STOP MAI (WA) Campaign Coalition

RESOLUTIONS of Public Meeting, PERTH 30/6/98
(held at WA Deaf Society sports hall, 16 Brentham St, Leederville)

That this meeting

Endorses and commends the Stop MAI (WA) Campaign Coalition for alerting the community to potential problems in the proposed Multilateral Agreement on Investment; and calls on the Parliaments and Governments of Western Australia and the Commonwealth--

1. to do all in their power to prevent Australia's participation in the Agreement and to persuade other OECD nations to withhold their support from it and from any similar Agreement which may be introduced in another forum;

2. to uphold and acknowledge the sovereignty of the Australian people over its governments and parliaments at all times, and to desist from any actions which have the effect of transferring delegated powers to any foreign government, corporation or agency unless such actions are authorised before the fact by a national Referendum; and

3. to pursue, through OECD forums and domestic legislation, revised Guidelines for Multinational Enterprises to ensure that operations of such enterprises in Australia shall result in a maximum of benefit to Australia, including the honest fulfilment of tax liabilities.

[CARRIED UNANIMOUSLY]

PRECIS OF ADDRESSES AT THE MEETING:

JEAN JENKINS, spokesperson for the Stop MAI (WA) Coalition, long-time advocate of ‘people power’ and a former senator for Western Australia, said that the people pushing for the MAI are the owners of the multinational corporations which control and make the profits from 90 percent of total world investment. This Agreement is designed to protect and advance their interests, and any advantage to anyone else would be purely accidental.

Jean asked whether the MAI was capable of solving three serious problems faced by Australians:

• unemployment (in the region of 20 per cent, though official statistics show less than 10 per cent), linked to closure and multinational takeover of many Australian companies;

• a general collapse in the quantity and quality of our public utilities and essential services. We have gross failings and inadequacies in education (from pre-school through to university level), in hospital services, in the delivery of justice and legal aid, as well as prisons and policing. We have serious problems with pollution of air and water, and poor town planning;

• a dramatically widening gap between the incomes of the elite and those of the workers, and emergence of a definite class of super-rich people for whom payment of tax is optional, by virtue of high-priced accountants and lawyers. Federal Minister for Resources, Senator Warwick Parer, made millions of dollars from mining company shares but did not see such peanuts worth registering as pecuniary interests.

Fifteen years of creeping economic rationalisation have already answered the question, Jean Jenkins said. The MAI means more of the same, at a faster rate, without opportunity to correct mistakes through legislation.

Clearly, under the MAI, multinationals will force the privatisation and reduced subsidisation of more essential services, take over more of our primary and secondary industries, move more operations offshore, sack more workers and make it impossible for our governments to stop or reverse such changes.

Under the MAI, subsidised hospitals and schools will be classed as discriminatory unless the same subsidies are also paid to the hospitals and schools established by foreign investors. All private universities would have to receive the same government assistance as the public ones – or they could sue the Federal Government for equivalent compensation.

When we seek to hold governments accountable, they will shrug and say that they cannot make laws which contravene the MAI, or which cause any loss of profit to investors other than Australian investors.

There is a strong possibility that Australia could join with other countries in demanding important changes to the treaty before signing it. Because of the weak Government we have in Australia, and because of our very vulnerable trading position in our region, I believe we should go for a full withdrawal from it, and don’t believe this would cause loss of investment.

TONY COOKE, the Secretary of the Western Australian Trades and Labour Council, began by expounding the central provisions of the MAI, for the benefit of many members of the public who were hearing about the proposal for the first time. He explained the mechanisms of ‘standstill’ and ‘roll-back’ in their relationship to a mythical level playing field – which is itself very much open to question.

Tony recalled that the OECD was part of the Western world’s response to the ‘cold war’ – evolving as a club of 29 members acting as an umpire and blowing the whistle in line with rules they had drawn up. The rules were not necessarily appropriate to contemporary civil society, in which the community has a right to special precautionary arrangements, and to the accountability of Parliament for important national commitments.

