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senate vote 2018-02-15#4
Edited by
mackay staff
on
2023-07-21 12:55:43
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Title
Bills — Migration Amendment (Skilling Australians Fund) Bill 2018, Migration (Skilling Australians Fund) Charges Bill 2017; in Committee- Migration Amendment (Skilling Australians Fund) Bill 2018 and another - in Committee
Description
<p class="speaker">Doug Cameron</p><p>As I indicated in my speech in the second reading debate, there are some issues with these bills. One of the key issues is the lack of defined parameters on labour market testing, simply leaving it to ministerial discretion. Minister, could you advise whether any parameters have been determined by the minister in relation to labour market testing?</p>-
- The majority voted in favour of [amendments](https://www.openaustralia.org.au/senate/?gid=2018-02-15.197.1) introduced by NSW Senator [Doug Cameron](https://theyvoteforyou.org.au/people/senate/nsw/doug_cameron) (Labor), which means they passed.
- ### What does the amendment do?
- Senator Cameron [explained that](https://www.openaustralia.org.au/senate/?gid=2018-02-15.197.1):
- > *These amendments try to deal with the lack of certainty that has been expressed by business, the vocational education system, academics and states and territories around the country. These are designed to make sure, if we've got labour market testing, that the labour market testing is understood, that it is genuine and that those employers that want to bring in overseas workers properly test the local market. It's to make sure that there are no suitably qualified and experienced local workers readily available who cannot get access to the employment to fill the positions.*
- ### Amendment text
- > *(1) Schedule 1, page 8 (after line 10), after item 14, insert:*
- >
- >> *14A At the end of subsection 140GBA(4)*
- >>
- >> *Add "The period must not start earlier than 4 months before the nomination is received by the Minister.".*
- >
- > *(2) Schedule 1, item 15, page 8 (after line 24), after subsection 140GBA(6), insert:*
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- >> *(6AA) The Minister must not make a determination under subsection(5) unless the Minister is reasonably satisfied that any advertising of the position undertaken in the determined manner:*
- >>
- >>> *(a) will be targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens or Australian permanent residents would be likely to be informed about the position; and*
- >>>
- >>> *(b) will set out any skills or experience requirements that are appropriate to the position.*
- >>
- >> *(6AB) A duration determined for the purposes of paragraph (6) (d) must be at least 4 weeks.*
<p class="speaker">Mitch Fifield</p><p>I am advised by the minister of the proposed settings, which I'll go through. The period of labour market testing is a minimum of 21 calendar days. The date of labour market testing is six months before lodgement, four months since redundancies. The number of advertisements is at least two. The method of advertising could take a number of formats, but should consist of at least two of the following: a national recruitment website, such as jobactive.gov.au; recruitment agencies; internal advertising, for intracompany transfers; business website or social media, of accredited sponsors; and national print media or radio. The required information in the advertisement is position title and description; salary, which is waived if the salary is higher than the high-income threshold; and company and recruitment agency—company name need not be disclosed if using a recruitment agency. Advertising language requirements are English; any other language is optional. The evidence requirements are copy of advertisements or equivalent evidence. The exemptions are: where a new nomination is required for an existing visa holder because of a change in business structure or pay; where labour market testing is not appropriate due to the nature of the position, such as sporting athletes, top talent chefs, eminent academics; and where an international trade obligation applies. That's the advice I have to hand.</p> <p class="speaker">Doug Cameron</p><p>Thanks for that. Is there any chance you could table the document you just read from so we can have a quick look at it?</p> <p class="speaker">Mitch Fifield</p><p>I'll seek to have that put in a form that can be tabled.</p> <p class="speaker">Doug Cameron</p><p>Any idea how long that would take?</p> <p class="speaker">Mitch Fifield</p><p>About 10 minutes or so, I'm advised.</p> <p class="speaker">Doug Cameron</p><p>I appreciate that. From my rough notes: as you went through quite a range of issues, you did talk about chefs. Why would chefs not be part of an advertisement for suitably qualified Australian workers?</p> <p class="speaker">Mitch Fifield</p><p>I think the intention with that example is top international talent chefs. I think that's the context of that cited instance.</p> <p class="speaker">Doug Cameron</p><p>Minister, who would make the determination if it's a top international chef? Would that be the minister? Would the company be seeking to put a proposal to the minister so that it's not included?</p> <p class="speaker">Mitch Fifield</p><p>Senator, I'm advised it would be the decision-maker, which could be the minister or, if it had been delegated, someone in the department.</p> <p class="speaker">Doug Cameron</p><p>What I'm asking is: how would the minister make such a determination? Somebody would have to advise the minister, surely, that they are seeking an exemption from the bill as it stands.