Dissenting Report by the Australian Greens


The Australian Greens are supportive of trade agreements which promote and protect environmental sustainability, human rights, labour rights, and broader principles of fair trade.
We note that the conclusion of the majority report states “overwhelming support” for binding action on both IA-CEPA and A-HKFTA, however, it is our view that this support is limited to the interests of specific sectors of our economy, and does not reflect the significant and genuine concerns of the civil society, unions and human rights groups who made submissions.1
We have serious concerns about provisions within both IA-CEPA and A-HKFTA relating to Investor-State Dispute Settlement (ISDS), e-commerce, temporary work visa programs, and limiting the regulatory capacity of the government.
Additionally, we are deeply concerned by 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 occuring in the making of trade agreements.
The Greens note the thorough analysis of the majority committee report, however, we do not support the conclusions and recommendations which emerge from the interpretations of evidence given during the inquiry. We therefore disagree with the majority committee report recommendation that the agreements be implemented expeditiously, and we recommend that no binding action be taken for either of the agreements.

Issues relating to ISDS

The Greens disagree with the inclusion and use of ISDS clauses in trade agreements. 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 regulations to avoid the risk of arbitration. Particular policy areas such as labour protections, environmental protections, and health and safety protections can be affected by this chilling effect.
The Greens note that the Productivity Commission has recommended that the Australian Government avoid the inclusion of ISDS provisions in any trade agreements that grant foreign investors in Australia substantive or procedural rights greater than those enjoyed by Australian investors.2
Further, we note that there has been a shift away from including ISDS clauses in trade agreements by the EU and the U.S, and we note ongoing reviews being undertaken by the United Nations Commission on International Trade Law and the World Bank International Centre for Settlement of Investment Disputes in light of serious issues relating to transparency, impartiality, accountability, and consistency of decision-making of the ISDS system.3


The Greens reject the contention of the National Interest Analysis (NIA) that ISDS provisions are a necessary inclusion within the IA-CEPA.4 We agree with the extensive analysis of ISDS provided by AFTINET in their submission and we contend that the demonstrated risks associated with ISDS clauses, that they are costly, incompatible with human rights, procedurally opaque and lacking in impartiality provide a strong case for their exclusion from IA-CEPA.5
As outlined in the submission by the ACTU, the inclusion of ISDS provisions “are a restriction on national sovereignty and ability of governments to regulate in the public interest.”6 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, TGA, and Gene Technology Regulator, it does not prevent other ISDS claims being made where broader areas of public interest are implemented, such as environmental and industrial laws.7
Additionally, we note the inconsistency of ISDS exclusions in the IA-CEPA relative to the A-HKFTA. Article 14.21b) (footnote 21) of IA-CEPA does not include a specific exclusion for tobacco regulation which contrasts with the A-HKFTA 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 prominent tobacco industry, we are concerned that this places Australia at risk of arbitration should any regulations be made to tobacco products (such as e-cigarettes) in the future.8 We do not accept the assertion of the NIA which makes the assumption that general public health exceptions to ISDS sufficiently cover this.9
Finally, we welcome the recommendation made by the majority committee report which requests that the Australian Government terminate the Agreement between the Government of Australia and the Government of the Republic of Indonesia concerning the Promotion and Protection of Investments, and the survival clause within this agreement.10


Whilst we welcome the inclusion of explicit limitations in the scope of ISDS provisions through the exclusion of the PBS, Medicare, TGA, Gene Technology Regulator, and tobacco within the A-HKFTA, we do not believe that there are sufficient protections for future government measures which seek to address health, environmental, essential services, industrial relations and other public interest issues.

Restrictions on regulating

Contained within both IA-CEPA and A-HKFTA are chapters which, in effect, restrict the ability of government to regulate in the public interest. Of particular concern are the negative list and ratchet structure of the chapters which substantially reduce the capacity of the government to impose new regulations and respond to changing contextual factors within different policy areas such as energy, public service provision, and climate change.
We are also persuaded by concerns raised in evidence which indicate that whilst both IA-CEPA and A-HKFTA contain Annexes of non-conforming measures which outline exclusions for particular public interest regulatory areas, there is still the possibility that foreign investors could pursue ISDS cases against the government where provisions in the Investment Agreements vary to that within the Annexes.11 We view this as an unacceptable risk which limits the ability of the government to exercise its responsibility to respond to changing social, economic, and environmental circumstances which require policy change.

