It is now clear, however, there is an even more insidious and threatening danger at the heart of this secret agreement.   One clause that the Americans will insist on (as they have done with other similar agreements) is a provision that would allow foreign private corporations to sue our government (including all future governments) if they saw any sign that the terms of the secret agreement might not be adhered to.

In the final weeks of the election campaign, the question of whether or not to sell some of our key assets remains, for many voters, a defining issue.  Yet, while that question is hotly debated, a related issue of equal if not greater importance is sliding by under the radar.

Bill English (top left, at last weekends APEC meeting) “will give consent in our name to the broad principles of a new multilateral agreement which will pose an even greater threat to our continued existence as a genuinely self-governing democracy”

That asset sales should raise real concerns is hardly surprising in a country that has already sold a higher proportion of its economy into overseas ownership than any other developed country.  For many, it raises fears, not just about the loss of control over our economic future, but about our powers of democratic self-government as well.

Yet, while those issues rise to the top of the election agenda, Bill English will – this weekend in Hawaii* – give consent in our name to the broad principles of a new multilateral agreement which will pose an even greater threat to our continued existence as a genuinely self-governing democracy.

He will do so without ever consulting us.  Not only that – we will not be allowed to know what is in the agreement, and even the record of the negotiations themselves will be kept secret, it seems, for up to four years.

NZN4S Patron Bryan Gould: “The government – in the persons of the Prime Minister, the Minister of Finance, and the Trade Minister - will make these secret decisions for us”

Parliament will not be allowed a say until the deal is done.  There will be no scrutiny by a select committee.  The government – in the persons of the Prime Minister, the Minister of Finance, and the Trade Minister – will make these secret decisions for us.

Yet we already know that the Trans Pacific Partnership Agreement is certain to raise issues of the greatest importance.  We already know that the government is so convinced that “free trade” is a good thing that it will be prepared to sign away almost anything for the chance to sell to our trading partners the products that – in a food-hungry world – they want to buy anyway.

We know that our government will roll over at the mere sight of a dollar bill.  Who can forget the unseemly haste with which we gave away huge tax advantages and changed our labour laws at the behest of Warner Brothers?  Hardly the action of a government or a country with any self-respect.

Little wonder that there is a real concern that the American pharmaceutical industry will insist that the role of Pharmac – the government agency that has used its buying power to keep down the price of prescription medicines and has accordingly saved New Zealanders hundreds of millions of dollars – will have to be reduced so that the drug companies can extract much greater profits from us.

On this, as on other similar issues, Ministers give us general assurances – and by the time we discover what those mean, it will be too late.

It is now clear, however, there is an even more insidious and threatening danger at the heart of this secret agreement.   One clause that the Americans will insist on (as they have done with other similar agreements) is a provision that would allow foreign private corporations to sue our government (including all future governments) if they saw any sign that the terms of the secret agreement might not be adhered to.

The legal action would be brought, not in our own courts, or even in a properly recognised international court, but in special tribunals set up specifically for the purpose.   It would be necessary to establish these courts especially because they would be dealing with very unusual cases – cases where privately owned companies could sue a sovereign country to enforce treaty provisions to which those companies were not even parties.

Let us be in no doubt what that would mean.  It would mean that an American corporation would have far more extensive rights against our government than any New Zealand company would ever have.  It would mean that a future government, perhaps elected to change policy in an area like environmental protection or health and safety, could be prevented from doing so by a foreign corporation suing that government in a special tribunal.

It would mean, in other words, that concessions made in secret by today’s government could never be claimed back.  We, as a country, would be locked into a marketplace controlled by foreign corporations.

This is not mere speculation.  American and European companies investing and trading overseas have regularly enforced these rights arising from similar treaty provisions.

Ironically, the history of this kind of provision has begun to attract attention because it has come back to bite those who created it.  The Germans, some decades ago, began to insert such provisions in treaties with third-world countries, so that the interests of German investors in those countries could be protected.   Such was the power of German investment, and the weakness of the recipient countries, that no one took much notice.

