Issues raised with the committee
This chapter is not an examination of all aspects of the Agreement but
rather details the main issues raised with the committee. As noted in chapter
1, the focus of the report is the evidence from the current inquiry although
evidence from other inquiries may also be referred to for clarity and context.
The issues discussed in this chapter focus on the areas outlined in the
inquiry's terms of reference including: the Investor-State Dispute Settlement
(ISDS) provisions, impact on Australian workers, intellectual property (IP), environmental
standards, and government procurement.
Investor–State Dispute Settlement
Investor–State Dispute Settlement (ISDS) is a mechanism in a free trade
agreement or investment treaty that provides foreign investors, including
Australian investors overseas, with the right to access an international
tribunal to resolve investment disputes. In a fact sheet the Department of
Foreign Affairs and Trade (DFAT) provided the following information about ISDS
Australia has negotiated ISDS provisions over the past three
decades to provide protection for Australian companies investing abroad. ISDS
promotes investor confidence and can protect against sovereign or political risk.
If a country does not uphold its investment obligations, an investor can have
their claim determined by an independent arbitral tribunal, usually comprising
Australia has ISDS provisions in six free trade agreements (FTA) as well
as in the TPP-11 and the Peru-Australia FTA which are not yet in force.
For a detailed background to the ISDS, please refer to Chapter 6 of Report 165 from the Joint Standing Committee on Treaties (JSCOT) on the Trans-Pacific
Partnership Agreement tabled in November 2016.
The ISDS provisions are in the Investment Chapter of TPP-11. As noted in
chapter 2 of the committee's report, as part of the suspended provisions there
has been some narrowing of the scope of claims that can be made under the ISDS
In response to a question taken on notice, DFAT stated that the TPP-11 'contains
a set of high-quality, modern rules governing the treatment of investors and
their investments. It also contains robust safeguards'. The response detailed the 'robust safeguards' which include recognition that
TPP-11 parties have 'an inherent right to regulate to protect public welfare,
including in the areas of health and the environment' and includes a list of
policy areas in Australia that cannot be challenged. Furthermore, the TPP-11
also includes procedural safeguards 'to enhance the arbitration process'.
Concerns about ISDS provisions
Similar to the concerns with ISDS provisions raised in previous
inquiries into the original TPP, the inclusion of ISDS provisions in the TPP-11
was a point of particular concern for many individuals who did not support the
signing of the TPP-11. For example, Mr Harry Creamer argued that ISDS provisions are not in the
national interest, arguing that 'many of our laws and policies, achieved
through decades of public advocacy and measured government responses, will be
threatened by trans-national corporations pursuing their own interests, backed
by these provisions'.
The Australian Fair Trade and Investment Network (AFTINET) argued that the
ISDS process is:
...an enormously costly system with no independent judiciary,
precedents or appeals, which gives increased legal rights to global
corporations which already have enormous market power, based on legal concepts
not recognised in national systems and not available to domestic investors.
Submitters including AFTINET argued that serious flaws in the ISDS
system have been identified and recommended that the TPP-11 should not contain
The Australian Manufacturing Workers' Union (AMWU) submitted:
Judicial, social and commercial concerns about ISDS are
notorious, with no less a person that former Australian High Court Chief
Justice Robert French expressing grave concerns about the procedures and
practices of ISDS. The TPP-11 gives special rights to foreign investors to
bypass national courts and sue governments for millions of dollars in these
unfair tribunals over changes to domestic laws, even if those laws are in the
public interest. Global companies have recently sued governments over medicine
prices, protection of the environment, protection of Indigenous land rights and
even a rise in the minimum wage. Notoriously Phillip Morris sued the Australian
government over cigarette plain packaging laws; whilst the Government was
successful the cost was excessive. The Canadian Government has been sued by 35
companies utilising ISDS over a range of issues.
Several submissions referred to growing opposition to ISDS in the
European Union and noted the decision by the European Court of Justice 'ruling
that ISDS undermines national legal autonomy and is incompatible with the law
of the European Union'. AFTINET explained further:
In the case of the EU, there's been growing popular
opposition to ISDS, but there have been, more importantly, two court decisions
by the European Court of Justice that ISDS provisions violate national
sovereignty and can't be negotiated by the EU Commission on behalf of EU member
states. If an agreement contains ISDS, it must now be voted on by each European
parliament. The result of that is that the European Commission fears that
national parliaments will reject FTAs that contain ISDS and it has developed a
fast-track process for agreements without ISDS to enable them to be approved by
the European Commission alone.
