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Thursday, 12 February 2015
Page: 577

Senator RHIANNON (New South Wales) (11:32): The Greens' Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 should be passed. Such legislation would play a critical role in protecting and enhancing our democracy, and I very warmly and strongly congratulate Senator Peter Whish-Wilson for initiating this bill before us. I speak about democracy because this really is about protecting democracy—protecting Australia as a sovereign nation, and making it harder to run down the all-important gains that society has managed over a number of decades with regard to labour standards, environmental protection and human rights—because the protection this bill would put in place would bring some balance back to the very damaging aspects of free trade and specifically the Trans-Pacific Partnership. So this bill is urgently needed.

There has been a long history in Australia of opposing some of the very damaging aspects of the push for free trade, and I would like to go into some of that history. I also want to congratulate, as well as Senator Whish-Wilson, many members of the Greens, the union movement, AFTINET, church groups, environment and human rights organisations and aid groups, because they are out there informing the public of how serious it is in terms of the secret negotiations. If the partnership—particularly with regard to the investor-state dispute settlement clauses—is put in place, that would do damage to the very fabric of our society, from our important basis of democratic institutions to so many aspects of our society that, often, we take for granted. So it is incredibly important that we deal with this.

I think it is worth reminding ourselves that a previous government, the Howard government, in 2004 did not include ISDS in that free trade agreement. I mention that because, when former Prime Minister John Howard came in, in the 1990s, his government really got their fingers burnt with what they were trying to do when they were meddling in a very similar scheme—actually, a much more extensive scheme—which large corporations were attempting to impose across the planet.

I am referring here to the Multilateral Agreement on Investment. You could really say that the grandparents of the Trans-Pacific Partnership and investor-state dispute settlement were the OECD and the MAI—or that the OECD gave birth to the MAI. This was a huge part of the 1990s when various very under-resourced organisations and some key hardworking activists—and, fortunately, emails were just coming into their own at that period—found out what was going on and alerted the world, and so many people rose up in opposition. That opposition was extensive and, ultimately, successful, and the Multilateral Agreement on Investment was put to bed. But now we are seeing it come back in different forms. So I think it is worth looking at what happened in the 1990s, because it is important for us to understand that this has been well debated and has been rejected, en masse, not just by Australians but by people around the world. So I did want to go into some of those aspects.

One important point was made in that debate—and I was very much part of it in the 1990s, since I was at that time the director of AID/WATCH, a non-government organisation monitoring Australia's overseas aid program, and this became a large part of our work—by Noam Chomsky. One of his arguments was that the OECD, as an organisation of rich countries, was more susceptible to direct influence by corporations; that is who they would be representing. He advocated that, when we are considering changes to trade agreements, that should come under a body such as the United Nations Conference on Trade and Development. And there was a real in-depth analysis of how these agreements should occur.

On the side of those backing the MAI, there was a period where the Liberals and Nationals were right out in front, arguing along with the corporate world that the MAI would bring secure and stable investment conditions and regulate investment in a more uniform way. They rejected the idea that it would be a race to the bottom by saying there would be uniform conditions for corporations around the world. But, when people started get to get a hold of the documents and look at the detail, what they could see and what the world was alerted to was that it was in fact a race to the bottom because it was about developing means to erode labour conditions, erode environmental standards and erode human rights—because the power would be there to penalise governments if there were any measures that restricted the profits of the corporations.

Here is a little bit of history, because it is important that we remember that this was all done in secret. How did the world find out about it? There were some lucky breaks, there were some leaks and there were some incredibly hardworking people, mainly from organisations in low-income countries: the Third World Network, the NGO Public Citizen, Global Watch, Friends of the Earth, and Susan George, a very progressive economist at the time who was onto this. The documents were released and the analysis was done. I remember people at the time saying, 'What will kill off the multilateral agreement on investment is people knowing what it really does,' and that is what happened. The documents were analysed, the information was out there and emails started going around. Maybe it was even one of the first examples of an email campaign killing off really bad plans by the corporate world with a few backers—in Australia's case, the Liberal and National parties. I very much congratulate those people, and it was a fantastic campaign to be a part of.

