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TPP: Not worth the risk

TPP: Not worth the risk

After marathon talks, the Trans Pacific Partnership has been sealed. The stage is now set for some fantastic battles to get this through national legislatures. I'll leave it to others to count the numbers.

I've written previously about my concerns regarding the TPP, and agreements like it. I won't re-hash those arguments here. I'll just look at what we have learned overnight.

Trade Minister Andrew Robb at a conference in Hong Kong, March 2015. (Minister for Trade.)

Andrew Robb has apparently secured agreement from the US not to increase the intellectual property protection for biologics, a type of drug. In the past, I've been critical of intellectual property provisions in these agreements, so does it placate me that the 'TPP will not require any changes to Australia's domestic intellectual property regime'? Not really.

First, it wouldn't be the first time we have been told that an agreement did not change our IP obligations, when it fact it did. The Department of Foreign Affairs and Trade said, before a Parliamentary Committee, that it was not aware of any changes necessitated by the Korean Free Trade Agreement, only to have to change its tune in a Question on Notice. [fold]

Second, even if our law can remain unchanged (and we await the text to see), the TPP further entrenches our intellectual property regime in international treaty. This gives us less scope to amend our own laws. As Professor Kimberly Weatherall of the University of Sydney has pointed out, this has been a problem in the past — policy supported by both sides of parliament has been rejected because it conflicted with the US-Australia FTA.

By my reading of the commentary, tobacco companies are completely barred from using the TPP's Investor State Dispute Settlement (ISDS) mechanisms. These are the tribunals that allow a foreign company to sue a government on the basis of some discriminatory action. Again, a concern I and many others have is that these tribunals can stifle good government decisions, yet they have not been shown to have any positive impact on investment.

The exclusion of tobacco is a good thing. But why only tobacco? True, the tobacco companies have abused the system in the past. Phillip Morris moved its headquarters to Hong Kong so that it could use an ISDS mechanism to take legal action against Australia's plain packaging laws, after the tobacco industry lost a High Court action under Australian law. But bad behaviour is not confined to the tobacco industry. So if there is a reason to completely carve out tobacco, there is a reason to completely carve out other industries too. This carve-out betrays the flaws in the system.

In sum, there's not much here that has changed my view – the TPP has a small upside for an unknown amount of downside. The TPP is not worth the risks.

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