ISDS implications for public health
The Public Health Association of Australia (PHAA) submitted its strong
opposition to ISDS in trade agreements arguing that including such provisions
have an adverse impact of public health. It was noted that the 'threat of legal
action, or even the existence of an ISDS mechanism, can deter governments from
implementing public health policies and laws'. In this context, the PHAA was particularly concerned that the Australian
Government may be inhibited from introducing health warning labels on alcohol
containers in the future due to ambiguities in the supplementary labelling
rules in Annex 8A of the Agreement. These provisions relate to the information
provided on a supplementary label on alcohol containers and PHAA was concerned
that these provisions may pose a barrier for the implementation of health
warning labels on alcohol containers.
The PHAA and others advocated for the provision of health information to
be excluded from the supplementary labelling rules. This could be achieved by amending paragraph 5 of the existing text of Annex 8A,
adding a paragraph to the Annex or 'at the very least, the text should be
amended to affirm that a state may prescribe the presentation and placement
features for information it requires to be included on wine and spirits
containers, including on supplementary labels'.
Alternate views on ISDS
In contrast to the evidence outlined above, some evidence to the inquiry
provided a different perspective to the ISDS provisions. Mr Mark Davis,
Director, Trade and Investment, Minerals Council of Australia (MCA), responding
at the committee's hearing on 30 July 2018 stated:
ISDS doesn't create a wide-ranging ability of a foreign
company to take action against the Australian government for a policy it
doesn't like because the policy hurts its profits, which is sometimes asserted.
ISDS disputes must involve the commitments that are made between the countries
under the investment chapter. You can't just raise a dispute about anything. It
has to relate to whether the state is observing the commitments it has entered
into under the investment chapter.
In its submission, the MCA noted that the ISDS provisions contain
'extensive substantive and procedural safeguards':
The substantive safeguards mean the TPP-11 ISDS provisions
cannot be used to challenge public policies in environmental protection,
healthcare, education, social services, welfare policy, government service
delivery, cultural and heritage protection and conservation policies. The procedural
safeguards ensure that any claims, disputes or arbitrations under the TPP-11
ISDS provisions will be conducted in an open and transparent manner and will be
subject to clear procedural rules and legal standards.
In his submission, Dr Luke Nottage supported ratification of the TPP-11
and noted there have been minimal changes to the Investment chapter from the
original TPP. Dr Nottage explained the merits of ISDS:
...•even qualified procedural rights for investors to bring
direct action against host states for expropriation or other violation of
substantive treaty commitments, in addition to the option of inter-state
arbitration, has led historically to increased FDI on a world-wide basis;
•Australian investors now make good use of ISDS protections
to recoup losses incurred by alleged treaty violations, notably by developing
•the risk of successful claims against Australia and hence
supposed ''regulatory chill'' should be minimal – as shown by the outcome of
the Philip Morris claim (and the merits decision in its claim against Uruguay
over tobacco regulation) even under old treaties without TPP-like elaborations,
as well as the ambit claims recently by some US investors.
In addition, Dr Nottage recognised the public concern about ISDS and suggested
that Australia 'take leadership (preferably with New Zealand)' to commence
formal negotiations with other TPP-11 parties 'about superimposing an appellate
review mechanism after ratification' and develop guidance or a code of ethics
for ISDS arbitrators. Dr Nottage noted that these actions may assist to remedy some of the public
concerns about ISDS provisions.
According to the Business Council, 'treaty-backed ISDS provisions
provide an important avenue for Australian investors to seek remedy in the
event of arbitrary, opaque or unfair decisions by foreign governments'. The Business Council also pointed out:
Agreement to allowing foreign investors to access ISDS in
Australian must be seen in terms of the reciprocal access that Australian
investors will gain to ISDS abroad, rather than narrowly in terms of the
often-heard argument that domestic investors cannot access ISDS. All
Australians investing overseas in TPP-11 jurisdictions will be able to access
ISDS on an equal basis with all investors from other TPP-11 countries outside
their home jurisdictions.
