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Thursday, 12 February 2015
Page: 549

Senator LUDLAM (Western Australia) (09:31): It does not give me a great deal of pleasure to rise to speak to the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, but I want to congratulate my colleague Senator Whish-Wilson for bringing this bill forward. It still leaves me somewhat speechless that behind the scenes the Australian executive—through our trade minister and senior trade bureaucrats—are negotiating a treaty that would see Australia effectively subordinate state and national law to global corporate trade law. What this bill seeks to do is take on one element of the Trans-Pacific Partnership, which is being negotiated in secret as we speak and which, depending on which rumours you believe, may be as close as two or three weeks away from being signed and then presented to this parliament. This is as a trade agreement being signed under cover of total darkness. Isn't it interesting that when the global community gets together to negotiate difficult and complex environmental agreements that happens out in the open? The negotiators from various parties trying to hammer out climate change agreements have to do that in open forum. Sure, there are deals done in back rooms and all the usual things that go on, but everybody knows what it is that Australia would be potentially signing up to. When it comes to global trade agreements, not even the minister necessarily knows.

I think that the first thing that we need to get very clear about when we consider the Trans-Pacific Partnership is that this is not a free trade agreement in the sense that we are used to. It is not even being negotiated between sovereign governments. It is actually being negotiated between large corporate entities in various sectors, and those corporations—whether big pharma, rights holders, the biotechnology industry or agriculture; take your pick—are then handing negotiating positions to trade negotiators in various countries and having those positions hammered into a text. This is an agreement being hammered out by global corporations in their benefit. It is an investors' rights agreement; it is not a free trade agreement.

We only know the little that we know about the actual text of the Trans-Pacific Partnership because whistleblowers have leaked draft chapters of the text—two iterations of the IP chapter and one iteration of the chapter relating to environmental protection—to the WikiLeaks website. While that organisation has been hammered from all quarters, it has never been proven to be more important than now as the place where we can go to find out exactly what is being done in our name.

So I congratulate Senator Whish-Wilson for bringing forward this very targeted bill. It obviously does not go to the entire scope of the Trans-Pacific Partnership, because nobody will tell us exactly what that is, but it does go to the very specific notion of investor-state dispute mechanisms—one of those acronyms that might make your eyes glaze over, until you realise that what it allows to happen would be for multinational corporations to sue sovereign governments. This parliament considers itself sovereign, and I know from personal experience that the mob at the Tent Embassy and around the country—traditional owners—would take very strong issue with that. The business of sovereignty in this country is probably the most important piece of unfinished business for us to confront. But the fact is that, from the prayers that were just read in, you would assume that those from all sides of this parliament come in here charged with making and amending laws and providing good governance in the interests of everyone across this continent. But what happens if the laws that we pass in here are found to be offensive to the profit-generating activities of corporations on the other side of the world? The Australian government—as is actually occurring, although I am not sure many people are aware of it—could be dragged into a tribunal of unelected foreign trade bureaucrats, sued and forced to amend the affecting regulation if it impinges on the profits of a company on the other side of the world.

It sounds insane, but that is in fact precisely what is being negotiated behind closed doors by the Australian government and, when they were in government, by the Australian Labor Party. One of the things that I hope that Senator Carr or whoever speaks on behalf of the Labor Party will do when they are given the opportunity is put some cards on the table and make it very clear where the ALP stand. My understanding is that they would be in support of Senator Whish-Wilson's bill. When they were in government, I think they did have form in opposing investor-state dispute mechanisms that would allow state or federal governments to be sued by corporations who found themselves offended, but it is not at all clear where they stand now. So that is another reason why I would like to thank Senator Whish-Wilson for bringing this debate forward today.

Professor Joseph Stiglitz, who is a Nobel laureate in economics and somebody who spends a fair bit of time thinking about these things, said the following:

The TPP proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible.

The investor state dispute resolution mechanisms should not be shrouded in mystery to the general public, while the same provisions are routinely discussed with advisors to big corporations.

None of this is being done in the national interest. This is an agreement being hammered out in the corporate interest. If somebody as esteemed in his field as Professor Stiglitz is of that view, we should take that very, very seriously.

We are fortunate, as I said to those staff, campaigners and journalists in the publishing organisation WikiLeaks, that they have had the bravery to have stayed in business despite the extraordinary persecution that has been meted out to them so that we do have some sense of what is in the IP chapters. There are some very specific concerns. I want to concentrate today mostly on an area that is very dear to me: areas around freedom of information, freedom of speech and digital rights, which are placed explicitly under threat by what we find contained in the IP chapter of the Trans-Pacific Partnership and also by what happens when you bring investor-state dispute mechanisms to bear on some of these issues. A lot of damage was done when Australia signed the Australia-US Free Trade Agreement, and I think it has been government policy to try to avoid, if possible, forcing any amendments into domestic law as a result of the IP chapter. It is not at all clear whether that is actually the case. We may be faced with a bill which we will be told, on a 'take it or leave it' basis, that this parliament has to pass.

I would also say, for those who may be following this debate from outside and may be a bit confused by the government's rhetoric of due process, that we have the treaties committee, which is designed to evaluate mechanisms like the TPP. I served on the treaties committee for 5½ years—nearly six years. That committee will not get a copy of the Trans-Pacific Partnership until after the government signs it. And while the committee, in my experience, does apply a very critical eye to these things, the government is not bound to accept any of its recommendations. The treaties committee will do the best that it can, but the agreement will already have been signed—trade ministers' and prime ministers' signatures will already be on the document—by the time Australia's accountability and oversight mechanisms get the chance to take a look at it. And then it will be a case of this parliament being told—effectively with a gun to its head—that it has to pass the enabling legislation to bring some of these provisions into force. What an utterly backwards and antiquated process for dealing with such an important issue.

