Tuesday, 26 November 2019
Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019, Customs Tariff Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019; In Committee
In respect of the Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019, I move amendment (1) on sheet 8823:
(1) Clause 2, pages 2 and 3, table items 2 to 4, omit the table items, substitute:
This amendment deals with the very pernicious clauses within these agreements that give corporations the right to sue governments. People might not be aware—although we've previously covered it pretty comprehensively in the debate—so I'll make it very clear: this deals with the inclusion of ISDS clauses, so the pathways through which corporations are able to sue governments for taking action in relation to regulating in the public interest. Australia has had more experience than many nations of the potential impact of these clauses. We have had the experience very close to hand of the way in which Philip Morris utilised an ISDS clause in a previous agreement with Hong Kong to pursue the Australian government in relation to plain-packaging laws after we had had that legislative decision upheld by the highest court in our land.
There are arguments made by the major parties in this place that the Hong Kong free trade agreement, which we are partially facilitating the implementation of today, includes a revamped ISDS clause, with many wonderful protections against the occurrence of these particular situations. Once again, however, as my colleague Senator Whish-Wilson so clearly put to the chamber yesterday, there is, in fact, no such thing as a properly revamped ISDS clause. It is one of those great legal fictions that continues to pervade us. These mechanisms were created and are always inserted within these agreements for the sole purpose of enabling corporations to get away with the pollution of our environment, the undermining of our labour standards and the violation of our human rights, and it is continually the case that they have the practical effect of a legislative chill upon our government.
This amendment does something very simple. I would hope, given the contributions of so many members to these debates yesterday, that some of it has sunk in, particularly to the Labor Party's mind, in relation to this amendment. There are very clear statements that have been made by the ACTU, by the electrical trade unions, flagging the concerns over these clauses, and our amendment seeks to simply make the implementation of these agreements contingent upon the removal of these clauses. Highly practical, it should be a rather non-controversial move that the chamber could make. I remind the chamber that the EU and the US are, at the moment, in the business of excluding ISDS clauses from many of their agreements, precisely because of the danger that they pose to national sovereignty, and are working their way out of these agreements. I commend this amendment to the chamber and would ask all parties to consider, deeply, supporting it.
Very briefly, the government will not be supporting this amendment. Australia has had ISDS arrangements in place for over 30 years. During that time, only one ISDS case has been brought before Australia in tribunal. That, indeed, is the one that Senator Steele-John referenced, in relation to Philip Morris, which I note the government successfully defended. I further note that, in terms of ISDS provisions, further safeguards have been built in to modernise ISDS provisions that would see even that case, which we successfully defended, not get as far as it did, in the future.
In contrast, the government is aware that at least five Australian companies have made ISDS claims against other governments in relation to the protection of investments that were threatened by those governments, often in the case of places that don't have the same type of respect for sovereign risk and other practices that Australian governments tend to have. Removing ISDS from these three free trade agreements, as this amendment proposes, would not remove ISDS with these countries. Instead, it would simply leave in place older provisions. The new provisions are far superior and ought to stand.
The Labor Party won't be supporting these amendments in relation to ISDS provisions. The improved ISDS clauses in these agreements include safeguards on the public interest, which allows Australia to regulate on legitimate public welfare objectives. This includes the protection of public health, safety and the environment. Australia will be protected from actions against important prudential reform, such as those stemming from the banking royal commission, and, with the new ISDS clauses, tobacco company Philip Morris—which I know has come up in debate a lot through this bill—would not be able to sue the Australian government for its plain cigarette packaging legislation, as they did previously under the existing Hong Kong bilateral investment treaty. If these agreements are not ratified, Australia will be objectively worse off with regard to ISDS. The government, in writing, confirmed to Labor that it would seek to review other old-style investment provisions in existing agreements.
In relation to labour market testing, all of the agreements uphold Australia's WTO obligations, signed and entered into by the Keating Labor government, and have applied since 1995. There is no waiver of labour market testing for contractual service suppliers in any of the three agreements, and the government has confirmed that it will not use the provisions of article 12.9 of the Indonesian agreement to propose or introduce any additional labour market testing waivers. Labor will continue to hold them to account on this commitment.
I want to respond to some of the observations put by the Labor and Liberal parties through the course of that exchange. First of all, to the minister's statement that these clauses have been used by Australian companies no less than 15 times—
Five times—you're absolutely right, Minister. They have been used five times, including by OceanaGold, a WA based mining company, to take the El Salvadorian government to a tribunal process for no less than the entire budget of El Salvador for one year. It was a case which commenced in 2009, ceased in 2016 and was chucked out. The crime of the El Salvadorian government for which they were taken to a tribunal under this process was simply asking a mining corporation to clean up after themselves. I will make it very clear to the chamber that our opposition to these clauses and their use absolutely stands in relation to the use of them by Australian corporations to bully sovereign nations into allowing those corporations to pollute their lands.
In relation to the commentary made by the Labor Party, through Senator Gallagher, I'll make this very simple point, which should be clear to any of those who followed the JSCOT process closely: we are dealing with the implementing legislation for three separate free trade agreements here. There may well be so-called revamped ISDS clauses used in relation to the Hong Kong free trade agreement, flawed as they are. However, that is not the case in relation to the Peruvian and Indonesia free trade agreements. I would specifically point out that there exists in neither of those agreements specific carve-outs in relation to tobacco. They do not exist in the Indonesian or Peruvian free trade agreements, which is why civil society is concerned by the prospect of us entering into an agreement with a country that plays host to large tobacco corporations, who are ready, willing and waiting to re-litigate, potentially, the plain packaging debate that we've had in this country, as is absolutely open to them to do under ISDS processes.
Again, in case you haven't been paying attention, precedence does not operate in ISDS tribunals. They sit outside usual procedural justice norms here in Australia, so cases may be litigated and re-litigated under these processes. There is an additional concern that tobacco may well use these clauses with Indonesia to fight any potential future vaping legislation that may be put forward by this place or another. There can be no doubt that these clauses present an unacceptable risk to Australia's sovereignty and the ability to legislate in the public interest. That is why I would remind the Labor Party that the ACTU oppose these deals. The Electrical Trades Union opposes these deals so stringently, in fact, that they have said that they are going to have nothing more to do with you.