In response to a question on notice, DFAT provided a list of
stakeholders who have expressed support for the ISDS mechanism in the TPP and
TPP-11 including: Minerals Council of Australia, Business Council of Australia,
Law Council of Australia, Australian Chamber of Commerce and Industry, Export
Council of Australia, Australian Industry Group, ANZ Banking Group, Financial
Services Council, Australian Petroleum Production and Exploration Association,
Rio Tinto, BHP Billiton, Centre for Independent Studies and Chatto Creek
DFAT response to stakeholder
DFAT addressed concerns about ISDS in its Myth Busters document.
The 'myth' in the document is 'Investor-State Dispute Settlement (ISDS)
provisions allow foreign companies to sue the Australian Government for loss of
expected profits'. The document says this is wrong and notes:
- TPP-11 investment rules help protect Australian investments
and ensure Australian businesses are given a fair go – for example, by being
given due process in local courts overseas.
- Investors cannot sue under ISDS for a mere loss of profits
where a government has decided to change its policies or regulations. Instead,
investors need to show that the government has broken a TPP-11 investment rule
– for example, by nationalising an investment without compensation, or by
denying the investor due process in a local court.
- TPP-11 investment rules mean that the Australian Government
can continue to make laws that are in the public interest, including regarding
health and the environment. There are also rules that will deter frivolous
claims and ensure that the Government is free to determine laws and policies
without the threat of legal action.
The National Interest Analysis (NIA) explains that there are safeguards
built into the rules guiding ISDS, 'making this one of the most protective
treaties in existence in terms of its protections for legitimate regulation'. In addition:
Procedural safeguards in the Agreement provide enhanced
levels of transparency in the management of ISDS claims. In addition, specific
Australian policy areas are carved-out from certain ISDS claims including:
social services established or maintained for a public purpose, such as social
welfare, public education, health and public utilities; measures with respect
to creative arts, Indigenous traditional cultural expressions and other
cultural heritage; and Australia's foreign investment policy, including
decisions of the FIRB [Foreign Investment Review Board]. Australia's tobacco
control measures as defined under the Agreement will not be able to be
When providing evidence at a JSCOT hearing, DFAT emphasised that there
are appropriate safeguards which will mean that the Australian Government 'will
be able to continue to regulate in the public interest under the ISDS
provisions' and also advised:
This set of provisions for the first time introduced new
safeguards, procedural and substantive, to allow the government to protect
legitimate public policy objectives. I think its article 9.16 of the agreement
which sets out concerns for the public interest and legitimate public policy
objectives in areas such as health and the environment. That is explicitly
referenced. We have an explicit carveout for tobacco measures as a result of
Australia taking advantage of a reservation in that area. There are a range of
procedural benefits as well, including greater transparency in the application
of arbitration and other procedural safeguards, that are built into this text.
As a result of those improvements in the safeguards elements of the ISDS, we've
taken the opportunity to update a few of our bilateral investor state dispute
settlement provisions through our bilateral investment agreements. We've laid
some of those to rest and said that we'll supersede those agreements with this
new, improved ISDS mechanism with the safeguards that it includes.
DFAT explained that in article 9.16 of the Agreement, there is 'specific
reference to our ability to legislate in pursuit of legitimate public policy
objectives in health, environment and other areas'. With respect to the example
of providing health warnings on alcohol containers, Mr George Mina said that
there are 'substantial and procedural safeguards' under article 9.16 which will
ensure that the Australian Government will be 'able to do what we want to do
with respect to public policy on health, including alcohol control'.
DFAT further advised:
Annex 8-A to the TPP-11 does not prevent the Australian
Government from regulating labelling requirements for wine and distilled
spirits. The TPP-11 also incorporates specific safeguards that recognise
Australia’s right to adopt measures for legitimate public policy purposes,
including the protection of public health. The TPP-11 provides for the
establishment of a Committee on Technical Barriers to Trade (TBT), comprising
representatives from TPP-11 Parties. This Committee can monitor the
implementation of the commitments in the TBT Chapter, such as those in Annex
8-A, and provide a conduit for cooperation and technical discussions.
Australia’s ability to influence these discussions could be diminished if we
are not in the first group of signatories to ratify the TPP-11.
In its submission, the MCA pointed out that the safeguards mean that the
ISDS provisions cannot be used to challenge public policies in a range of areas
and 'will also ensure that any claims under the TPP-11 ISDS provisions will be
conducted in an open and transparent manner and will be subject to clear
procedural rules and legal standards'.
