A Contemptuous Process
- Jane Kelsey
This is an extract from Jane’s e-book “Hidden Agendas: What We Need To Know About The TPPA”, which is reviewed in this issue by Jeremy Agar. It is available for $5 from Bridget Williams Books at www.bwb.co.nz.Ed.
The Trans-Pacific Partnership Agreement (TPPA) has very little to do with trade as we traditionally understand it. If it is completed, the Agreement will be as profound an assault on national sovereignty, tino rangatiratanga and participatory democracy as anyone can imagine. Trade Minister Tim Groser portrays this as an intrinsic feature of international law: “Of course trade agreements involve concessions over the sovereign rights of countries to do things. . . .That's the point of international law”. In his view, New Zealand suffers from the “excess sovereignty” that other countries have exerted over us; in particular, there are inadequate international legal frameworks on agriculture “so people have just screwed us”. We therefore “needed to control their sovereign right to do whatever suited their fancy. The whole point of international law is to put limits around countries' sovereignty on the basis of negotiated understandings 1
Not Just About Agriculture
But the TPPA is not just about agriculture (assuming there was some realistic chance of restricting “the sovereign rights” of the US on dairy). It is about us as citizens and tangata whenua, and the power and responsibility of elected politicians to make decisions in the best interests of the nation, and for there to be public accountability for doing so. New Zealand’s dependency on global finance, our thin domestic economy, and existing free trade agreements are already crowding that space, without signing more of it away. This Agreement could reach deeply into people’s everyday lives and circumscribe our options to address the challenges of the 21st Century. Yet it is being negotiated in secret. The negotiating parties signed a Memorandum of Understanding dated 4 March 2010 that set out the terms of the negotiation process, including withholding of documents. No text would be released until the Agreement was signed or negotiations were abandoned.
The cover page of the leaked texts revealed that the memorandum restricted the declassification of documents for: “Four years from entry into force of the TPP agreement or, if no Agreement enters into force, four years from the close of the negotiations”. That means all background documents, draft texts, explanatory notes or other material must be withheld, unless all the parties agree; there is no guarantee those documents would be released even after four years. If the government makes controversial concessions or proposals it will be shielded from political accountability during its term in office.
The Memorandum signalled a retreat to the days when international trade negotiations were obsessively secretive. Since the mid-1990s there has been a trend towards releasing working texts in a number of multi-party negotiations, including the World Trade Organisation (WTO) Doha Round, the Multilateral Agreement on Investment (MAI), the Free Trade Area of the Americas and the Anti-Counterfeiting Trade Agreement. This relative openness was partly a consequence of leaks of the draft texts, but it also reflected growing legitimacy problems as negotiations were accused of a democratic deficit.
The problem for negotiators is that release of those texts generated even more extensive debate and several of these negotiations failed. As Trade Minister Groser implicitly acknowledged, people are likely to resist the TPPA if they know what is in it. He described it as the height of naivety to think trade deals could be negotiated in the open. “They are very difficult and require countries to shift from long-held positions. That’s why they take so long and many of them fail” 2 The implication that only Trade Ministers and negotiators are appropriate and competent judges of the nation’s interest and that they should not be accountable as they negotiate enforceable treaties that will bind Governments for the indefinite future is truly breathtaking. If that same logic were applied to domestic legislation, which can be changed much more easily, there would be a massive outcry about denial of democracy and abuse of Executive power.
In legal terms this secrecy would make it very difficult to interpret the meaning of language that is contested in a dispute; reference to the preparatory works is a standard tool in treaty interpretation. Central and local Government, Members of Parliament, officials and lawyers advising or conducting disputes will not have access to the preparatory work to help interpret and apply the obligations. Given the extent to which the TPPA would reach behind the border into everyday policy and regulatory decisions, this makes the task of regulators almost impossible and fuels the potential for threats and actual dispute.
There is a specific exclusion from the Official Information Act for negotiation of international treaties, which also protects the documents afterwards. Section 6 says: “Good reason for withholding official information exists . . . if the making available of that information would be likely . . . to damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue Government economic or financial policies relating to . . . the entering into of overseas trade agreements”. The scope of the TPPA extends far beyond Government economic or financial policies. In the past, Governments have also rejected requests on the grounds that disclosure was likely to prejudice the international relations of the Government of New Zealand, the entrusting of information to the Government by another Government or international organisation on a confidential basis.
