Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the Customs Amendment (China-Australia Free Trade Agreement Implementation) Bill 2015 and a related bill. The question is that the bills stand as printed.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Chair, I cannot remember exactly, but I thought I was in continuation.

The TEMPORARY CHAIRMAN: You are.

Thank you. I outlined in my earlier statement a little detail around why the Greens are bringing these amendments.

I would like to now ask some questions about the amendments themselves. To quickly rehash, there are six amendments. Amendments (1) to (4) are fairly straightforward. They relate both to labour market testing and licensing requirements. Amendment (5) relates to labour market testing, and amendment (6) relates specifically to licensing requirements.

Minister, in relation directly to subclass 400 visa holders, which includes installers and services, I mentioned some of the stakeholders who had concerns that the current deal between Labor and the Liberals relating to IFAs does not cover the employment of Chinese workers who are employed by standard 457 visa sponsors, or direct employers, who are not part of an IFA, and that under the terms of CHAFTA these workers would not be subject to labour market testing. Can the minister confirm if labour market testing is required for this subclass and class of visas?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

Can I just seek clarification. Are you referring to subclass 400 visas?

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, particularly subclass 400 visa holders, but if you could also make comments around contractual service providers entering into the subclass 457 visa holders, as well. The question is basically this: can you confirm that no labour market testing is required for those two categories?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I am advised that it is not required if it is in contravention of our international obligations in relation to subclass 400 temporary-work, short-stay activity visas. A clarification: in relation to the 400 visa, no labour market testing is required. The very nature of a 400 visa is that it is a very short term visa for a very specific purpose. The government does not believe that there is any necessity for labour market testing in this particular space. In relation to 457 visas, my previous answer stands—that is, not if it is in contravention of our international obligations.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

In relation to the 400 visa holders, could the minister confirm, specifically in relation to the short-stay visas, whether there is a cap or a limit on the number of visas that can be issued?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I am advised that there is not any cap. However, there is no evidence to suggest that there is any reason for an acceleration in this particular visa. My understanding is that the medium-stay period for a 400 visa is just 20 days.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Could you confirm, or perhaps explain, whether these types of visas can be renewed continually, and what is the process after the 20-day period?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

My understanding is that the applicant must go offshore if they wish to re-apply for a 400 visa.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Do they need to go through any new process once they are offshore?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

A whole new process is required for a reapplication for a 400 visa.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I have a few questions relating to licensing requirements. I will get to those in a second. In relation to labour market testing, does the minister accept some of the criticisms that the committees—both JSCOT and the Foreign Affairs, Defence and Trade Committee—received around the concerns that the removal of the requirement for labour market testing in these categories means that Australian workers could lose employment opportunities to temporary migrants?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

No, I do not support that contention. There is no reason for us to believe that.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

For example, in their submission to the Foreign Affairs, Defence And Trade Committee, the Electrical Trade Union said that the removal of the labour market testing provisions for issuing 457 visas to Chinese workers sets the stage for Australian workers to be robbed of opportunities and undercut by a new class of immigrant working poor.

We also had several submitters arguing that there are existing problems with a lack of enforcement of standards for 457 visa workers, and we heard examples of temporary migrant workers being employed in unfair and unsafe conditions. Could the minister address the enforcement provisions currently in place to prevent this from happening?

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

On the same subject, I wondered if the minister could also indicate to me if these rules, particularly for 457 visas, have been consistent for a number of years. I am not sure if the minister will be able to answer this, but was there labour market testing for the celebrated case of a 457 visa applicant who ended up working in the office of a Prime Minister a few years ago. I am wondering what the market testing arrangements were back then and whether they are the same now under the China-Australia Free Trade Agreement? I am curious to understand the correlation between the testing that was required some years ago, which I am sure the Greens political party would have, as well, raised as issues at the time. I am curious—but I am not sure if the minister will be able to give me information from back in the time of another government—as to what labour market testing there was. Are we led to believe that there was not another single person in the whole of Australia who could run the Prime Minister's office at the time? That is one part of my question to the minister.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I raise a point of order, Mr Temporary Chairman. It is just a process issue. I asked a question of the minister, and I am wondering how you put precedence on questions, because I think that Senator Macdonald is asking several here. I want to highlight that I had asked a question.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

There is no point of order, Senator Whish-Wilson. The question is relevant to what you were asking, and when Senator Macdonald finishes his contribution we will call on the minister.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I apologise to Senator Whish-Wilson. It was germane to his question, and I thought that, when the minister was answering Senator Whish-Wilson's question, she might be able, as part of that, to answer my questions as well. The other thing that the minister may or may not be able to assist with is whether the visa arrangements under the China free trade agreement are similar to those in the free trade agreements that were entered into during the period from 2007 to 2013—that is, the time of the Rudd-Gillard-Rudd governments. I do not think that there were many free trade agreements, but I have a suspicion that one of the South American countries entered into one at that time—perhaps it was the Mexican free trade agreement. I am wondering, for the sake of comparison, whether the arrangements under the China free trade agreement are similar to those that applied in other cases or whether there has been a change.