Several submissions argued that the ISDS safeguards in the TPP-11 are
insufficient. Public Services International argued that:
...assurances that safeguards exist within the TPP-11 allowing
regulation in the interests of health and the environment lack merit. These
same safeguards have not prevented companies commencing actions against
democratically elected governments in these areas.
Public Services International also argued that 'assurances that
Australia has ISDS provisions in multiple FTAs and has not faced a barrage of
cases also lacks merit'.
Dr Patricia Ranald, Convenor, AFTINET questioned the robustness of the
As has been mentioned, the claimed general safeguards for
ISDS in the TPP-11 have loopholes identified by legal experts. They won't
prevent cases from being brought against Australia. The only cases which will
be prevented from being brought will be on tobacco regulation, because that is
the only total exemption in the agreement. I would argue that the fact that
that total exemption was thought necessary by governments to actually exclude
tobacco decisively shows that the other general safeguards are not going to be
effective in preventing cases from being launched.
Mr Paul Schofield, Director, Investment and Services Law Section, Trade
and Investment Law branch, Office of Trade Negotiations, DFAT provided some
detail to the committee about reform processes underway in relation to the ISDS
framework which Australia is actively involved in:
The first one is UNCITRAL, which is the UN Commission on
International Trade Law. They've set up a working group that's looking at
procedural reform of ISDS...Obviously it's a UN body and a multilateral process.
We're engaging with quite a few other countries in relation to that process,
looking at things like developing a code of conduct for arbitrators to address
some of the concerns regarding independence and impartiality. If you look at
the TPP and the treaty, it actually provides for the parties to agree on a code
of conduct...Separately we're also involved in ICSID, the International Centre
for Settlement of Investment Disputes process.
Mr Schofield explained that the reforms considered through the ICSID process
relate to technical, procedural rules, such as the number of days for lodging a
submission. It was noted that some of those procedural changes would not
require a change to the treaty text. Furthermore, DFAT confirmed:
Should any discussions in UNICTRAL or ICSID lead to an
amendment of an existing treaty or consideration of a new treaty, Australia’s
normal treaty making processes would be triggered. This would include consideration
by the Australian Parliament through, for example, the Joint Standing Committee
Evidence to the inquiry highlighted concerns about how the TPP-11 may
impact on Australian workers, including temporary entry of business persons and
labour market testing.
Temporary entry for business
Chapter 12 of the TPP-11 deals with the temporary entry of business
persons and includes exemptions from labour market testing. This chapter
facilitates the entry and temporary stay of nationals and permanent residents
to 'facilitate the pursuit of business or investment opportunities'.
As outlined in information published by DFAT, Australia's temporary
entry commitments are 'limited to business persons from those TPP-11 countries
that provide similar access for Australian business persons in equivalent categories'.
In accordance with the Agreement, Australia will provide temporary entry
to workers from TPP-11 in five generic categories: intra-corporate transferees,
contractual service suppliers, including professionals and technicians,
investors and independent executives, installers and servicers of machinery and
equipment, and short-term business visitors.
Australia's commitments for intra-corporate transferees, contractual
service suppliers and independent executives will be implemented through the Temporary
Skill Shortage (TSS) visa programme and installers and servicers and short-term
business visitors will be implemented through the subclass 400 and 600 visas
The Australian Nursing and Midwifery Federation expressed concerns that
the 'temporary labour provisions open the door to further exploitation of
temporary migrant workers and are not subject to labour market testing to
establish whether there are Australian workers available'.
In its submission, the MCA noted there have been 'concerns about the
impact on Australia's labour market of such movement of natural persons
provisions in recent trade agreements' and the concern that waiving labour
market testing requirements under Australia's temporary skilled migration
program 'would lead to an influx of migrant workers at the expense of
employment opportunities for Australian residents'. Drawing on data following the implementation of the China-Australia Free Trade
Agreement (ChAFTA) and the Korea and Japan FTAs, the MCA noted there has not
been an increase in the number of 457 visas granted to workers from these countries
since the FTAs have been in effect.
Some witnesses indicated that avoiding labour market testing can benefit
employers by reducing the regulatory burden on businesses and allowing them to
be more competitive. For example, Australian Pork Limited suggested farmers could save four weeks by
not undertaking labour market testing.
