Live Chat: Trading away our democracy

Australia, New Zealand and the United States are among countries negotiating the TPPA. Photo / Supplied

What will New Zealand look like in 2025? With a host of challenges such as climate change, an ageing population, inequality, our economic resilience, and increased pressure on our land, air and water, the only certainty is that we will have to do things differently. We can no longer look at wellbeing through the narrow lens of GDP growth. To see genuine progress, and genuine prosperity, we have to look at progress in broader social, environmental and economic terms.

Over the coming weeks, Element and the Centre for NZ Progress will host conversations to explore what real progress means to New Zealanders. Each week we will focus on a different issue under the four streams of economic, social, environmental and democratic progress.

We will hear the ideas of a diverse collection of thinkers, experts and leaders, from New Zealand and around the world, and we will create a space for you to share your ideas.

Join lawyer and union advisor Edward Miller for a live chat about the implications of the Trans-Pacific Partnership Agreement tonight from 5.30pm.

OPINION: The International Monetary Fund predicts that by 2030 the number of middle-income consumers (the kind that generally purchase New Zealand exported goods) will grow from around 500 million people to over three billion. In other words, the trading opportunities directly on our doorstep are enormous. So why rush into signing a secretly negotiated trade and investment agreement like the Trans-Pacific Partnership Agreement (TPPA), which could impose dangerous limits on our national sovereignty and our ability to shape our own future?

When we first signed a 'free trade agreement' with Australia in the 1980s, those words referred to getting rid of trade barriers like tariffs and quotas.

They now mean much more.

Negotiations for the TPPA include twelve countries (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam). However only a handful of its 29 chapters directly refer to traditional trade.

Most New Zealanders know very little about the agreement. Parliament is largely in the dark as well - they won't see the text until it has been signed, at which point they have no power to negotiate further on it. Many different groups, including unions, environmental organisations, public health advocates, doctors, lawyers and lawmakers have raised concern about this abject lack of transparency.

Trade Minister Tim Groser's current position is that groups demanding transparency are actually trying to kill off the negotiation. Our position is simple. If this text cannot survive public scrutiny then it deserves to die. Here's why.

The TPPA's 'comprehensive' rules govern a set of seemingly disparate and arcane topics - regulatory coherence, financial services, intellectual property, state-owned enterprises - that go far beyond the traditional scope of trade-related issues. They revolve around a Pacific-wide process of economic integration where foreign investors and multinational corporations could have a set of new and powerful legal tools to shape the region's political culture and rulebook.

Critics of the TPPA are worried about its potential impact on Pharmac. Photo / Getty Images

At the core of this framework is a set of special rights for foreign investors, allowing them to mount costly legal challenges to laws and policies that damage their profitability. This so-called 'unfair treatment' is a far cry from the Government seizing the factory; here, foreign investors are able to hold governments to ransom if they go ahead with regulatory action.

A growing list of examples demonstrates how investors are using similar agreements to attack other nations' economic, social and environmental policy. Germany's decision to phase out nuclear energy was followed by a $2.2 billion dollar lawsuit, while Quebec's decision to extend a fracking moratorium was met with a $300 million claim. Egypt faces a $125 million lawsuit for increasing the minimum wage for public sector workers.

These cases are argued at shady international tribunals that aren't bound by traditional rules of precedent and tend to favour foreign investors. They have spawned a booming and profitable arbitration industry for law firms and their hedge-fund backers.

The decisions of these tribunals are binding on the government. The very threat of investment disputes can scare governments into submission, a so-called 'chilling effect' on democracy. Even if a state mounts a successful legal defence, the OECD says the legal costs to the government will average about US$8 million.

Ultimately the TPPA will affect how governments make domestic policy and regulatory decisions, the priorities they consider, the substance of many of those policies and, critically, the right of corporate interests to influence them.

In our view these rights constitute an unwarranted intrusion into our political process and ultimately stymie democracy.

Other potential impacts of the TPPA raise additional cause for concern. Leaked negotiating texts show the pharmaceutical industry stands to gain leverage over Pharmac - New Zealand's award-winning bulk buyer of medicines - and could undermine its ability to use cheap 'generic' medicines outside of patent protection. The TPPA would also limit 'Buy Kiwi' policies and internet freedom, and could stifle our ability to an innovative job-creating economy.

As we look to the challenges of the coming decades - financial instability, climate change, resource depletion and food insecurity to name a few - it seems almost obvious to suggest that we must secure the broadest regulatory space possible to take dynamic and bold political action that ensures the public interest.

New Zealanders would reject outright domestic lawmaking undertaken under such severe secrecy. We must be given the opportunity to fully scrutinise TPPA negotiations, and assess for ourselves whether the risks are worth it.

***An informal round of TPPA talks are taking place in Hanoi September 1-10.

Edward Miller is a lawyer who has worked on human rights, labour rights and international economic issues. He is the spokesperson for the group It's Our Future: Kiwis Concerned about the TPPA. He works as the Strategic Adviser at FIRST Union and has completed an LLM on the financialisation of food. Follow him on Twitter at @edwardcrmiller.