5. Protecting the right to regulate in the public interest

Overview

5.1Submitters provided considerable evidence outlining the importance of public interest regulation and raised concerns that the inclusion of certain chapters or provisions in Australia’s trade and investment agreements may restrict or undermine the Australian Government’s ability to act in the public interest across a range of policy areas. This chapter summarises the evidence in relation to investor-state dispute settlement (ISDS) provisions, creative and cultural industries, government procurement, labour and migration, digital trade and e-commerce, and intellectual property.

5.2While various safeguards are already in place, it was widely proposed that more are needed including specific exemptions in Australia’s trade and investment agreements to explicitly retain the government’s ability to regulate in the public interest, or that Australia should exclude certain provisions from agreements.

Regulation in the public interest

5.3Many submitters and witnesses highlighted the importance of ensuring that trade and investment agreements maintain the ability for the Australian Government to regulate in the public interest.[1] For example, the Electrical Trades Union (ETU) explained that:

Trade should be a mechanism for furthering Australia’s own national interests, not an impediment to governing in the public interest… At present international trade obligations may serve to limit government’s ability to effectively implement important policy levers aimed at advancing public health and safety, local economic development, supporting domestic industry, and reducing national emissions.[2]

5.4Similarly, the Australian Council of Trade Unions (ACTU) commented that trade agreements must be consistent with and promote the Australian Government’s policy agenda in the national interest, which requires ensuring that trade agreements retain full rights to regulate in the public interest.[3]

5.5The Public Health Association of Australia (PHAA) observed that trade agreements have increasingly impacted on the ability of governments to regulate as they extend beyond trade in goods and services into areas that were previously matters for domestic policy making.[4] Further, in the context of public health measures the PHAA stated that:

It is highly important that trade agreements ensure that Australia can still maintain regulatory control over medicines, vaccines and harmful products such as tobacco, alcohol and vaping products. It is in our national interest to protect the capacity of our Commonwealth and state and territory governments to ensure public policy is not impeded by trade commitments.[5]

5.6Dr Hazel Moir advised that while domestic regulation can act as a barrier to trade in services, it is often in place to achieve social and cultural objectives:

The desire to increase trade in services raises many more issues as potential barriers to trade – many service industries regulated to achieve a broad array of social, economic and cultural outcomes. Industries such as finance, law, education, entertainment, communications, transport and health raise many issues beyond market economics. Countries have developed a variety of regulatory procedures to ensure that these industries operate to achieve critical social and cultural goals as well as operating competitively.[6]

5.7Some submitters called for the exclusion of certain policy areas from trade and investment agreements as well as including broad exemptions aimed at preserving the ability to regulate.[7] For example, the Australian Fair Trade and Investment Network (AFTINET) proposed that Australia’s trade policy should have ‘red lines’ to protect public interest regulation.’[8]

5.8The Australian Industry Group (Ai Group) also reflected that: ‘Trade agreements should be crafted to defend Australia's capacity to regulate [in the] nation’s interest such as public health, safety, environmental protection, and cyber security.’[9]

5.9The Department of Foreign Affairs and Trade (DFAT) advised that Australia’s trade and investment agreements include a range of specific safeguards and broad reservations to protect the right of the Australian Government to regulate in the public interest.[10] DFAT further explained that:

… the general exceptions provisions of our [free trade agreements (FTAs)] provide policy space for core legitimate public policy objectives including: the protection of the environment, human and animal life; protection of national treasures of artistic, historic or archaeological value; public morals, public order and privacy; conservation of exhaustible natural resources and in relation to products of prison labour.

Australia ensures that existing legislation cannot be considered inconsistent with any FTA obligations through its schedules of non-conforming measures for services and investment, and also provides broad policy reservations that explicitly preserve the government’s ability to legislate nine key areas of policy sensitivity including for social services established or maintained for a public purpose, such as social welfare, social security, public education, health and public utilities. Exceptions for services supplied in the exercise of governmental authority are also included.

We ensure our trade agreements preserve the Australian Government’s right to regulate and make domestic policy on labour laws and worker’s rights.[11]

5.10The Department of Agriculture, Fisheries and Forestry (DAFF) noted that one of its main objectives in trade negotiations is to ensure that agreements do not restrict the ability of the Australian Government to continue to regulate in the public interest with regard to biosecurity.[12]

5.11However, notwithstanding these safeguards, many submitters and witnesses expressed concerns that provisions in Australia’s trade and investment agreements may restrict the capacity of the Australian Government to make policy and regulatory decisions in the public interest.[13] Broadly, concerns were raised in relation to ISDS provisions, creative and cultural industries, government procurement, labour and migration, digital trade and e-commerce, and intellectual property.

Investor-state dispute settlement provisions

5.12DFAT referred to investor-state dispute settlement (ISDS) provisions as: ‘… a mechanism that provides foreign investors, including Australian investors overseas, with the right to access an international tribunal to resolve investment disputes.’[14] ISDS provisions are present in ten of Australia’s trade agreements and all 15 of its bilateral investment treaties (BITs).[15]

5.13Many submitters characterised ISDS provisions as giving international corporations the ability to sue governments for policy and regulatory decisions taken in the public interest that may impact on their profits.[16] For example:

• Grail Australia: ISDS provisions ‘… empower foreign investors to claim high levels of compensation from a national government if they show successfully in a World Trade tribunal that their investment has been negatively affected by a government law or regulation.’[17]
• ETU: ISDS provisions allow ‘… foreign investors and private companies to sue governments for pursuing laws, policies, and regulations that may impact their profits…’[18]
• PHAA: ISDS provisions ‘… enable foreign investors to sue governments in international tribunals for perceived breaches of their investor rights under an agreement which includes this mechanism.’[19]
• CPSU-SPSF Group: ISDS provisions ‘… allow large corporations to prevail over the public interest, when they can claim damage to their property rights.’[20]
• ActionAid Australia: ISDS provisions ‘… give multinational companies the right to sue government in secret tribunals for policy decisions that impact on their investments.’[21]
  14. AFTINET contended that ISDS provisions provide additional legal rights to international corporations compared to local ones and are a means to bypass the domestic legal system:

ISDS gives increased legal rights to international corporations, enabling them to bypass national courts and sue governments for millions and even billions of dollars in international tribunals over changes in law or policy, even if the changes are in the public interest.[22]

5.15Dr Moir suggested that ISDS provisions: ‘… preference the interests of foreign producers over domestic producers and citizens…’[23]

Impact of ISDS provisions

5.16Submitters and witnesses widely raised concerns that ISDS provisions in trade and investment agreements impact on the ability of governments to regulate in the public interest across many key policy areas.[24] For example, the ETU stated that ISDS provisions: ‘… act as a constant threat hanging over policymakers, introducing the risk of costly and drawn-out legal battles for the crime of protecting people, environmental, and economic interests.’[25]

5.17Some described ISDS provisions as a restriction on national sovereignty.[26] For example, Grail Australia declared that ISDS provisions are: ‘… a gross violation of the sovereign rights and responsibilities of a government to legislate for the welfare of its people, its land and the environment.’[27]

5.18AFTINET highlighted that foreign investors have used ISDS provisions to seek compensation from governments for enacting a range of public interest regulation including public health measures such as tobacco regulation and medicine patents as well as environmental protections and the minimum wage.[28]

5.19Several submitters recounted Phillip Morris’ use of ISDS provisions to launch a claim against the Australian Government over its introduction of tobacco plain packaging laws aimed at reducing rates of smoking in Australia.[29] It was noted that while Phillip Morris lost the case, it took five years to reach a conclusion and cost Australia $12million in legal fees.[30]

5.20Some also referred to the example of Zeph Investments—a company owned by MrClive Palmer—which has initiated two ISDS claims against Australia (totalling $341.3 billion) in relation to a mining lease in Western Australia and coal exportation permits for a mine in Queensland.[31]

5.21AFTINET warned that while ISDS claims may be unsuccessful, like in the Phillip Morris case, Australia may have to spend years and tens of millions of dollars to defend them.[32] Similarly, the ACTU stated that ISDS provisions impose unnecessary costs on Australian taxpayers.[33]

5.22In addition to the financial burden of legal costs and compensation, some focussed on the potential impact of ISDS provisions on government policy and regulatory decision making.[34] For example, ActionAid Australia declared that ISDS provisions: ‘… have a “regulatory chilling-effect” as governments may either delay the implementation of a policy measure while an ISDS case is being decided; or resolve against implementing a policy measure due to concern that it will lead to an ISDS claim.’[35]

5.23The PHAA made a similar point with regard to the impact on public health regulation: ‘Due to the uncertainty of outcomes and the potentially high costs of defending ISDS cases, the mere threat of ISDS may deter and delay government from implementing policies that may be effective at protecting public health.’[36]

5.24Several submitters considered that the threat of ISDS claims by international corporations may discourage certain options in Australia in relation to climate and energy policy.[37] Melbourne Climate Futures (MCF) indicated that ISDS provisions could impact on the achievement of the government’s target of net-zero emissions by 2050.[38] AFTINET observed that ISDS cases brought by fossil fuel companies against governments over environmental regulations and action to reduce carbon emissions have become increasingly common.[39]

5.25Public Services International (PSI) drew attention to the potential for ISDS provisions to restrict the ability of subnational governments (i.e. state/territory and local) to regulate where agreements or chapters of agreements are binding on subnational governments.[40] It further explained that investors have used ISDS provisions to challenge subnational government decisions, which has resulted in federal governments attempting to clawback monetary damages that they have had to pay to investors for breaching agreements.[41]

5.26ActionAid Australia stated that globally ISDS cases cost countries US$8 million to defend on average, whereas the amount of compensation paid to successful claimants regularly exceeds US$100 million, and further that costs are disproportionately borne by developing countries.[42] Likewise, PSI noted the significantly greater impact of ISDS provisions on the budgets and policy agendas of developing countries.[43]

Global decline and withdrawal

5.27Several submitters observed that the number of trade and investment agreements with ISDS provisions has declined in recent years with many governments withdrawing from existing agreements due to the recognition of their impact on enacting public interest measures.[44] As an example, AFTINET observed that, in July 2023, the European Union Commission suggested that all European Union (EU) member states coordinate a withdrawal from the Energy Charter Treaty, which includes ISDS provisions that fossil fuel companies have used to seek compensation for carbon abatement policies.[45]

5.28PSI referred to studies which found that having ISDS provisions in trade and investment agreements does not lead to the claimed advantage of increased foreign direct investment (FDI).[46] Rather, other factors such as the size and growth potential of markets are the most powerful determinant in attracting FDI and countries have continued to attract FDI after withdrawing from agreements with ISDS provisions.[47]

Exclusion and review

5.29The Committee received evidence that widely supported the exclusion of ISDS provisions from existing and future trade agreements to protect the ability of the Australian Government to regulate in the public interest.[48] For example, CPSU-SPSF Group recommended that: ‘There should be no opportunity for foreign business to make a claim against Australian governments making legislation and public policy that is in the public interest of Australian citizens.’[49]

5.30DFAT advised that the Australian Government has committed to not including ISDS provisions within new trade agreements and to reviewing provisions within existing agreements.[50] It further explained that:

… when opportunities arise, the Government will actively engage in processes to reform existing ISDS mechanisms to further enhance appropriate protections for government’s right to regulate in the public interest, including in relation to the environment and public health.[51]

