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Thursday, 27 November 2014
Page: 9521


Senator WONG (South AustraliaLeader of the Opposition in the Senate) (12:45): I rise to speak on the Customs Amendment (Japan-Australia Economic Partnership Agreement Implementation) Bill 2014 and the Customs Tariff Amendment Japan-Australia Economic Partnership Agreement Implementation) Bill 2014. On behalf of the opposition I indicate our position, which is as was expressed in the other place: that we support the passage of these bills, which are an important part of the implementation process of the Japan-Australia Economic Partnership Agreement.

I do want to raise an issue about timing, and there may be a clear explanation of this, but the government announced negotiations on this agreement concluded on 7 April 2014. The opposition, at the request of the government and from representations by Japan, has facilitated timely parliamentary consideration. But we are debating this legislation in the second-last sitting week of the year. As I said, there may be an explanation for the time frame between April and now as to why that is the case but it does seem that there has been some delay.

Enough of that: I want to move at the outset to the importance of trade. Labor has a long history of supporting stronger trading relationships with our region and the world. In fact, when I had the privilege of giving the 'Light on the Hill' speech and exploring some of the speeches and policies of Ben Chifley, the former Labor prime minister, it was quite clear that in fact even then the Labor Party was talking about the importance of trade with Asia. Of course, previously in this place, I laid out the history of trade liberalisation under Labor governments, whether under the Chifley government or subsequently the Whitlam, Hawke, Keating and, of course, the Rudd and Gillard governments. We in the Labor Party support trade because it is all about ensuring that we can try to create more jobs and build higher living standards for Australians. Fundamentally, Australia—given the size of our market—will not be able to do that if we sell only to ourselves. So it is a fundamental economic principle, and that has guided this trade liberalisation approach of the Labor Party over successive Labor governments.

The most recent exposition of Labor's position on this in many ways in government was the Australia in the Asian century white paper, which the former Labor government commissioned. That mapped out the opportunities and challenges for Australia in our region. My colleague in the other place, Ms Plibersek, outlined some of these pathways. These, of course, were part of a whole-of-government plan to encourage and support Australian business operating in and connecting with growing Asian markets. The white paper noted that Australian business and their employees have their potential to be big winners from the Asian century, with new and expanding opportunities for our miners, manufacturers, farmers and, importantly, service providers. Services are obviously a large part of our domestic economy and a smaller part of our exports. Over the decades to come I think all Australians would hope to see high-quality services being delivered to the growing markets of Asia, enabling good jobs and better living standards for Australians.

But, as we all know, Australian businesses, no matter how competitive they are, no matter how highly skilled their employees are and no matter how innovative they are cannot participate fully in the Asian century if they have restricted market access. This is why, in addition to pursuing multilateral progress and plurilateral agreements, the former Labor government was committed to concluding high-quality bilateral trade agreements with our trading partners.

I want to turn now to the initial reaction to the economic partnership agreement with Japan. I regret to say that this criterion of high-quality agreements has, certainly from the perspective of many stakeholders, been downgraded by the government in its quest to stage signing ceremonies to coincide with bilateral visits. Many Australian industries have expressed concern about being short-changed. We know that the announcement of the Japanese agreement was timed to ensure that it coincided with the Prime Minister's visit to Japan in April.

The public record records the disappointment of the National Farmers' Federation and of key export sectors. The NFF said the agreement falls far short of the mark and it does not improve, or marginally improves, market access and terms of trade for a number of sectors, such as dairy, sugar, grains, pork and rice. Australian Pork Limited described the agreement as 'substandard' and a 'missed opportunity'. Canegrowers called it 'yet another kick in the guts for Aussie cane growers'. The Ricegrowers' Association of Australia was extremely disappointed. The Dairy Industry Association of Australia observed, 'Our words fell upon deaf ears.' One wonders, given the litany of views that I have outlined from these industries, where the National Party was when these complaints were being raised with the government.