Labour market testing
DFAT indicated that 'the commitments that Australia made on the movement
of natural persons including the waiving of labour market testing for certain
categories are unchanged between TPP-11 and TPP-12'. DFAT further explained:
As was the case with TPP-12, the TPP-11 commitments,
including the labour market testing waivers, will apply to certain categories
of service suppliers, including contractual service suppliers, for six TPP
countries: Brunei, Canada, Malaysia, Mexico, Peru and Vietnam.
AMWU suggested that the expansion of the existing labour market testing
exemptions (in existing FTAs with China, South Korea, Thailand, New Zealand and
Singapore) will 'add more exploitable workers to the pool of 1.4 million people
who currently possess temporary work visa rights in Australia'.
The Australian Council of Trade Unions (ACTU) pointed out that other
TPP-11 countries such as New Zealand and Brunei have specified that an economic
needs test could or will be applied to the entry of overseas workers into their
respective countries. Further to this, it is noted that Peru has reserved the
right to impose labour market testing if another country is doing so.
Mr Damian Kyloh, Associate Director for Economic and Social Policy, ACTU
provided additional detail at the public hearing:
We're particularly concerned with the provisions on
contractual service providers because this includes all 430-odd occupations
under TSS visa system, previously the 457 visas. Australian and overseas
companies will be able to employ unlimited numbers of workers from at least six
TPP member countries in hundreds of occupations, across nursing, engineering
and the trades, without any obligation to provide evidence of genuine efforts
to recruit Australian workers. This includes occupations such as nurses,
engineers, electricians, plumbers, carpenters, bricklayers, tilers, mechanics
and chefs. These occupations will be open to bring in unlimited numbers of
temporary migrant workers from Vietnam, Malaysia, Japan, Canada, Mexico and
Chile. Unions cannot support an agreement that removes this basic protection
and support of Australian jobs and puts thousands of temporary overseas workers
at risk of exploitation. As we've seen under ChAFTA, some workers have been
paid as low as $10 dollars an hour.
Several submissions expressed concern about the waiving of labour market
testing. The New South Wales Retired Teachers' Association suggested that the
TPP-11 will provide for more vulnerable temporary migrant workers, and AFTINET
submitted that because these temporary workers 'are tied to one employer and
face deportation if they lose the job means that these workers are vulnerable
The NIA notes that:
A Ministerial determination will need to be made under
section 140GBA of the Migration Act 1958 to exempt from labour market
testing the intra-corporate transferees, independent executives and/or
contractual service suppliers of those TPP-11 Parties to which Australia
extended temporary entry commitments.
DFAT officials provided further detail about labour market testing at
JSCOT hearings. It was noted that Australia will extend the commitment to waive
labour market testing in the contractual service supplier category to six
TPP-11 countries: Brunei, Canada, Malaysia, Mexico, Peru and Vietnam. DFAT
emphasised that Australia has obtained 'very significant equivalent reciprocal
commitments' from each of the six countries.
At Additional Estimates in March 2018, DFAT explained that Australia's
commitments under the TPP-11 with respect to contractual service suppliers will
be implemented through the skilled occupations list administered by the
Department of Jobs and Small Business:
Contractual service suppliers can apply for a temporary work
visa under any of the occupations that are on the list at the time of
application. As I mentioned, this occupation list is regularly updated to
reflect labour market conditions and requirements, feedback from stakeholders,
employment trends and a number of other things...
DFAT explained that the skilled occupations list is updated and modified
frequently and as at March 2018, there were more than 400 specific occupations
listed. In order to meet Australia's commitments under this category,
contractual service suppliers need to meet certain requirements:
They have to meet certain trade, technical and professional
skills and expertise. They have to have the necessary qualifications, skills
and work experience to meet our domestic standards. And, importantly, these
individuals need to have a contract to supply a service in Australia...Contractual
service suppliers can apply for a temporary work visa under any of the
occupations that are on the list at the time of application.
It was also noted that Australia has made commitments in the TPP-11 for
the inclusion of contractual service suppliers and the waiving of labour market
testing, but the skilled occupations list administered by the Department of
Jobs and Small Business is not bound in the TPP-11 and is not legally guaranteed.
