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A new pro-corporate tier to Australia's government and judiciary

By Thomas Faunce - posted Thursday, 5 November 2015


Education, health, postal, communications, defence and correctional services likewise should be privatised because that enhances shareholder income.

Corporations will be allowed to minimise tax because that increases the value of their investments.

Corporations must be permitted without restriction to fund election campaigns and to restrict whistleblowers who use computers to reveal fraud as that also enhances their investments.

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If however an Australian government chooses to oppose this corporate colonisation process, what practical steps can be taken in the short and long term?

First, it should initiate economic surveys on just what benefits our society is getting from deals such as the TPP to counterbalance their deleterious impacts. If such research shows little positive effects, then progressive governments should suspend ISDS obligations under the deal. When foreign corporations invest in Australia it should be written into their contracts that this is our government's position.

Second, the European Union is proposing that investment arbitrators be prohibited from acting as advocates in investment related cases during their tenure as judges and that an investment appeals court be created. This does not go far enough.

The process of investment arbitration should be made coherent with international law. Investment arbitrators under the TPP should be required to be serving judges drawn from the respective highest courts of the TPP nations. They should be required to take into account the wider legal and policy context of laws being challenged by the corporations.

States should be allowed to use the ISDS system to sue corporations whose activities, for example, are alleged to have a major negative impact on public health or the environment. Appeals should be allowed from ISDS tribunals to organisations such as the International Court of Justice (ICJ).

Third, an international treaty should link trade sanctions with reform in corporations law. Such reforms could clarify that corporations are not entitled to the same legal protections as real people.

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It could require corporations to be 'married' to an approved public good as a condition of yearly registration. It could require corporations pay an acceptable minimum of tax on capital while operating in a nation. It could allow the introduction of very low global tax on financial transactions.

It could provide a transference of funds form such a tax to support global distribution at the community level of  third wave renewable energy and food technologies such as global artificial photosynthesis (GAP). Such technology will allow every human-made structure on the earth's surface to make hydrogen by using sunlight to split water but also ammonia fuel and fertiliser by absorbing atmospheric nitrogen and fertiliser biochar through atmospheric carbon dioxide reduction. It will facilitate a profound ethical shift as human beings collectively try to 'pay their own way' in terms of supporting the global ecosystem and leave behind corporate colonisation strategies such as those involving ISDS in the TPP.

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About the Author

Thomas Faunce is Assoc. Professor at the College of Law and Medical School ANU.

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All articles by Thomas Faunce

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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