Now, however, with the crisis in the eurozone and the growing investment of formerly third-world countries in Europe, the boot is on the other foot – and European countries are suddenly crying foul at the prospect of being sued by private companies from China or Korea.

Before New Zealand gets embroiled in similar proceedings, could we at least get a clear answer to a simple question?  Does the TPPA, to which Bill English nodded assent this weekend, contain a similar provision?

*This article, by NZN4S Patron Bryan Gould, was written prior to the APEC meeting (held last weekend) at which the TPPA was discussed. The NZ Herald declined to publish it.

After sifting through the deluge of documents released after today’s meeting of political leaders from the nine countries in the TPPA negotiations, Professor Kelsey said they provided no new information.

“The first official statements about the TPPA negotiations have told us nothing we haven’t already gleaned from leaked documents, analysis of speeches from politicians and corporate lobbyists, and our own discussions with delegations.”

The buzz-word ‘transparency’ consigned to the dustbins of hypocrisy

“They do confirm their goal is to set a straitjacket on the policies and laws that future New Zealand governments can adopt”, she said.

“We already know that the targets include Pharmac, tobacco control laws, restrictions on foreign investment, tighter environmental protections, GM and food labeling, industry, regulation of oil exploration and construction standards, and many other areas where market-friendly regulation has failed.”

“We need to see the draft texts so we can properly assess their implications and if they are not in our interests the government should be required to walk away. That’s the least we should expect in a democracy.”

The APEC process, which gives privileged access to the corporate sector and excludes all others, has compounded the secrecy that has surrounds the controversial TPPA negotiations.

“The buzz-word ‘transparency’, which is strewn throughout the APEC and TPPA documentation, should be relegated to the dustbins of hypocrisy”, said Professor Kelsey.

Asia-Pacific leaders at the APEC meeting – NZ’s Bill English at extream right

“The CEOs of the major corporations and the business lobby groups have had privileged meetings with the officials, ministers and leaders to push their cause.”

“New Zealanders should be outraged that our right to decide our own future is being dealt with this way.”

Outline of TPP Agreement from the United States Trade Representative 

The leaked documents are here

Drug companies' 'war' on Pharmac

New Leaked Texts Reveal Details of US Attack on Pharmac in Free Trade Talks

The leaking of three further secret texts from the Trans-Pacific Partnership Agreement (TPPA) negotiations confirms fears that the US is pushing for rules on healthcare products that would give its pharmaceutical giants new tools to attack national drug buying agencies like Pharmac, Jane Kelsey said today.

The US proposed texts along with critique of their public health implications were posted on the Citizen Trade Campaign website today.

Speaking from Lima where the texts are being negotiated, Washington-based legal expert Professor Sean Flynn describes the proposed Annex on “transparency” that targets drug pricing and reimbursement programmes as “an extreme proposal that regulates public health policy and has no place in a trade negotiation”.

“This proposal is contrary to the demands of democracy, is bad for the development interests of poorer countries, and represents an affront to the best practices in evidence-based health policy, including such practices in the US”.

According to Professor Flynn, the real effect of the US proposal is to advance the pharmaceutical industry’s ultimate goals of a binding international agreement on drug pricing.

“If such an agreement is desired by countries, it should be negotiated in an open forum where public health experts and advocates are well represented, eg. the World Health Organisation.”

The leaked text on transparency strikes at the core of Pharmac, which uses its purchasing power to negotiate affordable prices for medicines.

University of Auckland Law Professor Jane Kelsey describes the combined effect of the three leaked texts as “giving Big PhRMA a platform to wage a war of harassment against Pharmac”.

“The US proposals would allow drug companies to challenge every Pharmac decision as not appropriately recognising the ‘value’ of patents – a dangerous and undefined standard. Adopting this standard would open floodgates of litigation against Pharmac and will ultimately raise medicine prices and ration access.”

“These leaked documents are being discussed at this week’s negotiating round in Lima. Yet again, we see the dangers of secret negotiations that give foreign corporations enormous leverage over our democratic processes and threaten the viability of our health care system”.

