All changes made to the description and title of this division.

View division | Edit description

Change Division
senate vote 2018-10-17#1

Edited by mackay

on 2019-02-01 09:50:24


  • Bills — Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018, Customs Tariff Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018; in Committee
  • Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018 - in Committee - Commencement


  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>I want to go back to a question that I would have liked to ask last night but ran out of time. Could the minister confirm that there are 22 suspended provisions in the TPP that relate to previous US involvement and clarify the status of those provisions if the US rejoins the trade deal and what the process would be at that stage? Does it need to come back to parliament for ratification if a new member joins and new clauses are added to the TPP or are we de facto voting for the contingency that they may be reinstated if the US joins? What actually are we voting on today?</p>
  • <p class="speaker">Linda Reynolds</p>
  • The majority voted against an [amendment](;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr6165_amend_32cb1a4d-60d6-4448-91da-858a8c606c55%22;rec=0) moved by Senator [Sarah Hanson-Young](, which means it failed.
  • Senator Hanson-Young [explained her amendment](
  • > *This amendment deals with these most important issues that are lacking in the TPP. As has been pointed out numerous times by me and my colleagues in second reading speeches and also through the committee stage today and yesterday, we are extremely concerned that ISDS provisions remain in the TPP. We also are worried, of course, about the failure to include proper protections for Australian workers through labour market testing.*
  • > *So this amendment says that, until these issues are dealt with, the TPP would not be able to come into effect.*
  • ### What do these bills do?
  • The [bill](;query=Id:legislation/billhome/r6165) was introduced along with [another](;query=Id:legislation/billhome/r6166) to implement the [Comprehensive and Progressive Agreement for Trans-Pacific Partnership]( (TPP-11). Their basic purpose is to implement the customs dimensions of the TPP-11 Agreement by making relevant amendments to the Customs Act 1901 and the Customs Tariff Act 1995. Read more in the [bills digest](
  • ### Amendment text
  • > *(1) Clause 2, page 2 (cell at table item 2, column 2), omit the cell, substitute:*
  • >> *If the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, done at Santiago, Chile on 8 March 2018, enters into force for Australia —the first day that:*
  • >> *(a) both of the following amendments of that Agreement are in force for Australia:*
  • >>> *(i) an amendment with the effect that Chapter 9 of the Agreement, which deals with investor-State disputes, does not apply in relation to investments within Australia;*
  • >>> *(ii) an amendment with the effect that labour market testing must occur in relation to contractual service suppliers entering, or proposing to enter, Australia from all parties to the Agreement; and*
  • >> *(b) another Act is in force that includes provisions with the effect that Australia must not, after the commencement of that Act, enter into a trade agreement with one or more other countries that:*
  • >>> *(i) waives labour market testing requirements for workers from those countries; or*
  • >>> *(ii) includes an investor-state dispute settlement provision.*
  • >> *However, the provisions do not commence at all unless all of the events mentioned in this item occur.*
  • <p>Yes, as I confirmed several times yesterday, there are 22 suspended clauses. As I said several times yesterday as well, they could be reinvoked if the United States rejoins and all parties agree to that.</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>I understand that's what you said, Minister, but I'm seeking more information than that. What is the process for a party like Australia to agree to (a) the inclusion of the US in the deal and (b) the activation of those 22 clauses? Is it a process where the executive and the minister sign a document that says it is okay for the US to join and those clauses to be added, or does it come back to a sovereign parliament, like this chamber, for ratification?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Thank you very much for that question, Senator Whish-Wilson. My understanding is JSCOT has already considered those clauses; however, if the United States does rejoin the process, all the other parties would then also need to agree to those 22 being reinstated. My understanding is that while JSCOT has already considered those, it would come back to JSCOT.</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>So JSCOT has considered those clauses but they are not in this enabling legislation that we're passing today&#8212;at least they're not in there physically. But they are suspended clauses. JSCOT, as we discussed yesterday, Minister, is essentially a rubber stamp for the executive, which has already signed the deal. I won't say the same about the FADT inquiry process, because the opposition tends to control that. So if the US rejoins, the minister signs the re-activation of those 22 clauses, and then it goes to JSCOT. JSCOT presumably produces a report. Does that come back to parliament for ratification?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Whish-Wilson, we've been through this process several times. Again, I can keep giving you the same answer; however, I would point out, as Senator Carr has pointed out very clearly as well, that these are customs amendment bills. These are not a re-prosecution of something that has been addressed very extensively in the community. There have been 1,000 consultations. The parliament has had a look at it at least five times in committees. As you said yesterday, you have been through these issues many times over many years in many estimate processes. So if you would like to keep asking the same question over and over, you will keep getting the same response on these customs amendment bills.</p>
