Consultation and transparency
An issue at the heart of this inquiry was the perceived lack of
transparency and poor quality of consultation surrounding the negotiation of
free trade agreements. This chapter will explore current treaty-making
processes, including models of transparency in other countries; analyse the
arguments for and against greater transparency in the Australian context; and
look at proposals to increase transparency and improve stakeholder
Australia's approach to transparency in the treaty-making process is
informed by the approach taken by other countries. Internationally, there is no
standard process for treaty-making, as the submission from the Department of
Foreign Affairs and Trade (DFAT) explained:
treaty negotiations, whether multilateral, plurilateral or bilateral are
complex, and will differ from treaty to treaty...Negotiations of different
treaties involve widely varying timeframes, and reflect the differing demands
and circumstances of one or more negotiating partners or negotiating contexts.
The level of transparency in negotiations also varies between treaties.
The DFAT website, under the sub-heading 'Isn't there something undemocratic
about treaty making being in the hands of the Executive?', stated:
negotiations for major multilateral treaties are generally lengthy and quite
public, parliamentary debate often takes place as the issues become publically
known. For example, as the Climate Change Convention was negotiated over a
period of years, issues associated with the draft convention were the subject
of questions without notice, questions on notice, and debate.
Whatever practice surrounds or has previously surrounded major multilateral
treaties, it is now common practice for trade agreements and other treaties to
be negotiated confidentially. As DFAT's submission to this inquiry noted,
'standard international practice is for the negotiating texts of bilateral and
plurilateral treaties to be kept confidential between the parties prior to
The Trans-Pacific Partnership—the
treaty of most concern to stakeholders throughout this inquiry—is an example of a treaty
being negotiated under strict conditions of confidentiality. The DFAT website
states: 'At the start of the TPP process it was agreed that [negotiating]
papers would be treated in confidence in order to facilitate candid and
productive negotiations. This treatment is in line with normal negotiating
practice.' The model letter that confirms the approach, which is also available
on DFAT's website, reads:
all participants agree that the negotiating texts, proposals of each
Government, accompanying explanatory material, emails related to the substance
of the negotiations, and other information exchanged in the context of the
negotiations, is provided and will be held in confidence, unless each
participant involved in a communication subsequently agrees to its release.
This means that the documents may be provided only to (1) government officials
or (2) persons outside government who participate in that government's domestic
consultation process and who have a need to review or be advised of the
information in these documents. Anyone given access to the documents will be
alerted that they cannot share the documents with people not authorized to see
During the hearing to this inquiry, DFAT explained how Australia manages
confidentiality requirements in negotiating an agreement such as the TPP:
all the cabinet ministers agree on the negotiating mandate. Officials from all
relevant departments are then involved in the negotiations, attend the
negotiating sessions and are part of the working group...They, in turn, are
briefing their respective ministers. The negotiating process is a
whole-of-government process... they brief up through their respective normal
briefing mechanisms to their ministers. That would include, where appropriate,
specific text, where they consider that it is important that the minister sees
The explanation confirmed the committee's understanding that in the case
of confidential negotiations, texts are only able to be seen by cabinet
ministers and public servants from DFAT and other relevant departments
negotiating the agreement. Parliamentarians that are not ministers, stakeholders
and the general public are not able to access draft negotiating texts or to
know the content of agreements.
Models of transparency
Although the committee accepts that confidential treaty negotiations are
relatively common, submitters gave evidence of models for improved transparency
and stakeholder engagement currently emerging in other countries.
European Union—Transatlantic Trade and Investment Partnership
A number of submissions suggested the process adopted by the European
Union for the Transatlantic Trade and Investment Partnership (TTIP)
negotiations between the United States (US) and the European Union (EU) could
be a suitable model for Australia.
TTIP is a comprehensive trade agreement between the US and the EU, which
the US sees as complementary to the TTP. Agreement to negotiate a TTIP was
reached in 2013. In response to public concerns about the lack of transparency
around the agreement, in November 2014 the European Commission committed to a
range of enhanced transparency measures. These included:
- making more EU negotiating texts public;
providing TTIP texts to all members of the European Parliament, rather
than a select few; and
publishing on a regular basis a public list of TTIP documents shared
with the European Parliament and the European Council.
Despite increasing the number of documents disclosed, the EU does not
publish any US or common negotiating documents without the explicit agreement
of the US.
