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Monday, 9 November 2015
Page: 8013


Senator WHISH-WILSON (Tasmania) (17:47): Perhaps take that as a point of debate. I might leave it at that. I just wanted to be very clear, before this goes to vote, that the Greens feel that the Chinese free trade deal, in its entirety, has not got the balance right, in relation to the labour market. We feel that it is continued deregulation of the labour market. We have heard, directly, from a number of concerned stakeholders that this is not a pro-worker or worker-friendly trade deal. It is something that is of significant interest to a lot of Australians, especially working Australians.

As I mentioned, in second reading speech, if we had a trade treaty process that allowed for transparent and democratic input during stages of the treaty process, and we had an independent assessment of the national interest, these kinds of things would be captured. That is not just me saying that; that is the direct wording out of the FADT committee—which you are on, Acting Deputy President Back. You were also there for the treaty-making process inquiry, where we heard significant evidence about how fundamentally flawed and broken our treaty-making process is. That would take a lot of the politics out of these trade deals.

Clearly, there are a number of workers around this country—along with the union movement that represents them—who are deeply unsatisfied with this deal that we are about to sign and vote into legislation in this house. They are also very concerned, as a number of other Australians are in a broad section of the community, that the inclusion of an open-ended investor-state dispute settlement clause—ISDS clauses, as we call them, or Trojan Horse clauses—are not necessary in a modern democracy; our corporations have good ways of managing their risk already. As the Acting Deputy President would well know, we do not need to give them special rights to be able to sue governments. They have been very good at doing this over a long period of time and, unfortunately, it leads to strategic litigation and it is a direct affront to the sovereignty of this country.

Once again, read the FADT report. It clearly says that the committee has concerns about the inclusion of ISDS. Those concerns are justified by a large number of stakeholders in this country who are quite respected across different sections of the community. The committee urged the government not to go down the road, in a few years time, when this ISDS is reviewed, by looking at things such as indirect appropriation. I am very pleased that today the Senate voted in favour of the Greens second reading amendment to compel the government not to go down that road in a few years time. Asking us to sign up to an ISDS agreement is bad enough, as it is, but an open-ended agreement—where we do not even know what we are signing into law today—is quite absurd given the level of public interest in this specific aspect.

And it is not just in Australia. It is an enormously important issue in Europe. In Berlin, a month ago, 250,000 people marched in the streets on this issue on their transatlantic trade agreement with the US and Canada. It is a significant issue, in US politics, at the moment. We have heard high-profile politicians, like Hillary Clinton, come out and say they oppose the inclusion of these clauses in trade deals, such as the TPP.

We have done the work. We have done the work in that committee system over the last three years. We have looked at extensive evidence. These things add nothing but risk to our parliaments and they do not add anything to trade flows or investment flows between countries. There is no evidence that they do. They are simply unnecessary.

Unfortunately, there are other issues with ChAFTA that I have already talked about. I do believe the benefits have been overstated. There has been a lot of hype. If it could be proven that it would have significant economic benefits, I think there would be a much stronger argument for us compromising on selling workers down the river or putting ISDS clauses into trade deals, but the Greens do not believe that is the case, and we will be voting against this deal. Who knows what is to come.

We know there are at least another three, if not four, trade deals being negotiated now. To their credit, in their address-in-reply to the Governor-General's speech, the government said they would be known as a government of free trade. They have negotiated three agreements already and there are at least three or four more to come, one of those being the Trade in Services Agreement, an enormous agreement covering 38 countries. It is also being negotiated in secret. We have had one WikiLeaks leak, where we have at least got to see some information. I have heard from unions and workers in this country that they are more worried about the impact of the Indian free trade deal on Australian workers than they are about the Chinese free trade deal. But that is still to come. No doubt that will be lumped on us at the last minute too: 'Here, vote for this. It has already been signed. Like it or lump it.' At least we can have some kind of debate in here, through the committee system, about how we might change this legislation to improve the Chinese free trade deal.

I have to agree with some of the Labor speakers today that it would have been possible to have got a trade deal that at least looked after these key concerns that workers and others in this country have around ISDS if we had a different treaty process, if we had a much better system for letting the government know that these things were not necessarily in the national interest and that they were opposed by an important cross-section of the Australian community. On that basis, I seek leave to move Greens amendments (1) to (6). I understand that I have to move the amendments together because they have not been circulated.

Leave granted.

