Submission to Joint Standing Committee on Treaties. Treaty tabled on 9 February 2016

 The Committee Secretary Joint Standing Committee on Treaties, PO Box 6021, Parliament House, Canberra ACT 2600

By e-mail [email protected]

Dear Committee,

I write to you with great concern regarding the trade deal that Australia has signed with eleven additional countries (Brunei, Canada, Chile, Japan, , Mexico, New Zealand, Peru, Singapore, the United States of America and Vietnam) known as the Trans-Pacific Partnership Agreement (TPP).

The Executive arm of Government, through the High Court interpretation of Section 51(xxix) of the Australian Constitution which gives the Federal Government an ‘external affairs’ power, intend to bind the Australian Government into the TPP Agreement.

Introduction

Firstly, let me introduce myself. I have no team of researchers, no financial backers or party affiliation, I am merely a concerned tax payer trying to understand the workings of what appears to be a very secretive transaction conducted between the above mentioned governments at the highest level. All my research is supported by information in the public domain and I have reference this information at each point.

Update to my previous submission

I previously wrote to the Committee under the Submission to the Inquiry on the Trade and Foreign Investment (Protecting the Public Interest) Act 2014 by the Foreign Affairs, Defence and Trade Legislation committee. Due to time constraints I have used much of my research material from my previous submission so I apologies for any duplication.

Treaty process

I note that all treaties, including amendments to and withdrawal from treaties, are required to be tabled in Federal Parliament at least 15 days before the Government may take any binding action. In some cases this means that treaties are tabled after they are signed but before Australia ratifies – this having a binding action under international law. Every treaty is supposed to be tabled with a National Interest Analysis. The Analysis should articulate:

1. The reasons Australia would take to the proposed treaty action; 2. Australia’s obligations under the treaty; 3. The manner the treaty will be implemented; 4. The costs of the treaty; 5. The outcome of community consultations; and 6. The proposed binding treaty action.

All 19 pages of the Ministry’s National Interest Analysis [2016] ATNIA was released on 4 February 2016. This report offers several motherhood statements and insufficient factual analysis, statements such as:

The TPP will significantly boost Australia’s economic relationships through the region: creating seamless preferential supply chains with the TPP Parties; bolstering relations with those with whom we already have existing Free Trade Agreements (FTAs) (bilateral or regional); and, in the case of Canada, Mexico and Peru, by becoming preferential trading partners for the first time.

With the exception of Canada, Mexico & Peru, Australia already has established FTA’s in place. It is difficult to determine where additional trade is expected to materialise from. Standardised FTA’s will increase competition for markets and potentially reduce Australia’s trade with existing markets.

The World Bank issued a report on global trade (https://www.worldbank.org/content/dam/Worldbank/GEP/GEP2015a/pdfs/GEP2015a_chapter4_report_tra de.pdf ). This report highlights the linkage between trade and income growth and states:

In recent years, world trade has become less sensitive to changes in global income. Estimates from an error correction model for the period 1970–2013 yield a long -run elasticity of 1.7, although the response of trade to income differs considerably across decades. For the period 1986–2000, a 1 percent increase in world real GDP is associated with a 2.2 percent increase in the volume of world trade (Figure 4.11). This “elasticity” of 2.2 is substantially higher than that in preceding (1970– 85) and subsequent (2001–13) years; for both of these periods, the trade elasticity was about 1.3. Formal tests confirm that there was a significant structural break in the trade-income relationship in the period 1986–2000 relative to the preceding and subsequent periods.5 These results suggest that global trade is growing more slowly not only because world income growth is lower, but also because trade has become less responsive to income growth.

TPP may further erode non-participating nation’s trade, creating additional global trade imbalances leading to increased wealth inequality in a time when our world is increasing unstable.

 Page 2 The National Interest Analysis makes further ridiculous claims such as:

The TPP will also protect Australia’s competitive position in the markets of the TPP Parties. Market access gains under the TPP will be delivered more quickly than any other current multilateral or plurilateral negotiations underway such as in the World Trade Organization (WTO) or in the Regional Comprehensive Economic Partnership (RCEP)

These statements are pure fiction.