I will go through how it played out in Australia. We had a Stop MAI coalition. It was huge and brought together unions, a whole number of church groups that were incredibly active, aid organisations, environment groups and human rights groups. It culminated on—and I like the date this occurred—11 November 1998 in a newspaper advertisement in The Australian signed by more than 500 organisations, setting out the concerns that we had with this whole legislation. It was important that that was put on the record because again it helped to inform more people, obviously.

Interestingly, as the movement was growing around the world, the pressure from France was particularly significant because France was the first country to pull the plug on these negotiations and, while I cannot fully explain how the OECD works, that really did cripple the negotiations. Shortly afterwards, the Howard government pulled out of the negotiations as well. But it shows the strength of civil society here and around the world that there were so many people active in a very, very collaborative and constructive way.

Some of the points that we made in the advertisement in The Australianincluded—these are the words from the advertisement at the time:

The Multilateral Agreement on Investment is a treaty which would give multinational corporations the standing previously only granted to nations, and a freer hand to challenge labour standards, environment protection, social justice and democratic control over all levels of government, worldwide.

It went on to say that Australia must withdraw now and not resume the negotiations in any other form. I emphasise 'not resume the negotiations in any other form', because in the 1990s we were aware of what this was all about. You could feel the momentum building around the movement of opposition. You could feel, as you can sometimes with progressive movements, that a win was in the air. The corporate world is all-powerful. They want to increase their profits; that is what they are on the planet to do. That is why the MAI could well arise in another form. And that is what we are seeing now with the Trans-Pacific Partnership and with the many other so-called free trade agreements. That is why I wanted to give emphasis to why we included that all-important phrase in the advertisement: Australia must withdraw now and not resume the negotiations in any other form. For the record, former Greens Senator Dee Margetts was one of the people who signed that ad, as well as the New South Wales Greens, a whole number of activists and heaps of organisations around the country. As I mentioned, there were about 500 in all.

That brings us to the current problems we are facing, and they are considerable. I urge senators from the other parties to look at this bill closely. There is nothing in it that serves the interests of any group, including corporations, because this form of so-called free trade with its ISDS clauses is a robber-baron form of capitalism, and, in the end, that is not good for the corporate world. Maybe they will increase their profits in the short term, but it will become destructive not just to workers, not just to the environment, not just to people's humans rights; it will bring a breakdown in how our society works. I say that most strongly because over time, over decades and, I believe, over centuries, the different protections, the different regulations and the different standards that we have passed and brought into practice—what some people try and dismiss as green tape and red tape—have come about to improve our society, a society where it is about being collective, about supporting each other. Again, yes, in the short term the corporate world might be really rapt that we have ISDS clauses and they can do all this behind closed doors and hammer governments around the world if their profits are limited. But in the long run it is not going to benefit people. Workers need to get a wage and they should be safe and able to go home at the end of the day—not maimed in some way or killed. We need an environment that is protective and that is there for future generations, not one where we have a huge burden because of the levels of pollution. All these things are interconnected, including how companies operate. So again I would urge all to look closely at this bill.

International debate around these issues is growing enormously because there is increasing recognition that corporations have too much power over our democracies. This goes back to the starting point, and it is one of the aspects that have impressed me so much about how Senator Peter Whish-Wilson has taken forward the debate around this issue. He has made all the connections and really pinpointed how damaging this legislation would be if it were passed. It is particularly damaging because including ISDS clauses in international trade agreements tips the balance of power further in favour of the corporate world.

The working of our society is already out of balance to a great degree. We need to get back to recognising the broader public interest in terms of public health, public education, public housing—all the issues around our commons. We need to recognise how the public interest works and what we need to look after for a healthy society and for future generations. All these issues are interlinked. They are a reminder of why ISDS clauses have no place in international trade agreements.