Senator WHISH-WILSON: In respect of the Customs Amendment (China-Australia Free Trade Agreement Implementation) Bill 2015 I move:

(1) Title, page 1 (line 1), after "Customs Act 1901", insert ", the Migration Act 1958 and the Migration Regulations 1994".

(2) Clause 1, page 1 (line 5), after "Customs", insert "and Migration".

(3) Clause 3, page 3 (line 2), before "Legislation", insert "(1)".

(4) Clause 3, page 3 (after line 5), at the end of the clause, add:

(2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.

(5) Schedule 1, page 17 (after line 17), after Part 2, insert:

Part 2A—Labour market testing

Migration Act 1958

2A After section 38B

   Insert:

38C Temporary Work (Short Stay Activity) visas

(1) This section applies in relation to an applicant for a visa referred to in the regulations as a Subclass 400 (Temporary Work (Short Stay Activity)) visa if:

   (a) the applicant is applying for the visa on the basis that he or she will be engaged to undertake work that is highly specialised; and

   (b) the applicant will be engaged to undertake work as an installer or servicer of equipment or machinery that was supplied on the condition that it be installed or serviced by persons engaged by the person for whom the applicant is undertaking the work; and

(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection 140GBA(2) to require the person for whom the applicant will undertake the work to perform testing of the Australian labour market, and give evidence and information to the Minister, in relation to the work as set out in paragraph (2)(a).

(2) It is a criterion for the visa that:

   (a) the person proposing to engage the applicant to perform the work has:

      (i) performed testing of the Australian labour market, in accordance with the regulations, to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to undertake the work; and

      (ii) given the Minister the evidence in relation to that labour market testing, and the information about redundancies or retrenchments in a business or associated entity of the person, that is prescribed by the regulations, and

(b) having regard to that evidence, and information (if any), the Minister is satisfied that:

      (i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to undertake the work; and

      (ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to undertake the work.

(3) The Minister may, by legislative instrument, exempt applicants in a specified class from the operation of subsection (2) in relation to specified work if:

   (a) the Minister is satisfied that:

      (i) an event has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required; and

      (ii) the exemption is necessary or desirable in order to assist disaster relief or recovery; or

(b) the Minister is satisfied that:

      (i) either or both a qualification prescribed by the regulations, or experience of a kind and for a period prescribed by the regulations, is required to undertake the specified work; and

      (ii) the work is of a kind prescribed by the regulations.

(4) The Minister must ensure that, as soon as reasonably practicable after the commencement of this subsection, and at all later times, there are in force regulations for the purposes of subparagraphs (2)(a)(i) and (ii).

(5) Words and expressions used in this section have the same meanings as in section 140GBA.

2B Paragraph 140GBA(1)(a)

   Repeal the paragraph, substitute:

   (a) the approved sponsor is:

      (i) a standard business sponsor (within the meaning of the regulations); or

      (ii) in a class of sponsors prescribed by the regulations; or

      (iii) a person (other than a Minister) who is a party to a work agreement that is entered into on or after the commencement of this subparagraph; and

(6) Schedule 1, page 17 (after line 17), after proposed item 2B, insert:

Migration Regulations 1994

2C After paragraph 457.223(2)(d) of Schedule 2

   Insert:

   (da) if the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation in Australia—either:

      (i) the applicant holds that licence, registration or membership, and has given the Minister a copy of the licence, registration or membership; or

      (ii) the applicant demonstrates that he or she can meet the requirements to obtain that licence, registration or membership; and

2D After paragraph 457.223(4)(e) of Schedule 2

   Insert:

   (eaa) if the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation in Australia—either:

      (i) the applicant holds that licence, registration or membership, and has given the Minister a copy of the licence, registration or membership; or

      (ii) the applicant demonstrates that he or she can meet the requirements to obtain that licence, registration or membership; and

2E Paragraph 8107(3)(c) of Schedule 8

   Repeal the paragraph, substitute:

   (c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated—the holder:

      (i) must not perform the occupation until the holder holds the licence, registration or membership; and

      (ii) must hold the licence, registration or membership within 60 days after the holder's arrival in Australia; and

      (iii) before the holder performs the occupation—must give the Department documentation of the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

      (iv) must comply with each condition or requirement to which the licence, registration or membership is subject; and

      (v) must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

      (vi) must notify the Department, in writing, as soon as practicable of any changes to the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject.