By Leith van Onselen

Late last year, I warned that the Federal Government seems intent to sign-up to the Trans Pacific Partnership (TPP) – the proposed regional trade deal between Pacific Rim countries, including Australia, which if it goes ahead could establish a US-style regional regulatory framework that meets the demands of its major export industries, including pharmaceutical and digital.

The draft chapter on intellectual property rights, revealed by WikiLeaks, included a “Christmas wishlist” for pharmaceutical companies, including the proposal to extend patent protection and strengthen monopolies on clinical data. As part of the deal, the US is reportedly seeking patents for “new forms” of known substances, as well as on new uses on old medicines – a proposal which would lead to “evergreening”, whereby patents can be renewed continuously.

It’s a huge risk to Australia’s world class public health system, which risks cost blowouts via reduced access to cheaper generic drugs and reduced rights for the government to regulate medicine prices. It also risks stifling innovation in the event that patent terms are extended too far.

The US is also seeking to insert an Investor-State Dispute Settlement (ISDS) clause into the agreement, which could give authority to major corporations to challenge laws made by governments in the national interest in international courts of arbitration. So effectively, US companies would be allowed to sue the Australian Government under international law – a move that is being pursued by Philip Morris against Australia on plain packaging and graphic warnings for cigarettes.

The draft agreement also sought to place more restrictions on internet users by forcing ISPs to cooperate with copyright holders and terminating the accounts of repeat infringers. This is despite the High Court of Australia ruling that an ISPs inaction could not be taken as authorisation of a copyright infringement.

Finally, the US is opposing a proposal that would allow the circumvention of technology that restricts products to certain regions, even though this was recommended by the Australian parliament’s Inquiry into IT Pricing, as well as opposing the parallel importation of goods made under authorisation in other countries, which acts to maintain higher prices.

US negotiators created an artificial deadline for the TPP to be concluded at the Singapore Ministerial conference between December 7 and 10 last year. However, when this failed, they moved the deadline to the sidelines of the World Economic Forum at Davos later this month.

Federal Minister for Trade, Andrew Robb, before Christmas signalled that the Government may cede to the Americans in a bid to gain better access for Australian agriculture (areas omitted in the Australia-US FTA), citing the TPP as a “platform for 21st-century trade rules”, and noting that “substantial progress” had been made on gaining better access to US agricultural markets.

As reported in the AFR yesterday, Robb has once again re-iterated his support for the TPP, provided Australia gains significant agricultural access:

“There are winners and losers from any trade agreement, so for us to sell an agreement back into the community and for it to be embraced, Australia needs to see significant market access opportunity,” Mr Robb said… Mr Robb has indicated Australia may be willing to make other concessions such as recognition of investor-state dispute settlement process, whereby disaffected foreign companies could resort to international arbitration to sue the Australian government… “If the market access offering in February is significant, then I think we will see rapid movement towards closing this deal,” Mr Robb said.

As noted previously, the text of the TPP (and other trade agreements) must be released for public and parliamentary scrutiny before they are signed by the Government. Otherwise, Australia risks being sold-out for short-term politically gain rather than sound long-term decisions, in the process placing at risk its world class health system and its ability to craft health policy, as well as raising the cost of digital imports.

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