Senator WHISH-WILSON (Tasmania) (18:56): The Australian Greens are not opposed to trade agreements. We have a very firm policy of supporting fair trade in our agreements. We are very happy for the opportunity for agricultural market access to be enhanced by these types of trade deals. However, we have a number of concerns about issues in this Korean free trade agreement, KAFTA. On balance, we do not believe the agreement is in Australia's national interest. In the amendment circulated by Senator Wong, the Greens agree with where it says: … the Senate urges the Government to … seek to renegotiate the Korea-Australia Free Trade Agreement to omit provisions relating to Investor State Dispute Settlement We also agree with the request to 'provide clarity on proposed changes to copyright', since the Greens have significant issues with that. We also agree with asking the government to 'protect Australia's right to regulate labour market entry and promote labour standards', as the Greens have issues there too. We also would like to see the automotive industry protected and so agree with part (d) of the motion. We agree with part (e), which is a bit of a no-brainer, around business concerns about complex rules of origin. However, Senator Wong has worked with me in this chamber in the last 12 months to urge the government to do a number of things, such as release a draft of the Transpacific Partnership Agreement and release the modelling of the KAFTA agreement. Urging the government to do something is not going to get it done. Senator Wong has been around a lot longer than I have and I am sure she understands that, while it might look good to put up an amendment in parliament and look like you are standing up for stakeholders who have very serious issues with free trade deals, it will achieve diddly squat. Someone has to stand up and face off with the government and say that this deal is not good enough. It is high noon at the free trade corral and it looks like only the Greens are going to be standing in the dust with Senator Xenophon, eyeing off the government. The reason we absolutely have to do this now, the reason it is high noon, is that the Transpacific Partnership Agreement, the largest trade deal in this country's history, is very close to being signed and it includes dangerous ISDS clauses and a number of provisions on the environment and on intellectual property. We have the same concerns, if not more concerns, about that agreement. This sets a bad precedent. Labor in government refused to sign the KAFTA deal. Evidence was provided during the inquiry that Labor refused to sign this deal because it included ISDS clauses. So what we have seen today is a backflip from Labor on a long-held principle which the Greens thoroughly agree with not to include ISDS provisions in trade deals. A few weeks ago, the ABC did a fantastic job covering the background briefing on this issue. Craig Emerson, a former Labor trade minister, was very clear in his comments about ISDS provisions. So while it looks great to be out there grandstanding to the media and talking about how you do not like these things, how they are dangerous, how you think they have no legal authenticity and how they are run by dodgy international courts that have no transparency, on the other hand Labor have given the government what they want. How does that work? If we are going to improve trade deals in this country and get the scrutiny that we need around trade negotiation processes and omit dangerous clauses such as ISDS clauses, we need to make a stand on the Korean-Australian free trade deal. We tried to get things changed before the deal was signed by cabinet. We have raised this issue repeatedly for 15 months in this chamber and in estimates and we have got no response from the government at all. We have to change the way we do trade deals in this country. Just as a matter of interest, our Foreign Affairs, Defence and Trade Subcommittee dissenting report went through and looked at recommendations that have been made by JSCOT in the last 15 years around trade. These are not the recommendations of the Productivity Commission, who thoroughly agree, by the way, with everything the Greens said in their dissenting report. These are recommendations from a number of trade deals. I will start with the 2004 Joint Standing Committee on Treaties inquiry into the Australia-United States free trade agreement. It recommended: To enable the Australian Parliament to assess the economic impact of the AUSFTA— the Australia-United States free trade agreement— the Committee recommends that a review of its implementation be conducted by the Productivity Commission five years after the Agreement enters into force. Also: The Committee recommends that the Government undertake a review of the environmental impact of the Agreement and that legislation be introduced which will ensure that all future free trade agreements contain results of an environmental impact … JSCOT then made similar and larger recommendations on 17 June 2008 on the Chile-Australia free trade deal. We then made very similar recommendations in 2009 on the New Zealand free trade pact. Then we did it in August 2012 around the Malaysian free trade deal. We made the same recommendations and got no action. There has been no action at all from any government while in power to change the way we negotiate trade deals such as to make draft text available to parliament so that it can be scrutinised before deals are signed. We are not asking anyone to