5.31Many submitters acknowledged the Australian Government’s position and called for it to be maintained, while some also called for reviews of ISDS provisions in existing agreements to be expedited with a view to their removal.[52] In addition, AFTINET, ActionAid Australia and the ACTU advocated for the negotiation of bilateral side-letters between Australia and other nations party to multilateral and regional agreements that include ISDS provisions to exclude the application of those provisions between the two countries. For example, similar to those that are already in place between Australia and the United Kingdom (UK) and under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and New Zealand (NZ) under the ASEAN (Association of Southeast Asian Nations)-Australia-New Zealand Free Trade Agreement (A-A-NZFTA).[53]

5.32It was noted that Australia’s more recent agreements have not included ISDS provisions, such as the Australia-United Kingdom Free Trade Agreement (A-UKFTA), the Australia-India Economic Cooperation and Trade Agreement (A-IECTA), and the Regional Comprehensive Economic Partnership (RCEP).[54] AFTINET welcomed the exclusion of ISDS from recent agreements and those currently under negotiation but claimed that such provisions in existing agreements remain a serious threat to Australia’s ability to regulate in the public interest.[55]

5.33The ACTU specifically advocated for codifying the commitment to exclude ISDS provisions from future trade and investment agreements in legislation:

Given the dire impacts ISDS can have on the Government’s ability to regulate… and the chilling effect the threat of ISDS has on regulation - we urge the Australian Government to codify this commitment in legislation to ensure that future Australian Governments cannot include ISDS in agreements.[56]

Creative and cultural industries

5.34Cultural and creative industries, such as film, television, music, and others, make a considerable contribution to the Australian economy.[57] The Australian Copyright Council (ACC) advised that between 2011 and 2020, these industries regularly added more than $100 billion per year to the economy, amounting to 6 to 7 per cent of gross domestic product (GDP).[58] Australia’s cultural and creative industries are also a significant export industry, with the potential for further expansion.[59]

5.35Many submitters emphasised that in addition to their economic contribution, cultural and creative industries play an important role in the wellbeing of society, as well as in the expression of Australia’s culture and national identity.[60] The export of Australian cultural and creative products may also support the tourism industry and have considerable ‘soft diplomacy’ benefits.[61]

5.36The Media, Entertainment and Arts Alliance (MEAA) explained that capacity for the government to regulate cultural and creative industries has played an important role in developing and protecting Australia’s national identity, for example, through the requirement of local content quotas for commercial television.[62]

5.37Screen Producers Australia (SPA) also reflected on the history and purpose of Australian Government regulation in film and television production, noting that it has been largely effective in ensuring that local audiences have access to Australian content.[63] SPA further suggested:

The aim of Australian media content regulations recognises that without regulation, Australian content, particularly more expensive drama, documentary and children’s content, would be under-represented as the viewing audiences and markets for Australian content are small, Australian content is expensive to produce, and broadcasters have access to cheaper international content in the English language from the USA [United States] and UK.[64]

5.38Submitters highlighted the potential impact of trade agreements and contended that agreements should not restrict the ability of the government to regulate, protect and promote Australia’s cultural and creative industries.[65] For example, APRA AMCOS stated that the Australian Government must factor in the consequences of trade agreements on cultural industries during negotiations and that Australia: ‘… should not enter any trade agreements which have the effect of restraining or negatively impacting the protection and growth of Australia’s cultural industries.’[66]

5.39The MEAA called on the Australian Government to foster the growth the arts sector and shape both Australia’s cultural and economic future through the recognition and protection of cultural industries in trade agreements.[67]

5.40Likewise, SPA underscored its concern with the impact of trade agreements: ‘… on the capacity for the Australian Government to effectively regulate audio-visual businesses to reflect the cultural interests of Australian audiences as well as the economic interests of screen-related businesses.’[68]

5.41APRA AMCOS noted support for the Australian Government’s National Cultural Policy launched on 30 January 2023 and signified that it must not be undermined by standalone trade and investment agreements that run counter to its objectives.[69]

5.42Several submitters noted the importance of maintaining the ability to regulate Australia’s creative and cultural industries with respect to protecting First Nations culture and its role in the national identity.[70]

5.43In their submission, DFAT acknowledged the importance of protecting and promoting Australia’s cultural and creative industries, as well as their economic and social value:

Australia aims to protect and promote its unique cultural heritage, diversity, and expression in trade and investment negotiations. We recognise the economic and social value of cultural industries, including film, music, literature, visual arts, and other creative sectors. These industries contribute significantly to Australia's GDP, create jobs, and promote innovation and creativity. Australia is committed to the sustainable development of our cultural industries while promoting cultural diversity, fostering a vibrant creative economy, and preserving our unique cultural heritage and expression.[71]

Impact of the Australia-United States Free Trade Agreement

5.44Several submitters referred to the Australia-United States Free Trade Agreement (A-USFTA) to highlight the impact that certain provisions in trade agreements can have on the regulation of creative and cultural industries, particularly in relation to local content rules.[72]

5.45Both the MEAA and SPA detailed that the A-USFTA restricts the Australian Government’s ability to introduce regulations for some broadcasting and audiovisual services.[73] It was noted that while the A-USFTA contains an exemption for local content rules, they were frozen at the levels that were current when the agreement entered into force in 2005.[74] The MEAA explained that this means: ‘… Australia’s local media content quotas cannot be increased above their current levels except in limited circumstances … and if they are reduced in the future, they cannot later be restored to existing levels.’[75]

5.46Several submitters detailed that as a result of the provisions in the A-USFTA, multichannel free-to-air commercial television content is capped at 55 per cent on no more than two channels, or 20 per cent of the total number of channels made available by a broadcaster, up to only three channels.[76] Additionally, the expenditure requirement on Australian content for subscription television is limited to 10 per cent with an obligation for consultation before going up to a maximum of 20 percent.[77]In relation to the music industry, APRA AMCOS explained that under the A-USFTA local music quotas for free-to-air radio broadcasting are capped at 25 per cent, which it noted is low compared to many countries where requirements are set in the range of 80 to 90 per cent.[78]

5.47SPA described the A-USFTA provisions as: ‘… of significant advantage to the USA and a restriction on Australian Governments.’[79] It added that the provisions operate: ‘… as an unnecessary and unwelcome intrusion for the Australian Government in considering any regulation of audiovisual services in the national interest.’[80]

5.48APRA AMCOS outlined the potential impact that restrictions on local content rules under the A-USFTA can have on people employed within Australian cultural and creative industries:

This entrenched restriction on content quotas for Australian music on Australian radio stations demonstrates how trade and investment agreements can undermine local culture and have very real financial impacts on Australia’s songwriters and composers, who already face challenging economic conditions to simply survive as create practitioners. Reduced local content quotes for Australian free-to-air television are resulting in dramatically fewer local productions being made on behalf of commercial free-to-air broadcasters. This has an obvious detrimental impact on the livelihoods of numerous people employed in the creative industries.[81]

5.49The MEAA, AFTINET, SPA and the ACTU also advised that the A-USFTA has the effect of restricting the ability of the Australian Government to enact local content rules in response to changes in technology and new media platforms.[82] For example, the ACTU explained that: ‘The A-USFTA significantly restricts the ability of the Australian Government to regulate streaming and other new audiovisual services that have developed since the agreement was negotiated.’[83]

5.50Both the MEAA and AFTINET suggested that the Australian Government should seek to renegotiate the provisions affecting streaming services and other forms of new media that have developed since the A-USFTA was negotiated in 2004 to ensure that current and potential future local content requirements as well as other measures to support creative and cultural industries are exempted.[84]

Creative and cultural exemptions

5.51Some submitters advocated for the adoption of a broad exemption within trade agreements to ensure that the Australian Government maintains the ability to regulate creative and cultural industries in the public interest.[85] For example, the MEAA stated that the Australian Government should: ‘… ensure that our cultural industries are protected and the ability to tell our own stories enhanced through a comprehensive cultural exclusion when negotiating all free trade agreements.’[86]

5.52Similarly, the ACTU stated that: ‘Trade agreements must ensure that local content rules for all forms of media and subsidies to promote local cultural expression are exempted from trade rules.’[87] The SPA reflected that such an exemption for cultural and creative industries would recognise their important role in the expression of the nation’s cultural identity, as well as their economic and global trade role.[88]

5.53Both the MEAA and SPA reasoned that the case for a broad cultural exemption in trade agreements is supported by the technology-based nature of the industry, which means that how the public access media and culture is subject to ongoing change.[89] SPA explained that:

How technology may develop and evolve for future audiences cannot be fully anticipated, meaning that policy flexibility is essential to adapt to future delivery platforms. Therefore, making regulations pertaining to an extant industry profile could serve to bind future regulatory action that the Australian Government may wish to make. A cultural exemption would provide future Australian Governments with the flexibility that may be needed to regulate cultural industries in the national interest.[90]

5.54The MEAA observed that it is increasingly difficult to anticipate the impact of technological change even in the short-term and that without a broad exemption any new media platform invented after an agreement is negotiated can be subject to the provisions of that agreement.[91]

5.55AFTINET noted that Australia’s subsequent trade agreements have not included the restrictions on local content rules contained in the A-USFTA. It also stated that: ‘The only way to ensure that the government has the right to regulate all forms of current and possible future media and cultural expression in these areas is to have a comprehensive cultural exclusion from such regulation in trade agreements.’[92]

5.56Several submitters referenced the protections provided for creative and cultural industries within the Singapore-Australia Free Trade Agreement (S-AFTA) as a model for Australia’s other trade agreements.[93] In particular, APRA AMCOS stated that the S-AFTA safeguards Australia’s right to adopt or maintain any measure with respect to the creative arts, cultural heritage, and other cultural industries.[94] It added that the Australian Government should seek include equivalent provisions in future agreements.[95]

5.57SPA drew attention to Canada as an example of a country that has adopted a principle in favour of an exemption for cultural industries within bilateral trade agreements.[96] The Canadian exemption: ‘… covers a broad range of products including books, magazines, periodicals, newspapers, film and video, audio and video music recordings, and radio, cable and television broadcasting.’[97] Its purpose is to ensure that Canada can: ‘… adopt and maintain programs and policies that support the creation and distribution of Canadian artistic expression or content, without conflicting with trade disciplines included under the terms of the agreement.’[98]

5.58DFAT advised that Australia maintains cultural interest protections, such as broad policy reservations for audiovisual and cultural services, in its international trade commitments through the World Trade Organisation (WTO) and in FTAs. It added that these reservations ensure trade commitments do not affect Australia’s ability to introduce measures to protect and promote its cultural interests.[99]

Government procurement

5.59The Committee received evidence that identified the potential for provisions relating to government procurement in Australia’s trade and investment agreements to restrict the Australian Government’s ability to introduce measures in the public interest.[100]

5.60Several submitters highlighted the importance of government procurement to the economy and its role as a policy tool to protect and promote the development of domestic industries and supply chains.[101] For example, the Australian Workers’ Union (AWU) stated that: ‘Government is a major actor in the economy and the single largest consumer of goods and services.’[102] The Australian Manufacturing Workers’ Union (AMWU) noted that: ‘Procurement is one of the strongest levers that government has to invest in Australian jobs and domestic supply chains.’[103]

5.61The ACTU specified that the Australian Government has a responsibility to use procurement decisions to:

• Drive better wages, conditions, job security, and job quality across the economy.
• Rebuild local supply chains and our national sovereign manufacturing capability.
• Contribute to our social and environmental objectives as a society, including on gender equality and Indigenous Australian’s social and economic empowerment.[104]
  62. The ACTU put forward the A-UKFTA as an example to demonstrate potentially restrictive provisions in trade agreements, noting that it contains non-discrimination clauses that limit the Australia from favouring domestic businesses over international ones in government procurement decisions.[105]
  63. The AWU outlined that in addition to clauses within bilateral and regional FTAs, Australia is a party to the Agreement on Government Procurement (GPA), which sets limitations on the capacity of governments to favour local procurement.[106] The AWU explained that:

