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<p>SAEED KHAN/AFP/Getty Images</p>

SAEED KHAN/AFP/Getty Images

Abbott: Open For Business — And Multinational Lawsuits

Labor rejected it outright. Even the Howard government issued America with a rare “no” over the legislation, declaring it contrary to national interests. But now the Abbott Coalition is flirting with a trade agreement that would allow companies, acting increasingly in secret, to sue Australia if they don’t like its regulations.


Australia’s government under Prime Minister John Howard was not notable for its willingness to say “no” to America. Consider, for example, its eager enrolment in the coalition of the willing-to-believe-anything, and in the war of false pretences in Iraq.

And then there was the matter of trade. Coincidentally, a major purpose of John Howard’s visit to Washington in September 2001, where he was when the terrorists struck, was the pursuit of a free-trade deal.

Reversing a long history of resistance to the prospect of a bilateral free-trade agreement with America (Australia had rejected previous overtures as being not in our national interest, and was a leading proponent of multilateral trade reform, through its leadership of the so-called Cairns Group of nations), the Howard government was at first almost pathetically keen to do a deal with the United States.

If a mining company is unhappy with environmental safeguards which inhibit its operations, if a tobacco company does not like laws restricting cigarette sales, ISDS provisions in trade agreements give them the means to challenge government policy and to seek compensation.

In the end, however, Australians’ growing hostility to the trade agreement forced Howard, for once, to say “no” to George Bush.

It wasn’t a blanket refusal of an Australia-United States Free Trade Agreement (AUSFTA); a deal was eventually stitched up and began operating in 2005. The “no” was to one of America’s key demands: a provision called Investor-State Dispute Settlement, or ISDS.

What this arcane phrase refers to is the right of foreign companies to sue national governments of the signatory countries, not in domestic courts, but in opaque international forums, if they think some element of that government’s policy is harming their interests.

If a mining company, for example, is unhappy with environmental safeguards which inhibit its operations, if a pharmaceutical company is unhappy with the prices it gets for its drugs, if a chemical company is upset with the banning of an agricultural pesticide, if a tobacco company does not like laws restricting cigarette sales, ISDS provisions in trade agreements give them the means to challenge government policy and to seek compensation.

And they do this increasingly often, sometimes claiming enormous amounts of money. According to a report in May 2013 by the United Nations Conference on Trade and Development, which monitors these things, a record 58 ISDS cases were begun in 2012. In the same year, decisions were made on 42 cases by an assortment of more or less credible international arbiters. Only 31 of these were publicly disclosed, but of those, 70 per cent went in favour of the corporations, at least in part; and nine resulted in significant awards for damages, including one – to an oil company which sued Ecuador – for a record US$1.77 billion.

We’ll get to more cases later, but the first important point to understand is that, back in 2001, the Howard government wasn’t having a bar of an ISDS as part of the Australia-United States Free Trade Agreement. It heeded the warnings that such a provision would pose a great threat to good public policy, indeed to national sovereignty. It said “no”.

The second, more important, point to understand is that in 2013 Australia’s new conservative government, that of Tony Abbott, looks as if it is about to say “yes”. And not just to one instance of an ISDS, but perhaps to a couple of dozen, across a variety of trade agreements.

On the eve of the election, the Coalition released its trade policy, which includes a commitment to “remaining open to utilising investor-state dispute settlement (ISDS) clauses as part of Australia’s negotiating position” in future trade deals.

In saying it was “remaining open” to ISDS clauses, the Coalition was being cunningly understated, as was made clear elsewhere in the document.

In truth, it appears gung-ho to wrap up as many free-trade agreements as possible, as fast as possible, and to strongly favour inclusion of ISDS provisions. The document cites, for example, the need to quickly complete a deal with South Korea, and blames the current impasse in negotiations on “Labor’s refusal to consider a proposal for an investor-state dispute settlement clause”.

The policy also promises to “fast track the conclusion of free trade agreements with China, South Korea, Japan, India, the Gulf Cooperation Council and Indonesia”, and to “explore the feasibility of free trade agreements with other trading partners including the European Union, Brazil, Hong Kong, Papua New Guinea, South Africa and Taiwan”.

Now it may well be that ISDS clauses don’t wind up in all of them, but they will at least, as the policy document says, form part of Australia’s negotiating position.

And then there’s the big one, the US-driven Trans-Pacific Partnership Agreement (TPP), now being negotiated between the US, Australia, Canada, New Zealand, Mexico, Peru, Chile, Singapore, Brunei, Malaysia, Japan and Vietnam; countries with a combined population of nearly 800 million people and a combined GDP of almost US$28 trillion.

The US hopes to wrap it up before the end of the year, and has flagged a milestone announcement, probably at a meeting coinciding with the APEC Economic Leaders’ Week in Bali in early October.

And among the controversial demands the US is making for TPP are most of those that Australia rejected in AUSFTA, including ISDS provisions. America is intent on stitching up this agreement; it was among the subjects of conversation during President Obama’s first, congratulatory phone call after Tony Abbott’s election victory.

The irony is that if Australia does sign up, it does not gain any trade benefits with America over and above those already included in the AUSFTA deal.

<p>AUL J RICHARDS/AFP/Getty Images</p>

AUL J RICHARDS/AFP/Getty Images

Then Prime Minister John Howard and President George W Bush at the 2005 APEC conference in South Korea.

