Senate debates

Monday, 25 November 2019


Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019, Customs Tariff Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019; Second Reading

8:57 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | Hansard source

I rise to join the debate on the Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019 and the Customs Tariff Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019. In their contributions to this debate, many people have said that free trade should be fair trade. To my point of view, this is not free trade. It is not free trade when big corporations are given more power than governments or Australian investors or workers—because that is what these bills, particularly through the ISDS provisions, do. You can't claim it's free trade when workers' rights are at risk. You can't call it free trade when big corporations can take governments to task. You can't justify it by saying, 'Well, Australian companies may be able to take the governments of other countries to task.' We don't support that either. And we don't support empowering Australian companies to try to ride roughshod over other countries' workers' rights and other countries' environmental rights—like Australian companies have done under other free trade agreements and the ISDS provisions. We don't think that's right either, and we call that out as well.

When we're looking at entering trade agreements, we should be ensuring we are protecting human rights, workers' rights and our environment. These need to be at the heart of how we engage, both in this region and in the rest of the world. We shouldn't be enabling multinational corporations to call the shots. No matter which way you cut it, that's what ISDS provisions do. I'll come to this in more detail later, but we don't buy the government's—or, for that matter, the ALP's—assurance that they've somehow improved the ISDS processes and they've carved some stuff out. You could drive a truck through the so-called carve-outs! The very nature of ISDS provisions means that they give others the power to try and attack, for example, our environmental protections or our workers' rights protections. It opens up the ability of corporations to take action if, for example, the government wants to improve our environmental protections—heaven forbid the government should want to!—and a company or a multinational thinks that this may stop them from making a motza.

We should be using our trade opportunities with other countries to promote values such as human rights, protecting our environment and workers' rights, But instead we see the government, now with the assistance of the ALP, sign up to what we think are dodgy trade deals which give more powers to big corporations and which could undermine Australian workers and undermine our provisions to protect the health of Australians and to protect the environment—powers for big corporations to sue our government to protect their profits. Here in Australia, these kinds of deals have already led to the collapse of Australian industries and the destruction of some of our precious places, have driven down wages and have threatened to stop our governments regulating against what we consider to be reckless corporate behaviour. We all know that big corporations wield their power for their own interests. We need to place human rights, workers' rights and environmental protection at the centre of how we trade with other countries and ensure that the community is able to scrutinise these agreements—because, once again, we still haven't had proper scrutiny of these agreements.

I've stood in this place before and raised this issue repeatedly, as has Senator Whish-Wilson when he held this portfolio, and as has Senator Steele-John. We have raised the fact that these agreements don't get proper scrutiny. They have significant potential for significant impact. The Greens care about people and the planet. We don't take corporate donations. And we do not sell out on these issues. These issues undermine Australia's sovereignty. These bills put in place the Peru-Australia Free Trade Agreement, the Indonesia-Australia Comprehensive Economic Partnership Agreement and the Australia-Hong Kong Free Trade Agreement—this at a time when the whole world can see the disruption that's going on in Hong Kong, the way that protesters are being treated and the disruptive nature of decision-making. And yet we think it's okay to go ahead and make an agreement with Hong Kong at this time. I understand that the protesters over there and the people fighting for democracy in Hong Kong haven't said, 'Don't ever sign it', and they haven't said, 'Don't rip it up.' They haven't said, 'Sign it.' They've said, 'Just don't do anything at the moment, because of the unrest that's going on.' How can we contemplate signing such an agreement when there is such unrest in Hong Kong at this time?

The schedules of the bill amend the Customs Act to provide rules for determining whether goods are Peruvian or Indonesian or Hong Kong originating goods and therefore entitled to be imported into Australia at preferential rates of customs duty. The amendments also enable regulations to prescribe record-keeping obligations on exporters and producers of goods exported to Peru, Indonesia and Hong Kong, for which a preferential rate of customs duty is claimed. The customs tariff amendment bill will make complementary amendments to the Customs Tariff Act to give effect to the preferential rates of customs duty in accordance with the Peru-Australia Free Trade Agreement, the Indonesia-Australia Comprehensive Economic Partnership Agreement and the Australia-Hong Kong free trade agreement.