One of the primary constraints is the principle of non-discrimination, which mandates that all suppliers—be they domestic or foreign—must be treated equally in government procurement processes. Additionally, the GPA establishes financial thresholds that dictate when a procurement process must be open to foreign suppliers. Because of the ‘most favoured nation’ provisions in both the GPA and Australia’s other free trade commitments, this means that all government procurement other than for construction services must be offered to Australia’s trading partners once they exceed $700,000 in value.[107]

5.64Both the AWU and ACTU observed that while government procurement provisions in trade agreements seek to create an open and competitive international market for government contracts, they can restrict the ability of governments to develop local procurement strategies and preference domestic industries.[108] Likewise, CPSU-SPSF Group explained that trade agreements that require competitive tendering or foreign companies to be treated the same way as domestic companies can undermine local procurement policies with negative economic impacts on local workers, businesses and communities.[109]

5.65Some submitters specified that government procurement provisions in Australia’s trade agreements may limit the effectiveness of Australian Government commitments to expand local content requirements and introduce ‘buy Australian’ initiatives.[110]

5.66Similarly, others noted that government procurement provisions may impact on the Australian Government’s capacity to use its significant purchasing power to support skills and industry policy, including initiatives to build Australia’s sovereign manufacturing capability and supply chains in strategic areas such as pharmaceuticals and renewable energy.[111] The AWU and ACTU noted the importance rebuilding sovereign manufacturing capacity given its decline has led to Australia having lower levels of economic complexity and research and development, resulting in real-world consequences such as supply chain disruptions during the COVID-19 pandemic.[112]

5.67The AWU highlighted the Australian steel industry to demonstrate how support for domestic manufacturing industries can produce significant positive economic and social outcomes well-beyond the financial cost of purchasing domestic steel.[113]

5.68Consequently, many submitters proposed that Australia’s trade and investment agreements should include flexible provisions or specific exemptions that ensure the Australian Government is able to use government procurement to protect and promote the public interest across a range of policy areas.[114] For example, the AMWU recommended that:

The government must legislate to ensure that FTAs should not be signed where they could limit the government’s ability to preference local businesses in procurement decisions where they are made to assist SMEs [small and medium-sized enterprises], protect national security, promote ethical standards, develop or maintain sovereign industrial capabilities and protect and encourage the involvement of indigenous Australians.[115]

5.69The Australian Small Business and Family Enterprise Ombudsman stated that government procurement provisions in trade agreements: ‘… should allow sufficient flexibility for officials to take account of the national economic benefits of a procurement (including strengthening sovereign capability by extending opportunities to First Nations businesses, domestic suppliers, start-ups and businesses pursuing innovation in products or processes) while ensuring that Australia does not engage in prejudicial decision making.’[116]

5.70Some submitters considered that Australia’s approach to government procurement should take a wider interpretation of ‘value for money’ to recognise the full economic value of supporting domestic firms in procurement decisions.[117] The AWU specified that trade agreements should be designed to allow governments to have broader considerations in procurement decisions such as the whole of life costs of materials, the unfair economic advantages of dumping, the short-term nature of global supply, the long term impact of domestic industry closures, and the costs of substandard quality imported products.[118]

5.71Both AFTINET and the ACTU noted that there are some exemptions in trade agreements to enable governments to preference certain suppliers and recommended that Australia should maintain current government procurement exclusions for SMEs, First Nations enterprises, national treasures, ethical standards, environmental standards, and for local government procurement.[119]

5.72The ACC identified that the A-USFTA and the A-UKFTA include: ‘Provisions to allow for beneficial measures for indigenous people in the context of government procurement.’[120] DFAT also stated that the A-UKFTA: ‘… reserved Australia’s right to implement policy measures which provide more favourable treatment to First Nations People, such as the Indigenous Procurement Policy’.[121]

Labour and temporary migration

5.73The Committee received evidence suggesting that provisions in Australia’s trade and investment agreements that waive labour market testing and skills testing requirements reduce employment opportunities for local workers, increase the number of temporary migrant workers vulnerable to exploitation, exacerbate long-term skills shortages, and undermine service and safety standards.[122]

Labour market testing

5.74Submitters and witnesses raised concern with provisions in Australia’s trade agreements that waive labour market testing, suggesting that such provisions lead to fewer jobs for local workers, facilitates an increase in temporary migrant workers vulnerable to exploitation, and contributes to long-term skills shortages.[123]

5.75In its submission, the ETU described labour market testing as: ‘… a long-standing requirement for the use of temporary migrant labour, designed to ensure that migrant workers are only used in instances where a local shortage of necessary skills can be demonstrated.’[124]

5.76The ACTU emphasised the role of labour market testing stating that: ‘Labour market testing is an important measure to ensure that employers properly advertise vacancies locally to provide workers with opportunities and to ensure that employers are not building their business model on exploiting temporary migrant workers.’[125]

5.77Several of Australia’s trade agreements include provisions that waive the requirement for labour market testing for certain workers and businesses of trading partners.[126] The ETU pointed out that the Department of Home Affairs records 14countries as being exempt from labour market testing due to Australia’s international trade obligations.[127]

5.78DFAT outlined that all of Australia’s trade agreements other than the A-USFTA include provisions to waive labour market testing consistent with 1995 WTO commitments.[128] This includes waiving labour market testing for:

• independent executives (i.e. individuals establishing a new business in Australia);
• highly skilled intra-corporate transferees;
• service sellers (as business visitors) staying for a maximum of 12 months; and
• highly skilled specialists who have been with their employer for at least two years.[129]
  79. DFAT also advised that Australia’s bilateral trade agreements with the UK, Chile, China, Korea, Japan, Singapore and Thailand, and the CPTPP include commitments to waive labour market testing for contractual service suppliers.[130]
  80. In relation to the CPTPP, AFTINET stated that:

… the CPTPP commits Australia to accepting unlimited numbers of temporary workers from Canada, Mexico, Chile, Japan, Malaysia and Vietnam as contractual service providers in a wide range of occupations, and removes labour market testing to establish whether there are local workers available.[131]

5.81The ETU claimed that waiving the need for labour market testing allows employers: ‘… to overlook hiring Australian workers in favour of cheaper, more easily exploitable overseas workers.’[132]

5.82Several submitters made the point that temporary migrant workers are at greater risk of not having their rights enforced and are more vulnerable to exploitation than other workers.[133] For example, the ACTU observed that: ‘… temporary migrant workers are regularly facing issues of wage and superannuation theft, discrimination and bullying, job insecurity, and risks to their health and safety.’[134]

5.83Likewise, AFTINET cited studies demonstrating that temporary migrant workers are subject to conditions that do not meet Australian standards such as payment below minimum wage, excessive work hours, lack of workplace health and safety training, and limited freedom of association and collective bargaining rights.[135]

5.84Both AFTINET and the ACTU drew a connection between the high risk of exploitation of temporary migrant workers and the fact that they are tied to their employer and face deportation if they lose their job, leaving them in a highly vulnerable position.[136]

5.85The ETU explained that labour market testing waivers allows employers to rely on temporary migrant labour rather than investing in training, thereby exacerbating domestic skills shortages.[137] Mr James Miranda, National Policy and Research Officer at the ETU told the Committee how Australia’s trade agreements have contributed to the significant skills shortage in the electrical industry:

Labour market testing is how employers demonstrate that they are being affected by a skills shortage so they can get access to overseas labour. They need to demonstrate that they've tried to find local workers and were unable. [Waiving labour market testing] allows them to sidestep that and not even look on local labour markets and go straight overseas. It is driving the skill shortages, because you end up with a situation where it's cheaper, easier and more profitable to just go overseas in the instance of a skills shortage instead of trying to train up a domestic workforce. It undercuts domestic migration settings and reinforces this negative feedback loop, where you have a skills shortage and you hire a temporary migrant worker because it's cheaper than an apprentice. It makes the skills shortage worse, so you go hire more temporary migrant labour.[138]

5.86Some acknowledged that there is a role for temporary migrant labour, but only on the basis that its purpose is to address genuine labour and skills shortages as determined by robust labour market testing.[139] As such, submitters that raised concerns broadly recommended that the Australian Government should not enter into trade agreements that include provisions that waive labour market testing.[140]

5.87Others advocated for migration aimed at addressing labour and skills shortages to be centred on permanent rather than temporary migration.[141] For example, the ACTU proposed that Australia’s migration system: ‘… needs to be rebalanced in favour of permanent migration, where workers are given rights and protections, including ending the single-employer sponsorship model where workers are tied to their employers in favour of mobility where workers can move between employers.’[142]

5.88Similarly, CPSU-SPSF Group suggested that: ‘Where there are temporary migration arrangements in place for where there are skills shortages, there should be pathways for these workers to access security through pathways to permanent migration.’[143]

5.89Several submitters emphasised that arrangements for temporary migrant workers should be considered part of migration and skills policy, rather than being included in trade agreements.[144] The Australian Nursing and Midwifery Federation (ANMF) specified that arrangements for genuine temporary labour shortages should be separate stand-alone government to government agreements and noted the Pacific Australia Labour Mobility scheme as an example.[145]

5.90Some submitters also emphasised, that where temporary migrant workers are required, greater protections are needed.[146] For example, the ANMF noted that migration schemes: ‘… must contain protections for temporary and seasonal workers to ensure they are not exploited and enjoy the same rights as other workers in Australia.’[147] Grail Australia similarly declared that: ‘… justice demands that labour laws and standards be equally applied to migrant and local workers.’[148]

5.91The ETU and the ACTU acknowledged the Australian Government’s commitment to the development of a migration strategy that includes supporting domestic jobs, workers, and conditions; an evidence-based approach to addressing labour shortages; and reducing the exploitation of migrant workers.[149] However, the ACTU contended that provisions in trade agreements relating to temporary migrant workers are at odds with the objectives of the proposed migration and skills policy, while the ETU stated that the Australian Government cannot: ‘… allow international trade agreements to undercut their ability to effectively regulate the migration of skilled workers…[150]

5.92DFAT advised that in most of Australia’s trade agreements it is specifically stated that Australian Government retains the right to change visa sponsorship requirements, including for eligible occupations.[151]

Licensing and skills testing

5.93Some submitters also raised concerns with exemptions from mandatory skills testing and licensing requirements in Australia’s trade agreements.[152] The ETU explained that such provisions can undermine service and safety standards:

Licensing requirements and mandatory skills testing regimes for high-risk trades such as electricians serve a critical role in keeping workers and consumers safe by ensuring that all workers are suitably qualified and aware of Australian standards and regulations. FTA provisions removing mandatory skills testing requirements, such as those in the China-Australia Free Trade Agreement, introduce significant concerns around safety and quality assurance, putting migrant workers, their colleagues, and end users at risk of harm from faulty installations.[153]

5.94The ETU added that other agreements, such as the A-UKFTA, have sought to introduce international mutual recognition of occupational licenses, and that given Australia has higher standards and requirements, these place the free movement of labour over worker and consumer safety.[154]

5.95The ETU also contended that unless migrant workers are appropriately licensed and have the required skills, they do not contribute to domestic skill development and knowledge transfer, potentially widening skills gaps.[155]

5.96The CPSU-SPSF Group reflected that: ‘… [skills] standards cannot be reduced to enable external labour to work in Australia including under temporary visas. The aim of trade agreements should be [to] increase the local skill base or the human capital available to undertake work in Australia, whilst also upskilling the workers sent from partner countries.’[156]

5.97Consequently, to address their concerns, the ETU and the ACTU recommended that Australia’s trade agreements should not include provisions that exempt trading partners from domestic occupational licensing and mandatory skills testing requirements.[157]

