TPPA Select Committee Presentation

I presented these notes to the Foreign Affairs, Defence, and Trade select committee in the Christchurch City Council chambers from 14:55-15:05 on 31 March 2016.

Update 2016-05-13 - my original presentation and subsequent questions were recorded and published on SoundCloud by representatives of "It's Our Future".

Introduction

First, I would like to thank you all for making a special trip to Christchurch to hear many of us, your constituents.

To introduce myself: I am a naturalised New Zealander who was born and raised in the US. I came to NZ 20 years ago to work as a research scientist for a New Zealand Crown Research Institute.

4 years later I started my own business providing IT and software development services locally and abroad from Christchurch. We ran for 14 years until we were acquired by a larger NZ-based IT company three years ago. We were responsible for several high-profile government IT projects including the CERA website.

Today I work for an international charitable foundation based in Dunedin, focused on democratising tertiary education and making it available to the masses at no cost via the Internet.

I am a member of several national professional organisations, am on the board of one national charitable organisation, and am president of another. Today, however, I am here representing myself and my family.

I consider New Zealand agreeing to be party to the Trans-Pacific Partnership Agreement extremely ill advised.

The things the Agreement says are problematic on many levels - other presenters will have covered the details. But I'm not going to focus on what the document says, because that's largely irrelevant.

I will focus instead on three things the TPPA represents:

1. an impediment to our progress as a sovereign nation impeding our right to legislate,

2. a demotion of nation states and their institutions in favour of megacorporations, and

3. an implicit constitutional change without democratic scrutiny or proper process.

1. Impenetrable thicket of words impeding our sovereign rights

As I'm sure you know, the TPPA consists of 6000 pages of legalese. 25 of its 30 chapters are about new prescriptive trade and process restrictions rather than their removal. This is precisely the opposite of free trade.

Nonetheless, the current Government has consistently misrepresented the TPPA as a "Free Trade Agreement", even after the US joined, and it has become an increasingly farcical, disingenuous pretence.

When the US joined, the text was re-written by 600 lobbyists and lawyers employed by multinational listed corporations, or "mega-corps". It would be deeply naïve to suggest the agreement does not favour their interests. Nobel Prize-winning economist Joseph Stiglitz has this to say about the TPPA's FTA status:

"It should surprise no one that America’s international agreements produce managed rather than free trade. That is what happens when the policymaking process is closed to non-business stakeholders"

Here's the clever and diabolical bit that I haven't heard any other pundits mention: the TPPA's authors realised that it doesn't actually matter what concessions individual negotiators made - the precise wording is, in fact, an irrelvant distraction. The purpose of the agreement is to be an impenetrable thicket of words surrounded by suitable context and a binding contract. In other words, the natural habitat of a corporate litigation lawyer.

So the lawyers now have 6000 pages of words which constrain commercial and non-commercial interactions between TPPA signatories, governments, businesses, and citizens, and enhance the tools available to megacorps at the expense of the sovereign nations. Each word on those 6000 pages will be subject to legal opinion and will constrain the sovereignty of any signatory pending legal analysis, most of which will be contentious until it is tested in the courts... Anything contentious creates risk and liability.

As I mentioned earlier, I have worked closely with government agencies in NZ. I have direct insight into the risk aversion of NZ politicians and government officials in general. The risk of creating legislation which even might contravene the rights of corporations as described in the TPPA will probably, in practice, be sufficient to mire lawmakers in legal muck and politicians in uncertainty. We've already seen this in action, with NZ's decision several years ago to further delay the long overdue review of the Copyright Act until after the TPPA was signed.

2. Demotion of nation states in favour of megacorps

The ISDS provisions described in the TPPA allows the agreement's corporate authors to hold sovereign governments to account for any perceived breaches of those 6000 pages of legal prescription.

As you are no doubt aware, ISDS is not a normal court, run by a nation state. No. It is outside all national legal jurisdictions, will be tried by arbiters - mostly corporate lawyers likely to have conflicts of interest - with no jury and no public scrutiny (yes, in secret) and their decisions are binding. There is no right of appeal. ISDS is designed to benefit megacorps and their shareholders, at the expense of member nations and their citizens. Megacorps justify this demand by raising concerns about dodgy judicial systems in developing countries. Given that our legal system is at least as stable as that of the US, how does that apply to NZ?  European governments have rejected ISDS provisions in the Atlantic twin of the TPPA, the TTIP. Why did our government accept such imbalanced terms?