Te Tiriti o Waitangi
There is an intrinsic constitutional and legal tension between te Tiriti o Waitangi and the TPPA. In the mid-1990s a combination of Māori lawyers and academics, officials from Te Puni Kokiri, the Maori Congress and Maori Members of Parliament waged a vigorous campaign against the Multilateral Agreement on Investment (MAI) and the intellectual property rights and services agreements in the WTO, which promised foreign investors greater rights in Aotearoa than indigenous Māori and made those treaty rights enforceable when te Tiriti is not. 3 Since 2001 New Zealand governments have included the following Treaty of Waitangi exception in all Free Trade Agreements: “Nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement, including in fulfilment of its obligations under the Treaty of Waitangi”. The same wording has apparently been agreed in the TPPA, although the US was originally opposed.
This exception promises much more than it would deliver. It only applies when New Zealand (effectively the Government) deems such action to be necessary. If it does not, as in the case of water rights and the power company privatisations, there is no capacity for the claimants to require the Crown to take action to protect their rights or interests. Moreover, the exception only preserves the Crown’s right to “accord more favourable treatment to Maori”. This would clearly allow discriminatory treatment of a commercial kind, for example by co-ownership or reserving resources or company shares for Māori. But it would be harder to argue that tobacco control policies, which would disproportionately but not exclusively benefit Māori, or administrative decisions, such as a moratorium on mining the seabed in tapu areas, constitute “favourable treatment”.
While the exception would apply to all chapters of the TPPA, including the Investment Chapter, it operates as a defence to an alleged breach. The provision says the Government’s interpretation of the Treaty of Waitangi, and the nature of rights and obligations arising under it, cannot be challenged. But it still allows a TPPA party or an investor to object that the measure was “arbitrary or unjustified discrimination” or a “disguised barrier to trade in goods, services or investment”. Action by a future Government to provide redress to Māori might well be challenged as arbitrary discrimination when a previous Government had claimed that such action was not justified under te Tiriti. The boundary line between the Crown interpreting its obligations and claims of discrimination is especially tenuous in the hands of ad hoc State-State or investor-State dispute tribunals.
Letting The People Speak
It is difficult to engage with people and assess their views when an information blackout is designed to shut down public debate. Under such conditions, opinion polls can become pretty meaningless. The NZ-US Council released a survey in October 2012 in the lead-up to the December negotiating round in Auckland. Only 14.3% of people surveyed knew the name of the TPPA; that rose to 48.4% after they were prompted. But the Council somehow claimed that 56.3% of New Zealanders surveyed support or strongly support the TPPA - eight percentage points more than had heard of it! Just over 13% opposed the negotiations, and 30.4% were keeping an open mind. 4
The next month a number of unions and sector groups concerned about the TPPA published the result of a more robust series of polls. The detailed questions contained more information about the agreement to help inform answers. 5 Not surprisingly, it produced contrasting results. There were high levels of opposition to
- keeping the text secret until it is signed (65% opposed, 14% for)
- allowing foreign investors to sue the Government in offshore tribunals for compensation for new environmental laws (61%, 9% for)
- the New Zealand government’s failure to reject those special rights of foreign investors to sue, when Australia had completely rejected the concept (62% opposed, 12% for)
- making trade-offs that would result in a significant rise in what it costs the Government to supply medicines to the public (52% opposed, 18% for).
The common conclusion from the two polls is the need for public debate on the implications of the TPPA for New Zealand. Diverse groups of New Zealanders have already spoken out. Over 100 legal professionals, including former judges, parliamentary officers, senior politicians and academics, wrote an open letter expressing dismay at the investor-State dispute process. More than 400 health professionals did the same over the implications for public health. The FairDeal coalition has brought together many mainstream businesses and organisations opposed to the US intellectual property proposals. Different parts of the culture community have voiced concern over the impact on local culture and diversity. Petitions from unions and non-government organisations have sought hearings before Parliament. 600 individuals, as well as many organisations, petitioned for release of the test. More than 1,000 people have sent letters to the Prime Minister and Trade Minister opposing the TPPA.