EU–Japan FTA Negotiations
The EU has also developed an innovative transparency model in relation
to negotiations for the EU–Japan Free Trade Agreement. To improve stakeholder
engagement, the European Commission engaged the London School of Economics
Enterprises (LSEE) to undertake a Trade Sustainability and Impact Assessment
(Trade SIA) as part of the FTA negotiations.
In undertaking the Trade SIA, LSEE will complete an independent
economic, social and human rights, environment and sectoral analysis; produce
policy recommendations; and manage ongoing stakeholder consultations. Its aim
is not only to improve understanding and awareness of stakeholders of the
agreement, but to increase transparency and accountability.
United States' advisory committee system
Since 1974, the US has had an advisory committee system which aims to
ensure that US trade policy captures US public and private sector interests.
There are 28 advisory committees covering a range of topics and sectors, with a
total membership of around 700 advisors.
Advisors, who hold security clearances, are able to access draft
negotiating text and other documents through a secure website under strict
conditions of confidentiality. While advisors generally represent industry
interests, other interests are also represented. For example, the Trade and
Environment Policy Advisory Committee includes representatives from
environmental non-governmental organisations, consumers' unions and academia.
Other US transparency measures under the TPA bill
The purpose of the 2015 Trade Promotion Authority (TPA) bill was to
introduce a range of measures aimed at increasing the level of transparency in
trade-related negotiations. In addition to provisions allowing members of
Congress access to draft text and requiring the executive to consult with
congressional committees (as discussed in Chapter 3), the bill also includes:
appointment of a Chief Transparency Officer at the office of the
United States Trade Representative (USTR) to consult with Congress on
transparency issues, engage and assist the public and advise the US Trade
Representative on transparency policy;
a requirement that the USTR make publicly available, before
initiating FTA negotiations with a new country, a detailed and comprehensive
summary of the specific objectives, with respect to the negotiations, and a
description of how the agreement will further those objectives and benefit the
a requirement that the President publicly release the assessment
by the US International Trade Commission of the potential impact of the trade
release of the negotiating text to the public prior to the
agreement being signed by the administration.
Regional Comprehensive Economic Partnership
Australian Industry Group's submission suggested that the emerging
process being adopted in negotiations for the Regional Comprehensive Economic
Partnership (RCEP) agreement could serve as a useful model. In order to ensure
RCEP is informed by the perspective of industry, a Working Group of business
representatives was developed. The Working Group consists largely of peak
industry bodies, and aims to feed business priorities and concerns into the
Lack of transparency in the Australian context
Lack of access to information about confidential negotiations, and the
impact of such a lack of information on the quality of stakeholder consultation,
was of concern to the majority of submitters.
DFAT was the only witness appearing before the committee to argue
strongly in favour of the status quo. Its submission argued: 'disclosure of Australia's negotiating
positions could adversely affect the capacity of the government to pursue the
national interest by negotiating the best attainable outcomes'.
During the hearing, Ms Holmes, Assistant Secretary, expanded upon this
rationale for confidentiality in negotiations, telling the committee:
it is a negotiation. The fundamental rationale for that is, if you start
releasing your bottom line, your negotiating strategy, and everyone can see it,
then you are not going to get the best outcome. That is fundamentally the
rationale for the restrictions.
Almost all other submissions called for greater transparency, with a
number of stakeholders rejecting DFAT's premise that such strict conditions of
confidentiality were in Australia's national interest. This was argued to be
the case for a number of reasons which are considered below.
Lack of public trust
A number of submitters argued that the perceived secrecy of trade
negotiations leads to a lack of public trust in the process. Associate
Professor Weatherall stated:
secrecy surrounding negotiations brings the negotiations, and any resulting
agreement, into disrepute. The secrecy surrounding the Anti-Counterfeiting
Trade Agreement, for example, caused significant public concern and in some
countries protests sufficient, in the end, to cause the collapse of the
agreement. It is hard to convince people to comply with the law when they are
convinced it has been negotiated in secret to their disadvantage.
This concern was also shared by the Australian Chamber of Commerce and
Industry (ACCI), who referred to the 'alarmist politicisation of particular
provisions of treaty negotiations, frustrating the objectives of negotiators on
and CHOICE, whose submission argued:
transparency and public access to documents will assist in providing the
negotiation process and final agreement with greater legitimacy and public
trust. Documents negotiated in secrecy without meaningful consultation or
opportunity for robust public debate may be mistrusted by the public and their
perceived legitimacy will suffer.
