The Senate (not that one) blocks the TPP

by John Q on August 4, 2015

The failure of talks in Maui last weeks to reach final agreement on the Trans Pacific Partnership Agreement raises new, if slim, hope that this corporate wishlist may not be delivered after all. Friday was the last chance to get a deal that could be pushed through the US Congress before 2016, when Presidential campaign politics might disrupt everything. If that happened, and the new President opposed the deal it might never happen.

Although there were a bunch of issues that prevented a final deal, the biggest one was the demand for new protection measures for US pharmaceuticals (typical of what are absurdly still called Free Trade Agreements), and the biggest single obstacle was the attitude of an obscure legislative chamber, the Australian Senate. This piece in Inside Story gives some of the background.



The Raven 08.04.15 at 6:27 am

From these sources, it appears that the key demand was for “data protection” for a period of twelve years for new pharmaceuticals, particularly those described as “biologics.”

Which would include a much of the data necessary to conduct a systematic review of a new pharmaceutical.

F, F, F’ity, F. (that seems to be my motto for the year.)


Bruce Wilder 08.04.15 at 7:05 am

. . . it will be more difficult for Hillary Clinton, the likely Democratic candidate, to avoid taking a stand, as she has managed to do so far. If she rejects the deal, the likelihood of its passage is greatly reduced.

Touchingly naive.


ZM 08.04.15 at 9:18 am

“It’s unlikely that one in a hundred Australian voters could explain how the Australian Motoring Enthusiast Party, represented (quite ably, so far) by Ricky Muir, came to hold a seat in our upper house”

I am glad to read this is your opinion on Ricky Muir, I went to a talk on proposed changes to the Senate in Gisborne last year, with representatives from the Labor and Liberal parties and Don Watson, and the very idea that someone like Ricky Muir could become a Senator was the main reason they used to try to justify their proposed changes to the Senate. The Labor MP was the worst, as she was from the Labor party so she should hardly be complaining working people shouldn’t become Senators and the voting system should be changed to prevent this very thing.

I went to a talk in town last week as the first of a series of public talks our Labor MP (not the one from the Senate talk) is organising from now on. Mark Dreyfus was the speaker, and spoke on environmental law and taking Japan to the International Court of Justice about whaling. As you might expect from this, when I talked to him briefly afterwards about a torts case against the Crown or Commonwealth for not acting sufficiently on climate change Mark Dreyfus said he hoped someone would take the government to court for this, so it is good to know that he would be a parliamentary ally for this, as the EDO in QLD and NSW are starting fundraising for climate litigation now.


Val 08.04.15 at 10:17 am

Thanks JQ for this, I was a bit puzzled about what was going on and this makes it a lot clearer.

I think the Pharmaceutical Benefits Scheme is well enough understood in Australia that anything seen to threaten it is politically difficult to get through (I remember in Howard’s time there were deals he had to compromise on before the legislation even got to the Senate). However as you say the ISDS provisions aren’t so well understood yet, though I think the fact that the Australian government is having to spend millions of dollars defending its plain packaging legislation is starting to make news.

I have a strong feeling (which I may have mentioned before here I think) that Naomi Klein in ‘This changes everything’ says most ISDS disputes so far have been over environmental or workers’ rights provisions, but I can’t find any detail in my notes so I’m going to have to go back and look at this.

The Public Health Association and the Health Promotion Association held a forum in Melbourne the other day in which representatives from ALP, LNP and the Greens were asked about public health issues. There was supposed to be a question about the TPP but unfortunately time ran out; however there will probably be other forums and I imagine that will be one of the first questions. I don’t expect any health spokesperson to speak directly in favour of the TPP, at least in front of that audience, so it will be interesting.

(On a side note, it was interesting to see how the state Shadow Health Minister, Mary Woolridge, who basically seems quite smart and decent, was disavowing pretty well everything her federal Coalition counterparts had done to public health. ‘Interesting’ but also annoying because it seemed hypocritical and lacking in accountability. Anyway this is probably more relevant to your oz site so won’t discuss further here.)


Ed 08.04.15 at 10:48 am

The odd feature of people from very minor parties being elected to the Australian Senate is due to a confluence of factors. The major parties (Liberals and Labor) make deals with the minor parties where they run essentially joint tickets where the minor party pols are embedded. Voters then obediently vote for the entire joint ticket. The problem is really voters not doing their own thinking, and the effect is mainly one of optics. The fix is a combination of getting rid of above the line voting, or a smaller Senate, or at least electoral subdivisions in the states, so the electorate doesn’t have to fill so many Senate slots each election. STV develops these sorts of problems once you get more than seven representatives (really five) elected per electorate.