We are simply asking you folks to stick to the manifesto under which you went to the election. We are simply asking you to stand by the platform that you apparently spent three or four years formulating. It's not a large ask. It's just a tiny piece of opposition that is being asked from the Labor Party today. I would again urge them to reconsider their position on this particular amendment.
I just want to say a few things about this. Obviously the bills, which enact agreement made between the Australian government to Peru, Indonesia and Hong Kong, all include an investor state dispute settlement, once again, which means foreign investors will be ineligible for compensation under the agreements if the Australian government tries to regulate them. They can sue if they don't get what they want—no surprises here. That's why I oppose the bills. As usual, the major parties are handing over more power to the big corporations. As usual, they're taking power away from the Australian workers.
I have to say it's pretty ironic that I'm one of the ones standing up for workers here today, when the unions have been at me for months. It's strange, isn't it, that they're happy to blast my office, take up calls and take time away from those who are vulnerable and who actually need services from my office, and yet here we go. I don't see any billboards and I don't see any pages running in newspapers about what the Labor Party is doing to them. Honestly, where's that ad campaign? It suits the CFMMEU and the ETU, but when it has to go on at their own and taking their political donations—I'm telling you, it just blows me away. I don't even know how you're supposed to take these two unions seriously anymore.
So I'm calling Labor out for walking away from the workers they're supposed to represent, because obviously the CFMMEU and the ETU won't do the job. Labor used to be the party of the worker. These days they're the party of foreign investors. They're the party of rolling over for the government. I've come to expect the government to wave this sort of stuff through, but for it to come from Labor? I tell you what—it's a pathetic day for Australia today. Do they even know what they stand for anymore or who they actually stand for? That's the question.
I can tell you who I stand for. I stand for the workers in Tasmania whose jobs have disappeared overseas. I stand for the people who are languishing on Centrelink because the industry in their town has shut down. I stand for the Tassie farmers who are watching the land around them get bought up by Chinese developers. I stand for the people who are horrified that their government is handing control to foreign investors who can sue if they don't like policy change. Who does that? Who does that to their own country? Who does that?
Labor, you should be standing up here with me. You should be standing against the coalition. It isn't good enough for them to say, 'We have an agreement with the government.' The government has agreed to what exactly? All I can see are vague commitments to nice ideas. Where's the concrete action? How are we going to protect the people who will feel the impact of these free trade agreements? There are no protections. What, more reviews when the deal has already been done? That's not going to help people in towns who are struggling now. It's not good enough to note the importance of ensuring there are public interest checks on the ability of foreign investors to sue our government. The fact is, these provisions shouldn't exist at all. It just isn't right. No-one should be willing to let multinational corporations hold our government hostage. I believe that you're going to regret this action in years to come, I can tell you. And I'll be one of the ones standing up here saying: 'Ha, ha! What do you know? The crossbench told you so. What do you know?'
Labor, you should actually see that, and frankly I'm surprised that you don't. I don't know why you would do these deals, and I don't know why the unions keep giving you political donations. If you're not doing the job to help their workers, then why do they bother? They're going at crossbenchers like me, Centre Alliance and One Nation over an integrity bill, yet they don't have the guts to stand up to you people and say, 'Hey, you're taking thousands of jobs off us.' This is what's going on here, and I'm supposed to take the CFMMEU and the ETU seriously? You've got to be kidding me today. They're just as shameful. They're not standing up for their workers; they're out there standing up for their thugs, and, quite frankly, I think Australia's had a gutful of it.
I want to follow along from the contribution made by Senator Lambie and draw some real clarity for anybody following this debate at home—because we can all see those little broadcast lights on, letting us know that the Australian public are watching what we are doing. You may well hear from the Labor Party that these—
Senator Lambie interjecting—
Apparently they are in here, Senator Lambie. I struggle to see them sometimes, but they are apparently here. You may well hear sentiments like: 'These deals are done between the executives of both countries. There's nothing the Senate can do.' I want to really clearly point out for the community the vagaries and the falsehoods around that position. Yes, deals are done between executives, and we in the Greens have extraordinary issues with the way in which trade deals are negotiated in this country. If we were in America—if we were in Trump's America—we would at least, as a legislative body, have the opportunity to scrutinise these deals line by line so that we knew exactly what we were signing our communities up to. Senator Lambie would have the opportunity to scrutinise these trade deals in relation to, for instance, their impact on Tasmania. We would be able to go through it together and understand exactly what the implications of these deals were. Well, not so in Australia, and that urgently needs to change.
However, the Senate does have the authority—the ability, the granted power—to make the implementation of these trade deals, as is outlined in these bills, contingent upon certain modifications to them. That is what these amendments seek to do. They seek to say that if you want to enact these relevant sections of these trade deals—if you want to bring them into force, if you want to make them workable—then first you've got to go back and say: well, actually, do you know what? Corporations are not going to be able to have a back door through which they are able to sue the Australian government when it acts in the public interest. And yes indeed we will deny that same ability to Australian corporations operating in Hong Kong—or in Peru, or in Indonesia—because we as a Senate have no desire to see Australian corporate entities become global environmental humanitarian or labour market vandals. That's not who we are. That's not what we want from Australian business when it operates overseas.
So, let's be very clear. We have the power to ask the government to make that change and to make the implementing legislation and its coming into force contingent upon those changes. I want to make that very clear for everybody who is following along at home. That is a choice that the Australian Labor Party—which it seems is rapidly morphing into 'Her Majesty's constructive consultation feedback group'—could actually take this afternoon. They're making an active decision not to stick by the unions that have supported them, not to stick by the nature of the policy platform that they put to the Australian people, but in fact to buckle before they even had an argument. I read through in detail the so-called concessions the Labor Party feel they've won from the government—brave red lions that they are!—and it's basically a wish list of nonsense. Half of the list that I had prepared, next to the analysis page of the document that came back from the Parliamentary Library, says 'does not have an effect on the relevant deal'. They've basically taken window dressing, because they don't want to have a fight about it, because they're too busy navel gazing—too busy wondering existentially what their point is, about what role they have to play. I'm honestly unclear as to why you folks want to end the year stabbing the union movement in the back and buckling to the corporate agenda of this government. These guys—this is their MO. This is why they got into politics, or got put into politics: to be the shells of large corporate Australia and to do that process. That's what the LNP is for.
