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Monday, November 12, 2012

A slight step into sunlight for TPP negotiations?

That might be jumping to an unwarranted conclusion but a round of DFAT organised stakeholder consultations starting this week, may indicate some of the local and international criticism of secrecy in the negotiations is starting to have some effect. Glad of any input from attendees.

Part of Chapter 7 in the government's "Australia in the Asian Century" White Paper is  headed "Working in the region to strengthen openness". It means "working in the region to reduce tariffs and other barriers to trade and investment", not openness in the sense of openness/ transparency as usually used here.

The chapter lists a bewildering range of multilateral, regional and bilateral involvements underway to achieve this stated national objective:

18b. The Australian economy will be more open and integrated with Asia, through comprehensive regional agreements, better aligned economic regulations, greater infrastructure connectivity and enhanced understanding of each country’s arrangements. The flow of goods, services, capital, ideas and people will be easier and Australian businesses and investors will have greater access to opportunities in Asia.
One of those involvements is the Trans-Pacific Partnership (TPP) involving Australia and 10 other Asia-Pacific countries, described in the White Paper as one of the pathways to a free trade area of the Asia–Pacific. But lack of transparency about what is being negotiated in the TPP is an issue. A recent headline in Salon described it as The biggest trade deal you've never heard of.

The cognescenti such as Public Citizen know that a wide range of domestic governance issues are at the centre of the negotiations. Twenty six draft chapters cover financial, health-care, energy, telecommunications, and other service-sector regulation; patents and copyrights; food and product standards; land use and natural resources; professional licensing and immigration; and government procurement. Two chapters-on intellectual property and the environment- have been leaked. 

As to the rest, little has changed since I wrote about the lack of publicly available information after a visit to Washington in March. Australia seemed then to be at the forefront of keeping things under wraps for as long as possible. 

One hundred and thirty four members of the House of Representatives in Washington wrote in August urging the US negotiators to undertake broader and deeper consultation with congressional committees that cover subjects under discussion, and seeking unsuccessfully, access to the draft text.

Here, Trade Minister Emerson stuck mainly to a script that focused on tariff issues in this answer to a Dorothy Dix in August, with no reference to other matters on the table. The Greens Senator Whish-Wilson moved a Motion in the Senate in August seeking access to the draft texts and raising other issues but got no support. Not surprising perhaps given his unrealistic call for all trade negotiations to be public.

So maybe a new leaf with the round of stakeholder consultation this week-all on days I'm somewhere else so no chance to check this out.

Professor Jock Given of Swinburne Institute for Social Research writing in Inside Story
recently had this to say recently about transparency, trade policy and the TPP:
 ..the government’s April 2011 trade policy statement says the public should be kept “closely informed of the nature and progress of negotiations.”  As stages in the deal-making process are completed, “relevant information should be posted on government websites.” Transparency can certainly be “time-consuming and give anti-trade interests partial information to use against the government before the public has had the benefit of considering the fully-completed deal,” but “negotiations shrouded in secrecy enable opponents to speculate inaccurately about the content of agreements”....

Consistent with the nature of a single negotiation where “everything is on the table” and “nothing is agreed until everything is agreed,” the government has been reluctant to rule any measures in or out of the TPPA. In general, it says it “will not support provisions in trade agreements that constrain our ability to regulate legitimately on social, environmental or other similar important public policy matters.” Specifically, it won’t accept provisions that “limit its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme.”

Significantly, the government says it opposes “investor–state dispute resolution procedures… that would confer greater legal rights on foreign businesses than those available to domestic businesses.” These procedures could give investors from member states new rights to take action directly against national governments, rather than through their own governments.

Pharmaceutical companies, for example, like investor–state dispute resolution processes because they provide another way to challenge legislation and regulation that they believe exaggerate health risks of new drugs. Philip Morris is using the investor–state dispute resolution process in the 1993 Australia–Hong Kong Agreement for the Promotion and Protection of Investments to challenge the plain packaging legislation that Australia’s High Court declared valid in August.

These kinds of provisions are included in many of the United States’ bilateral free trade agreements, though not the one with Australia. They are clearly on the US agenda for the TPPA and are included in the US Trade Representative’s November 2011 outline of the provisions it says will be in the investment chapter.

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