This argument was certainly borne out by the evidence received by the
committee. The majority of submissions were from members of the public who were
gravely concerned about the perceived secrecy of trade agreements—in particular, the TPP—and for whom the
confidentiality around the agreement has led to distrust of its content. As one
submitter put it:
an agreement with such far reaching ramifications warrants a complete and open
disclosure of its content, together with a genuine opportunity for appropriate
bipartisan discussions and a full analysis of the effects that the adoption of
such an agreement would have on all stakeholders, including the general public...
conduct discussions in-camera...can only be seen as undemocratic and does nothing
to allay quite rightful fears that, because the process is deliberately
shielded from public scrutiny, the TTP [sic] proposal must contain
elements that are by nature unacceptable to the general public.
Similar sentiments were expressed in other submissions. Whether or not
they are justified, it is undeniable that certain sections of the population
are genuinely concerned about the secrecy surrounding trade negotiations, and
that for many, this leads to distrust of the content of agreements.
Identification of relevant stakeholders
Witnesses were quick to point out that if the content of trade
agreements is opaque, identification of relevant stakeholders is extremely
problematic. Under current arrangements, the approach to consultation is ad hoc
and many stakeholders with an interest in a proposed treaty have to
self-identify in order to be engaged in the process.
As Ms Hepworth explained to the committee during the hearing:
concern, on a broader scale, is that there may be stakeholders out there that
are not even aware that their interests will be caught. Most people, when they
hear there is a trade agreement, will not necessarily have thought to
themselves, for example, 'Oh my goodness—I
run a library; there is a trade agreement; this is going to mean I cannot
digitise newspapers past 1955 anymore.' And I tell you: the libraries did not
think that that was going to happen, when we knew that we were in negotiations
for the Australia-US Free Trade Agreement. So, without a certain level of
transparency, it is very difficult to know whether you do have interests that
are going to be impacted upon.
Associate Professor Weatherall showed this to be anecdotally correct
when she told the committee:
negotiators cannot possibly know every priority of every stakeholder. They
cannot guess that. Nor is it possible for all stakeholders to guess where they
need to get involved and make submissions. I have to confess that, if I had any
idea what was likely to be in the Korean agreement on IP, I would have been
much more involved.
Poor quality of consultation
A point raised during the inquiry was that high quality consultation
cannot be achieved if stakeholders have no knowledge of the content of
agreements. Poor quality consultation means stakeholders are not well informed,
in comparison with their international counterparts, and have to scrutinise the
government's actions on the unreliable basis of leaked text. It also means that
negotiators miss out on the expertise of stakeholders, and the agreements that
result may not be as beneficial as could be hoped.
DFAT acknowledged the benefits of stakeholder consultation, but
considered its current processes adequate. DFAT's submission stated:
aims of the consultation process are to give decision-makers, ultimately
Ministers, access to a wide range of information and to provide interested
persons and groups with the opportunity to present their views to the
government—including during the course of treaty negotiations...
experience has been that broad consultation results in better-informed final
decisions and Australian negotiating positions, reflecting consideration of a
wide range of perspectives including expert or sectoral knowledge. Such
consultation also promotes community understanding of treaties and their
potential value or impact.
Among other witnesses, only the Export Council of Australia was
satisfied with the current consultation process. Mr Hudson told the committee:
know there are many different views about the extent to which the Australian
government communicates with affected parties... Our view on that is that we
understand that DFAT and the like are limited as to the text of the agreements
and what they can engage with...
have attended a number of the DFAT consultation sessions and we are firmly of
the view that they do communicate as extensively as they can and they do take
into account commentary which is made.
That DFAT undertakes extensive consultation when concluding an FTA is
not in dispute. DFAT claimed to have provided over 1000 stakeholder briefings
on the TPP alone since 2011,
which is certainly a remarkable investment of time, effort and resources. The
crux of the issue for stakeholders is that, with DFAT unable to impart
knowledge about the content of agreements, the consultations are of limited
A number of witnesses explained that the quality of consultations is
compromised by the lack of access stakeholders have to information. Mr Kirkland
from CHOICE articulated his concerns to the committee:
would like to see the meetings continue, but we would like to see them involve
much higher quality engagement. They are somewhat farcical at the moment. We
have sent representatives to domestic briefings and we have also had staff
present in overseas locations while some of the negotiations have been
happening. In each of those cases meetings are held, but the discussion would
be something like DFAT saying: 'Tell us your views on the treaty', and we would
say: 'What can we comment on?' And they would say: 'Just tell us your views.'