In response to a question taken on notice from the JSCOT hearing on
7 May 2018, DFAT advised that Australian service providers operate in
a variety of sectors in the six countries and 'are particularly prominent in
the mining, infrastructure, energy, professional services, finance and
On the issue of skills testing, Mr Justin Brown, Deputy Secretary, DFAT
explained during an Estimates hearing:
There's nothing in this agreement which makes commitments on
behalf of the Australian government in relation to our skills testing and
various other certification procedures. The Australian government maintains
complete policy flexibility to impose whatever visa conditions on temporary
skilled personnel entering Australia for certain periods, including in relation
to skills certification and licensing.
As outlined by DFAT, the Intellectual Property (IP) provisions in
chapter 18 of the TPP-11 affirm and build on the World Trade Organization's
Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement),
covering: copyright, trademarks, geographical indications, patents, industrial
designs, confidential information, plant variety protection, and civil, border
and criminal enforcement. The TPP-11 also includes provisions covering
pharmaceutical products, cybersquatting of domain names and trade secrets
The IP chapter was an area of criticism in submissions received in the
committee's 2017 inquiry and was also raised in submissions for the current
As outlined in chapter 2, a number of IP provisions from the original
TPP were suspended, including provisions relating to pharmaceutical products
(including biologics), copyright and patents. Although acknowledging the suspended provisions, several submissions remained
concerned about these sections with a number noting that the provisions could
be re-introduced (at any stage) unless they are removed.
In a response to a question taken on notice at a JSCOT hearing, DFAT
confirmed that the TPP-11 will not require any changes to Australia's policy,
legal and regulatory settings on IP:
None of the pharmaceutical provisions in either the original
Trans-Pacific Partnership (TPP) or the Comprehensive and Progressive Agreement
for Trans-Pacific Partnership (TPP-11) would require changes to Australia's
intellectual property laws or policies, including on the Pharmaceutical
Benefits Scheme. As such, neither Agreement would result in any increase in the
cost of medicines to Australians.
A number of the TPP-11 provisions relating to copyright have been
suspended. The NIA states that 'the Agreement does not require an increase in the term of
copyright protection in Australia, nor any other changes to Australia's
Open Source Industry Australia (OSIA) expressed concern about the IP
chapter. Although some of the concerns raised by OSIA in relation to copyright
have been temporarily addressed with the suspended provisions, OSIA remains
concerned that the application of Article 18.80(2) may prohibit the government
from continuing to use public domain software. OSIA suggested that the possibly ambiguity is a 'drafting error rather than a
deliberate intention to do so' but they remain concerned.
A number of the suspensions relate to the IP rules for pharmaceuticals
that were requested by the United States. In particular, the provision to
extend the data protection monopolies on biologic medicines has been suspended.
Noting that many of the provisions have been suspended, the PHAA emphasised
that they still have concerns about the public health implications of the IP
chapter. One section that has not been suspended which is of particular concern to the
PHAA is patent linkage. With reference to academic research, Dr Deborah Gleeson
A study that I did with colleagues a couple of years ago
found that some of the countries are likely to need to make changes to their
legislation to implement the patent linkage provision and only have short
transition periods to do that. There's evidence to suggest that patent linkage
in the United States has been a very successful strategy for the pharmaceutical
industry to delay the introduction of generics. Patent linkage originated from
the United States, and it's worth noting that the United States is the only
country that seeks to introduce patent linkage through trade agreements. The
United States, of course, is no longer party to the TPP, so it doesn't make
sense for other countries to be agreeing to this provision in the TPP. The TPP
also includes a number of enforcement provisions which haven't been studied closely
in their final form but which could also have an effect on the developing
Another area of concern for the PHAA is that the TPP 'also includes a
number of enforcement provisions which haven't been studied closely in their
final form but which could also have an effect on the developing countries'.
In his submission, Mr Peter Murphy (with reference to material from
AFTINET), noted that although some of the provisions of concern have been
suspended, the IP chapter, 'still reinforces existing monopolies on medicines
and restricts the ability of governments to change such regulation in future,
for example to reduce monopolies on medicines'. 