What it does get is greater access to the markets of those other signatories. But it also opens itself up to legal action from big corporates in those countries, and in the US.

Now, a little history.

As we said above, the Howard government resisted the inclusion of investor-state dispute resolution provisions in the free-trade agreement with the US. Dr Patricia Ranald, convenor of the Australian Fair Trade Investment Network (AFTINET), says Australia is the only country to have successfully resisted the US insistence on ISDS clauses in its trade deals.

The Howard government’s position was not, however, one of blanket opposition to ISDS provisions in trade deals. It maintained the previous, bipartisan position that ISDS provisions should be considered on a case-by-case basis.

This attitude changed, though, under the next, Labor government, following a 2010 inquiry by the Productivity Commission, which found few benefits and “considerable policy and financial risks arising from ISDS provisions”.

In 2011, the Australian government declared it would not agree to ISDS provisions under any circumstances. The wording of a statement from the Department of Foreign Affairs and Trade was unequivocal. It said, in part:

“… the Government does not support provisions that would confer greater legal rights on foreign businesses than those available to domestic businesses. Nor will the Government support provisions that would constrain the ability of Australian governments to make laws on social, environmental and economic matters in circumstances where those laws do not discriminate between domestic and foreign businesses.”

It continued, making specific reference to two of the chief concerns over potential legal action that might be brought under an ISDS:

“The Government has not and will not accept provisions that limit its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme ...”

Australia is the only country to have successfully resisted the US insistence on ISDS clauses in its trade deals.

And the statement brushed off any suggestion that Australian businesses needed the protection of such arrangements.

“In the past,” it said, “Australian Governments have sought the inclusion of investor-state dispute resolution procedures in trade agreements with developing countries at the behest of Australian businesses. The Gillard Government will discontinue this practice. If Australian businesses are concerned about sovereign risk in Australian trading partner countries, they will need to make their own assessments about whether they want to commit to investing in those countries ...”

Craig Emerson, who was Australia’s trade minister at the time (and who retained the portfolio until Labor’s recent election loss to the Tony Abbott Coalition), insists today that the policy shift was made with no significant opposition.

“No one in the business community thought that an odious position,” he tells The Global Mail.

And the evidence coming out of countries that did sign on to trade deals including ISDS provisions shows the “folly” of it, he says.

Emerson cites an example from Canada where, in 2011, the province of Quebec called a moratorium on the controversial gas extraction method called fracking (hydraulic fracturing) while it undertook an evaluation of the possible resulting environmental damage.

Well, a United States company, Lone Pine Resources, which operates out of Calgary but is incorporated in the US tax-haven state of Delaware, decided to take action under the ISDS provisions of the North American Free Trade Agreement, (NAFTA), to which Canada, the US and Mexico, are signatories. It sued for C$250 million.

Emerson could equally have pointed to a large number of other actions taken by US corporations against countries with which it has trade pacts involving ISDS. Consider a couple of Canadian cases, for example. There was a C$500 million suit by the giant drug maker Eli Lily in response to a Canadian-court-ordered invalidation of the patents of two of its drugs, Strattera and Zyprexa.

And another action by Dow AgroSciences LLC, for losses allegedly caused by a ban imposed by Quebec on the sale and certain uses of lawn pesticides containing the active ingredient 2,4-D.

Emerson points also to the problems caused by trade deals that Australia has already entered into, such as the action now being pursued by the tobacco company Philip Morris over Australia’s plain-packaging laws for cigarettes, as good reason to eschew such provisions in future.

“The Government has not and will not accept provisions that limit its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme ...”

You’re probably familiar with the fact that a group of tobacco companies including Philip Morris brought a case to the Australian High Court, on the basis that the government had effectively stolen its intellectual property by enforcing plain packaging. It got lots of media coverage.

Less publicised is the fact that having failed in the High Court, the company now is pursuing the matter via a bilateral trade agreement signed between Australia and Hong Kong in the early 1990s, which includes ISDS provisions.

The contempt such an action shows for Australian legal process and sovereignty, says Patricia Ranald, is plain.

“They’re saying: ‘We’re going to ignore the High Court, when it says we’re not entitled to compensation; we’re going to go off and find an obscure trade agreement to sue you under’.”

But that’s not the half of it. The tribunals which decide these cases, Ranald says, are not like courts as we usually understand them.

“The arbitrators can be advocates one week and arbitrators the next. Generally they favour the investor because they look at it in a business framework and not at the public purpose of the legislation.”

Ranald is far from alone in making this criticism. The UN Conference on Trade and Development (UNCTAD), which oversees such disputes (to the extent that anyone does), itself acknowledges huge flaws in the system of dispute resolution.

In a 2013 report, UNCTAD conceded an urgent need for reform, noting:

“Concerns with the current ISDS system relate, among others things, to a perceived deficit of legitimacy and transparency; contradictions between arbitral awards; difficulties in correcting erroneous arbitral decisions; questions about the independence and impartiality of arbitrators, and concerns relating to the costs and time of arbitral procedures.”

Matters of transparency, or the lack thereof are of particular concern.

Even UNCTAD, in its comprehensive survey of ISDS cases brought in 2012, said: “For five cases, the applicable arbitration rules/venues are unknown.”

Some of the actions pursued are so confidential that often even the existence of a claim is kept secret from the people of the country being sued.

In short, just about every aspect of the system was declared deficient by UNCTAD. Its report canvassing the problems and possible reform measures makes for troubling reading.