I've been accused, probably accurately, of lecturing the Labor Party in the past, and I would like to confirm this afternoon that I am indeed lecturing you—and you're not very well in my class so far! There's going to have to be some improvement if you're going to pass at the end of the term, folks, because this is not good enough. It is really—softly, quietly, firmly—not good enough. That is why your supporters are so disappointed with you this afternoon. It's why they're so much in pain over these decisions. I shouldn't have to remind you that people give their lives to political organisations. They give their heart and soul. Many do that because they feel that the Labor Party is the party of working people. Well, not this afternoon, and that is a real shame. But you could still take this opportunity, right here, right now, to vote for this amendment and to at least make sure that we don't open up a back door through which corporate Australia can sue the Australian government when they feel that a regulation threatens the public interest. It's not a high bar to jump over, folks, and I really urge you to back this amendment.
The CHAIR: The question is that amendment (1) on sheet 8823, as moved by Senator Steele-John, be agreed to.
Minister, could you please update the chamber as to the status of the termination of the Agreement between the Government of Australia and the Government of the Republic of Indonesia concerning the Promotion and Protection of Investments, the existing bilateral investment treaty?
I can inform you that those discussions are well underway with the government of Indonesia. The government of Indonesia has agreed its willingness to do so, alongside our government's determination to do so. I expect that to proceed and ultimately be presented to the Joint Standing Committee on Treaties over the coming months.
Our ambition is to sign the exchange required for termination very early in the new year. As I said, it would then proceed promptly through JSCOT. I expect termination of this treaty to be a minor treaty action that shouldn't require further examination, given that JSCOT has already recommended that that occur.
Can you also update the chamber as to what steps have been taken to review older-style bilateral investment treaties and replace antiquated investment provisions with modern safeguards, and do you have any time frame for this process?
The government and the Department of Foreign Affairs and Trade are working through a schedule in terms of how to approach that and the resourcing implications of doing so. The government is firmly committed to providing that resourcing for DFAT to be able to undertake this work, which will, given the number of countries involved, run over the course of several years. I give a firm commitment that the government is committed to providing additional resourcing, as required, to the department to undertake that work and to get that started within the next 12 months.
So the process will start within the next 12 months, but it will be an ongoing process. Is that the correct interpretation of your answer? The scoping is a long piece of work. Is that what you're saying? And how that work then flows out would happen after that 12 months?
There are multiple investment treaties with multiple governments. Firstly, we will have a look at who we think will be most receptive to moving as quickly as possible in relation to updating those bilateral investment treaties, and we'll get work underway with them and conclude it as quickly as we can with those governments. Other governments may take longer to agree to commence those negotiations, which is why we expect it will take a few years. It's not a long process that takes a number of years for anything to be concluded. During that time we would be striving to conclude agreements along the pathway of those few years.
As the opposition should be aware, through the JSCOT process, we've already concluded one of these updates of bilateral investment treaties, with the government of Uruguay. We intend, as I've just outlined, on pursuing that with the other countries with whom Australia has bilateral investment treaty arrangements in place. In terms of other countries who may be seeking—as proactively as we are committing to do—to update their investment treaties, I'm not aware that's a priority of many other countries, so Australia will be playing a leading role there. But there are multilateral discussions, using various international fora, looking at the best-practice approaches in relation to investment treaties, and Australia is an active participant there, as are a number of other countries.
Going to the question of ISDS clauses, and in the context of the chamber just rejecting the contingent amendment that the Australian Greens put forward, I'm curious about the inconsistencies between the various mechanisms as outlined in each agreement, particularly between the Australia-Hong Kong FTA, which contains specific exclusions for tobacco, and the Peru agreement and the Indonesia agreement, which do not include those specific carve-outs. And I'm wondering why the government has signed up to an agreement with inconsistent ISDS mechanisms around tobacco?
Each of these agreements are matters of negotiation, but the Indonesia agreement and the Peru agreement contain clear public health exemptions, in terms of the Australian government's rights, and counterpart governments' rights, to be able to legislate and regulate in those areas, and those public health exemptions would capture tobacco regulation as well.
The Hong Kong agreement contains public health exemptions as well, but it also has references to tobacco. Essentially, they are duplicate, if you want to look at it that way, in the sense that either provision could be used to defend regulation and legislation in relation to the tobacco sector.
If you talk about explicit references, why are those explicit references absent? Why has the government signed up to an agreement with Peru and Indonesia where those explicit references, as you termed them, are absent?
As I've already referenced, there are public health exclusions, in the Peru and Indonesia agreements, that capture and provide protections in relation to legislation and regulation of the tobacco industries. Each of these, as with any bilateral agreement between nations, is a negotiation, but the government is completely sure that in Indonesia and Peru the public health exemptions provide a clear mandate to legislate and regulate the tobacco sector. In relation to Hong Kong, we have, essentially, a duplication of provisions that allow us to do so.
But, Minister, the government does acknowledge that there are not the explicit references that are present within the FTA with Hong Kong, within the Indonesia agreement and within the Peru agreement. You do acknowledge there is a difference, there, don't you? Can you confirm to the chamber that there is a difference between the three agreements, in relation to the treatment of tobacco under SDA?
Chair, I'm not going to take the chamber through each of the negotiating rounds of the agreements. We have the agreements that have been considered by the Joint Standing Committee on Treaties, the legislation that's before us. As I outlined, when it comes to protection of the Australian government's right to legislate on tobacco or to regulate the tobacco sector, each of these agreements clearly preserves the right for the Australian government to do so.
In that context, you seem to be proposing to the chamber that, under any and all of these ISDS clauses, there are what you've termed duplications, that would protect Australian public health in relation to tobacco. Is that the government's central contention?
I've already answered that in a previous question. There are clear protections, as the public health exclusions provide across all of these agreements, for the Australian government to legislate and regulate in relation to the tobacco sector.
What advice has been provided by the minister's office for the Department of Foreign Affairs and Trade, regarding the provision of article 12.9, since the commitment not to use the article to propose, create or extend labour market testing waivers for Indonesian contractual service suppliers?
The government has made clear that we will not be raising article 12.9 with the Indonesian government. Article 12.9 can only be activated with the mutual agreement of both governments and even then it is only for a review. Any changes would again require the mutual agreement of both governments, but we have made clear that we are not going to move to even that first stage of raising, or proposing or agreeing to any such review under that article.
