Malcolm Forbes

MULTINATIONAL tobacco company Philip Morris is currently suing the Australian Government over its plain packaging laws, using a trade agreement between Australia and Hong Kong, signed in 1993.

How did we get to a point where effective public health measures, such as plain packaging, can be challenged by tobacco companies using trade agreements?

Free trade agreements (FTAs) include two or more countries and aim to reduce trade barriers, such as tariffs and import quotas, and to foster increased trade.

Australia has an expanding network of FTAs. There are nine bilateral FTAs in existence, including an FTA with South Korea and an Economic Partnership Agreement (a form of FTA) with Japan, which were both signed this year. The G20 meeting in Brisbane has highlighted Australia’s current FTA negotiations, including with China, as well as Indonesia and India, and four larger regional FTAs involving multiple countries.

One of these regional FTAs is the Trans-Pacific Partnership (TPP). This agreement includes 12 countries that form the Pacific Rim, including Australia, New Zealand, Canada and the US as well as smaller economies including Vietnam and Brunei. Negotiations surrounding this agreement are conducted in confidence and more than half of Australians have not even heard of the agreement. Much of what is known is through leaked chapters of agreement negotiations that are set to conclude imminently.

While the economic benefits of the TPP are significant, a number of concerns relating to the public health of Australians and our regional neighbours have been raised. Specific concerns include the extension of patents for drugs, potential for interference with the operation of the Pharmaceutical Benefits Scheme (PBS) and the inclusion of provisions that could give foreign corporations rights to challenge domestic public health policies.

Concern has been raised in Australia by peak health bodies including the AMA. This sentiment has been echoed in New Zealand, with 60 health academics and practitioners writing an open letter to the New Zealand Health Minister in December 2013 urging him to reject any proposals within TPP negotiations that would require changes to existing law, policy or practice, or threaten New Zealand’s ability to respond to new public health challenges.

The Australian Government has attempted to allay the concerns that have been raised by providing explicit assurances that there will be no changes to the PBS and the cost of medicine will not rise.

However, the existence of investor-state dispute settlement (ISDS) in draft chapters of the TPP raises concerns about whether the government will be able to meet these assurances in the long-term. ISDS provisions give foreign companies the ability to take governments to an international tribunal if they believe there has been a breach to a trade agreement. Historically, the aim of these provisions was to provide assurances to companies when they are investing in developing countries without a robust legal system. However, increasingly, they are being used by large corporations as a legal recourse to promote profitability of foreign corporations in developed countries.

The previous Labor government had a policy against including ISDS provisions in trade agreements. However, this ban has been overturned by the current Coalition government, and ISDS provisions were recently included in a trade agreement with Korea. High-profile individuals, including economist and Nobel laureate Joseph Stiglitz and the Chief Justice of the High Court of Australia Robert French, have publicly voiced their concerns about these provisions.

While much is yet to be known about the TPP, Australians should be cautious about what government officials are negotiating for them behind closed doors.

Health professionals mustn’t sit idly by while Australia’s future health is potentially traded away. Along with the Australian public, we must continue to demand greater transparency in trade negotiations to protect public health.

Dr Malcolm Forbes is a medical registrar, NHMRC postgraduate scholar and adjunct lecturer in the College of Medicine and Dentistry, James Cook University, and recently completed a research fellowship at the World Trade Organization Public Forum in Geneva, Switzerland, through Global Voices.
Dr Harris Eyre, currently studying as a Fulbright Scholar at the University of California Los Angeles, is a psychiatry registrar undertaking a PhD through the University of Adelaide. His aim is to establish collaborations between the USA and his home country of Australia.