The possible consequences of social fragmentation and disempowerment were necessarily part of the debate on the MAI, together with the pros and cons of globalisation in terms of economic and cultural influences.

Tony demonstrated the enormous market-opening potential of the MAI, pointing to the six or seven per cent of India’s population which was capable of "middle-class" consumption. Ability to free this up for unfettered foreign competition would create a new market exceeding the total population of the United Kingdom.

He referred to a recent correspondence he had with State Energy Minister Colin Barnett over the latter’s undertaking to ensure that purchase of shares in a privatisation of the electricity utility Western Power would be limited to Western Australian ‘mums and dads’. The minister was obliged to agree that there could be no such assurance under the MAI.

With reference to the dispute resolution mechanism proposed for the MAI, Tony Cooke declared that, in all his experience of dealing with tribunals and courts, he had never heard of any tribunal with powers as great as that which would be determining the compensation to be paid by national government to multinational plaintiffs.

In concluding, Tony cautioned against too archaic a view of national sovereignty – one of the important issues called forth in the MAI debate – and suggested that some of the views being canvassed had the intention of returning us to the insular pre-1956 era, which was unacceptable.

 

BEVAN LAWRENCE, a practising barrister and prominent campaigner in past issues including the Australia Card and the business improprieties of the ‘WA Inc’ State Government era, addressed the broad issue of the Commonwealth’s treaties power and established that there was no legal requirement for the MAI or any other treaty to be approved by or referred to the Parliament. The treaties power, inherited from the Westminster system, was ultimately derived from the ‘royal prerogative’ of kings – and that same power now resides with the Australian Prime Minister.

The present Liberal Government had instituted a policy of at least 15 days’ parliamentary consultation through a new Joint Standing Committee on Treaties, and consultation with the States through a Treaties Council, but these processes had no powers and were little more than ‘window dressing’. Similarly, the requirement for a ‘national interest analysis’ to be tabled was of little value in the probable event that it would be prepared by the very people who were promoting the treaty.

These placatory arrangements had resulted from the Liberals’ vocal indignation, when in Opposition, over an abrupt announcement by the former Labor Prime Minister Paul Keating that he had concluded a bilateral military treaty with Indonesian President Soeharto which, he openly acknowledged, had been done in secret because Parliament and the people might oppose it.

Bevan declared his preference for ‘people power’ in the sense of Swiss-style direct democracy – and volunteered his opinion that Australia had a long way to go before we can become a viable democracy. This is illustrated by the fact that executive government need pay no heed to the recommendations of parliamentary committees.

Further, the import of treaties does not require complementary legislation to become part of the Common Law. Since power over foreign affairs was ceded by the States to the Commonwealth at Federation, the Commonwealth has been able to use this power to override Acts of State and Territory parliaments on a number of occasions. For instance, the Northern Territory’s law enabling euthanasia was outlawed by the Commonwealth Parliament. In 1983, Tasmania’s legislation for the damming of the Franklin River was similarly nullified.

Bevan Lawrence made the point that, though he was personally supportive of the campaign against damming the Franklin, he strongly believed that it was legally inappropriate for a State Act to be overthrown in that way.

The treaty-making process should be opened up to full public scrutiny and made accountable. In Bevan’s opinion, this should involve the approval of both federal Houses and probably also of the States’ Houses (or, at the least, of a majority of State Houses).

Turning to the matter of the MAI, Bevan was critical of the situation that the onus of proving the Agreement’s unsuitability had fallen on the treaty’s opponents. It should be the other way round – let the proponents prove that the MAI will be beneficial to us. It is very apparent that Australia is attractive to foreign capital in the absence of an MAI, and that the inflow will not dry up because we decline to sign the MAI.. Moreover, changes to rules have a tendency to generate confusion and conflict. Wisdom should dictate that that the rules should not be changed unless and until they absolutely have to be changed.

