Jane Kelsey: Continued imbalance of TPPA information indefensible – Government needs to release the text and documentation now

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TPPA Protest - image courtesy of Waatea News.

Source: Professor Jane Kelsey.

Twenty four hours after the ministerial meeting concluded more details of the final Trans-Pacific Partnership Agreement (TPPA) are emerging. But the New Zealand Government will not make the agreement’s text available for scrutiny for at least another month.

Professor Jane Kelsey.
Professor Jane Kelsey.

In a statement issued overnight Auckland University Professor Jane Kelsey said: “We face a situation where the government has access to the full text, and those of us who have been critical of the agreement have to rely on information we can secure from offshore to cross-check the government’s spin. The idea we must wait for at least another month before we can fully test the government’s claims makes informed democratic debate impossible.”

Professor Kelsey said: “The government needs to take the initiative and release the text and supporting documents now so we can all conduct the necessary in depth analyses.”

For example, the government has confirmed that the concrete economic gains it anticipates from the deal is just $259 million a year when fully implemented, which can take at least another 15 years. That gets inflated to $2.7 billion a year by 2030, presumably based on modelling various ‘dynamic effects’ and other speculated and intangible benefits. 

“This kind of modelling is notoriously problematic,” says Professor Kelsey.

The Sustainability Council showed the methodology used in the Peterson Institute study that the government has previously relied on was deeply flawed. They also fail to address the kind of costs that the Australian Productivity Commission considers must be factored into a comprehensive cost benefit analysis, and which make it higlhy sceptical of such agreements. That reinforces the need for a genuinely independent cost-benefit analysis.

Minister Groser has previously refused to release any such studies or cost-benefit analyses requested under the Official Information Act.

Professor Kelsey observes that the lack of any formal text has also created confusion over crucial public health issues. Further information about the wording Australia won on biologics (not itself formally released) confirms the Minister’s view that New Zealand’s current system of 5 years data protection plus additional processing time should satisfy  its terms.

It remains to be seen whether the US Congress and Big Pharma will contest that during the US legislative process and through certification, especially as USTR Froman said the goal was to have a comparable outcome from the two options on biologics – the second being a monopoly for 5+3 years.

New Zealand’s patent laws also apparently meet the final threshold set in the intellectual property chapter. While the transparency annex affecting Pharmac’s processes is problematic, it is not directly enforceable. 

“All that is good news for New Zealanders, although not some other TPPA countries. It will be a massive relief to the public health community and patients, although we still need to know the areas where the Minister says some additional expense will be incurred.”

However, other barriers to health policy remain, especially with investor-state dispute settlement.  Even the weak public health exception does not apply to the investment chapter, and the tobacco exception appears to apply on a case-by-case basis only to certain kinds of investment claims, if a government chooses to invoke it, and not to the whole agreement.

Professor Kelsey paid tribute to the pressure brought by doctors, the Australian government’s determination to fight on biologics, and New Zealand’s intellectual property negotiators.

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Selwyn Manning, BCS (Hons.) MCS (Hons.) is an investigative political journalist with 23 years media experience. He specializes in reportage and analysis of socioeconomics, politics, foreign affairs, and security/intelligence issues. Selwyn has extensive experience as a commentator and has provided live political analysis to a wide range of television and radio organizations broadcasting in New Zealand, Australia and globally including the BBC (Five Live, London) and BBC (World Service). He is currently a correspondent to Australia's FiveAA radio, and is a regular live-on-air panelist on Radio New Zealand's The Panel with broadcaster Jim Mora.

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