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

In the first instance, as was rightly pointed out by Senator Macdonald, anybody who employs somebody on one of these visas is required to demonstrate that there is no Australian capable of undertaking that job. In relation to comments about the previous Prime Minister's office and how they dealt with the issue of the 457 visa, I have absolutely no idea. It is something that you may need to find out elsewhere. I am not privy to the information in relation to the employment of the person who was in the previous Prime Minister's office on a 457 visa. In relation to anybody who is in breach of their obligations in the employment of somebody on one of these visas, there are very clear sanctions. They will be issued against any business that breaches their obligations in relation to the employment of people on these types of visas.

In answer to your question, Senator Macdonald, about any free trade arrangements that were signed between 2007 and 2013, my understanding is that the only agreement that was signed during that time was with Chile and that the conditions that related to labour market testing were largely the same as the conditions that have been contained in the recent free trade agreements that have been signed with a number of our close Asian partners and neighbours.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Could I get the minister to clarify again in relation to that question? She said that there were clear penalties for breaches. We heard evidence that there have been continual breaches. I asked specifically about a lack of enforcement of standards. Could the minister give us an indication of how you audit these things and some metrics around how many audits you have done and what you have found?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

Firstly, for any breaches that are identified I would suggest very strongly that they should be reported. The process through which one reports any breaches in this particular space is through the Fair Work Ombudsman, and the Fair Work Ombudsman does regular and frequent audits and checks to ensure that any conditions of visas are being complied with.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

A word that rhymes with 'reported' is 'rorted'. I wanted to know if you have any data or whether you could answer the criticisms that we received during the Senate inquiry. Do you know how often these things are audited in the first place, and what results have you from the presumably limited audits?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I can advise that there have been an increased number of resources made available to the Fair Work Commission to operate in this space. My understanding is that somewhere between three and five per cent of businesses in this area are audited at some stage by Fair Work Australia and that there is a very, very low incidence of inappropriate or illegal activity occurring in this space.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I would have thought that three per cent of a growing pool of these visas is a very low number. We heard, for example, from the Australian Nursing & Midwifery Federation. Their comment was:

We note that temporary visa holders working in health and aged care under the visa class 457, 442 and 485 along with international students and working holiday makers now constitute a significant and growing temporary migrant workforce at a time when local nurses and midwives are struggling to gain employment.

I wanted to note that for the record because Senator Macdonald was trying to say that these things have always been in place under previous governments. The point I am making is that the evidence the committee heard and that I have heard is that these kinds of visas are growing in number. Of course, we expect that under the 'fiesta' of free trade deals that are being signed at the moment they are likely to significantly increase, so the allocation of resources to audit these things I would have thought was absolutely necessary given the evidence that the Senate has heard.

I would like you to clarify whether under both visa subclasses 400 and 457 there are any circumstances where labour market testing is not required before granting foreign installers and service subclass 457 visas.

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

In relation to subclass 400 visas, as I have said before, we do not require market testing. In relation to the 457 visas, as I have said before, the market testing is only not required if it is in contravention of our international obligations.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I now have some questions to ask around amendment (6), which relates to licensing requirements. Previous to question time, I mentioned, in my summary of why we brought these amendments, that the Greens would like to see dual responsibility on both the visa holder and the sponsoring employer to provide evidence of obtaining a licence within 60 days. Essentially, we would like to put a reverse onus of proof onto the employer or sponsor. Can the minister perhaps explain why that is not a good idea and why that would not be a simple way of making sure that everybody had a valid licence and was therefore certified in their skills level to an acceptable standard under Australian law?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I am advised that the government has already agreed to introduce regulations to ensure that state and territory jurisdictional obligations and licensing requirements are being met.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Could you explain how the new regulations that you will introduce will interact with the trade deal and the substantive content that is in the trade deal at the moment—not the enabling legislation but what is actually in the trade deal?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

The regulations that we are referring to are not exclusively enacted for the trade deal. However, a number of the workers who may come in as part of the trade deal will be on 457 visas and the regulations would apply to them, but it is not exclusively restricted to this particular deal.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I was just interested. Maybe I am being a bit simplistic, but, if you are bringing in new sets of regulations—and you are presumably drafting those at the moment—how will they interact with the agreement that we have with the Chinese government around things such as the licensing requirements that we have now? Given that they are signing a deal with us on the basis of what is in the substantive trade text, how will new laws impact on that trade deal?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

