A recent leak of the Trans-Pacific Partnership Agreement (TPP) draft intellectual property chapter shows that negotiators remain divided over key issues. The leak reveals that in May 2014 there was limited agreement on the intellectual property provisions, despite the negotiations being ongoing since at least 2008. The TPP is notorious for the secrecy of its negotiations and the exclusion of the public despite it being widely known that some corporate lobbyists have had access to draft texts and a strong hand in influencing negotiating positions.
Of concern are draft provisions that would substantially increase the cost of medical treatment, both domestically and in other participating countries, which demonstrates the strong lobbyist influence on the negotiations. Other provisions may expand Internet service provider surveillance of subscribers, expand what can be patented, and seriously undermine competition by strengthening monopoly rights.
“It is time for the game of secrecy to end. The negotiations seem to be going around in circles and be contrary to the stated positions of the negotiating nations. They fly in the face of expert opinions, and consultations thus far have been little more than shams,” said Brendan Molloy, Pirate Party President.
“Negotiating in this fundamentally undemocratic way will see the involved nations saddled with obligations designed by lobbyists for the benefit of lobbyists, and by the time we find out exactly what those obligations are it’ll already be signed and imposed upon us,” Mr Molloy continued.
Of enormous concern is the removal of an article that would ensure Article 31 of the TRIPS Agreement remained fully effective. Article 31 regards compulsory licences of patents to ensure national emergencies in developing countries can be effectively managed. Limiting the effect of Article 31 is likely to have extremely negative effects on managing local and global epidemics.
The Pirate Party denounces any attempts to include certification provisions in the highly secretive Trans-Pacific Partnership Agreement (TPP). The United States, one of twelve negotiating nations including Australia, may be given the power to opt-out of the Agreement if countries do not implement the TPP according to the standards of the United States Trade Representative. This has been used by the United States to pressure other countries into adopting its interpretation of trade agreements.
These provisions give an inordinate amount of leverage to the US Government to pressure treaty partners, such as Australia, to alter and adopt laws that go beyond the negotiated text of the treaty. In practice this could result in a situation where the US Government and its advisors are approving, or even drafting, Australian laws to ensure they comply with the interests and expectations of the United States.
Brendan Molloy, President of the Pirate Party, commented: “This is an egregious overreach. I daresay that any Australian government that signs such an unbalanced agreement, which puts such an unequal share of power in the hands of a foreign entity, is guilty of betraying the interests of the Australian people. A partnership where all parties do not have equal power is not a partnership. By signing such a fundamentally unbalanced agreement, Australia would be granting the US significant control of our sovereignty, making us effectively a vassal of the United States.
Responding to the Attorney-General’s refusal to publish more than 5,500 submissions on the Government’s proposed amendments to the Racial Discrimination Act, the Pirate Party has lodged a freedom of information for the release of those documents. The refusal to release these documents has been referred to as “ironic” given the amendments were designed to improve freedom of speech in Australia. In May this year the Attorney-General announced the Government was reconsidering the amendments.
Brendan Molloy, Councillor of the Pirate Party commented: “This is an unusual and overwhelming number of submissions. In our experience legislative inquiries and reviews are unlikely to reach 100 submissions. The fact that over 5,000 were received demonstrates an obviously enormous public interest in the legislation, and opposition must have been extreme for the Government to be so tight-lipped on these submissions. There is no decent reason why these submissions should not be made available to the public.”
“This Government has shown a worrying tendency against transparency in the ten months it has been elected. There has been a pattern of refusal to operate transparently, from refusing to release departmental briefs even after freedom of information requests were made to the expansive and secretive scope of ‘Operation Sovereign Borders’. The Government has refused to allow the Human Rights Commissioner to visit the detention centres on Nauru and Manus Island for the preposterous and bureaucratic reason that the Commission’s jurisdiction does not extend past Australia’s borders. In addition to all of this, the appalling track record of the current and former governments has overburdened the Office of the Australian Information Commissioner. It takes several months for the OAIC to review rejected freedom of information requests, and instead of providing more resources, the Abbott Government is axing it!“
The leak of the Trans-Pacific Partnership (TPP) Agreement’s environment chapter reveals enormous flaws in the draft Agreement. It fails to adequately address serious environmental concerns, and is the product of lax public consultations and a lack of transparency. As a very vocal critic of the negotiating practices behind the TPP, Pirate Party Australia urges greater transparency in the Agreement so that experts and the wider public have an opportunity to contribute to a genuinely positive treaty.
An analysis of the draft environment chapter by Professor Jane Kelsey of the University of Auckland’s Faculty of Law notes that although the chapter “addresses matters of conservation, environment, biodiversity, indigenous knowledge and resources, over-fishing and illegal logging, and climate change … Instead of a 21st century standard of protection, the leaked text shows that the obligations are weak and compliance with them is unenforceable.” Professor Kelsey highlights that the investment chapter in particular threatens the efficacy of the environment chapter, especially as it is likely to contain investor-state dispute settlement provisions.
“There is little doubt that over the coming weeks there will be an enormous amount of criticism levelled at this leaked chapter”, commented Melanie Thomas, Pirate Party candidate for the Seat of Griffith in the upcoming by-election. “This is healthy and necessary to make the citizens of Australia and other participating nations aware of what is being negotiated on our behalf. What is unhealthy is the contempt the negotiating parties have clearly shown for public participation. As the leak is further analysed, we will become aware of the sham that public consultations have been, and how negotiators have taken on board very little of the constructive criticism provided. The reality is that a transparent, participatory approach is the only way to ensure the TPP and future agreements meet standards that are acceptable to the public.”
Pirate Party Australia congratulates the Greens’ successful motion in the Senate to compel the Government to make the final text of the controversial Trans-Pacific Partnership Agreement (TPP) public prior to it being signed.
“Having this far-reaching agreement finally made available for public scrutiny will be an enormous win for transparency and democracy in Australia,” commented Brendan Molloy, Councillor of Pirate Party Australia. “Leaks of draft text from the Trans-Pacific Partnership Agreement indicate substantial implications for intellectual property and investment, but it has so far been impossible to determine the extent of the Agreement and whether or not it will require changes to domestic law.”
The Party remains, however, critical of the contemporary practice of excluding the public from the treaty negotiation process, as has been seen during the negotiations of the TPP, Malaysia-Australia Free Trade Agreement, and the Anti-Counterfeiting Trade Agreement. The Department of Foreign Affairs and its counterparts in negotiating countries have actively prevented proper discourse with the public, failed to negotiate transparently, attempted to stifle media scrutiny and provided inadequate public consultation both here and abroad.