Media Release: Professor Jane Kelsey
Monday, 24 October 2011

Leaked Text: Trade Deal Would Give Backdoor Effect to Shunned ACT Law

Another secret document from the Trans-Pacific Partnership (TPP) negotiations has been leaked, the first dealing with issues other than intellectual property and medicines.

This follows yesterday's leak of documents showing 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

“We warned the government that obsessive secrecy surrounding the TPPA negotiations would spawn more leaks, and that’s what is happening," said Professor Jane Kelsey, a critic of the proposed agreement.

The leaked regulatory coherence text sets out the agencies, mechanisms and processes that governments should use when deciding on domestic regulations. This has never been included in a free trade agreement before.

“It is totally inappropriate for a ‘trade’ agreement to dictate how governments should structure their domestic bureaucracy and procedures”, said Professor Kelsey.

Jane Kelsey rejects claims by defenders of the chapter that it simply reflects New Zealand’s process of regulatory impact assessments, overseen by the Treasury.

“Regulatory impact assessments and cost-benefit analyses are portrayed as objective and benign, but academic studies show they systematically privilege quantifiable economic considerations and interests. That bias is reinforced by the National-ACT policy ‘Better Regulation, Less Regulation’ released in August 2009.”

Kelsey says the real risks lie in the cross-fertilisation of these ‘regulatory disciplines’ with other TPPA chapters. The ‘transparency’ chapter would guarantee foreign investors input into New Zealand regulatory decisions, while the ‘investment’ chapter could allow foreign investors to sue the government in private offshore tribunals if it proceeded with new regulations that eroded the investment’s value or profitability.

“The TPPA would have the same effect as ACT’s controversial Regulatory Responsibility Bill through the backdoor. The Business Roundtable, ACT and fellow travellers have promoted the law unsuccessfully since the Richardson era in 1994. Yet another version is at select committee as part of the ACT/National coalition deal.”

“The way the TPPA is shaping up, large, mainly foreign corporations and powerful lobby groups will have the right to exert undue influence over New Zealand’s policy and regulatory decisions and demand minimalist regulation. There would be no equivalent rights to public interest groups that may have contrary views.”

“Given our recent experiences with Pike River, oil spills, leaky buildings, the last thing we need is to lock in this pro-corporate regulatory bias and rights to demand compensation for new regulation through a secretly negotiated ‘trade’ deal.”

“The ultimate irony is the regulatory coherence text would require the government to make public background documents and drafts of proposed new laws—something the TPPA negotiators steadfastly refuse to do!”, Jane Kelsey observed.

The leaked text on Regulatory Coherence is at http://www.citizenstrade.org/ctc/wpcontent/uploads/2011/10/TransPacificRegulatoryCoherence.pdf; analysis by Jane Kelsey is here http://web.me.com/jane_kelsey/Jane/TPPA.html

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