While the Greens are supportive of trade agreements, they need to be ones that promote and protect environmental sustainability, human rights, labour rights and the broader principles of fair trade. We believe very strongly that the provisions in these bills do not count as free trade. They undermine the very concept of free trade, because of the ISDS provisions. It is our view that support for these trade agreements is limited to the interests of specific sectors of the economy that stand to benefit directly. Civil society, unions and human rights groups have been strongly vocal in their opposition to these agreements.

We have serious concerns about the provisions within both the Indonesia-Australia Comprehensive Economic Partnership Agreement and the Hong Kong free trade agreement relating to the ISDS, or investor-state dispute settlement, provisions. We have concerns about ecommerce, the temporary work visa programs and limiting the regulatory capacity of our government. We wrote a comprehensive dissenting report to the Joint Standing Committee on Treaties to this effect. We have serious concerns about provisions within PAFTA which relate to ISDS, temporary worker visas and the lack of clarity around which agreement Australia and Peru will follow. Will it be TPP-11 or PAFTA? We are deeply concerned about the lack of provisions which ensure compliance with human rights, labour rights and environmental protections, and we are broadly concerned with the lack of transparency and risk analysis occurring in the making of these trade agreements.

On ISDS provisions: all three of these trade agreements contain provisions for ISDS. We strongly disagree with the inclusion and use of ISDS clauses in trade agreements, which we have fought in this place on a number of occasions. ISDS clauses expand the legal rights of multinational corporations and offer advantages not afforded to domestic investors. They also create a chilling effect, where governments either delay or reconsider regulation to avoid the risk of arbitration. This is unconscionable. Particular policy areas such as labour protections, environmental protections and health and safety protections can be affected by this chilling effect.

Many of us have fought for many years to get adequate protections—and I use 'adequate' advisedly, because we know that environmental protections in this country are not adequate and need strengthening—but the ones we've got have been very hard fought for, and we should not be putting them at risk in this manner. What we have seen occur over the last few years is a so-called modernisation of the ISDS provisions, which include so-called enhanced safeguards, which are really broad, undefined and generalised protections for governments seeking to regulate for legitimate public welfare initiatives—for example, public health, safety and environmental protections. We do not think that these are an adequate modernisation of ISDS provisions, and they do not provide enhanced safeguards.

There have been controversial cases dealing with fair and equitable treatment, where tribunals have found in favour of corporations on the basis that government action has interfered with the company's own expectations of the treatment they should receive. This is an extremely worrying trend. The Peru-Australia Free Trade Agreement excludes ISDS cases against public health measures, specifically mentioning cases related to the PBS, Medicare, the Therapeutic Goods Administration and the Office of the Gene Technology Regulator. There is no specific mention of tobacco regulation, and it remains to be seen whether the general exclusion for public health measures will deter tobacco companies from taking cases if a future government should decide on changes to regulation.

The Australia-Hong Kong Free Trade Agreement also has provisions that we are nervous about. Whilst we welcome the inclusion of explicit limitations in the scope of ISDS provisions through the exclusion of the PBS, Medicare, the TGA and the Gene Technology Regulator, and in this case tobacco within the Hong Kong agreement, we do not believe there are sufficient protections for future government measures which seek to address health, the environment, essential services, industrial relations and other public interest issues.

In terms of the Indonesia-Australia CEPA, we reject the contention of the national interest analysis, the NIA, that ISDS provisions are a necessary inclusion within the IA-CEPA. We agree with the extensive analysis of ISDS provided by AFTINET in their submission to the JSCOT inquiry, and we contend that the demonstrated risks associated with these ISDS clauses—that they are costly, incompatible with human rights, procedurally opaque and lacking in impartiality—provided a strong case for their exclusion from this agreement.

