Digital industry groups and academics have challenged the secrecy surrounding treaty negotiations by Australian officials, arguing the public should see more than unofficially leaked chapters of text.

Kimberlee Weatherall, an associate professor in law and renowned IP expert, gave evidence in a private capacity to a Senate inquiry last week.

She argued that closed-door negotiations on proposed treaties - such as the Trans-Pacific Partnership (TPP) which has chapters on intellectual property and copyright - created distrust and provided no assurances that Australia was getting a good deal.

As treaties increasingly changed the domestic law, they should be subjected to the same public and parliamentary scrutiny as proposed law changes through the regular parliamentary channels, she said.

"The nub of the issue now is that IP chapters look like legislation, and they are at that level of detail," Weatherall said.

"Traditionally, the power to make legislation and to specify domestic policy at that level of detail has lain with parliament.

"If we are going to make agreements at that sort of level we need the same sort of parliamentary input and public input that we would have into legislation."

Weatherall said that although there was some public discussion on treaties, "it is occurring on a completely ill-informed basis" and "in an atmosphere of high distrust".

"We have the trade minister saying everyone is just fear mongering and they do not know what they are talking about," she said.

"The obvious response is: 'We don't know entirely what we are talking about because you won't show us, so we can only work on the assumptions of leaked text, statements and past agreements and try to piece something together.'

"That is a very unsatisfactory basis on which to have a public debate and a public discussion."

Australian Digital Alliance (ADA) executive officer Trish Hepworth agreed that treaties were having a "significant and increasing impact on our domestic laws and legislative policy space."

Like Weatherall, she was concerned that the only way people other than Department of Foreign Affairs and Trade (DFAT) officials could see the text of proposed treaties was to rely on "the unofficial versions on Wikileaks."

That put ADA and its constituents in a bind.

"Our concern, on a broader scale, is that there may be stakeholders out there that are not even aware that their interests will be caught," Hepworth said.

"Most people, when they hear there is a trade agreement, will not necessarily have thought to themselves, for example, 'Oh my goodness—I run a library; there is a trade agreement; this is going to mean I cannot digitise newspapers past 1955 anymore.'

"And I tell you: the libraries did not think that that was going to happen when we knew that we were in negotiations for the Australia-US Free Trade Agreement.

"So, without a certain level of transparency, it is very difficult to know whether you do have interests that are going to be impacted upon."

Compromising negotiations

DFAT maintains that sharing the draft text of treaties would undermine its negotiating position.

"The lead agency [in the negotiation] has to balance the interests of transparency and consultation—something which has been raised in many of the submissions before the committee," DFAT senior legal adviser Katrina Cooper said.

"They need to balance that with the confidentiality that is needed to ensure that we can deliver the best outcome possible.

"It will often be the case that public disclosure of information would prejudice our negotiating positions and undermine the outcomes that we might achieve."

But critics do not buy DFAT's position.

"Confidentiality should not be a cover for assessment of how well DFAT did in its negotiations," Weatherall said.

"That is something that we should be rightly interested in discussing—how well are we doing in our trade negotiations; is there a problem; how can we do better?

"That is something that I would have thought the entire parliament and the Australian public would be interested in securing: better processes and better outcomes."

Hepworth agreed: "Australia is party to at least 16 interlocked and overlapping international agreements on copyright and is in the process of negotiating and ratifying several more.

"Well over 600 treaties have entered into force since 1996, yet there is currently no formal process to evaluate their impact and to feed those results into future negotiations."