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Tuesday, 10 August 2004
Page: 26029


Senator BROWN (4:35 PM) —I am going to be very accommodating here because I think it is quite unfair that Senator Coonan is in the position she is in. Where Senator Hill has been taking charge of this debate, suddenly Senator Coonan is put in the terribly difficult position of having to answer questions on quite complex matters that the Greens and the Democrats have been putting forward in the committee stages of this legislation. Nevertheless, that is the job. I do not know what Senator Hill is doing that has made this debate second to it.

I come back to my question which—as you would have noted, Chair—Senator Coonan did not answer. The question is about paragraph 4(b) on page 1114 of the treaty itself. It is about the circumstances under which governments can expropriate—that is, take for the public good property or rights that companies may have. To put it bluntly, what happens if an American company operating in Australia does not like a law that is brought in that makes its operating expenses greater or that takes away a right it believes it has? For example, water flowing down the Murray River: the government wants to get an environmental flow or put in a carbon tax, which was not there when the company set up but the government thinks it is good for the environment.

This clause is saying that, where such actions are non-discriminatory and the Australian government applies them to achieve environmental or public health outcomes or safety, they are not classed as expropriations and the companies on the face of it—and there are all sorts of other things in this agreement which cut right across this, but under this clause at least—cannot claim compensation. Four words at the front, however, cut across that clause—`except in rare circumstances', which is when they can claim compensation. What the committee needs to know from the government, who signed the treaty and who agreed to those words, is: what are those rare circumstances that are the exceptions that allow the US government on behalf of its corporations to cut across Australian law applying to Australians to claim compensation from the Australian taxpayers?