As our intellectual property laws are increasingly regulated by rules set in international agreements, the processes by which we negotiate, approve and enter into those agreements is of crucial importance. The move away from open, multilateral fora to secret trade-based treaties has added to the complexities of ensuring appropriate IP policies. 

As such the ADA and ALCC were happy with the opportunity to submit to the Senate inquiry into the treaty making process. We made the following proposals to improve the treaty making process:

A more informed approach

1.       For significant (Category 1) treaties, a scoping study should be prepared before the decision is taken to enter into negotiations. The brief for such a study should require realistic examination of risks and costs, and include potential trade diversion in any modelling of potential outcomes.

2.       Negotiations on sensitive subject matters such as IP should only be included if there is a specifically identified and probable benefit to Australia in their inclusion.

3.       An overarching framework to apply to future international IP negotiations should be developed by a body such as the Productivity Commission. This should be approved and periodically reviewed by JSCOT.

4.       The negotiating mandate and conditions of negotiation should be approved by JSCOT prior to negotiations commencing.

5.       Following JSCOT approval of the negotiation mandate, the priorities, objectives and anticipated costs and/ benefits of the treaty should be tabled in parliament.

Greater stakeholder engagement

6.       Before and during negotiations, the Department of Foreign Affairs and Trade (DFAT) should take steps to proactively identify and engage with stakeholders.

7.       As much information as possible regarding matters under discussion should be released, on an ongoing basis, to help stakeholders identify whether they have an interest in the matter being negotiated

8.       Negotiating text and position statements should be made publicly available. If that is not possible due to negotiation agreements or constraints, DFAT should make an informed decision as to what could be released with a presumption towards transparency. At a minimum text should be made available to subject-matter experts and stakeholders (including industry and civil society) with appropriate safeguards.

Improved oversight

9.       Australian industry, civil society and parliamentarians should receive at least as much access to the text as the equivalent groups in its negotiating partners.

10.   Treasury should oversee ongoing analysis of treaties and their impact during negotiation. Analysis includes input from portfolio agencies and stakeholders.

Evidence-based decision making

11.   When treaties are sent to the Joint Standing Committee on Treaties (JSCOT), they should be accompanied by independently prepared cost/benefit analysis.

12.   The National Interest Analyses (NIAs) and Regulatory Impact Statements (RISs) should be more comprehensive.

13.   When preparing analysis of the agreement, legal risk, including ambiguities as to implementation, should be taken into account.

Effective Implementation

14.   Treaties should be implemented to give maximum benefit to Australia. This may require legislative change to areas impacted but not covered by the treaty.

15.   Periodic reviews should measure the effects of treaties and that analysis should feed into the current negation framework and positions. JSCOT or other parliamentary committees may oversee significant reviews.

16.   Where appropriate harmonisation and consolidation of Australia’s international agreements should be pursued.