Footnotes
Chapter 1 - Introduction
[1] Journals
of the Senate, 6 March 2014, p. 576.
[2]
Selection of Bills Committee, Report No. 2 of 2014, 6 March 2014,
Appendix 13.
[3]
Journals of the Senate, 6 March 2014, p. 561.
[4]
Explanatory Memorandum, p. 2.
[5]
Second reading speech, Senate Hansard, 5 March 2014, p. 902.
Chapter 2 - Issues
[1] Department
of Foreign Affairs and Trade, 'Frequently Asked Questions on Investor-State
Dispute Settlement (ISDS)', https://www.dfat.gov.au/fta/isds-faq.html.
[2] Department of
Foreign Affairs and Trade, 'Frequently Asked Questions on Investor-State
Dispute Settlement (ISDS)', https://www.dfat.gov.au/fta/isds-faq.html.
[3] Department of
Foreign Affairs and Trade, 'Frequently Asked Questions on Investor-State
Dispute Settlement (ISDS)', https://www.dfat.gov.au/fta/isds-faq.html.
[4]
Foreign Affairs Defence and Trade References Committee, Voting on
Trade: The General Agreement on Trade in Services and an Australia –US Free
Trade Agreement, November 2003, p.134, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Completed%20inquiries/2002-04/gats/report/index
[5]
Department of Foreign Affairs and Trade, Government response to the
report of the Senate Foreign Affairs, Defence and Trade References–Voting on trade:
The General Agreement on Trade in Services and an Australia-US Free Trade
Agreement, p. [12], https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Completed%20inquiries/2002-04/gats/index
[6] Productivity
Commission, Bilateral and Regional Trade Agreements, November 2010, http://www.pc.gov.au/__data/assets/pdf_file/0010/104203/trade-agreements-report.pdf
[7] Department
of Foreign Affairs and Trade, Gillard Government Trade Policy Statement:
Trading our way to more jobs and prosperity, April 2011, p.14, http://www.acci.asn.au/getattachment/b9d3cfae-fc0c-4c2a-a3df-3f58228daf6d/Gillard-Government-Trade-Policy-Statement.aspx.
[8] Department of
Foreign Affairs and Trade, 'Frequently Asked Questions on Investor-State
Dispute Settlement (ISDS)', https://www.dfat.gov.au/fta/isds-faq.html.
[9] Attorney-General's
Department, 'Tobacco plain packaging—investor-state arbitration', http://www.ag.gov.au/Internationalrelations/InternationalLaw/Pages/Tobaccoplainpackaging.aspx
[10]
Attorney-General's Department, 'Tobacco plain packaging—investor-state
arbitration', http://www.ag.gov.au/Internationalrelations/InternationalLaw/Pages/Tobaccoplainpackaging.aspx
[11]
Australian Fair Trade and Investment Network (AFTINET), Submission 105,
p. 7.
[12]
Dr Patricia Ranald, Australian Fair Trade and Investment Network
(AFTINET), Committee Hansard, 6 August 2014, p. 29.
[13]
Dr Matthew Rimmer, Committee Hansard, 6 August 2014, p. 7.
[14]
Dr Matthew Rimmer, Committee Hansard, 6 August 2014, p. 7.
[15]
New South Wales Teachers Federation, Submission 42, pp. 2–4.
[16]
See for example: Professor Thomas Faunce, Australian National University, Submission
49, pp. 22–27; New South Wales Nurses and Midwives' Association, Submission
67, p. 2; Médicins
Sans Frontières, Submission
89, pp. 3–5.
[17]
Mr Terry Mason, Indigenous Policy Committee, National Tertiary Education
Union, Submission 103, p. 1.
[18]
See for example: 350.org, Submission 75, pp. [3–5]; Safe Climate Brisbane,
Submission 96, p. [2].
[19]
See for example: New South Wales Nurses and Midwives' Association, Submission
67, p. 3; Australian Medical Students' Association, Submission 80, p. 2;
Public Health Association of Australia (PHAA), Submission 91, pp. 4–5
[20]
Mrs Tracey Tipping, Eternal Source PTY LTD, Committee Hansard, 6
August 2014, pp.1–2; GM Free Australia Alliance Inc also raised concerns
regarding GMOs, Submission 29, p. [2].
[21]
Mrs Tracey Tipping, Eternal Source PTY LTD, Committee Hansard, 6
August 2014, p. 2.
[22]
Australian Fair Trade and Investment Network (AFTINET), Submission 105,
p. 4.
[23]
Dr
Kyla Tienhaara, RegNet/College of Asia and the Pacific, Australian National
University, Submission 86, p. 20.
