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Government Procurement Review (International Free Trade Agreements) Bill 2019

Cassy O'Connor MP  -  Thursday, 1 August 2019

Tags: Legislation, Trade, Government Procurement

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Deputy Speaker, I rise to make a contribution on the Government Procurement Review (International Free Trade Agreements) Bill 2019. I acknowledge that this legislation is part of model national law, if you like, that reflects that Australia has signed up to the Trans-Pacific Partnership which, as the Greens have long said, is highly problematic in our sovereignty and our capacity as a parliament to make decisions in the best interests of Tasmania and its people, and not be making decisions based on what corporations are entitled to demand under the Trans-Pacific Partnership. I also note that this legislation reflects that Australia has a signed free trade agreement with Singapore.

I have always taken the view that trade and good free trade agreements that do not prioritise corporate interests over the public interests are an important part of efforts toward global peace and cooperation. If we are trading with countries it means we are in dialogue with them, but it also means there is a somewhat symbiotic relationship between us and our trading partners. There is that level of needing each other, if you like, for trade, export and import imperatives.

This legislation establishes a domestic review mechanism through the Supreme Court of Tasmania. I am very interested to hear in the minister's response on the second reading what that means in practice. Australia is a signatory to the Trans-Pacific Partnership. How is that reflected in the procurement decisions government makes? What changes in our capacity as a sovereign state, on government's capacity, to procure based on the public interest, value for money, good policy? I read this legislation and it raises those pre-existing concerns about having an agreement, which sits over the Parliament of Tasmania, the executive and every government agency, that is likely to impact on the government's capacity to procure on the foundation of good policy.

We have, for example, a local procurement policy on the part of government today that the Liberals like to talk about as a good thing. It is a good thing if its delivering value for money in addition to supporting local jobs and local industries. How will this legislation intersect with those procurement policies, particularly that procurement policy directing government agencies to procure locally where they can? Can the minister update the House on how many government contracts have been tendered to local companies in the past year? This arrangement we are entering into potentially impacts on the capacity of government to exercise its purchasing power to procure locally when there is a threat that a corporation can take governments to the Supreme Court and challenge their procurement decisions. This is trading away our sovereignty, because we are establishing a mechanism for corporations to challenge government over its procurement decisions.

There is a question about what level of transparency there will be in relation to challenges, to government's procurement decisions and it will go through the Supreme Court. There is a range of mechanisms after it is taken to court by an agreed supplier that do not appear to have any measure of transparency related to them. The legislation provides that an agreed supplier must make a complaint to the accountable authority of a relevant government agency before it can make an application to the Supreme Court for a declaration. Where a complaint is received, the complaint must be investigated and the procurement suspended unless there is no public interest certificate in force. Could the minister explain the intersection between the public interest certificate -

Quorum formed.

Ms O'CONNOR - As I was saying before the quorum call, what is the intersection between the public interest certificate and this legislation? Could the minister flesh out what a public interest certificate is? Would you be able, in your second reading response, to provide more detail as to what a public interest certificate is for the purposes of this legislation and, following a determination where a public interest certificate is issued by an accountable authority, will that public interest certificate be made available in a public place? The question relates to what level of transparency there will be about what is contained in the public interest certificate and, once those certificates are issued, where they will be captured and available to the public? How, for example, does this legislation intersect with and potentially undermine Tasmania's moratorium on genetically modified organisms? It has always been a concern of ours in relation to the Trans-Pacific Partnership or any other trade agreement that a sovereign state can enact legislation, give effect to policy and then as a result of a free trade agreement, be undermined in its policy objective, which presumably a decent government is driving out of a desire to meet the public interest test.

We have a moratorium on genetically modified organisms in Tasmania which has long been criticised by the likes of Monsanto. We are seen as a hold-out on genetically modified organisms being able to be grown across the country and it is very important that we retain our moratorium on genetically modified organisms and in fact extend that moratorium and make it a ban. I understand that there are a range of organisms, if you like, that fall within a genetically modified framework and there are some advances in medicine and science as a result of genetic research that are positive. In the agricultural sector, however, having a moratorium or a ban on genetically modified crops or seeds gives Tasmania's producers a branding edge.

If nothing else, we would argue that it protects in many ways the integrity of the farming landscape in Tasmania, but we would like to have some clarity from the minister about her understanding of how the free trade agreements that we are discussing here today could potentially in future undermine Tasmania's commitment to being GM-free and how an entity like Monsanto can then use the provisions in this legislation which we are debating today to take the Tasmanian Government to court and to seek a determination which says under Australia's obligations under the free trade agreement Monsanto should be allowed to market its products in Tasmania and, if not, there will be compensation awarded. Of course the compensation, Madam Deputy Speaker, would come from the public purse.

This is the problem specifically with the Trans-Pacific Partnership. The problem is that it will create circumstances where governments avoid enacting legislation, giving effect to policy that is in the public interest, or in the environmental interest, or the state's economic interest, because they are fearful of exactly this scenario being played out in the courts and corporations taking the state of Tasmania into the Supreme Court and undermining the sovereignty of Tasmania -

Ms HADDAD - Point of order, Madam Deputy Speaker. I call your attention to the state of the House.

Ms O'CONNOR - A quorum is not required. Does the House get to say whether a quorum is required?

Ms Archer - They are only because they're not prepared to work so they just want to waste time doing quorum calls. Seriously! They have one member here and she calls a quorum. We have four Government members here.

Ms O'Connor - Well, they have had a very bad week so you can understand why they're playing around.

Ms Archer - I agree with you there, Ms O'Connor.

Madam DEPUTY SPEAKER - Quorum required.

Quorum formed.

Ms O'CONNOR - Before I was needlessly interrupted by my colleague, the member for Clark, Ms Haddad, I was making the point that there is a concern here that we are set to enact legislation which will be the final nail in the coffin of the sovereignty of Tasmania's parliament to give effect to legislation that is in Tasmania's interest, and the most relevant example that comes to mind is the moratorium which we rightly have in place on GM products in the agricultural sector.

Madam Deputy Speaker, if the minister could go to the situation where Monsanto decides that they are going to take down our GM moratorium, take the state of Tasmania into the Supreme Court and either seek a determination that removes Tasmania's right to have a moratorium or awards compensation out of the public purse, then we have a very serious problem as it relates to our sovereignty as a state. We are going to see situations where governments around the country - because this is legislation which is being introduced around the country - are averse to making legislative and policy decisions that they believe will be challenged in court by corporations under free trade agreements and specifically the Trans-Pacific Partnership and the Singapore-Australia Free Trade Agreement.

In order to be consistent with our position on the Trans-Pacific Partnership and the enormous sovereignty questions that it raises for parliaments and democracy, we will not be supporting this legislation. We cannot in all conscience support legislation that will make it easier for corporations to take the state of Tasmania to court, to undermine this parliament's sovereign powers and to award compensation out of public funds to corporations that want to undermine our sovereign authority to make laws and to deliver and give effect to policy in the public interest.

My questions to the minister specifically relate to the public interest certificate. What will be in it? Will those public interest certificates be made public? Does this legislation, as it appears to us and it is almost a rhetorical question, but can the minister confirm that this legislation gives corporations the power to undermine legislation in Tasmania, policy, the procurement of services and products by government? Can the minister foresee a scenario where an unscrupulous corporate player, like Monsanto will take the state of Tasmania into the Supreme Court in order to do away forever with our moratorium on genetically modified organisms?