Spot the difference: Identical press releases appear on both the US and Australian government websites.

Among other things, it notes: “In many cases foreign investors have used ISDS claims to challenge measures adopted by States in the public interest (for example, policies to promote social equity, foster environmental protection or protect public health).”

Little wonder then that groups concerned for the future of measures safeguarding such policies in Australia are unhappy.

The progressive think tank, the Australia Institute, put out a statement within hours of the release of the Coalition Trade policy, attacking the Coalition’s “hidden agenda” which would see “health and the environment sacrificed for free trade”.

It highlights the threat that ISDS provisions pose to pharmaceutical, tobacco and environmental legislation in particular.

“A very topical example at the moment is coal seam gas,” the Institute says. “As new information is collected and disseminated governments may want to act to control that activity. Governments would be loath to act if they were liable for massive payouts to foreign companies.

“The Howard Government successfully resisted pressure from the US Government but now the Coalition has signalled its intention to sell out Australian sovereignty.”

The Institute notes, as the Productivity Commission and the previous government had noted before it, that ISDS clauses effectively give “foreign companies much stronger rights than Australian companies”.

“Australia has a very high share of foreign ownership in mining and manufacturing so the issues involved with investor-state dispute settlement mechanisms are likely to severely impact Australia.”

Ranald and AFTINET followed up a few days later with a release noting that closed meetings between representatives of the nations involved in the Trans-Pacific partnership agreement were continuing in Washington.

She expressed concern that the new Abbott government could “cave” almost before it had been sworn in.

“The US is exerting huge pressure on the Australian Government to agree to investors’ right to sue governments as they push to finish the deal this year,” Ranald said.

Ranald called on the new government to “support the right of Commonwealth and State governments to legislate for health and environmental purposes, and to reject proposals for foreign investors to be able to sue them for hundreds of millions of dollars.

“In many cases foreign investors have used ISDS claims to challenge measures adopted by States in the public interest (for example, policies to promote social equity, foster environmental protection or protect public health).”

“We also call for the release of the full text of the TPPA for public and Parliamentary debate before it is signed by Cabinet,” said Ranald.

We might add that provisions of the Trans-Pacific partnership are increasingly encountering resistance within other negotiating nations, which are concerned that the American agenda is more about protecting the interests, particularly the intellectual-property interests, of its big corporations than it is about free trade.

Even on the home front, the US administration is copping heat for its uncompromising determination to protect corporate interests, including those of tobacco companies.

Michael Bloomberg, billionaire mayor of New York City and anti-tobacco campaigner, weighed in with an impassioned piece on the opinion page of The New York Times on August 22, calling President Obama out for caving in to tobacco interests, by removing so called “safe harbor” provisions from the TPP, which would have exempted tobacco from the right to bring ISDS actions.

Bloomberg noted that the industry was “increasingly using trade and investment agreements to challenge domestic tobacco control measures.

“If the Obama administration’s policy reversal is allowed to stand, not only will cigarettes be cheaper for the 800 million people in the countries affected by the trade pact, but multinational tobacco corporations will be able to challenge those governments — including America’s — for implementing lifesaving public health policies,” he said.

If the TPP were to proceed as currently drafted, Bloomberg said, it would be “a devastating setback for the global effort to reduce tobacco use, particularly because the signatories to the trade pact include nations — like the United States, Australia and Vietnam — that have some of the world’s strongest tobacco control measures”.

We could go on, citing the list of well-intentioned and well-informed individuals and organisations warning of the dangers of investor-state dispute settlement processes. But the point is surely made by now.

The question is, why would an incoming Coalition government apparently be so keen on ISDS provisions in trade agreements, compared even to the previous conservative government?

Notwithstanding Craig Emerson’s claim that business groups were relaxed about his government’s decision to abandon ISDS clauses, some are clearly not.

<p>SAUL LOEB/AFP/Getty Images</p>

SAUL LOEB/AFP/Getty Images

TPP leaders in Hawaii, during the 2011 APEC summit.

In particular, this country’s largest business organisation, the Australian Chamber of Commerce and Industry (ACCI), is an enthusiastic booster of both the Trans-Pacific Partnership and the inclusion of ISDS provisions in trade agreements.

ACCI Director of Trade and International Affairs 
Bryan Clark says his organisation’s view is that such provisions protect Australian companies in their dealings with foreign governments.

He says that, without recourse to international dispute settlement, “Australian firms … could have their assets or their capacity to repatriate profits curtailed or removed entirely. We want to make sure Australian firms are not impeded in their dealings internationally.”

That does not mean ACCI wants ISDS provisions in all trade agreements. Apparently, there are some countries whose governmental and legal processes can be trusted, and others whose processes can not.

“We are quite comfortable with the arrangements we have with New Zealand and the United States, for example. But there are other countries where you wouldn’t be so confident.

“Our view is that you need to give latitude to the trade negotiators … to work out what’s the best deal. Not to have them hamstrung by this blanket opposition. What we’ve seen is that the [Labor] government wasn’t able to complete very many negotiations during the last term, and there are cases like the Korean deal, where it [ISDS] was the main sticking point. And it has come up in the TPP and with Japan and other countries as well,” he says.

Australia already has some 27 bilateral investment treaties and free-trade agreements, Clark says, and “until recently it hasn’t caused any problems”.

