Update 30 September – Trans Pacific Partnership (TPP) possible final meetings held:
The TPP may be resolved by the end of this month – what's being billed as the final round of negotiations will be hosted by the United States in Atlanta, Georgia from 26 to 29 September.
The negotiations will be followed by a Trade Ministers' meeting from 30 September to 1 October. This meeting could conclude with the agreement being signed, despite the fact that the Australian public has never seen any of the formal documents.
Earlier this month, the US appointed a "chief transparency officer". The role was created to "make trade negotiations more accessible and transparent to the public". But the TPP negotiations are very advanced at this point, leading some to question the sincerity of the US government's new commitment to transparency. And in Australia, even these tentative steps towards improving dialogue with the public have not been taken.
Trade Minister Andrew Robb has said that there are still some sticking points in the agreement, including the controversial proposal to strengthen IP protections in relation to medicines.
CHOICE is continuing to call on the government to improve its consultation processes and release the text of the TPP before it is finalised.
Trade agreements are far-reaching
Modern trade agreements between Australia and other countries are in many ways no longer about trade. Instead of focusing on just reducing the cost of importing or exporting, these agreements intrude into areas that affect consumer rights. They can impact on our access to and the costs of goods and services, including vital things like medicines.
They also, increasingly, affect the right of governments to make laws in the public interest. For example, the government recently committed to improving country of origin labelling for food products: a big issue for over 26,000 consumers who signed up to CHOICE's campaign supporting better labelling laws. If poorly drafted, treaties like the Trans-Pacific Partnership (TPP) could tie the hands of government, preventing improvements being made to food labelling and other important consumer laws in the future.
How does Australia currently create international treaties?
In Australia, treaties including trade agreements like the TPP, are negotiated in secrecy by a team of public servants at the Department of Foreign Affairs and Trade (DFAT). In the case of the TPP, participating countries signed a non-disclosure agreement at the start of negotiations, agreeing not to release information to the public while the agreement is being negotiated, and not to publish the negotiating documents for four years after the agreement is signed.
After DFAT finalises the agreement and the government signs it, the text will then be provided to the parliament for consideration. An assessment of the finalised treaty is conducted by the Joint Standing Committee on Treaties (JSCOT), within 20 joint parliamentary sitting days - which could be as little as two or three months.
After this short period of time, parliament then needs to make a decision to accept or reject the finalised agreement in full, with no ability to influence the details or seek improvements. If an agreement has beneficial elements that are overall outweighed by risks, the parliament is faced with a drastic choice - reject the agreement in its entirety, denying the public the benefits, or accept an unbalanced, flawed agreement that will damage Australia's interests.
Transparency is essential
The Senate Standing Committee on Foreign Affairs Defence and Trade released its report into the treaty-making process in June 2015. Among other issues considered, the committee found that the current approach to public consultation and transparency is woefully inadequate, commenting that, "It is counter-intuitive for complex trade agreements which are years in the making to be negotiated in secret, subject to stakeholder and parliamentary scrutiny for a few short months with no realistic capacity for text to be changed, and then for implementing legislation to be rushed through parliament unamended. This comes very close to making a mockery of the process."
"It is counter-intuitive for complex trade agreements which are years in the making to be negotiated in secret... then for implementing legislation to be rushed through parliament unamended."
The committee recommended that meaningful stakeholder engagement be improved, including by tabling the final draft text of agreements in parliament before signing them, publishing plain-English explanatory documents and draft texts during negotiations, and providing expert stakeholders with access to draft texts during negotiations. The committee also commented that "it is pointless for JSCOT inquiries to begin after agreements are signed", and recommended that JSCOT adopt a process of ongoing oversight of trade agreements under negotiation.
These recommendations would reduce the amount of secrecy that trade agreements are currently shrouded in, but the committee falls short of advocating for full transparency. Instead, it suggests that expert stakeholders, JSCOT and parliamentarians be able to access draft treaty texts in confidence, meaning they will not be released to the public.
This is a step beyond the current processes, but CHOICE believes that more public access to documents would help provide final agreements with greater legitimacy and public trust. We'd argue that the case for secrecy hasn't been made; the committee's report accepts the need for some secrecy, but does not analyse or justify it.
What is being traded away?
TPP negotiations have been underway for years now, but we haven't seen the text, so we don't know what the final agreement will contain. However, a number of draft TPP chapters have been leaked, and these leaks raise serious concerns about the potential impact the TPP could have on consumer rights in Australia.
Leaked texts suggest that the TPP could introduce hefty new protections for intellectual property owners, potentially criminalising minor, private acts of copyright infringement. The intellectual property provisions could also impact on the cost of medicines in Australia as monopoly 'data exclusivity' periods increase. In practical terms, this could mean Australians will wait longer for cheaper, generic drugs to hit the market, and will be forced to pay higher prices for longer periods of time.
The TPP leaks also raise concerns that the agreement will loosen Australia's labelling laws, making it harder to require companies to label ingredients like palm oil in their products.
And perhaps most worrying, the leaked documents show that the TPP is likely to contain an investor-state dispute settlement (ISDS) mechanism. ISDS allow foreign companies to sue the Australian government over laws that are in the public interest, if these laws impact the companies' bottom lines.
Trade agreements - weighing up the costs and benefits
Throughout the TPP negotiations, DFAT has assured the public that the agreement will benefit Australia. But how can we tell without open analysis of the text?
The Productivity Commission (PC) released a report in June 2015 looking at these issues, and concluded that in the absence of a comprehensive, transparent analysis it is not possible to be certain of the benefits of trade agreements.
The report notes that preferential trade agreements are complex, and require give-and-take; some industries win, but others lose. Assessing the overall impact is impossible when negotiations and treaty documents are confidential.
The trend towards including business-focused intellectual property protections in trade agreements was considered in the report, with the PC noting that the intellectual property chapter in the TPP could be extensive, and place Australia under stricter obligations than are currently found in our domestic law. The PC notes that the history of including intellectual property requirements in trade agreements is "not good", and that the TPP could impose costs across participating countries and impact on pharmaceutical price-determination arrangements in Australia.
Instead of entering into preferential trade agreements, the Productivity Commission concluded that positive outcomes for Australia could more easily be gained through other actions, like by improving domestic competition.
If there are benefits to be gained through trade agreements like the TPP, improving transparency is a necessary step to realising these benefits. The Senate Committee recommendations are a good first step, but they need to be acted on.