How will Australia’s market share be protected against competition from other TPP countries who will enjoy the same protected access?

For example: Australia’s dairy exports totalled AUD$ 1,688,541,335 (source: http://www.dairyaustralia.com.au/Markets-and-statistics/Exports-and-trade/Latest-export- statistics.aspx) in 2015/16. New Zealand’s dairy exports was in excess of NZ$ 13.7Bn. Trade treaties cannot be used in place of inefficient industries. Is it the presumption that the TPP will suddenly see Australia’s exports in dairy rival New Zealand’s?

The National Interest Analysis on one hand uses words such as significant and beneficial but in its own report acknowledges:

Modelling by the World Bank suggests that Australia is set to benefit from the TPP through GDP growth of around 0.7 per cent by 2030. Similar findings were made in modelling by the Peterson Institute for International Economics and the Research Institute of Economy Trade and Industry, which found increases of 0.6 per cent and 1.9 per cent respectively to Australia’s GDP, over similar time periods.

Expanded liberalisation of trade is likely to stimulate further economic activity in Australia, leading to job creation

As the Sydney Morning Herald points out this translates to “The annual boost to growth would be less than one half of one 10th of 1 per cent”. A pretty poor return. This also does not factor into production losses due to potentially inefficient local industries losing market share to countries that can produce more due to a range of factors such as better technology, droughts, proximity to markets etc.

This 0.7% increase also does not take into consideration the slowing global economy and any significant recession that may further reduce GDP growth.

I further fail to understand the job creation benefits if GDP is growing at such a low rate. This report also has not factored into its calculations the rise of automated and artificial intelligence activities which are likely to erode employment opportunities across certain industries.

 Page 3 Enter into force

The National Interest Analysis states:

Article 30.5.1 (Entry into Force) of the TPP provides that the TPP will enter into force 60 days after the date on which all original signatories have notified the Depository in writing of the completion of their applicable legal procedures. Article 30.5.2 provides that in the event that not all original signatories have notified the Depository in writing of the completion of their applicable legal procedures within a period of two years of the date of signature of the Agreement, it shall enter into force 60 days after the expiry of this period if at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories in 2013, 1 have notified the Depository in writing of the completion of their applicable procedures within this period. It is proposed that Australia provide such notification as soon as practicable following consideration by JSCOT, the passing of legislative amendments and the enactment of any necessary regulations. The Government of Australia and the Governments of Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States of America and Vietnam are working towards entry into force of the TPP as soon as their respective domestic legal procedures will allow, in order to maximise the economic advantages to all Parties to the Agreement

It appears that the Australian Government is keen to work toward an expeditious implementation of the TPP. This approach seems to ignore the fact that several of the identified potential “key” markets have been five to 15 years to fully comply with certain regulations. Australia may further disadvantage itself by being “TPP-ready” early.

TPP and the environment

The National Interest Analysis asserts that the TPP will be beneficial to the environment by:

Promoting high levels of environmental protection, including by liberalising trade in environmental goods and services, and ensuring TPP Parties effectively enforce their domestic environmental laws.

Since ISDS clauses create the opportunity for corporations to sue governments for laws that may impede, restrict or reduce their ability to generate revenue and profits this statement is meaningless.

TPP and the rights of indigenous people

The United Nations has stated that (http://www.commondreams.org/views/2016/02/29/un-says-tpp- threatens-indigenous-rights):

'The clause of non-discrimination between a local and an international investor ... (it) grants more rights to transnational firms, often at the expense of indigenous rights'

 Page 4 The Aboriginal Land Rights (Northern Territory) Act 1976 was the first attempt by an Australian government to legally recognise the Aboriginal system of land ownership and put into law the concept of inalienable freehold title. The Land Rights Act is a fundamental piece of social reform.

http://www.clc.org.au/articles/cat/land-rights-act/

Using the local and international non-discrimination provisions in the TPP, the entire funding of the Indigenous Land Corporation (ILC) (a Commonwealth statutory authority with national responsibilities to assist Indigenous Aboriginal and Torres Strait Islander people to acquire land and to manage Indigenous- held land) could be challenged as it could potentially be seen as preventing a corporation from acquiring land.