Tom Hurka 08.04.15 at 11:22 am

The article’s assumption that the issue about access to Canadian dairy markets won’t be difficult to resolve sounds optimistic. Canadian dairy farmers are a politically powerful group and a federal election campaign has just started. Will Stephen Harper want to throw away a bunch of rural Quebec ridings?


jake the antisoshul soshulist 08.04.15 at 1:51 pm

I do find it extremely interesting that the supposed “free marketers” support what is basically a mercantilist treaty. Which makes me suspect that “free markets” are just another marker like “federalism”. They say they believe in it, but in reality it is just cover for “we will do what we want, when we want.”


ifthethunderdontgetya™³²®© 08.04.15 at 4:22 pm

The Powers That Be clearly wanted this all wrapped up and done, so it’s good that it will at least be an issue in the 2016 elections.

Lest we forget:
2005: G.W. Bush begins negotiations on the TPP.
2008: Obama runs against Hillary on NAFTA, promises to renegotiate some terms.
2009: Haha, Obama never did any of that. Instead he secretly resumed the negotiations begun by Bush.
2015: Relying primarily on GOP votes, Obama obtains Fast Track in Congress for the TPP.

A President Hillary will be no different.


TM 08.04.15 at 5:00 pm

Tom Hurka, is TPP currently an issue in Canada? Is there relevant opposition?


LWA 08.04.15 at 6:19 pm

@Jake #7:
This is why I refuse to cede that any of these treaties are anything at all about making trade “free”-
The rhetorical advantage to being in favor of greater freedom is what allows them to conceal the real workings of what I refer to as a series of switches and gates- protection for this, allowance for that; price penalties here, subsidy there.

But then that leads into the acknowledgement, difficult for market fundamentalists, that the very existence of the market requires coercive government, and quite a lot of it.


Thomas Lumley 08.04.15 at 8:38 pm


Data exclusivity in the FDA sense doesn’t mean the data can be kept secret. It means the data can’t be used to support a competitor’s application.

It’s important because it’s a few years stronger than the same period of market exclusivity: you can’t even *apply* before the end of the period.

Not disagreeing about it being an excessive govt-enforced monopoly and bad for Oz and even worse for NZ.


Val 08.04.15 at 10:54 pm

I’ve looked again at Klein and I don’t think she makes such a specific claim about ISDS as I suggested in #4 above. Rather she is making general claims about:
– rules* of free trade (under WTO generally and specific trade agreements) having priority over environmental provisions
– such rules having the overall effect of either inhibiting states from making provisions about environmental standards and workers’ rights, or, where they do succeed in making them, encouraging manufacturers to shift to countries without such provisions

She does give some examples of disputes, including discussion of a case where a proposal for local green energy production included provisions about local jobs, and was disputed on this ground. This is particularly important in fossil fuel producing economies like Canada and Australia because proposals for green energy often include statements about local jobs (recognising that closure of mining will be associated with some job losses).

Wikipedia gives some examples of ISDS disputes here
They are about health (healthcare), environment and human rights, in general, rather than workers’ rights per se.

* as #7 and #10 above note, there’s a lot of irony in the “free” trade “rules” – which are actually in these examples about giving corporations ‘freedom’ from state regulation, while restricting the democratic freedoms and rights of states and peoples.


christian_h 08.05.15 at 7:19 am

jake (7.), exactly. It is just stunning that a treaty that is clearly about excluding economies from a market (as in the issue about how much of a car has to be made in the TPP nations to receive preferential tariff treatment), enforcing monopolies (intellectual property provisions) and which is held up among other issues by the US’s insistence that corporations be allowed to bully smaller nation states through the use of frivolous lawsuits in secret courts is sold in the US as a “free trade agreement”.


Tom Hurka 08.06.15 at 3:59 pm

TM @ #9:

Yes, TPP is a significant issue in Canada, including in the current federal election campaign. Harper’s Conservatives are pro, the social-democratic NDP (official opposition) are anti, and the Liberals are somewhere in the middle.

Contrary to JQ’s report, the media here say it’s Canada holding the negotiations up, first on access to its dairy market (US dairy farmers in particular want access to make up for the increased imports there will be from NZ under TPP) and, just now, about auto parts. Apparently the US concluded a side-deal on this with Japan without consulting its NAFTA partners, Canada and Mexico, whose auto industries, which are very much integrated with the US, would suffer under the US-Japan deal. (Japan wants to be able to export cars tariff-free with a high percentage of parts from non-TPP countries like Thailand.)

But yes, it’s a significant issue here, though partly, as on the auto parts issue, for how it will affect existing trade relations under NAFTA.


Lynne 08.06.15 at 6:47 pm

Tom Hurka, yes, isn’t that an interesting development? I’m so fed up with Harper that I’m almost to the point that anything that discomposes him perks me right up. Except, of course, that in this case we are again reminded that we are sleeping next to a giant.


James Wimberley 08.07.15 at 7:13 pm

The centralising Tudor court that the English Parliament attacked was called the Star Chamber, from the ceiling decoration of its venue. We need a similar catchy epithet for ISDS tribunals. Palpatine courts? The historical reference to palatine officials of the Holy Roman Empire fits quite well too. .

Comments on this entry are closed.