Digital trade and e-commerce

5.98Many submitters broadly drew attention to the potential for trade agreements to restrict the Australian Government’s ability to regulate in the public interest in relation digital trade and e-commerce. Specific areas of importance identified included market power and competition; data security, cross-border data flows and privacy; local presence of digital companies; access to algorithms and source code.[158] It was also noted that digital trade rules could impact on the ability of governments to regulate the emerging use of artificial intelligence.[159]

5.99Some observed that retaining the ability to regulate across the digital economy is particularly important given that the rapid evolution and expansion of digital technology requires laws to be updated to remain effective and to ensure that rights afforded to Australians are maintained.[160] For example, PSI stated that:

Since digital technology is rapidly evolving and becoming more widely used (e.g. algorithms and big data), laws, regulations and policies also need to evolve to keep up and so these ecommerce/digital trade rules which restrict regulatory space are particularly problematic…[161]

5.100On a similar note, the ACTU explained that a range of laws relating to employment, human rights, privacy, and competition need to be strengthened in response to the development of the digital economy.[162]

5.101Submitters that raised concerns with the potential impact of digital trade provisions widely recommended that such provisions be excluded for Australia’s trade agreements to ensure that the Australian Government preserves the ability to regulate the digital economy in the public interest.[163] For example, the ACTU declared that: ‘The Australian Government must preserve the ability to regulate in the digital domain through excluding restrictions on the regulation of cross-border data flows, restrictions on requirements for local presence and storage of data, and restrictions on access to source code.’[164]

Market power and competition

5.102Several submitters referred to the need to ensure that trade agreements do not limit the Australian Government’s ability to regulate with regard to the market power of the ‘big tech companies.’[165] For example, APRA AMCOS submitted that: ‘… it is absolutely critical that Australia not concede any power to regulate these “Big Tech” entities as part of any multilateral agreements.’[166]

5.103AFTINET suggested that the global digital trade agenda, strongly influenced by the US based digital industry, aims: ‘… to maximise the free flow of cross-border data and to establish a framework that restricts governments from regulating the digital domain and the operations of big tech companies.’[167]

5.104APRA AMCOS also noted reports that the US: ‘…has put forward proposals in the negotiations which would have effectively precluded any efforts by member countries to regulate technology companies by preventing members from passing legislation that disproportionately affected the technology industry, including on matters such as market dominance.’[168]

5.105AFTINET observed that when the News Media Bargaining Code was introduced in 2021, aimed at addressing power imbalances to support the sustainability of the Australian news media sector, some large tech companies suggested that the regulation may violate the non-discrimination rules in the A-USFTA by discriminating against US companies.[169]

5.106The ACTU noted setting deregulatory digital trade rules while the digital economy is still in development is likely to result in concentrated ownership and control of data, which may reduce the public good benefits of digitalisation.[170]

Cross-border data flows, data security and privacy

5.107Some submitters reflected on trade agreement provisions that facilitate cross-border data flows and restrict local data storage, noting particular implications for data security, consumer protection and privacy.[171] For example, AFTINET detailed that data security and privacy rights can be undermined by trade provisions that restrict the regulation of electronic transmissions and requirements for cybersecurity measures such as the encryption of personal data.[172]

5.108AFTINET elaborated on the potential for digital trade provisions to undermine Australian privacy laws:

Rules that lock-in the free cross-border flow of data also enable companies to move data, including personal data, to jurisdictions where privacy laws are more limited, effectively allowing the evasion of privacy legislation. The inclusion of privacy and consumer protections in digital trade chapters, which require parties to have/enact privacy and consumer laws, is not enough to ensure privacy is upheld. Without a minimum standard for this privacy and consumer legislation there is no guarantee that once data is moved and stored offshore it will be subject to the same privacy standards as in Australia.[173]

5.109Ms Sanya Smith, Legal Consultant at PSI, highlighted to the Committee how provisions in the CPTPP can lead to the disclosure of personal information:

… the Australian health record system requires that health records remain in Australia and are processed in Australia, where there are strong privacy safeguards. Otherwise, as provisions like the CPTPP say, this kind of personal information can be allowed to go anywhere in the world, including the US, even though they are not in the CPTPP … If Facebook [a US company] has an office in Singapore and want to be protected by the CPTPP, they can send Australian data to the US. Foreigners’ data has no privacy protection in the US.[174]

5.110AFTINET emphasised that: ‘… governments must retain the ability to regulate security standards in order to reduce cybersecurity risks that threaten privacy rights and consumer protections.’ It added that: ‘The rapid emergence of new technologies could create new cybersecurity risks requiring new regulatory frameworks.’[175]

5.111The ACTU highlighted that the privacy of data is an increasingly important concern for workers because new digital technologies, and their associated surveillance abilities, can generate significant volumes of information on individuals:

Many digital platform workers are subject to constant surveillance while working, and in 2015 it was reported that Uber had updated its privacy policy to allow the company to allow the company to track the location of users even when they are not using the app or when their phones are turned off, and to pass data to third parties. The trend of workplace surveillance has accelerated since the start of the COVID-19 pandemic and the rapid shift to ‘work from home’ arrangements for many workers.[176]

Local presence of digital companies

5.112Several submitters outlined that trade agreements with provisions enabling digital-based companies to operate in Australia without a local corporate presence could restrict the government’s ability to enact and enforce labour laws and workers’ rights, particularly in the gig-economy.[177] For example, the ANMF stated that trade rules that:

… enable corporations operating in the gig-economy to access Australian markets without a local presence, could restrict the government’s ability to implement regulation of labour rights and working conditions for digital platform workers. This would undermine Australian employment and work health and safety laws.[178]

5.113The ACTU observed that enabling digital companies to operate in Australia without a local presence makes it difficult for workers seeking to hold these companies accountable under domestic law:

If the rights of a worker are violated by an online platform with no local presence, it is unclear how they obtain justice … there is no entity to sue and the ability of domestic courts to enforce labour standards, as well as other rights, is fundamentally challenged.[179]

5.114The ACTU highlighted the example of the Fair Work Ombudsman (FWO) ending its legal proceedings against Foodora—a food delivery company—after the company ceased its Australian operations in 2018, leaving over 1000 workers with just 31 per cent of their owed entitlements.[180] The FWO ended its proceedings after concluding that it be unlikely to result in compensation for workers or monetary consequences for Foodora.[181]

5.115AFTINET and the ACTU also noted the potential for digital companies operating without a local presence to evade Australia taxation law.[182]

Algorithms and source code

5.116Some submitters raised the need to ensure that provisions in trade agreements do not restrict government access to algorithms and source code—which underpin digital platforms, and by extension, many aspects of the digital economy.[183]

5.117Access to algorithms and source code was predominantly raised in the context of ensuring transparency in decision making, particularly in relation to potential bias and discrimination in employment.[184] For example, Ms Kate Lappin, Asia-Pacific Regional Secretary at PSI, told the Committee about the implications of a lack of access to algorithms:

We have seen algorithms around the world be highly discriminatory. If we can’t access those algorithms, how can we prove their discrimination, including in the delivery of public services?

It could also be in the recruitment of workers. It could be in the decision about who gets promoted. It could be in the decision about how you allocate shifts to an Uber driver, for example. If we want to have decent employment, we need to see how algorithms are actually distributing work. It might be distributing it against women who are driving while pregnant. We don’t know. We have no idea what these algorithms are doing.[185]

5.118The ACTU also observed that access to algorithms is important to being able to ensure the employment rights of digital platform workers are upheld:

The work of digital platform workers in particular is dictated by complicated algorithms, and workers are not provided with any information about how the algorithm makes decisions. Digital platform food delivery riders … report being penalised by the algorithm for taking time off, reducing their hours, or refusing jobs. They reported receiving fewer jobs as a result of being unavailable, and platforms deactivating their accounts as a result of not accepting jobs.

…

There is an urgent need for the Australian Government to regulate digital platforms to ensure platforms respect certain minimum rights and protections, and that algorithms governing work are transparent and accountable.[186]

5.119AFTINET suggested that there is increasing evidence that algorithms can be utilised by companies reduce competition, therefore access to algorithms and source code is vital to identify and address possible breaches of competition law.[187]

5.120AFTINET also noted access to algorithms and source code may be important to enacting regulation in the public interest with regard to misinformation and rapidly emerging artificial intelligence.[188]

Developments in digital trade rules

5.121DFAT explained that the Australia-Singapore Digital Economy Agreement (DEA) builds on the CPTPP to establish new rules and standards to enable business and consumers to benefit from the digital economy.[189]

5.122The ACTU raised concerns with the DEA and noted that the National Interest Test found that it will limit Australia’s policy flexibility to enact measures to restrict data flows and require local data storage but considers the costs will outweigh the benefits.[190] The ACTU further expressed concern that the Australian Government is leading the push for digital trade rules at the WTO following the DEA.[191]

5.123The Committee received evidence outlining that while Australia has recently agreed to digital trade rules such as those in the upgrade to the A-A-NZFTA signed in August 2023, the US recently changed its approach to its proposed digital trade rules in plurilateral WTO negotiations.[192] Specifically, in October 2023, the US withdrew its proposals on data flows, data localisation, source code and non-discriminatory treatment of digital products as part of the ongoing plurilateral WTO Joint Statement Initiative on E-Commerce negotiations.[193] PSI explained that the US withdrew these proposals to conduct: ‘… internal consultations on these sensitive areas to ensure it can achieve its regulatory objectives, including to address anticompetitive behaviour.’[194]

5.124PSI also submitted that members of the European Parliament have subsequently called on the EU to: ‘… follow the steps of the US, and step back from outdated proposals that favour US-based Big Tech corporations at the expense of European workers, small businesses, democracy, and human and fundamental rights.’[195]

Intellectual property rights

5.125The ACC identified that most of Australia’s trade agreements contain a dedicated chapter on intellectual property rights.[196]

5.126Submitters broadly raised concerns with the inclusion of intellectual property provisions in Australia’s trade agreements in relation to the potential impact on public health and medicines, First Nations rights and opportunities to participate in trade, and creative and cultural industries.

