The Trans Pacific Partnership Agreement (TPPA) represents a significant risk to Australia, our environment, our health and our right to have decisions made in the public interest. It is yet another step in the ceding of power to corporate interests by our ‘leaders’.
Most commentators critical of the TPPA are clear that this isn’t a free trade agreement. Most of the chapters relate to ensuring greater corporate control over the affairs of citizens – greater rights to exploit, destroy and profit and fewer rights and protection for the environment, workers, citizens and even governments.
How have we reached as stage where such a blatant corporate power grab could be expedited by democratic governments that are supposed to act for the public good?
The 12 countries that are party to the negotiations, including Australia, have refused to release the draft text, but a number of chapters have now been leaked, providing a clear view into the interests that are driving this proposed ‘partnership’.
There are three specific areas of concern in relation to nanotechnology and other emerging technologies: intellectual property (IP) rights being strengthened for corporations; Investor-state dispute settlements (ISDS) and a ‘least restrictive’ regulatory standard.
Intellectual property rights
There are several IP provisions of the TPPA that are bad. Generally, the provisions extend the duration and restrictive provisions of current IP law. Copyrights will become more restrictive, penalties more severe, patents longer, and IP controls in relation to the internet much more stringent. The TPPA will almost certainly make medicines more expensive and make it more difficult and slower for generic medicines to come to market.
IP provisions that strengthen the rights of corporate patent holders are already a problem in emerging technologies. In the world of genetically modified (GM) plants for instance, patent rights have profoundly restricted the capacity of researchers to access GM material in order, for instance, to test the safety of GM foods.
In order to continue to ensure that commercial development is permitted to proceed without interference from the public sector or independent scientists, industry and its political lackeys are seeking to ensure greater ‘data protection’ and to expand the meaning of ‘trade secret’. Data protection refers to materials submitted to regulators supporting an application for release or use of a particular product. This data can be critical in independent assessments of the accuracy and credibility of analysis done by industry. Industry wants this data protected from release for 12 years.
What this means, is that transnationals are happy to have regulators look at the data, but no one else. This should come as no surprise when one looks at how poorly Australian regulators have addressed emerging technologies such as GM. They have never rejected a permit, never withdrawn a permit despite new evidence, never enforced labelling laws and never sent company data out for independent peer review. Public access to such data should be immediate and unrestricted.
Expanding the meaning of trade secrets will make securing information through Freedom of Information requests even more difficult. Currently, governments and industry like to claim a business exemption and refuse to release virtually any business document. This is in defiance of both the general and specific disclosure provisions of the Freedom of Information Act, so ensuring that all business information is now considered a trade secret will ensure that almost no materials relating to the machinations of government and big business are released.
ISDS – Investor-State Dispute Settlements
ISDS provisions are the most contentious (or rather, loathed) part of the TPPA. They will allow aggrieved corporations to sue a government for millions of dollars before an International Investment Tribunal if their investment is harmed by a law or policy, even if that law or policy is designed to protect the environment, human health or workers’ rights. The Tribunals will give priority to investor rights. We can already see how these new corporate rights might work. Following plain cigarette packaging laws in Australia and the failed efforts of the tobacco industry to challenge those laws in Australian courts, the industry has turned to an ISDS provision in what was once an obscure trade provision in a 1993 Australia-Hong Kong trade agreement. Philip Morris has now moved assets to Hong Kong so that it can ignore the judgements of the Australian judicial system and sue the Australian Government for damage to its investments.
In emerging technologies, where there is weak, little or no regulation, provisions such as these will almost certainly reduce the likelihood of effective and meaningful regulation. For instance, if nano sunscreens were regulated because they were found to cause harm to human health, it appears that industry would have the right to challenge regulation because it harmed or could harm an investment.
Least restrictive regulatory regimes (bye bye precautionary principle)
Industry likes to promote least restrictive approaches to regulation as a public good, rather than what they are – measures designed to reduce regulation and increase profits. In a similar agreement currently being negotiated between the EU and the US (Transatlantic Trade and Investment Partnership), the possibility of regulating nanotechnology is raised directly. While the US recognises the lack of any comprehensive nanomaterial regulation in both the US and the EU, they are pushing for a ‘least trade restrictive’ approach to any regulation that is proposed. This is pretty much the opposite of a precautionary approach.
We have seen how this least restrictive approach works in the bipartisan efforts of both the Coalition and the ALP to eliminate environmental protections. Both parties have supported the elimination of environmental regulation (so-called green tape) on behalf of big business, often based on nothing but anecdotal evidence from the Business Council (repeated with no data by the Productivity Commission). It is likely that similar provisions are being negotiated as part of the TPPA and likely that there will be few if any evidentiary requirements for eliminating bothersome regulatory requirements.
Although the Howard Government once opposed ISDS provisions, it isn’t clear that the current PM will do the same. It is clear, however, that the other provisions outlined above will be supported and the PM has already indicated that he wants this agreement for the transfer of political power to transnationals to be signed as soon as possible.