As outlined by the ACTU in their submission to the JSCOT inquiry, the inclusion of ISDS provisions is a restriction on national sovereignty and the ability of governments to regulate in the public interest. The Greens agree with this position and do not believe that the proposed provisions sufficiently protect the public interest. Whilst DFAT's NIA promotes a modernised ISDS mechanism through the inclusion of carve-outs for the PBS, Medicare, the TGA and the Gene Technology Regulator, it does not prevent other ISDS claims being made where broader areas of public interest are implemented, such as environmental and, also importantly, industrial laws.

There are also inconsistencies between the Indonesia-Australia Comprehensive Economic Partnership Agreement, the Australia-Hong Kong Free Trade Agreement and the Peru-Australia Free Trade Agreement around ISDS provisions. PAFTA and the Indonesia-Australia agreement do not include a specific exclusion for tobacco regulation, which contrasts with the Australia-Hong Kong Free Trade Agreement, which contains detailed exclusions for tobacco products.

Given the Philip Morris ISDS case brought against Australia, Indonesia's involvement in the WTO dispute against Australia's plain-packaging laws and Indonesia's very prominent tobacco industry, we are concerned that this places Australia at risk of arbitration should any regulations be made to tobacco products—for example, e-cigarettes in the future. We do not accept the assertion of the NIA, which makes the assumption that general public health exemptions to ISDS sufficiently cover this. We cannot take this risk. Australia has fought so hard and made such progress in this area, and yet this potentially opens it all up again.

We're also concerned about the effects to reduce the regulatory capacity of governments in the electronic commerce trade. It has been made very clear by the ACCC in their recent digital platforms inquiry, and indeed through an extensive and growing body of evidence, that big tech companies and multinational corporations can engage in anticompetitive practices, breach privacy, avoid tax and exploit workers.

Both the Indonesia-Australia agreement and the Australia-Hong Kong agreement contain chapters outlining frameworks for e-commerce which permit the free flow of data, including financial data, across borders. We are firmly committed to ensuring that digital rights and data privacy are strongly protected, and we do not believe that either of these agreements provide tangible or sufficient provisions to achieve this. The intention of the e-commerce chapters in these agreements is to reduce regulation of data flows. This is at odds with the responsibility that the government has to be able to adapt to meet future needs with privacy protection provisions.

We are also deeply concerned about the temporary work visa programs. I bet every single member of this chamber has heard of workers who have come into this country, have not had the protections of our industrial relation laws, have been underpaid or have been abused in their workplace. They do not have job security. What is the point of making sure? In fact, the next bill that comes into this place is about further undermining our industrial relations laws. We do not want to have workers put into a position where they have unsafe work conditions, poor pay conditions and are offered substandard accommodation when they come into this country. I have heard of many occasions when this has occurred.

There's also been a lack of independent evaluation and transparency. We continue to have deep concerns about the lack of transparency and public scrutiny involved with the current procedure for making trade agreements. Again, we have outlined these concerns many times in this chamber and the opaque process continues to happen. It is essential that any proposed agreement be tabled in parliament and be open for wide public consultation prior to signing, in order to ensure consistency with domestic, democratic policy-making principles and practice which do not enable big corporations to undermine and override laws and regulations that are made in Australia to protect our health, protect our workers' rights, protect our human rights and protect our environment. These provisions are opaque. It is all very well for the ALP to now cosy up to the government to try and ram these agreements through this parliament when they still have ISDS arrangements that are opposed by trade unions. You've heard what the ACTU said. You've heard what non-government organisations have said about these agreements. They do not meet the purpose; they are not fair trade. It should not be free trade at the cost of fair trade. We do not support these agreements and we specifically do not support ISDS—the process which overrides— (Time expired)


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