</p> <p class="speaker">Mitch Fifield</p><p>This might assist, Senator. I am referring to section 8, headed 'Application of sections 6 and 7'. 'Sections 6 and 7 do not apply to the following nominated positions: (a) a position in relation to which the nominee has an internationally recognised record of exceptional and outstanding achievement in (1) a profession; or (2) a sport; or (3) the arts; or (4) academia and research.'</p> <p class="speaker">Doug Cameron</p><p>The minister having discretion is Minister Dutton. Is that correct?</p> <p class="speaker">Mitch Fifield</p><p>Minister Dutton.</p> <p class="speaker">Doug Cameron</p><p>Given Minister Dutton's past performance as recently as, I think, last week, when he made some really disparaging remarks to workers in the gallery—I think he got himself confused, as he normally seems to be, about what area these workers came from—how can we be assured that workers in a certain area of the labour market won't be discriminated against because of the bias of the minister?</p> <p class="speaker">Mitch Fifield</p><p>I do not believe that the minister exercises bias in his administrative decision-making.</p> <p class="speaker">Doug Cameron</p><p>How can we be assured of that, given the statements he made to workers who were members of the CFMEU mining division? He got them mixed up with, I assume, workers in the construction division, so he has got a bias against certain workers in certain industries. You're saying that he would, when exercising his discretion, not exercise it in a biased way. Wouldn't that then mean that there should be regulations applying to it and the exercise of discretion should be removed from a who that has shown such bias?</p> <p class="speaker">Mitch Fifield</p><p>As I said before, I do not believe that the minister exercises bias in the performance of his administrative duties.</p> <p class="speaker">Doug Cameron</p><p>I suppose we will have to agree to disagree on that position. Given that the minister has discretion, what areas of discretion could he exercise in relation to an employer seeking to bring in skilled workers?</p> <p class="speaker">Mitch Fifield</p><p>There are a range of measures on which the minister would need to be satisfied. I will grab those for you shortly.</p> <p class="speaker">Doug Cameron</p><p>While you're getting that advice, I'll ask: I think in your remarks you indicated that one of the parameters was to advertise for 21 days. Will that be included in every instrument and for every time an employer needs to advertise?</p> <p class="speaker">Mitch Fifield</p><p>I'm advised that it can be. I'm seeking further advice as to whether that will be the case in each instance, but I'm being advised that, yes, it will be.</p> <p class="speaker">Doug Cameron</p><p>I don't have the document that you've read from, so I'm just going from memory on this; I might have to come back to this when I get the document before me. I think you also indicated—was it six months before lodgement?</p> <p class="speaker">Mitch Fifield</p><p>Six months before lodgement.</p> <p class="speaker">Doug Cameron</p><p>Will that be consistent or can that be amended by the minister exercising discretion?</p> <p class="speaker">Mitch Fifield</p><p>The intention is to make that six months by way of an instrument but, I guess, as a statement of logic, instruments can be changed or replaced.</p> <p class="speaker">Doug Cameron</p><p>That leaves an opportunity for different ministerial discretion for different areas. Why wouldn't there be a standardised inclusion within the bill? Is there any reason why these points that you read out were not included in the bill to give people an understanding of how it would work?</p> <p class="speaker">Mitch Fifield</p><p>There's no intention to have an instrument that varies from the six months, but, as is common with a range of legislation, elements of detail are often put in place by way of regulation rather than in the primary legislation.</p> <p class="speaker">Doug Cameron</p><p>Minister, could you outline any areas where the labour market testing may not operate?</p> <p class="speaker">Mitch Fifield</p><p>I did in my earlier contribution cite an example being where an international trade obligation applies.</p> <p class="speaker">Doug Cameron</p><p>Could you now outline where those international obligations apply and what countries would be exempt under those obligations?</p> <p class="speaker">Mitch Fifield</p><p>Senator, I will endeavour to get that for you.</p> <p class="speaker">Doug Cameron</p><p>Do you have any idea how many workers are coming into the country under the various so-called free trade agreements—they are actually bilateral preferential trade agreements; is that correct? They are actually bilateral preferential agreements, not free trade agreements?</p> <p class="speaker">Mitch Fifield</p><p>Senator, I think that's going beyond the knowledge that the officers have to hand at the moment, but we will seek that for you.</p> <p class="speaker">Doug Cameron</p><p>You're going to provide the details. Let's just take the China bilateral agreement. I've got to say that I'm surprised that anyone associated with the minister's department is unaware of the difference between a 'real' free trade agreement and a bilateral preferential agreement. I think it's clear that these are bilateral preferential trade agreements. You'll confirm that, I hope.</p><p>So let's take one of the bilateral preferential trade agreements: say, China. In what areas would a company be able to bring in, say, Chinese mechanical or electrical tradespeople without having any need for labour market testing?