Considering both the situation in Australia and the United States, the Commonwealth’s Treaty-Making Process is broken. There have been significant problems in respect of transparency, public participation, empirical analysis, and parliamentary oversight. In addition, there has been a concern that the Commonwealth’s Treaty-Making Process has failed to adequately address matters of fair trade. In particular, there is a need to engage a comprehensive assessment of the impacts of international agreements upon the environment, public health, labor rights, and human rights. Such problems have been particularly pronounced during the negotiations over the regional trade agreement, the Trans-Pacific Partnership. Having participated in both academic discussion and policy debate over treaty-making, I would make the following observations and recommendations in respect of the Commonwealth’s treaty-making.

Treaty-Making

1. Australia’s treaty-making process lacks transparency. Trade agreements have negotiated in secret by trade negotiators and industry advisers – with little way of input from elected representatives, civil society, or the wider public. Future trade agreements must be negotiated in an open and inclusive manner. There should be a public release of draft texts in respect of proposed treaties and trade agreements.

2. Australia’s treaty-making process lacks broad and inclusive public participation. The Department of Foreign Affairs and Trade’s record of consultation is poor with the Australian Federal Parliament, state and territory governments, civil society, and the broader public. There has been great concern that the Commonwealth’s treaty-making process has been subject to industry capture. There is a need for significant reforms to the democratic deliberative process in respect of treaty-making. There should be scope for consultation before, during, and after negotiating rounds on trade agreements. There should be broad public consultation with legislators, state and territory governments, key stakeholders, and the wider public. There is a need for greater democratic participation in policy formulation and development.

3. Australia’s treaty-making process lacks an independent, comprehensive evaluation and assessment of the costs and benefits of international agreements. There is a demand for evidence-based policy making informed by independent, critical research on the economic, social, and political costs of treaties. The role of the Department of Foreign Affairs and Trade should be subject to oversight by other key government departments. The Productivity Commission, the Department of Finance, and Treasury should evaluate the economic impacts of international agreements. Other key relevant departments need to engage in the assessment of the impact of international agreements upon such key factors – as public health, the environment, labor rights, and human rights.

4. Australia’s treaty-making process should be reformed to allow for greater parliamentary oversight. The House of Representatives and The Senate should have the power to disallow treaty-making action by the executive – including ratifying, amending, and withdrawing from a treaty.

Intellectual Property

5. As recommended by the Productivity Commission, Australia should ‘avoid the inclusion of Intellectual Property matters as an ordinary matter of course in Bilateral and Regional Trade Agreements.’

6. The Intellectual Property Chapter of the Trans-Pacific Partnership proposes a host of new obligations in respect of copyright law – dealing with copyright term extension, copyright exceptions, online intermediary liability, technological protection measures, and civil and criminal enforcement provisions. The copyright proposals in the Intellectual Property Chapter pose significant threats in respect of creativity, innovation, access to knowledge, competition, and consumer rights in Australia. Australia should not support such measures.

7. Like its rejected predecessor the Anti-Counterfeiting Trade Agreement, the Intellectual Property Chapter of the Trans-Pacific Partnership also proposes a significant increase in the rights and remedies of trade mark holders, particularly in addressing trade mark infringement and counterfeiting. There has also been discussion about such topics as well-known trade marks, geographical indications, and Internet Domain Names. There is a concern that the trade mark sections of the Trans-Pacific Partnership are neither fair nor balanced.

8. The Intellectual Property Chapter of the Trans-Pacific Partnership also proposes significant reforms across the Pacific Rim in respect of patent law and related rights, such as data protection and biologics protection.

9. The Trans-Pacific Partnership proposes criminal procedures and penalties in respect of the disclosure of trade secrets. Such measures could have a serious impact upon the craft of journalism, whistleblowers, and civil society activism. Such a regime is inappropriate for Australia.

10. Furthermore, the Trans-Pacific Partnership proposes that intellectual property holders will also be able to bring investor actions under an investor-state dispute settlement mechanism.

Investment

10. In light of the Productivity Commission report, the inquiry into the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (Cth), and Chief Justice French’s concerns, the Australian Government and the Australian Parliament should seek to exclude investment clauses from trade agreements and investment agreements.

11. There has been an international debate over the usefulness and the legitimacy of investor-state dispute settlement clauses. The United Nations Conference on Trade and Development (UNCTAD) has highlighted the rise in investor-state dispute settlement cases, and the significant issues relating to public regulation and government liability. There has been much criticism of investor-state dispute settlement in debates in the European Union. There has been opposition to investor-state dispute settlement in the United States Congress – notably by Senator Elizabeth Warren. Similarly, there has been controversy over investor-state dispute settlement in Canada, after a number of disputes. A number of experts, policy-makers, and nation states have been highly critical of the investor-state dispute settlement scheme.