  • <p>As I said, there are 22 clauses; they have been revoked; however, if the United States does come back in, those 22 have been examined and reported on by JSCOT. You and I both know well the process for treaties here in this parliament and also for consideration. But again, that is the process if the United States comes back in, but it would be an issue for Australian negotiators at the time. Of course, if there are any changes, it would come back to JSCOT. In terms of that, there is no more information I can provide at this time after having gone through it several times now.</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>If I could just finish this: Minister, you still haven't answered the most important part of my question, which I will repeat for a fourth time. After going to JSCOT, will it come back to parliament for ratification? That's what we're doing now, right? We are ratifying enabling legislation. Will there be separate enabling legislation for those 22 clauses? Will it come to parliament for ratification?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Whish-Wilson, there is really not much more that I can add to this, because, as I've said&#8212;</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>Answer the question. Yes or no?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Whish-Wilson, you've asked the question. I will answer it&#8212;again and again. It follows the exactly the same standard treaty processes. JSCOT has looked at the current 22 clauses that have now been revoked. If&#8212;and again this is a hypothetical&#8212;the United States joins and all parties agree to proceed, then it would come back to JSCOT, but again it is hypothetical because, at that re-negotiation at some time in the future, the clauses could be amended, they could be updated, they could be changed. They would go through exactly the same standard treaty process that this has gone through in the first place.</p>
  • <p>I'm not sure how much clearer I can be that this is a&#8212;</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>You could answer my question: does it come to parliament?'</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>That's exactly the answer to your question. It follows the exact same process, Senator.</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>Is that a yes?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Yes, it follows the exact same process&#8212;again, in a hypothetical.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>I just want to add to what Senator Whish-Wilson is saying. I just want to point out to the minister that the name of this bill is the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill. This is the only opportunity for the parliament in its formal sense in the chamber to deal with the enabling of the TPP, and so I would ask that you give substantial latitude and be very cooperative. We're not talking about a customs act; we're talking about the acts of parliament that are required to enable an agreement that has taken a long time to negotiate and has been controversial. To come in here and then try to narrow this down to,' This is just a customs act' is in some sense disingenuous. I just wanted to state that.</p>
  • <p>Following up from Senator Whish-Wilson's question so as not to create a hypothetical, would the actual terms, as they currently stand&#8212;and I understand you've been very helpful by saying it comes back to JSCOT and goes through the process&#8212;require some enabling legislation for the treaty to enter into force notwithstanding it comes back to JSCOT? Is there some enabling legislation, not hypothetically, but with the current terms?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Patrick, I'm very grateful for that somewhat patronising explanation of these bills. These are both very clearly customs tariff amendment bills and they are customs bill. I would note&#8212;as I've noted on multiple occasions now with Senator Whish-Wilson&#8212;that the arguments have mostly been in here, and we have spent several hours now on these same issues over and over again. These are issues that don't go to the substance of the bill.</p>
  • <p>It is absolutely your right to keep trying to re-prosecute the TPP-11 itself. There are other opportunities in estimates next week to go through these issues in more detail, which is probably the more appropriate forum, so that the Senate can get on with other business. However, the substantive question that you've just asked is a complete hypothetical because, as I've explained several times, it depends on: if this did come forward again, the United States joined and all parties agreed, they would have a look and reconsider these 22 clauses. If there are changes, they would come back through the process and go to JSCOT. If there was eventually legislation that came back here as part of those negotiations to change the agreements, of course it would come back through here because it would require the customs bills to be amended. But, again, I have nothing more to add to that because it is hypothetical and the normal parliamentary processes would apply.</p>
  • <p class="speaker">Sarah Hanson-Young</p>
  • <p>This just shows what an absolute disgrace this whole process is that we can't even debate the TPP in the chamber today. That's what the minister is telling us: 'No, nothing to see here. You can't have any influence over it, so I'm not going to answer questions or deal with it properly in this place. Go and deal with it later in Senate estimates after the bill has passed.' No, it's not good enough, Minister.</p>
