Press Release: Professor Jane Kelsey
12 February 2015
‘Trade minister Tim Groser has repeatedly claimed that negotiations for agreements like the Trans-Pacific Partnership Agreement (TPPA) are never conducted in daylight. That is simply not true.’
‘There are many such instances, including the Anti-counterfeiting Trade Agreement (ACTA) that involved six of the TPPA parties, where draft negotiating texts and other documents have been released. He has ignored the inconvenient truth and continued to assert his position as fact’, says University of Auckland Professor Jane Kelsey.
‘The European Commission (EC) has now conclusively just put the lie to such claims’.
Professor Kelsey has just published two papers analysing recent developments in the negotiations between the European Union and the US called the Transatlantic Trade and Investment Partnership (TTIP) which parallel those for the TPPA.
One contrasts the obsessive secrecy that continues to envelope the TPPA with the inquiry by the EU Ombudsman into transparency and public access to TTIP documents and the EC’s subsequent decision to release a raft of its own negotiating documents with. The second outlines the Ombudsman’s reports and the EC’s responses. 
The European Ombudsman was forthright. Old approaches of confidentiality and limited public participation are ‘ill-equipped to generate legitimacy’ for such ambitious agreements. ‘Given the potential impact of TTIP on the lives of citizens, key documents have to be published’.
Moreover, ‘it is vital that the Commission inform the US of the importance of making, in particular, common negotiating texts available to the EU public before the TTIP agreement is finalised [to] allow for timely feedback to negotiators in relation to sections of the agreement that pose particular problems. … [I]t is preferable to learn of such problems sooner rather than later.”(original emphasis)
The fact the US might object to release of the documents does not mean they should be withheld on the grounds of protecting ‘international relations’ (similar wording exists in the NZ Official Information Act).
Further, confidentiality agreements between parties would not be conclusive grounds for withholding documents. There must be convincing grounds for withholding any content at the particular time, judged on a document-by-document basis.
While the EC did not go as far as the Ombudsman recommended, it has published negotiating texts it has tabled in the negotiations and committed to releasing the final version of TTIP well before it is signed to enable debate.
Both papers were tabled at the Foreign Affairs Defence and Trade Committee this morning. The committee was finally hearing a petition from 16 groups that has been presented to the House in 2011, calling for full disclosure of TPPA documentation.
‘The call for release of negotiating documents made in 2011 is even more pressing now, as the TPPA parties aim to make their final decisions at a ministerial meeting in mid-March, dated and venue unknown.’
Professor Kelsey has made an Official Information Act request for similar documents from New Zealand with a view to testing the legal basis on which the government believes it can withhold all TPPA-related documents, including even the dates and venues of forthcoming meetings.
The TPPA parties claim they are bound by a strict confidentiality agreement, effectively tying their own hands. But Professor Kelsey notes that is not a final impediment.
‘When the TPPA ministers meet in March, if not before, they must unwind this shroud of secrecy they have wound around their activities – just as many of them did as parties to the ACTA negotiations in 2013.’
 Australia, Canada, Japan, New Zealand, Singapore and US.
 Decision of the European Ombudsman closing her own-initiative inquiry OI/10/2014/RA Concerning the European Commission, 6 January 2015, http://www.ombudsman.europa.eu/cases/decision.faces/en/58668/html.bookmark
 Jane Kelsey, ‘The Ombudsman’s Inquiry into Transparency and Public Participation in the Transatlantic Trade and Investment Partnership’, 1 February 2014 http://itsourfuture.localdev/wp-content/uploads/2015/02/THE-EU-OMBUDSMAN¹S-INQUIRY-INTO.pdf
 Jane Kelsey, ‘If the EU can release TTIP negotiating documents, the TPPA countries can do the same’, 1 February 2014 http://itsourfuture.localdev/wp-content/uploads/2015/02/TTIP-v-TPPA.pdf