ABC Breakfast, Perth – interview with James Lush

Subject: Trans Pacific Partnership.

Transcript, E&OE, proof only

3 February 2014

JAMES LUSH: Last week we were introduced to the topic of the Trans-Pacific Partnership by Dr Matthew Rimmer from the ANU and Tom Warne-Smith a lawyer with the Environment Defenders Office in Victoria. They raised some interesting points. So this morning, we're continuing the conversation, this time from the point of view of Australian business via Bryan Clark, director of Trade and International Relations at the Australian Chamber of Commerce and Industry in Canberra and also Andrew Robb, who's the Minister for Trade and Investment. Good morning to you both. If I can start with you, Bryan, the Australian Chamber of Commerce and Industry looks after a pretty broad church from very small business to our largest enterprises. What's the official position in relation to the Trans-Pacific Partnership?

BRYAN CLARK: Hello, James. Look our position is that we're enthusiastic about all activities that our Australian Government enters into, to attempt to improve trade and the liberalisation of trade in goods and services so that the Australian economy in a broad sense will be the beneficiary.

JAMES LUSH: Okay. When it comes to something like this, would it be nice for you to be involved in those conversations because a lot of it is being carried out in secret.

BRYAN CLARK: The negotiations are always done in secret, that's part of the confidential component so that countries can put particular positions to each other and see where those negotiations go. We in fact sit a row back from that if you like as we're often in touch with the negotiators. We've put positions to the Government and sometimes as the negotiations progress, we have sometimes confidential discussions as well with the negotiators but often enough the Department of Foreign Affairs also holds public rounds, seeking information and responses from the public as well as industry groups like ours

So while the negotiations themselves by necessity need to take place in a confidential way, there is a process and it's a very good process for people to find out what's going on and in our experience the negotiators have always been very willing to give private briefings and confidential briefings as well as their public ones.

JAMES LUSH: Tell us how you imagine the Trans-Pacific Partnership could actually benefit Australian business.

BRYAN CLARK: Well, there's quite a lot of difficulties in trade, it's not easy for a number of Australian industries to do business internationally. And the Trans-Pacific Partnership offers hope for anyway an Asia-Pacific free trade agreement. There are already many in the region but this one might be more comprehensive than some of the others and certainly if it comes to fruition will cover about 40 per cent of the world's GDP and around 12 per cent of the world's population and about 25 per cent of global trade.

So it's very important and if we can get the right deal, then it will be a major step forward in trade liberalisation and harmonising the systems which trade gets done by.

JAMES LUSH: One of the criticisms is that it's often very good for big business, not necessarily for small business because it opens up the gate for basically big business to walk in and do whatever they want wherever they want. What's your take on that?

BRYAN CLARK: No, the rules apply to all businesses all of the time, so there's no differentiation between the scale of business that can take advantage of a free trade agreement whenever they're done but it is important that small business and others actually know about the deal and so we do try to make sure that our membership are well aware of where the stages are in the negotiations and not only this one but once they're finalised, such as the recently concluded talks for the Korean FTA, is – we think there should be an outreach program so that businesses of all scales know what to do.

Obviously the larger ones may have more resources to understand those ones so that's why it's important to get it into pretty simple language so that the smaller ones can understand. But you've also got to appreciate that certainly in Australia anyway is the internet is opening up huge opportunities for Australian businesses to be undertaking global trade and suddenly it's not just the people who are at scale that are accessing the international marketplace, it's now many, many, tiny ones that are able to do that and often there're in the services sector and services is one of the areas where there is quite a lot of barriers to entry and we'd like to see some advancement made in that area.

JAMES LUSH: Andrew Robb is the Minister for Trade and Investment, good morning to you, Minister.

ANDREW ROBB: Good morning, James.

JAMES LUSH: Just on that conversation we were just having – Bryan says the devil's in the detail and a lot of this does carry on behind closed doors. How can we be sure that Australia gets the best deal and doesn't get walked over in this respect?

ANDREW ROBB: Well, firstly, we've had, I think, something in excess of 700 different consultations with interested parties in Australia. It's an ongoing process and we need to be informed on so much of the detail because the stakeholders are the ones who know their businesses and so I believe that I'm very well informed and the negotiators are about what's in our interests and what's not. It is a negotiation and we don't have to accept any of it. So it's not a question of being stepped over, it's a question of making a balanced decision. Everyone says that we want economic integration with the region. We want removal of, in many cases, tariffs of up to 50-300 per cent. We want access to the things that we do best so in that process we have to give something. Their question is the package worth it.

JAMES LUSH: Yes. Can we have something which is good for business and also good for the environment because a lot of concern that what is good for business isn't necessarily good for the environment and these laws will just kick in and sort of basically just trample over everything that is important to a lot of Australians?

ANDREW ROBB: Well, there's a lot of misinformation being peddled, to be honest, on this front. And a lot of those groups that you talk about are equally informed by the department and have access to what the state of the negotiations are. For instance, this investor-state dispute settlement. It – there's a claim that it will lead to companies and environment issues being walked all over. Now it's not true with the modern ISDS so-called provision. Areas of public policy such as the environment and health are typically carved out. Now that was true in the recent Korean's free trade agreement so that governments are free to make decisions about public policy matters like the environment and not be ultimately be subject to dispute settlement.

JAMES LUSH: We've had lots of texts coming through. Martin sent a text saying can I ask the minister about corporations being able to sue government and citizens of another country. Is that something that you're concerned about?

ANDREW ROBB: No, no. Look, investor-state dispute settlement, again so many conspiracy theories are being peddled around because people have got other agendas in many cases. They're opposed to trade per se. The fact of the matter is, we've got investor-state dispute settlement provisions within agreements with 28 different countries. Now some of them stretching back 30 years and there hasn't been typically any sort of abuse. In fact, it's Australian companies that have been able to protect their investments. In other countries where the legal system might be biased or lack independence or where the host country – access to the courts, local courts is very difficult like India. It can take you years and years and years just to get a simple action taken.

So it has benefitted Australian companies who have made investments in those sorts of countries and it is wrong to suggest that it gives too many rights to companies. They're quite limited, the conditions under which they can take action. Most common protection is against discrimination or unlawful expropriation and a requirement to treat investors fairly and equitably. Now these are fair, these are established principles which have applied for decades.

JAMES LUSH: Can I just ask you just very quickly because we've got the news in just a second…

ANDREW ROBB: Sure.

JAMES LUSH: Last year Australia's plain packaging laws were challenged by Philip Morris through a trade agreement with Hong Kong. Is there any way of making sure our laws are protected in this partnership?

ANDREW ROBB: Well, the provision within the Korean – recently agreed Korean free trade agreement, had a protection against that. Public health issues were protected against investor-state disputes like Philip Morris has taken against the tobacco decision. That was an ISDS provision from a long time ago which didn't have this sort of carve-out as we call it. So in future that would not be possible but of course the plain packaging is also being challenged in the WTO which is another matter altogether.

JAMES LUSH: Thank you. Minister for Trade and Investment, Andrew Robb and also Bryan Clark, the Director of Trade and International Relations at the Australian Chamber of Commerce and Industry.

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