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Thursday, 12 February 2015
Page: 558


Senator MILNE (TasmaniaLeader of the Australian Greens) (10:08): I rise today to say that this Australian parliament should ban investor-state dispute resolution clauses in any agreement that Australia signs. It is as pure and simple as that.

I find it extraordinary that a government that has made an art form out of talking about Operation Sovereign Borders—suggesting to the Australian community that it is somehow protecting Australia's sovereignty from refugees—would, in fact, be prepared to negotiate away our own national sovereignty. This is the agenda to say that democratically elected parliaments are subject to the demands of corporations; not only multinational corporations but also corporations based in any of the member states of any agreement which is signed. In the case of the Trans-Pacific Partnership that is Australia, the United States, Japan, New Zealand, Canada, Mexico, Peru, Chile, Singapore, Brunei, Malaysia and Vietnam.

The big point here is this: we have a parliament to make the laws that govern this country in the public interest. That is fundamentally what parliament is about. That is why we are elected to this place. And what is going on at the moment is a negotiation—in secret—of a text of a trade agreement that the Australian community cannot see. We have a government saying: 'Oh, this is normal. We do not share this with people. And actually, the parliament will get to look at it'—yes; after it has been signed off by cabinet, and the parliament then only has the right to either reject the entire treaty or not. The fact of the matter is, this government—Prime Minister Abbott, and the minister, Mr Robb—are negotiating away Australia's sovereignty, and placing it in the hands—particularly in this case—of corporations based in the United States. The shocking thing here is that the United States congress has access to the text. But we do not—we in this parliament do not. But if you are a member of congress in the United States, you can get access to the text—yes, you might have to sign a confidentiality agreement, but you get to see what it is that the American government is signing up to. But we do not. We have no idea. Nobody in Australia— nobody on the street, none of the stakeholders, none of us—knows exactly what is being signed up to. Secrecy, and a lack of transparency really matter in cases like the Trans-Pacific Partnership, and in investor-state dispute resolution.

Why am I saying that it is an assault on Australia's sovereignty, and an assault on decisions of the parliament and the judiciary? It is not just parliamentarians like the Greens who are objecting to this; the judiciary is worried as well—because the chilling effect of this is that corporations can sue a government if a government moves to take legislative action which undermines their profits. The classic case that Australians may be familiar with is the Phillip Morris case with the cigarette companies. It is already happening. Phillip Morris is suing Australia under an ISDS provision in a Hong Kong-Australia investment agreement. They have also sued Uruguay for increasing the size of health warnings on cigarette packets. A legal adviser to Uruguay said:

They are bullying us because we are small. This is like David and Goliath. But we will fight because it is our right and duty as a government to protect our citizens' health.

The New Zealand health minister has delayed the introduction of plain packaging in New Zealand because of the fear of being targeted with similar litigation. This is what is known as 'regulatory chill', where governments are afraid to legislate because it may lead to them being sued by a corporation. There are plenty of examples you can think of in Australia where that might happen. You might have it with companies who are wanting to engage in fracking, for example. If Australia brings in a ban, you can see where the companies—if they had already started their operations—would be suing the government—that is, suing the government for bringing in a regulation that protects public health. It is the same in terms of GMOs. We know Monsanto would love to be able to sue Australia because Tasmania has a GMO moratorium. We make sure we do not have GMOs in Tasmania. It is part of our commitment to the environment, but it is also part of our commitment to the clean, green and clever brand of Tasmania. Monsanto would love to sue on that occasion, and it has happened in other jurisdictions.

In the wake of the Fukushima disaster there was a groundswell of opposition to nuclear power in Germany. The government responded to this powerful movement by announcing a shutdown of the nuclear power industry. Soon after, Vattenfall—a Swedish utility that operates two nuclear plants in Germany—demanded compensation of 3.7 billion euros under the ISDS clause of a treaty on energy investments. In responding to the will of the people after what they saw after Fukushima, the government tried to act in the best interests of the health of the German people. And in came the corporation to say, 'You are undermining our profits out of nuclear power and therefore we want compensation.'

