The Trans-Pacific Partnership (TPP) is a secretive, multinational trade agreement that threatens to undermine environmental and other public interest laws, such as health, transport and intellectual property rights, in Australia. The TPP is expected to be finalised in mid-2015.
Foreign investors would be allowed to sue the Australian government outside of our justice system, if they can claim that a law or policy 'harms' their investment.
Investor-State Dispute Settlement
The most concerning aspect to the TPP, apart from the fact that it is being negotiated in secret and that no public scrutiny of the details has been allowed, is the inclusion of a provision known as the Investor-State Dispute Settlement (ISDS).
ISDS provisions will give corporations the right to sue governments for damages if they introduce laws or policies that 'investors' (companies and corporations) claim has harmed their investment, even if the laws or policies are overwhelmingly in the public interest.
Without substantial changes to the text of leaked sections of the TPP, the greatly increased risk of investor-state attacks on public interest policies will expose governments (taxpayers) to massive new financial liabilities.
Just the threat of invoking ISDS provisions has repeatedly resulted in countries dropping important public interest initiatives, exposing their populations to harm that could have been avoided. So not only are governments risking paying out huge sums to foreign investors for taking steps to protect the environment, they are less likely to adopt new environmental laws because of the threat of lawsuits.
TPP and NAFTA
The TPP will expand the extreme investor privileges found in the North American Free Trade Agreement (NAFTA). Over $350 million has been paid to investors by governments under the investor-state provisions in NAFTA-style pacts investor over toxic waste dump permits, logging rules, bans of toxic substances and billions more is already at stake in pending corporate "investor-state" attacks on domestic environmental, public health and transportation policy.
Seventy percent of the over $700 million that's been paid out to date under US Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs) have been from 'investor' challenges to natural resource and environmental policies.
US oil and gas company Lone Pine is suing the Canadian government for $250 million for putting a temporary moratorium on fracking put in place by Quebec's provincial government. Lone Pine is claiming the moratorium is a violation of its "right to mine."
Tasmania and Victoria currently have a moratorium on fracking, and both Tasmania and South Australia have a moratorium on genetically modified (GM) crops in order to protect their important agriculture industries. What effect will the TPP have on our state governments' ability to maintain or codify measures like moratoria that are designed to protect the environment, public health and existing industries?
Tobacco firm Philip Morris is using ISDS provisions to sue the Australian government over its introduction of plain packaging, a strong public health measure, in a challenge to tobacco control policies. Together with British American Tobacco, Philip Morris has also filed lawsuits against the UK Government over its plans to introduce plain packaging. The tobacco companies are seeking 'compensation' that could amount to billions of pounds if they succeed. The UK Health Department says it won't be held to ransom by the tobacco industry - but if the TPP is signed with ISDS provisions in place - it may well be.
The TPP negotiations have been shrouded in secrecy, conducted behind closed doors with non-disclosure agreements in place to secure the negotiators' silence. Because of the secrecy surrounding the TPP, the only knowledge the public has about it is what can be gleaned from leaked drafts of different chapters of the document and statements made by those involved.
But hundreds of "cleared advisors", industry lobbyists from the US, have had full access to the each draft of the TPP, even though public interest groups and the media have been barred from participating. According to consumer group CHOICE, even Australia's politicians won't get to see the TPP in its entirety until it's been finalised and amendments can't be made.
It's hard to understand why the countries involved in negotiating the TPP, including Australia, have agreed to impose binding obligations on themselves to provide foreign investors with an array of extraordinary new privileges, but they haven't seen fit to require any reciprocal health, labour or environmental obligations from foreign corporations when they invest in countries like Australia.