Crown Immunity

There is no automatic Crown immunity in Australia and the Australian Constitution does not establish a state of unfettered immunity of the Crown in respect of the States and the Commonwealth. A precedent was set in the case of Henderson v Defence Housing Authority in 1997 for challenging broad Crown immunity and established tests for the applicability of State laws on the Commonwealth.

Andrew Robb and the Department of Foreign Affairs and Trade may not be immune from liability if affected parties could prove that, due to flawed modelling by the Department, they have experienced a financial loss as a result of the implementation of the TPP

Consultation and public participation

The Department of Foreign Affairs and Trade (DFAT), the Department responsible for negotiating the TPP Agreement, would have us believe that adequate consultation has been conductedi but it is difficult to believe this when the only information DFAT has released relating to the TPP consists of; a TPP Overview PDF (http://dfat.gov.au/trade/agreements/tpp/Documents/tpp-overview.pdf) a Questions and Answer section and some news articles (http://dfat.gov.au/trade/agreements/tpp/Pages/trans-pacific-partnership- agreement-tpp.aspx). No information provides the public with actual facts on how the TPP will affect Australia and interestingly DFAT’s Overview document is silent on the controversial topic of Investor State Dispute Settlement (ISDS) provisions. DFAT also held a iipublic participation session in Melbourne in March 2014, releasing the same slide pack contained on their website and offering not much more than this.

Minister Andrew Robb consistently rejects claims that the negotiations regarding TPP are not transparent (http://www.theaustralian.com.au/national-affairs/foreign-affairs/andrew-robb-pushes-for-a-us- sweetener-in-tpp/story-fn59nm2j-1227220627447) , in my opinion, I have learnt more about TPP from other sites rather than DFAT’s and would not have spent several nights and days of hours sifting through information and trying to understand the complexities of the TPP (or the limited information available).

 Page 5 The Minister further claims to have conducted over 500 briefings with stakeholders. The same Minister who uninvited Josh Taylor, a journalist from ZDNet, after he received confirmation to attend one of these briefingsiii.

The mistrust in the Government from the general public is reinforced by actions such as these, especially in light of Australia’s participation in the Open Government Partnership where a commitment was made to; ivIncrease the availability of information about governmental activities, support civic participation, implement the highest standards of professional integrity throughout our administrations and increase access to new technologies for openness and accountability.

The Ministers’ lack of transparency, with regard to the TPP, is also contrary to statements made by Tony Abbott, relating to government transparency, of (2 May 2013) “In the end I want a government to be upfront with people” and (9 August 2013) “The last thing we want to do is to hide anything from the Australian people”.

The Government is openly hostile to any concerned group opposed to the TPP and prefers to, not engage in dialogue, but rather “shut it down” by dismissing it as either a “leftist” agenda or scaremongering by anti-trade groups. I am pro-trade, trade should be used to grown communities and economies, not as a weapon to entrench the corporatism of governments.

Despite media coverage since the signing of the TPP, across Australia taxpayers are in the dark regarding the text of the TPP, most Australians have no idea what the TPP is in fact!

Senate Motions regarding TPP transparency

In December 2013, the Greens and Labor led a successful motion in the Senate to compel the Government to table the text of the TPP before this Agreement is signed – to-date this has yet to occur.

On the 11th February 2015 the Senate successfully passed a motion requesting more transparency in the TPP trade deal. The motion drew attention to the 2013 motion requiring that the TPP be made public a minimum of 14 days before signing, a time of 4pm on 12 February 2015 was stated.

