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senate vote 2019-11-26#3
Edited by
mackay staff
on
2020-05-29 11:48:01
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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 - Australia-Hong Kong Free Trade Agreement
Description
<p class="speaker">Cory Bernardi</p><p>Senator Steele-John, you have another amendment to move?</p> <p class="speaker">Jordon Steele-John</p>- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2019-11-26.64.1) introduced by WA Senator Jordon Steele-John (Greens), which means it failed. The amendment was introduced in order to replace a table item 4 in clause 2 of the [Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/r6426).
- Senator Steele-John [explained that](https://www.openaustralia.org.au/senate/?gid=2019-11-26.64.1) the amendment related to the Australia-Hong Kong Free Trade Agreement. It would have delayed the commencement of Schedule 3 until the latest of the following dates:
- > *(a) 20 October 2020;*
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- > *(b) the day this Act receives the Royal Assent;*
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- > *(c) the day the Free Trade Agreement between Australia and Hong Kong, China, done at Sydney on 26 March 2019, enters into force for Australia.*
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- > *However, the provisions do not commence at all if the event mentioned in paragraph (c) does not occur.*
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- > *The Minister must announce, by notifiable instrument, the day the Agreement enters into force for Australia.*
- The [explanatory memorandum](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fems%2Fr6426_ems_8d5f3031-1911-4847-a508-ecf5688cbd98%22;rec=0) explains that:
- > *Schedule 3 of the Bill amends the Customs Act to provide rules for determining whether goods are Hong Kong originating goods and therefore entitled to be imported into Australia at preferential rates of customs duty. The amendments also enable regulations to prescribe record keeping obligations on exporters and producers of goods exported to Hong Kong, China for which a preferential rate of customs duty is claimed.*
<p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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.</p><p>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.</p><p>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.</p><p>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':</p><p class="italic">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).</p><p class="italic">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).</p><p>It goes on to say:</p><p class="italic">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.</p><p class="italic">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).</p><p>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:</p><p class="italic">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 …</p><p>This is a barrier and an issue which the government is already confronting on our home turf in relation to identity capabilities. It continues:</p><p class="italic">… Operational parameters are specified by developers and configured by users with design outcomes in mind that privilege some values and interests over others …</p><p>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?</p> <p class="speaker">Simon Birmingham</p><p>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.</p><p>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.</p> <p class="speaker">Jordon Steele-John</p><p>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:</p><p class="italic">(3) Clause 2, pages 2 and 3, table item 4, omit the table item, substitute:</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.'</p><p>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?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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