read their will here. This is what the Productivity Commission itself has recommended. If we support this trade deal, we will be supporting an inefficient, imperfect process that has been constantly recognised as such by the joint parliamentary committee and the Productivity Commission, and we will be supporting the inclusion of dangerous investor-state dispute settlement clauses which give corporations the right to sue sovereign governments. No matter which way you cut it, the evidence provided in a recent bill put up by the Greens to ban ISDS and the evidence provided to JSCOT on KAFTA and the Foreign Affairs, Defence and Trade Subcommittee is that these provisions cannot be made safe. Carve-outs and exceptions do not work. They do not preclude anyone from bringing litigation forward to chill regulation in sovereign nations when those nations want to do something in the public's interest. An example is the plain-packaging tobacco law. They were very bravely brought in by Labor. They are now subject to challenge by Philip Morris through a bilateral trade deal with Hong Kong. This is an investor-state dispute settlement clause designed to strategically send a message to any country around the world that wants to go down the same path as Australia. They are suing the Australian government for a public health policy. They are suing the Australian government through an international arbitration tribunal that has no transparency. There are only three people on it. There are about 500 of these cases being held around the world. The majority of them are being waged by US companies. Once again, we are about to enter into a large multilateral trade deal—the Trans-Pacific Partnership agreement—which includes the US. We know from our recent discussions with Foreign affairs, Defence and Trade that ISDS clauses are back on the table for the TPP. What sort of precedent are we setting here today if we include these in our trade deal? Let's look at the evidence on ISDS provisions. There is no evidence at all that they bring any economic benefit to the nations that sign up to them. There is no evidence that they help facilitate the flow of investment across national borders. There is no evidence that existing legal frameworks are not sufficient to protect investors. This has come from independent sources, including, once again, the Productivity Commission. So why did we include an ISDS clause in this agreement? It is because the Koreans insisted on it. Why did the Koreans insist on it? It is because they have recently signed a deal with the American government and that was the benchmark they insisted Australia jump up to. Who knows on how many more trade deals in the future we will stand up and say, 'We want parliamentary scrutiny before it is signed by cabinet'? I want to get on the record the way the treaty process is at the moment. Once treaties are signed by a cabinet they come to JSCOT, which can make recommendations. But, unlike what I believe Senator Wong was implying in her amendment, these changes cannot be made. It is all or nothing—swallow it whole or spit it out. That is our option here. Senator Wong does not think it is good enough and nor do the Greens. On balance, her view is that the benefits outweigh the costs, but she does not ignore the fact that there are costs. Why is it that we have to have second-rate trade deals in this country? So many people have been recognising this for 15 years, yet we continue to see them in this parliament, and we are forced to ratify them without the ability to make good, positive changes to them that would benefit this country. There are all sorts of issues in this trade deal around intellectual property that have been recognised in this motion by Labor and were recognised by a number of witnesses in the agreement. The Greens also have issues with the automotive industry and the impacts these trade deals have had on the automotive industry. It is very clear when you read the media but it is a lot harder to get evidence at inquiries on what impact these trade deals have had on the automotive industry. However, it is very clear that they have been significant. Why is it hard to get evidence? Because the modelling on this Korean free trade deal, apart from the fact that we had to request it twice in an order for the production of documents in this chamber, did not assess the impact on the car industry when it was first done. It did not assess it at all. You would have thought it would have been one of the critical things that would have been assessed, given the desperation stakes that the Australian automotive industry found itself in leading up to the signing of the Korea-Australia Free Trade Agreement. The modelling was very limited. It is an input-output model. It does not include the dangers and risks of things such as ISDS or changes to intellectual property. On the IP, JSCOT and the Productivity Commission have also recommended independent economic reviews into the impacts of these trade deals on intellectual property in this country. That has not been done either. So, let us make this very clear: if we vote for this legislation to enact this Korean free trade deal, we will be voting for a second-rate trade deal that could be a lot better. Someone has to have the principle to say: 'It's not good enough. We can do better, and we need to make a stand. Government needs to go back to the drawing board and do this deal properly.' Unfortunately, an amendment in the Senate urging the government to do this for us is