Government faces tricky trade-off over Trans-Pacific deal | Law

Government faces tricky trade-off over Trans-Pacific deal

OPINION: Professor Leon Trakman, The Courier Mail, 25 July 2016.

With the prospect of the Turnbull Government facing obstacles in passing legislation through the Senate, intense debate is likely to resume over whether it can ratify the far-reaching Trans-Pacific Partnership Agreement.

The TPPA is of immense importance to Australia. Focusing on liberalisation of international trade and investment, it involves 40 per cent of global trade. The framework for the agreement – which involves 12 Pacific Rim countries, including two of Australia’s most powerful partners, the US and Japan – was signed in February after seven years of negotiations.

Corporate America wants it. The US has brokered it in response to those corporate interests. It not only extends US markets across the Pacific but also extends US influence through a treaty that excludes China.

But there are real challenges before Australia can ratify it. The Coalition will need to persuade crossbenchers in the Senate that trade liberalisation benefits Australians. Public contestation is likely to compound that difficulty.

Health, environmental, labour and consumer advocacy groups will renew their claim that the TPPA benefits global corporations by undermining the democratic rights of Australians.

What is clear is that privacy rights are fundamental to a free and democratic society. The commercial use or sale of data, including the personal details of consumers, ought not usurp their privacy. Nor should the Government empower multinational corporations to deny prosecutors access to private information to prosecute felony charges, as occurred when US investigators sought access to Apple’s mobile source codes in a murder case.

But avoiding excessive restrictions on the free flow of data over the internet is also the Government’s responsibility.

Just as protecting the rights of Australians to privacy is fundamental to our democratic society, free trade is an essential nutrient in sustaining our economy.

Certainly the Coalition has the power to regulate “postal, telegraphic, telephonic and other like services”. However, the Government can’t regulate foreign corporations in derogation of treaty obligations it assumes by ratifying the TPPA.

Chapter 14 of the TPPA requires the Government to maintain effective measures to protect consumers from fraudulent and deceptive e-commercial activities. But, in support of liberalised trade, Chapter 14 will also prohibit it from accessing the software source codes of corporations from other TPPA states, or gaining access to their computing facilities in Australia.

The Coalition’s weighty challenge will be to protect both personal security and the freedom to trade across national boundaries.

Should it fail to protect consumers adequately, it will face a political backlash. Should it protect consumers assiduously, foreign corporations are likely to sue Australia for violating their TPPA rights.

If Brexit gives the Turnbull Government any guidance, it is to engage in a careful cost-benefit analysis in deciding whether to ratify the TPPA and avoid making treaty commitments that are likely to regress into irreconcilable adversity.

Read the article here.