Scoop | 1 July 2022
Government : Cut the spin and give a truthful assessment of the EU deal
by Professor Jane Kelsey
“When will governments and trade negotiators realise they have more credibility if they tell the truth about free trade agreements (FTA) like the new deal with the European Union (EU), instead of their fancifully positive spin ?”, asks Jane Kelsey, Professor Emeritus of law at the University of Auckland.
The business community has quickly debunked claims of a bonanza from market access to the European Union and highlighted the potentially huge impacts of geographic indications, which will flow onto the United Kingdom under the FTA with them.
But Dr Kelsey points out there is much more at stake here than just agriculture, with several chapters seeming to impose greater restrictions on New Zealand laws and how the government can regulate than the Trans-Pacific Partnership Agreement (TPPA).
“How far that’s the case we can’t tell without access to the text, which only the governments have.”
Dr Kelsey gives credit to the government for holding firm on its promise not to allow foreign investors to directly enforce the investment chapter, known as investor-state dispute settlement (ISDS). But this remains just policy and is vulnerable to change under a new government.
“Other things are not so good” she said. The intellectual property (IP) chapter was always crucial for the EU and it will not have wanted any precedents for deals with other countries by walking back its standard template.
“New Zealand seems to have held back likely demands that would have increased the cost of medicines to Pharmac, something suspended in the CPTPP version of the TPPA.”
“But it looks like the copyright term has been extended for 20 years, which was also suspended in the CPTPP, and has recently been extended in the UK agreement.”
While it is positive to have a definition of “manuka” as exclusive to New Zealand and culturally important to Māori, something the UK refused to do, it is in the unenforceable Māori trade chapter and does not override the intellectual property rules.
The Māori trade chapter appears to be modelled on the UK chapter, which is unenforceable, is only about “cooperation” and doesn’t require any commitment or resources on the part of the parties to do anything.
Dr Kelsey highlights another crucial area, so-called digital trade.
“At a time when governments are belatedly recognising the need to regulate Big Tech and data, the last thing we need is digital trade rules that tie their hands. That is also the area where the Crown was found to have breached its Tiriti obligations to Māori in the CPTPP.”
“Yet that is what the EU routinely demands, so long as personal privacy is protected. This is a chapter where the outcome document is especially vague.”
Dr Kelsey notes there are bound to be other areas of concern that are not so readily apparent.
She calls on the government to release the text as soon as possible, and ensure that its National Interest Analysis provides a genuine assessment of the pros and cons of the agreement, not another “party piece” like this outcomes document and previous FTAs.
The select committee also needs to ensure there is proper scrutiny, not the “derisory” ten minutes it has been providing for presenting submissions and responding to questions in recent FTAs.