TPP secretly trading away your rights

Source: CHOICE Consumer Advocacy Organisation

Negotiated behind closed doors, what effect will the Trans-Pacific Partnership have on consumer rights and privacy?

Are you concerned about the increasing cost of medicines? Do you want to know if your muesli bar contains palm oil? Want the government to be able to implement health policies like plain packaging?

Then you really should care about the Trans-Pacific Partnership (TPP), a trade agreement being negotiated in secret between Australia, Brunei, Chile, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam.

Why the TPP matters

In this report, we investigate the TPP and the impact it will have on your consumer rights and privacy. You'll find information on:

• the secrecy surrounding the TPP and details of how the media is being locked out of briefings
• how the Australian government could become more vulnerable to lawsuits from multinational corporations
• why food labelling in Australia is in danger
• how draconian copyright provisions could significantly curb our freedom online
• how extended monopoly provisions could make medication costs skyrocket

CHOICE's campaign on the TPP

CHOICE is calling for the TPP text to be released before a final agreement is signed.  CHOICE has investigated the Trans-Pacific Partnership and the impact it will have on consumer rights and privacy. Why hasn't it been exposed to public scrutiny?

What CHOICE wants

The TPP negotiations are drawing to a close, and are likely to be finalised by mid-2015. However, it's not too late to release the draft of the TPP so it can be debated in civil society and so the TPP can be made fairer for consumers.

CHOICE is currently campaigning against the secrecy surrounding the TPP. We have now lodged our petition, signed by over 14,000 Australians, calling on the government to release the contents of the TPP. We believe such an important and binding trade agreement must be open for public scrutiny and oversight. The signed petition has been presented to the government to send the message that Australian consumers deserve to have a say on the TPP.

And our campaign doesn't stop there. We've banded with health groups to send submissions to the Department of Foreign Affairs and Trade, calling for the release of the text. To add your voice to this campaign, make a submission here.

Why haven't you heard more about it?

The TPP has been shrouded in secrecy, with negotiations happening behind closed doors and non-disclosure agreements securing the negotiators' silence. And while CHOICE has met with several of those involved in drafting the agreement and even attended meetings with negotiators at a round of negotiations held in Malaysia in 2013 (we were permitted to have our say, but could only guess at the contents of the agreement in order to raise our objections), we still don't know what the final agreement will contain. Because of the secrecy, which began under the previous Labor government and has continued under the Coalition, any public knowledge about the TPP is based on leaked drafts and statements made by those involved.

The kicker? Hundreds of "cleared advisors" – a group comprising industry lobbyists from the US – have had access to the full drafts of the TPP, while public interest groups like CHOICE have been kept in the dark. Even our politicians don't get to see the TPP until it's finalised and amendments can't be made.

WikiLeaks recently published a draft of the intellectual property chapter of the agreement, which they say was distributed among the chief negotiators of the TPP in May 2014. While several rounds of talks have been held since the leaked chapter was authored, it appears that the chapter is largely settled. This leaked draft indicates that consumer rights could be significantly eroded if Australia signs and ratifies the TPP.

When speaking of a previous Wikileaks leak of the chapter, Dr Matthew Rimmer, Associate Professor at the ANU College of Law, said: "Australian consumers have been betrayed. The intellectual property chapter of the Trans-Pacific Partnership is a monster. The proposals in respect of copyright law, trademark law, patent law, and data protection would hit Australian consumers hard.

"The Trans-Pacific Partnership undermines Australian efforts to take substantive policy action in respect of IT pricing. The agreement does nothing to further efforts to reform copyright exceptions in Australia. The agreement threatens consumer rights, privacy, and internet freedom."

DFAT to media: you're "ineligible" to attend TPP briefings

The Australian government seems like it isn't too keen on TPP negotiations hitting the headlines. In late October 2013, technology journalist Josh Taylor of ZDNet told CHOICE he was barred from attending a Department of Foreign Affairs and Trade (DFAT) briefing on the TPP negotiations, despite the fact that his RSVP had previously been confirmed.

According to the invitation, the briefing was open to "members of the public, and business and civil society stakeholders"; no mention was made of journalists being excluded. But in revoking his invitation, Taylor says DFAT told him that TPP briefings are "off the record". In a backflip, DFAT later reportedly told the journalist he could attend in a private capacity, but couldn't record or attribute any of the briefing material.

Public interest issues

Government could be sued by companies for making law in the public interest

The leaked chapters of the TPP indicate that the agreement may contain an investor-state dispute settlement (ISDS) clause, which allows foreign corporations to sue Australia's government for loss of future profits. While the previous government said that an ISDS provision would be a deal-breaker for Australia, the Coalition has indicated that it may consider signing the TPP with an ISDS clause.

Similar agreements have already had a significant impact in Australia.

After the introduction of tobacco plain-packaging rules in Australia, cigarette companies (unsuccessfully) challenged the new laws twice in the High Court. Philip Morris Asia (which acquired Philip Morris Australia nearly a year after the government announced its decision to introduce plain-packaging legislation) is challenging plain packaging again – this time under international law, by invoking a 1993 bilateral investment treaty that included ISDS provisions between Australia and Hong Kong.