So, we have already done a certain amount of damage in Australian law. We effectively imported some of the worst aspects of US IP law, without their protections. The US has fair-use clauses, which mean that you cannot be prosecuted under US intellectual property law for doing stuff that is quite clearly not impinging on profits—commercial-scale piracy and that kind of stuff. In Australia the situation is very much unclear, and it appears that the Trans-Pacific Partnership, from what we know of the IP chapters, will make that situation much worse. And that is my principal question of what the rush is in bringing in mandatory data retention legislation—not necessarily so that the Federal Police can go and prosecute people who are found to be file sharing but so that rights holders from the US and elsewhere can go and trawl the metadata records of your teenage kids and send them threatening legal letters and the threat of gargantuan fines unless they pay up, or lengthy court cases unless they pay enormous fines. That is the kind of world that we are potentially stepping into here.

The document as it stands contains disproportionate and inappropriate enforcement provisions. It is all about enforcing the rights of rights holders, most of them from overseas, and there is nothing at all about public interest protections. Just to give you one example, a couple of years ago the Australian Law Reform Commission, partly in response to some of the damaging provisions that we embedded in Australian law after the Australia-US Free Trade Agreement was brought about, conducted quite a detailed inquiry into the copyright regime that prevails here in Australia. One of the recommendations they made at the time was to bring fair-use provisions—to effectively import some of the protective measures that exist in US law. We have the punitive stuff; we do not have the protective provisions.

And the fact is that if we were to now do so—if we sign up to the Trans-Pacific Partnership, which then embeds all kinds of property rights that did not exist before, for the rights holders—if this parliament then decided to do as the Australian Law Reform Commission recommended and institute a fair-use regime, that could be struck down by unelected trade bureaucrats in a tribunal, and the Australian government might choose to not even contest what would likely be a very expensive and extensive arbitral process. So, it may be that Attorney-General George Brandis, who is quite clearly listening only to the rights holders, does not even decide to contest it. It is that chilling effect on domestic legislation that is such an important and terrifying part of what this government is negotiating behind the scenes. And it looks like extension of copyright terms is in the agreement as well. That effectively just takes material out of the public domain for decades. It makes the work of cultural institutions and collection agencies that much harder, and it robs us of our own culture. 'Copyright term extensions' sounds arcane, but basically it just means all this rich cultural material simply going dark, archival institutions not even being able to digitise or make copies of material that in analogue form is degrading or being lost.

So, we have a very significant problem, and it is one that this parliament will not be able to address until it is far too late. I think one of the simplest things we could do is bring forward this bill for a vote today and pass into Australian domestic law protections against any Australian government signing us up to investor-state dispute mechanisms. That is the thing to do if you are concerned about fracking, if you are concerned about advertising tobacco products in places where kids can see it, if you are concerned about a ban on uranium mining, for example, or any of those issues where communities come into collision with powerful corporate interests, whether it be tobacco, big pharma, genetically modified organisms in our food, or the fracking industry—take your pick. Anywhere that these major collisions between the corporate interest and the public interest are underway, these very same corporations are seeking that power to sue us, to sue this parliament, to sue state parliaments.

Nobody on the government side of this chamber will make eye contact this morning because they have not read the agreement either. They have no idea what is in it. They just hear from our trade bureaucrats: 'It's fine; we're looking after the national interest. It's a free trade agreement like nothing you've ever seen before.' Well, at least that part is true.

But we owe it to ourselves and to our constituents, and to the future flexibility of this legislature to be able to do its job, to protect ourselves from predator capitalism and from these corporate interests, unelected, on the other side of the world, who would like nothing more than to subordinate the law-making power of this chamber and the other place to their own interests. All you would need to prove—and not even really prove; all you would need to be able to show—is your future potential profits in fracking underneath a residential subdivision or farmland, your future potential profits in opening up a carcinogenic uranium mine or your future profits in being able to track down and prosecute teenagers BitTorrenting stuff that they cannot get any other way, to be able to sue a government, to sue this parliament.

So I hope that we will see a measured, intelligent, evidence based debate on this this morning. I hope that the Labor Party will come clean with the Australian population about what its policy actually is. We will be listening beyond words, and we will be looking for a voting intention. And I hope the government might want to stand up and maybe even table a draft of the Trans-Pacific Partnership Agreement. That is not a serious expectation, but how about it? If this document is so benign, if it is in the public interest, if it is going to lead to a massive increase in GDP, if it is going to be a huge benefit to our agricultural sector or whoever else you think you are out there negotiating on behalf of, then put it into the daylight. Let us see the document. Let us see what is being negotiated in our names behind closed doors.

This bill should pass into law. It will not solve many of the issues contained in the Trans-Pacific Partnership, if this government is so reckless as to sign on. We will have to fight that through this parliament and in the community. But, once these agreements are signed, they are perilously difficult to unravel. They are impossible to wind back—because we will have granted property rights effectively across all of our collective futures to these corporations that only care about property rights and the profit motive.

It is our job, I think, to protect the public interest, not the commercial interest and the corporate interest. Our job in here today is to protect the public interest. So I look forward to a resolution of this matter so that we can send this bill to the other place for assent and protect ourselves from making potentially one of the most reckless and dangerous mistakes any parliament could make, which is to handcuff itself from its future legislative obligations to the people of this country.