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senate vote 2019-11-26#2
Edited by
mackay staff
on
2020-06-05 09:48:25
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Title
Bills — 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- Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019 and another - in Committee - Labour market testing
Description
<p class="speaker">Katy Gallagher</p><p>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?</p> <p class="speaker">Simon Birmingham</p>- The majority voted against a [motion](https://www.openaustralia.org.au/senate/?gid=2019-11-26.50.1) introduced by WA Senator [Jordon Steele-John](https://theyvoteforyou.org.au/people/senate/wa/jordon_steele-john) (Greens) in respect to requiring labour market testing. Senator Steele-John [explained that](https://www.openaustralia.org.au/senate/?gid=2019-11-26.50.1):
- > *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.*
- However, ACT Senator [Katy Gallagher](https://theyvoteforyou.org.au/people/senate/act/katy_gallagher) (Labor) [explained that](https://www.openaustralia.org.au/senate/?gid=2019-11-26.51.1):
- > *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.*
- ### Motion text
- > *(2) Clause 2, pages 2 and 3, table items 2 to 4, omit the table items, substitute:*
- >
- > *2. Schedule 1*
- >
- >> *If the Peru‑Australia Free Trade Agreement, done at Canberra on 12 February 2018, enters into force for Australia—the first day that bilateral side letters exchanged between Australia and each other party to the Agreement agreeing that labour market testing must occur in relation to contractual service suppliers, working holiday visa holders and training visa holders entering, or proposing to enter, Australia from the other Party are in force for Australia.*
- >>
- >> *However, the provisions do not commence at all unless all of the events mentioned in this item occur.*
- >
- > *3. Schedule 2*
- >
- >> *If the Indonesia‑Australia Comprehensive Economic Partnership Agreement, done at Jakarta on 4 March 2019, enters into force for Australia—the first day that bilateral side letters exchanged between Australia and each other party to the Agreement agreeing that labour market testing must occur in relation to contractual service suppliers, working holiday visa holders and training visa holders entering, or proposing to enter, Australia from the other Party are in force for Australia.*
- >>
- >> *However, the provisions do not commence at all unless all of the events mentioned in this item occur.*
- >
- > *4. Schedule 3*
- >
- >> *If the Free Trade Agreement between Australia and Hong Kong, China, done at Sydney on 26 March 2019, enters into force for Australia—the first day that bilateral side letters exchanged between Australia and each other party to the Agreement agreeing that labour market testing must occur in relation to contractual service suppliers, working holiday visa holders and training visa holders entering, or proposing to enter, Australia from the other Party are in force for Australia.*
- >>
- >> *However, the provisions do not commence at all unless all of the events mentioned in this item occur.*
<p>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.</p> <p class="speaker">Katy Gallagher</p><p>Is that the best you can provide the chamber with in terms of any specific time frame for resolution?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Katy Gallagher</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Katy Gallagher</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Katy Gallagher</p><p>Are you aware of other FTA partners doing the same work as we've just been talking about?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>Can you explain to the chamber the specific provisions that exist within the Hong Kong free trade agreement, in relation to tobacco?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>I outlined that in my previous answer.</p> <p class="speaker">Jordon Steele-John</p><p>I take that as a yes, as the word you were looking for. Let me just make this clear: did the Australian government seek to insert similar explicit mention of tobacco within the Peruvian and Indonesian agreements?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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?</p> <p class="speaker">Cory Bernardi</p><p>There's no response, Senator Steele-John, so you have the call.</p> <p class="speaker">Jordon Steele-John</p><p>I'm not fluent in Auslan, so I'm not sure whether that's a yes.</p><p>The TEMPORARY CHAIR: Just one moment. Let's get it on the <i>Hansard</i>. Minister, if you'd like to make a contribution, you have the call.</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Katy Gallagher</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Katy Gallagher</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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.</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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:</p><p class="italic">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.</p><p>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?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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