Checkout all the leaked documents

TRANSPARENCYCHAPTER – ANNEX ON TRANSPARENCY AND PROCEDURAL FAIRNESS FOR HEALTHCARETECHNOLOGIES

TBT ANNEXES ON MEDICAL DEVICES, PHARMACEUTICAL PRODUCTS AND COSMETIC PRODUCTS.

INTELLECTUAL PROPERTY CHAPTER

REGULATORY COHERENCE CHAPTER

Also see

Key Sticks To Pharmac Position > (its up for grabs)

“The secrecy that shrouds the Trans-Pacific Partnership negotiations just got even more outrageous”, said Professor Jane Kelsey, who monitors the negotiations.

The parties have apparently agreed that all documents except the final text will be kept secret for four years after the agreement comes into force or the negotiations collapse. This reverses the trend in many recent negotiations to release draft texts and related documents. The existence of agreement was only discovered through a cover note to the leaked text of the intellectual property chapter.

New Zealand is the repository for all these documents and the conduit for all requests for the release of information, including this Memorandum of Understanding.

An open letter to Prime Minister John Key and Trade Minister Tim Groser from unions, civil liberties, church, public health, development, environmental and trade justice groups has demanded the release of the secrecy document. The Green Party and Mana Movement have both endorsed the call.

The release of the secrecy memorandum was requested during the Chicago round of negotiations in early October. New Zealand lead negotiator Mark Sinclair has asked for responses from the other countries, but there is no guarantee they will agree.

The spotlight will fall on the document during the negotiating round in Lima next week, when letters from many other TPPA negotiating countries are also handed to Sinclair.

“The National-led government has already blocked our petition for a select committee hearing on the implications of this agreement for New Zealand”, said Helen Kelly, President of the New Zealand Council of Trade Unions.

“We want to see the terms that the government agreed to that stop us from seeing what they have done in our name until it is too late to hold them accountable”.

“The move by Philip Morris tobacco company to sue the Australian government  using an obscure bilateral investment treaty with Hong Kong shows the dangers of signing trade or investment  treaties  which  could  give  corporations  the  right  to  sue  governments over legitimate  health or other public interest regulation,”  Dr Patricia Ranald, Convener  of the Australian Fair Trade and Investment Network said today.

“The Australian government does not have such an investment treaty with the United States, which is the main base of the Philip Morris Company. Public campaigning also prevented the Howard  government  from  including  the  right  of  corporations  to  sue  governments  in  the Australia-US Free Trade Agreement in 2004. The company is apparently using the existence of a subsidiary company in Hong Kong to pursue this case, said Dr Ranald.

The case shows the dangers of signing trade or investment treaties which could give corporations the right to sue governments.

“The ALP government’s trade policy announced on April 12, 2011, confirmed that it will not agree to give corporations the right to sue governments in any future free trade agreements or bilateral treaties. This policy is a response to community and public health advocacy, and to recommendations  of  the  Productivity  Commission,  which  found  there  was  no  economic justification for corporations  to have the right to sue governments.  It was also a rebuff to tobacco companies’ threats to use such provisions against the plain packaging legislation”, explained Dr Ranald.

“We  support  the  right  of  governments  to  regulate  in  the  interests  of  public  health.  The Australian government plain packaging legislation is based on a World Health Organisation recommendation to reduce the ability of tobacco companies to market their products to young people.   We   are   confident   that   the   general   framework   of   international   law   enables governments to implement World Health Organisation recommendations and to regulate to protect public health.

“We urge the government not to be intimidated and to stand firm and proceed with its plain packaging legislation” said Dr Ranald. “Far from withdrawing this legislation, the government should instead consider withdrawing from all bilateral treaties which restrict its legitimate ability to regulate.”

“We support the right of governments to regulate in the interests of public health"

More

• Tobacco giant fights Australia over brand ban

• Tobacco giant to challenge packaging laws – ABC article with the Australian Government’s response (contrast with the NZ Government position)

• An editorial opinion piece to be published in the Canberra Times from Dr Kyla Tienhaara and a colleague at the Australian National University

On the same page as Australia? Really?