Patents and monopolies on medicines

5.127Submitters raised concerns that provisions in trade agreements relating to patents over medicines and treatments reduce affordable access to medicines and health care.[197]

5.128The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets a minimum patent monopoly period of 20 years for WTO Members, with some limited exceptions for least developed countries and for medical emergencies.[198]

5.129The PHAA stated that the requirements contained in TRIPS for 20-year patent terms along with other intellectual property rights: ‘… enables high prices for new drugs and delays the availability of generic medicines and other health technologies, putting them out of reach of millions of people in developing countries.’[199]

5.130The ACTU highlighted that some Australia’s trade agreements include provisions known as ‘TRIPS-Plus’ that extend intellectual property rules beyond those set by TRIPS, including the CPTPP, the A-UKFTA and the A-USFTA.[200]

5.131AFTINET stated that TRIPS-Plus provisions have progressively strengthened patent rights on medicines, resulting in further reduced access to affordable medicines.[201] It further explained that:

TRIPS-Plus provisions… include rules to extend monopoly rights beyond 20 years, strengthen patent enforcement measures, and reduce the WTO flexibilities for developing countries. These provisions are associated with increased drug prices, delayed availability and increased costs to consumers and governments.[202]

5.132Likewise, the PHAA suggested that TRIPS-Plus provisions in bilateral and regional agreements further entrench the impact of intellectual property rights provisions and place access to medicines further out of reach.[203]

5.133AFTINET cited studies that indicate that extending medicine monopolies in bilateral and regional agreements can result in significant costs to government.[204] The ACTU submitted that the transition to generic medicines after the 20-year patent period is crucial to the financial sustainability of the Pharmaceutical Benefits Scheme, with studies demonstrating the significant costs of extended patents and conversely the savings provided by generic medicines.[205]

5.134The ANMF and AFTINET suggested that while intellectual property law grants monopolies to patent holders to provide incentives for innovation, with regard to medicines there is a need to find a balance between monopoly rights and affordable access.[206] The ACTU suggested that there is little evidence that extension of patents to provide longer monopolies has a significant effect on investment and innovation.[207]

5.135Some submitters emphasised the potential impact of extended patents on access to medicines in low-income countries.[208] ActionAid Australia highlighted the impact of intellectual property provisions on access to medicines in low-income countries and particularly on women:

Intellectual property rules, including TRIPS and TRIPS plus rules can extend medicine monopolies for pharmaceutical companies, reducing access to affordable medicines in low-income countries. Women are most impacted when trade rules increase the price of medicines due to their disproportionate risk of poverty, specific reproductive health needs and increased vulnerability to illness is due to their experience of gender-based discrimination and violence. Reform of intellectual property rules is critical to ensure that trade agreements facilitate affordable access to medicines in low-income countries.[209]

5.136The ANMF, AFTINET and the PHAA indicated that the intellectual property rights contained in TRIPS contributed to low-income countries having limited access to vaccines during the COVID-19 pandemic.[210] As a result, the PHAA stated that: ‘To ensure equitable access to pandemic countermeasures in future, it will be important to secure a comprehensive and workable waiver of IPRs [intellectual property rights] that can be activated during pandemics.’[211]

5.137Some submitters also raised data protection monopolies, a separate monopoly which applies in addition to the twenty-year patent monopoly on medicines, particularly in relation to biologic medicines that include products such as new treatments for cancer and immune conditions.[212] AFTINET stated that data protection results in longer periods before the introduction of low-cost versions of expensive medicines by delaying access to the data needed to produce the low-cost versions.[213] It added that: ‘Trade agreements should not be the vehicle for extension of monopolies which contradict basic principles of competition and free trade and impose huge and needless costs on our public health system, which is already under pressure.’[214]

5.138Several submitters broadly recommended that the Australian Government should not enter into trade agreements that contain provisions that extend patent monopolies or data protection monopolies on medicines.[215] ActionAid Australia specifically proposed that: ‘Australia should exclude TRIPS Plus provisions that extend medicine monopolies and ensure that trade agreements do not undermine the flexibilities provided to least developed countries under the TRIPS agreement.’[216]

First Nations

5.139Submitters and witnesses broadly reflected on the interaction of the international intellectual property framework with the rights and the interests of First Nations people.[217]

5.140AFTINET contended that at the global level intellectual property rules under TRIPS have been detrimental to the rights of indigenous peoples because they do not adequality account for collective ownership or development of traditional culture and knowledge.[218]

5.141The ACC identified that some of Australia’s trade agreements include measures relating to the protection of artworks of cultural significance, traditional folklore, and knowledge.[219] However, it also noted that the copyright regime is generally ill-suited to protecting traditional culture, knowledge, and folklore as it does not protect factual information and the duration of protection is time limited.[220]

5.142The Committee heard evidence of some of the practical issues facing small First Nations organisations in protecting their intellectual property abroad. Ms Lynette Yu-Mackay, Chairperson of Nagula Jarndu Designs, Yawuru Jarndu Aboriginal Corporation, based in Broome, described the experience of collaborating with overseas companies to produce First Nations designed textiles:

I think we were very nervous before we ventured into that first exercise. I won't say nervous—we were petrified, because we had no idea, once we started negotiating and doing business with an overseas company, how our designs and products would be protected. We just took that risk. We went ahead and did it, but we were bitten. If they did copy our stuff, we didn't know what help there was for us.[221]

5.143i2i Global highlighted that there are significant commercial opportunities for First Nations interests in indigenous botanicals. Further, it was noted that potential export opportunities for indigenous botanicals are undermined by the inability to contest authenticity or supply chain credentials, for example in the use of Kakadu plum as an ingredient in skin care products.[222]

5.144Some submissions raised the potential for a geographic indications (GI) system to be included in future trade agreements to enhance First Nations protections and trade opportunities.[223] For example, Mr Darren Godwell, Chief Executive Officer at i2i Global explained to the Committee that recognition of First Nations knowledge in indigenous botanicals through GIs would provide substantial benefits:

…by Australia securing Indigenous botanicals and naming them by species and by usage, by upholding similar standards to those that have been developed over many decades in the EU, we would, in effect, capture the export values of those wholesale markets immediately for Australian businesses and producers, primary producers in regional and remote parts of Australia.[224]

5.145The German Australian Business Council (GABC) also referred to the potential for GIs in future trade agreements:

… the European Union [EU] has recently passed legislation extending the scope of Geographical Indications (GI) to craft and industrial products. We know that Australian has traditionally been reluctant to introduce a GI system. However, we note that the system could be used to promote traditional goods coming from First Nations communities.[225]

5.146The ANMF and AFTINET both called for specific protections in intellectual property rules for indigenous art, culture, and the use of traditional plants.[226] Similarly, Grail Australia stated that: ‘Indigenous knowledge of medicines derived from nature’s resources also need protection from individuals and companies seeking to claim patents on such medicines.’[227] The GABC noted the importance of ensuring that traditional knowledge remains free to use, and that communities are rewarded for use of genetic resources identified through traditional knowledge.[228] Similar issues regarding the authenticity of First Nations art and experience have also been noted in the tourism sector.[229]

5.147DFAT advised that intellectual property rights are raised as a priority by First Nations stakeholders and that beneficial terms have been included in bilateral agreements (such as the A-UKFTA) and are being pursued in multilateral agreements, particularly at the World Intellectual Property Organization (WIPO).[230] It elaborated that:

Australia is supporting negotiations at WIPO for a multilateral agreement (in the Intergovernmental Committee on intellectual property, genetic resources, traditional knowledge and folklore (IGC)) that would allow IP [intellectual property] offices to require disclosure of genetic resources and associated traditional knowledge used in patent applications, providing a potential new revenue stream for First Nations stakeholders.[231]

5.148DAFF also noted ongoing work to support First Nations people to develop consumer and export markets for native foods, including to establish the intellectual property rights of Indigenous agricultural products.[232]

Creative and cultural industries

5.149APRA AMCOS and the ACC underlined the importance of copyright for the protection of Australia’s creative and cultural industries.[233] APRA AMCOS asserted that trade and investment agreement negotiations should not allow for any evasion of Australia’s copyright framework, which: ‘… provides vital provisions for copyright owners and revenue mechanisms for creative practitioners and those who invest in creative practices.’[234]

5.150DFAT explained that one of the ways Australia protects its cultural interests is through intellectual property protection and that the government works to promote international standards on the protection, management, and use of intellectual property rights, which help underpin trade and investment, and enable innovation and creativity.[235]

Committee Comment

5.151The Committee is of the view that, as with any negotiation, it expected that Australia will need to make concessions to secure benefits through trade agreements. However, the Committee considers that the Australian Government’s ability as a sovereign nation to protect its citizens should not be compromised.

5.152The Committee recognises that successive Australian Governments have consistently defended certain ‘red lines’ in trade negotiations, such as protecting national security or biosecurity, or limiting foreign ownership of critical infrastructure. There is value in regular consideration of the approach to these issues in trade negotiations. As a key principle, the Committee agrees that Australia’s trade and investment agreements should not unduly restrict the ability for the Australian Government to make policy and regulatory decisions that it deems to be in the public interest.

5.153As such, it is necessary for Australia’s trade and investment agreements to include exemptions or exclude provisions where it is apparent that the right to regulate in the public interest is weakened. The Committee welcomes DFAT’s advice that Australia already has specific safeguards and broad reservations in place across key policy areas. However, it is notable that despite these safeguards and exemptions, the Committee received substantial evidence raising concerns.

5.154It is important to have a comprehensive understanding of the impact of proposed agreements, including whether safeguards and exemptions are required to ensure the Australian Government’s right to regulate in the public interest. To this end, it is important to take lessons from previous negotiations, as has been done with aspects of the A-USFTA and ISDS provisions more broadly. Further, the Committee notes enhanced stakeholder consultation and post-implementation review of agreements (see Chapters 1 and 5 of the Interim Report) as well as independent National Interest Analysis and impact assessments (see Chapter 3) would assist to achieve this objective.

5.155In general, the Committee is reluctant to overly restrict the flexibility of Australian trade negotiators by requiring the Government to rule in, or out, specific content in future trade agreements. However, the Committee considers that the further safeguards may be required for particular ‘red line’ matters.

5.156The Committee is persuaded by the view that ISDS provisions in trade and investment agreements have the potential to impose significant costs on governments and can act to delay or deter governments from making regulatory decisions in the public interest. As widely identified in evidence, the challenge by Phillip Morris to the Australian Government’s introduction of tobacco plain packaging laws is a high-profile and informative case for Australia. Although the decision in this case ultimately upheld the rights of the Australian Government, the decision came following significant cost to the Australian taxpayer.

5.157The Committee is not of the view that conferring such rights to international investors is Australia’s national interest. Further, it is notable that the global trend appears to be against including ISDS provisions in agreements, and many countries are increasingly seeking to withdraw from such arrangements.

5.158The Committee welcomes the Australian Government’s commitment to not include ISDS provisions in new trade and investment agreements. Further, it notes that while Australia’s most recent agreements do not include ISDS provisions, many earlier agreements include provisions that remain open to being utilised. As such, it would be prudent to seek opportunities to limit the effect of ISDS provisions or remove them from agreements, including through further bilateral arrangements.

5.159The Committee recognises the significant contribution of creative and cultural industries to the Australian economy, as well as their vital role in social wellbeing, cultural expression, and the national identity. As such, the Australian Government must maintain the ability to protect and promote Australia’s creative and cultural industries in recognition of these broader benefits.

5.160The Committee notes evidence outlining that certain provisions in the A-USFTA placed limits on the Australian Government’s ability to support Australian broadcasting and audiovisual services. It is particularly noteworthy that it may restrict the ability to regulate platforms and services arising from new technology. The Committee considers that Australia’s subsequent agreements have been informed by its experience with the A-USFTA and is of the view that the safeguards in the S-AFTA demonstrate a robust commitment to protecting the creative and cultural industries that can act as a model for future agreements.

5.161The Committee notes the technology-based nature of some sections of the creative and cultural industries, and the importance of ensuring that provisions in trade and investment agreements are sufficiently flexible to accommodate developments in technology.

5.162The Committee acknowledges the views of submitters seeking to ensure that clauses in trade agreements do not undermine the ability to leverage the purchasing power of Australian Governments to stimulate Australian jobs, manufacturing and the economy. However, the Committee notes that such clauses also have the potential to open up new markets to Australian producers, and to generate savings to the Australian taxpayer.

5.163Rather than imposing restrictions on such clauses through legislation, the Committee considers that greater promotion and support to Australian industry would assist them in taking advantage of opportunities offered, both through Australian procurement but also through new opportunities in foreign markets.

5.164The Committee accepts that access by Australian business to foreign skilled labour can be a way support the economy by addressing short term labour shortages. However, the Committee considers the preference should always be to boost Australian employment opportunities, particularly in the medium to long term. It is also accepted that temporary migrant workers are more often vulnerable to exploitation. For these reasons, the Committee does not support provisions in Australia’s trade agreements which remove or weaken the obligation to test the Australian labour market prior to seeking overseas labour.

