Alannah Mactiernan (Perth, Australian Labor Party) Share this | Hansard source

I, like all of my colleagues, support the Migration Amendment (Charging for a Migration Outcome) Bill 2015. I also endorse the comments made by previous speakers that this bill does not go far enough.

Today, I wish to talk about a problem that is going to be coming to us down the track. Now that we have entered into multiple free trade agreements—the Japan-Australia Free Trade Agreement, the Korea-Australia Free Trade Agreement and the China-Australia Free Trade Agreement, and I will not necessarily incorporate the Trans-Pacific Partnership in this, because I am not familiar with the labour movement of people provisions within that document—I want to make some comments about an issue that I anticipate, and other people are anticipating, will arise from the KAFTA and the ChAFTA agreements.

These comments are in relation to the provisions within those documents that relate to the supply of contractual services. We know that there are an ever-expanding range of occupations, certainly not just managerial professional but a very broadly defined range of technical skills that are caught within these free trade agreements for which there is, very explicitly, no labour market testing. I am not talking, at this point, about those things that are subject to the IFAs, because we did get some modest labour market testing requirements incorporated into that, but those substantial provisions of KAFTA and ChAFTA where, indeed, there is no labour market testing, and it may be even with the IFAs, because the provisions for labour market testing have been so modest.

This arises around the sale of jobs. The legislation that we are contemplating makes it illegal for people within Australia to engage in conduct that you might describe as selling a job. There is some capacity for some extra territorial application of this legislation, both in terms of the criminal and the civil provisions, but they are constrained. The real bulk of where we are going to see this problem emerge, in my view, is not going to be captured at all by this legislation.

I know from talking to people who routinely do business in China that there are many jobs that are for sale—for example, if you wanted to get a job at the Shanghai port. I am not necessarily talking about the senior executive positions but where one pays someone for that job. This is repeated, as I understand it, in many areas within China and very often when—as I have personally witnessed throughout South-East Asia—there are many Chinese projects and they bring in their own workforce and their entire construction programs. For example, in East Timor all of the Chinese aid projects that came in, such as building the presidential palace and building foreign affairs departments, involved a totally Chinese workforce.

Now, it is very possible that there could be—and I am not making the allegation in respect of those particular projects, but one would be naive to think that there would not be, in some areas—the sale of these jobs. People who are obviously very desperate and very keen to get the opportunity of working in Australia for Australian wages would be prepared to pay an agent or a prospective employer for the opportunity to take on that job. As far as I can see, even looking at those provisions that give some extended extraterritorial reach, in this legislation we are not necessarily going to be able to prosecute this sort of conduct. Imagine that we have a project that is going to be developed by a Chinese company, a company that is resident and registered in China. It or certain executives perhaps of that firm engage in conduct that would see those jobs effectively being sold. The jobs that involve coming to Australia and delivering the project in Australia—that opportunity being a very marketable asset—could be sold.

When I look at this—and I note the ministers' advisers there, and I would be very interested to see—I hope I have got this wrong. When I look at the extraterritorial provisions, those companies would not be able to be prosecuted in Australia. They would not be able to be fined. I think we could deal with this. We could deal with this insofar as making an amendment, perhaps, to the Migration Act such that, if they are bringing people in under contractual services, there is some requirement for them to be registered in some way within Australia so that these provisions, the reach of this protective legislation, are available.

I do not want to become overwrought about this particular problem, but I understand from reading the literature on these cases—and I have no capacity to judge whether or not it is a fair and reasonable assessment of the cases—that this is something that is going on and that we are seeing around the world something that is almost approximating a system of indentured labour. A person buys a job. They or their family then become obligated in their home country to pay either the employer—who, being a foreign national, is not necessarily captured by this legislation—or a third-party provider in a foreign country, who is not captured by this legislation. They are required over a period of many years to pay off a debt that is incurred by virtue of their entering into this employment opportunity in Australia. There are some who say that we risk going back to a situation of indentured labour, which was endemic throughout South-East Asia and indeed for some time in Australia.

Again, I do not want to be overwrought about this, because I do need clarification on this extraterritorial reach, but I do think we need to flag this as a problem. We need to flag this as a problem that arises out of the fact that now the 457 visas that will be granted for the contractual services—indeed, possibly even the IFA—may become assets to be sold in another country to people desperate to make a better life for themselves and understandably wanting to take this opportunity. We view these workers as being paid the equivalent of Australian workers, and that is very important, but we cannot guarantee to what extent they may in their home country in fact have a big debt bond that will be required to be paid by them or by their family.

I just want to flag that as something that I think is an issue that we are going to have to deal with, that we are going to have to grapple with, over the next couple of years because it will be a serious issue for us. I think there is a great naivety that is often shown by proponents who say: 'Why would these foreign employers want to bring in their own workforce when they can employ Australians? They don't have to fly them over.' As I say, we know that at least part of the answer is that there is the capacity to benefit from the sale of the jobs. It is not the worker that is necessarily getting the benefit but indeed the proponent, or it might be people acting illegally within the proponent but nevertheless getting the benefit of selling these jobs and really undermining the protection that this legislation purports to give us.

With those comments, I will leave it, but I just say that I think that we need to have a much greater watching brief on how the importation of overseas workers occurs under these new free trade agreements.

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