It is nice to have the conversation, but it is not a very high value engagement
at the moment.
Ms McGrath from the Australian Industry Group agreed, telling the
committee that 'there are a lot of public forums so that people can come and
voice their concerns, but the problem is that we are voicing our concerns
Stakeholders argued that, as they are not granted access to information
on negotiations, their ability to advocate is severely compromised. Mr Melville
from ACCI told the committee that 'Industry has not been in a well-informed
enough situation to be able to influence the outcomes', providing an example of
the copper industry:
said that it will not have any impact on the industry. There were two big
manufacturers and now there is one. One has gone. The first one is surviving in
collaboration with a Korean partner. It had an enormous impact on that industry
yet we did not know about it and were not informed about it until after the
agreement was signed.
Professor Moore from the Public Health Association of Australia (PHAA) voiced
a similar concern, telling the committee:
is actually extraordinarily difficult to get information on specifics about the
issues being discussed in trade negotiations...Therefore, it severely limits our
ability to raise issues with those people in the Department of Foreign Affairs
and Trade...it severely limits our ability to raise issues with members of
parliament and with ministers and so forth—the normal processes that we go through in many, many
This is the case for PHAA's advocacy on issues such as data protection,
which they outlined to the committee:
pharmaceutical industry in the US is lobbying very hard for an extension on the
data protection period, which is the period where manufacturers of follow-on
drugs, competing products, cannot use the clinical trial data that is used to
register the initial version of the product. Their argument is that they need a
longer monopoly period in order to be able to stimulate research and
development...A patent can be challenged in court and can be revoked, but data
protection cannot be revoked. That starts at the date of marketing approval,
and it means that another company cannot use the clinical trial data that the
originator has used to register its product to prove that it is safe and
effective so that it can be sold in Australia. So, even if a patent is revoked,
we still may not be able to see biosimilar drugs, which are like generic drugs.
Ms Hepworth referred to the 'sudden great outcry' that occurs when texts
become public due to 'very controversial things... that might have serious
unintended consequences and that, sometimes, seem to have been overlooked by
the DFAT negotiators themselves', citing KAFTA as an example:
the national interest analysis and the regulatory impact statement were tabled,
there was no indication that we had picked up or increased our international-level
obligations in intellectual property. In fact, before a committee, DFAT said
that they were not aware of any increased international obligations. In
response to a question on notice, DFAT actually admitted that, yes, there had
been an increase in a substantial number of international commitments,
especially in the area of broadcasting. Now, I am not entirely sure of the
processes there, but from an outsider's perspective it rather looks like there
may have just been a mistake that would have been picked up if there were
greater transparency in the process.
In the absence of information from official sources, stakeholders either
have to speculate on the possible contents of an agreement or rely on leaked
text, where available, to inform their positions on key issues. As Mr Kirkland
have never said what is in the TPP, because we do not know. All we have been
able to do is comment on rumours, because that is the only source of
information we have had to go upon. I think it would be of benefit to everybody
involved in the process, including the government, if there was a greater level
of transparency, because we would be having that debate on a much more open,
Professor Moore noted that working off the basis of leaked draft text,
as many stakeholders currently do, is no substitute for having genuine
knowledge of the content of an agreement. He told the committee:
we are using leaked documents to try and establish an evidence base, it is
something we are quite uncomfortable with. If we actually have the document
that we are talking about... then we know what we are talking about, and perhaps
even better, if a parliamentary committee is also examining it at the same
time, then we are feeding through what we would consider a proper process.
Poor quality consultation is not only a problem for stakeholders—it also precludes DFAT
from achieving the best outcomes for Australia. Multiple submitters told the
committee that without the expert input that comes from high quality
stakeholder consultation, DFAT cannot achieve the best possible negotiating
outcomes. As Associate Professor Weatherall's submission explained:
experienced, DFAT negotiators are not subject matter experts who are in touch
with the latest cases and legislative developments in Australia and other key
jurisdictions. As agreements (especially trade agreements) become more legally
complex, there is an urgent need to engage experts where possible to ensure
that treaty text does not come with unintended impacts.