5.165The Committee is also concerned at any suggestion that mutual recognition of skills could lead to a diminution of standards or compromise safety. The Committee supports mutual recognition of qualifications in circumstances only where it is demonstrated that the counterpart country’s standards meet or exceed those in the equivalent Australian industry.

5.166The Committee notes that digital trade and e-commerce is a fast-evolving space. There is considerable activity within government to review and respond to the potential implications of new technologies on the economy and society, however there is often a gap between the adoption of new and emerging technology and the ability of Australian regulators to keep pace.

5.167The Committee takes seriously the risk that a trade agreement, even if based on the best information available to negotiators at the time, might inadvertently prevent the ability of a future Australian Government to regulate in response to new technologies. The Committee considers regular review of agreements (see Interim Report Recommendation 5) is one way to ensure that agreements remain up to date.

5.168Given the complexity of the issues raised, the Committee considers that DFAT should engage appropriate experts on matters raised in submissions when negotiating relevant sections of trade agreements, including market power and competition; data security, cross-border data flows and privacy; local presence of digital companies; access to algorithms and source code. Such engagement could come through the trade advisory committee and cleared advisor system (see Interim Report Recommendation 1).

5.169The Committee considers there are considerable opportunities to be gained for First Nations communities through enhanced trade, but that the benefits need to flow through to the Traditional Owners themselves. While encouraged by efforts to seek better recognition through the multilateral system, the Committee considers First Nations people would benefit from adoption of specific protections, such as a Geographic Indicators style regime, to recognise and protect First Nations intellectual property in bilateral trade agreements.

Recommendations

5.170The Committee recommends that the Australian Government should seek to not include provisions in trade and investment agreements that waive labour market and skills testing or include investor state dispute settlement (ISDS) provisions.

5.171The Committee recommends that the Department of Foreign Affairs and Trade (DFAT) consult with stakeholders in emerging technologies on proposed provisions in trade agreements to ensure that the ability of future governments to regulate such technologies in the public interest is not limited.

5.172The Committee recommends the Australian Government consider the inclusion of provisions that protect and promote Australian First Nations intellectual property in its bilateral trade negotiation framework.

Footnotes

[1]See, for example: Grail Australia, Submission 2, p. 3; Australian Industry Group, Submission 4, p. 2; Australian Fair Trade and Investment Network, Submission 8, pp. 3 and 15; Australian Workers’ Union, Submission 24, p. 3; Electrical Trades Union, Submission 30, p. 8, Public Health Association of Australia, Submission 36, p. 6; Department of Foreign Affairs and Trade, Submission 41, p. 42; Australian Council of Trade Unions, Submission 49, p. 13.

[2]Electrical Trades Union, Submission 30, p. 8.

[3]Australian Council of Trade Unions, Submission 49, p. 13.

[4]Public Health Association of Australia, Submission 36, p. 6.

[5]Public Health Association of Australia, Submission 36, p. 6.

[6]Dr Hazel Moir, Submission 28.1, p. 3.

[7]See, for example: Media, Entertainment and Arts Alliance, Submission 5, p. 3; Australian Fair Trade and Investment Network, Submission 8, pp. 6–8; Electrical Trades Union, Submission 30, p. 2; Screen Producers Australia, Submission 26, p. 4; APRA AMCOS, Submission 34, pp. 2–4; Australian Council of Trade Unions, Submission 49, pp. 27–28.

[8]Australian Fair Trade and Investment Network, Submission 8, p. 8.

[9]Australian Industry Group, Submission 4, p. 2.

[10]Department of Foreign Affairs and Trade, Submission 41, p. 42.

[11]Department of Foreign Affairs and Trade, Submission 41, p. 42.

[12]Department of Agriculture, Fisheries and Forestry, Submission 45, p. 7.

[13]See, for example: Australian Fair Trade and Investment Network, Submission 8, p. 15; Australian Workers’ Union, Submission 24, p. 3; Screen Producers Australia, Submission 26, p. 4; Electrical Trades Union of Australia, Submission 30, p. 9; Public Health Association of Australia, Submission 36, p. 6; Public Services International, Submission 40, p. 8.

[14]Department of Foreign Affairs and Trade, Submission 41, p. 20.

[15]Australian Fair Trade and Investment Network, Submission 8, p. 15; Department of Foreign Affairs and Trade, Submission 41, p. 20; Australian Council of Trade Unions, Submission 49, p. 23, citation omitted.

[16]Grail Australia, Submission 2, p. 4; Australian Fair Trade and Investment Network, Submission 8, p. 15; Public Health Association of Australia, Submission 36, p. 6; ActionAid Australia, Submission 48, p. 9; Australian Council of Trade Unions, Submission 49, p. 23.

[17]Grail Australia, Submission 2, p. 4.

[18]Electrical Trades Union, Submission 30, p. 8.

[19]Public Health Association of Australia, Submission 36, p. 6.

[20]CPSU-SPSF Group, Submission 38, p. 4.

[21]ActionAid Australia, Submission 48, p. 9.

[22]Australian Fair Trade and Investment Network, Submission 8, p. 15. See also: Grail Australia, Submission 2, p. 4.

[23]Dr Hazel Moir, Submission 28, p. 6.

[24]See, for example: Grail Australia, Submission 2, p. 4; Australian Fair Trade and Investment Network, Submission 8, pp. 15–17; Melbourne Climate Futures, University of Melbourne, Submission 20, p. 3; Australian Workers’ Union, Submission 24, p. 3; Electrical Trades Union, Submission 30, p. 8; Public Health Association of Australia, Submission 36, p. 6; ActionAid Australia, Submission 48, p. 9; Australian Council of Trade Unions, Submission 49, p. 24.

[25]Electrical Trades Union, Submission 30, p. 8.

[26]Grail Australia, Submission 2, p. 4; Australian Workers’ Union, Submission 24, p. 3; Australian Council of Trade Unions, Submission 49, p. 24.

[27]Grail Australia, Submission 2, p. 4.

[28]Australian Fair Trade and Investment Network, Submission 8, p. 16.

[29]Australian Fair Trade and Investment Network, Submission 8, p. 17, citation omitted; Australian Workers’ Union, Submission 24, p. 3; Electrical Trades Union of Australia, Submission 30, p. 9; Public Health Association of Australia, Submission 36, p. 7, citation omitted; CPSU-SPSF Group, Submission 38, p. 4; Australian Council of Trade Unions, Submission 49, p. 24.

[30]Australian Fair Trade and Investment Network, Submission 8, p. 17, citation omitted; Australian Council of Trade Unions, Submission 49, p. 24, citation omitted.

[31]Australian Fair Trade and Investment Network, Submission 6, pp. 16–17; Melbourne Climate Futures, University of Melbourne, Submission 20, p. 5; Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 22, p. 1; Australian Workers’ Union, Submission 24, p. 3; Australian Council of Trade Unions, Submission 49, p. 40.

[32]Australian Fair Trade and Investment Network, Submission 8, p. 17.

[33]Australian Council of Trade Unions, Submission 49, pp. 24–25.

[34]See, for example: Australian Fair Trade and Investment Network, Submission 8, p. 17; Melbourne Climate Futures, University of Melbourne, Submission 20, p. 3; Public Health Association of Australia, Submission 36, p. 7, citation omitted; Public Services International, Submission 40, p. 3; ActionAid Australia, Submission 48, p. 9.

[35]ActionAid Australia, Submission 48, p. 9, citation omitted.

[36]Public Health Association of Australia, Submission 36, p. 7, citation omitted.

[37]Australian Fair Trade and Investment Network, Submission 8, p. 17; Melbourne Climate Futures, University of Melbourne, Submission 20, p. 3; Australian Workers’ Union, Submission 24, p. 3; Electrical Trades Union, Submission 30, p. 9.

[38]Melbourne Climate Futures, University of Melbourne, Submission 20, p. 3.

[39]Australian Fair Trade and Investment Network, Submission 6, pp. 16–18.

[40]Public Services International, Submission 40, p. 3.

[41]Public Services International, Submission 40, p. 3. See also pp. 12–17 for examples of ISDS cases that have challenged subnational government measures.

[42]ActionAid Australia, Submission 48, p. 9, citation omitted.

[43]Ms Kate Lappin, Asia Pacific Regional Secretary, Public Services International, Committee Hansard, Melbourne, 3 November 2023, p. 14.

[44]Australian Fair Trade and Investment Network, Submission 8, pp. 16–18; Dr Hazel Moir, Submission 28, p. 6; Public Services International, Submission 40, p. 11.

[45]Australian Fair Trade and Investment Network, Submission 8, p. 18.

[46]Public Services International, Submission 40.1, p. 10. See also: Australian Fair Trade and Investment Network, Submission 8, p. 15; Ms Sanya Smith, Legal Consultant, Public Services International, Committee Hansard, Melbourne, 3 November 2023, p. 18.

[47]Public Services International, Submission 40.1, p. 10.

[48]See, for example: Grail Australia, Submission 2, p. 4; Australian Nursing and Midwifery Federation, Submission 7, p. 5; Australian Fair Trade and Investment Network, Submission 8, p. 15; Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 22, p. 1; Australian Workers’ Union, Submission 24, p. 3; Dr Hazel Moir, Submission 28, p. 6; Electrical Trades Union of Australia, Submission 30, pp. 8–9;Union Aid Abroad-APHEDA, Submission 32, pp. 2–3; Public Health Association of Australia,Submission 36,pp.6–7; CPSU-SPSF Group, Submission 38, pp. 4–5; Public Services International, Submission 40, pp. 9–10; ActionAid Australia, Submission 48, pp. 9–10; Australian Council of Trade Unions, Submission 49,pp.23–25.

[49]CPSU-SPSF Group, Submission 38, p. 4.

[50]Department of Foreign Affairs and Trade, Submission 41, p. 20; Australian Fair Trade and Investment Network, Submission 8, p. 15, citation omitted; ActionAid Australia, Submission 48, p. 10, citation omitted; Australian Council of Trade Unions, Submission 49, p. 25.

[51]Department of Foreign Affairs and Trade, Submission 41, p. 20.

[52]See, for example: Grail Australia, Submission 2, p. 4; Australian Nursing and Midwifery Federation, Submission 7, p. 5; Australian Fair Trade and Investment Network, Submission 8, p. 18; Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 22, p. 1; Australian Workers’ Union, Submission 24, p. 3; Electrical Trades Union, Submission 30, p. 9; Union Aid Abroad-APHEDA, Submission 32, pp. 2–3; Public Health Association of Australia, Submission 36, p. 6; CPSU-SPSF Group, Submission 38, p. 4; Public Services International, Submission 40, pp. 9–11; ActionAid Australia, Submission 48, pp. 9–10; Australian Council of Trade Unions, Submission 49, pp. 24–25.

[53]Australian Fair Trade and Investment Network, Submission 8, p. 18; ActionAid Australia, Submission 48, p.10; Australian Council of Trade Unions, Submission 49, p. 25. See also: Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 22, p. 1.

[54]Australian Fair Trade and Investment Network, Submission 8, p. 15; ActionAid Australia, Submission 48, pp.9–10. See also: Dr Hazel Moir, Submission 28, p. 6.

[55]Australian Fair Trade and Investment Network, Submission 8, p. 15. See also: Ms Michele O’Neil, President, Australian Council of Trade Unions, Committee Hansard, Melbourne, 3 November 2023, p. 1.

[56]Australian Council of Trade Unions, Submission 49, p. 25.

[57]Screen Producers Australia, Submission 26, p. 2; Australian Copyright Council, Submission 27, p. 2; APRA AMCOS, Submission 34, p. 1.

[58]Australian Copyright Council, Submission 27, p. 2, citation omitted.