But what about the Philip Morris action? What about the Howard government’s distrust of the US trade deal? What about the fears of civil-society groups concerned about health, social and environment policy?

Well, says Clark, it’s a matter of different perspectives, and, “whether you take the defensive view of the Australian domestic economy, or an offensive view of Australia’s international trade relationship.

“We’re taking the offensive view, in support of Australian firms wanting to move out into the world.”

And anyway, he says: “The Australian Government should be smart enough to figure out how it can manage our internal domestic affairs without triggering breaches of our international treaty obligations.”

No worries then, so long as the Abbott government is smarter than the US trade negotiators, smarter than other governments, such as Canada’s, which have been entangled in destructive legal actions, and smarter than the high-powered lawyers of the multinational corporations.

No worries at all. Right?

71 comments on this story
by Townsend

Thanks for the article Mike. The ACCI Director of Trade and International Affairs, 
Bryan Clark says ISDS "provisions protect Australian companies in their dealings with foreign governments" but if Australian companies are concerned about their investment being expropriated then they can enter into a private contract, as many currently do, to protect those interests or, in the alternative, don't invest. Will investment rates lower without it? I think it is unclear because there seems to be very little evidence about it, but there is some evidence to suggest that the absence of ISDS doesn't negate investment completely and isn't the primary driver of whether investment will occur eg I don't think Brazil has an ISDS in any of its BITs, yet it has a high rate of investment and growth eg U.S. foreign direct investment (FDI) in Brazil (stock) was $71.1 billion in 2011 (latest data available), up 10.8% from 2010. Great paper on that here http://www.academia.edu/3095939/Researching_International_Norm_Diffusion_Brazilian_and_Latin_American_Resistance_to_Investor-State_Dispute_Settlement_with_Stephen_Clarkson_

September 20, 2013 @ 7:05pm
by J.Fraser

Looks like Australia is headed for "worst government" in its short history.

Perhaps a 4 star general will be required to stop the sovereign risk to Australia's government.

Nice to see Delaware mentioned again ..... Murdoch must just love fracking his old country.

Good work once again Mike Seccombe.

September 20, 2013 @ 7:39pm
by Terry Mcconville

We will be Fucked Over Royaly if we sign a free trade agreement with USA,China or Japan

September 20, 2013 @ 7:43pm
by greg piper

Who needs enemies when you have the Americans as your friends??

September 20, 2013 @ 10:33pm
by Glenda

I'm no academic, but this does not look good to me.

September 20, 2013 @ 11:29pm
by Dean

I completely disagree with ISDS provisions being included in trade agreements as they restrict the ability of democratically elected governments to act according to the will of the electorate. However, the same could be said for the various UN treaties that we have signed up to.

September 20, 2013 @ 11:32pm
by DeidreAnne

The writing is on the wall - I hope the fools who voted these donkeys in are bloody happy now as we will never ever be able to roll back the draconian mess they are about to make.

September 21, 2013 @ 8:26am
by Michael Wahren

The TPP has been in secret negotiations ever since the Multilateral Agreement on Investment was rejected. The TPP was kept under close wraps to ensure it passes, even if we sign on to it the public will be none the wiser for 4 years as to what it entails. The TPP is a most dangerous agreement to sign up to, but as with the MAI only concerted public effort will see it rejected. If Australia signs up we can kiss our sovereignty goodbye. The TPP represents an unstoppable movement to corporate control, when the European equivalent is finished the only function for governments will be managerial, the general publics function is to spend money and turn there naked buts in the air for we all no what.

September 21, 2013 @ 8:30am
by Fran Murrell

What is the legality of agreements being made in secret, without discussion by the Parliament, that have the power to undermine our sovereignty and our laws? What is the system of government called when foreign corporations have more control that the citizens of a country?

September 21, 2013 @ 8:35am
by gus

So is this 'operation sovereign borders'?

September 21, 2013 @ 8:42am
by Ian

Even before reading this article I was meditating on the conjunction between Brecht's appeal at the end of Arturo Ui to stand against future totalitarianism ("For though the world has stood up and stopped the bastard, the bitch that bore him is in heat again.") and Hannah Arendt's study on "the banality of evil", inspired in part by the recent support for Pinochet's murderous regime. If ever there is a case for a new conjunction between totalitarianism and evil I can make it for global capitalism. The role of these faceless people in the pursuit of self interest, at the expense of the health and wellbeing of others, seems to me also to exhibit a sociopathology of greed that is almost unimaginable except for its banality - just another day in the office. How a
Catholic like Abbott can be party to this is difficult to understand if he has any convictions at all. Although Arendt may have an explanation - "The trouble with lying and deceiving is that their efficiency depends entirely upon a clear notion of the truth that the liar and deceiver wishes to hide"??

September 21, 2013 @ 8:43am
by Kate

"All the way with FTAs!" Scary stuff! We're handing over our lives & country to corporations - the problem is, they are not moral entities. Their 'prime directive' is to make a profit -"whatever it takes" kinda like the Abbott approach to winning elections!

September 21, 2013 @ 9:45am
by Sue Anderson

Who needs enemies when Tony Abbott is your PM?

September 21, 2013 @ 9:59am
by Andrew

NAFTA has been a disaster for Mexico and Canada almost from the first day of its operation. Sign up for Trade agreements with these clauses (ISDS's) in them and you almost guaranty US Corporations will start to exert more influence on Government Policy and legislation so the said Governments are not sued over even mundane Legislation, lets hope this new government shows some backbone to the US and to others in this area, we will have to see (if they even tell us)

September 21, 2013 @ 10:37am
by Simon

Its all about turning Australia into a big gas field.

