- Provision of information to the Public
- Some submitters advocated for the need to improve transparency and oversight in regard to the provision of information to the public about the negotiation of trade agreements, drawing a distinction between the wider public and consultation with interested and affected stakeholders.
- ActionAid Australia reflected that Australia’s current approach does not require the Government to release any information publicly during trade agreement negotiations.
- It was noted that a trade agreement is not made public until it is agreed by Cabinet, signed and tabled in Parliament. As a result, the Electrical Trades Union (ETU) observed that ‘… the general public has almost no exposure to what a trade agreement may entail or mean for their lives before it is signed and comes into force.’
- Ms Kate Lappin, Public Services International (PSI) explained to the Committee the importance of making information publicly available rather than relying on targeted consultation through mechanisms such as the United States’ committee advisory system:
I think there would be interest in the public actually know[ing] what is going on, not just those few, which are often lobby groups… which have enormous resources to be able to follow up and engage in that process. I think that's first and foremost the major concern. I think it also doesn’t give space to the public debates and the media scrutiny that should be part of a healthy democracy. Media should be able to report on this. I honestly believe that if we had that level of public discussion, we wouldn't have some of the agreements and some of the problems we have now.
3.5Some stakeholders proposed that Australia should make its negotiating mandate or at least a high-level summary publicly available prior to the commencement of negotiations. For example, referring to the European Union (EU) approach (discussed further below), the Red Meat Advisory Council (RMAC) stated that:
… we see value in similar published high-level outlines of the Australian Government’s negotiating mandate once it is determined.
[This] … would provide transparency for the goals of the agreement, provide industry with more certainty around the negotiation of the agreement should there be a change in government, and also be an opportunity to put down firm public markers regarding Australia’s national interests in relation to the agreement from the outset of negotiations.
3.6In their submission, the Department of Foreign Affairs and Trade (DFAT) advised that: ‘Where appropriate, and in the interests of transparency, DFAT will publish the negotiating aims and approach for a particular trade agreement.’ Some stakeholders acknowledged that for more recent trade negotiations, the Australian Government has published more information, including high-level negotiating aims and objectives.
3.7Referring to the publication of information setting out negotiating aims and objectives for the Regional Comprehensive Economic Partnership (RCEP), the Department of Home Affairs noted that: ‘This practice can assist agencies and stakeholders to discuss particular areas of importance and target their submissions.’
3.8Many submitters recommended that Australia should make draft agreement text publicly available as negotiations progress, as well as the final draft text before the agreement is signed and tabled in Parliament. For example, Union Aid Abroad-APHEDA advocated for a high level of public transparency, emphasising that trade agreements should be ‘… transparently negotiated with public access to the detail of texts at all stages of negotiation…’
3.9The ETU agreed that draft text should be made publicly available, whilst also advocating for the publication of summaries and discussion papers:
Public updates in the form of plain English summaries and, where feasible, copies of draft texts and proposals should be released for public review periodically throughout the negotiating process. The release of issue-based discussion papers for public consultation and feedback should also be incorporated as a means of involving the public in the process and ensuring their views are represented at the negotiating table.
3.10In their submissions, both the Public Health Association of Australia (PHAA) and PSI suggested that in addition to draft text, the government should publish position papers on key issues of public interest at regular intervals during negotiations.
3.11DFAT outlined that a range of information about trade agreements negotiations is publicly available on its website:
DFAT regularly publishes materials on its website to ensure information on trade negotiations is readily available to the community during negotiations and after entry into force. This includes information on Australia’s existing FTAs and current FTA negotiations, summaries of negotiating rounds, objectives and benefits fact sheets, outcomes documents and chapter summaries.
European Union approach
3.12Submitters widely identified that the approach taken by the EU has a high degree of transparency before, during and after trade negotiations. Most notably, the EU makes its draft ‘negotiation directives’ publicly available before negotiations commence and publishes draft agreement text for each chapter. During negotiations substantial supporting material is also published to enable interested stakeholders to understand the development of negotiations as they progress. Further, at the conclusion of negotiations, negotiated agreement text and supporting information is promptly published before it is signed.
3.13The Delegation of the EU to Australia explained that: ‘For example, for the current free trade agreement negotiations with Australia, the relevant website contains the list of 26 chapters under discussions, and more pertinently, the text for each chapter as proposed by the EU and subject to negotiation.’
3.14The Delegation of the EU to Australia advised that its approach ‘… allows all interested organisations, individual members of civil society (both at EU and member state level) and the relevant parliaments in member states, to have a better-informed view and to discuss issues of interest and concern right from the start of preparations for a negotiation.’ It also noted that ‘… more transparency has created more trust.’
3.15Dr Hazel Moir noted the different approach taken between the EU and Australia: ‘…Such a non-transparent process has now been challenged by the European Union (EU), which has a new process of making initial negotiating texts publicly available. Australia has been slow to follow this lead and it is notable that the DFAT website for the Australia-EU trade negotiations has no links to draft treaty texts, but the EU website does.’
3.16During the Australia-EU trade agreements negotiations, differing approaches resulted in the scenario where Australian stakeholders had greater access to information about the negotiations from the other party’s government and stakeholders than through the Australian Government. Ms Michele O’Neil, President of the Australian Council of Trade Unions (ACTU) outlined the situation to the Committee:
In relation to the EU negotiations, we were receiving information from the European Union… That is often the case. There's a higher degree of transparency either in specific discussions and negotiations with our equivalent bodies and unions in those countries, who then tell us what they are finding out, where they can, if they are able to under their confidential requirements, or in fact they are public documents that are presented to parliaments or presented publicly by the other governments that we're negotiating with in other countries that are required to be transparent about it. So there's great irony in this. We're finding out more about what the Australian government is proposing in relation to these agreements via other governments than we are from our own.
3.17The PHAA recommended that Australia should follow the EU approach: ‘At the very least, Australia’s positions and textual proposals should be released, as is done by the European Union.’
Committee comment
3.18The Committee supports DFAT’s commitment to the more recent practice of publishing high-level negotiations aims and objectives. To strengthen this practice, consideration might be given to whether the scope of the information provided could be expanded and whether it could be made mandatory for government. The Committee also supports additional efforts to provide more accessible material such as summaries and position papers during negotiations, as well as efforts to centralise sources of information and points of engagement.
3.19The Committee is not of the view that it is in general necessary or appropriate for Australia to make draft agreement text during negotiations or final agreement text prior to signing publicly available.
3.20The Committee recognises that in some instances (for example, the Australia-European Union negotiations), the situation has arisen where more information about Australia’s position is available to Australian stakeholders and the public from the other party than from the Australian Government. Consideration should be given to how this situation could be prevented by adopting a practice of providing information to stakeholders and the public equivalent to that provided by the counterparty on a case-by-case basis.
Recommendations
3.21The Committee recommends that the Australian Government consider codifying the practice of publishing information outlining negotiation aims, objectives and expected costs and benefits for all future trade and investment agreement negotiations in legislation.
3.22The Committee recommends that the Australian Government consider adopting a practice in the negotiation of trade and investment agreements to provide greater transparency and information to stakeholders and the public, at a minimum of the equivalent to the information provided by the counterparty.