[59]Screen Producers Australia, Submission 26, p. 2; APRA AMCOS, Submission 34, p. 4.

[60]Media, Entertainment and Arts Alliance, Submission 5, p. 2; Australian Fair Trade and Investment Network, Submission 8, p. 6; Screen Producers Australia, Submission 26, p. 2; Australian Council of Trade Unions, Submission 49, pp. 27–28.

[61]Screen Producers Australia, Submission 26, p. 3.

[62]Media, Entertainment and Arts Alliance, Submission 5, p. 4.

[63]Screen Producers Australia, Submission 26, pp. 3–4.

[64]Screen Producers Australia, Submission 26, p. 3.

[65]Media, Entertainment and Arts Alliance, Submission 5, p. 5; Australian Fair Trade and Investment Network, Submission 8, p. 6; Screen Producers Australia, Submission 26, p. 2; Public Services International, Submission 40, p. 11; Australian Council of Trade Unions, Submission 49, p. 27.

[66]APRA AMCOS, Submission 34, p. 2.

[67]Media, Entertainment and Arts Alliance, Submission 5, p. 5.

[68]Screen Producers Australia, Submission 26, p. 2.

[69]APRA AMCOS, Submission 34, p. 2.

[70]Media, Entertainment and Arts Alliance, Submission 5, p. 4; Australian Council of Trade Unions, Submission 49, p. 27.

[71]Department of Foreign Affairs and Trade, Submission 41, pp. 41–42.

[72]Media, Entertainment and Arts Alliance, Submission 5, p. 2; Australian Fair Trade and Investment Network, Submission 8, p. 6; Screen Producers Australia, Submission 26, p. 5; APRA AMCOS, Submission 34,pp. 3–4; Australian Council of Trade Unions, Submission 49, pp. 27–28.

[73]Media, Entertainment and Arts Alliance, Submission 5, p. 4; Screen Producers Australia, Submission 26, p.5.

[74]Media, Entertainment and Arts Alliance, Submission 5, p. 4; Australian Fair Trade and Investment Network, Submission 8, p. 25; Australian Council of Trade Unions, Submission 49, p. 27.

[75]Media, Entertainment and Arts Alliance, Submission 5, p. 4. See also, Screen Producers Australia, Submission 26, p. 5; Australian Fair Trade and Investment Network, Submission 8, p. 25; APRA AMCOS, Submission 34, p. 3–4; Australian Council of Trade Unions, Submission 49, p. 27.

[76]Media, Entertainment and Arts Alliance, Submission 5, p. 4; Australian Fair Trade and Investment Network, Submission 8, p. 25; Screen Producers Australia, Submission 26, p. 5.

[77]Media, Entertainment and Arts Alliance, Submission 5, p. 4; Australian Fair Trade and Investment Network, Submission 8, p. 25; Screen Producers Australia, Submission 26, p. 5.

[78]APRA AMCOS, Submission 34, p. 3–4.

[79]Screen Producers Australia, Submission 26, p. 5. See also: APRA AMCOS, Submission 34, p. 3.

[80]Screen Producers Australia, Submission 26, p. 6.

[81]APRA AMCOS, Submission 34, p. 4.

[82]Australian Fair Trade and Investment Network, Submission 8, pp. 6 and 25–26; Screen Producers Australia, Submission 26, pp. 5–6; Australian Council of Trade Unions, Submission 49, p. 27.

[83]Australian Council of Trade Unions, Submission 49, p. 27.

[84]Media, Entertainment and Arts Alliance, Submission 5, p. 4; Australian Fair Trade and Investment Network, Submission 8, p. 26.

[85]Media, Entertainment and Arts Alliance, Submission 5, p. 3; Australian Fair Trade and Investment Network, Submission 8, p. 6; Screen Producers Australia, Submission 26, p. 4; APRA AMCOS, Submission 34, pp.2–4; Australian Council of Trade Unions, Submission 49, pp. 27–28.

[86]Media, Entertainment and Arts Alliance, Submission 5, p. 6.

[87]Australian Council of Trade Unions, Submission 49, p. 27. See also: Australian Fair Trade and Investment Network, Submission 8, p. 6.

[88]Screen Producers Australia, Submission 26, p. 4.

[89]Media, Entertainment and Arts Alliance, Submission 5, p. 3; Screen Producers Australia, Submission 26,pp.2 and 4.

[90]Screen Producers Australia, Submission 26, p. 4.

[91]Media, Entertainment and Arts Alliance, Submission 5, p. 3.

[92]Australian Fair Trade and Investment Network, Submission 8, p. 26.

[93]Media, Entertainment and Arts Alliance, Submission 5, p. 4; APRA AMCOS, Submission 34, p. 3.

[94]APRA AMCOS, Submission 34, p. 3.

[95]APRA AMCOS, Submission 34, p. 3.

[96]Screen Producers Australia, Submission 26, p. 4.

[97]Screen Producers Australia, Submission 26, p. 4.

[98]Screen Producers Australia, Submission 26, p. 4, citation omitted.

[99]Department of Foreign Affairs and Trade, Submission 41, p. 43.

[100]See, for example: Australian Fair Trade and Investment Network, Submission 8, p. 32; Australian Workers’ Union, Submission 24, pp. 4–5; Electrical Trades Union of Australia, Submission 30, p. 10; CPSU-SPSF Group, Submission 38, p. 5–6; Public Services International, Submission 40, p. 9; Australian Manufacturing Workers’ Union, Submission 43, pp. 4–5; Australian Council of Trade Unions, Submission 49, pp. 25–26.

[101]See, for example: Australian Fair Trade and Investment Network, Submission 8, p. 32; Australian Workers’ Union, Submission 24, pp. 4–6; Electrical Trades Union of Australia, Submission 30, p. 9; Australian Manufacturing Workers’ Union, Submission 43, p. 4; Australian Council of Trade Unions, Submission 49, p.25.

[102]Australian Workers’ Union, Submission 24, p. 4.

[103]Australian Manufacturing Workers’ Union, Submission 43, pp. 4–5.

[104]Australian Council of Trade Unions, Submission 49, p. 26.

[105]Australian Council of Trade Unions, Submission 49, p. 26.

[106]Australian Workers’ Union, Submission 24, p. 4.

[107]Australian Workers’ Union, Submission 24, pp. 4–5.

[108]Australian Workers’ Union, Submission 24, p. 4; Australian Council of Trade Unions, Submission 49, p. 26.

[109]CPSU-SPSF Group, Submission 38, pp. 5–6.

[110]Australian Workers’ Union, Submission 24, p. 5; Electrical Trades Union of Australia, Submission 30, pp.9–11; Australian Council of Trade Unions, Submission 49, p. 26.

[111]Australian Fair Trade and Investment Network, Submission 8, p. 32; Australian Workers’ Union, Submission 24, pp. 4–6; Public Services International, Submission 40, pp. 8; Australian Council of Trade Unions, Submission 49, pp. 25–26.

[112]Australian Workers’ Union, Submission 24, p. 4; Australian Council of Trade Unions, Submission 49, p. 25.

[113]Australian Workers’ Union, Submission 24, p. 4.

[114]Australian Fair Trade and Investment Network, Submission 8, p. 32; Australian Small Business and Family Enterprise Ombudsman, Submission 11, p. 2; Australian Workers’ Union, Submission 24, pp. 4–6; Electrical Trades Union of Australia, Submission 30, p. 9; CPSU-SPSF Group, Submission 38, pp. 5–6; Public Services International, Submission 40, pp. 8–9; Australian Manufacturing Workers’ Union, Submission 43, pp. 4–5; Australian Council of Trade Unions, Submission 49, pp. 25–26.

[115]Australian Manufacturing Workers’ Union, Submission 43, pp. 4–5.

[116]Australian Small Business and Family Enterprise Ombudsman, Submission 11, p. 2.

[117]Australian Fair Trade and Investment Network, Submission 8, p. 32; Australian Workers’ Union, Submission 24, pp. 4–5.

[118]Australian Workers’ Union, Submission 24, pp. 5–6.

[119]Australian Fair Trade and Investment Network, Submission 8, p. 32; Australian Council of Trade Unions, Submission 49, p. 26. See also: Electrical Trades Union, Submission 30, p. 9.

[120]Australian Copyright Council, Submission 27, pp. 5–7.

[121]Department of Foreign Affairs and Trade, Submission 41, p. 44.

[122]See, for example: Australian Nursing and Midwifery Federation, Submission 7, pp. 4 and 6; Australian Fair Trade and Investment Network, Submission 8, pp. 13–14 and 30–31; Electrical Trades Union of Australia, Submission 30, pp. 4–7; CPSU-SPSF Group, Submission 38, p. 3; Australian Council of Trade Unions, Submission 49, p. 13 and 21.

[123]See, for example: Grail Australia, Submission 2, p. 4; Australian Nursing and Midwifery Federation, Submission 7, p. 6; Australian Fair Trade and Investment Network, Submission 8, pp. 30–31; Australian Workers’ Union, Submission 24, p. 3; Electrical Trades Union of Australia, Submission 30, p. 6; Union Aid Abroad-APHEDA, Submission 32, p. 2; CPSU-SPSF Group, Submission 38, p. 3; Australian Council of Trade Unions, Submission 49, p. 21.

[124]Electrical Trades Union, Submission 30, p. 4.

[125]Australian Council of Trade Unions, Submission 49, p. 20.

[126]Australian Fair Trade and Investment Network, Submission 8, p. 30; Australian Workers’ Union, Submission, Submission 24, p. 3; Electrical Trades Union of Australia, Submission 30, p. 6; Department of Foreign Affairs and Trade, Submission 41, p. 40.

[127]Electrical Trades Union of Australia, Submission 30, p. 5.

[128]Department of Foreign Affairs and Trade, Submission 41, p. 40.

[129]Department of Foreign Affairs and Trade, Submission 41, p. 40.

[130]Department of Foreign Affairs and Trade, Submission 41, p. 40.

[131]Australian Fair Trade and Investment Network, Submission 8, p. 30.

[132]Electrical Trades Union, Submission 30, p. 5.

[133]Australian Fair Trade and Investment Network, Submission 8, pp. 30–31; Electrical Trades Union, Submission 30, p. 5; CPSU-SPSF Group, Submission 38, pp. 3 and 5; Australian Council of Trade Unions, Submission 49, pp. 19–20.

[134]Australian Council of Trade Unions, Submission 49, p. 19.

[135]Australian Fair Trade and Investment Network, Submission 8, pp. 30–31, citations omitted.

[136]Australian Fair Trade and Investment Network, Submission 8, pp. 30–31; Australian Council of Trade Unions, Submission 49, p. 20.

[137]Electrical Trades Union of Australia, Submission 30, p. 6.

[138]Mr James Miranda, National Policy and Research Officer, Electrical Trades Union, Committee Hansard, Melbourne, 3 November 2023, p. 7.

[139]See, for example: Grail Australia, Submission 2, p. 4; Australian Nursing and Midwifery Federation, Submission 7, p. 6; Australian Fair Trade and Investment Network, Submission 8, p. 31; Electrical Trades Union of Australia, Submission 30, p. 5.

[140]Grail Australia, Submission 2, p. 4; Australian Workers’ Union, Submission 24, p. 3; Electrical Trades Union, Submission 30, p. 5; Union Aid Abroad-APHEDA, Submission 32, p. 2; Australian Manufacturing Workers’ Union, Submission 43, p. 4; Australian Council of Trade Unions, Submission 49, p. 20.

[141]Australian Nursing and Midwifery Federation, Submission 7, p. 6; Australian Fair Trade and Investment Network, Submission 8, pp. 30–31; CPSU-SPSF Group, Submission 38, p. 5; Australian Council of Trade Unions, Submission 49, p. 20.