From that, can I take it that the government has made clear to DFAT the government's intentions and commitments around 12.9? Has DFAT responded to the government with any concerns, or with an outline of their approach to handling that? Also, could you inform the Senate as to whether you have had any discussions with your Indonesian counterpart, specifically around article 12.9, since this commitment was published?
My department is obviously aware of the commitment that I gave on behalf of the government to the opposition in relation to article 12.9. The department understands that and will operate within the guidelines and commitments made by the government, as you would expect. I have met with my Indonesian counterparts—both my former and current counterpart—I think on a couple of occasions since that commitment was made. We have not raised any article 12.9 discussions with them. They are aware of the commitments the government has made and they have not raised any concerns with us.
I want to finish my line of questioning around tobacco. Your primary contention seems to be that basically what we have here are duplicated protections that are adequate in relation to the tobacco regulatory space and health generally. Can you explain then why there are these differences between the three agreements? If it is basically duplication that we are dealing with, why is there specific mention within the Hong Kong FTA that is absent from the other agreements? It would seem to me to be unnecessary.
Again, these are matters for negotiation between Australia and third countries. We don't walk into negotiations with a third country and say: 'Here's Australia's template. This is the only wording we use with each and every country. Take it or leave it.' We go into negotiations and get the best possible outcome for Australia across all levels. But in relation to each of the three agreements, I restate that they may have different elements of wording—one may contain duplication, particularly in relation to tobacco measures—but the Senate and the nation can be assured that each of them provides clear protections for the Australian government of the day to be able to legislate and regulate in relation to the tobacco industry.
Thank you. I might just move on to the broader question of ISDSs and the concern around them, as has been outlined in a number of the submissions to the relevant inquiries into these legislative pieces. I'll read briefly from the submission made by AFTINET to the JSCOT inquiry:
ISDS has no independent judiciary. Tribunals are organised by one of two institutions, the United Nations Commission on International Trade Law (UNCITRAL) and the World Bank International Centre for Settlement of Investment Disputes (ICSID). Tribunals for each case are chosen by investors and governments from a pool of investment lawyers who can continue to practice as advocates, sitting on a tribunal one month and practising as an advocate the next. In Australia, and most national legal systems, judges cannot continue to be practising lawyers because of obvious conflicts of interest. ISDS has no system of precedents or appeals, so the decisions of arbitrators are final and can be inconsistent. In Australia, and most national legal systems, there is a system of precedents which judges must consider, and appeal mechanisms to ensure consistency of decisions.
This gives you a broader picture of the profound departure that ISDS represents from anything consistent with the Australian judicial norm. Given that the system of appointing arbitrators provides no additional protection and demonstrates a substantial conflict of interest, why is it that the government has decided ultimately to include these clauses within the relevant trade deals?
These sorts of clauses have been in existence for more than 30 years as part of investment treaties, trade arrangements and otherwise. They are quite common practice. Senator Steele-John, you yourself just noted the United Nations practices and engagement in relation to them. It's perhaps the only area I can think of offhand where the Australian Greens have decided that they don't trust a United Nations process or tribunal appointment type arrangement.
These are here so that companies that undertake investments across international borders have confidence that there are safeguards in place for those investments that protect them from sovereign risk determinations made by governments in countries that may not have the same types of standards of rule of law and respect for sovereign risk that Australia has. That is why Australia has never been the subject of a successful appeal against these matters, whereas Australian companies have sometimes used them—sometimes frivolously and sometimes not so frivolously. In the end, that's up to individual processes.
The government believes that these remain valid mechanisms to help facilitate the flow of investment across international borders where laws are inconsistent and to provide some common practice and understanding. They are widely used internationally and widely respected by international lawmaking bodies.
I have one follow-up question from the previous set of questions I asked. Minister, you said that Indonesia was aware of the commitment that you had given the opposition and the Australian public around article 12.9. Could you outline to the chamber how they became aware? Did you formally write to them or did they pick it up in the media clips? How did the Indonesian government become aware of this commitment?
Obviously, I made a number of commitments to the opposition as part of negotiations on this matter, and I thank the opposition for their constructive engagement on the matter. The letter that I wrote to my shadow counterpart, Ms Madeleine King, has been published. I understand a copy of that letter has been shared with the Indonesian system so that they're aware of that. I have also referenced in at least one of my recent bilateral meetings with the Indonesian counterparts that the discussions with the opposition had been constructive in general terms and I acknowledged that there were some conditions that we agreed to. As I said, no concerns have been raised from Indonesia in relation to them. Specifically in relation to article 12.9, regardless of the view of the other party, whether us or Indonesia, neither party can activate that review under that article without the consent and agreement of the other party, so in a sense it can be a sovereign determination of either party to simply not have a review, and that's a determination that our government has made.
On another matter: when can the Senate expect to see legislation introducing criminal penalties for worker exploitation? Can you provide an outline? Can you outline the process that will be used to develop that legislation?
This matter is led by the Attorney-General as the Minister for Industrial Relations, but I am advised that that legislation is currently being drafted and should be released. We expect it to be introduced into the parliament next year.
Thank you, Minister, and I accept that this is outside your direct area of portfolio responsibility. Are you aware, with the advice that you've got on that, whether there will be, or there has been, or there is going to be, a consultation process around the development of that legislation, including the ability of groups such as unions and other interested parties to provide submissions?
This follows on from the work of the Migrant Workers' Taskforce report in March of this year. That report, of course, involved extensive consultation and engagement. In terms of engagement with the drafting and legislating process, I can't firmly commit to the Senate in terms of what the next steps of consultation will be. Obviously, any legislation that comes forward will ultimately be the subject of Senate committee processes and the like, but there may be earlier consultation mechanisms that are deployed as well. I can seek to come back to the opposition on that at a later stage.
Thank you, Minister; I appreciate that. What advice has the minister received from Home Affairs regarding the inclusion of information in visa grant notices of workplace rights and entitlements? Is there any information you can provide to update the Senate on that process?
In relation to the previous answer, I can also advise that I understand that the Attorney-General has released a consultation paper in relation to the drafting of those laws, so that process is underway.
In terms of your question on awareness for temporary visa holders of their rights, I understand from the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that they are already increasing awareness for temporary visa holders of workplace rights and entitlements, including through inclusion of information in visa grant notices and through additional follow-up whilst visa holders are in Australia via multiple communication sources. This includes sending information via hard copy, SMS and the utilisation of social media platforms.