Issues relating to e-commerce

We are deeply concerned by efforts to reduce the regulatory capacity of the government in electronic commerce trade. It has been made very clear by the ACCC in their recent Digital Platforms Inquiry12, and indeed through an extensive and growing body of evidence13, that big tech companies and multinational corporations can engage in anti-competitive practices, breach privacy, avoid tax, and exploit workers.
Both IA-CEPA and A-HKFTA contain chapters outlining frameworks for e-commerce which permit the free-flow of data, including financial data, across borders.14 The Greens are firmly committed to ensuring that digital rights and data privacy are strongly protected and we do not believe that either of these agreements provides tangible or sufficient provisions to achieve this. The intention of the e-commerce chapters in these agreements is to reduce regulation of data-flows and this is at odds with the responsibility that the government has to adapt to the future needs of data privacy protections.

Issues relating to temporary workers

The Greens recognise the significant benefits Australia has reaped from contributions made by temporary migrant workers. However, we note considerable evidence which highlights the exploitative nature of the temporary migrant working visa system in its facilitation of wage theft and creation of an extremely vulnerable group of workers who have inadequate job security and workplace protections.15 We contend that without labour market testing provisions, this trade agreement will weaken our domestic labour market and allow for the exploitation of temporary migrant workers.
The Greens reject provisions of the IA-CEPA within the Movement of Natural Persons Chapter (Chapter 12) which waive labour market testing requirements and we disagree with provisions which allow for an additional 4000-5000 temporary Working Holiday Maker visas per year.16 This position is shared by unions and civil society groups including AFTINET, the ACTU, and the ETU as evidenced in their submissions to the inquiry.17

Issues relating to compliance with human rights, labour rights, and environmental standards

Neither the IA-CEPA nor A-HKFTA contains commitments which seek compliance with international laws and standards on human rights, labour rights and environmental protections. Further, there is no explicit evaluation of these rights-based standards in the NIA of these agreements.
The Greens are deeply troubled by these omissions and strongly believe that any trade agreements Australia agrees to participate in must contain enforceable and comprehensive provisions to protect economic, social, and environmental rights both in Australia and abroad with those we trade with.
The Greens are disappointed that the majority report glosses over the significant human rights abuses and repression currently occurring in Hong Kong. It fails to mention entirely the human rights abuses that are being committed by the Indonesian Government in West Papua.
In relation to the A-HKFTA, it is the Greens’ firm view that the Australian Government should not consider any Free Trade Agreement with Hong Kong while peaceful, pro-democracy protesters are being violently suppressed. In the last week alone we have seen the Hong Kong police employ excessive use of force, shooting a teenager at point blank range and blinding a journalist in one eye with a rubber bullet, amongst other human rights violations.
As Hong Kong Watch notes in its submission: “In light of the erosion of freedoms and the rule of law in Hong Kong which are important pillars for Australian businesses, it is therefore imperative for the Australian government to take action to ensure adequate consideration of human rights issues during future trade agreement negotiations and to include human rights protection clauses in the Australia-Hong Kong Free Trade Agreement, including suspension clauses to suspend an agreement if core human rights standards are not met and backed by an effective enforcement mechanism through Parliamentary scrutiny and monitoring of human rights compliance by both parties to the trade agreement.”18
As the majority report notes, the Australian Council of Trade Unions (ACTU) further argues that: “Given the escalating events taking place in Hong Kong at the moment, the ACTU calls on the government to wait until the situation is resolved before proceeding with the enabling legislation of the Australia-Hong Kong Free Trade Agreement. We feel it’s important that we show solidarity with the protesters, and our support for human rights, civil society and the rule of law in Hong Kong, before we decide on how to proceed with a free trade agreement.”19
The Greens disagree with the majority report view that ratification of the Agreement will “strengthen Hong Kong’s unique status under ‘one country, two systems’ and reaffirm and buttress the high measure of autonomy this provides Hong Kong over its own affairs”.20 Rather, this is an opportunity for the Australian Government to back up its words of concern with action, and demonstrate to the Chinese Government and Hong Kong authorities that repression will not stand.
In relation to IA-CEPA, the Australian Greens note with deep concern the recent violence and human rights abuses in West Papua, in particular the protestors and students killed by Indonesian security forces in late September 2019. Aside from the other concerns we have outlined in relation to the agreement, the Greens believe that the Australian Government should not proceed with ratification of the IA-CEPA while human rights abuses are ongoing in West Papua.