“The Australian Government has made it clear that it won’t negotiate on a number of controversial demands from the US. The Key Government has said nothing is off the table,” Kelsey said.

The Australian Labor Government revised its trade policy in April this year following a highly critical report from the Australian Productivity Commission on the impact of bilateral and regional trade deals, including the Australia-US Free Trade Agreement (AUSFTA), on Australia’s economic performance.

Dr Patricia Ranald from the Australian Fair Trade and Investment Network outlined the lessons to be learnt from the AUSFTA and the main features of the new trade policy at Sunday’s TPPA stakeholder event in Ho Chi Minh City.

The Productivity Commission concluded that the projected economic benefits of the AUSFTA were greatly exaggerated. Indeed, Australia’s trade deficit with the US had increased every year since the AUSFTA came into force.

Groser: “No professional negotiator of any quality ‘takes issues off the table’ at an early stage.

The report also recommended against giving investors the power to enforce aspects of the agreement directly against the government in an offshore tribunal, something Australia resisted in the AUSFTA.

Australia’s new trade policy adopted many of the Productivity Commission’s recommendations. Trade Minister Craig Emerson made it clear that Australia would not support investor-state disputes, negotiate further changes to the Pharmaceutical Benefits Scheme (Australia’s version of Pharmac) or restrict its right to introduce plain packaging of tobacco products.

By contrast, New Zealand’s Trade Minister Tim Groser said in a speech on the TPPA negotiations last week that “No professional negotiator of any quality ‘takes issues off the table’ at an early stage”, even Pharmac. New Zealand is also prepared to discuss an investor enforcement mechanism, despite John Key initially dismissing the idea as ‘far-fetched’.

“In this instance, New Zealand echoing the position of Australia has a great deal to recommend it”, said Professor Kelsey.

“To do so, they require an explicit inquiry into and understanding of those obligations. Such an inquiry has never been undertaken in New Zealand.”

“The potential breadth of subject matter, geographical scale and enforcement powers proposed for this agreement make such an assessment a matter of priority and urgency.”

Over the past decade, a wide range of United Nations’ agencies have been highly critical of the trend for free trade agreements to undermine human rights guaranteed under international law, she said.

Their statements and reports have addressed the implications for rights to health, education and other public services, indigenous rights over lands, livelihoods and traditional knowledge, core labour rights, among other issues.

“UN Rapporteurs have also emphasised the right of every person to take part in the

Governments have a duty to take into account their human rights obligations when drafting, negotiating and implementing free trade agreements

conduct of public affairs, including access to information and participation in public policy decisions, including agreements like the TPPA.”

The request for a human rights impact assessment of the proposed TPPA was supported by a detailed paper that draws on an extensive international literature and precedents for national human rights inquiries, especially for free trade agreements involving the United States.

The paper was prepared by Professor Jane Kelsey with assistance from the Human Rights group of the Equal Justice Project at The University of Auckland School of Law.

The Commission has been asked, at the least, to conduct a scoping study of the issues raised by the TPPA and discuss the matter and appropriate responses with other human rights bodies in the participating countries.

It is hoped that the scoping study will support the need for a full ex ante Human Rights Impact Assessment of the proposed TPPA.

PhRMA claims the agency that makes the medicines affordable for ordinary Kiwis is an “egregious” example of a “lack of transparency and due process in pharmaceutical pricing and reimbursement decisions”.

It even implies that New Zealand’s low OECD ranking for the rate of avoidable deaths can be laid at Pharmac’s door.

When these mega-drug companies call for “meaningful opportunities for manufacturers and other stakeholders’” into Pharmac’s decision they mean exercising the kind of leverage we saw from Warners on the Hobbit”, said TPPA-critic Professor Jane Kelsey.

“These companies are notorious for commercial blackmail, threatening to withhold access to certain drugs unless they get their way”.