not going to work, because we have already urged the government to consider these factors, in so many different parliamentary forums, and of course it is not interested. I remember the Prime Minister's, Tony Abbott's, speech—the Governor-General's speech—and I think it was in the second paragraph of that speech that the Prime Minster said that a hallmark of this government is going to be signing free trade deals; this is what they are going to hang their hat on. And how quick were they to rush into signing the Korean free trade deal, which we know had been sitting there for three or four years, unsigned, because it gave the government a headline. It gave them a quick fix and a headline and a distraction from their domestic local problems around the budget and their ripping up of really good policies, like the price on carbon, and not tackling other revenue measures, like fixing the mining tax. So, the Korean free trade deal: a quick nip in the bud, get this deal signed, include ISDS—it does not matter. And it is good for the agricultural industry, potentially; there is no doubt about that—not all the agricultural industry, but nevertheless—but not so good for the car industry, not so good for the intellectual technology industry; there are a lot of issues around that. The Australian Greens have put out a dissenting report. We firmly believe in fair trade. But fair trade incorporates externalities. It incorporates the costs of these deals. Nobody has any doubt. Any first-year economics student will tell you that trade deals involve trade-offs, they involve compromises. But who is making these compromises, these trade-offs, in our name? If nearly a third of our economic activity in this country comes from trade, that is pretty substantial. Who makes these decisions? Why are they made in secretive trade negotiation processes that are not open to the public and such that the public cannot access the documents and the draft text at different stages? Even at the end of a trade deal they cannot be accessed. It is time to change the way we do trade deals in this country. This KAFTA deal, in its national-interest assessment, showed a negligible benefit to this country in macroeconomic terms. Nevertheless, it is an opportunity; I respect that. How are we ever going to change the way we do things in this country if we do not make a stand on this now? The Greens will not be voting for this trade deal, because, if we do, it sets a very bad precedent for a government that is dead keen on headlines, dead keen on going up in the polls, with a large multilateral trade deal—the Trans-Pacific Partnership—that covers just about every aspect of Australian life and Australian economy, the environment, trade and labour standards. If we buckle and ease on this now, what chance are we going to have? What chance are the communities around this country going to have? These communities are concerned about secret trade deals and compromises and trade-offs being made in their name. What chance are we going to have to get scrutiny on the Trans-Pacific Partnership Agreement? What chance are we going to have to get a draft text given to parliament and in input process? What chance are we going to have to say, 'Don't include investor state dispute settlement clauses in future trade deals' if we vote for this agreement in this parliament in the next two days? This is a matter of principle. It is not just about the agreement itself; it is about the process of negotiating trade deals—a process I believe is broken. The evidence is firmly in front of us. It is broken and needs to be fixed. What guarantees are we going to have from the government that things will not be different?—for the Chinese free trade being negotiated, for the Japanese free trade deal. Signing this opens a can of worms that is a lot more than it seems, and you really have to scratch the surface to see it. Risking the sovereignty of our country by allowing multinational corporations in Australia, and even wealthy Australian companies, to sue foreign governments that cannot afford to be sued because they want to enact legislation in the public interest is totally unacceptable both to the Greens and to the Australian people. The Australian people are significantly worried about this issue. Chief Justice French of the High Court recently called on the judiciary and the legal profession to have a conversation immediately about investor-state dispute settlement clauses. Being on the High Court, he understands the issues, the risks, having seen Philip Morris sue the government and take it all the way to the High Court—and challenge the High Court's decision ultimately in a shady arbitration process that is provided by investor-state dispute settlement clauses. So listen to the No. 1 legal mind in our country, asking us to step back and reconsider these clauses in our trade deals. We have not properly debated this. The Greens put up a bill in parliament to try to get some scrutiny on this issue, but still these things are done with a flick of the pen by people we do not even know who are negotiating on our behalf. This issue needs to come to parliament and be scrutinised before it is ratified, and not just by a government-led JSCOT committee. We need time to digest these things and we need to come up with a model investment treaty process in this country to make sure that we get trade deals right in the future. This is an imperfect trade deal—it is second rate and it is dangerous, and the Greens will not be supporting it.