As this report on Australia's treaty-making process was being
finalised the China-Australia Free Trade Agreement—a major trade deal some ten
years in the making and negotiated in secret—was signed, tabled in the
Australian Parliament and referred to the Joint Standing Committee on Treaties
(JSCOT) for inquiry and report within 20 joint-sitting days, consistent with
the process that has been in place for two decades. The Trans-Pacific
Partnership (TPP) is also entering its final stages of negotiation with
parliamentarians told recently they can access the draft text, but only after
signing confidentiality agreements.
The committee's inquiry has been timely if for no other reason
that it throws into sharp relief compelling evidence from industry bodies, the
union movement, academic experts and other stakeholders that the treaty-making
process is in need of reform. During the committee's hearing the Department of
Foreign Affairs and Trade (DFAT), which is responsible for negotiating,
consulting and finalising free trade agreements, was a lone voice in supporting
the status quo. This immediately raised a suspicion that not is all right with
the current process.
The committee heard consistent evidence that the current
process falls short on a number of counts. First and foremost, all treaties,
including complex free trade agreements, are only presented to the parliament
and subject to scrutiny after they are signed by the government. That parliament
is faced with an all-or-nothing choice when considering legislation to bring an
agreement into force prevents it from pursuing a key scrutiny and
accountability responsibility. It is no longer satisfactory for
parliamentarians and other stakeholders to be kept in the dark during
negotiations when Australia's trading partners, including their industry
stakeholders, have access under long-established and sensible arrangements.
Second, it is pointless for JSCOT inquiries to begin after
agreements are signed. This does not provide an adequate level of oversight and
scrutiny. Parliament should play a constructive role during negotiations and
not merely rubber-stamp agreements that have been negotiated behind closed
doors. Third, the department's process of consultation is not working. Meetings
and briefings with stakeholders are plentiful, but they are not as effective as
they could be and fall short of expectations, adding to stakeholders'
frustration. Finally, there is an insufficient amount of publicly available
information about agreements under negotiation and independently sourced
economic analyses of their likely benefits are not mandatory. This fuels media
speculation on the content of draft treaty text when certainty based on fact is
required. It seems only the government holds the view that the current National
Interest Analysis adds value to the process.
It is counter-intuitive for complex trade agreements which are
years in the making to be negotiated in secret, subject to stakeholder and
parliamentary scrutiny for a few short months with no realistic capacity for
text to be changed, and then for implementing legislation to be rushed through
parliament unamended. This comes very close to making a mockery of the process
and of parliament's involvement.
In addressing these problems, this report steers a middle
course between doing nothing, which is the entrenched position of the Coalition
Government, and recommending that treaties be subject to parliamentary
approval, which is unlikely to garner political support any time soon. The
Opposition favours incremental change building on the package of sensible
reforms introduced by government in 1996. This is why the report makes
practical recommendations aimed at improving the level of transparency in negotiating
treaties and the quality of consultations between DFAT and stakeholders, and making
parliament a real player in treaty-making.
Specifically, the report's key recommendations are that JSCOT
engage more in the oversight of trade agreements under negotiation and not wait
until the end of the process; that parliamentarians and stakeholders be given
access to treaty text on a confidential basis during negotiations and not a
token look at the end as with the TPP; that trade agreements be subject to an
independent cost-benefit analysis prepared up front at the commencement of
negotiations; and that a model agreement be developed as a template for all
future agreements that deal with complex issues such as investor-state dispute
settlement, intellectual property and copyright.
These are all practical measures that improve stakeholder
engagement during treaty negotiations and entrench democratic accountability
through effective parliamentary scrutiny using existing committee processes.
The measures also better serve Australia's national interest by providing a
more strategic and less reactive approach to treaty-making.
The report's recommendations are consistent with the
bi-partisan approach of successive Australian governments to trade
liberalisation including pursuit of free trade agreements. They do not question
the constitutional parameters of treaty-making, undermine the executive's
authority to sign treaties or hinder the ability of the Australian Government
to implement free trade agreements in a timely fashion. The recommendations can
be introduced quickly and without the need for legislation. Put bluntly, the
government has nothing to fear in supporting these measures. This report will
lead to a better treaty-making process and ultimately better treaty outcomes
for Australia in the future.
Doing nothing is no longer an option. Treaty-making in
Australia faces a number of challenges which cannot be met by continuing with
the existing process unchanged. These challenges include the changing nature of
Australia's international obligations and their intrusion into domestic law and
regulation; new methods of consultation and negotiation adopted in overseas
jurisdictions resulting in less secrecy; and ensuring that DFAT is adequately
resourced with the knowledge and skills to negotiate, conclude and review
complex free trade agreements.
The committee majority commends this report to the Senate and
urges the adoption of its recommendations.
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