12 March 2016
CHOICE has called on the Minister for Trade to opt-out of dangerous clauses in the Trans-Pacific Partnership (TPP) agreement, which could see future food labelling and product safety laws ditched under legal pressure from multi-national companies.
The TPP trade agreement, which is currently being considered by the Federal Parliament, will enforce Investor State Dispute Settlement (ISDS) provisions and stands to impact every aspect of the Australian economy.
In its submission to the Joint Standing Committee on Treaties, CHOICE urged the Federal Government to stand strong and defend Australia's sovereign law making abilities.
"This agreement threatens future laws to protect and inform consumers about the products and services they purchase," says CHOICE CEO Alan Kirkland.
"Laws that require food companies to list specific ingredients, meaningful country of origin statements, and health and nutritional information on food packaging could all be on the chopping block.
"It's particularly concerning that in other jurisdictions, ISDS provisions have been used to oppose bans of potentially dangerous products, overriding a country's domestic laws designed to protect the public.
"Effectively the Federal Government is providing a veto on our domestic law making ability to international corporations and foreign legal tribunals," Mr Kirkland says.
Analysis by CHOICE has found that the ISDS clause in the TPP could let foreign companies take action against Australia should the Federal Government change laws or regulations to:
- Require specific-ingredient labelling on food products, like palm oil;
- Change or strengthen our country of origin labelling system;
- Require the display of 'health stars' or 'traffic lights' on the front of packaged foods;
- Ban the import of products that are dangerous or potentially dangerous; and
- Improve the Australian Consumer Law to, for example, ban unfair trading or to strengthen consumer guarantees.
"We are urging MPs and Senators to oppose any TPP legislation until the risks associated with ISDS are dealt with," says Mr Kirkland.
"Australia has already opted-out of ISDS provisions with New Zealand. It needs to opt out of ISDS with other TPP countries as well, especially the USA and Japan.
"Although Australia has signed the TPP, it's not too late. The Federal Government is still able to negotiate bilateral agreements to opt out of the devil in the detail, Investor State Dispute Settlement provisions.
"The fact is, ISDS provisions give foreign companies the option to stop or stall new laws, or receive massive payouts.
"ISDS provisions are risky. It makes no sense to allow foreign corporations the ability to sue the Australian Government for passing laws designed to protect and inform the public.
"If a law is in the public interest, it shouldn't be able to be stalled by corporate interests and the Australian Government shouldn't be forced to pay tens of millions to defend consumer protections in opaque international legal forums," Mr Kirkland says.
Section 51 of the Constitution provides the Federal Government with the power to enter into treaties, independent of Parliament. However, the substance of treaties generally needs to be incorporated into Australian domestic law through Parliament passing legislation. Parliament is granted the power to pass these laws in section 61 of the Constitution.
Once Parliament has passed the necessary implementing legislation, the Government can bring the TPP into effect.
CHOICE wants the Federal Government to take steps to opt out of ISDS with individual parties to the TPP by negotiating side letters using the Australia-New Zealand side letter as a model. Agreements with Japan and the United States should be prioritised.
 https://www.globalpolicy.org/component/content/article/212/45381.html and http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/ethyl.aspx?lang=eng
 For example, the WTO case against the US brought by Canada and Mexico objecting to country of origin labelling requirements for beef. See World Trade Organization, 20 October 2014, 'WTO issues compliance panel reports on US "country of origin" disputes', available at https://www.wto.org/english/news_e/news14_e/384_386rw_e.htm