</p> <p class="speaker">Mitch Fifield</p><p>Obviously, these matters depend on the provisions of each free trade agreement. I don't believe that we have a compendium of all of those here in this place at the moment.</p> <p class="speaker">Doug Cameron</p><p>What I'm trying to establish is, firstly, how robust would any labour market testing be, given that it is a matter of discretion for the minister? And, secondly: how many overseas workers can come in without having to go through labour market testing? If a mining company in Western Australia, in the resources sector, wanted to use a Chinese company to build an extension to the mine, would that be covered by labour market testing?</p> <p class="speaker">Mitch Fifield</p><p>That would depend on the particular circumstances and the particular occupations. I can't speak in detail to a hypothetical because these things are determined on the basis of specific real-world instances.</p><p>Senator, while I'm on my feet, I might just touch on your question earlier about the discretionary criteria that the minister may take into account. They include skills and experience, English, evidence of meeting a specified test and being a genuine temporary entrant. Those discretionary criteria are the ones which have been advised to me, but, obviously, if you have any further follow-up questions, please do so.</p> <p class="speaker">Doug Cameron</p><p>Yes: what's the definition of a 'genuine temporary migrant'?</p> <p class="speaker">Mitch Fifield</p><p>I can seek further and better particulars on that, but those discretions are related to the visa and not part of this bill. Nevertheless, I will seek that for you in an endeavour to be as helpful as I can.</p> <p class="speaker">Doug Cameron</p><p>Thanks, Minister. In the context of ministerial discretion, that could vary from minister to minister if the minister changed, couldn't it?</p> <p class="speaker">Mitch Fifield</p><p>Well, it would be the same act and the same provisions that a minister, regardless of who they were, would need to be satisfied about.</p> <p class="speaker">Doug Cameron</p><p>Can I give you not a hypothetical example but a real example. If a Chinese corporation established a subsidiary in Australia and made a bid to build the inland rail, would those workers be subject to labour market testing?</p> <p class="speaker">Mitch Fifield</p><p>Those assessments would need to be made on the basis of particular occupations and particular propositions. I, as a minister speaking to this bill, would not want to pass a determination, because ultimately they're matters for the relevant minister to do on the basis of the evidence before him or her.</p> <p class="speaker">Doug Cameron</p><p>But, Minister, this is not up to the minister. It's certainly not up to the minister. Your government and you have spoken of these issues in this chamber on the so-called free trade agreements. It's not on what occupations come in, is it? It's wider than that.</p> <p class="speaker">Mitch Fifield</p><p>Sorry, Senator; I was speaking in the general in relation to ministerial determinations and not specifically in relation to the free trade agreement exemptions. But obviously, in that case too, there need to be assessments on the basis of the facts.</p><p>While I'm on my feet—through you, Chair—I have what you've sought to be tabled by way of labour market testing, which is these multiple copies. I have that to table. I can have a copy also passed immediately to you in parallel with it being tabled, Senator.</p> <p class="speaker">Doug Cameron</p><p>Minister, can I then draw your attention to article 10.4, 'Grant of Temporary Entry', under the China Free Trade Agreement. I will take you to subparagraph (3) in that agreement. It says:</p><p class="italic">In respect of the specific commitments on temporary entry in this Chapter, unless otherwise specified in Annex 10-A, neither Party shall:</p><p class="italic">(a) impose or maintain any limitations on the total number of visas to be granted to natural persons of the other Party; or</p><p class="italic">(b) require labour market testing, economic needs testing or other procedures of similar effect as a condition for temporary entry.</p><p>So, when you say it's based on the facts and it's based on the classification, it's not correct, is it?</p> <p class="speaker">Mitch Fifield</p><p>I take at face value you quoting from the relevant document of the free trade agreement, but, when speaking to the specific interaction of that with what is before us, I wouldn't seek to speak with great specificity without receiving advice from the department.</p> <p class="speaker">Doug Cameron</p><p>Is the department here? Surely the—</p> <p class="speaker">Mitch Fifield</p><p>Through you, Chair: the department is endeavouring, as we speak, to provide some further advice.</p> <p class="speaker">Doug Cameron</p><p>Okay, so that's for temporary entry. I now take you to 'Article 10.4: Grant of Temporary Entry'. It's on page 113 of the China-Australia so-called free trade agreement. It says:</p><p class="italic">In respect of the specific commitments on temporary entry in this Chapter, unless otherwise specified in Annex 10-A, neither Party shall:</p><p class="italic">(a) impose or maintain any limitations on the total number of visas to be granted to natural persons of the other Party; or</p><p class="italic">(b) require labour market testing, economic needs testing or other procedures of similar effect as a condition for temporary entry.</p><p>So the minister would not be applying any discretion to Chinese tradespeople entering the country in this context, would he?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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