September 21, 2013 @ 10:48am
by Bill

With what we now know about US and UK eavesdropping on inter-governmental talks, one wonders not only about the integrity of any future negotiations but also about the original FT agreement with the US, in which Austraia appeared consistently outplayed.

September 21, 2013 @ 10:57am
by Eve

So far sanity has prevailed but with a new government with a history of cosing up to corporates who knows what lies ahead. Lawsuits like this could be worth millions if companies can claim a nation's laws, regulations and policies in any way inhibit their ability to make more money. I noted pre-election that Mr Brandis mentioned this was something that the new government could look at (during the debate with Mark Dreyfus) when questioned by an audience member. The audience were mainly from the legal profession so no doubt this provision would expand business opportunities. One thing is almost certain, this will be a one-term government if American interests are prioritiesed ahead of Australian taxpayers.

September 21, 2013 @ 11:48am
by Kevin Cobley

It's time governments governed for the people, not corporations. We need to remove parties from power if they are owned by corporations, that includes Liberal, Labor, Nationals. The stupidity of Australians is appalling electing coal mining billionaires like Palmer, in the years to come these people will find themselves in the same place as other government gangsters like Ceausescu.
The merger of state and corporation is fascism.

September 21, 2013 @ 12:10pm
by Andrew

Eve I hope you are right about this being a 1 term Government, I just worry about the damage that could be caused in that 1 term, that, may not be for various reasons be overturned or future Governments have their hands tied (on all sides of politics). This could be a national disaster with no political solution!

September 21, 2013 @ 12:22pm
by Joe

So this will be just one of the prices of "stopping the boats", further signing away our sovereignty. Back in 2002 the price of stopping the boats was allowing dual citizenship which has seen the greatest movement of assets away from people who have the best interests of Australians at heart since federation. Funny how about 6 months after the boats stopped the government quietly changed the citizenship laws.

September 21, 2013 @ 1:22pm
by Kevin Arnold

One of the consequences of the leadership debate is starkly illustrated here. Conservative governments do this all the time. With the aid of an ideological press it is easy to concentrate our minds on matters that have importance only to the protagonists ( Rudd/Gillard) and away from the more devious intentions when elected. A lesson learned? I would like to think so.

September 21, 2013 @ 1:56pm
by Gail Morgan

Congratulations Mike on another fearless exposé. Pressures created by globalisation make it all the more important that national governments show courage. If Tony Abbott thinks he can fend off powerful global interests with flabby and meaningless slogans then he needs to consider this. Propaganda may temporarily reassure, but ultimately realism and truth telling safeguard our society. Already the obfuscation is taking hold on boat arrivals, because if we can't stop them, we'll have to lie about them. Free trade agreements can resemble colonial serfdom and who is around to tell us the real truth hovering elusively over sectional interests like the ghost of Tim Flannery. All power to the Global Mail and thank you.

September 21, 2013 @ 2:39pm
by Paul Tredgett

Would an ISDS agreement include reciprocal provisions to sue foreign corporations for damage done to the health, well-being, environment, or finances of nations that sign up? Would the corporations be liable for environmental clean-up costs, health care and disability pensions, etc. I think not. Corporations have a long history of 'externalizing' the costs from the trail of destruction they leave through a community or nation.

September 21, 2013 @ 3:49pm
by Anna MYCKO

that BS about giving Australian companies rights OS is fundamentally immoral - lets sign agreements that will sell out our citizens and undermine our government's rights in favour of the business interests of foreign companies so our own companies can ignore the rights of the citizens and laws of governments in other countries. BIG NO. If companies cannot trade within the laws and preferences of any country they should not be trading there.

September 21, 2013 @ 5:10pm
by John

How can the Government do this? As a an ex-smoker, I know how addictive nicotine is - and this is clearly demonstrated now, by the availability and use of other nicotine products not as a medicine but as a recreational drug (a bit like heroine). And as an older person, I don't think I could afford my medications without the support of the PBA (sometimes it is a struggle anyway)! And I love the fact that we have the tallest, oldest flowering forest in the world - but for how long. Oh, what can I/We do!! Such madness/machinations by the LNP.

September 21, 2013 @ 6:07pm
by Liza

And people are surprised at this? It was written on the wall, unfortunately the media and lack of people's free thinking got us to this place.

September 21, 2013 @ 6:44pm
by russell

re the environment, unsure if this lot is or is not because of a TPP type set up in Europe, but beekeepers here are worried about a possible 'coerced' introduction of GM strains with attendant poisons. Particularly for dairy cow pasture. Farmers and Graziers Assoc's appear to be pushing for the intro of more GM! Beekeepers are threatening to not provide pollination services for fear of contaminated honey and loss of colonies to poison. I wonder how they would fare against the might of the corps litigation? 'You WILL provide a service or we will shut you down and find someone who will.' Is it another form of forced labour? Could it turn into that in time?