Signed, in spite of democracy and transparency

The Motionv noted the then Abbott Government’s failure to keep the Parliament and the public informed of the nature and progress of its trade negotiations, expressed its concern with the Abbott Government’s lack of transparency diminished industry and community engagement and undermines support for trade liberalisation. The Motion further required Minister Robb to make a statement in the Senate no later than the above date. Senator Penny Wong released a statement regarding this motion and stated that vi“We believe that this Government has failed to keep the Parliament and the public informed of the nature and progress of its trade negotiations, and this includes in relation to the Trans-Pacific Partnership Agreement”

 Page 6 Senate voting

In the most recent Senate motion, requesting additional transparency with regard to TPP, parties voted:

Party Senator Yes No Richard Di Natale (Vic) Sarah Hanson-Young (SA) Scott Ludlam (WA) Christine Milne (Tas) Lee Rhiannon (NSW) (Vic) (WA) (Qld) Peter Which-Wilson (Tas) Penny Wright (SA) Australian Labour Joe Bullock (WA) Party Doug Cameron (NSW) (Vic) (Vic) (Vic) (NSW) (SA) Chris Ketter (SA) (WA) (Qld) (ACT) Jan McLucas (Qld) Deborah O’Neill (NSW) Nova Peris (NT) Lisa Singh (Tas) Penny Wong (SA) Australian Motoring Ricky Muir (Vic) Enthusiast Party Nigel Sullion (NT) Deputy President Gavin Marshall (Vic) Independent John Madigan (Vic) Independent Nick Xenophon (SA) Liberal Democratic David Leyonhjelm (NSW) Party Liberal National Party Matthew Canavan (Qld) James McGrath (Qld) Liberal Party Christopher Back (WA) Cory Bernardi (SA) (SA) David Bushby (Tas) (WA)

 Page 7 ) Sean Edwards (SA) (SA) Concetta Fierravanti-Wells (NSW) Mitch Fitchfield (Vic) David Johnston (WA) Ian Macdonald (Qld) Brett Mason (Qld) (NSW) (WA) Michael Ronaldson (Vic) (SA) Scott Ryan (Vic) (ACT) Arthur Sinodinos (NSW) Dean Smith (WA) National Party Bridget McKenzie (Vic) Fiona Nash (NSW) Barry O’Sullivan (Qld) John Williams (NSW) Palmer United Party Glenn Lazarus (Qld) Dio Wang (WA) President Stephen Parry (Tas) Unless the Senate is privy to information on the TPP that the general public do not have I find it disappointing that Senators, who are tasked with “keeping themselves informed and in touch with the community”vii, would rather “tow a party-line” than vote with their conscience on a topic as important as this.

The “official” signing of the TPP, at a Ministerial-level, was conducted in Auckland on 4 February 2016, despite all opposition, concern and conflicting reports of the true delivery value of the TPP. This arrogance and determination to proceed with an Agreement this devise and far-reaching is alarming.

Do Senator’s inform their communities about TPP?

Have they listened to their concerns?

Will they be fronting up to their communities when ISDS suits are filed and money, which would have once gone to a particular Public Sector project that may have benefitted their communities, now goes to multinational corporations thousands of miles away?

TPP in the USA

In contrast to DFAT, the Office of the United States Trade Representative’s (USTR’s) website has provided more information relating to TPP , even going as far as releasing the names of their Chapter Leads, Lead Negotiator and Deputy Negotiator (https://ustr.gov/sites/default/files/TPP-Lead-Negotiators-2014.pdf).

 Page 8 The USTR released an overview (TPP Issue-by-Issue Information Center)viii relating to the US’s negotiating objectives chapter-by-chapter and lists the chapters as:

1. Trade in Goods 2. Textiles 3. Services 4. Investment 5. Labor 6. Environment 7. E-Commerce and Telecommunications 8. Competition Policy and State-Owned Enterprises 9. Small and Medium Sized Enterprises 10. Intellectual Property Rights 11. Technical Barriers to Trade and Sanitary and Phytosanitary Measures 12. Transparency, Anticorruption and Regulatory Coherence 13. Customs, Trade Facilitation, and Rules of Origin 14. Government Procurement 15. Development and Trade Capacity-Building 16. Dispute Settlement 17. U.S.-Japan Bilateral Negotiations on Motor Vehicle Trade and Non-Tariff Measures

In the US it is reported that lobbyist representing ix605 corporations in the United Stated have assisted with co-authoring the TPP text and President Obama hopes to introduce Fast Track legislation when Congress finished their recess after 23 February 2015. Congress reportedly won’t have access to the TPP Agreement before it’s signed and the terms of the Agreement won’t be publicly disclosedx. Fast Track will allow the US Congress to vote on the Agreement but not make any changes to it –contrary to the democratic rights of the Congress.