[24]
Associate Professor Kimberlee Weatherill, Committee Hansard, 6
August 2014, p. 28.
[25]
Dr Sam Luttrell and Dr Romesh Weeramantry, Submission 106, p. 6.
[26]
Professor Luke Nottage, Committee
Hansard, 6 August 2014, p. 28.
[27]
Associate Professor Kimberlee Weatherall, Sydney Law School, University of
Sydney, Submission 88, p. 6.
[28]
Professor Emerita Dorothy Broom AM, Submission 35, p. [3].
[29]
National Tertiary Education Union, Submission 129, pp. 9–10.
[30]
Associate Professor Kimberlee Weatherall, Committee Hansard, 6
August 2014, p. 23.
[31]
Associate Professor Kimberlee Weatherall, Committee Hansard, 6
August 2014, p. 24.
[32]
Associate Professor Kimberlee Weatherall, Sydney Law School, University of
Sydney, Submission 88, p. 7.
[33]
Professor Luke Nottage, Sydney Law School, University of Sydney, Submission
21, p. 5.
[34]
Professor Luke Nottage, Committee
Hansard, 6 August 2014, p. 27.
[35]
Associate Professor Kimberlee Weatherall, Sydney Law School, University of
Sydney, Submission 88, p. 7.
[36]
Mr Richard Braddock, Department of Foreign Affairs and Trade, Committee
Hansard, 6 August 2014, p. 45.
[37] AID/WATCH,
Submission 107, p. 1; see also Dr Kyla Tienhaara, RegNet/College of Asia
and the Pacific, Australian National University, Submission 86,
p. 27.
[38]
Dr
Kyla Tienhaara, RegNet/College of Asia and the Pacific, Australian National
University, Submission 86, p. 27.
[39]
Professor Luke Nottage, Sydney Law School, University of Sydney, Submission
21, p. 2.
[40]
Dr Hazel Moir, Adjunct Associate Professor, Research School of Social
Sciences, Australian National University, Submission 56, p. 2.
[41]
Dr
Kyla Tienhaara, RegNet/College of Asia and the Pacific, Australian National
University, Submission 86, p. 7.
[42]
Professor Luke Nottage, Committee
Hansard, 6 August 2014, p. 28.
[43]
See for example; Lock the Gate Alliance, Submission 133, p. 4.
[44]
National Tertiary Education Union, Submission 129, p. 9.
[45]
The Australia Institute, Submission 79, p. 5.
[46]
Mr Andrew Percival, Law Council of Australia, Committee Hansard, 6
August 2014, p. 34.
[47]
Dr Patricia Ranald, AFTINET, Committee Hansard, 6 August 2014,
p. 32.
[48]
See for example: IndutriALL Global Union, Submission 20, p. 2;
Centre for Health Equity Training, Research and Evaluation (CHETRE), Submission
66, p. 4. Australian Council of Trade Unions, Submission 81, p. 10.
[49]
See for example: IndutriALL Global Union, Submission 20, p. 2;
Australian Council of Trade Unions, Submission 81, pp. 9–10.
[50]
Professor Luke Nottage, Sydney Law School, University of Sydney, Submission
21, p. 3.
[51]
Professor Luke Nottage, Committee Hansard, 6 August 2014, p. 20.
[52]
Department of Foreign Affairs and Trade, Submission 135, p. 1.
[53]
Dr Sam Luttrell and Dr Romesh Weeramantry, Submission 106, pp. 2–3.
[54]
Mr Chris De Cure, Department of Foreign Affairs and Trade, Committee
Hansard, 6 August 2014, p. 45.
[55]
Australian Chamber of Commerce and Industry, Submission 105, p. 5.
[56]
Australian Dental Industry Association , Submission 122, p. 3.
[57]
Department of Foreign Affairs and Trade, Submission 135, p. 2.
[58]
Mr Chris De Cure, Department of Foreign Affairs and Trade, Committee
Hansard, 6 August 2014, p. 42.
[59]
Department of Foreign Affairs and Trade, Submission 135, p. 2.
[60]
Professor Luke Nottage, Sydney Law School, University of Sydney, Submission
21, p. 5.
[61]
Professor Luke Nottage, Committee
Hansard, 6 August 2014, p. 20.
[62]
Department of Foreign Affairs and Trade, Submission 135, p. 2.
[63]
Mr Chris De Cure, Department of Foreign Affairs and Trade, Committee
Hansard, 6 August 2014, p. 49.
[64]
Mr Andrew Percival, Law Council of Australia, Committee Hansard, 6
August 2014, p. 35.
[65]
Professor Luke Nottage, Sydney Law School, University of Sydney, Submission
21, pp.1–2.