It is anathema imo to consider a corporation as having the rights of a citizen, but to allow corps to sue a legit government means that government no longer rules the country; corporations do. I suspect that is the corporatist end game. What need of governments when the corps can dictate via litigation on our (their) perceived needs. It is well past alarm bell time. What really annoys is the secrecy surrounding the whole shebang. They are deciding ours and our children's futures in absolute secrecy and silence until it is all a done deal. It is antidemocratic (which is the way corps like it). Who voted for the corps to have the final say over the people anyway? None of us.
Thanks for the timely article.

http://action.sumofus.org/a/bayer-bees-lawsuit/?sub=tw

http://blogs.nature.com/news/2013/08/eu-insecticide-ban-triggers-legal-action.html

September 21, 2013 @ 9:01pm
by Jexpat

Stories like this- that you'll never hear about elsewhere, are why I support the Global Mail.

September 22, 2013 @ 1:08am
by howe synnott

Unlike Abbott who at least does appear to be slowly evolving, Mike Seccombe's mindset and world view does not change - and it would appear he is incapable of doing so. "All Conservatives are stupid and most stupid people are conservative" remains his mantra. Trying having a discussion with someone that rigid.

September 22, 2013 @ 6:21am
by orangefox

Thanks Mike for the article. Most of the general public have not heard of the TPP and unfortunately I fear it will be too late by the time they do. Unless the MSM runs with this issue now the government will be able to get it through.
I'm calling on the senate to block supply and force a double dissolution. I doubt the Libs would win another election. Too much is at stake to let this government run for even one term.

September 22, 2013 @ 6:43am
by richard

Democracy really means for the minority , by the minority, yahoo!!! cant wait to pay more taxes to the banking cartel, wanker street i mean wall street,and the phony gutless wonders of governments that were supposed to represent us and not them...Idea,lets all stop paying our mortgages,council rates,parking and speeding fines and taxes, no incum for the scum, hey that ryhmes lol..c,mon good people we are the majority we are the real power,they know ,but do we?

September 22, 2013 @ 12:20pm
by Sandra

If we want any say we have to club together and tell governments, they serve us - not the corporate dictator. Then when you look up the Commonwealth of Australia Pty. Ltd., we are registered in USA. Just who is writing off our constitution and why are the people not pointing out to pollies that we are Australia, want to stay Australia, produce Australian goods and food products, don't want all the chemicals sprayed around us killing our existence and causing illness to the sensitive. Want to live in peace and have plenty. When one looks at all the departments, sub committees,sub sub committees, offshoots etc. any wonder there is no money for schools or hospitals. Get rid of as many boards and committees we can it seem to be the same people sitting on all of them and they wouldn't lose paid work and not expect some sort of an honorarium.

September 22, 2013 @ 2:14pm
by impy

I read Andrew 12.22 sept 21st is worried about he damage the LNP will do!! What after 6 years of 2 of the most incompetent governments in Australia's history budget forecast's out by billions every year 6 successive deficits nearly $300,000,000,000 in Gross debt accumulated in an environment of record tax receipts this year 50% up on 2007. Sorry but I cannot imagine we could suffer such incompetence again. By the way I hope you don't run your finance or business in the same manner because your in trouble if you do

September 22, 2013 @ 6:53pm
by Stuart

Get ready everybody ... democracy has surely become watered-down fascism.

September 22, 2013 @ 10:36pm
by Robyn

'Public Servants' . . . servants of the PUBLIC. That's me! I'm the 'public'. When are politicians going to realise WE pay them. Apart from making me incredibly angry, the lunacy of it all scares the hell out of me. This is my country (and yours) and I'm fed up with it being screwed with and environmentally plundered by a handful of greedy fools who cannot see beyond the current day and a quick buck.

September 23, 2013 @ 8:07am
by Fred Strachan

impy, what aload of balderdash you peddle the previous two govt kept this ofloat bought in great social reforms gonskoi ndis NBN(future!!!) wheres your perspective fred

September 23, 2013 @ 6:54pm
by Andrew

The Devil is surely in the detail. Mass media political dialog and discussion is so paper thin that the real issues are rarely explored let alone simply discussed. All power to high quality blogging and the rise of online in-depth analysis such a "The globalmail.org" and "The Conversation".

September 23, 2013 @ 10:46pm
by Noel Wauchope

I cannot understand why this issue is getting almost no coverage in the mainstram media.
On 23 Sept, there was a brief , but clear, discussion, by Peter Martin, in the print version - Business section of The Age. But that's all.

I wonder what the worthy elders of Australia, who voted in Tony Abbott, will think when their beloved Pharmaceutical Benefits Scheme goes down the drain,

September 24, 2013 @ 9:31am
by Hope

Hey Impy - The budget forecasts have been out by billions for the last 15 years...its not hard to be out by billions when you are dealing with the economy. A small error of 1% will mean you are out by $5b - $15b depending on whether u are looking at total government revenues, expenses or GDP. If you can forecast that well you would make a killing in finance. Also as economy grows so does $ tax receipts and so does government expenses - the correct measure is to look at tax/spending as a percentage of GDP - think you will find that tax receipts have collapsed. The Gillard and Hawke/Keating governments are the only ones to reduce government spending...

September 24, 2013 @ 11:26am
by Alex Njoo

Repeat after me: Stop the boats, No carbon tax, Deficit/surplus our life's goal. Repeat after me...........

September 24, 2013 @ 12:52pm
by Andrew

This government will just bend over and let huge business get what ever they want, what ever it may be.

September 24, 2013 @ 1:08pm
by liz thornton

Ah Well. This is the country living off the back of sheep after all.

