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Issue #1674      February 25, 2015

Trade agreements full of poison berries

By Friday last week, the number of reported cases of Hepatitis A from tainted imported berries had reached 14, with the distinct possibility of more to come. The finger was quickly pointed at China and debate raged around questions of labelling and whether or not to test imports for bacteria and viruses. Trade Minister Barnaby Joyce joined the fray, batting for his rural National Party constituency with commitments to make changes in the labelling laws and encouraging people to buy Australian produce.

But all the improvements to legislation and regulations will not address the poison berries in the Trans Pacific Partnership (TPP) and other pending trade agreements.

Overriding parliament

The TPP (which is reportedly close to conclusion) and numerous other multilateral agreements contain what are known as investor-state dispute settlement (ISDS) clauses which allow a single investor (corporation) to sue a government for damages if a government law or policy “harms” their investment. Governments on the other hand have no rights to sue corporations under ISDS clauses.

Australia already has ISDS provisions in FTAs with Chile, Singapore, ASEAN, New Zealand, Singapore, Thailand and South Korea. It also has 21 ISDS clauses in Investment Investment Protection and Promotion Agreements (IPPAs) with 21 countries. (

The Department of Foreign Affairs and Trade’s (DFAT) website explains that ISDS provisions can protect investors against “sovereign or political risk” – meaning governments exercising their sovereign powers or legislating in the interests of the health and safety of its people in a way that might have a detrimental effect on profit churning.

“An investor can have their claim determined by an independent arbitral tribunal without having to rely on domestic legal remedies,” DFAT says, a de facto admission that ISDS provisions are a means for monopolies to bypass democratically elected parliaments and national laws and regulations.

Well known activist Vandana Shiva, in an interview with Brian Loffler (“In the Soil are the Answers”) was asked what her attitude was to “corporate personhood” – granting corporations the status of legal “persons”? She responded:

“When corporations claim personhood, they rob citizens of their personhood. When citizens of Vermont were successful in having a labelling law passed, corporations sued Vermont on grounds of their ‘personhood’. They have tried to argue that citizens knowing what is in their food, and making choices on the basis of that information, is taking away the ‘free speech’ of the corporate person.

“The Investor State Dispute Settlement clauses in the New Free Trade treaties such TPP and TIPP are in fact clauses of corporate personhood through which corporations want to have rights to sue governments that act in the public good on the basis of democracy,” Siva said.

“The rise of corporate personhood is the death of democracy, the death of sovereignty, the death of human rights, the end of freedom. We cannot allow this fiction to become the basis of governance.” (New Internationalist)

The first claim by a corporation against the Australian government under ISDS provisions (using an agreement with Hong Kong made in 1993) was made by Philip Morris in mid-June 2011. It is challenging the government’s cigarette packaging laws, in other words the right of a government to take measures to protect the health of its citizens. The case is still being heard.

Even if Australia had laws blocking the import of certain food products from countries deemed to have inadequate standards, under the ISDS provisions private corporations could sue the government for millions of dollars of potential loss in future profits.

One of the aims of the ISDS is to instil fear into governments to ensure that monopoly capital is free to operate in global markets without any barriers from governments. The amounts of money are not trivial. Energy companies, in particular, have so far taken advantages of ISDS provisions. The oil company Occidental was awarded US$1.7 billion in a case against Ecuador.

The TPP is full of poison berries: violation of sovereignty, undermining of democratic rights and control of economic levers.

Transnational corporations have never recognised nation states, national borders and sovereignty. The point has now been reached under the strictures of deals such as the TPP where in the guise of signed “agreements” the domination of the corporations to plunder the domestic markets of individual countries has been formally annotated.

It will see even more pressure mounted on the government to ease restrictions on the import of food products, endangering people’s health and the agricultural industry.


Following the berries revelation, as usual, Prime Minister Tony Abbott turned to “fee markets” as the solution. He rejected an overhaul of testing and labelling regulations, saying it was the responsibility of businesses “not to poison their customers”!

Patties Foods recalled its frozen mixed berries and raspberries which are sold under the names of Nanna’s and Creative Gourmet. They were the one common link identified between all known cases of Hepatitis A. The results are still not in from the testing of the products. The suspect berries are sourced in China and Chile according to the Department of Health.

A number of organisations and individuals came out strongly in favour of strengthening Australia’s food health standards and labelling system.

The Australian Manufacturing Workers’ Union described the present regime as a “disgrace”. It has members in food processing and many have lost their jobs as corporations moved their operations offshore and supermarkets increasingly turned to far cheaper imports.

The National Farmers Federation warned that cheap, imported frozen food was not grown and made under the same stringent health and hygiene standards as Australian produce.

Tom Godfrey, from the consumer organisation Choice, pointed to repeated failures with contaminated food, pests and plant diseases crossing our borders.

“The low priority of ensuring adequate checks of imported products into Australia is reflected by a number of funding cuts and proposals to merge government bodies in the lead-up to this latest scandal,” Australian Greens spokesperson for agriculture, Senator Rachel Siewert said.

“Last year the Coalition cut 36 scientists in agriculture and biosecurity fields, who were working towards ensuring biosecurity in Australia. You don’t make our food safer with budget cuts to biosecurity and quarantine.

“We recently lost $483.8 million over five years out of the agricultural sector, the government’s allocation of money to strengthen biosecurity and quarantine needs to be measured against these cuts,” Siewert said.

Food Standards Australia New Zealand ,which develops and administers standards for the two countries, states: “The country of origin of the food must be identified, or, if the food is a mix of foods from different countries, the retailer can state each country of origin or that the food is a mix of local and imported foods, or a mix of imported foods.” What does “a mix of local and imported foods” mean? It could mean 99 percent from Brazil and one percent from Australia.

“Made in Australia” means that the product was made (eg jam) and not just packed in Australia, but the contents (fruit, sugar, etc) could be sourced anywhere in the world.

There is no doubt that accurate and clear labelling of food is important for a number of reasons (allergies, safety, political, etc) and reform is required. Likewise the easing of quarantine regulations and reduction in testing of some products which has been underway are serious. Regulations and testing should be reviewed and strengthened.

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Next article – Editorial – The age pension, the family home and “fairness”

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