After the tabling of the text of the agreement some months after the conclusion of negotiations, there have been two parliamentary inquiries relating to the economic partnership agreement. The first was by the Joint Standing Committee on Treaties, known as JSCOT. I thank the committee on behalf of the opposition for its work in investigating and reporting on the Japan-Australia Economic Partnership Agreement and also to those businesses, organisations and individuals for their valuable and informative submissions and statements made to the inquiry.

The JSCOT report was unanimous and, whilst it acknowledged the limitations of the agreement, the committee report highlighted several benefits of the bilateral trade agreement. These benefits included improved market access for some Australian exporters of goods and services including particularly beef, wine, horticulture, energy and resource products as well as services. Secondly, they included a first-mover advantage for Australian industries, providing exporters with time to build strong, quality and reliable brand names in households throughout Japan. I note this is of some significant advantage because Japan is currently negotiating a number of trade agreements, including some with some of Australia's key agricultural competitors. Thirdly, they included favourable review mechanisms and most favoured nation provisions which hold promise for wider and deeper market access. And finally, they are a first step with potentially greater improvements to come as a result of the outcome of ongoing negotiations that are occurring regionally.

JSCOT concluded that it was satisfied that the Japan-Australia Economic Partnership Agreement has the potential to provide Australian business and industry with a range of profitable opportunities, and that binding treaty action should be taken. The opposition agrees that this agreement does have the potential to provide opportunities and we urge the government to assist business in realising those opportunities. We welcome industry outreach in education programs, in particular by the Australian Customs and Border Protection Service, but note there is more to be done. We also commend efforts by industry groups and business groups, including the Export Council, to extend the reach of benefits under free trade agreements. Labor also maintains its position of encouraging greater transparency and simplicity in administration and rules so that many businesses can possibly benefit from the opportunities in this agreement. We urge the government to proactively utilise the review mechanisms built into the agreement in order to gain further access to the Japanese market.

The second inquiry was conducted by the Senate Foreign Affairs, Defence and Trade Legislation Committee which examined the provisions of the bills before the chamber, and we welcome the second report. During a prior inquiry into bills relating to the implementation of the KAFTA—the Korea-Australia Free Trade Agreement—the Senate Legal and Constitutional Affairs Legislation Committee recommended that customs make available a table which refers to each of the specific provisions of the KAFTA, and identify where those provisions have been adopted or have been proposed to be adopted into legislation, regulation or procedure. Such a table was subsequently produced and is now available on the Australian Customs and Border Protection Service website. This is a practice which arose directly out of Senate committee recommendations—an example of government and legislative process being improved through the adoption of Senate committee recommendations—and I urge the government to continue to take this approach. I understand that a similar table in relation to the partnership agreement before us is not yet available, and will be after the legislative processes are finalised. Labor's suggestion is that the recommendation of the committee—that the customs service make publicly available the table which refers to each specific provision and which also identifies where those provisions have been adopted or are proposed to be adopted, whether in the bills otherwise in legislation or regulations or by procedure—be accepted. So, consistent with recommendations not just from the Senate committee but also from groups such as the Customs Brokers and Forwarders Council of Australia and the Export Council of Australia, I would ask the government to ensure that the table for the Japan-Australia Economic Partnership Agreement be published today. I note that the minister's adviser is here in the box and I wonder if he could do us the courtesy, perhaps, of passing that indication from the opposition on to the government, particularly in light of our facilitation of the legislation before the chamber.

We also urge the government to improve transparency on trade agreements. I again draw the attention of the government to the resolution passed by the Senate on 11 December 2013 requiring the tabling of concluded trade agreements at least 14 days prior to signature. The government's announcement of the China-Australia Free Trade Agreement—another photo-opportunity—is another example of trade agreements being choreographed by the Prime Minister's office with little transparency about the detail of the agreement. I reiterate that the opposition expects the government to table the concluded agreement before signing, particularly given the government has already announced substantial portions of the agreement. There is no argument by the government that it should not table the text after the agreement is concluded but prior to signing.