To date, the Ministry of Foreign Affairs and Trade’s consultations have consisted of a written submissions process, a Website and painfully unenlightening briefings for the media and for stakeholders on request. In May and June 2013 the Australian negotiators held meetings in five cities to “provide an update on progress to date, an overview of Australian negotiating positions in key areas, as well as information about the negotiations into the future”, with additional meetings on intellectual property and e-commerce. New Zealand belatedly agreed to do something similar in June and July 2013. The information provided by the chief negotiator continued the obfuscations that media and critical stakeholders have experienced since the negotiations began
Contempt Of Parliament
Four political parties have expressed their opposition to the deal – the Greens, Mana, New Zealand First and the Māori Party. The Labour Party conference in 2012 adopted a resolution that sets ten pre-conditions for support, including substantially increased access for agriculture exports to the US, not undermining Pharmac, no greater rights to foreign investors, including investor-State dispute settlement, and one that will never be satisfied – full public consultation, including regular releases of draft texts. The Auckland City Economic Forum passed a resolution in similar vein in December 2012.
Yet not even Parliament has been allowed to engage in democratic debate and effective scrutiny of an Agreement that would bind its future legislative options. Under Standing Orders, a subject Select Committee may receive briefings on, or initiate inquiries into, matters related to their respective subject areas (such as health, local government and environment, or Māori Affairs). In July 2011 a petition signed by a number of prominent organisations, headed by the NZ Council of Trade Unions, called for the Foreign Affairs, Defence and Trade Select Committee to hear submissions on the TPPA. The Government majority said no.
The Health Select Committee has twice refused requests from Opposition members to hear expert evidence on the TPPA. After the second refusal, Labour’s health spokesperson Maryan Street said publicly: “We need to be informed of all views if we are to do our jobs properly. We may not agree with evidence before us, but how will we know if we don’t hear it? What are they afraid of? People are asking us questions about these issues. If we can’t be informed about how trade agreements might or might not impact on future health policies, then what are we doing on the Health Select Committee?” 6 The Māori Affairs Committee has been prepared to hear evidence relating to the implications for the smokefree policy that resulted from its inquiry into the impacts of the tobacco industry on Māori. It heard from both critics (the author) and, behind closed door, from Ministry officials who were reportedly told to come back to brief the Committee again after they had done some more preparation.
Disingenuous
The Prime Minister has said the TPPA will go through “normal Parliamentary processes”. 7 That is disingenuous. The Cabinet Manual could not be clearer: “7.112: In New Zealand, the power to take treaty action rests with the Executive”. In practice, that means the Cabinet. Cabinet decides whether to enter into negotiations, the negotiating mandate and any revisions to it, and what trade-offs are made to conclude a deal. Cabinet then approves the signing of the text agreed to by the Minister. The Cabinet Manual confirms that by signing an agreement the executive is indicating an intention for New Zealand to be bound to that text. This constitutes a good-faith obligation under international law. Parliament does not get to see the text until after it is signed.
The text of the TPPA would have to be presented to Parliament. Standing Orders require that it is referred to the Foreign Affairs, Defence and Trade Select Committee. The Committee has the discretion whether or not to seek public submissions, and could refer it to a more appropriate Committee. But the TPPA would affect the mandates of a wide range of additional Committees, such as Health, Commerce and Education. The Cabinet Manual makes it clear that the Executive could move to ratify the TPPA while the Select Committee process was still underway – as it did with the New Zealand Thailand Free Trade Agreement in time for a meeting of the nations’ leaders in 2005.
The Government could ratify the treaty after the Select Committee had reported or 15 sitting days had elapsed since it was presented to Parliament, whichever is sooner. In other words, the maximum period for the Select Committee to report on the Bill is 15 days after it is tabled. These are huge, highly technical agreements. Within these 15 days submitters need to (a) access the document, (b) analyse its technical detail across more than 20 chapters, (c) write an accurate and detailed submission, and (d) appear at a hearing before the Select Committee – then the Committee needs to prepare a considered report, including any dissenting minority reports. The Government can grant an extension, and has done so in the past, but the Cabinet controls both that decision and how long an extension would be. Even if people make detailed and informed submissions, and raise matters of significant concern, the Government has a majority on the Select Committee – and the Executive is already pre-committed to New Zealand adopting the text.