Chapter 20 of the TPP-11 deals with the environment. In its Analysis of
Regulatory Impact on Australia (ARIA), DFAT noted that the TPP-11 will address
contemporary trade challenges including by:
...promoting high levels of environmental protection, including
by liberalising trade in environmental goods and services, and ensuring TPP-11
Parties effectively enforce their domestic environmental laws. TPP-11 Parties
must also take measures in relation to a number of important environmental
challenges, such as protecting the ozone layer, protecting the marine
environment from ship pollution, combatting illegal wildlife trade and
combatting over-fishing and illegal fishing. In a breakthrough in the fight against
overfishing, subsidies for fishing that negatively affect overfished stocks and
subsidies for vessels engaged in illegal fishing will be prohibited...
As with the committee's previous inquiry, submitters were concerned that
the Environment chapter does not mention climate change or the United Nations
Framework Convention on Climate Change (UNFCCC) and does not require TPP-11
countries to adhere to their UNFCCC commitments.
The PHAA also noted its concern about the 'potential use of the ISDS
mechanism to limit or subvert government action to protect the natural and
built environments', and detailed the range of government action from which corporations
and companies have sought damages.
Friends of the Earth (FoE) submitted that the TPP-11 'will have detrimental
effects on the ability of Australia to effectively protect its environment'. FoE noted that the Environment chapter does not ensure a standard of commitment
for the countries involved as each nation is allowed to establish its own level
of domestic environmental protection. Furthermore, FoE explained that of the
four multilateral environmental agreements (MEAs) included in the text, only
one is enforceable—Trade in Endangered Species.
At the public hearing on 30 July, Ms Samantha Castro, Trades
Spokesperson and Operations Coordinator, FoE stated:
It's inadequate. There are no obligations for countries to
adhere to environmental protocols and compliance. In fact, they are
unenforceable. They are wishful thinking. The environmental chapter neglects to
ensure a standard of commitment from countries. Instead, it states that each
nation can establish its own level of domestic environmental protection. At a
time when we should be joining together to fight climate change, it seems these
regional agreements are attempting to pull us apart.
In its submission, the City of Darebin (Darebin Council) also expressed
concern about the Environment chapter:
The City of Darebin has two major concerns with this chapter.
One, that the TPP-11 doesn't go far enough in urging international corporations
to cut their emissions and two, that it opens the door for international
corporations either operating in Darebin or planning to establish themselves
her[e] to argue that they should be treated differently and not work with the
rest of the community towards a zero emissions target. Either outcome is a poor
one not only for Darebin's but Australia's sustainability goals and
The Government Procurement Chapter of TPP-11 seeks to ensure that
governments do not discriminate against foreign suppliers when assessing
tenders and awarding contracts. In accordance with the requirements of the
TPP-11, governments cannot create specifications or procedures that create
obstacles for foreign suppliers to compete for the contract and the contract
must be awarded to the supplier offering the best value for money solely on the
basis of the stated evaluation criteria.
The NIA provides some additional detail about procurement, explaining
that TPP-11 will provide new opportunities for Australian businesses to bid for
government procurement services contracts for a range of services, including accounting,
auditing and taxation, management consulting, environmental protection, and
health and social services. The NIA also notes that, for the first time,
Australian METS (Mining, Equipment, Technology and Services) and oilfield
service suppliers will be eligible to bid for government procurement
opportunities with Mexico and Peru for services to their respective state-owned
As noted in the NIA, a legislative instrument under the Public
Governance Performance and Accountability Act 2013 (PGPA Act) will need to
be made to replace the Commonwealth Procurement Rules (January 2018) (CPRs) to
make the changes required to meet the Agreement's obligations.
In its submission, AFTINET expressed concerns with this process noting
that the CPRs will be rewritten by the Department of Finance (Finance) and
tabled in Parliament, but as they are not a disallowable instrument, they
cannot be amended or voted against by the Parliament.
Finance officials confirmed that as the CPRs are issued under the PGPA
Act, there will be 'some minor consequential amendments' required to the PGPA
Act and these will be made via a non-disallowable instrument. Mr Nicholas Hunt,
First Assistant Secretary, Finance noted that such an instrument is tabled
periodically and is 'generally a relatively uncontroversial instrument'.
The committee inquired about whether the implementation of the TPP-11
would require any changes to the CPRs, in particular changes to paragraphs
10.31, 10.32 and 10.10. Finance officials confirmed 'there is no impact from
TPP-11' on these paragraphs.
Navigation: Previous Page | Contents | Next Page