(2) Clause 2, pages 2 and 3, table items 2 to 4, omit the table items, substitute:
This amendment follows on from the amendment put previously in relation to ISDS by now giving the chamber the opportunity to make the implementation of these free trade agreements contingent upon comprehensive labour market testing. We do so for a very, very simple reason. We in the Greens would never quibble or seek to oppose the ability of any person to come to Australia and to work and be protected while they work in a safe workplace. But what we see, particularly with the Indonesia agreement, is a process being opened up by which permits have been granted to that nation for work which can be utilised without undertaking the pretty basic principle of checking to make sure whether or not there is anybody currently present within the community who is able to do that job and who has the qualifications to do that job.
This is another step down the road towards the fundamental undermining of labour standards here in Australia. We know what happens when we let big corporates and countries bring in workers in these ways. They often end up being exploited. They often end up working in subpar conditions. They often have the tenuous nature of their residency here in Australia used as a pathway through which they are discouraged from flagging issues in their workplace. It is not something that we should be promoting or permitting. It's definitely not something we should be signing away as part of a trade agreement with another nation.
So we put these amendments on the table to give the Senate the opportunity to close this particular loophole and ensure that we return to promoting high labour standards and workers' rights and that we do everything we possibly can to guard against the erosion of work standards and potential erosional impacts on wages. I commend the amendment to the Senate.
I did speak to this when the Australian Greens moved the first of your amendments. I think it's important to add here that there is no change to labour market testing and the conditions that have applied since 1995. These agreements that we are dealing with are not changing the arrangements that have been in place. With respect, I think Senator Steele-John might be incorrect about some of the concerns that he is raising, and Labor will not be supporting the amendment.
Very briefly, to reiterate what Senator Gallagher just said, there are no new or additional waivers of labour market testing for contractual service suppliers created in any of these three agreements. This amendment is unnecessary. The government does not support it.
In response to those comments, to clarify what our amendment seeks to do, I can give you a very clear example of what it is responding to in relation to these trade agreements. It is within chapter 12 of the Indonesia agreement, the implementation of which we are seeking to facilitate, that it grants to Indonesia 4,000 to 5,000 work permits under what used to be the 457 process. The absence of labour market testing means that these permits do not have to be subject to those tests around whether or not there are existing individuals within the community who are able to do this work. That is exactly why they have been so stringently opposed and concerns with them have been so robustly flagged. It might make some people uncomfortable that that's the case, but that is one of the concerns around just the Indonesia agreement alone. That is the basis on which we have put forward this amendment for the Senate's consideration and commended it to the Senate.
I must refute an inaccuracy there from Senator Steele-John. Working holiday-makers are not contractual service suppliers; they are a very different visa category. The working holiday-maker system has operated in Australia since 1975. Working holiday-makers must be under 30. They must, like anybody who works in Australia, meet any criteria in relation to licensing or otherwise to be able to undertake work. However, working holiday-makers have very fixed arrangements in terms of how long they can be here and how much they can work. I would also note that, of course, many young Australians take advantage of similar working holiday-maker schemes to work elsewhere in the world. This is simply creating rights for young working holiday-makers to have the same opportunities in Australia.
I would like to again respond, because I think this is one of the areas where legitimate concerns have been raised, but once the correct information is provided some of those concerns should be eased. My advice is that the 4,000 to 5,000 visas that are provided for under that section of the Indonesia free trade agreement are under the working holiday visa system, of which Indonesians are 1.5 per cent—so, some 500 of those visas. The same labour market testing applies. There is an argument here because the majority of those visas are provided to citizens of the UK. The Indonesians make up a tiny percentage, when you compare the number of their visas to the 60,000-odd visas that are provided to British citizens. There are some issues being raised about why Indonesian people shouldn't have a similar opportunity, after going through the proper process, to access visas under these arrangements.
I do, but I have a couple of questions for the minister before we get to that point. Minister, could I now ask you some additional questions in relation to labour market testing and the protection of workers: can you explain what provisions exist within these various agreements to ensure that temporary workers are protected from exploitation and the threat of deportation?
Obviously, Australian workplace relations laws have provisions for protection of workers from exploitation. I answered some questions from Senator Gallagher earlier about the efforts the government is taking in response to the work of the Migrant Workers' Taskforce both to develop legislation that will enhance penalties in relation to exploitation of migrant workers operating in Australia and to raise awareness amongst those populations of their rights and the protections that exist under Australian workplace law.
Thank you, Minister. To drill down on that a little bit more, are you saying that there are no additional protections present within these agreements in relation to workers but, in fact, we will be left in a situation where they'll be under whatever legislative regulations exist in the relevant jurisdiction for workers of their visa category and type in Australia?
Provisions in a treaty do not of themselves create additional protections for individuals; laws passed through this place create those protections. That's why we have workplace laws of this parliament and of state and territory parliaments, in particular, that create a range of protections for Australian workers and for workers from overseas operating on different work visas. As I outlined in the answer before, we are taking additional steps, in terms of protections, legislation and awareness, of all of those measures. But such trade agreements are not the place to put those protections. The laws of the land are the place to put those protections. That's what the parliament has done over the years. That's what we're continuing to do. I again stress that there are no new labour market waivers created under these agreements.
I am aware of that. I was just clarifying for the benefit of the community, which is, as I mentioned earlier, following along with this debate in earnest. They can be forgiven, I think, for sometimes finding these debates a little bit arcane.
I want to now move to the question of ecommerce, which is a less debated issue in relation to these relevant trade deals. We in the Greens party are deeply concerned by the efforts to reduce the regulatory capacity of government in relation to electronic commerce and trade. It has been made very clear by the ACCC in their recent digital platforms inquiry, and through an extensive and growing body of evidence apart from that, that the big tech companies and multinational corporations can engage and are engaging in anticompetitive practices, breaches of privacy, tax avoidance and the exploitation of workers more generally.
Both the Indonesia free trade agreement and the Hong Kong agreement contain chapters outlining frameworks for ecommerce, which permit the free flow of data, including financial data, across borders. We in the Greens party are firmly committed to ensuring that digital rights and data privacy are strongly protected and we do not believe that either of these agreements provide tangible or sufficient protections to achieve these goals. The intention of ecommerce, as related in the chapters in these agreements, is to reduce the regulation of data flows.