September 25, 2013 @ 8:47am
by liz thornton

Now read Code Red by David Spratt and weep !

September 25, 2013 @ 8:48am
by Rich Haynes

This is incredible. I thought governments were meant to be accountable to the people, not foreign companies. Totally bizarre. I am lost for words...

September 25, 2013 @ 10:29pm
by TechinBris

I am sorry, but this is right on the money for what I expect from the Licentious Nasty Party. No surprise at all considering who their financial backers are.

September 26, 2013 @ 1:40pm
by Phil Gorman

And where is Australia's Fourth Estate in all this? How many Australians are even aware of the Trans-Pacific Agreement, let alone it implications for our soveriegnty, values and way of life. We are walking into a nightmare of corporate World domination.

Be afraid; be very afraid.

September 26, 2013 @ 3:55pm
by stoic

Excellent article Mike, thanks.

All we need now is to know the Shadow Ministry so we can start exerting pressure on them to exert pressure on the new Government before it's too late to stop the Free Trade Juggernaut.

September 27, 2013 @ 10:29am
by Brian

Michael (21 Sep @ 8:30) is right that, after the previous deal collapsed because of adverse publicity, there has been a concerted effort to keep the TPP private, supposedly because the negotiations are not complete ... which raises a number of further concerns. It was also rumoured that the Treasury was prohibited from commenting on the US FTA at the time because their modelling said it was substantially detrimental to Australia's interests. Resultant copyright issues have probably had the most commentary since. I'm not sure people understand that politicians sometimes make deals contrary to the advice of their departments or any obvious public interest -- they're as susceptible to snake oil as anyone else, which is why transparency is really so important, and why the TPP negotiations are such a concern.

September 28, 2013 @ 1:41pm
by Stacy

So if ISDS are already in America why haven't tobacco companies already started suing the American government?

September 30, 2013 @ 5:51pm
by Spotty

This is the tip of the iceberg look at WIPO or WTO dispute resolution mechanisms. Arbitration, whether in domestic or international disputes, is undermining public law, national sovereignity & democracy.

October 1, 2013 @ 10:15am
by Mary

I remember being in the Teacher's Union at the time of the Howard Government and "free trade" agreements being discussed with USA. We had a campaign to keep education out of the agreement because of what could happen. All Australians need to be on the alert that we don't lose our Education and Health system and face litigation from whoever we sign these agreements with. Let's hope we get publicity for any such new discussions in the media. Thanks

October 1, 2013 @ 5:13pm
by wolfkeeng

Your history of howard's role is a little light. you forgot the role of hanson and one nation in raising the profile of such clauses. Howard was going to agree to ISDS clauses - until hanson came on the scene and wouldn't shut up about it. Only decent thing she and that party did politically. Doesn't matter that many of us may not have liked 'em, we still need to be honest about their political role. And there is no doubt in my mind that if hanson hadn't arced up about it, all the FTA's would have similar clauses. As if FTA's aren't bad enough!

October 5, 2013 @ 9:38am
by Mitch

So we are a sovereign nation until US corporate interests are involved. Then the Plutocrat sales reps (the governments) step up to the plate and hand our rights to the lawyers of the world?

October 5, 2013 @ 8:54pm
by Paul

This is absolute bullshit! Why are we, the people of earth, allowing this to happen? We are freely letting big corporations control what we buy, say, see, spend our money on (and where) and we let them get away with it??? If say Marlboro was to approach Flannery's (an organic supermarket) to sell there product and Flannery's said no. Marlboro can't sue them for refusing and stunting the growth of their company. So why should big corporations have the right to sue governments for the exact same reason? This is an outrage and is clearly the big wigs controlling our government and in turn having control over us. So....who controls the big corporations? and if the corporations are controlling our government...and the government are controlling us....wait....does this remind you of something? Sounds like a pyramid scheme to me and they are watching us all. Who benefits from this? us? I don't think so. We're the little guys who are getting stood on by those who want power and those with the power right now are the corporations and the big banks. Last I heard if you had half a brain you would've stood up against Abbott's decision to dump into the great barrier reef (which is one of the seven natural wonders of the world) to create this free trade shipping lane. I'm disgusted with what is happening and I'm even more disgusted that the world population is letting them get away with it.

October 6, 2013 @ 12:28pm
by Thomas Gale

so does this agreement mean that a people smuggler company could register their business in one of the signatory countries and then sue the Oz government for policies which affect their bottom line (ie tow backs, transferring customers to Nauru etc)? Oh the irony if Abbott's policies are challenged because he doesn't engage the brain before signing this agreement,

October 6, 2013 @ 5:36pm
by Douglas Jones

Humans are more than economic cyphers, surely! If the UK was Bush's lap dog then Abbott is making us a pussy cat should he sign this. The hypocricy of politicians is exceeded only by that of busdiness! To give away more of Australia's small independence is the action of iether an idiot or a paid servant.

October 7, 2013 @ 10:43am
by GeorgeJG

rather than taking a defensive or offensive view, why don't we take an objective one?
oh right, the objective view would find that the damaging prospects of these kinds of agreements would be too high compared to the benefits, so we'll call it a defensive view to discredit it by supposing some kind of bias.

October 7, 2013 @ 6:42pm
by ted markstein

Does anyone out there want to be a citizen of News Corp or BHP Billiton or RioTinto?

Didn't think so.

Don't let Abbott sign away our sovereignty in the TPP with the American Government in their role as pimp in chief for the Corporatocracy.