ISDS clauses introduce potential risks to the public interest and the sovereignty of any nation. We have seen that in many recent studies. Going back to some of the experience that I gained when we were opposing the Multilateral Agreement on Investment, I remember that some of the Latin American countries had in place rules that said that if a foreign corporation was going to operate in their country the company would be required to employ so many local workers. It was realised that it would be impossible to maintain such a position under the Multilateral Agreement on Investment and that it would limit the rights of countries in improving their conditions. That is how we know of the risks associated with ISDS.

I have mentioned the growing opposition to this form of trade agreement. I would urge senators to look closely at that opposition. Over 100 academic experts to the European Commission inquiry into ISDS found that the many risks that ISDS clauses impose on the public interest cannot be managed simply by having certain safeguards for certain sections of these trade agreements. You cannot put the ISDS clauses and then establish safeguards. That is just a con job to try to make out that something is being done. It cannot be effective. It cannot remove the extraordinary extent of the damage. We must not even go there in the first place. We know that the government proposed safeguards in its deals, such as the Korean free trade agreement. That is not satisfactory. We cannot solve the problem in that way.

Returning to the study by the academic experts to the European Commission, the so-called extensive safeguards were rejected most decisively by those academics as being inadequate. We think that is where considerable attention needs to be paid.

I would like to pay tribute to the many groups who are working on this campaign. One of the leading organisations in Australia is AFTINET, the Australian Fair Trade and Investment Network, which has taken up this issue for well over a decade, examining the free trade agreements that have come forward, coming down to parliament, briefing people and putting material out there. Pat Ranald, who is the convenor of AFTINET, in talking about ISDS clauses, stated that they give:

… additional rights to foreign investors to challenge domestic laws which may be made as part of protecting or advancing human rights or environmental sustainability. Those are the kinds of examples that we cite in our submission. So our worry is that ISDS has the potential to undermine or challenge domestic law which seeks to protect those broad principles of human rights and environmental sustainability.

That has very much been a theme of the comments that I have shared with senators today, that the degree of destruction that ISDS would bring to the very fabric of our legal protections, the fabric of so many standards that have been established, goes to the heart of the democratic process. If you have a corporate power that is structured in such a way as to be higher, greater, than parliaments or governments then clearly it is a challenge to democracy. That is why we Greens are giving so much emphasis to this and why so much of civil society in Australia has examined this and is alerting people to these problems.

I do believe that this is a time when we need to take the strongest stand. It is informative that Justice French has written a very substantial paper about this in which he goes into this issue in detail. I understand that some of the senators from other parties may not be willing to take on board what the Greens are saying, but I want to emphasise that this is much wider than ourselves. I would very much urge that you read the very detailed paper that Justice French wrote, because he raises the very critical aspects of the lack of transparency involved. As I mentioned in relation to the Multilateral Agreement on Investment, it was because of some incredibly hard work, some good breaks, some leaks, that word was able to spread about the damage it would do. The Trans-Pacific Partnership Agreement also is highly secretive, but some excellent work has been done by Civil Society and by Senator Peter Whish-Wilson to get the word out. Justice French adds to this all-important work, particularly in identifying issues around the lack of transparency. You see that this is a recurring theme when you start to examine what is going on. When something is as secretive as this, one has to ask why that is. The answer is because those who are involved know that it will be deeply unpopular, that if people understand the detail the opposition to it will start growing and will apply more pressure. My guess is that they probably remember what happened in the 1990s, probably many of them were around then. They learnt from their side of politics wanting to serve the corporate interests how to manage the debate around this. Again, they have tried to keep it secret. Senator Peter Whish-Wilson is to be congratulated. This bill is excellent and it should be passed.

The DEPUTY PRESIDENT: Order! A remarkable convergence of the clocks means that time for this debate has now expired.