[142]Australian Council of Trade Unions, Submission 49, p. 20.

[143]CPSU-SPSF Group, Submission 38, p. 5.

[144]Australian Nursing and Midwifery Federation, Submission 7, p. 6; Australian Fair Trade and Investment Network, Submission 8, p. 31; CPSU-SPSF Group, Submission 38, p. 5; Australian Council of Trade Unions, Submission 49, p. 20.

[145]Australian Nursing and Midwifery Federation, Submission 7, p. 6. See also: Australian Fair Trade and Investment Network, Submission 8, p. 31.

[146]Grail Australia, Submission 2, p. 4; Australian Nursing and Midwifery Federation, Submission 7, p. 6; Australian Fair Trade and Investment Network, Submission 8, p. 31.

[147]Australian Nursing and Midwifery Federation, Submission 7, p. 6. See also: See also: Australian Fair Trade and Investment Network, Submission 8, p. 31.

[148]Grail Australia, Submission 2, p. 4.

[149]Electrical Trades Union, Submission 30, p. 5; Australian Council of Trade Unions, Submission 49, p. 20.

[150]Electrical Trades Union, Submission 30, p. 5; Australian Council of Trade Unions, Submission 49, pp. 20–21.

[151]Department of Foreign Affairs and Trade, Submission 41, p. 40.

[152]Electrical Trades Union of Australia, Submission 30, pp. 4–5; CPSU-SPSF Group, Submission 38, p. 3; Australian Council of Trade Unions, Submission 49, p. 20.

[153]Electrical Trade Union, Submission 30, p. 4.

[154]Electrical Trades Union of Australia, Submission 30, p. 4.

[155]Electrical Trades Union of Australia, Submission 30, p. 4.

[156]CPSU-SPSF Group, Submission 38, p. 3.

[157]Electrical Trades Union of Australia, Submission 30, p. 5; Australian Council of Trade Unions, Submission 49, p. 20.

[158]See, for example: Australian Nursing and Midwifery Federation, Submission 7, p. 6; Australian Fair Trade and Investment Network, Submission 8, pp. 26–30; APRA AMCOS, Submission 34, p. 5; CPSU-SPSF Group, Submission 38, p. 7; Public Services International, Submission 40, p. 8 and 40.1, pp. 1–4; Australian Council of Trade Unions, Submission 49, pp. 33–36.

[159]Australian Fair Trade and Investment Network, Submission 8, p. 29; Australian Council of Trade Unions, Submission 49, p. 33.

[160]Australian Fair Trade and Investment Network, Submission 8, p. 26; Public Services International, Submission 40.1, pp. 1–2; Australian Council of Trade Unions, Submission 49, p. 33.

[161]Public Services International, Submission 40.1, pp. 1–2.

[162]Australian Council of Trade Unions, Submission 49, p. 33.

[163]Australian Fair Trade and Investment Network, Submission 8, p. 30; Public Services International, Submission 40, p. 8; Australian Council of Trade Unions, Submission 49, pp. 33 and 36.

[164]Australian Council of Trade Unions, Submission 49, p. 33.

[165]Australian Fair Trade and Investment Network, Submission 8, p. 26; APRA AMCOS, Submission 34, p. 5.

[166]APRA AMCOS, Submission 34, p. 5.

[167]Australian Fair Trade and Investment Network, Submission 8, p. 26.

[168]APRA AMCOS, Submission 34, p. 5.

[169]Australian Fair Trade and Investment Network, Submission 8, p. 27, citation omitted.

[170]Australian Council of Trade Unions, Submission 49, p. 33.

[171]Australian Fair Trade and Investment Network, Submission 8, p. 28; CPSU-SPSF Group, Submission 38,pp.6–7; Public Services International, Submission 40, p. 8; Australian Council of Trade Unions, Submission 49, p. 36.

[172]Australian Fair Trade and Investment Network, Submission 8, p. 28.

[173]Australian Fair Trade and Investment Network, Submission 8, p. 28.

[174]Ms Sanya Smith, Legal Consultant, Public Services International, Committee Hansard, Melbourne, 3November 2023, p. 16.

[175]Australian Fair Trade and Investment Network, Submission 8, p. 28.

[176]Australian Council of Trade Unions, Submission 49, p. 36.

[177]Australian Nursing and Midwifery Federation, Submission 7, p. 6; Australian Fair Trade and Investment Network, Submission 8, p. 29–30; CPSU-SPSF Group, Submission 38, p. 7; Australian Council of Trade Unions, Submission 49, p. 33.

[178]Australian Nursing and Midwifery Federation, Submission 7, p. 6.

[179]Australian Council of Trade Unions, Submission 49, p. 34. See also: Ms Kate Lappin, Asia-Pacific Regional Secretary, Public Services International, Committee Hansard, Melbourne, 3 November 2023, p. 15.

[180]Australian Council of Trade Unions, Submission 49, p. 34.

[181]Australian Council of Trade Unions, Submission 49, p. 34.

[182]Australian Fair Trade and Investment Network, Submission 8, p. 30; Australian Council of Trade Unions, Submission 49, p. 28.

[183]Australian Fair Trade and Investment Network, Submission 8, p. 27; Public Services International, Submission 40, p. 8; Australian Council of Trade Unions, Submission 49, p. 35.

[184]Australian Fair Trade and Investment Network, Submission 8, p. 27; Australian Council of Trade Unions, Submission 49, p. 35; Ms Kate Lappin, Asia-Pacific Regional Secretary, Public Services International, Committee Hansard, Melbourne, 3 November 2023, p. 15.

[185]Ms Kate Lappin, Asia-Pacific Regional Secretary, Public Services International, Committee Hansard, Melbourne, 3 November 2023, p. 15.

[186]Australian Council of Trade Unions, Submission 49, p. 35.

[187]Australian Fair Trade and Investment Network, Submission 8, p. 27.

[188]Australian Fair Trade and Investment Network, Submission 8, p. 29.

[189]Department of Foreign Affairs and Trade, Submission 41, p. 9.

[190]Australian Council of Trade Unions, Submission 49, pp. 33–34, citation omitted.

[191]Australian Council of Trade Unions, Submission 49, pp. 33–34.

[192]Public Services International, Submission 40.1, p. 3; Ms Kate Lappin, Asia-Pacific Regional Secretary, Public Services International, Committee Hansard, Melbourne, 3 November 2023, p. 14.

[193]Public Services International, Submission 40.1, pp. 3–4.

[194]Public Services International, Submission 40.1, p. 3.

[195]Public Services International, Submission 40.1, p. 3, citation omitted.

[196]Australian Copyright Council, Submission 27, p. 6.

[197]See, for example: Grail Australia, Submission 2, p. 4.; Australian Nursing and Midwifery Federation, Submission 7, p. 5; Australian Fair Trade and Investment Network, Submission 8, p. 19; Public Health Association of Australia, Submission 36, pp. 6–7; ActionAid Australia, Submission 48, p. 11–12; Australian Council of Trade Unions, Submission 49, pp. 31–32.

[198]Public Health Association of Australia, Submission 36, p. 7; Australian Council of Trade Unions, Submission 49, pp. 31–32.

[199]Public Health Association of Australia, Submission 36, p. 7.

[200]Australian Fair Trade and Investment Network, Submission 8, p. 19; Australian Council of Trade Unions, Submission 49, pp. 31–32.

[201]Australian Fair Trade and Investment Network, Submission 8, p. 19.

[202]Australian Fair Trade and Investment Network, Submission 8, p. 19, citations omitted.

[203]Public Health Association of Australia, Submission 36, p. 7.

[204]Australian Fair Trade and Investment Network, Submission 8, p. 19, citation omitted.

[205]Australian Council of Trade Unions, Submission 49, p. 32, citations omitted.

[206]Australian Nursing and Midwifery Federation, Submission 7, p. 5; Australian Fair Trade and Investment Network, Submission 8, pp. 19–20.

[207]Australian Council of Trade Unions, Submission 49, p. 32, citation omitted. See also: Australian Fair Trade and Investment Network, Submission 8, p. 20.

[208]Australian Fair Trade and Investment Network, Submission 8, p. 19, Public Health Association of Australia, Submission 36, p. 7.

[209]Action Aid, Submission 48, pp. 11–12.

[210]Australian Fair Trade and Investment Network, Submission 8, p. 20; Public Health Association of Australia, Submission 36, p. 7.

[211]Public Health Association of Australia, Submission 36, p. 7.

[212]Australian Fair Trade and Investment Network, Submission 8, p. 20.

[213]Australian Fair Trade and Investment Network, Submission 8, p. 20.

[214]Australian Fair Trade and Investment Network, Submission 8, p. 20.

[215]Australian Nursing and Midwifery Federation, Submission 7, p. 5; Australian Fair Trade and Investment Network, Submission 8, p. 21; Union Aid Abroad-APHEDA, Submission 32, p. 2; ActionAid Australia, Submission 48, p. 12; Australian Council of Trade Unions, Submission 49, p. 32.

[216]ActionAid Australia, Submission 48, pp. 11–12.

[217]See, for example: Australian Nursing and Midwifery Federation, Submission 7, p. 5; Australian Fair Trade and Investment Network, Submission 8, pp. 22–23; Australian Copyright Council, Submission 27, p. 7.

[218]Australian Fair Trade and Investment Network, Submission 8, p. 22.

[219]Australian Copyright Council, Submission 27, p. 7.

[220]Australian Copyright Council, Submission 27, pp. 2–3 and 6–7.

[221]Ms Lynette Yu-Mackay, Chairperson, Nagula Jarndu Designs, Yawuru Jarndu Aboriginal Corporation, Proof Hansard, Canberra, 14 March 2024, p. 12

[222]Mr Darren Godwell, Chief Executive Officer, i2i Global, Proof Hansard, Canberra, 14 March 2024, p. 3.

[223]German Australian Business Council, Submission 25, p. 9, Mr Matthew Duckworth, Assistant Secretary, Services Competition and Intellectual Property Branch, Office of Global Trade Negotiations; Deputy Chief Negotiator, Australia-EU Free Trade Agreement, Department of Foreign Affairs and Trade, Proof Hansard, Canberra, 1 March 2024, pp. 8–9; Mr Darren Godwell, Chief Executive Officer, i2i Global, Proof Hansard, Canberra, 14 March 2024, p. 3.

[224]Mr Darren Godwell, Chief Executive Officer, i2i Global, Proof Hansard, Canberra, 14 March 2024, p. 3.

[225]German Australian Business Council, Submission 25, p. 9.

[226]Australian Nursing and Midwifery Federation, Submission 7, p. 5; Australian Fair Trade and Investment Network, Submission 8, p. 23. See also: German Australian Business Council, Submission 25, p. 9.

[227]Grail Australia, Submission 2, p. 4.

[228]German Australian Business Council, Submission 25, p. 9.

[229]Mr Haydyn Bromley, Chair, South Australian Aboriginal Tourism Operators Council, in evidence before the Joint Standing Committee on Foreign Affairs, Defence and Trade, CommitteeHansard, Adelaide, 20 February 2024, pp. 35–36.

[230]Department of Foreign Affairs and Trade, Submission 41, pp. 44–45.

[231]Department of Foreign Affairs and Trade, Submission 41, p. 45.

[232]Department of Agriculture, Fisheries and Forestry. Submission 45, p. 8.

[233]Australian Copyright Council, Submission 27, pp. 3 and 6; APRA AMCOS, Submission 34, p. 3.

[234]APRA AMCOS, Submission 34, p. 3.

[235]Department of Foreign Affairs and Trade, Submission 41, p. 43.