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Wednesday, 11 August 2004
Page: 26102

Senator BROWN (10:51 AM) —I look forward to that advice. Of course we should have the answer to that but what I am concerned about here is that neither the Australian freedom of information legislation nor the US freedom of information legislation will have reach into this extraordinarily powerful process being set up under the free trade agreement to determine a whole range of things which affect this nation and, of course, the people of United States as well. A mutual knock-out situation has been set up here and I am amazed that the minister does have to seek legal advice about it. It is a very important point and I look forward to getting the result on that.

When we go to the rules of procedure of the panel set up for a dispute it says:

The Parties shall establish by the date of entry into force of this Agreement model rules of procedure, which shall ensure:

(a) a right to at least one hearing before the panel and that, subject to subparagraph (f)—

that is, `the protection of confidential information'—

any such hearings shall be open to the public ...

The protection of confidential information, which is what triggered my previous question, is totally ill-defined. But we know that when it gets to discussing corporate matters the commercial-in-confidence clauses come into play in almost all cases. I take it from that that in many, if not most, cases here the public will be locked out. The rules of procedure continue:

(b) an opportunity for each Party to provide initial and rebuttal submissions;

(c) that each Party's written submissions, written versions of its oral statement, and written responses to a request or questions from the panel shall be made public within ten days after they are submitted, subject to—

that all-powerful clause (f), the protection of confidential information. The rules continue:

(d) that the panel shall consider requests from nongovernmental persons or entities in the Parties' territories—

that is, in Australia or the US—

to provide written views regarding the dispute that may assist the panel in evaluating the submissions and arguments of the Parties and provide the Parties an opportunity to respond to such written views ...

So if you are an Australian and you do get to hear about this panel set-up, you may write in—you cannot appear before them—and they may deign to accept your written view and, if so, you are then helplessly left while the disputing parties, the corporations involved, respond to that written submission. The rules of procedure go on:

Unless the Parties otherwise agree, the panel shall follow the model rules of procedure and may, after consulting ... adopt additional rules of procedure not inconsistent with the model rules.

On request of [one or other country] or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, provided that the Parties so agree and subject to such terms and conditions as the Parties may agree.

Then there is the `Panel Report'. It says it will come `within 180 days after the chair is appointed'. The governments will be presented with an initial report containing `findings of fact'—that is, within 180 days—and its determination as to whether `the measure at issue is consistent' with the agreement, a party has `failed to carry out its obligations', the measure at issue causes a `nullification or impairment' of a complainant's rights, and any other determination that the parties jointly request, as well as reasons for its findings and determinations. There is quite a lot there. Far from filibustering and hurrying here, I feel it is really remiss that we are not discussing each of these points. They are so critical in a proper evaluation of what is going on.

Let me hurdle right down to 21.10, `Implementation of the Final Report', which is on page 21.6. It says:

On receipt of the final report of a panel, the Parties shall agree on the resolution of the dispute, which normally shall conform with the determinations and recommendations ...

That is, the panel rules. If a party does not agree with the panel then we move on to the `Non-implementation' clause, the next one, which says that if the parties are unable to agree—if Australia is not able to agree with the findings of this faceless panel on the compensation that comes out of a finding:

... within 30 days after the period for developing such compensation has begun, or

(b) or have agreed on compensation or on a resolution pursuant to Article 21.10 and the complaining Party considers that the other Party has failed to observe the terms of such agreement,

[the complainer] may at any time thereafter provide written notice to the office ...

and so on down we go until we get to section 4 on page 21.7 which says:

The complaining Party—

let us take this to be the US for the sake of this—

may suspend benefits up to the level the panel has determined ...

that is, the penalty the panel called for—

or, if the panel has not determined the level, the level the Party has proposed to suspend under paragraph 2, unless the panel has determined that the Party complained against has eliminated the non-conformity, or the nullification ...

In other words, the US in those circumstances, where it felt that Australia had infringed one of its corporation's rights, may suspend benefits—that is, impose a penalty, and we get to that. It is quite complicated stuff but, effectively, it is saying that it imposes sanctions. It can extract forcibly through sanction by penalising Australia the amount that the panel says is owed to the US corporation. There is no appeal on that. There is no reference to the Australian courts or the US courts, none at all.

I ask the minister: ought not something so serious as that to be a matter for debate in this parliament? Ought not there to be reference back to the parliament? Does he not agree that such an extrajudicial system, fabricated under this agreement, should not be allowed to take over the role of our courts? Is it not fair enough that the Greens propose a clause which says that you should try to work out disputes, if you are going to have your free trade agreement, but you do not go to arbitration—that that should be left to our courts? If an American corporation has got a problem with some decision Australia has made, let it go to the Australian courts under Australian law to seek a remedy, the same as any Australian company would do. That is our argument and so we maintain the strength of our support for this amendment.

Senators will be aware that we have other amendments coming down the line which would ensure that the whole process involved here will ultimately be brought back to this parliament for adjudication, including not just the dispute outcomes but also the interpretation of this agreement by this all-powerful but undemocratic, appointed joint committee. There is an extremely important set of amendments from the Greens coming down the line which, contrary to what Senator Hill has been arguing—that this Senate has no role—empowers the Senate to review the decisions being made by these panels appointed by the trade minister of the day, to make sure that they are consistent with the best interests of this nation. We very strongly put it to the Labor opposition that they should be looking at those amendments to make sure that the adjudications coming out of the system come back here to the parliament, where they should be finally determined.