According to the Cabinet Manual, a National Interest Analysis must accompany the TPPA when it is presented to Parliament. The list of factors it must address is set out in Standing Order 395. It is required to explain “the advantages and disadvantages to New Zealand of the treaty entering into force for New Zealand”, “the economic, social, cultural, and environmental effects of the treaty entering into force for New Zealand, and of the treaty not entering into force for New Zealand”, and “the costs to New Zealand of compliance with the treaty”. But analysis of the TPPA would be prepared by the same Ministry of Foreign Affairs and Trade that has negotiated it. The peremptory nature of such analyses and their failure to engage seriously with the issues have been widely criticised during reviews of the Standing Orders and submissions on Members’ Bills to improve the treaty-making process. All to no avail.
Once this process is completed and the Select Committee reports back, Members of Parliament have no automatic right to debate the TPPA. The House may decide to do so, if the Government majority agrees. Parliament might even be invited to vote on the Agreement, again if the Government majority agrees – which will depend on whether they see any risk they might lose. Votes have been held on several recent free trade agreements, because they were assured of bi-partisan National/Labour support. That consensus is not guaranteed under MMP, although voting not to accept an international treaty that has been signed would bring significant diplomatic fallout. Any vote would be symbolic anyway, as the Executive has the power to ratify.
Any legislation that is required to comply with the TPPA could not be introduced to the House until the period for the Select Committee consideration had expired. Parliament could refuse to pass the new laws, but that would not change the treaty. There is noformal requirement that such legislative changes have been made by Parliament before a treaty is ratified. Once the TPPA was ratified New Zealand would be in breach of its new obligations by not passing the necessary laws. Alternatively, the Government could bypass the legislative process by making controversial changes wherever possible by regulation or administrative decision.
We Need To Speak Out Now
This is a contemptuous process for an enactment that is more important than any Bill that comes before Parliament and limits what future Parliaments can do. It is more like a Constitution. There have been several Private Members’ Bills seeking to strengthen Parliament’s role in approving treaties. Both Labour and National governments have blocked them. Almost identical international treaties’ Bills were proposed by Ken Shirley from ACT in the mid-1990s and Keith Locke from the Greens in 2000. Locke’s Bill went to a Select Committee, but the Ministry of Foreign Affairs and Trade vigorously and successfully defended its turf. Attempts to strengthen the process through Standing Orders, which set out the way Parliament deals with international treaties, met the same fate. The Minister and the Ministry retain a vice-like grip on the entire process. All this makes the TPPA a matter that requires urgent attention. People need to be concerned about what it means for our future, and for people in the many other countries that may be subjected to its “disciplines”. And they need to speak out now. If we wait until the deal is done before we protest, we will have surrendered our vision for the 21st Century to the self-interest of foreign states and their corporations.
Endnotes
- “We'll lose under trade deal, says Groser . . . but we'll win too”, 7/7/12, NZ Herald, http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10817978
- “End Secrecy on TPP Talks - Petition’, NZ Herald, 13/4/11, http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10718852
- Jane Kelsey, “Reclaiming The Future: New Zealand And The Global Economy”, Bridget Williams Books, Wellington, 1999, pp.265 and 339-342. Reviewed by Liz Griffiths in Watchdog 94, August 2000, http://www.converge.org.nz/watchdog/94/13recla.htm
- Conducted by Buzz Research between 18 and 21 September 2012 with 1,018 respondents aged 18-64 in New Zealand. It has a margin of error of +/- 3.1% http://www.nzuscouncil.com/images/uploads/free_trade_research_results.pdf
- Consumer Link between 14 and 21 November and 4 to 10 December 2012, survey of 500 people, margin of error 3.3%. http://www.scoop.co.nz/stories/PO1212/S00285/opinion-polls-show-pm-out-of-touch-with-public-on-tppa.htm
- Maryan Street, Press release: “National MPs shut down health debate”, 12/9/12, http://www.scoop.co.nz/stories/PA1209/S00178/national-mps-shut-down-health-debate.htm
- For example: “Key says ignore Trans-Pacific Partnership protesters”, 3 News, TV3, 4/12/12, http://www.3news.co.nz/Key-says-ignore-Trans-Pacific-Partnership protesters/tabid/1607/articleID/279086/Default.aspx
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