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The TPPA’s Dirty Little Secret: How US could write NZ’s Laws

Press release

Strictly embargoed until 05.00 13 August 2014

( the website does not come live until the embargo is lifted)

The TPPA’s Dirty Little Secret: How the US could write NZ’s laws

A new website launched today (http://tppnocertification.org/) has exposed what University of Auckland law professor Jane Kelsey calls ‘the dirty little secret of the TPPA’.

‘Behind the seemingly benign term “certification” hides an extraordinary power that the US is expected to assert if the Trans-Pacific Partnership Agreement (TPPA) is concluded’.

‘Effectively, the US claims the right to decide what a country’s obligations are under a trade and investment agreement and refuses to bring the agreement into force in relation to that country until it has changed its laws, regulations and administrative processes to fit the US interpretation’, Professor Kelsey explained.

Statements from members of US Congress and the US Trade Representative (USTR) suggest prime targets for New Zealand would be our copyright and patent laws, the foreign investment vetting regime, the procedures by which Pharmac operates, and Fonterra’s ‘anti-competitive monopoly’.

‘The other eleven governments are aware of the certification process and many are concerned. But no one has told the public how the US can effectively redraft our laws.’

Professor Kelsey has co-authored a memorandum that draws on the experience of countries that have been subjected to the US certification process in recent years.

It reveals how US officials have been directly involved in drafting other countries’ relevant laws and regulations to ensure they satisfy US demands. This includes reviewing, amending and approving proposed laws before they are presented to the other country’s legislature. The USTR even demanded that Guatemala implement new pharmaceutical laws that were not in the formal text, and which the government had strenuously resisted during the negotiations.

Communications within the Office of the USTR on the Peru US Free Trade Agreement were secured under the US Freedom of Information Act and show how brutal the US can be: ‘We [USTR] have to redraft the regs and the law – Peru needs to accept them without changes’.

Similar communications might never be released under New Zealand’s Official Information Act, because they involveinformation entrusted to the government in confidence from another government.

‘In other words New Zealanders, including MPs, might never know that the US was involved in writing our laws and demanding the right to sign them off even before Parliament gets to see them’, Professor Kelsey warned.

‘Everyone knows the US is driving the TPPA. But agreeing to a final text, in the knowledge that the US will then play the certification card, would mean conceding the right of US officials to oversee the making of New Zealand’s laws and regulations.’


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