This is, I have to say, at odds with the responsibility the government has to adapt to the future needs of data privacy in this space. This is referenced by the AFTINET submission to the JSCOT inquiry. It says, in the 'Concerning provisions in the electronic commerce chapter':
Article 11.3 prevents governments from developing measures to govern electronic authentication, which are the security standards for electronic transactions (DFAT 2019c: Article 11.3). This can prevent governments from regulating electronic transactions to ensure their security. For example, requiring encryption of personal data (Reid Smith 2018:8).
Article 11.7 locks in the free flow of data including personal data across borders. Government regulation of data flows is permitted but it must not "constitute a means of arbitrary or unjustifiable discrimination, or a disguised restriction on trade" (DFAT 2019c: Article 11.7.3). Article 11.8.2 prevents governments from requiring companies have a local presence in the country where they are providing services (DFAT 2019c: Article 11.8.2).
It goes on to say:
These provisions undermine the government's ability to protect privacy by enable companies to move data, including personal data, to jurisdictions where privacy laws are more limited, as privacy requirements are determined by the country where the data is stored not the country where it originated.
Governments are required to adopt consumer protection laws under Article 11.5 (DFAT 2019c:Article 11.5) and a "legal framework that provides for the protection of the personal information" under Article 11.9.2 but there are no minimum standards for this legislation (DFAT 2019c: Article 11.9.2).
They went on to say that provisions that prevent government from requiring that companies have a local presence can also make it more difficult to hold companies to account if there are issues of noncompliance with consumer protection laws and rights and other nationally relevant legislation. Then:
Article 13.13 prevents governments from requiring companies to transfer or give access to their source code (DFAT 2019a: 136). This can prevent governments from reviewing source code or algorithms in response to potential race, gender, class or other biases. This is of particular concern given the growing evidence that algorithms "are inescapably value-laden …
This is a barrier and an issue which the government is already confronting on our home turf in relation to identity capabilities. It continues:
… Operational parameters are specified by developers and configured by users with design outcomes in mind that privilege some values and interests over others …
With all this context in mind—and I'm aware that I've read a lengthy part of the submission to the minister—I fear that many of AFTINET's valuable observations were brushed aside, sadly, by both sides of politics during the JSCOT process. How does the minister respond to concerns about reduced data safeguards in relation to international data floats?
Very quickly in relation to AFTINET, which Senator Steele-John has referenced a couple of times: I would note that AFTINET admitted to JSCOT that they don't represent exporters or businesses. Their membership is rather narrow, declining and largely union based. That said, they can make their criticisms. I would also note, though, that I'm not aware of AFTINET ever seeing any content of any trade agreement that they've ever supported. They always find reasons to oppose and criticise in this space.
With all that said, and on the issue of ecommerce, which was the substance that Senator Steele-John was pursuing on this occasion: the AFTINET submission appears to overlook article 11.5, which provides for protection of privacy and enforcement of consumer protection rights. AFTINET overlooked articles that ensure the protection of rights in relation to legislating and regulating for legitimate public policy outcomes in relation to ecommerce or the like. Such matters include health policy, national security and the like. This is about ensuring that commerce has an ability to flow freely under a trade agreement, whether that is a physical trade of goods or indeed a trade of data. But the protections in relation to privacy, consumer protection rights, public policy outcomes, health and national security are all catered for.
Thank you, Minister. In respect of the Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019, I move amendment (3) on sheet 8823:
(3) Clause 2, pages 2 and 3, table item 4, omit the table item, substitute:
The final amendment which we, as a party, will move this afternoon goes specifically to the Australia-Hong Kong Free Trade Agreement. As I contribute my comments in relation to this amendment, it dawns upon me how incredibly privileged I am to do so. We are incredibly lucky to be able to debate these issues in this place. I have profound disagreements with many members of this chamber—on both sides of it. I personally take the view, and the Greens take the view, that these trade agreements constitute an unacceptable threat to Australian sovereignty via their inclusion of ISDS clauses; that they undermine labour standards; that they place at risk environmental protections; and that they will have the net effect of making corporations richer while making the rest of us a damn sight poorer.
I am very, very critical of the role the opposition have played in the scrutiny of this legislation, and I regard their legislative decisions in relation to this piece of legislation to be really quite disappointing. I have disagreements with strategy that's taken in this place; I have disagreements with the way that we talk about issues. I would much prefer the Prime Minister, Scott Morrison, not to be the Prime Minister and would say so openly and to anybody who asked—and I can do all of these things free and safe in the knowledge that I will not, or my family will not, suffer negative consequences because of it.
We here can and are enabled to exchange free and fierce debate in relation to the direction of this country. We are able to disagree frankly with each other. Without fear or favour, we are enabled to put forward issues that the communities we have been sent here to represent believe to be important. Many of us in this place exercise the right to be extraordinarily critical of executive decisions. We do all of these things without ever once considering that, at some point in the night, somebody might come for us or our family members, or our friends. We undertake this participation in the rituals of democracy without ever considering that our lives might be destroyed.
We sit here beneath a Westminster system founded upon a constitutional democracy that is deeply flawed. There are many historical truths with which, still, we are yet to come to terms. We sit here on stolen land. We sit here under a constitution that doesn't recognise the existence of First Nations peoples. There is much truth and healing and justice yet to be done, and yet we do sit here in a democracy. As flagging as it may be, as under siege by corporate influence as it may be, as deeply unsatisfactory to many members of the Australian community as it may be, it is unquestionably a form of democracy, and we are unquestionably able to exchange our views in this place in full and frank terms.
Now, these are not privileges and opportunities that are extended to all people everywhere. These are not privileges and opportunities that were granted to any person anywhere without struggle. I sit here, a young disabled man, as a member of a legislative body that contains within it people of diverse racial backgrounds, that contains within it people of diverse gender and sexuality identity backgrounds. The presence of all of these members together is the result of struggle. And, God, there is a lot more struggle still to do before this place is fully representative of the community that it serves. All around the world, peoples are engaged in that broader struggle for democracy, in that broader struggle for freedom and human rights. To reference Senator Patrick's first speech and his quote from Theodore Roosevelt's speech in relation to the contest and continually fraught nature of public life, they are fully in the arena all around the world.