Oil and gas giant Lone Pine is suing the Canadian government for $250 million over Quebec's moratorium on fracking. That is enabled by the ISDS clauses in the North American Free Trade Agreement. Lone Pine alleges that the fracking moratorium reduces 'the expectation of a stable business and political environment'. Never mind the instability that will arise from fracking, including water insecurity, loss of farmland and—ultimately—global warming.

We are also seeing the NGOs coming out. The Sierra Club, in relation to this issue with Canada and Lone Pine, has said:

If a government is not even allowed to take a time out to study the impact—

of fracking—

without having to compensate a corporation, it puts a tremendous chill on a governments' ability to regulate in the public interest,

You also have a situation with Australian company OceanaGold in El Salvador. The Australian mining company is currently suing El Salvador for $301 million—the equivalent of half the education budget of a poor country, like El Salvador—because it refused to issue them with a gold-mining licence.

The situation goes back to 2004 when the company applied for a mining permit and assured the government that its work would be environmentally friendly and would provide jobs for local people. In the interim, the damages of mining proliferated in El Salvador. Ninety per cent of the country's surface water became contaminated. There was acid mine drainage, which has killed aquatic life and destroyed water quality in the region, and high rates of disease linked to arsenic poisoning. Currently, just two per cent of El Salvador's water is determined by the government to be of good quality. The El Salvador government said:

… the original application to mine did not meet environmental safety standards and that the proposed mine poses risks to the country's already limited water supplies. OceanaGold denies the risks, even though—

everybody knows—

gold mining is notorious for polluting waterways with arsenic mercury and other toxic metals.

As a result, the government failed to approve the proposal and instituted a moratorium on mining permits, as you would expect they would do in the public interest.

We are now seeing, under the ISDS clauses of the North American Free Trade Agreement, the company go after the El Salvador government. If the company succeeds, this will significantly reduce the funds available for health care and education. Even if Pacific Rim's claims fail—as many expect—this lawsuit has cost El Salvador almost $13,000,000 to date, which amounts to nearly its entire environment and natural resources spending in 2013.

That is going on already around the world and that is precisely what Australia is lining up for. I wonder how much it will cost the Australian government to defend the case against Philip Morris? It would be very interesting for the government to tell us how many precious taxpayer dollars have gone into taking it up to Philip Morris in the courts. Philip Morris is suing us for daring to legislate in the public interest about plain packaging. It would be good to hear from the government, in the course of this debate, the cost to the public purse.

I also want to point out that the Labor Party when it was in government wanted to sign up to the free trade agreement with Korea. But I am pleased to say, the minister of the day, Craig Emerson, came out and said:

We considered it long and hard, and we had to stare into the abyss of having to say, 'We can't conclude the agreement with Korea.' As a matter of principle and in keeping with the commitments that we made, we said to Korea, 'No, we cannot do it.'

He went on to say that they opposed it in the Korea FTA because:

… if we had agreed with it with Korea, it would be inevitable that we would have to agree with it within the Trans Pacific Partnership and other trade agreements. It was obvious to us, if we'd said yes to Korea, how do you say no to the United States?

The Labor government knew at the time that if they signed up to the trade deal with Korea with the ISDS in place it would be rolled over into the Trans-Pacific Partnership Agreement and that is precisely what is happening. It is disgraceful that now that Labor is in opposition they go along with the government's signing up to the free trade agreement with Korea with that investor-state dispute resolution clause in place.

That means Labor and the government in Australia are selling out Australia's sovereignty. They are doing it in secret; there is no text for anyone to see. What is even worse than the U.S. Congress having access to the text while we do not, is that they are asking us to sign off on the text here in Australia. They are asking us to sign it off in this parliament before it is concluded in the US; and the US reserves the right to change it if it does not suit US companies, the US Congress or their consultation process. So, if ever Australia were selling out our sovereignty to US and to corporations, it is under this agreement.

This is the agenda of the corporate world. This is the agenda about getting rid of regulation on a global scale to maximise their absolute destruction of the planet at the lowest possible price and at the expense of local people, jobs, wages, conditions—the whole lot. That is exactly what you are going to see in investor-state dispute resolution and it is why the Europeans are backing off this at a great rate. The European parliament has had a letter from 100 legal and other experts in the field saying, 'Back off this in Europe. It is a bad idea.' They have had to put it on hold and they have had to start looking at what it actually means in the European context to sign up to agreements with investor-state dispute resolution clauses in them.

