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

He is very much a gentleman! I am very keen to make a brief contribution on this, but there is a great deal more to be said about this agreement in the coming months. I start off by recognising that opening up international trade in a general sense is a good thing. I believe that more commerce between nations can lead to those in poverty being raised up. I do acknowledge that. And it can, of course, establish great mutual interest in peace and stability. I accept that. I also accept that Australia is a trading nation and that there is a clear benefit to our producers from reducing tariffs and other trade barriers. The Minister for Trade has set out at considerable length the benefits that are contained in the TPP, and we welcome those benefits. But we are not getting from the minister a clear-eyed assessment of the net benefit—the cost-benefit. What we see is a great deal of spruiking about the swings but virtually a denial of the roundabouts. Of course, we go through a pro-forma process. We have a document that is called the National Interest Analysis. But this is a document that has been prepared by DFAT, the organisation that has been overseeing the actual negotiation of the agreement. As someone put it, is like getting them to mark their own homework!

Reading through that document, it is a very shallow document. As one of my staff commented, it appears to be more like a set of ministerial talking points rather than a detailed analysis of those things that we could benefit from and those things that will reduce our benefit. I think we need to be very honest and transparent about the good bits and the bad bits, because without that we cannot get to that critical point of making an assessment of whether there is a net benefit in entering into this agreement.

One of the things I have spoken on for a number of these trade agreements is the asymmetry of the labour mobility provisions. In this agreement, that is contained in chapter 12. I think the first noteworthy point to make is that the US has opted out of this chapter altogether. The US has a very clear-eyed position about this, that it does not confuse immigration issues with trade issues and that it does not enter into arrangements about labour market mobility generally in its trade agreements. So the US has opted out altogether.

We have then established a series of side letters with those countries that want to participate with Australia in labour market mobility. We note, for example, Singapore—we have no side letter with Singapore. We have a side letter with Canada, and I have to say that as far as I can see there does seem to be reasonable symmetry with Canada so that the same sorts of people will be allowed into Canada as are allowed into Australia. So I do not have a problem with that. But when I look at Brunei, Malaysia, Vietnam, Mexico and Japan I think there is a very real case that there is asymmetry.

Fundamentally, we have a very misleading descriptor here. If you look at the chapter, it talks about the mobility of businesspersons. Now, when we go back into the annex and we go through the fine detail of the definition of that we see that 'businessperson' is a very broadly-defined category. Indeed, it includes any person with a trade or technical skill who can be employed by an existing Australian employer in Australia. So, fundamentally, it appears from what we can see that anyone who is on the list of eligibility for a 457 visa is eligible to come in from Brunei, Malaysia, Vietnam, Mexico or Japan without—and we believe this is a critical point—labour market testing. There is nothing in those side letters that requires labour market testing.

The other provisions of the 457 visa are included—the provisions about the payment of wages—but the provision in relation to labour market testing does not exist. The only side letter where it appears to be discussed is with Canada, and that is appropriate in the Canadian system because there is a degree of symmetry there in those provisions. We get what we give in the deal with the Canadians, as far as I can see.

So I think these are very real concerns. We need some great clarification from the government about the position of these tradespersons—trade- and technically-skilled people—about whether there will be labour market testing. I think that needs to be entrenched, somehow or other, in our legislative framework.

The other provision I want to raise is for the ISDS. I am sure that the member for Fremantle, who will speak on this issue, will go into this at some length. But I just want to make this statement: we need to look at this in a very rigorous way. I understand the reasons for why ISDSs were set up and what they were designed to protect. But, in reality, we have created an extra-judicial system. We have created a system where our rules—our sovereignty—are being overseen not by an international court but by a private arbitration system that is largely exercised by people who have a commercial interest and who have as their commercial clients the very companies that are seeking to take states on and to sue states over the legislative protections that they may seek for their people. Be it environmental policy, intellectual property or labour market rules that might be being legislated, these can be challenged by these large corporations. These cases are not heard by an international court; they are heard by private arbitrators who, in their day-to-day work, are the very people who represent those large corporations in other fora.

Justice French has made a very powerful argument against these. He said these arbitral tribunals set up under ISDS provisions are not courts, nor are they required to act like courts, and yet their decisions may include awards that significantly impact upon national economies and upon regulatory systems within nation-states. This is a very real issue that we must address not only for this agreement but also more generally. I believe we should be moving towards an international court if we are going to have these ISDS provisions. Again, thank you to the member for Rankin; I look forward to us having a very serious debate on this topic over the next few months.

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