Public interest voice concern

Several groups, individuals and organisations have expressed concern with the TPP Agreement. The concerns of the Australian Medical Association and Public Health Association of Australia have been raised in the Australian Medical Journalxi. The Convenor of the Australian Fair Trade and Investment Network also added their voice by saying that “xiiDomestic law should not be decided in secret negotiations in a trade agreement." Consumer advocacy group Choicexiiihas expressed its concern with TPP and has a wealth of reports on the Agreement. Choice created a petition calling for transparency with the TPP text, so far over 14,000 people have signed this petitionxiv

In my opinion DFAT, on behalf of the Government, appears to blatantly ignore requests for transparency from advocacy groups, the general public and other concerned parties. There is even a disregard of Senate requests.

 Page 9 Due to the secrecy in nature of the TPP negotiations I am able to only voice my concerns on the issues that I have been able to read up about.

In order to assist you with reading my concerns I have summarised these into “snap-shot” pages to allow you to focus on the salient points. I have included questions that I would appreciate if you could consider when making your judgement and I have provided hyperlinks to the reference material.

My primary issue is relating to the ISDS clauses proposed in the TPP Agreement. I have gone into more detail about this.

The other concerns I list below but am not able, in the remaining time left before close of submissions, to adequately articulate these. I list these below:

1. TPP Intellectual Property Rights When Australia signed up to AUSFTA, the life of patent protection, 14 years at the time, was extended and is now beyond 20 years. Limited regard to the financial effect this would have was considered. There are reports that TPP contains provisions to extend this further. These changes will increase cost of medications, severely impact the poor and further exasperate social inequalitiesxv.

2. TPP Exit Clauses There are reports that there is a one year “cooling off” period and then it is next to impossible to exit.

3. TPP as it relates to Federal, State and Local laws Does the Government intend to change laws where the TPP Agreement would create conflict?

4. TPP as it relates to the Australian Constitution How does the Government propose to deal with any Constitutional conflicts that could arise?

 Page 10 Data based on 2013-2014xvi

With the exception of Canada, Mexico & Peru, Australia already has established FTA’s in place. It is difficult to determine where additional trade is expected to materialise from. Standardised FTA’s will increase competition for markets and potentially reduce Australia’s trade to existing markets Brunei Darussalam Canada Chile Japan Malaysia Mexico

Exports: A$ 40M Exports: A$1,224M Exports: A$ 353M Exports: A$49,024M Exports: A$ 5,473M Exports: A$ 462M Imports: A$735M Imports: A$2,129M Imports:A$1,065M Imports: A$18,442M Imports: A$11,223M Imports: A$ 1,953M

Current FTA: Current FTA: Current FTA: Current FTA: Current FTA: Current FTA: ASEAN-Australia-NZ Canada-Australia Trade Australia-Chile FTA JAEPA MAFTA None FTA and Economic Cooperation Arrangementxvii TECA

New Zealand Peru Singapore United States of Vietnam America Exports: A$7,664M Exports: A$ 63M Exports: A$ 7,368M Exports: A$10,632M Exports: A$2,748M Imports: A$7,860M Imports: A$102M Imports: A$13,085M Imports: A$27,971M Imports: A$4,519M

Current FTA: Current FTA: Current FTA: Current FTA: Current FTA: ASEAN-Australia-NZ Australia and Peru have SAFTA AUSFTA ASEAN-Australia-NZ FTA had a bilateral ASEAN-Australia-NZ FTA Investment Promotion FTA and Protection Agreement since 1997. MOU to promote Bilateral Trade signed 2011

Q.1 With existing Agreements in place with many of the Signatory nations in the TPP, what will become of existing Agreements? DFAT claims they will “co-exist” what happens in areas where they don’t? What Agreement

 Page 12 takes precedence? If they are able to “co-exist” then surely they were as good as the TPP is. What is the need for the TPP in this case?