Stiglitz has this to say about ISDS:

"International corporate interests tout ISDS as necessary to protect property rights where the rule of law and credible courts are lacking. But that argument is nonsense. The US is seeking the same mechanism in a similar mega-deal with the European Union, the Transatlantic Trade and Investment Partnership, even though there is little question about the quality of Europe’s legal and judicial systems."

3. Deplorable process altering our constitution and undermining democracy

Our government was adamant that the text of the TPPA could legitimately be kept secret from the citizens over whose lives it will cast a long shadow. At the same time, they seemed to see no inconsistency in the fact that that a bunch of megacorp staff and consultants were not only intimately familiar with the text, but they wrote it. Perpetuating this sort of inequity has become a hallmark of the current administration.

As a Cantabrian, I know how fragile democracy is. Transparency is a fundamental requirement. The TPPA process was fundamentally anti-transparent, and therefore anti-democratic. In NZ, the government did not at any time speak out against the secrecy of the process, and in fact defended it on every occasion it was questioned, inaccurately asserting that such secrecy was "routine". I consider this government position to be nothing short of traitorous - at the very least, it poses serious challenges our constitutional practice given that the other implications of the TPPA amount to constitutional changes. Seems to me that our politicians need to be reminded for whom they work.

The most damning aspect of the entire TPPA process is that, until after it was signed, the only reliable source of information was Wikileaks. The Prime Minister and Trade Minister then, without irony, had the gall to label those protesting the Government's unwavering support for the agreement as ignorant.

In Summary

Yes, the wording of the TPPA is pretty damning in many areas, particularly related to medical patents, copyright term extension, Technical Protection Measures (which means "protecting corporate interests from society"), but the specific terms of the TPPA are a distraction.

The problem is not what the TPPA says, it is what it is - a 6000 page document which constrains trade and international interaction, rather than freeing it. Each word in those 6000 pages is subject to interpretation and will need to be clarified by costly legal review, and contested in the courts, probably the extra jurisdictional, secret ISDS courts.

For all practical purposes, the TPPA puts the rights of megacorps ahead of those of nation states and their citizens. Perpetual litigation is business as usual for them. We all know that megacorps can easily outgun individual nation states with regard to legal representation. In the recent case between Apple corporation and the US Government regarding iPhone encryption, a widely broadcast tweet from Edward Snowden rightly proclaimed

"Today I learned that #Apple has way better lawyers than the DOJ."

The predicted benefits touted for the TPPA are, at best, marginal, and to the extent that they are positive, only large business in any participating country will benefit directly. To suggest that the TPPA is beneficial to citizens is farcical, as it implicitly requires faith in "Trickle Down" economics which today should be regarded with the same complete contempt as those who promote the medicinal value of homeopathic remedies.

The anti-democratic secrecy of the negotiations is the most fundamentally damaging aspect of the TPPA. That the US demanded it, at the behest of corporate lobbyists, and that the National Party accepted that demand and even defended it to the hilt, is a breach of faith between the TPPA supporters in our government and the people of this country.

These implications of the TPPA amount to profound changes to NZ's constitution. They have not undergone proper scrutiny, and fail the democracy test.


Reflections

The committee members in attendance were Mark Mitchell (Chairperson - National Party, Rodney), Dr Shane Reti (Deputy Chairperson - National Party, Whangarei), David Bennett (National Party, Hamilton East), Dr Kennedy Graham (Green Party, List), Fletcher Tabuteau (NZ First, List), Lindsay Tisch (National Party, Waikato), David Shearer (Labour Party, Mt Albert), and one other from National, whose name I couldn't read, presumably either Jami-Lee Ross (National Party, Botany) or Dr Jian Yang (National Party, List). Absent were Hon Phil Goff (Labour Party, Mt Roskill) and either Jami-Lee Ross or Dr Jian Yang.

My comment on the government's support for the secrecy of the TPPA negotiations and text being "traitorous" got a rise (literally) from both David Bennett and one of the other Nat'l MPs next to him and requests for censure and questions of decorum. It confirms that they were listening, for which I thank them.

On finishing, I had questions asked of me by both David Shearer and Kennedy Graham regarding the question of constitutional change. Many thanks to them both for seeking clarification, and to Mark Mitchell for providing a fair and supportive atmosphere. 

Also, word to the wise, even though it's not obviously stated anywhere via signage, taking photos in the session is not allowed.

Thanks to those in the gallery for their frequent and positive support for my statements.