But think about it: if you have a multinational corporation that is threatening a country, why would a parliament then move to legislate for a ban on fracking or to stop environmental destruction if they knew they were going to incur the wrath of the corporation suing them and the legal costs associated with defending it? The whole point of a parliament and sovereignty is for the parliament to be able to be the ultimate decision makers and for the courts to be the ultimate decision makers in terms of the legal framework, the laws of the country and how the laws of the country are implemented. Once you devolve that decision making power to corporations you might as well give up as a parliament and as a government—and that is precisely what the Abbott government is doing.

The Labor Party knows it. They had this experience with the Korean free trade deal and that is why, to their credit, they did not sign up. They knew what investor-state dispute resolution meant. Tragically, they have now gone onto the same bandwagon as the government. But the people of Australia do not like it. The people of Australia do not like the idea that once again we have a Liberal government that pretends to protect the sovereignty of Australia selling out to the United States and, in particular, selling out to multinational corporations because that is the consequence of what is going on. I have cited the examples—the Philip Morris case, the Canadian case of Lone Pine, the German antinuclear case and the El Salvadorian case of environmental regulation. The trouble with some senators on the other side is that they prefer ignorance and ideology to get in the way of evidence. The evidence I have presented stands alone.

Senator Ian Macdonald: Talk about ignorance and ideology!

The ACTING DEPUTY PRESIDENT : Senator Macdonald, in four minutes and six seconds you will get your turn. Please allow Senator Milne to speak.

Senator MILNE: I can tell you that the Chief Justice of the High Court of Australia, Justice Robert French, has raised his concerns that ISDS is effectively establishing a parallel legal system where Australian judges have no voice. Senator Macdonald thinks, obviously, that he knows better than the Chief Justice of the High Court of Australia, Justice Robert French. But I think, Mr Acting Deputy President, that when you have the Chief Justice saying that what you are doing is selling out the sovereignty of the Australian parliament and the Australian legal system, you should start thinking about that. When the Chief Justice is saying that the ISDS is setting up a parallel legal system where Australian judges have no voice, that should be of major concern to Australians. People are already worried that this government is governing for the big end of town. We are seeing it—absolutely—when it comes to their refusal to crack down on tax avoidance; in the huff and puff of the Treasurer before the G20—all about tax avoidance—until we had to ask for a delay in Australia actually engaging in the exchange of information around the world that would lead to a crackdown of tax avoidance. We saw it in MYEFO before Christmas: the tax avoidance measures that were in that document were removed. We are seeing it left, right and centre.

The two greatest threats to humanity and to the planet are the growing inequality around the world in the accumulation of wealth, and global warming. Those two things together are driving massive social unrest and ecological destruction. And the people driving it are the corporate world—the one per cent who own the vast majority of the Earth's resources now, and their wealth, want to secure a regulatory environment which is lowest common denominator, and they want to use these investor-state dispute resolution clauses to do it. This is a dangerous assault on the integrity and capacity of the Australian parliament to govern in the best interests of the Australian people, for our wellbeing and our health. It is being done in secret, handing over to the United States the right to actually change the text—after the Australian parliament has signed off on it. And we will be subject to it after that. What sort of government acts as a doormat to that kind of agreement? I can tell you which sort of government: it is the Abbott government. It is the very people who pretend they are interested in Operation Sovereign Borders, while actually undermining the sovereignty of our nation in a very frightening way.

We only have to look at what is going on with the power of the corporates. We have to take our democracy back, and one way of taking our democracy back is banning investor-state dispute resolution clauses in any agreement that Australia signs. That is the way we take our democracy back, that is the way we restore the sovereignty of our parliament and our legal system, and that is the way we prevent the multinational corporations of the planet from overseeing the best interests of Australian and the environment. And if we do not, we are going to see billions of taxpayers' dollars over the years being set aside in legal cases. And the culprits responsible are sitting in this parliament, pretending to be a responsible government as we speak.