Q.2. Since all signatory nations will in fact be on an equal footing with access to each other’s markets, won’t Australia have additional competitors – i.e. nations that previously had not secured as good trade terms?

Q.3. Page 13 of DFAT’s TPP Overview document (http://www.dfat.gov.au/trade/agreements/tpp/Documents/tpp- overview.pdf) states under Goods: cumulation that: “ It has the potential to facilitate global supply chains within TPP parties – For example: Australian beef could be sent to Singapore, combined with beef from Canada, seasoning from Peru and processed in Singapore with the finished hamburger patty then being exported under preferential rates to TPP parties - something that could not be done under a bilateral FTA.” This is at odds with Country of Origin regulations which currently make it illegal to mislead consumers regarding the origin of products. In light of the recent Hepatitis A scare regarding frozen berries, how will the public be protected and how unsafe will our food chain become?

I have utilised the following publically available material as reference and recommend the reader review these to obtain a full understanding of this topic. These are strictly my summaries.

http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/other- http://www.dfat.gov.au/trade/agreements/tpp/resources/Pages/resources.aspx autre/australia-australie.aspx?lang=eng https://www.accc.gov.au/consumers/groceries/country-of-origin https://wikileaks.org/tpp/ http://www.wikileaksparty.org.au/why-australians-should-be-worried-about-the-tpp/