Issues relating to transparency and independence

The Greens continue to express deep concern about the lack of transparency and public scrutiny involved with the current procedure for making trade agreements. It is essential that any proposed agreement be tabled in Parliament and open for wide public consultation prior to signing, in order to ensure consistency with domestic democratic policy-making principles and practice.
We maintain that the social, environmental, and economic impacts of trade agreements must be independently examined and presented to the Parliament prior to the commencement of negotiations and final agreement.
The Greens support the committee’s recommendation that a process of independent modelling and analysis of trade agreements be undertaken by the Productivity Commission or an equivalent organisation and we welcome the suggestion that this modelling and analysis be submitted alongside the NIA to the committee. We believe this is a positive step towards a more independent and transparent analysis of the multifaceted implications of trade agreements.


The Australian Greens recommend that no binding treaty action be taken for either IA-CEPA or A-HKFTA.


The Australian Greens recommend that the current process for negotiating trade agreements be amended to increase transparency around the negotiations and final text of agreements, that independent national interest assessments be made, that ISDS provisions be excluded from all trade agreements, and that human rights, labour, and environmental protection provisions are included in all trade agreements.
Senator Steele-John

  • 1
    Majority Committee Report, p. 88.
  • 2
    Australian Government Productivity Commission, Trade and Assistance Reviews 2014–15, Productivity Commission Annual Report Series, page 49, available at http://www.pc.gov.au/research/ongoing/trade-assistance/2014-15/trade-assistance-review-2014-15.pdf.
  • 3
    UNCITRAL (2019), Possible reform of Investor-State Dispute Settlement (ISDS) note by the Secretariat, https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/082/01/pdf/V1908201.pdf?OpenElement (accessed 2 October 2019).
  • 4
    NIA, para 25.
  • 5
    AFTINET, Submission 17, p. 2–8.
  • 6
    ACTU, Submission 46, p. 8.
  • 7
    NIA, para 67; NIA, para 70.
  • 8
    AFTINET, Submission 17, p. 8; AFTINET, Supplementary Submission 17.1, p. 2.
  • 9
    NIA, para 27.
  • 10
    Majority Committee Report, p. xvii.
  • 11
    AFTINET, Submission 3, p. 11; AFTINET, Submission 17, p. 13.
  • 12
    Australian Competition and Consumer Commission, Digital Platforms Inquiry Final Report 2019, https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf (accessed 2 October 2019).
  • 13
    See citations in AFTINET, Submission 3, p. 12 and AFTINET, Submission 17, p. 14.
  • 14
    Department of Foreign Affairs and Trade, Text of Indonesia-Australia Comprehensive Economic Partnership Agreement, https://dfat.gov.au/trade/agreements/not-yet-in-force/iacepa/iacepa-text/Pages/default.aspx (accessed 2 October 2019); Department of Foreign Affairs and Trade, Text of Trade Agreement between Hong Kong and Australia, https://dfat.gov.au/trade/agreements/not-yet-in-force/a-hkfta/a-hkfta-text/Pages/default.aspx (accessed 2 October 2019).
  • 15
    Joint Standing Committee on Foreign Affairs and Trade (2017), Final Report: Inquiry in to establishing a modern slavery act in Australia, p. 269–304, https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024102/toc_pdf/HiddeninPlainSight.pdf;fileType=application%2Fpdf (accessed 2 October 2019); The Senate Education and Employment References Committee (2016), A National Disgrace: The Exploitation of Temporary Work Visa Holders, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/temporary_work_visa/Report (accessed 2 October 2019).
  • 16
    Department of Foreign Affairs and Trade, Text of Indonesia-Australia Comprehensive Economic Partnership Agreement, https://dfat.gov.au/trade/agreements/not-yet-in-force/iacepa/iacepa-text/Pages/default.aspx (accessed 2 October 2019).
  • 17
    AFTINET, Submission 17, p. 9–11; ACTU, Submission 46, p. 2–3; ETU, Submission 27, p. 1.
  • 18
    Hong Kong Watch, Submission 16, p. 3.
  • 19
    Damian Kyloh, Economic and Social Policy Adviser, Australian Council of Trade Unions, Committee Hansard, Melbourne, 27 August 2019, p. 28.
  • 20
    Elizabeth Ward, DFAT, Committee Hansard, Canberra, 9 September 2019, p. 2; and Michaela Browning, Consul-General, Australian Consulate-General, Hong Kong, Committee Hansard, Canberra, 9 September 2019, p. 5, as referenced in the Majority Committee Report, p. 84.

 |  Contents  |