Indeed, the evidence before the committee showed that treaties to which
Australia has become a party have on some occasions had unintended consequences
that were only picked up after the treaty had been signed. Ms Hepworth provided
an example of a practical change brought about, perhaps unintentionally, due to
a free-trade agreement:
current situation where teachers in Australian schools face the choice between
criminal liability or being able to caption DVDs for the hearing-impaired
students is a direct result of the technological protection measure provisions
in the Australia-US free trade agreement.
This view is shared by ACCI, who highlight the necessity of high-quality
engagement with industry in order to secure the best negotiating outcomes. The
ACCI submission stated:
observe that due to presently limited domestic consultation processes during
trade negotiations, Australian trade treaties often contain misunderstood
provisions that are only available for consideration by business and broader
civil society after the agreed treaty text is concluded.
The Australian Industry Group agreed that DFAT needs external assistance
to secure outcomes in the national interest:
is Australian industry which will implement the advantages of freeing up trade.
But it is also industry which will bear the brunt of rapid erosion of domestic
markets. And it is industry which has the expertise to advise on the effect of
proposed measures and to highlight some of the unintended outcomes.
Proposals for reform
Publication of treaty text prior to signature
The committee heard a range of different views about how to address the
lack of transparency outlined above. Among these were persistent calls for treaty
text to be made public prior to cabinet authorising the agreement for
signature. Proponents argued that such a process would avoid the major issue
with the current treaty-making process: that by the time parliament,
stakeholders and the general public see the negotiated text it is too late for
it to be changed.
As Dr Ranald from AFTINET put it to the committee:
argument is that since trade agreements are now dealing with all these issues
that would normally be decided through an open democratic process domestically
involving public discussion and parliamentary legislation, then the trade
agreement process needs to be a lot more open...
first thing that we are asking for—and
this is very important, I think—is that at
the end of the negotiating process the text should be released for public and
parliamentary discussion before the decision to sign it is made or recommended
by cabinet. We want the text to be released before it is signed, or before
cabinet decides to sign it.
This approach was supported by a number of stakeholders, including the National
Tertiary Education Union, ACTU, Dr Rimmer and individuals from whom the
committee received submissions. Other submitters argued that Australia should
not agree to enter future negotiations conducted under conditions of
confidentiality. The Law Council of Australia submitted:
Law Council does not see any justification for negotiating such treaties in
secret. We submit that generally Australia should not in future enter into
agreements to keep draft texts and other negotiating documents secret.
The committee notes that on three separate occasions between 2013 and
2015 the Senate agreed to orders requiring the text of free trade agreements to
be tabled in parliament before signing. On 4 December 2013 a motion was moved by
the Australian Greens ordering the Minister representing the Minister for Trade
to table the final text of the TPP 'well before it is signed'.
In response to the order, the Minister for Finance, Senator the Hon Mathias
Cormann, tabled a statement claiming public interest immunity in relation to
the documents covered by the order. The statement reiterated Australia's normal
treaty-making process and drew attention to the 590 stakeholder briefings
conducted by DFAT since May 2011. It continued:
Unilateral disclosure of the
information sought before negotiations have been finally concluded and settled
in the usual way would be prejudicial to Australia's international relations.
Specifically, disclosure of this
information would be in breach of relevant commitments made to Australia's
partners in this negotiation. The twelve TPP partners have agreed to keep
negotiating documents, including the text, confidential.
Pre-emptive and unilateral
release of such confidential information would damage Australia's standing as
negotiating partner, both in respect of this process and potential future
Soon afterwards, on 11 December 2013, the Senate agreed to a similar
motion moved by the Leader of the Opposition in the Senate, Senator the Hon
Penny Wong, ordering the Minister representing the Minister for Trade to table
the full text of the Korea-Australia Free Trade Agreement, the TPP and other
bilateral and plurilateral trade agreements 'at least 14 days before signing'.
The motion noted that the US Trade Representative had undertaken to publish the
full text of all free trade agreements before signing, and resolved that '...the
Australian Senate and the people of Australia are entitled to scrutinise
proposed agreements before signing...'
The response tabled by the Minister for Finance on 12 December 2013 provided
essentially the same reasons as to why the order would not be complied with.
