This inquiry of the Joint Standing Committee on Treaties (JSCOT) and its report form a timely and worthwhile contribution to enhancing Australia’s democratic process.
Although treaty-making is a prerogative of executive government, the process by which such agreements are settled should involve as much parliamentary input and review as possible. One of the main reasons the JSCOT was created in 1996 was to address this ‘democratic deficit’. It is appropriate therefore that the JSCOT should consider ways in which trade agreements and treaty-making can be strengthened.
Labor members of the JSCOT support the report’s recommendations. While in some respects we might have phrased them differently, and perhaps made them sharper or more direct in places, they are on the whole a fair reflection of the evidence to this inquiry. They also pick up and urge upon the government the inquiry’s chief thematic imperatives, namely:
Publish trade agreement objectives in advance.
Provide independent economic analysis of trade agreements.
Enable greater stakeholder involvement, including through appropriate mid-stream access to the text under negotiation.
Inform and engage the JSCOT through the trade-making process, not simply once the agreement has been signed.
There is no question that Australia’s trade agreement-making process can and should be better in these ways. That is the consensus view of the JSCOT, which proceeds from the strongly aligned evidence received in submissions and in hearings. We thank the organisations and individuals from across the spectrum of Australian areas like economic analysis, academic research, business peak bodies, the labour movement, and civil society for their contributions to this inquiry.
We acknowledge the spirit in which all members of the Committee worked on this inquiry, and particularly the stewardship of the Chair, the Member for Wentworth, which included his preparedness to make amendments to some recommendations as proposed by Labor Committee members.
These additional comments are not provided to qualify the support provided by Labor members of the Committee for the report, but rather to provide context for its substance and recommendations.
The genesis of this inquiry was the government’s agreement, through the then Minister for Trade, Senator Simon Birmingham, to the request from Labor’s Shadow Minister for Trade, Madeleine King MP, as part of the negotiations that occurred with respect to the Comprehensive and Progressive Trans-Pacific Partnership.
It is the first ‘general topic’ inquiry of the JSCOT since the commencement of the 45th Parliament in July 2016.
It shouldn’t need to be said but we believe it’s worth saying at this time (when the health and good function of parliamentary democracies is under discussion) that parliamentary processes, including the work of parliamentary committees, are not ‘optional extras’ to the decision-making of executive government. Nor should we allow them to be seen as inconsequential or essentially rubber-stamping processes. This of course depends on how they work in practice, which in turn depends on all of us who participate in the work of parliamentary committees, and who therefore both live within and shape parliamentary culture.
Where committees only play at heeding evidence and are not genuine in seeking a consensus that reflects the facts and reasoning at hand, but rather operate according to a foregone partisan majoritarianism, they can be merely a ‘tool of political management, a means by which the government could channel protest, deflect opposition, and in essence legitimise its own policy preferences.’ If that occurs, democracy and good governance suffer.
When it comes to trade agreements, Australian Labor has been consistent in its support for fair and free trade. For example, in additional comments to Report 165 on the Trans-Pacific Partnership, Labor members noted:
From the time of the Hawke-Keating government, Australia has looked to participate openly in the global market on the basis that fair and free trade is in our national interest – economically, socially, and geopolitically – and because it is supportive of developing nations in our region. Labor has pursued tariff reduction and the winding-back of non-tariff barriers, and we recognise that multilateral agreements are preferable to a ‘noodle bowl’ of bilateral arrangements.
Yet there are costs and impacts associated with trade agreements – not least because they now typically traverse areas much wider than trade, such as investment, intellectual property, and the movement of natural persons. We should never glide over the fact that such agreements can be negotiated with more or less rigour and quality. Australia is a trading nation, and we should have more self-respect than to go along with discussions around trade that proceed from simplistic slogans like ‘trade creates jobs’, when even that is not always true. For that reason, Labor has argued for some time that improvements should be made to our agreement-making process in order to pursue and achieve the best possible outcomes through the consideration and settlement of trade agreements.
Labor members of the Committee note that in the course of the 45th Parliament, the JSCOT recommended on several occasions that the Australian government introduce the practice of commissioning appropriate independent economic modelling as part of the process by which trade and investment agreements are considered (for example see Report 165: TPP, Report 172: Singapore FTA, and Report 179: PACER Plus).
We also note that key elements of the position reached in this report have been advocated by Labor for some time. For example, consider the 2015 Report of the Foreign Affairs, Defence and Trade References Committee titled Blind Agreement: reforming Australia’s treaty-making process, which stated:
The [Labor] Opposition favours incremental change building on the package of sensible reforms introduced by government in 1996. This is why the report makes practical recommendations aimed at improving the level of transparency in negotiating treaties and the quality of consultations between DFAT and stakeholders, and making parliament a real player in treaty-making.
Specifically, the report's key recommendations are that JSCOT engage more in the oversight of trade agreements under negotiation and not wait until the end of the process; that parliamentarians and stakeholders be given access to treaty text on a confidential basis during negotiations and not a token look at the end as with the TPP; that trade agreements be subject to an independent cost-benefit analysis prepared up front at the commencement of negotiations.
It is also salient to record that at the election in 2019, Labor proposed to make the following improvements if elected to government:
strengthening the role of the Parliament by briefing the JSCOT at the end of each round of negotiations and providing it with the Government’s Statement of Objectives for Negotiation for consideration and feedback;
legislating to establish a system of ‘Accredited Trade Advisors’ from industry, unions and civil society groups who would provide real time feedback on draft trade agreement text during negotiations;
providing public updates on each round of negotiations and releasing draft texts during negotiations where this is feasible; and
legislating to require an Independent National Interest Assessment be conducted on every new trade agreement before it is signed to examine the economic, strategic, and social impact of any new trade agreement.
To conclude, Labor members of the JSCOT support the recommendations made in this inquiry report and encourage the government to take them as the basis for securing some sensible, substantial, and overdue improvements to the way Australia makes trade agreements. While they don’t represent all the ways in which the process could be improved, they would make a serious positive difference to both the scope of stakeholder and parliamentary engagement, and to the quality of decision-making.
Peter Khalil MP, Deputy Chair
Senator Tim Ayres
Senator Raff Ciccone
Senator Kimberley Kitching
Kate Thwaites MP
Josh Wilson MP