Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I present the government’s response to the report of the Foreign Affairs, Defence and Trade References Committee on its inquiry into reforming Australia's treaty-making process and seek leave to have the document incorporated in Hansard.

Leave granted.

The document read as follows—

Australian Government response to the Senate Foreign Affairs, Defence and Trade References Committee report:

Blind agreement: reforming Australia's treaty-making process February 2016

Senate Foreign Affairs, Defence and Trade References Committee Report

Blind Agreement: reforming Australia ' s treaty-making process

Tabled 25 June 2015

Government Response to the Committee ' s Recommendations

The Government believes that Australia's existing treaty-making system is working well and is sufficiently flexible to accommodate the different approaches needed for the wide variety of treaties to which Australia becomes a party. The existing system allows for extensive consultations and enables briefing of stakeholders where appropriate.

Recommendation 1:

The committee recommends that parliamentarians and their principal advisers be granted access to draft treaty text upon request and under conditions of confidentiality throughout the period of treaty negotiations. The committee recommends that the government provides an access framework and supporting administrative arrangements.

Response:

The Government does not accept this recommendation. The Government already considers whether to provide parliamentarians with access to draft text under conditions of confidentiality on a case-by-case basis. There is sufficient flexibility in the current treaty-making system to facilitate such access when the Government decides to do so.

Recommendation 2:

The committee recommends that the Joint Standing Committee on Treaties adopt a process of ongoing oversight of trade agreements under negotiation. This process is to include:

Response:

The Government does not accept this recommendation. The Joint Standing Committee on Treaties (JSCOT) is already mandated by Parliament to provide treaty oversight. The Government considers JSCOT's current terms of referenceto be sufficiently broad for it to perform effectively this oversight role.

Recommendation 3:

The committee recommends that the Parliamentary Joint Committee on Human Rights consider the human rights implications of all proposed treaties prior to ratification and report its findings to parliament.

Response:

The Government does not accept this recommendation. Human rights implications are already considered at appropriate stages in the treaty-making process. Any domestic implementing legislation is examined for compatibility with human rights by the Parliamentary Joint Committee on Human Rights.

Recommendation 4:

The committee recommends that on entering treaty negotiations, Australia seeks agreement from the negotiating partner(s) for the final draft text of the agreement to be tabled in parliament prior to authorisation for signature. In the absence of agreement, the government should table a document outlining why it is in the national interest for Australia to enter negotiations.

Response:

The Government does not accept this recommendation. Under the Constitution the power for entering into treaties rests with the Executive. Under Australia's existing treaty-making system the Parliament, through JSCOT, already has the opportunity to review and make recommendations on treaties prior to the Executive taking binding treaty action.

Recommendation 5:

The committee recommends that, subject to the agreement of negotiating countries, the Department of Foreign Affairs and Trade publish additional supporting information on treaties under negotiation, such as plain English explanatory documents and draft treaty text.

Response:

The Government does not accept this recommendation with respect to draft treaty text. In respect of the provision of other supporting information, this is already done on a case-by-case basis where the Government considers it appropriate.

Recommendation 6:

The committee recommends that stakeholders with relevant expertise be given access to draft treaty text under conditions of confidentiality during negotiations. The committee recommends that the government develop access arrangements for stakeholders representing a range of views from industry, civil society, unions, consumer groups, academia and non-government organisations.

Response:

The Government does not accept this recommendation. Under the existing treaty-making system extensive consultation is undertaken with relevant stakeholders, as appropriate, on a case-by-case basis.

Recommendation 7:

The committee recommends that the government, prior to commencing negotiations for trade agreements, tables in parliament a detailed explanatory statement setting out the priorities, objectives and reasons for entering negotiations. The statement should consider the economic, regional, social, cultural, regulatory and environmental impacts which are expected to arise.

Response:

The Government does not accept this recommendation. Under Australia's existing treaty-making system extensive information is already made publicly available both in the lead up to and during the course of trade agreement negotiations, including detailed feasibility studies where appropriate.