A further motion agreed to by the Senate on 26 March 2015, and moved by
the Australian Greens, reiterated the order of the Senate of 11 December 2013.
In doing so it noted that the Malaysian Government had decided to undertake a
cost-benefit analysis of the impact of the TPP and called on the Australian
Government to request that the Productivity Commission undertake a
comprehensive socio-economic cost-benefit inquiry into the impact of the
The government has not responded to the order.
Disclosure of additional information relating to treaties
A number of submitters called for DFAT to make additional information,
other than draft treaty text, public. CHOICE called for the release of
additional explanatory documents on treaties under negotiation such as redacted
text, issue and policy papers, explaining:
strongly supports the release of the entire negotiating text associated with
each round of negotiations at the earliest opportunity to facilitate ongoing
feedback and consultation with stakeholders. However, we accept that
incremental steps to improve transparency are far preferable to the status quo,
even if these steps fall short of complete and ongoing disclosure.
In the absence of the release of negotiating text, the Australian
Digital Alliance (ADA) argued that 'DFAT should make an informed decision as to
what could be released with a presumption towards transparency'. Their
if the full text cannot be released, there may be portions of text, or broad
outlines, or negotiation mandates that would be of use that can be released.
Similarly, the AFTINET submission proposed that 'the Australian
government should follow the example of the European Union and release
proposals and discussion papers during trade negotiations'.
These arguments are based on the assumption that there are documents
relating to treaty negotiations other than the negotiating text that could be
informative for stakeholders or the general public that Australia could make
public without breaching the terms of a confidentiality agreement or otherwise
disadvantaging Australia's national interest. However, this assumption may not
be correct: the excerpt from the confidentiality agreement for the TPP above
specifically lists government proposals and explanatory materials as documents
which cannot be released.
Disclosure of treaty texts to stakeholders
A proposal to allow key stakeholders confidential access to draft text
during negotiations was put forward by witnesses. ACCI's submission proposed:
representative bodies from civil society that are impacted by trade treaties—particularly independent economic research bodies—should be allowed to register for access to the draft
treaty text within the terms of the relevant confidentiality agreements...
are to disclose draft treaty texts in unfinished form to registered bodies in a
secure forum, in which questions can confidentially be asked of negotiators and
bodies could privately put their viewpoint on the basis of seeing the whole
draft treaty text (less draft tariff lines).
The ADA also called for stakeholders to have access to draft text,
such a complex area [IP], the insights of subject-matter experts, industry and
civil society are undoubtedly of benefit, as those groups are able to point out
connections and conflicts that may not be obvious even to experienced
negotiators. The secrecy surrounding agreements such as the TPP reduce the
ability of these groups to provide detailed assistance.
Telstra's submission also called for access to negotiating text for
enshrining access to treaty text at an early stage allows industry and civil
society to provide useful feedback to improve the ultimate operation of
treaties... Adopting this type of approach to formalising access to treaty text
subject to confidentiality requirements enables the government to better
reflect economic and community interests, leading to higher quality treaty
These proposals all appear to envisage a system similar to the US Trade
The committee recognises that Australia does not negotiate treaties in a
vacuum; our processes will necessarily be informed by the approaches taken by
our trading partners. The evidence before the committee showed that, while some
of our partners notably
the US and the EU have
taken steps to improve transparency in their own processes, Australia's system
is not dissimilar to many of our partners.
That said, the committee is convinced by the evidence from witnesses
that Australia's approach to treaty transparency requires reform. While the
committee is persuaded by arguments that the lack of transparency around
treaty-making leads to public distrust of the process, its main concern is the
negative impact such practices have on stakeholder consultations.
The committee understands that it is not possible to negotiate an
agreement to the satisfaction of every stakeholder. However, the committee does
not believe that criticism from stakeholders was merely due to disappointment
with particular negotiating outcomes. Compelling evidence from a number of
major players gives a consistent impression that DFAT's system of stakeholder
consultation requires reform.
The committee considers that, while it would be desirable for draft
treaty text to be tabled in parliament (and thus made public) prior to cabinet
authorising the agreement for signature, this may not be within Australia's
control. In the case of the TPP, Australia has entered the negotiations on the
condition of confidentiality. To make the text of the agreement public prior to
signature would require the agreement of the other negotiating parties. There
are calls for greater transparency among our negotiating partners, especially
the US, and such an agreement may in fact be reached in the case of the TPP—but
the committee understands that, while Australia should argue strongly to be
able to table treaty text prior to cabinet authorisation for signature, such
agreement may prove elusive.