One of the most pressing global examples of this struggle for democracy, this struggle for freedom, is taking place right now in Hong Kong. Young people, workers, people who love their country, people who love their community are right now on the streets. For months and months they've been putting their lives on the line for democracy and freedom, for that opportunity to disagree openly without fear and for that opportunity to work together to build a nation where their children can breathe free. Those movements, those people, have said clearly to this parliament that, while they don't want to see agreements between their country and ours come to a halt, they do want us to work with them to give Hong Kong, its activists and its struggle for democracy and freedom breathing space to conclude it in their way, in their time and on their terms. That is their simple request to this chamber in relation to this agreement: 'Give us the breathing space to be able to conclude our movement for freedom and rights.'
This is not an unrealistic request. It is a request that is in fact in line with the sentiments that have come forth from this government and from the opposition in relation to this question, in relation to this movement. There has been many a strong word made for the support of this movement in Hong Kong and many a concern raised. The activists have told us clearly that this is an opportunity to put those words into action. So, I ask the minister: given the context of the struggle for democracy that is taking place in Hong Kong, why is it that the government has not taken the opportunity to place a pause upon this negotiation process, upon the implementation of this particular agreement, until such time as democracy has been achieved for Hong Kong and human rights can be assured for the people of Hong Kong?
Firstly, can I say that I acknowledge and agree with Senator Steele-John on some of the sentiments he just voiced. We are, indeed, all fortunate to be Australians, and those of us who have the honour and responsibility of sitting in this place are incredibly fortunate to have the opportunity to do so. But, whether we are here in this chamber or Australians going about their daily lives elsewhere across our great country, we all enjoy certain freedoms and liberties for which we should be incredibly grateful. That's because, indeed, arguably most of the world certainly does not enjoy the same freedoms, liberties and high-quality way of life that Australia has been able to create.
The government have expressed our concern in relation to circumstances in Hong Kong. We have urged for respect of the autonomy and fundamental freedoms guaranteed by the basic law under 'one country, two systems'. In relation to this agreement that's before us, the Australia-Hong Kong Free Trade Agreement, we proceed with it because it gives effect to the two systems that we recognise. We recognise that the system that exists in Hong Kong is not, and is not meant to be, the same as the system that exists across the People's Republic of China. Yes, there are certain tensions that are there in Hong Kong at present that have been deeply troubling during the consideration of this treaty by the Joint Standing Committee on Treaties and this legislation's passage through the parliament. However, the fundamental point remains that Australia has a trade agreement with the People's Republic of China, with mainland China, that has been in place for some time. The underpinning legislation passed through this parliament some time ago, which, I note, has yielded significant trade benefits for Australia.
We do not have a separate trade agreement in place with the Hong Kong Special Administrative Region. This allows us to put in place such an agreement, therefore having completely different terms of agreement and a completely separate agreement existing in our relations with Hong Kong at a trade level, distinct and different from the agreement we have with the People's Republic of China, and thereby giving, in a policy sense in Australia, life to respect for the two separate systems that are in operation. That's why we continue to proceed with it. Elsewhere, of course, we are continuing to engage with the government of Hong Kong as well as the government of the People's Republic of China to urge restraint, dialogue with protesters, respect for fundamental human rights and respect for the basic law that operates overall under the two systems. We will continue to make that advocacy as required.
Labor won't be supporting this amendment. I support the comments made by the minister. Labor has also repeatedly and consistently raised deep concerns about the situation in Hong Kong and our very strong belief that people have the right to protest peacefully. Further, through our lead shadow ministers we have been urging all parties to find a peaceful resolution to the current unrest, over the last six months or so, that is consistent with the 'one country, two systems' arrangement.
I think Senator Steele-John has raised concerns, in other parts of the debate on this bill, about the situation with tobacco companies. In particular, I think he raised Philip Morris and the ability to sue the Australian government over the plain packaging. One of the issues that will be resolved under the ratification of this new agreement with Hong Kong is the implementation of the modern ISDS clauses, which will not allow that situation to occur. So, in a sense, Senator Steele-John, what you're arguing for is that we halt the ratification process for the new Hong Kong agreement and, in its place, leave the old ISDS clauses, which would allow that situation to occur again.
We note Senator Steele-John's continued criticism of the Labor Party. I think it's very easy, when you're not a party of government, to sit there and point the finger when you don't actually ever have to make the really difficult decisions. There are mixed views and there is a balance to find and a position where you have to consider a whole range of competing interests when you make decisions in areas like this. The Greens party has never had to do that and, presumably, won't ever have to do it, so it is easy. It is harder being a party of government when those decisions are not always black and white. We do acknowledge that Australia's trade agreements create jobs, lift living standards and, over the many years we've had them in place, have contributed to a significant increase in household wealth in this country. We can all sit here and point the finger. I think it's a lot harder when you have to make decisions that are in the national interest and not just in the interest of a particular section of that community.
With respect, we note your comments. We disagree with them. We will continue to be an opposition that looks at every piece of legislation on its merits, and we will decide our position on it based on the national interest and the values and principles that the Labor Party has held for many, many years. That is why we have landed where we have, with the appropriate safeguards and commitments and concessions that the government has provided, which, frankly, Senator Steele-John, is more than you've been able to deliver.
I'm just going to, as they say, leave that there. We are discussing the last of the Australian Greens amendments to the implementing legislation in relation to these agreements. I want to make very, very clear the choice that's on the table before us as a Senate here this afternoon. What we've just seen is in some ways a re-enactment of what's been happening in relation to the major parties and Hong Kong for the last six months or more, which is that both sides stand up and say really nice things about the positivity of the movement that is happening in Hong Kong, they talk about valuing and the respect they have for the demonstrators and the support of Australia for the continuation of the one country, two systems framework—and then they sit on their hands.
I think it's about time that we here—by which I mean you here—recognise that your space in this place is not about, in any way, shape or form, the theatre game that you seem to think passes as political discourse nowadays. Look into the faces of the young people right now holed up at the Hong Kong Polytechnic and see the fear that they have in their eyes and the knowledge that they do not know what is going to come next for them when the sun comes up again and the joy that is in the faces of the hundreds of thousands who are today celebrating the victory of pro-democracy parties in the local elections there and the joy at the small amount of administrative power that they feel they have now claimed in their hands and ask yourself the question of whether those people, if gifted the power and opportunity that you have, would exercise it in the way that you've just indicated that you will. Indeed, would they take the opportunity on such a serious human rights question to begin a low, partisan discussion about what a party might not understand or know as a so-called party of government?