  • <p>The Australian people have a right to have these questions answered before the chamber passes this legislation. It may be that the government feels very comfortable because the Labor Party has rolled over and backed in the TPP, so they've got the numbers. That does not mean that the public and the taxpayers deserve to be treated like mugs, and yet that is precisely what the government has tried to do throughout the three days of debate on this bill so far. Senator Whish-Wilson, Senator Patrick and I have all asked specifically what happens to these 22 clauses if the US comes back to the table. If it's a hypothetical, Minister, why are they simply on ice and not deleted?</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>Very good point! Who puts suspended clauses in trade deals?</p>
  • <p class="speaker">Sarah Hanson-Young</p>
  • <p>There is no need and no reason for these clauses to be suspended if, indeed, they're only hypothetical. They're sitting there on ice, ready to be warmed up the moment the US enter the fray. We all know that. That's what the public commentary from nations has been about across these negotiations. It'd be timely now to have some honesty, truth and courage from the government, to tell people the facts. The Australian government are prepared to see these clauses back in the TPP negotiations because they're not prepared to tell the US to pull their head in.</p>
  • <p class="speaker">Peter Whish-Wilson</p>
  • <p>I think a little bit of history and perspective on this is really important. I think it's commonly accepted that the US&#8212;at least stakeholders and interests in the US&#8212;initiated the TPP. In my speech on the second reading, I talked a little bit about the failure of the Doha rounds and of multilateral trade deals leading towards 2006. When the TPP fell apart, the idea of a separate multilateral deal being led by the US in the Pacific region was initiated. It was supposed to be finished by 2012, but that was really when it actually started getting interesting, and here we are in 2018 with a version of it. But this was a US led deal. Obama put his signature on this and, of course, led it in the US Congress. He was its biggest champion. And, of course, President Trump made an election commitment that if he got elected&#8212;and let's be honest, most of us thought he wouldn't, but he did&#8212;he would tear up the TPP, which he has done.</p>
  • <p>To ignore that this is not a US-driven and US led multilateral trade and investment deal and to say that it's hypothetical that the US might or might not rejoin this deal at some time in the future really is ignoring history. Add that to what Senator Hanson-Young just pointed out: there are suspended clauses in the trade deal&#8212;how often do you have suspended clauses in a trade deal, especially a trade deal this size, that are sitting there, waiting?</p>
  • <p>May I just talk on some of the most egregious aspects of the original Trans-Pacific Partnership agreement, especially in relation to things like intellectual property and monopoly pricing for medicines. Even the previous trade minister, Andrew Robb, took the US to task on the kinds of provisions they wanted to put in on the monopoly pricing of medicine. So those clauses are sitting there suspended, waiting to be re-engaged. It is an absolutely critical question to be asking the government at a point, here and now, when we're about to vote on the enabling legislation. Are we basically voting on a contingency for these to be automatically reactivated if the US rejoins the trade deal or, as the minister has pointed out, does it have to go through a process that ultimately involves a sovereign parliament? Remember, we were elected by the people of this country to make the laws and to scrutinise what the government does. That's what the Senate does. That's what we're doing here this morning, and it's extremely important.</p>
  • <p>Minister, your own government has stood up in here ad nauseam during question time for years talking about how big this deal is&#8212;the biggest trade deal in history, the biggest multilateral trade deal, 40 per cent of our economy is covered by it et cetera. As I said, there are 29-plus-plus chapters in the Trans-Pacific Partnership agreement that literally cover every aspect of our life in this country. Just about every industry and every community is impacted by the TPP, and yet, as I pointed out last night&#8212;and I did lose my temper in here&#8212;you act as though you're insulted that we're asking questions. Considering the gravity of how important this bill is, how big this deal is and how it's taken 13 years to get to this point&#8212;it's extremely controversial, extremely complex and there are thousands of pieces of paper covering an incredible amount of detail&#8212;I personally think we could be in here asking you questions for days on this, considering how much detail there is and how many unknowns there still are.</p>
  • <p>I think you've made it very clear, Minister, that this will come back to parliament if the US rejoins the TPP. I did hear you say in your last statement to Senator Patrick 'only if there's legislation'. I want to narrow that down. I'm being very specific with my questions here. Will it require legislation? I know they may change the clauses and there may be negotiations with our negotiators about the 22 suspended clauses but, if those clauses stand, will they require legislation to be put into any new form of the TPP with US involvement? Will that require coming back to parliament or are we voting on a contingency now for them to be automatically re-engaged, as they are if there are no changes?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Whish-Wilson, you have asked this several times. I have already answered it several times. Again I will reconfirm&#8212;hopefully, for the last time because I've now gone through this several times and I don't think it could be any clearer&#8212;that this process follows exactly the same treaty processes that the government has done for decades.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>