In the absence of agreement from the other parties, publication of
negotiating text by Australia prior to signature would be exceedingly reckless,
as it would put Australia in breach of its commitment to maintain
confidentiality. To do so would impact negatively on Australia's relationships
with negotiating partners and jeopardise Australia's ability to engage in
international trade agreements in future.
The committee does not consider it practical for Australia to adopt a
blanket rule to not sign up to confidential negotiations in future. However,
Australia should always endeavour to table the text of treaties prior to
cabinet authorisation for signature. The committee takes DFAT's point that
complete openness in the negotiation process may not always be practical to
achieve negotiating outcomes. Furthermore, refusal to enter negotiations conducted
confidentially could see Australia left out of future trade agreements that are
in the national interest.
4.63 The committee recommends that on entering treaty
negotiations, Australia seeks agreement from the negotiating partner(s) for the
final draft text of the agreement to be tabled in parliament prior to
authorisation for signature. In the absence of agreement, the government should
table a document outlining why it is in the national interest for Australia to
While the committee considers that it would be extremely valuable for
additional information relating to treaties under negotiation to be made
public, this must be done within confidentiality agreements that Australia has
signed up to. Whether or not there are documents useful to stakeholders that
could be released without breaching our confidentiality obligations is a
question that should be resolved by DFAT.
At the very least, DFAT should work with industry stakeholders to
develop a communications strategy that addresses all matters connected with the
treaty-making process to extend the reach of its engagement with stakeholders
and the general public.
4.66 The committee recommends that subject to the
agreement of negotiating countries, the Department of Foreign Affairs and Trade
publish additional supporting information on treaties under negotiation, such
as plain English explanatory documents and draft treaty text.
The committee accepts the argument for moving toward a system where
stakeholders are granted confidential access to draft negotiating text. For
stakeholders, the lack of access to negotiating text and other detailed
information inhibits their ability to influence and scrutinise decisions being
made in the trade context in the way they would in a domestic context.
Stakeholders are also at a disadvantage in comparison to their counterparts in
least in the US—who
are allowed confidential access to draft texts as outlined above.
Moreover, providing key stakeholders with access to draft text will
enable DFAT to engage additional expertise, leading to better negotiated
outcomes. As noted in Associate Professor Weatherall's submission, DFAT
negotiators are not subject matter experts. It is the committee's hope that by providing
stakeholders with access to draft text, DFAT will draw on additional expertise during
avoid negotiating treaties that contain the 'unintended consequences' outlined
As the committee understands it, allowing stakeholders confidential
access is consistent with Australia's confidentiality obligations. For example,
the model letter on confidentiality in TPP negotiations specifically allows for
the sharing of documents with 'persons outside government who participate in
that government's domestic consultation process and who have a need to review
or be advised of the information in these documents' as long as these people
are 'alerted that they cannot share the documents with people not authorized to
Based on these requirements, there seems to be no restriction on Australia
allowing stakeholders to view texts on a confidential basis.
The committee heard evidence that the equivalent process in the US,
while allowing participation from civil society and academia, is heavily
weighted toward the views of industry. In establishing a stakeholder engagement
system for Australia, effort will need to be made to ensure that access is
granted to a representative range of voices in the community—including industry
bodies, academics, unions, and civil society organisations representing the full
range of community interests.
In the committee's view, it would be useful if DFAT monitored the
negotiation process and benchmarks included by Australia's trading partners in
their trade agreements to identify alternative negotiation models that may be
applicable to Australia in the future.
4.72 The committee recommends that stakeholders with
relevant expertise be given access to draft treaty text under conditions of
confidentiality during negotiations. The committee recommends that the government
develop access arrangements for stakeholders representing a range of views from
industry, civil society, unions, consumer groups, academia and non-government
States and territories
State and territory governments were invited to make written submissions
to the inquiry, drawing attention to term of reference (c) on the role of
consultative bodies such as the Commonwealth–State–Territory Standing Committee
on Treaties (SCOT) and the Treaties Council.