There can be no more fundamental question than that which confronts us today, which is fundamentally about whether we decide to use the power granted to us to place ourselves on the right side of history and whether we will take this opportunity to open our ears to the calls of pro-democracy protesters and take the simple action that we are given the opportunity to take in order to show solidarity and support for them. If the parties in this place decided to implement our amendment tonight, it wouldn't cost them a fig. Nobody is going to come to you tomorrow and say: 'Oh, my lord. Isn't it awful? The major parties got together and decided to listen to pro-democracy protesters and do what they asked.' Who do you think is going to rock up to your door tomorrow morning and say that that was wrong thing to do?
My point of order is that standing order 196 on tedious repetition says:
The President or the Chairman of Committees may call the attention of the Senate or the committee, as the case may be, to continued irrelevance or tedious repetition, and may direct a senator to discontinue a speech, but that senator may require that the question whether the senator be further heard be put, and then that question shall be put without debate.
I've been following this debate quite closely and Senator Steele-John hasn't come within a bull's roar of what's on the floor of the Senate in terms of tariff reductions.
The TEMPORARY CHAIR: There's no record point of order. Please continue, Senator Steele-John.
To clarify for the chamber, I am speaking directly to our amendment which would make the implementation of the Hong Kong free trade agreement contingent upon a pause period, which has been requested of this place by pro-democracy activists. You may well roll your head in relation to that point, Senator Gallacher, but it is nonetheless the fact and the truth of the matter that we are being asked to take this pause and that we are being asked to give the pro-democracy protesters the breathing space that they need in order to take the strongest position they can in resolving the human rights crisis which now besets their community.
I return to the point that I was making: we must ask ourselves the question as to whether we are willing to give up an opportunity to show solidarity with such a movement and with such people at a time such as this. To do so would be to simply inconvenience yourselves while people are putting their bodies on the line. We can't bring ourselves to take a pause for a year to show support? It would seem to me to be a very poor way of utilising the power which we are gifted in this place.
As we discuss this particular issue, I'm very aware that there's a little bit of discontent rising in the chamber. I can see a lot of different discussions being had, and I'm sure some people are trying to figure out how best to shut me up before the cut-off for question time. I think that in itself is something that we should reflect upon in all honesty. The truth of the matter is: this may be uncomfortable to hear, but this is your job. Your job is to take these steps in these moments. If you consider yourselves democrats and humanitarians, to vote for these amendments is your moral duty. Upon which other ground would you stake yourselves, when they come, as this amendment does, from the very protesters who are right now leading the democratic movement? Take a moment, pause and reflect. I urge you to support this amendment.
by leave—In respect of the Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019, I move amendments (1) and (2) on sheet 8814 together:
(1) Clause 2, page 2 (table item 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".
(2) Page 3 (after line 11), after clause 3, add:
4 Impact of bilateral and regional trade agreements on Australia ' s trade and economic performance—Productivity Commission inquiry
(1) By the day after this section commences, the Productivity Minister must, under Part 3 of the Productivity Commission Act 1998, refer to the Productivity Commission for inquiry the following matters:
(a) the contribution of Australia's bilateral and regional trade agreements to reducing trade and investment barriers and safeguarding against the introduction of new barriers;
(b) the impact of trade agreements on trade flows, investment returns and productivity growth, employment and labour markets, and the development of manufacturing and value-added export industries;
(c) any related matters.
(2) In referring the matter to the Productivity Commission for inquiry, the Productivity Minister must:
(a) under paragraph 11(1) (a) of the Productivity Commission Act 1998, require the Productivity Commission to hold hearings for the purposes of the inquiry; and
(b) under paragraph 11(1) (b) of that Act, specify the period ending 12 months after this section commences as the period within which the Productivity Commission must submit its report on the inquiry; and
(c) under paragraph 11(1) (d) of that Act, require the Productivity Commission to make recommendations in relation to the matters referred to in subsection (1).
Note: Under section 12 of the Productivity Commission Act 1998, the Productivity Minister must cause a copy of the Productivity Commission's report to be tabled in each House of the Parliament.
(3) The Productivity Minister must not withdraw the reference before the Productivity Minister has received the report.
(4) For the purposes of paragraph 6(1) (a) of the Productivity Commission Act 1998, the matters mentioned in subsection (1) are taken to be matters relating to industry, industry development and productivity.
(5) In this section, Productivity Minister means the Minister administering the Productivity Commission Act 1998.
Centre Alliance's amendments will insert a schedule into the bill to amend the Productivity Commission Act 1998 to require a wideranging and independent inquiry by the commission into the impacts of Australia's bilateral and regional trade agreements. The last Productivity Commission inquiry on free trade agreements was almost a decade ago. We've now signed and ratified a dozen FTAs, we have three more before the parliament now and DFAT lists another seven agreements under negotiation, and of course there is also the prospect of an Australia-UK free trade agreement. The Joint Standing Committee on Treaties has recommended that new agreements be subject to review by the Productivity Commission. However, we clearly need a broad inquiry to look at the big picture and to look at our existing free trade agreements and their impact and at what the future holds in an uncertain international trading environment. These amendments will set such an inquiry in train.
I understand that Labor are going to vote against these amendments; if they indicate that, I won't call a division.
Yes, Labor won't be supporting these amendments. We do consider that there is a use for economic modelling and transparency around the consultation process. The government has given a commitment to support a JSCOT inquiry into the treaty-making process, which would include considering using economic modelling. We would urge the government to ensure that that inquiry gets underway as soon as possible. We believe that that's the appropriate place to look at this, prior to considering an amendment like Centre Alliance's.
The Greens will be enthusiastically supporting the amendments put by Centre Alliance in this regard. It would be a good step forward to get an inquiry like this off the ground. But, of course, there is a broader need, when we think about trade, to transform the way that we do trade agreements in Australia, to enable broader community scrutiny when it comes to these agreements that are signed between executives. As I mentioned earlier, were we to be within the jurisdiction of the United States, we, the Senate, would have most likely been vested with the responsibility of going through these agreements in detail, line by line, and that would be our preference for a framework around these issues. However, this does constitute a good step in the right direction, so we will be enthusiastically supporting these amendments.