The private arbitration is being conducted under the United Nations Commission on International Trade Law, and despite our highest court ruling in favour of the legislation, the Australian government has allegedly already spent millions of taxpayer dollars in mounting a defence to the challenge.

Other examples abound. The US-based oil and gas company Lone Pine Resources sued the Canadian government for $250m in lost profits after Quebec placed a moratorium on fracking – a controversial drilling technique for releasing oil and natural gas from underground shale rock formations – while it studies fracking's environmental impact.

Mexico's attempts to limit the importation of high fructose corn syrup were also struck down by the ISDS provision in the North American Free Trade Agreement, with a panel awarding the US-based food producer Cargill more than $77m in damages, plus interest and costs. After interest, Mexico reportedly now owes Cargill close to $100m.

So just how much worse could things get with a TPP that allows foreign companies to sue our government?

Palm oil labelling in danger

A leading Malaysian trade official has reportedly said that the "elimination of the trade barriers such as rules and labelling laws" will be a priority in the TPP negotiations, including those for palm oil.

CHOICE has been campaigning for the labelling of palm oil – which is much higher in saturated fats than other oils and is responsible for widespread deforestation due to unsustainable production – for some time now. And we're concerned that the TPP could spell the end of palm oil labelling before it has even begun.

CHOICE Lead Campaigner Angela Cartwright says palm oil could just be the beginning. "We have fought to get to where we are on food labelling, but the TPP could mean a big step backwards. For example, with potential rules that protect proprietary formulas from being disclosed, even something like the percentage of ingredients on the back of food products could be in jeopardy," she says.

Copyright

It's just not (copy) right

Associate Professor Kimberlee Weatherall of the Faculty of Law at Sydney University said of the previously leaked but similar draft of the IP chapter of the TPP: "[It] would lock in provisions that have been repeatedly criticised by Australian politicians, including most recently in the Joint IT Pricing Inquiry".

She says: "The US push for endless criminalisation of even private activities (partially supported, I am afraid, by Australia) is frankly horrifying. Although the Australian negotiators do not support every last detail of the US proposals they are signing up to far more than they should and will, if they sign, lock Australia into a new, complex, and damaging set of IP obligations that will be giving users, IP owners, and policymakers headaches for many years to come."

IT pricing up

The TPP may also lead to greater protection for companies using geo-blocking on movies, music, books and software, and could lead to enforcement provisions against those who seek to get around these blocks.

And the leaks indicate that parties to the TPP may enact laws that force an internet service provider to give out information about their customers to copyright owners if there is just a "claimed" infringement, without requiring evidence or probable cause. That means if a Hollywood studio asked your ISP for details such as your name and address because they suspected (without necessarily having evidence) that you'd downloaded a movie illegally, your ISP may have to provide it to them.

Medication costs to rise

The TPP may also extend the period of effective pharmaceutical monopolies, by allowing companies to lock up their marketing data for longer. This could mean cheaper generic versions of medications take a lot longer to reach the market, costing Australian consumers and taxpayers buckets of cash in the long run.

The impact of the TPP on prices and availability of medication is so great, in fact, that Médecins Sans Frontières (MSF) (also known as Doctors Without Borders) have taken the unprecedented step of campaigning against it.

"The TPP currently includes some of the harshest provisions against access to medicines ever included in a trade agreement with developing countries, gutting public health safeguards and leaving them unable to take the steps needed to protect the lives and health of their people above the profit of multinational pharmaceutical companies," says a spokesperson.

MSF's Advocacy and Public Affairs Manager Jon Edwards says the TPP threatens HIV/AIDS treatment in sub-Saharan Africa and beyond, and could potentially delay the availability of more effective treatments.

"It seems to us that the TPP is protecting [pharmaceutical] monopolies. MSF is for competition when that competition delivers affordable medicine," he says.

Australia's position on medication is one of the few areas where we stand opposed to the US, according to the WikiLeaks draft of the IP chapter.

CHOICE speaks to DFAT

At a meeting with DFAT in late October 2013 (the same briefing from which other media organisations were uninvited due to DFAT's claim that journalists were "ineligible" to attend TPP briefings), DFAT told CHOICE that the IP chapter of the TPP was still being drafted. They told us that Australia would oppose any agreement that sought to extend IP measures beyond our "domestic settings" – bureaucrat-speak which, CHOICE assumes, means our current laws. They also said they would oppose restrictions on parallel imports. But the WikiLeaks draft indicates that this may not be the case.

CHOICE believes public interest advocacy groups should have input into such a wide-reaching agreement. We want an open and honest debate with the government and other stakeholders on what should and should not be included in the TPP trade negotiations. Unfortunately, we have to rely on leaked texts and hearsay instead.

Zoya Sheftalovich
2nd March 2015

Note: The full text of the TPP was released on the NZ government website on Nov 5, 2015.