[66]
Law Council of Australia, Submission 90, pp. 1–2.
[67]
Professor Luke Nottage, Sydney Law School, University of Sydney, Submission
21, p. 5.
Labor Senators' Additional Comments
[1]
Huang 2005, study analysing results of the World Business Environment
Survey (10 000 business responses from 80 countries).
[2]
Ibid, at p.271.
[3]
Trakman, Nottage, Kurtz and Armstrong, “Investor-state Dispute
Settlement”, ARC Discovery Project 2014-2016. Project summary: “This project
will evaluate the economic and legal risks associated with the Australian
Government's current policy on investor-state dispute settlement through
multidisciplinary research, namely econometric modeling, empirical research
through stakeholder surveys and interviews, as well as critical analysis of
case law, treaties and regulatory approaches. The aim of this project is to
identify optimal methods of investor-state dispute prevention, avoidance and
resolution that efficiently cater to inbound and outbound investors as well as
Australia as a whole. The goal is to promote a positive climate for investment
inflows and outflows, while maintaining Australia's ability to take sovereign
decisions on matters of public policy.” http://www.law.unimelb.edu.au/research/research-achievements/grants-awarded/australian-research-council-arc/arc-discovery-projects/leon-trakman-luke-nottage-j-rgen-kurtz-and-shiro-armstrong-arc-discovery-project
[4] Australian
Productivity Commission, Australia's bilateral and regional trade agreements,
at pp xxxvi and xxxviii; also see chapter 14 of the report.
Key Findings: (a) There does
not appear to be an underlying economic problem that necessitates the inclusion
of ISDS provisions within agreements. Available evidence does not suggest that
ISDS provisions have a significant impact on investment flows. (b) Experience
in other countries demonstrates that there are considerable policy and
financial risks arising from ISDS provisions.
Recommendations:
That Australian Governments should seek to avoid the inclusion of
investor-state dispute settlement provisions in BRTAs that grant foreign
investors in Australia substantive or procedural rights greater than those
enjoyed by Australian investors.
[5]
UNCTAD IIA Issues Note No.2, June 2013, “Reform of Investor-State
Dispute Settlement: In search of a Roadmap.”
Dissenting Report by the Australian Greens
[1]
United Nations Conference on Trade and Development, Recent Developments
in Investor State Dispute Settlement, No 1., April 2014. http://unctad.org/en/PublicationsLibrary/webdiaepcb2014d3_en.pdf
[2]
Paul Krugman, ‘No Big Deal’, The New York Times, February 27 2014, http://www.nytimes.com/2014/02/28/opinion/krugman-no-big-deal.html?hp&rref=opinion&_r=1
[3]
‘Statement of Concern about Planned Provisions on Investment Protection
and Investor-State Dispute Settlement (ISDS) in the Transatlantic Trade and
Investment Partnership (TTIP)’ https://www.kent.ac.uk/law/isds_treaty_consultation.html,
Accessed on 4 August 2014.
[4]
AID/WATCH, Submission 107, p. 2.
[5]
Foreign Affairs, Defence and Trade Legislation Committee, Trade and
Foreign Investment (Protecting the Public Interest) Bill 2014,August 2014,
paragraph 2.59, p. 17.
[6]
Andrew Robb, Interview with Linda Mottram, 702 ABC Sydney, February 19
2014. http://www.andrewrobb.com.au/Goldstein/LocalIssues/tabid/123/articleType/ArticleView/articleId/1602/INTERVIEW-WITH-LINDA-MOTTRAM--702-ABC-SYDNEY.aspx
[7]
Professor Luke Nottage, Sydney Law School, University of Sydney, Committee
Hansard, 6 August 2014, p. 22.
[8]
Mr Richard John Braddock, Department of Foreign Affairs and Trade, Committee
Hansard, 6 August 2014, p. 46.
[9]
Associate Professor Kimberlee Weatherall, Sydney Law School, University
of Sydney, Response to Questions on Notice - public hearing - 6 August 2014,
Canberra, p. 4.
[10]
Chief Justice French, 'Investor-State Dispute Settlement – A Cut Above the
Courts?'. Supreme and Federal Courts Judges' Conference, Darwin, 9 July 2014.
p. 15.
[11]
Dr Patricia Ranald, AFTINET, Committee Hansard, 6 August 2014, p.
31.
[12]
Dr Kyla Tienhaara, RegNet/College of Asia and the Pacific, Australian
National University, Committee Hansard, 6 August 2014, p. 16.
[13]
Productivity Commission, Bilateral and Regional Trade Agreements, November
2010, p. 271.
[14]
Mr De Cure, Department of Foreign Affairs and Trade, Committee Hansard,
6 August 2014, p.42.