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Thursday, 12 August 2004
Page: 26431


Senator RIDGEWAY (10:55 PM) —I move Australian Democrats amendment (3) on sheet 4361:

(3) Clause 2, page 1 (lines 9 to 12), omit subclause (1) (but not the table), substitute:

(1) Each provision of this Act specified in column 1 of the table commences at the later date of either:

(a) the day as specified in accordance with column 2; or

(b) the date after which all of the following have been completed:

(i) Australia and the United States have entered into reciprocal agreements pursuant to the Foreign Judgements Act 1991;

(ii) the United States signs and ratifies the Optional Protocol to the International Covenant on Civil and Political Rights, which is administered by the Human Rights Committee;

(iii) the United States signs and ratifies the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty;

(iv) Australia and the United States sign and ratify the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women, done at New York on 18 December 1979;

(v) Australia and the United States sign and ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;

(vi) the United States ratifies the Rome Statute of the International Criminal Court;

(vii) the United States permits David Hicks and Mamdouh Habib, who are currently detained at Guantanamo Bay, to be repatriated to Australia;

(viii) Australia and the United States ratify the Kyoto Protocol to the United Nations Framework Convention on Climate Change (of May 1992).

I will talk very briefly about this amendment as I am mindful of the time. This amendment is about making the commencement of the US Free Trade Agreement Implementation Bill 2004 conditional upon the fulfilment of various other international obligations. The government are intent on pursuing bilateral trade deals and have been criticised for their blind pursuit of this approach rather than focusing their attention on efforts in the multilateral area, where there is greater scope for benefits for both Australian producers and those of the developing world.

As Jagdish Bhagwati has stated, the effect of this proliferation of bilateral trade deals is like that of a `spaghetti bowl', and I have to agree with him because that is the outcome. The more free trade agreements that are signed, the more incompatible the standards and rules of origin will become. As it stands, crisscrossing rules of origin requirements are making it harder and harder for Australian businesses, especially small to medium enterprises, to comply with the various requirements of various countries. It probably will not be a big problem for the larger corporations; they will be fine. But what about small and medium businesses and their capacity to sell their products in a wide variety of markets?

So in many respects the preferential trade deal approach by government is flawed. We should be concentrating our efforts on trade liberalisation through the World Trade Organisation to ensure that developments are uniform and open to all. Binding international obligations are an area of some concern to the Australian Democrats, hence this amendment. The fact is that both Australia and the US are citizens of the international community with all the rights and obligations that go along with that. Trade agreements are becoming more and more complex. They are now covering a range of social, cultural and environmental impacts that cross over into areas of international responsibilities, unlike any that existed in the past. Through FTAs such as this, we are carving up benefits for us and our mates but we also need to consider all of our international obligations.

This amendment seeks to make entry into force of the free trade agreement conditional upon the ratification of other international treaties. We should use our strong relationship and friendship with the US more effectively. A key characteristic of a good friendship is not merely blindly following along with whatever our friends decide to do. Friends are in the best position to let their mates know when they need to get their act together. In this regard, our government needs to take advantage of its strong friendship with the Bush administration—presuming it is there and it is a real one—to let them know that it is unacceptable for the US to take leadership in world affairs while not ratifying some of the most important international treaties operating in the world today. It seems to me that mates do not let mates get away with that sort of thing.

This amendment would ensure that the free trade agreement does not come into force—that is, the US would not get any benefits from the deal until they do a number of things. They ought to sign and ratify the optional protocol to the International Covenant on Civil and Political Rights, like many other Western nations. They ought to sign and ratify the second optional protocol to the International Covenant on Civil and Political Rights aimed at the abolition of the death penalty. Both Australia and the US ought to sign and ratify the optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women.

Both Australia and the US should sign and ratify the optional protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the United States ought to ratify the Rome Statute of the International Criminal Court. Given the way that events have transpired over the past few weeks, particularly in terms of relations between Britain and the United States, the United States ought to permit David Hicks and Mamdouh Habib, who are currently detained at Guantanamo Bay, to be repatriated to Australia. And both Australia and the United States ought to ratify the Kyoto protocol to the UN Framework Convention on Climate Change.

Some might think that these are laughable, but the reality is that free trade agreements, where they extend so far into social, environmental and cultural policy, ought to also deal with the standards that exist within societies across the world. If we are to have this spaghetti bowl arrangement across the world, with a series of trade agreements that go beyond just trade to the question of social policy within communities, part of that also has to be about making sure that the standards that we expect of one country ought to be applied to ourselves—that it is not just a one-way street.

We believe that it is entirely appropriate for Australia to use opportunities that may be presented in the free trade agreement to formalise a strong relationship with the US but that we should use our influence as best we can to encourage them to meet their important international responsibilities. Of particular note is a very important and timely matter in terms of the amendment relating to the Foreign Judgments Act. The negotiation of the free trade agreement would have been an ideal opportunity to lock reciprocal arrangements in place. It is important for corporate accountability and for the protection of Australian interests under this free trade agreement. Reciprocal arrangements such as would be required under this amendment would enable us to go after the assets of companies such as James Hardie in the United States.

This amendment requires that Australia and the United States enter reciprocal arrangements under the Foreign Judgments Act. It is designed to ensure that asbestos victims of James Hardie can obtain compensation. As my fellow senators will no doubt be aware, the New South Wales government has initiated an inquiry into the conduct of James Hardie Industries and their asbestos funding shortfall. This inquiry, headed by David Jackson QC, is currently hearing evidence. Although we will not see the final report until 21 September, it is clear that James Hardie will have an estimated $2 billion liability payable over the next 40 years for asbestos related injury to employees and customers. Back in 2001, they created a compensation fund of $293 million, which, they argued, would pay for all future claims. At about the same time—we all now know the story—it moved its headquarters to the Netherlands and all of the James Hardie assets are now in the Netherlands and the United States.

For any court to order that James Hardie pay the asbestos victims, Australia needs to enact the reciprocal foreign judgments legislation with either the United States or the Netherlands. We understand that the government is approaching the Netherlands about this. However, the government has not raised it with the United States, where most of the assets are being held. I believe that there is an opportunity to do so through the free trade agreement.

By supporting the amendment the Senate will be not only sending a very strong and powerful message but also increasing the prospects that the victims of James Hardie asbestos will be properly compensated. It will ensure that all Australian companies cannot just move offshore when they want to in order to avoid debts or to avoid liability or compensation to be awarded by Australian courts.