The negotiation around a trade agreement which one Australian academic has said could lead to significant damages and the seizure of servers and equipment used in online copyright infringement, has been more transparent than other trade negotiations, according to officials from the Department of Foreign Affairs and Trade.
The Trans-Pacific Partnertship (TPP) agreement is a currently being negotiated between Australia, the US, Canada, Japan, Mexico, Peru, Vietnam, Malaysia, Brunei, Chile, New Zealand, and Singapore, aimed at simplifying trade between the 12 nations.
The negotiations have been held confidential, and text of the agreement has not been made public. DFAT trade negotiation official Elisabeth Bowes said in Senate Estimates yesterday that it is standard practice for international agreements to be negotiated in private with the text not made public until the agreement has been finalised.
However, last week, an August draft of the text of one of the most controversial and still-outstanding chapters of the agreement, the intellectual property chapter, was leaked by whistleblowing website Wikileaks.
An in-depth analysis of the draft text by University of Sydney associate professor of law, Kimberlee Weatherall, pointed out that the text would criminalise taking trade secrets, raise the damages awarded for copyright infringement, increase the liability placed on ISPs and websites for copyright infringement, and allow for the seizing of servers or laptops that were ever used for copyright infringement.
Bowes claimed in the estimates hearing that in particular, for the issue of copyright, the TPP agreement would be consistent with current law.
"We're not looking at anything that would go beyond our existing policy settings, particularly on issues such as copyright. We're looking at working within our domestic policy settings."
But in her analysis, Weatherall highlighted that while the text may still be consistent with Australian law, as DFAT officials have repeatedly stressed, many of the provisions in the text are untested in Australian courts.
"The mere fact that provisions are consistent with Australian law does not mean they should be in a treaty. Many of the provisions I am talking about are untested in the courts, and as such might be things we want to change one day," she said.
"The position taken here is that Australia should, at the very least, avoid adding to its international obligations, rather than simply seeking not to change Australian domestic law."
Weatherall said that the language in the text was much more like prescriptive legislation rather than high-level language commonly used for treaties, and it could make it difficult for countries to determine their own methods of conforming to the treaty, particularly around issues such as damages for copyright infringement.
While DFAT refused to comment on the leaked text yesterday, the secrecy surrounding the agreement came under sharp focus during the Estimates hearing yesterday, with Labor's shadow spokesperson for trade Penny Wong pointing out that keeping the text private would mean that Australians would not get the chance to challenge the agreement until it was too late.
"The challenge with that is that at that point, it is already signed," she said.
Greens senator Peter Whish-Wilson, who attended a private briefing with TPP negotiators in Sydney several weeks ago, said that keeping the agreement private gave the impression that corporate interests dominated the negotiations.
"It creates this perception that it's corporations that are dictating the agenda in these trade deals," he said.
Bowes said that the parliament and the public would get the opportunity to scrutinise the text of the deal when it is tabled in parliament as part of the Joint Standing Committee on Treaties process that requires the parliament to approve a treaty before it is ratified.
Bowes argued that through the off-the-record consultations with stakeholders held throughout the negotiation period, the TPP negotiations have been transparent.
"The level of transparency which the negotiation partners have aspired to, the Australian government has been leading the way," she said.
"We're really making a large effort to ensure stakeholders are informed."
Officials from the nations involved have this week met in Salt Lake City to hammer out some of the final outstanding chapters of the agreement ahead of a meeting of the relevant trade ministers to be held between December 7 and December 9 where the aim is that the agreement will be finalised.
The tight deadline on getting outstanding issues resolved could see Australia ultimately agree to a number of provisions in the treaty it is currently opposed to, in order to get access to the other markets for Australian industries such as agriculture. Bowes said that the decision on whether to sign the TPP agreement would ultimately be decided on the "overall balance of the package."