Black Friday as Senate passes FTA

Bob Briton

For those who are superstitious it would have been important to 
note that August 13 was a Black Friday. As Greens Senator Bob 
Brown pointed out, this time it truly was an inauspicious day for 
the country. "What a black day for democracy this is, what a 
black day for Australia's sovereignty this is", he said.

On that day the Senate — the upper house of what passes for our 
highest "democratic" institution — passed enabling legislation 
for the Australia/US Free Trade Agreement (FTA) by a margin of 51 
to 10. In spite of widespread opposition among the Australian 
people, despite the already known grave consequences for people 
dependent for their livelihoods on threatened industries and 
despite the conflicting stories from official sources about the 
alleged "benefits" of the pact, the major parties in Australian 
politics co-operated to usher in a perilous new era in the 
relationship with the US.

The end game of the "debate" between the parliamentary Coalition 
and Labor parties was symbolic of the FTA's whole shameful 
gestation. Before the Parliament dispersed for its last recess, 
the ALP took the unusual step of voting for the enabling 
legislation in the House of Representatives while saying that it 
would wait for the report of a Senate Committee before voting one 
way or the other in the upper house.

Given that the Committee was dominated by members of the major 
parties, it was not surprising that the panel determined that the 
FTA was, indeed, in the "national interest". The report did, 
however, prick the balloon of hype built up by the PM and Trade 
Minister Mark Vaile with their oft-repeated claims of a $6 
billion boost to the Australian economy and 30,000 new jobs. In 
the end, the Committee estimated that there would only be $53 
million-worth of dubious benefits to Australia flowing from the 
FTA.

The final act of the play had Mark Latham apparently holding out 
for greater guarantees for Australian content on TV and 
safeguards for the Pharmaceutical Benefits Scheme (PBS). With the 
help of the mainstream media, the many other serious objections 
to the FTA were simply passed over.

It was treated as purely an economic agreement, ignoring the many 
other far more negative aspects such as the loss of sovereignty, 
the lifting of restrictions on foreign (US) investment, the 
impact it will have on education and health services (not just 
PBS), dangers posed by changes to customs, labelling of GM 
products and many other areas that could have serious 
consequences for health and safety and the environment.

The Government quickly accepted the first-mentioned Labor 
amendment. Howard and Co. then went through the motions of 
resisting the move to introduce penalties for drug companies 
lodging bogus patent applications aimed at preventing the early 
introduction of cheaper generic medicines onto the market and 
onto the PBS — the so-called "ever-greening" of patents by 
corporations with lots of money to spend in the courts.

Howard raised a number of obscure defences against Labor's 
remaining objection to the enabling legislation — including a 
claim that the changes would actually weaken Australia's patent 
laws — before accepting the amendment. After the Black Friday 
vote in the Senate, Howard was still trying to maintain the 
fiction of a great "ideological divide" over the issue and that 
he had accepted the "needless" amendments in the interests of 
attaining the greater good wrapped up in the FTA: "I want this 
parliament to understand and the Australian public to understand 
that, if a difficulty does arise in the future, it will be 100 
per cent upon the heads of the Australian Labor Party."

Regrettably there was no such "ideological divide" between 
Liberal and Labor leaders — both firmly were committed to the 
FTA all along.

So ended the "troubled" journey of the FTA enabling legislation 
through the Australian Parliament. It was a triumph of the art of 
building a public spectacle around a deal already done in secret.

Democrats Senator Aden Ridgeway made the point about the damage 
to the democratic process and national sovereignty: "I think 
people ought to understand and be very clear that what we've done 
is created a situation where public policy would be dealt with in 
a private rather than a public way. It has made our policies 
subordinate to the text of the free trade agreement and it's 
certainly, I think, given a foot in the door for many US 
corporations in respect of this issue."

And when the actions of an Australian government (at any level) 
are not to the liking of those corporations, it will not be the 
Australian courts and Australian law that settle the matter. The 
FTA is beyond Australian law, its application and interpretation 
will be beyond the control of Australia. Australian law must 
comply with the FTA.

The behaviour of Opposition Leader Mark Latham last week only 
served to highlight the nature of the sell-out of our already 
limited sovereignty. Incredibly, Mr Latham admitted that he had 
discussed the Labor amendments with the US embassy and the US 
Trade Office and gained US approval before presenting them to 
Parliament. For his part, the PM has consistently warned that the 
US must "certify" that Australia's enabling legislation reflects 
the spirit and the letter of the deal and that the US may simply 
walk away from it.

When it comes to the FTA with the US, Australia has been put in 
the same unenviable position that East Timor occupies in its 
dealings with likes of Alexander Downer — with one very 
important distinction. While East Timor is standing up to recover 
control of its oil resources and has a history of struggle for 
independence, "our" government has gladly handed over Australia's 
sovereignty on a platter.

As for the supposedly contentious amendment regarding "dodgy" 
patent applications, it is unlikely that it will cause too much 
grief on the US side. The huge and highly profitable 
pharmaceutical companies will remain well pleased that the FTA 
still acknowledges "the important role played by innovative 
pharmaceutical products in delivering high quality health care" 
and "the importance of R&D in the pharmaceutical industry and of 
appropriate government support, including through intellectual 
property protection" (Annex 2-C)

John Howard is the probably most open and certainly the most 
important of the Liberal Party advocates of US transnationals in 
the Australian Parliament and, as such, he squawked the loudest 
about the Labor gesture, making reference to the interests of the 
pharmaceutical transnationals. And while the companies 
represented by the Pharmaceutical Research and Manufacturers of 
America would still like to destroy the PBS and remove its appeal 
as a model for other communities in the US or elsewhere, the 
amendments should not cause too much grief to those overall 
plans.

As Mark Davis pointed out in The Australian Financial Review 
last week: "There is a good argument that Labor's penalty 
regime is only window dressing. Patent lawyers point out that it 
would be very unlikely that any drug company taking court action 
to assert its patent rights against a generic competitor would 
actually fall foul of the new Labor rules."

In the very unlikely event that a US corporation were ever fined 
under the legislation the possible fine would be peanuts to a big 
pharmaceutical corporation.

The FTA is now due to come into force on January 1 next year. The 
real job of safeguarding the sovereignty and achievements of the 
Australian people will only begin in earnest when the job of 
building a new people's government is put on the political 
agenda. It's time to get busy with that end in mind.