Recommendation 8:

The committee recommends that a cost-benefit analysis of trade agreements be undertaken by an independent body, such as the Productivity Commission, and tabled in parliament prior to the commencement of negotiations or as soon as is practicable afterwards. The cost-benefit analysis should inform the government ' s approach to negotiations.

The committee further recommends that:

Response:

The Government does not accept this recommendation. Under the existing treaty-making system it has been common practice under successive governments to conduct a feasibility study prior to the commencement of trade negotiations and for this study to be made public.

Recommendation 9:

The committee recommends that the government develop a model trade agreement that is to be used as a template for future negotiations. The model agreement should cover controversial topics such as investor-state dispute settlement, intellectual property, copyright, and labour and environmental standards and be developed through extensive public and stakeholder consultation.

Response:

The Government does not accept this recommendation. The Government will continue to approach each negotiation on a case-by-case basis, in order to secure the best possible overall outcomes for Australia.

Recommendation 10:

The committee recommends that National Interest Analyses (NIAs) be prepared by an independent body such as the Productivity Commission and, wherever possible, presented to the government before an agreement is authorised by cabinet for signature. NIAs should be comprehensive and address specifically the foreseeable environmental, health and human rights effects of a treaty.

Response:

The Government does not accept this recommendation. The National Interest Analysis (NIA) is the Government's own explanation to the Parliament, prepared on a whole-of-government basis, as to why it is in Australia's national interest for binding treaty action to be taken.

Government ' s Response to the Dissenting Report by Coalition Senators

The Government agrees with the Dissenting Report by Coalition Senators.

Government ' s Response to the Dissenting Report by the Australian Greens

The Government notes the comments on specific recommendations contained in the Dissenting Report by the Australian Greens. The Government does not agree with these comments.

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

I move:

That the Senate take note of the document.

In two days time, on Thursday 4 February, in New Zealand the Australian government will be joining with 11 other countries to sign the biggest so-called free trade deal that this country has ever entered into. It is called the Trans-Pacific Partnership Agreement. It is a set of rules and regulations that our government—the executive—has signed us up to. Nearly everyone in this Senate chamber, in this parliament and in this country had no say whatsoever in how this agreement was put together or in the negotiations that occurred to deliver the Trans-Pacific Partnership Agreement. The faults and the dangers that are so obviously inherent in that agreement are reflected in our treaty process.

I was very disappointed when I saw the government's response to what I thought were 10 very good recommendations by the Foreign Affairs, Defence and Trade References Committee about how we can reform the treaty process. I will be honest: I stood up in here and said how disappointed I was that it did not go far enough. Nevertheless, they were sensible recommendations.

Three years ago when I started in the Senate I wanted this treaty process reviewed. I have been fighting tooth and nail with my party colleagues to have these so-called trade deals properly scrutinised. The issue is that the executive—in this case, the trade minister, Minister Andrew Robb—is able to negotiate across 29 chapters that cover just about every aspect of our life here in this country. If I understand it, it is now 31 chapters. The minister is able to negotiate a global set of rules and regulations across just about every aspect of our society and economy without coming to parliament to have these issues debated and without any oversight from us—the democratically elected representatives of the Australian people.

If you read the government's response to these 10 sensible recommendations, they say, quite simply, that under our Constitution the executive has the power to negotiate these deals. This is the way treaties were set up 115 years ago in this country, and it was reflected previously in the Westminster system in the UK when, back in those time periods, governments negotiated treaties relating to war. When we look at how complex these deals are now—deals like the Trans-Pacific Partnership Agreement, with thousands of pages of text—the treaty process has not been able to keep up with the complexity and the dangers of these trade deals.