 Page 13 PRODUCTIVITY COMMISSION EXISTING PROTECTIONS ISDS Provisions are not a pre-requisite ISDS Provisions REPORT for trade with countries as sufficient safeguards are already available ISDS provisions grant foreign investors the right to access through the following mechanisms: an international tribunal if they believe actions taken by a host government are in breach of commitments made in a ISDS provisions are intended to reduce the 1. World Bank Multilateral Free Trade Agreement (FTA) or an investment treaty, thus political risks to foreign investors of Investment Guarantee Agency 2. Australian Government’s providing additional protections for investors. government actions, but are distinct from Export Finance and Insurance Source: DFAT http://dfat.gov.au/trade/agreements/Pages/faq-on- commercial arbitration, which is intended to Corporation offers Political isds.aspx Risk Insurance to Australian provide an alternative mechanism for businesses (similar coverage resolving business-to-businesses disputes to World Bank 3. Private insurance markets also outside of any country’s formal judicial offer investment insurance WHAT ARE THE RISKS OF ISDS system. coverage for the same risks 4. Prospective investors may be PROVISIONS? There is also evidence that committing to able to negotiate dispute RESTRICTION ON GOVERNMENT’S ABILITY TO PASS mechanisms prior to ISDS provisions does not influence foreign LEGISLATION WHICH MAY TRIGGER ISDS, RIGHTS MAY BE investments (e.g. (WA Barrow investment flows into a country. In a recent Island Act (2003), Schedule 1)) GRANTED TO INVESTORS THAT ARE NOT PROVIDED TO DOMESTIC INVESTORS study, Berger et al. (2010) examined the Australia have, in past ISDS clauses, utilised the rules of the UN impacts of IIAs — both with and without Commission on International Trade ISDS provisions — on foreign direct (UNCITRAL) or arbitration through International Centre for Settlement of investment flows. The authors concluded Investment Disputes (ICSID) that while the inclusion of national treatment provisions within treaties had a “I have heard the argument that transparency would undermine the Trade Representative’s positive effect on investment flows, the policy to complete the trade agreement agreement by a country to ISDS provisions because public opposition would be had no statistically significant impact on significant. In other words, if people knew foreign investment into that country. This what was going on, they would stop it. This suggests that even if a country believes it is argument is exactly backwards. If attracting an insufficient level of foreign transparency would lead to widespread public opposition to a trade agreement, then that investment, introducing ISDS provisions are trade agreement should not be the policy of unlikely to change the situation, once other the United States.” factors influencing investment are taken into account. US Senator Elizabeth Warren  Page 14 http://www.pc.gov.au/__data/assets/pdf_file/0010/1042 03/trade-agreements-report.pdf AUSTRALIA ISDS ISDS Claims CLAIM In 2013, 57 new known ISDS cases. ISDS Risks A lack of transparency exists with The Tobacco Plain Packaging 1. Almost half against developed Bill 2011 (Cth) introduced states (most EU respondents); regard to tribunals. Some issues laws that would ban 2. 45 of the 57 brought by identified are: cigarette logos on investors from developed packaging and replace them countries; 1. Scrutiny of awards with health warnings. 3. 13 of the cases arose from two In June 2011, Philip Morris sets of measures (renewable Under most rules for investment Asia utilised an existing 1993 energy) adopted by Czech arbitration there is no review or bilateral Agreement between Republic & Spain, 2 relate to quality control mechanism until Hong Kong & Australia to begin Australia’s first Greek financial crisis – several after the final award has been investment treaty claim. have an environmental aspect; issued Philip Morris claimed that 4. The award of USD 935 M in legislation would result in the case of Al-Kharafi v. Libya is 2. Vague formulation of treaty the expropriation of its the second highest known. provisions risks arbitrators investment due to the making interpretations “substantial deprivation of By the end 2013, 98 countries had been the intellectual property and respondents to a total of 568 known 3. Varying degree of secrecy goodwill” thereby 4. Relatively small pool of contributing to the cases. destruction of the value of arbitrators – increases its investment Claimants from the EU and the USA possibility of conflicts of account for 75% of all cases. http://www.ag.gov.au/Intern interests ationalrelations/International 5. High cost of ISDS Law/Documents/Philip%20M Overall number of concluded cases arbitrations – estimated by orris%20Asia%20Limited%20 reached 274. Approximately 43% in Notice%20of%20Claim%202 favour of the State. 31% in favour of OECD at $8 Million each^ 7%20June%202011.pdf investor. 26% Settled 6. Growing phenomenon of Philip Morris also sued third party funding of claims Uruguay for $2 Bn claiming Source: United Nations Conference on Trade by banks, hedge funds and that Uruguay had and Development April 2014 insurance companies in expropriated its trademark after Uruguay increased the http://unctad.org/en/publicationslibrary/web exchange for a share of the size of health warnings on diaepcb2014d3_en.pdf proceeds. packaging EXISTINGhttp://www.wikileaksparty.org.au/w ISDS/IPPA CLAUSES hy-australians-should-be-worried- http://www.hcourt.gov.au/assets/pu about-the-tpp/ Currently Australiablications/speeches/current- has ISDS provisions in five FTA’s. These are the Korea-Australia Free Trade Agreement, Australia-Chile Free Trade Agreement, Singapore-Australia Free Trade Agreement, Thailand-Australia Free Trade Agreement and the AEAN-Australia-New Zealand Free Trade Agreement. There are a further 21 Investment Protection and Promotion Agreements (IPPA’s) with justices/frenchcj/frenchcj09jul14.pdf  Page 15 Argentina, China, Czech Republic, Egypt, Hong Kong, Hungary, India, Indonesia, Laos, Lithuania, Mexico, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Sri Lanka, Turkey, Uruguay and Vietnam. Q.1 Why is an ISDS clause now considered suitable for an Agreement which encompasses the USA when previously both governments opted out and both parties reported that both contracting parties had sufficiently robust legal systems for resolving disputes?

Q.2. Given the information available regarding some large payouts to investors will Australia begin a separate budget to deal with future ISDS claims? Once an ISDS provision is signed all tobacco groups would be able to begin their individual claims.

Q.3. Does the Senate not believe that the Australian legislative process is undermined by tribunals that sit outside the Australian courts AND the ICCA and UNCTAD?