12. There has been much concern about the impact of investor-state dispute settlement clauses upon the rule of law, sovereignty, and democratic decision-making. In particular, investment clauses could be used and abused by Big Tobacco. The World Health Organization and tobacco control advocates have warned that Big Tobacco has sought to use investment clauses to challenge tobacco control measures, such as graphic health warnings and plain packaging of tobacco products, and frustrate the implementation of the World Health Organization Framework Convention on Tobacco Control. There has been much controversy over the Trans-Pacific Partnership, intellectual property, investment, and pharmaceutical drugs. There has been much concern that investment clauses could be deployed to challenge domestic law reforms – such as those proposed in the independent Pharmaceutical Patents Review Report. The dispute between Eli Lilly v. Canada highlights the dangers of investment clauses in this field. UNITAID, public health advocates, intellectual property experts, and legislators have all expressed concern about the impact of investment clauses upon access to essential medicines – especially in respect of HIV/AIDS, tuberculosis, and malaria, and neglected diseases. Moreover, there has been concern about the use of investment clauses by mining companies in respect of environmental regulation. As highlighted by the dispute between Lone Pine Resources v. Canada, gas companies have deployed investment clauses to challenge regulations and moratoria in respect of coal seam gas and mining. This raises larger questions about public regulation in respect of land, water, and the environment. Investment clauses could undermine and undercut public regulation in respect of the environment, biodiversity, and climate change.

13. Instead of investor-state dispute settlement, it would be preferable for conflicts between foreign investors and sovereign nations to be resolved in domestic courts or nation-to-nation dispute resolution.

Public Health

14. Australia’s treaty-making process should include health impact assessments. Australia’s trade agreements must not undermine or undercut the World Health Organization Framework Convention on Tobacco Control – or Australia’s pioneering tobacco control measures, such as graphic health warnings, and the plain packaging of tobacco products. Likewise, there is a need to ensure that trade agreements do not interfere with alcohol regulation.

15. Australia’s trade agreements must secure access to essential medicines. This is particularly important in addressing public health concerns, such as HIV/AIDS, tuberculosis, and malaria, and emerging infectious diseases, such as avian influenza and ebola.

16. Australia’s treaty-making process should take into account the impact upon food security. In particular, there is a need to consider the impact of trade agreements upon food labelling schemes – such as nutrition labelling like Food Star Labels, Country-of-Origin Labels, Australian-Made Labels, and GMO food labelling.

The Environment

17. Australia’s treaty-making process should respect water rights. Trade agreements should not threaten water rights. In her book Blue Future, Maude Barlow maintains that there is a need to ensure that trade protects water:

Given the threat to water from existing and proposed trade and investment agreements, it is urgent to remove all references to water as a service, good, or investment in all present and future treaties. Water is not like anything else on earth. There is no substitute for it, and we and the planet cannot survive without it. Water must not be a tradable good, service, or investment in any treaty between governments and corporations should have no right to stop domestic or international protection of water.

Barlow maintains that ‘trade negotiations should take into account the effect on water of all trade activities’. She concludes that ‘removing water as a tradable good, service, or investment from all trade and investment treaties would provide a better framework to protect water in international trade.’

18. Australia’s treaty-making process should involve environmental impact assessments. There is a need to ensure that trade agreements contain binding obligations for trading partners to adopt, maintain, and implement environmental laws, policies, and regulations. At the same time, there is a need to ensure that trade agreements do not undermine Australia’s environmental laws, policies, and regulations.

19. The treaty-making process must support climate action. Trade agreements should require countries to adopt, maintain, and implement commitments in international climate law – including the United Nations Framework Convention on Climate Change 1992 and further climate agreements. Trade agreements must provide flexibility for governments to adopt and implement policies – such as feed-in-tariffs, renewable energy initiatives, carbon pricing, emissions trading schemes, and fossil fuel divestment.

Corporate Regulation, Labor Rights, and Human Rights

20. Treaty-making should preserve and protect financial regulations, particularly in the wake of the Global Financial Crisis.

21. Treaty-making should respect international standards and norms on labor rights. Australia’s trade agreements must provide a safety net for vulnerable workers. There is a need to incorporate fair trade principles into trade agreements.

22. Treaty-making must honour and respect human rights. Australia’s trade agreements should be subject to a human rights assessment. There should be a mechanism to judge which countries are eligible for trade agreements – given their human rights record.