They are undemocratic. The system is set up so that these deals are signed before they are seen by parliament, or any of us. In fact, I would go so far as to say that the deal was signed before nearly anyone even on the other side of the chamber, in the government, saw any details. Possibly the Attorney-General, the Prime Minister and one or two ministers at the most would have seen the details. Our negotiators at Defence and Foreign Affairs and Trade, who have the job of closing these deals, have seen the details, and we know that hundreds of corporate lobbyists in the US have also participated and seen the details of these deals. No NGOs or civil society groups have seen the details in these texts. They have been included in briefings, but they have not seen any details.

We have a situation, as we do with every trade deal that we sign—there have been a couple of them recently: we have had the so-called Japanese free trade deal, the so-called Korean free trade deal and the so-called Chinese free trade deal—where it is given to us lock, stock and barrel. It goes through the JSCOT—Joint Standing Committee on Treaties—process, but we cannot change a thing. There may very well be positive things in these treaties. They are so big and expansive there may be things we agree with, but we have no choice as parliamentarians but to vote for them lock, stock and barrel. We cannot change a thing about them.

The process makes trade deals highly politicised. The government media unit give the information, before we have seen it, to their newspaper drops and other journalists, and the supposed good news is out there before we have had time to analyse it. Opposing these deals is like standing in front of a speeding train. It is almost impossible, even if you have perfectly rational and reasonable reasons to oppose substantial content in these deals. My party have been very clear that we will not give corporations special rights to sue sovereign governments through investor-state dispute settlement mechanisms, not to mention the other undesirable aspects of the TPP that have now become clear.

So in two days time there will be a massive news conference. The Prime Minister and Andrew Robb—and no doubt Senator Sinodinos in this chamber—will be talking about what a great deal we have signed with 11 other countries and how it is going to revolutionise our lives. Actually, I think exactly the opposite. I think these deals have always failed to deliver on what they have promised. In fact, they have made our lives a lot more complicated and a lot more dangerous.

These 10 recommendations in front of us at least allow these deals to be independently assessed. They allow someone like the Productivity Commission to look at technical aspects of these deals, rather than just the experts that the Department of Foreign Affairs and Trade choose to use. They allow parliament to review the deals before they are signed. Parliament should at least be able to review and debate these deals before they are signed. They allow some limited access for MPs and their advisers at various stages of the deal as it is being conducted, and they talk about creating a model trade treaty process in line with what other countries around the world do.

To stand here and say that we are not going to change the process because it is what we have done for 115 years is ludicrous. This deal, the Trans-Pacific Partnership, is just one example, and there are opportunities in these deals to include content and binding agreements on things we care about, like labour standards, emissions reductions, sustainable fisheries and certification of the ethical conditions that things such as garments are produced under. There is so much more we could do if we had a say in how these deals were conducted and the content inside them. But no: it is the executive and it is special interests, and whoever has the loudest megaphone gets the deal.

In fact, we have even had support from, you may think, the most unlikely areas or stakeholders, such as the business community, asking for a more open and transparent trade treaty process. It is broken, and the name of the report, Blind agreement: reforming Australia's treaty-making process, is a very apt description of what we are dealing with here. We do enter into blind agreements. It is all the politics of the day. It is all about rushing them for a headline. It is all about not bothering to assess whether they have any benefits or what the risks might be.

We live in a democracy. These deals are essentially undemocratic. If the content of these deals were not so incredibly important, you could probably argue that it is a good thing for the government to be able to do these things quickly, but things have changed, and we absolutely need to have a say in these kinds of negotiations. I think it is quite simple. I think both the major parties, Labor and Liberal, do not want to give up that executive power, because when they are in government they want to have the ability to do this. But it is high time we injected some democracy and transparency into our treaty-making process and, most importantly, instilled some public confidence in the deals that we sign and that are on the front pages of the newspapers when it suits the minister, because the Australian public has lost confidence in the Trans-Pacific Partnership agreement, the Chinese free trade agreement and the other deals that are supposedly going to deliver these benefits. This process is broken and it needs reform.

Question agreed to.