Photo: Current JSCOT chair Luke Hartsuyker speaking at the 20-year seminar in March 2016.
Photo: Current JSCOT chair Luke Hartsuyker speaking at the 20-year seminar in March 2016.

Australia’s Treaties committee has celebrated 20 years, highlighting significant doubts about whether there’s a ‘democratic deficit’ if major national issues are not debated by the full parliament.

Lack of debate causes ‘democratic deficit’

By Pauline Westwood*

Does Australia have true democracy when some of our most important issues are never debated in parliament, such as major trade treaties?

That was one of the fundamental issues raised at an all-day seminar ‘In our best interest: treaty scrutiny in a connected world’, held on 18 March 2016 at Parliament House Canberra to mark the 20th anniversary of the Joint Standing Committee on Treaties (JSCOT).

JSCOT is a cross-party, standing committee of parliament, usually with about 16 MPs as members, representing the Nationals, Liberals, Labor and Greens. (‘Standing’ means it continues to exist from one parliament to the next, whereas some committees are for the life only of the particular parliament).

Many people believe that there is a “democratic deficit” in the treaty making process (and in the deciding of other major “public” issues). The term describes a situation where governments and their institutions fail to follow democratic processes for taking decisions which affect the lives of their citizens.

The Australian Parliament has no role whatsoever in negotiating treaties, unlike the system operating in the USA. JSCOT’s involvement starts only once the executive has signed a treaty: JSCOT then scrutinises the details and prepares a report, usually bipartisan, with recommendations about the treaty or the process by which it was entered into. JSCOT’s role is purely advisory. Some contend that it is merely a rubber stamp, while others claim that the committee’s recommendations are taken into account.

The JSCOT reports and submissions received are certainly on the public record. However, it is rare for the terms of a signed treaty to be renegotiated along the lines recommended by a JSCOT report.

With trade treaties like the Trans Pacific Partnership (TPP) agreement, which would have a considerable impact on the Australian economy and on domestic law, many ask how JSCOT can possibly do its job of scrutinising a treaty simply on the basis of advice from the Department of Foreign Affairs and Trade (DFAT) and submissions from interested parties, without being informed by an independent cost benefit analysis or social and environmental impact studies. Critics point out that DFAT, which is responsible for negotiating the trade deals, has a vested interest in presenting a one-sided view to JSCOT.

The lack of independent input is of particular concern given the poor performance of several existing trade agreements. To take just one example, the Australia-US Free Trade Agreement has brought no economic benefit to Australia and has actually worsened our terms of trade with the US, despite copious promises about improved trade and economic growth made by the government of the time while the treaty was before JSCOT.

The lack of analysis and detailed information makes it difficult for JSCOT to do its job, and also prevents the public from uncovering the true implications of agreements such as the TPP, which involve changing the way Australian society operates from federal to local government level. Many say the TPP will impose some of the worst aspects of the American economy and society on to Australia for the financial benefit of large overseas corporations.

Governments have a point in claiming that the bottom line may need to be kept secret during negotiations, but there is no excuse for failing to inform the public about the full implications of an agreement such as the TPP once it has been signed. Former Trade Minister Andrew Robb simply dismissed criticism of the released TPP as coming from “the usual suspects,” or “the unions”, instead of engaging with substantive issues raised by stakeholders and commentators about why many aspects of the TPP would have a negative impact on our society.

Parliament must approve any new implementing legislation that’s needed, but there is nothing to stop other parts of treaties operating immediately…without obtaining a parliamentary mandate.

Who criticises themselves?

Minister Robb signed the TPP on 4 February in Auckland; he tabled it in parliament on 9 February along with the ‘national interest analysis’ (NIA) provided by DFAT. The ‘NIA’ was in fact no “analysis” at all – merely a summary of the treaty’s terms, prepared by DFAT, the department which did the negotiating. Of course one would expect the “analysis” to be highly favourable to those who did the deal (they would hardly be critical of themselves and their own performance!)

Despite some minor leaks, the core contents were unknown in Australia, other than to corporations, before 9 February. The real impacts of the TPP have never been tested in an election campaign – the Australian people have simply been told this is just another trade agreement, whereas it contains skilful societal engineering to shift power to the corporate sector over governments, and clauses and conditions which override Australia law to the benefit of foreign companies.

Without publicly scrutinising key terms and conditions and putting it to an election, the government does not have a mandate to implement the TPP.

During Q & A sessions at the anniversary seminar, I asked how JSCOT could do its work without the benefit of independent, cost benefit analyses together with impact statements for the environment, social policy, public services, etc.  The committee chair, Luke Hartsuyker, did not think a cost benefit analysis was essential as there were often unforeseen benefits to be had from trade agreements!  Kelvin Thomson, currently deputy chair, agreed with my point, which has been made in previous reports by JSCOT itself.

I further asked whether it was democratic for an Australian government to bind future governments through treaties which impose drastic changes to our domestic policy and legislation. Mr Hartsuyker was of the opinion that if future governments disagreed with the policy, they could simply cancel the treaty.

However, Ms Katrina Cooper, head of the legal division of DFAT, maintained that it was inappropriate for governments to withdraw from treaties once they are signed and counselled against any such action, which would be a blot on Australia’s international reputation.

One must conclude, therefore, that the intention of the public service, which has the carriage of treaty negotiations, is to bind the hands of future governments trying to legislate for the benefit of the community in line with their electoral mandates.

To summarise, the current process underway with the TPP is extremely undemocratic, on several counts.

  • Unlike in the US, our parliamentarians are not allowed access to the treaty text until the treaty has been signed and tabled.
  • The committee charged with scrutinising the treaty (JSCOT) has a weak evidence base because there is no cost benefit or other analysis to help with their deliberations. The much-vaunted, DFAT-engineered “national interest analysis” similarly lacks an evidence base.
  • Once the treaty is signed, there is still no public disclosure of treaty implications for Australia’s way of life, despite the many concerns which have been raised by the public.
  • The treaty will not be presented to the people at an election for endorsement.
  • It appears that the intention is to bind future governments to laws and policies which may not be on their party’s platform and for which they have no mandate, the alternative being to risk international condemnation for opting out of a ratified treaty.
  • The TPP treaty includes the notorious Investor State Dispute Settlement (ISDS) mechanism which for the first time will allow litigious US corporations to sue any level of Australian government for millions of dollars merely for passing legislation or adopting policies in the public interest, such as controlling pollution.
  • The mere presence of the ISDS clause will discourage governments from acting to protect the community

Many treaties in areas such as maritime boundaries, endangered species, armaments control and nuclear non-proliferation, etc may have few implications for domestic policy, but the current spurt of trade agreements involve radical changes to the way Australian society operates.

There appears to be a case for changing the process for such agreements so that governments require a full mandate from the public before they are signed and ratified.

There is no reason for ratifying a treaty – even if it has been signed off by the executive – unless it benefits Australia as a whole (rather than just sectional interests), and enjoys widespread public acceptance.

PS: Another bedrock issue touched on peripherally only during the JSCOT seminar was the question of whether the Australian Parliament should debate the nation’s going to war, which is another “democratic deficit” question. Most Australians are unaware that sending the nation to war, or into a warlike situation (Afghanistan, Syria, etc) is an executive decision only, and not subject to debate and ratification by the Australian Parliament.

* Pauline Westwood is a former policy officer with the Australian Public Service.

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