I have utilised the following publically available material as reference and recommend the reader review these to obtain a full understanding of this topic. These are strictly my summaries.

http://www.pc.gov.au/__data/assets/pdf_file/0010/104203/trade-agreements-report.pdf http://www.aph.gov.au/about_parliament/senate http://www.ag.gov.au/Internationalrelations/InternationalLaw/Pages/Tobaccoplainpackaging. http://big.assets.huffingtonpost.com/EWFromanLetter.pdf aspx http://www.hcourt.gov.au/assets/publications/speeches/current- http://www.oecd.org/investment/internationalinvestmentagreements/40079647.pdf justices/frenchcj/frenchcj09jul14.pdf http://www.abc.net.au/news/2014-01-09/warne-smith-the-environment-will-pay-for-free- http://www.bilaterals.org/spip.php?page=print&id_article=20456 trade/5192156 http://aftinet.org.au/cms/ http://www.abc.net.au/news/2014-11-17/tienhaara-will-there-be-a-devil-in-the- detail-of-the-china-fta/5896534 http://www.arbitration- http://www.iit.adelaide.edu.au/research/conferences/docs/ausfta_ful_FINAL icca.org/about.html;jsessionid=D79EFF205EBA0090E23389C2F4719162 .pdf http://www.oneillinstitutetradeblog.org/tag/philip-morris/ http://unctad.org/en/PublicationsLibrary/diaeia2013d2_en.pdf

 Page 16 Conclusion

I believe in having a strong democratic future, with robust safeguards where policymakers operate transparently. TPP has shown that whilst we have a strong system in place, those with power are still able to corrupt it.

I believe that governments should set policies and laws based on the needs of their people. I am opposed to the notion of those with access to greater resources having the opportunity to influence Government policy.

I believe that every generation should leave the world better, safer, stronger and more stable for the next generation. It is my view that TPP will not achieve this.

The TPP will not assist in reducing global inequality it will further exasperate it. Countries will be sued through tribunals that sit in foreign locales and sit outside that country’s legal system. Governments will be too risk-averse to pass legislation that may be seen as “investor-unfriendly” and risk invoking ISDS suits. Money will be deviated from social and infrastructure projects to pay investor claims further ripping the social safety from our most vulnerable.

I implore you to think carefully before implementing the TPP Agreement, put aside party politics and think of how large this issue is and the ramifications of binding Australia.

Sincerely,

Warren Whelan

3/11/2016

i http://dfat.gov.au/trade/agreements/tpp/submissions/Pages/submissions.aspx ii https://independentaustralia.net/politics/politics-display/tpp-a-high-quality-agreement--for- multinationals,6337 iii http://www.choice.com.au/media-and-news/consumer-news/news/dfat-uninvites-journalist-from-tpp- briefing.aspx iv www.opengovpartnership.org/about/open-government-declaration v https://theyvoteforyou.org.au/people/senate/sa/penny_wong/divisions/2015-02-11/1 vi http://www.pennywong.com.au/speeches/response-statement-trans-pacific-partnership-minister- representing-minister-trade-investment-speech-senate-canberra/ vii http://www.aph.gov.au/about_parliament/senate/about_the_senate viii https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-issue-issue- negotiating-objectives ix http://www.flushthetpp.org/tpp-corporate-insiders/ x http://www.theguardian.com/business/2015/jan/20/barack-obama-trans-pacific-partnership-republicans xi https://www.mja.com.au/journal/2015/202/4/what-doctors-should-know-about-trans-pacific- partnership-agreement xii http://www.sbs.com.au/news/article/2013/12/23/how-would-tpp-agreement-affect-australians xiii http://searches.choice.com.au/search?&site=default_collection&btnG=Search+CHOICE&client=default_fr ontend&output=xml_no_dtd&proxystylesheet=version1_frontend&sort=date%3AD%3AL%3Ad1&oe=UTF -8&ie=UTF-8&ud=1&exclude_apps=1&tlen=100&q=tpp xiv https://choice.good.do/dont-trade-it-away/release-the-tpp-text/ xv http://www.ipaustralia.gov.au/ xvi http://www.dfat.gov.au/trade/agreements/tpp/resources/Pages/resources.aspx xvii http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/other-autre/australia- australie.aspx?lang=eng ^ http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj09jul14.pdf

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