“When they refer to ‘science-based decision making’ they mean that cost should not be a consideration. Basically they want us to low out the health budget by siphoning more money directly into their coffers”, said Professor Kelsey.

“This is a naked attack on our public health system and demonstrates the appalling implications of this agreement for ordinary New Zealanders”.

RNZ Morning Report Coverage

• Big Pharma launches attack on PHARMAC

Pardon!

National Party MP Katrina Shanks announced in parliament yesterday that “It is really important to remember that file sharing is an illegal activity.”  Actually, Katrina, it’s not. And this poorly conceived new bill that was bounced into law yesterday makes it possible to punish file sharers before copyright violation has even been established. It’s perfectly appropriate to ensure we have a mechanism to protect the intellectual property rights of the creative classes in this country. However, it’s critical that we establish that violation has in fact taken place, but the new bill makes it possible for copyright holders to apply to shut down an alleged offender’s Internet account without any burden of proof!

It’s especially sickening that this bill was bounced into law yesterday under cover of Parliamentary Urgency, which was designed for the passage of important earthquake relief legislation. The only connection that this bill has with the Christchurch earthquake is that on February 22nd, a bunch of American and Kiwi bureaucrats were hammering out intellectual property issues related to the infamous Trans-Pacific Partnership (TPP), which is an attempt to forge a free trade agreement between us and the U.S.

It’s not a coincidence that this new bill, passed under urgency and secrecy, resembles U.S.-style “three strikes” legislation regarding copyright. As part of free trade deals, the U.S. has pushed a number of other countries ranging from France and Spain, to Korea and Taiwan, into similar legislation. Ultimately, the bill we have will not protect the intellectual property of NZ-based artists, filmmakers and musicians—it will simply help U.S. based transnational entertainment companies like Warner Brothers make more money here, to the detriment of local creative industries, and at the expense of taxpayers, as three strikes bills are proving prohibitively expensive to implement.

It’s appalling—but maybe not surprising—that the Labour Party supported the government in passing this ridiculous bill that helps transform Aotearoa into Hobbiton. It’s even worse that politicians used an emotive national emergency to create a law that had been pushed for by lobbyists rather than the NZ public at large. Anyhow, congrats everyone. We are now one step closer to a free trade deal with the US.

Opinion piece by Shiv Ganesh

The Bill passed its  third reading, under urgency  111 / 11 – the Greens and independent MPs Chris Carter and Hone Harawira voting against the Bill

The petition was signed on behalf of sixteen union, sectoral, industry and community organisations, ranging from the New Zealand Council of Trade Unions and numerous affiliates, to the Public Health Association, Oxfam, Society of Authors and locally-owned IT industry group NZRise.

Speaking at a lunchtime forum at Parliament, Maryan Street, Labour’s Foreign Affairs and Trade spokesperson and a member of the Foreign Affairs, Defence and Trade committee, said she was pleased to receive the petition. She reiterated the Labour Party’s support for more transparency and welcomed the prospect of a select committee discussion of the issues.

Catherine Delahunty: “Even parliamentarians struggle to get any information from the government ...

The petition also asks for a Parliamentary resolution that the New Zealand government should release the documents it has tabled in the negotiations.

Green Party MP Catherine Delahunty criticised the secrecy that surrounds the negotiations. “Even parliamentarians struggle to get any information from the government through formal processes and have to rely on non-government sources within and outside New Zealand”, she said.

Speaking at today’s forum, Professor Jane Kelsey disputed government claims that secrecy is standard practice for free trade negotiations, citing numerous recent examples where negotiating documents, including draft texts, have been released.

She pointed out the New Zealand government has the right to unilaterally release any documents it has tabled in the TPPA talks, as it had done during the trade in services negotiations at the WTO.

“Release of documents always generates debate and sometimes means that agreements are never concluded. That is not a reason for continued secrecy. It shows that people weren’t convinced that the FTA was in the national interest”, Professor Kelsey said.

View and/or download backgrounder Too Many Precedents To Refuse To Release TPPA Text And Papers here