26th Nov 2019, 12:30 PM – Senate Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019 and another - in Committee - Investor-state dispute settlement

The majority voted against a motion introduced by WA Senator Jordon Steele-John (Greens) in respect to investor-state dispute settlement. Senator Steele-John explained that:

This amendment deals with the very pernicious clauses within these agreements that give corporations the right to sue governments. People might not be aware—although we've previously covered it pretty comprehensively in the debate—so I'll make it very clear: this deals with the inclusion of ISDS clauses, so the pathways through which corporations are able to sue governments for taking action in relation to regulating in the public interest. Australia has had more experience than many nations of the potential impact of these clauses. We have had the experience very close to hand of the way in which Philip Morris utilised an ISDS clause in a previous agreement with Hong Kong to pursue the Australian government in relation to plain-packaging laws after we had had that legislative decision upheld by the highest court in our land.

The Labor Party did not support the amendments, with ACT Senator Katy Gallagher (Labor) explaining that:

The improved ISDS clauses in these agreements include safeguards on the public interest, which allows Australia to regulate on legitimate public welfare objectives. This includes the protection of public health, safety and the environment.

Motion text

(1) Clause 2, pages 2 and 3, table items 2 to 4, omit the table items, substitute:

2. Schedule 1

If the Peru-Australia Free Trade Agreement, done at Canberra on 12 February 2018, enters into force for Australia—the first day that bilateral side letters exchanged between Australia and each other party to the Agreement agreeing that the part of the agreement which deals with investor-State disputes does not apply in relation to an investment in Australia by an investor of the other party are in force for Australia.

However, the provisions do not commence at all unless all of the events mentioned in this item occur.

3. Schedule 2

If the Indonesia-Australia Comprehensive Economic Partnership Agreement, done at Jakarta on 4 March 2019, enters into force for Australia—the first day that bilateral side letters exchanged between Australia and each other party to the Agreement agreeing that the part of the agreement which deals with investor-State disputes does not apply in relation to an investment in Australia by an investor of the other party are in force for Australia.

However, the provisions do not commence at all unless all of the events mentioned in this item occur.

4. Schedule 3

If the Free Trade Agreement between Australia and Hong Kong, China, done at Sydney on 26 March 2019, enters into force for Australia—the first day that bilateral side letters exchanged between Australia and each other party to the Agreement agreeing that the part of the agreement which deals with investor-State disputes does not apply in relation to an investment in Australia by an investor of the other party are in force for Australia.

However, the provisions do not commence at all unless all of the events mentioned in this item occur.