October 8, 2013 @ 1:54pm
by Mike Wilkinson

Right on Ted! Bladerunner cometh... and with it the Tyrell Corp! Sci Fi... maybe, but scifi often predicts the future ;)

October 9, 2013 @ 8:42pm
by Meryl Joyce

Thanks for your very informative article. I'm in despair already and they've just got started on their rampant destruction

October 9, 2013 @ 9:52pm
by Douglas

Abbott doesn't have the intelligence to comprehend what he's signing. Nor does he have autonomy, he's a puppet of the plutocrats.

October 12, 2013 @ 9:13am
by Andrew

Thank you for this article. I remember being at a meeting in the USA years ago and being confronted by a statement by a businessman who said, "Our law extends throughout the world, the only difficulty is getting satisfaction. " I now understand what he meant and my outrage is undiminished.

October 13, 2013 @ 2:24pm
by Sandra

It will only be a matter of time before Australia and its people will become victims of abuse by the Multinationals, compliments of an in competent Prime Minister Abbott. His rhetoric currently is all about "Repent" and "Äct of Contrition" it would appear that he will be ruling and running the Country out of a Confession Box and when he stuffs up Australia, three hail Mary's will enable him to sleep at night before the next assault on the Country and the Public Purse for his dubious Expense Claims.

October 16, 2013 @ 5:37pm
by Tracey Tipping

Thanks so much for writing such a great article Mike - it inspired me to take action and start a petition on this:

https://secure.avaaz.org/en/petition/Dont_let_foreign_corporations_sue_Australia_for_millionsbillions_over_our_policies_on_GE_crops_coal_seam_gas_more/

We have just hit 5,000 signatures and growing, so it looks like lots of us are really worried about this. Best regards! Tracey

October 30, 2013 @ 5:16pm
by Tom Turner

Great article..the penny finally drops and it all starts to make sense. America is one big bully boy. It is business at all costs in their favor and to hell with the health and well being of all living creatures on this wonderful planet.
Tony Windsor was right when he said that Mr Abbott would do 'anything' to become Prime Minister..selling our country out seems to have been an easy decision for him.
Perhaps Malcolm Fraser ( ex Liberal Prime Minister ..) was correct too when he said that Tony Abbott was the most dangerous politician ever to emerge in Australia..?
After reading this article, the word immoral comes to mind..

November 6, 2013 @ 10:45am
by Warwick Rowell

In addition to my previous post, about corporations trying to insulate themselves from the commercial risks of progress and change at taxpayer/citizen expense:

In previous international disputes/wars, the opponent's assets in the home country (either way!) were seized or at least frozen. Quite legitimately.

In many parts of the world, you can not do business without having a (frequently majority) local partner. I have been instrumental in stopping a major Australian company from proceeding with something like this. . You take the risk, you pay.

Scenario: Chinese government company owns wheat farms, shipping facility etc. We enter into a dispute with China. We "nationalise" the industry/asset. China can sue us.

Scenario: Australian company mining in ............. Finds major ore body. "Government" says "Thanks, we will have that". Australian company can sue. Where?? is the justification for these agreements.

Sounds like the situation in Guatamala referred to in the article.

Hmm. Doing business at home sounds better and better!!

November 15, 2013 @ 1:40pm
by The truth

Remember the free trade agreement going on at the same time( Now) with the EU. It also allows the companies to sue Governments.
Add in the NSA and you have a nightmare society.
Wikileaks linked to the files. You can find them on twitter, or here: http://wikileaks.org/Second-release-of-secret-Trans.html?update
https://wikileaks.org/tpp/
I used to think Obama could come clean, and donate the info to science, but ... all I can say is Wow.

December 9, 2013 @ 4:15pm
by Bruce Hogben

"The question is, why would an incoming Coalition government apparently be so keen on ISDS provisions in trade agreements, compared even to the previous conservative government?" Why indeed? But since the election in September 2013, it has been one atrocity after another NOT in the country's interest. It's as if the Coalition hates Australia, hates the environment, hates our neighbours, hates people seeking help, hates the underprivileged, ABC, indigenous people etc. It has declared war on the poor, and war on the environment. But, if you are rich and particularly if you are in charge of a corporation, the love is boundless. It's sickening to behold. Thank you, Mike Seccombe, for all you do to try to bring back some balance in this media world dominated by Murdoch. and with the ABC so mch under seige. Your reporting is flawless.

December 29, 2013 @ 3:39pm
Show previous 68 comments
by PeterM

A real worry is that a government with a neoliberal agenda might intentionally enter into trade agreements with ISDS provisions, and then use threats of possible foreign investor legal actions to justify national policy changes which align with the government's neoliberal ideals! Could they possibly be so devious ? I sincerely hope not!

January 3, 2014 @ 12:42am
by Tony Miscamble

Get Queensland's boy genius Attorney General Jarrod Bleije onto it...as soon as he's finished ironing out the typos from his anti-bikie legislation.

January 17, 2014 @ 11:41pm
by Michael Burrows

Our courts are far enough behind as it is. So now when the US company doesn't pay in 7, 14, 30 days....what happens internally, eg. whereby the developer doesn't pay construction companies, who can't then pay tradies, who cant then pay workers and suppliers..........coup de gras Tony.
Foreign $ will not have OUR best interests at heart.

February 6, 2014 @ 3:44pm
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