It’s time for transparency: Show us the Trans-Pacific Partnership Agreement

This article is by Brendan Molloy. Molloy is an information freedom activist and a councillor of Pirate Party Australia. This post first appeared on The Guardian and on Molloy’s blog and is licensed under a Creative Commons licence.

opinion Only in Australia could the phrase “public briefing” mean that the meeting will be held behind closed doors, where journalists are not welcome.

Only yesterday, the Department of Foreign Affairs and Trade (DFAT) rescinded the invitations of several journalists to attend a public briefing regarding a multilateral trade agreement under negotiation called the Trans-Pacific Partnership Agreement (TPP).

The TPP is an extensive agreement that covers typical topics such as goods and services, but also contains chapters on labour laws, intellectual property, the environment and investor-state dispute settlement provisions. This agreement is currently being negotiated completely opaquely between the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. DFAT claims that it will be finished negotiating by the end of the year.

If you’ve never heard of the TPP, here’s a summary of the major issues:

• Complete lack of transparency. Beyond limited information handed out in public briefings and private meetings, there is almost no information as to the specifics of the text. We only know what is in the agreement due to leaks, and from what little we can glean, it is bad.
• The IP chapter. There have been very few leaks of TPP text, but when the IP chapter leaked in 2011 it showed that a concluded agreement containing a chapter similar to this would include extensive negative provisions that affect Australia’s ability to maintain or reform its own patent and copyright legislation in the best interests of Australia.
• The inclusion of investor-state dispute settlement provisions. DFAT attests that any such clause would not apply to Australia, but the Liberals have previously stated they would support the introduction of ISDS, so this position is subject to change.

The TPP could criminalise copyright infringement done without commercial benefit, ban parallel importation, expand copyright terms, and limit our ability to enact the reforms recommended by the Australian Law Reform Committee’s copyright review.

Right now we don’t know exactly what will be in the TPP, because it’s kept completely secret, except if you’re fortunate enough to be a wealthy lobbying organisation in the United States, who are provided access to the text through the US Trade Representative (USTR), and have direct input into the text. This leads to a protectionist agreement, not a free trade agreement.

As of yesterday, journalists were barred from attending a briefing to be held this afternoon in Sydney. The justification provided was that these briefings are considered “off-the-record”, but that DFAT is quite happy to provide an event tailored specifically for journalists.

Of course, we wouldn’t want journalists to see the difficult questions being asked by the stakeholders in civil society, and have the non-answers provided by the bureaucrats marked down on the public record for all to see, criticise and remember, would we now? This demonstrates the sheer level of unnecessary secrecy afforded to these negotiations of an agreement that could have a profound impact on our domestic legislation.

The Pirate Party has been actively pursuing the Government regarding the TPP since 2012, making countless freedom of information requests in an attempt to shed some light on this secretive agreement. Making a request for the text itself is immediately rejected on the grounds that it is exempt under section 33 of the Freedom of Information Act.

Our most recent request to IP Australia regarding TPP related documents and gene patenting ended up costing us $1080, which we sourced through crowdfunding on Pozible. We hit our target in less than an hour. The result [59MB PDF]: about a thousand blacked-out pages, some publicly available information and insightful emails such as the negotiating team nearly booking the wrong hotel in the US, but basically nothing regarding the content of the TPP. Not good enough.

DFAT’s page on the TPP is limited at best, filled with weasel words about the “potential benefits” of the agreement, and an FAQ that says more by what’s missing than it does by what’s there.

Without accountability and transparency, democracy falters. Trade agreements negotiated completely behind closed doors are a recipe for protectionist agreements, not free trade agreements. In an increasingly digital society, the justification for opacity in trade negotiations has met its demise, and it’s time that we see modern legal instruments negotiated in a transparent and inclusive manner in order to get the best outcome for our country.

We urge the Abbott Government to release the TPP text before it’s too late to fix. Let’s not cripple Australian innovation in the interests of American profits.

For more information on the TPP, see the EFF’s issues page.