damaging and very often irremediable.'

Finally, there are disallowance subclauses in the Greens' amendment. The first one states:

An instrument—

that is, basically a decision—

that gives effect to, or interprets, any provision of the agreement is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

That is so important. It means that a decision made by a joint committee, which is yet to be set up under the free trade agreement but appointed outside the parliament, with trade in mind—and there is no other value mentioned in the setting up of that committee—will not be able to bind this parliament. Hugely important decisions about Australia's future and its welfare, coming from unelected people who represent the two governments of the day, will have to first come to this parliament and be accepted by both houses of parliament before they stand. This is the democracy part in the Greens' amendment. It says that we will not have parliament usurped, we will insist on democracy, we will insist that these tribunals—these committees, these working groups—which are set up under the free trade agreement do not override the elected parliament of the day. If they do make a decision then it has to come before both houses of parliament and be adopted before it becomes law. The second disallowance subclause states:

(12) The minister—

that is, the Minister for Trade—

must cause the terms of the reservation or interpretive declaration required by subsection (1) to be tabled in both Houses of the Parliament not later than two sitting weeks before the Commonwealth signs the Agreement.

That means that the legislation, to give effect to parliamentary supervision of what comes out of the free trade agreement, must be brought before both houses of parliament before the Commonwealth signs the agreement. The final disallowance subclause states:

(13) The reservation or interpretive declaration required by subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

This is supremely democratic. It is democracy at work. It gives the elected representatives of this nation the ability to decide whether or not they are going to be ruled over by a free trade agreement that does not facilitate democracy. In fact, the free trade agreement steals it with the buzz words that are used and transfers it to an ayatollah for trade that is yet to be named, that is set up by the two governments working outside their parliaments to make hugely enormous determinations in the future. It can then appoint people right down the line to make decisions on everything from the future of manufacturing jobs in the country to the future of our environment, quarantine, intellectual property and local content. This is a very important amendment. It is pure commonsense. It is a declaration of democracy by the Greens and it needs to be thought about very clearly by the opposition. I appeal to the opposition to take it seriously and to join in this debate with the support this all-important amendment requires or, if it does not, to say why not.