Foreign corporations wanting to sue Australian governments will have to cool their heels. New trade minister Andrew Robb says Australia's negotiating position on the Trans Pacific Partnership Agreement remains the same despite an election commitment to overturn the blanket prohibition on "investor-state dispute settlement" provisions.
The previous government declared point-blank that Australia would never again sign an agreement that included the provisions. One of the few trade agreements Australia has signed with such a clause allowed a Hong Kong-based subsidiary of tobacco giant Philip Morris to take Australia to an international tribunal over its plain-packaging laws, despite having lost its case in the High Court.
It is believed the United States was close to accommodating Australia's insistence by carving out an exemption for Australia while the other 10 signatories were bound by the provisions. Australia is the only country to have successfully concluded a trade deal with the US without such a clause, the US-Australia free trade agreement.
The Trans Pacific Partnership trade agreement will be the world's biggest.
US companies are enthusiastic users of the provisions. The United Nations Conference on Trade and Development says a record 58 cases were under way last year. In one, a US resource company is suing Canadian province of Quebec for imposing a moratorium on coal seam gas extraction while it examines claims of environmental damage.
Opening Australian governments to lawsuits over resource extraction, foreign land purchases, pharmaceutical benefits and health measures is a potential minefield for the new government.
Its policy is to remain "open to utilising investor-state dispute settlement clauses as part of Australia's negotiating position".
In a written statement to Fairfax Media, Mr Robb said it would be "premature to discuss positions we may wish to pursue on this or any issue under discussion in the Trans Pacific Partnership agreement negotiations".
"In opposition the Coalition stated that it would consider the inclusion of ISDS provisions in free trade agreements on a case-by-case basis. It would be wrong, however, to assume this changes Australia's current position on ISDS in the context of the Trans Pacific Partnership negotiations."
Mr Robb will attend trade ministers' talks on the Trans Pacific Partnership on the sidelines of the APEC meeting in Bali next month. Prime Minister Abbott will discuss the partnership at a meeting of leaders including US President Obama in Bali.