Bevan referred to the pronouncement of High Court Chief Justice Sir Harry Gibbs (1994) that treaties are capable of expanding Commonwealth power to the extent that no area of legislation is excluded. This fact has been demonstrated in controversial interchanges of legislation and judgment between the Parliament and Court in recent years.

The solution is to make treaties subject to parliamentary control. It is ironic that Senator Rod Kemp, who is responsible for carriage of the MAI. himself wrote in a 1994 paper that Australia’s Constitution was being compromised by these processes. It is indisputable that a measure of sovereignty is always surrendered in these agreements.

LIAM BARTLETT, television and radio journalist, Constitutional Convention independent delegate, and author of the most penetrating MAI criticism published in a Perth newspaper (the Sunday Times), opened his address with some observations on a journalistic level, noting that the MAI’s supporters were uncomfortable when questioned for justification on a number of points, including:

• This treaty is about the welfare of big business
• Are they (the proponents) struggling? Why is the MAI necessary?
• Their record of irresponsible behaviour is appalling
• Their concept of a ‘level playing field’ is both a myth and a lie

The reality is that a ‘level playing field’ is the last thing ever sought by multinational corporations. Rather, they make enormous efforts to gain unfair advantages and, if possible, eliminate all competition before they feel it is reasonable to proceed with an operation.

They do not like to dwell on these points, because there is overwhelming evidence of their irresponsibility, often bordering on the criminal. Was BHP anxious to give the people of the Ok Tedi region a level playing field? Was Union Carbide a beneficial contributor to the community of Bhopal?

The track record of the multinationals gives them no right to ask for relaxed rules of investment, entry rights or that mythical level playing field. They already have massive advantages. Unlike the majority of Australian businesses, they make use of tax havens on a gigantic scale and they have sophisticated machinery for moving capital around the world.

Liam cited a recent comparative analysis establishing that the economic interdependence of nations and relative financial integration had been diminished in the period of the World Wars but had now returned to the same level as had applied in 1913.

SELECTED DISCUSSION ITEMS

Questioner: Can one of the panel explain the concept of ‘roll-back’

Tony Cooke: The MAI will require the Government to ‘standstill’ or not progress further any laws or regulations which cause inconvenience or loss of profit to a foreign investor. Laws which are already in place, or existing provisions for which the Government has succeeded in registering ‘exceptions’ to the MAI , must be rolled back (repealed or withdrawn) within an expected number of years. The objective is that all exceptions will in time be eliminated .

By allowing such exceptions, the MAI encourages the Government to make the agreement saleable by lying. The exceptions they tell us about must be rolled back.

Questioner: In the Sunday Times article in April, Liam Bartlett stated some staggering statistics about the top 100 multinationals (each earning over $A300 million a year) paying no tax.. I ask Liam what is the source of those figures?

Liam Bartlett: The earning figures were turnover figures provided by the Australian Tax Office, together with information on tax paid by the named companies. There is no secret about it ; anyone can go to the Tax Office and get those figures.

Questioner: Does the MAI conflict with the Australian Constitution?

Bevan Lawrence: No, I don’t see how it can. It is a trade agreement which the Executive Government has power to enter. The consequences may be unpalatable in terms of how we expect the Constitution to protect us, but in pure legal terms, the Government can sign and be acting in accordance with the Constitution.

Questioner: Would there be retaliation if we did not sign the MAI?

Tony Cooke: It is not being sold as something which is bad for us. We are supposed to buy it so that we can go out and rape another country without too much inconvenience.

Big companies desperately need the advantages which these arrangements give them. I’ll give you an example concerning our own Homeswest organisation. They prize the triple-A credit rating they have with Standard and Poors. Every year, they pay hundreds of thousands of dollars in fees to get Standard and Poors to come out and inspect their operation so that the same people can award them continuance of the triple-A rating!