While opponents of the Trans-Pacific Partnership Agreement (TPPA) will welcome its likely demise, we would prefer our governments had rejected the deal as bad for their peoples. Instead, it is likely to be sunk by a new US president whose racism, sexism, tax avoidance and defence of fossil fuels are anathema and will be a barrier to achieving progressive alternatives.  

Behind that vote is a backlash against these kinds of deals from ordinary people who feel alienated and disempowered, just as we saw with Brexit. That aspect of the Trump victory needs to be listened to by our government and others who have pushed the TPPA and similar deals, including the ongoing negotiations for the Trade in Services Agreement (TiSA).

Clearly the Prime Minister has been talking to people in Washington and has written off the prospects of the TPPA happening “in the short term”. 

This was not how it was meant to play out. The Obama administration had everything ready to roll to put the implementing legislation for the TPPA to a vote in the next few weeks during the lame duck period of Congress, and seemed unconcerned that passing such a momentous law by one or two votes in the current climate would further undermine the legitimacy of such deals.

It is still possible they would try. But to do so in the face of the landslide vote for Trump, and for enough Republicans to endorse the legislation, would be hugely provocative when the talk is of healing and unity.

Even if Congress did pass the legislation there are further steps in the ratification process before the TPPA could come into force and those would require Trump’s willingness to proceed.

All the other participating countries, except New Zealand and Japan, have waited to see what happened in the US before adopting their own implementing legislation. The lower house of the Japanese Diet is about to vote, but the bill still has to go through the upper house.

Here, the National government cast prudence aside and pushed through the implementing legislation, which may have its final reading in Parliament today. 

I presume it has also been making invisible changes to policies, practices and administration, for example for Pharmac, that don’t require legislation. We know that US officials have been telling our government what they consider we need to do.

For our government pass the legislation and make other changes, when no other TPPA country has done so, makes New Zealand look out of touch and desperate. Given the Prime Minister’s concession, the government should withdraw the legislation and reverse all the other changes it has been making to implement a deal that is unlikely come into force. It is time we took on board the message from the US and UK, and had a real debate about the kinds of international agreements that are genuinely good for our future.

She said the Trans Pacific Partnership Agreement has impacted on New Zealand’s democratic process and an abuse of the legislative process has been in evidence “from day one”. 

According to Professor Kelsey the abuse has continued with a “pathetic report released by the Foreign Affairs Defence and Trade committee yesterday”.

“Other countries are confronting the democratic deficit surrounding such negotiations and reviewing how governments can better respond to people’s legitimate concerns. In New Zealand, there has been an unprecedented groundswell of criticism of the TPPA from health professionals and economists, from Maori, unions and the tech industry. The government has treated them all with contempt,” she said.

Professor Kelsey described the select committee process as ‘a total farce’. The report was written while submissions were still being heard, after the government fast forwarded the report date by three weeks. The reasons were never explained, but were likely intended to pressure the Waitangi Tribunal in writing their report on the TPPA, which is now scheduled for release later today.

Kelsey said the government majority on the committee ‘might as well have not bothered attending the hearings. Their contribution is a truncated version of MFAT’s patsy National Interest Analysis tabled in Parliament and which forms the bulk of the report.’

All the opposition parties criticised the secrecy of negotiations and truncated committee process.

Labour has said they will vote against ratifying the TPPA ‘as it stands’. But their minority report addresses only two narrow issues: foreclosing the right to ban foreign purchasers of residential housing and the economic modelling. Anything that was critical of previous agreements that Labour negotiated was ignored, including investor-state dispute settlement (ISDS), despite clear evidence that is highly problematic.

Both the Greens and New Zealand First go deeper, with the Greens proposing some interesting ideas about processes for future agreements.

But Professor Kelsey insists that ‘ad hoc changes are not enough. We desperately need an independent inquiry into the treaty-making process that is freed from the overpowering influence of the Ministry of Foreign Affairs and Trade’.

‘”This is urgent. The government is currently engaged in three other major negotiations that are being conducted under the same shroud of secrecy and have potentially far-reaching consequences – including a round of negotiations for the 16-country Regional Comprehensive Economic Partnership in mid-June in Auckland for which no information is about engagement is yet available,” Professor Kelsey said.

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The US Trade Representative Michael Froman has revealed his office is sending teams of officials to the other the Trans-Pacific Partnership Agreement (TPPA) countries, including New Zealand, to vet their implementation of the intellectual property chapter and other parts of the agreement.[1]

‘ “Implementation” is code for the US making sure it gets what it wants, backed by its power to veto the TPPA’s entry into force if it doesn’t’,  said Auckland University law professor Jane Kelsey.

‘This is an outrageous assault on the sovereign right of nations to decide their own laws without interference from other states.’

‘The US is notorious for rewriting the script after negotiations are ‘concluded’ to secure their version of the text when other countries insist they have done what is required.[2]

‘This will come in two stages’, Professor Kelsey explained.  ‘The first we are seeing now. The US says “we can’t possibly get this to the floor of Congress without these changes to what you are doing”.’

‘If Congress votes in favour of its implementing legislation – which at present can’t be assumed – the US comes back again and says “we won’t certify you have complied with your obligations until you do these additional things”.’ The TPPA can’t come into force without US certification.

The USTR is currently trying to ‘fix’ problems that mean the TPPA doesn’t have support in Congress. Froman cites intellectual property as a major point of discussion with other governments, making particular mention of New Zealand’s proposed legislation on patent term extensions.

Ominously, Republican chair of the Senate Finance Committee Orrin Hatch, who decides if and when implementing legislation proceeds, has hardened his stance on monopoly rights for biologics medicines. He announced today that 8 years’ is not enough. He requires 12.[3] But the New Zealand government says the TPPA lets us keep our current 5 years plus some process delays.

Professor Kelsey asked ‘how will we know what pressure the US is bringing to bear on our government and whether it will stand up against US threats when that could sink the deal for New Zealand?’

‘I strongly suspect these fixes will involve administrative measures, not legislation, so there will be no public process even after the fact,’ Professor Kelsey said.

She noted the select committee process was over, based on the existing text. ‘The government must be up front about what the US officials will be doing here and release full documentation of their demands and the government’s response for analysis and debate before any further commitments are made.’ 

[1] ‘Froman: U.S. Sending Out TPP Implementation Teams, Undecided on Fixes’, Inside US Trade, 18 April 2016

[2] See www.tppnocertification.org

[3] ‘Sen Hatch Stands Firm on Biologics’, Washington Trade Daily, 20 April 2016

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A ‘Give-A-Little’ page http://givealittle.co.nz/cause/tppnosecrecy has been established for donations to support the urgent challenge to the Trade Minister’s refusal to release official documents on the Trans-Pacific Partnership Agreement (TPPA) negotiations.

The proceedings were lodged in the High Court in Wellington on 5 August, asking for the case to be accorded urgency.

The Court is being asked to declare that the Minister got the law wrong and should release some or all the information asked for, including draft texts.

This application for judicial review is being brought in the names of Consumer NZ, Ngati Kahungunu, Oxfam, Greenpeace, Association of Salaried Medical Specialists, New Zealand Nurses Organisation, the Tertiary Education Union, and Professor Kelsey who made the original request.

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‘Angeline Greensill is of Tainui, Ngati Porou, and Ngati Paniora descent, born in the late 1940s in Kirikiriroa (Hamilton) and raised at Te Kopua (Raglan), Whaingaroa on the turangawaewae of Tainui o Tainui ki Whaingaroa.’ (Ref. Wikipedia) —