Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move:

That the Senate take note of the answer given by the Minister for Human Services (Senator Payne) to a question without notice asked by Senator Whish-Wilson today relating to investor-state dispute settlement clauses.

To use the words of my colleague Senator Ludlam, with all the high-pitched flag-based fear mongering that is going on in this building at the moment, I would like to talk about a real issue of threat to our sovereignty as a nation, and that is giving corporations special rights to sue governments when governments enact legislation in the public interest. These special rights are called investor-state dispute settlement clauses, with the acronym being ISDS. They are also known as Trojan Horse clauses.

When we started going into globalisation of trade 30 or 40 years ago, these clauses were introduced to prevent the expropriation of assets, which is when countries would nationalise assets or freeze remittances of corporations operating in certain areas. Modern trade deals now cover a whole range of laws and regulations that affect us in our everyday lives. In fact, in 29 chapters in the Trans-Pacific Partnership Agreement, only three of them relate to what we would classify as traditional trade. The rest of them are about synchronising laws and regulations between countries. One of the most sinister aspects of the Trans-Pacific Partnership Agreement is the investment chapter. One of those 29 chapters sets out the structure that allows corporations to challenge rules and regulations that we, as parliamentarians, implement through the democratic process of government.

I have been labelled by the trade minister—as I know a number of other people have who have raised concerns about what is actually being negotiated away in our name—as a fear mongerer. It is good, once again, to see the Productivity Commission raise similar concerns to what the Greens and a number of other people in this parliament have raised around the secret trade agendas. I will not even call them trade, I will just call them secret deregulation agendas.

These investor-state dispute settlement clauses add absolutely nothing to trade deals. The Productivity Commission pretty much suggests that ISDS protections are not necessary or sufficient to foster investment flows between developed countries with transparent and well-functioning legal systems. It also says that they introduce risk. The proliferation of these ISDS clauses has occurred in the last five years. There are nearly 550 cases of governments around the world being sued by corporations.

Our own Australian government is being sued by Philip Morris, big tobacco, for enacting legislation in the public interest to protect the health of Australians, and that is plain-packaging tobacco. This legal case is now tied up in one of the shady International Court tribunals that are subject to no rules at a sovereign level. The court cannot be appealed against and there are all sorts of other reasons why the world is now questioning—and certainly in the US politics recently why we need to have these clauses inserted in trade deals. I asked Senator Payne at question time today where the government has sought its advice on the inclusion of these dangerous, Trojan Horse clauses in trade deals. Had she spoken to well-respected commentators such as the Productivity Commission. The answer was clearly no, although she will get back to me if there have been discussions. But she certainly did not know if the government had been seeking the advice of commentators such as the Productivity Commission.

I also asked if the government had assessed the risks of including these dangerous clauses in deregulation agendas like the Trans-Pacific Partnership Agreement. There was no answer forthcoming on that. Lastly, I asked whether Chief Justice Robert French of the High Court whether the legal fraternity had been consulted about the dangers of these special ISDS clauses. Senator Payne was not sure of that either. She certainly did not answer yes or no. I know from a bill that I put to the Senate to ban these ISDS clauses that the answer actually is no to all of those questions. We have been through this with a fine toothed comb and hearing from hundreds of witnesses. These clauses are dangerous. The Australian public does not like them. The union movement does not like them for good reason. They have been soundly routed and rejected in the US. We need to actually discuss this now and have a national conversation on a corporate takeover of our democracy, selling out our sovereignty to corporations. (Time expired)

Question agreed to.