Dissenting Report by the Australian Greens
The Greens acknowledge the insightful analysis the committee has made
about the state of Australia’s treaty making process and the need for change. The
committee correctly identifies that the scope and complexity of ‘modern trade’
or ‘partnership’ agreements—such as the Trans Pacific Partnership (TPP)
Agreement—makes the case for reform compelling. The Greens agree with the
committee’s identification of three major areas for urgent reform:
transparency, consultation and independence.
However, the Greens are disappointed that the sense of urgency—so
strongly reflected in the report’s conclusion—has not been translated into a
set of recommendations that will achieve this. The incursion of modern trade or
partnership negotiations into matters of domestic policy and public interest is
such that they now function as a ‘de facto level of government’. Accordingly,
Australia’s treaty-making process should be founded on the same principles of
transparency that apply to the making of legislation and the conduct of
parliament. The Greens believe that the recommendations of the committee—whilst
an improvement on the current process—will fail to stem the anti-democratic nature
for modern trade or partnership negotiations and the lack of public trust in
A number of important recommendations include release clauses—‘opt
outs’—that would allow the government of the day to maintain the status quo.
These recommendations seek to better balance the executive power of governments
with more parliamentary scrutiny and participation. Although this principle may
appear reasonable prima facie, without legislated change to the fundamental
nature of Australia’s treaty making process the default position will always
favour executive power over parliamentary and democratic participation. In
turn, this encourages more secrecy, which is a hallmark of the current treaty
making process, and which is not in the national interest.
Unfortunately, the committee has failed to analyse and justify the need
for any secrecy or ‘commitments to confidentiality’ in Australia’s
treaty-making process. Why do negotiations around deals such as the TPP require
secrecy? The only justification provided by DFAT is that this is required due
to ‘commercial-in-confidence’. Whose interests are being favoured or
prioritised in this instance: those of large corporations or those of the
general public? It is little wonder critics of modern trade agreements see them
as a self-interested takeover of democratic institutions by corporations. The
treaty negotiation process as it stands is set up to feed these suspicions and
justify these criticisms.
It is disappointing that no examples were provided by the committee as
to how a fully open and transparent process could and does work. For example,
the report does not raise the example of the World Intellectual Property Organisation
which successfully completes complex multilateral agreements while making the negotiating
sessions open to the public and draft texts immediately available.
Instead, the committee has simply accepted and assumed that secrecy is
justified and necessary at some level. For example:
4.62: 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
Ignoring the fundamental principle of commitment to full transparency—which
the Productivity Commission says should be in our DNA—leaves the treaty-making
process open to abuse by the government of the day and undermines the “balance”
which this report purports to aspire to.
The Greens believe that, ultimately, the major parties don’t want to
relinquish any executive power to negotiate trade deals. This report is a
missed opportunity to establish a realistic set of recommendations that tackle
this key issue which is synonymous with Australia’s broken treaty process.
Comments on specific recommendations
The intent of Recommendation 4, being to require treaties to be tabled
in parliament prior to authorisation for signature, is supported. However, the
second sentence in Recommendation 4 provides a release clause from this
requirement in the “absence of agreement” with other negotiating countries. In
the absence of an incentive to do otherwise, this clause will almost certainly
be exercised by negotiating parties whose “commercial-in-confidence” interests
are served by secrecy.
Likewise, the primary intent of Recommendation 5 is supported. But,
again, the inclusion of the release clause “subject to the agreement of
negotiating countries” undermines this intention.
The Greens believe the Australian government should not enter into any
treaty processes that are not fully transparent and democratic, and that
Australia should show strong leadership on this issue.
Recommendations 1, 2 and 6 fall well short of the Greens preferred
approach to consultation. While an improvement on the current process, these
recommendations continue to constrain the scrutiny of treaties by restricting
parliamentarians and stakeholders privy to draft texts from seeking
non-government assistance to interpret highly complex agreements.
At a minimum, Recommendations 1 and 6 would be more palatable to many
stakeholders if the final agreement of a treaty was tabled in parliament for a
minimum period of time (e.g. 20 sitting days) prior to any final agreement being
signed by cabinet, to enable open public scrutiny of the agreement. This leaves
open the opportunity for stakeholders’ participation and input prior to the
document becoming highly politicised with an “all or nothing” vote in
parliament on a treaty’s enabling legislation.
Recommendations 1, 2 and 6 would also be improved by establishing a
council of parliamentarians and stakeholders privy to the draft text to enable
discussion between these parties during the proposed consultation phase.
Accordingly, Recommendation 2 should be amended so that JSCOT
facilitates this collaborative process, rather just disjointed briefings with
DFAT and stakeholders. Recommendation 2 should also be amended to clearly
detail how JSCOT interacts with the parliament during this process.
The Greens believe that economic, environmental and social impacts
should be examined and presented to parliament prior to the commencement of
treaty negotiations and prior to final agreement. The primary responsibility
for this analysis should sit with independent statutory bodies.
The intent of Recommendation 3 to introduce a specific examination of
the human rights impacts of treaties is welcomed. However, Recommendation 3
should be amended to make it clear that this human rights assessment should be
done in two phases, being both prior the commencement of negotiations and prior
to final agreement. Recommendation 3 should also be amended so that the Australian
Human Rights Commission is the primary power to consider human rights
implications of all proposed treaties.
The intent of Recommendation 8 to introduce a cost-benefit analysis of
treaties by an independent body is also welcomed. However, Recommendation 8
should be amended such that all treaties—not just bilateral and regional trade
agreements—are subject to cost-benefit analysis. Further, the release clause
“or as soon as is practicable afterwards” should be deleted.
Similarly, Recommendation 10 should be amended to delete the release
clause “wherever possible”.
Consideration should also be given to the interaction and overlap
between Recommendations 3, 8 and 10. The National Interest Analysis (NIA) is
likely to be largely drawn from the cost-benefit analysis.
In concert with the scope of the NIA, the scope of cost-benefit analyses
should also include an assessment of human rights impacts and other social
considerations, as well as environmental considerations. Input on matters
related to human rights and environmental impacts should be provided by those
independent statutory bodies empowered to undertake assessments of these
To that end, and noting the absence of a statutory Commonwealth body
empowered to oversee environmental sustainability impacts, a further
recommendation should be included to ensure an independent assessment of the
environmental impacts both prior to the commencement of treaty negotiations and
prior to final agreement.
Strategy and scope
Recommendations 7 and 10 are broadly supported. The development of both
a model trade agreement, and priorities and objectives associated with a
proposed treaty, should be integrated with the criteria for evaluating and
assessing draft treaties, and should be founded on the principle of
The Greens believe that the scope of international agreements should
include controls that are commensurate with the impact of any externalities
that arise from related trade activities. This is the fundamental basis for
achieving “fair trade” not “free trade”. Modern trade and partnership deals
should include binding measures designed to protect and improve human rights
and labour standards, and to mitigate and prevent environmental degradation. It
is not fair that corporate profits are protected in binding agreements through
state-to-state and investor-state settlement clauses, while important matters
of public interest, such as labour, environmental and ethical standards, are
Any deviation from a model trade agreement should be subject to a debate
and decision of parliament that specifies the particular components of a treaty
that should be subject to less transparency, the reductions in the level of
transparency, and the justification for these reductions.
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