According to the DFAT submission, state and territory governments are a
key focus of the consultation process undertaken during treaty negotiations and
in the course of decision-making on proposed treaty actions. The principal
avenue for consultation between the Commonwealth Government and the states and
territories on treaty-making is the Standing Committee on Treaties (SCOT).
Established in 1982 and convened twice-yearly by the Department of Prime
Minister and Cabinet, it consists of officers representing the Premier's and
Chief Minister's Departments and officers from the Departments of Prime
Minister and Cabinet, Foreign Affairs and Trade and Attorney-General's.
is a key forum for monitoring and reporting on the negotiation and
implementation of particular treaties. SCOT operates to provide a central
coordination consultative mechanism between the Commonwealth Government and
State and Territory Governments, and to decide whether there is any need for
further consideration by the Treaties Council, a Ministerial Council, a
separate intergovernmental body or other consultative arrangements.
Through SCOT, states and territories receive twice-yearly schedules listing
all international treaties that Australia is currently negotiating or that are
under review. State and territory representatives have the opportunity to seek
further details, offer views and comments, flag those matters on which they
wish to be consulted, or improve the consultative mechanism.
The SCOT also plays an important coordinating role for the Treaties
Council—itself an adjunct to the Council of Australian Governments (COAG) and
established in June 1996—which consists of the Prime Minister, Premiers and
Chief Ministers. The Treaties Council has an advisory function to consider
treaties and other international instruments of particular sensitivity and
importance to the states and territories. However, it has only met once, in
During the inquiry, the committee received brief submissions from the
Queensland and ACT governments which provided differing perspective on the
effectiveness of existing mechanisms for Commonwealth and state/territory
consultation on treaty matters. While the Queensland Government submission
described the SCOT as a highly valuable forum for discussing treaty matters and
praised the Commonwealth for advocating on behalf of states and territories
during the treaty negotiation phase,
the ACT Government submission was more critical of existing arrangements and
provided some practical measures to enhance the process:
engagement with the States and Territories on proposed treaties is conducted
within constrained and often insufficient timeframes, which can prohibit
quality collaboration and outcomes. This can lead to individual jurisdictions
developing differing approaches to meet requirements and even duplication of
effort. The consequent lack of uniformity or standardisation can result in
future effort to harmonise arrangements. This effort could be reduced if
greater consideration was given to the initial implementation approaches prior
to a treaty being signed.
The submission also pointed to a lack of a single mechanism or means of
coordinating information with DFAT. Given the large number of people involved
in formulating treaties:
can at times be difficult to identify the best point of contact for a
particular treaty, and for a general update on a set of treaties. Developing a
mechanism for simpler and quicker access to coordinated and current information
for State and Territory Governments would be a welcome initiative.
The submission suggested practical ways to improve engagement and
information sharing with states and territories, and to streamline the
negotiation and planning process, including:
increasing the frequency of the SCOT's inter-jurisdictional
meetings to four times a year;
utilising ministerial councils as a platform for
cross-collaboration about treaties between jurisdictions; and
establishing an online information hub, accessible by all
Australian governments, that includes reporting information, timelines,
linkages and interactions with other treaties, as well as information relevant
to policy and program analysis, evaluations and community feedback.
The committee also received evidence from ACCI in relation to state and
territory obligations in the implementation of treaties and the role of COAG.
ACCI stressed that many international treaties are negotiated in a manner that
is agnostic as to the administrative division of responsibilities between the
signatory states. An example is the Minamata Convention on Mercury which was
signed by the federal government on 10 October 2013 but is yet to be ratified:
Provisions within the Convention designed to limit and
monitor the transnational trade in mercury are clearly within the purview of
the Australian Government; however, other provisions with the Convention
dealing with the domestic waste management of products containing mercury are matters
for state/territory governments.
ACCI recommended that during the negotiation stage and later through the
implementation and monitoring stage, treaties that require action on the part
of state and territory governments should be reviewed within the context of the
While the committee took note of the proposals put forward to improve
consultation with the states and territories, it does not consider that it
received enough evidence in this regard to make recommendations. Although all
Australian state and territory governments were invited to submit, only the ACT
government suggested changes to the current system. The committee is hopeful
that the adoption of other recommendations in this report—such as placing a
greater emphasis on strategy up front (as detailed in Chapter 5)—will
ameliorate some of the concerns raised in the ACT government's submission.
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