I would also indicate, given that the minister's adviser did not acknowledge my previous request, that I would be grateful if the representing minister could perhaps pass this on. The opposition wrote to the government on Wednesday 19 November seeking a full briefing on the China-Australia Free Trade Agreement. I did have a conversation with the minister to follow up this request, but we have not yet received a response to this request. In the interest of ensuring that the opposition is fully briefed on such an important arrangement, I would ask if the government could follow this request up. We have demonstrated a cooperative approach in relation to this bill, and where possible—and it is not always possible, but where possible—the opposition seeks to bring a bipartisan approach to trade policy and legislation where it is in the national interest. I would ask the government to do the opposition the courtesy of responding to that request shortly.

There are some areas in terms of trade policy where we do part company from the government, and I am pleased to say that one of those aspects is not an issue in this agreement. We welcome the absence of an investor-state dispute settlement provision in this agreement. In contrast to other agreements concluded by the government, the Japan-Australia Economic Partnership Agreement does not provide foreign investors with greater rights than domestic investors. We note with some concern the review mechanisms embodied in this agreement do make reference to ISDS, and it is difficult to understand why the signing of a future agreement with another nation containing an ISDS provision should trigger a review under Australia's agreement with Japan. Last week the government announced it had substantially concluded negotiations on a preferential agreement with China that regrettably includes an ISDS and we remain concerned on this side of the chamber with that inclusion.

Pursuant to the terms of this agreement with Japan, Australia must commence a review within three months following the date the China-Australia agreement enters into force with: 'a view to establishing an equivalent ISDS mechanism,' under the agreement with Japan. I wish to record our concern with this. I wish to, again, say that the government should not ignore the concerns of many Australians—including the Chief Justice of the High Court of Australia— regarding investor state dispute settlement provisions.

The Labor government announced, in 2011, it would not agree to provisions in investment and trade agreements that confer greater rights on foreign businesses than domestic businesses and, in particular, that we would not see their inclusion in any trade agreement. We, again, urge the government to rethink its decision to include settlement provisions such as these in trade agreements, and we caution against any possible backdoor introduction of such an agreement through the review provisions in the Japan-Australia agreement. I flag that a future Labor government would exercise Australia's right as a party to the agreement to propose the excision of any subsequently included ISDS provisions.

Another area where the opposition has laid down a marker is in relation to the movement of people provisions. We do believe that any trade agreement should increase, not replace, Australian jobs. We do believe that the movement of people provisions should include the requirement to undertake labour market testing or other safeguard in the agreement. We do believe Australians should have the opportunity to fill job vacancies where they have the capacity to do so. The government's failure to include labour market policy space for labour market testing in this and other agreements do not support that objective.

Australia and Japan have a strong and stable relationship, a good relationship, and one that we do want to continue to build on. We welcome the opportunities provided by this agreement to further build on that relationship and to grow our economies and domestic employment. Labor do believe that the Abbott government should have secured a more comprehensive and inclusive agreement with Japan. However, we do recognise the agreement provides benefits to Australia. We support the bills before the chamber, which are critical to the implementation of the agreement.

Consistent with the position we outlined in the other place this support is not without reservations and, for the reasons I have canvassed, both in this debate and more broadly, I move the following second reading amendment, which has been circulated in the chamber:

At the end of the motion, add:

but the Senate calls on the Government to:

(a) not agree to any inclusion of investor state dispute settlement provisions in the Japan-Australia Economic Partnership Agreement;

(b) enact policies to ensure that Australian workers benefit from jobs growth created under the Japan-Australia Economic Partnership Agreement; and

(c) utilise the review mechanisms in the Japan-Australia Economic Partnership Agreement to seek further market access gains, especially in agriculture.