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Tuesday, 10 August 2004
Page: 26036

Senator HARRIS (5:14 PM) —I rise to place on record that One Nation also has concerns with article 11.7.1, particularly in relation to paragraph 4(a)(i) of annex 11-B, which states:

(i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred ...

I would be interested in getting a brief explanation from Senator Hill as to what he views as possibly being an economic impact as a result of the government's action under that section.

But before the minister responds to that, I want to pick up on a couple of issues that Senator Brown has raised, particularly in relation to jurisdiction and the rigour that the Australian people and the Australian parliament will or will not have in some of these decisions that will be made by committees or assessing authorities set up under the free trade agreement. I want to refer to the recommendations of One Nation to the Select Committee on the Free Trade Agreement between Australia and the United States of America. In the opening paragraph, under item 8, One Nation:

... reaffirm the right of the Australian parliament to regulate, legislate and protect exclusively Australian interests.

Going to the substantive recommendations, recommendation 23.4 states:

One Nation recommends adoption of the Senate Foreign Affairs, Defence and Trade Committee recommendations, Voting on trade: The General Agreement on Trade in Services and an Australia-US Free Trade Agreement in relation to the process for parliamentary scrutiny and endorsement of proposed trade treaties:

(a) Prior to making offers for further market liberalisation under any WTO Agreements, or commencing negotiations for bilateral or regional free trade agreements, the government shall table in both Houses of parliament a document setting out its priorities and objectives, including comprehensive information about the economic, regional, social, cultural, regulatory and environmental impacts which are expected to arise.

(b) These documents shall be referred to the Joint Standing Committee on Foreign Affairs, Defence and Trade for examination by public hearing and report to the parliament within 90 days.

(c) Both Houses of parliament will then consider the report of the Joint Standing Committee on Foreign Affairs, Defence and Trade, and vote on whether to endorse the government's proposal or not.

(d) Once parliament has endorsed the proposal, negotiations may begin.

(e) Once the negotiation process is complete, the government shall then table in parliament a package including the proposed treaty together with any legislation required to implement the treaty domestically.

(f) The treaty and the implementing legislation are then voted on as a package, in an up or down vote, i.e., on the basis that the package is either accepted or rejected in its entirety.

That is the outcome of the Senate Foreign Affairs, Defence and Trade References Committee's recommendations. It cannot be put any clearer that, following a complete inquiry, those are the Senate's recommendations. Those recommendations are that, even before the government sets out to negotiate on a treaty, it brings the basis of that treaty, its priorities, its objectives and comprehensive information about its economic, regional, social, cultural and regulatory and environmental impacts into this place and the House of Representatives for parliamentary scrutiny. This is what should be happening.

On 5 August I issued a media release headed: `Free Raid Agreement on pharmaceuticals'. I want to quote a section from that media release, because it goes to the heart of what we are talking about here:

“Australia can alter domestic legislation in regard to the PBS as much as we like, but disputes between Australia and the US over the PBS, or any element of the Agreement, will be decided by a dispute resolution panel, based on the text of the Agreement, nothing to do with Australian law. Minister Vaile's letter of exchange on the PBS forms part of the Agreement.”

“The dispute panel set up under this Agreement is like an invisible government. Its powerful new enforcement capacities allow it to make rules encroaching into areas traditionally considered the realm of domestic policy, shifting decisions from democratically-elected domestic bodies to the FTA dispute panel.”

“The dispute panel must base their report only on the relevant provisions of the Agreement and the submissions and arguments of the Parties.”

“One Nation opposes this shift in decision-making. We are committed to accountable, democratic government. Under this Agreement, there is an abysmal lack of basic protection for Australia in all areas, including the administration of the PBS.”

We are now discussing the US Free Trade Agreement Implementation Bill 2004. As I said yesterday, it alters 10 pieces of legislation, but they are only enabling legislation. The deal is done: the Prime Minister of this country has signed the agreement, it has passed through both houses of the US parliamentary system and the President of the US has signed off on it. What is important and has to be understood is that, when an issue is raised in relation to expropriations, the decisions will not be based on anything that we discuss, alter or amend in our domestic law; they will be decided upon the text of the agreement. That is what the panel will look at. That is what they will make their decisions on relating to any disputes or expropriations.

That leads us to another interesting issue. I have here a document titled U.S.—Australia Free Trade Agreement: potential economywide and selected sectorial effects that was provided for the Senate select committee. It is unusual in one sense: it carries and identifies the author very clearly—the United States International Trade Commission. It carries their logo. But what we have here, interestingly, is a document that does not in any way, shape or form indicate who the author is. This could be a pile of blank A5 paper that I have picked up out of a ream and have printed anything that I like on it and quoted from it. Who is the author of this document? How do we in this chamber know that the very document that we are relying on—either in support of or critically condemning—is the basis of the text that the Prime Minister of Australia and the President of the US signed off on? Do we have the actual document? Are the words that are contained within this document without an author those that were signed off on? In all probability, I doubt it.

I remind the chamber that, when the committee started its deliberations, we did not even have this document. Why did we not have it? Because it was off being legally scrubbed. So we have the ridiculous situation where all senators are basing their whole debate in this chamber on a document that does not even carry the author's identification. How can we, in a responsible manner, say to the Australian people, `We have read the document, and we can guarantee to you this is what it says in its text'? We cannot. We have to assume that this is an identical document. We have to assume that, in the process of legally being scrubbed, there are no omissions. But one thing you can bet your life on: when the dispute panel sit down to sort out who is right and who is wrong or on what they will base their ultimate decision, they will not be using an unidentified document. They will be doing it from the original document that the Prime Minister of Australia and the President of the US signed. That is the point that I want to make very clearly today. I ask Senator Hill, through you, Madam Temporary Chairman, whether he is prepared to state in this chamber that the text of the document that I hold in my right hand is identical to the text of the document that the Prime Minister of Australia and the President of the United States signed.