New Zealand Not For Sale

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Government should stand firm on tobacco plain packaging legislation, and withdraw from restrictive treaties, says Fair Trade group

“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

“When Prime Minister John Key addressed the Australian Parliament he talked about Australia and New Zealand ‘joining forces at the negotiated table’ for a nine-country Trans-Pacific Partnership agreement (TPPA). But the two countries aren’t on the same negotiating page”, said Professor Jane Kelsey from Ho Chi Minh City, Vietnam where the seventh round of TPPA negotiations are underway.

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.

A formal request has been made to the Chief Human Rights Commissioner to examine the implications of the proposed Trans-Pacific Partnership Agreement (TPPA) for New Zealand’s international and domestic human rights obligations.

“Governments have a duty to take into account their human rights obligations when drafting, negotiating and implementing free trade agreements,” said Professor Jane Kelsey, who made the request.

“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.

The lobby group for the US drug companies, PhRMA has launched a direct and vitriolic attack on Pharmac, the New Zealand drug purchasing body, TPPA-critic Professor Jane Kelsey said.

Their submissions urges the US Trade Representative to use the Trans-Pacific Partnership Agreement (TPPA) to tighten the intellectual property rules – and boost their profits in New Zealand.

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

A petition calling for a select committee hearing on the proposed Trans-Pacific Partnership Agreement (TPPA) and its implications for New Zealanders was presented at Parliament today.

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

Tax Justice, the campaign calling for the implementation of a financial transaction tax and the removal of GST from food has announced its support for the NZ Not For Sale Campaign.

Who makes the rules? Government or corporations; introduction of Financial Transaction Tax would see government face the prospect of having to pay compensation to global investors –

“Under the TPPA it would become very difficult to introduce a Financial Transaction Tax in New Zealand, which is one of our campaign goals,” says Vaughan Gunson, Tax Justice campaign coordinator. “Any move to bring in the tax would see government face the prospect of having to pay compensation to global investors.”

“Government decisions that adversely affect the profits of investors from the negotiating countries – Singapore, Chile, Brunei, Australia, Peru, Viet Nam and the United States – could be subject to rulings by international tribunals. That’s why the TPPA is such a major threat to the democratic rights of New Zealanders,” says Gunson.

Tax Justice is calling for a Financial Transaction Tax to curb the ability of speculators to make tax-free profits from short-term investments in New Zealand financial markets. The tax would also raise significant government revenue.

“Following the global financial crisis there’s a need to discourage financial speculation, not further open up the New Zealand economy to financial pariahs, which is what will happen if New Zealand signs-on to the TPPA,” says Gunson.

Mr Gunson says momentum is swinging internationally towards a tax on financial transactions that targets the banks, big corporates and the super-rich. In Britain there’s the popular Robin Hood Tax campaign, which is being promoted globally by Oxfam.

" momentum is swinging internationally towards a tax on financial transactions "

Earlier this year the European Parliament voted overwhelming in favour of Financial Transaction Tax.

In October 2009, Brazil introduced a 2% Financial Transaction Tax on trading of the Brazilian dollar, to stop speculators destabilising the currency.

30,000 New Zealanders have so far signed the Tax Justice petition that calls for a tax on financial speculation and GST to be removed from food. The petition will be presented to parliament before this year’s General Election.

Bugs Bunny poses with the notorious Roger Award for New Zealand's worst transnational corporation: 2010 winners were the Warner’s Brothers. Photo: Nigel Moffiet/PMC

It was a clean sweep at awards night for Warner Brothers and key players in the “Hobbit bill” movies Monday night.

Warner Brothers claimed the top award for the worst transnational corporation operating in New Zealand.

Prime Minister John Key and government won the “accomplice” award, while Peter Jackson won the “special quisling award” – both for their involvement in the Employment Relations (Film Production Work) Amendment Bill, or the so-called Hobbit bill.

You can view and/or download the Roger Award Judges report here

The UN Special Rapporteur on the Right to Health, Anand Grover, has been asked to issue an Urgent Appeal to the governments negotiating the Trans-Pacific Partnership Agreement (TPPA). The sixth round of talks is underway in Singapore this week.

Big Pharma wants sink the Pharmac

The complaint was coordinated by US-based Knowledge Ecology International and signed by ten prominent public health and trade justice groups and three law professors, including Professor Jane Kelsey from the University of Auckland.

In 2009, the Special Rapporteur found that increasingly inflexible FTAs have an “adverse impact on prices and availability of medicines, making it difficult for countries to comply with their obligations to respect, protect, and fulfil the right to health”.

The UN Human Rights Council has previously determined that States hold a responsibility “to ensure access to all, without discrimination, of medicines, in particular essential medicines that are affordable and of good quality”.

The complaint centres on the US’ draft intellectual property chapter for the TPPA, leaked in February. It alleges the US proposals “significantly erode the public health safeguards and flexibilities contained in international documents” and “infringe upon the human right to health”, including “access to medicines and medical treatment” that has been “derived from, or affirmed in, numerous international documents”.

In particular, proposed norms on patent term, data exclusivity, registration of new medicines and enforcement would strengthen drug companies’ monopolies over life saving medicines, raise prices and create barriers to access.

The purely commercial focus of the TPPA overrides public health obligations, “pitting nations and residents of very different incomes, interests and power into a situation where health is traded for market access is unrelated fields”. As the only superpower in the talks, the US wields unequal bargaining power on behalf of its corporations.

The secrecy surrounding the talks also breaches international law rights to information and participation in public affairs for affected parties. This results in social exclusion, especially for marginalised groups that will be most affected by the outcome, such as those with HIV/AIDS. By contrast, the US Industry Trade Advisory Committee on Intellectual Property Rights has 15 members, all representing large corporate interests.

The secrecy surrounding the talks also breaches international law rights to information and participation in public affairs for affected parties

Professor Kelsey said the complaint raises very live concerns for New Zealand. “A wide range of professional and community groups are aware that a TPPA could damage vital public health initiatives, from policies to reverse the damage caused by tobacco and alcohol to life saving treatment for people living with HIV/Aids and cancer.”

“We know that US Big Pharma wants sink the Pharmac scheme that allows the health budget to buy more and makes medicines affordable for all New Zealanders. The Prime Minister has already hinted at trade-offs.”

“Hopefully, the intervention by the UN Rapporteur will make the government think twice before it puts the commercial interests of Fonterra ahead of our international obligations and New Zealanders’ right to affordable, accessible, quality health care”, said Professor Kelsey.