This is actually state and territory law. We are required by state and territory law to undertake these mandatory actions. The licences and the registrations and the memberships are required under separate state and territory law.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Once again, perhaps you could clarify for me. My understanding is that Australia has also agreed to review all remaining occupations within the next two years with the aim of further reducing the number of occupations or eliminating the requirement within five years. That is at annex 4, in the side letters. In relation to those occupations, we already have an agreement to remove the requirement for a mandatory skills assessment for the occupations of automotive electrician, cabinet-maker, carpenter, carpenter and joiner, diesel motor mechanic, electrician general, electrician special class, joiner, motor mechanic general, and motorcycle mechanic. How does annex 4 in the side letters fit in with the states and territories changing those laws?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

In relation to skills assessments, the department retains the right to request and undertake those skills assessments. As I said in answer to your previous question, they are not able to undertake any work until such time as they have secured the necessary licences, memberships or registration requirements under state legislation. Federal jurisdiction still relates and is capable of coming into force in relation to skills assessments.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

For example, would it be possible for you to incorporate in the review putting the onus on the employer for the accreditation that we are discussing? I mean the review by the states and territories that the minister was talking about.

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

The regulations that we were referring to simply clarify what is already required by law in the states and territories. It is mandatory that anybody who is seeking to work in a particular field has the relevant licences from the state or the territory. The regulations only seek to clarify that this is absolutely a requirement.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

In relation to the mandatory skills assessment, could you outline for me who is responsible for obtaining the skills assessment?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I am advised that, if the department—in terms of the application—is not absolutely certain that the skills are correct, the department has the capacity to require a skills assessment of the person before they are able to start work in Australia.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

What I was more interested in knowing is: in terms of the skills assessment, is the employee or the employer or the sponsor responsible? As a follow-up on that, what assistance will the government provide to foreign workers to obtain skills assessments, if foreign workers are responsible?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

The onus is on the employee to demonstrate that they have the skills.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Did you say the onus is on the employee?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

Yes.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

So there is no obligation on the employers or the sponsors at all to assist employees to obtain the skills assessments?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

The employer is required to pay the employee when they arrive in Australia. It would seem a little nonsensical or counterintuitive to be paying somebody when they are not actually qualified to work, because they have not gone through the appropriate skills assessment or gone through the appropriate processes to be registered or licensed or have the necessary membership to undertake the job. There seems to be a dual onus on both the employer and the employee, for fairly obvious market reasons, to ensure that these conditions are complied with before the person arrives in Australia and starts work.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

At the FADT hearing, where we took evidence on the skills assessment process, once again, across a number of stakeholders, there was a significant concern that Chinese workers may not have skills and health and safety training of an Australian standard, which could lead to harm for themselves and others. Does the minister accept any of the detail that we have received in submissions indicating that this is the case?

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

As I have mentioned before, on a number of occasions, the workers must meet the skills requirements that are set down by Australian standards, Australian licensing and Australian memberships. I feel that we are arguing around in circles. I am saying to you that they do have to meet the Australian requirements—both the federal government's requirements for skills assessment and all of the core requirements of the state governments for licensing, memberships or registrations. I am not sure what additional information you asking me for.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

So there are no mandatory skills assessments that have been removed for any categories of 457 visas.

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

In relation to the processes that are required by the states and territories, it is mandatory.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

The question was: 'Have any been removed?'

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I am sorry, I will have to seek clarification, in terms of the removal. I have just said that all of them are mandatory from the states, so none of them have been removed if they all remain mandatory.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That is interesting. It is contrary to the evidence that we heard. Perhaps I could get clarification from you on that. The CFMEU, for example, talked about their concerns around the trades of cabinet-maker, carpenter, and carpenter and joiner who do not have licensing requirements to work in the trade. They commented:

Removing mandatory skills assessments for Chinese 457 visa applicants in these trades is therefore removing the last and only regulatory safeguard designed to prevent employers nominating for 457 visas Chinese workers who do not possess Australian-standard skills in these trades.

They also cited removal of mandatory skills assessment as a potential cause of exploitation in temporary migrant workers.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

Are you asking the minister to comment on that quotation?

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

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.

I move:

(1) Title, page 1 (line 1), after "Customs Act 1901", insert ", the Migration Act 1958 and the Migration Regulations1994".

(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.

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

Firstly, despite what we have heard today, particularly from Senator Whish-Wilson, about everything that you can possibly find that is potentially negative or that you can spin into a negative, it is not a reflection of the response I have received travelling around Australia and speaking to people who are the beneficiaries of these particular agreements. To say that the benefits are overstated I think is really unfair. There are myriad people out there seeing that these trade arrangements are going to be of massive benefit to them, to their businesses, to their economies and to their communities. Many of them are in rural and regional Australia, Senator Whish-Wilson. As you well know, coming from a small state, rural and regional Australia has been begging for a very long time to have positive opportunities. To say that we are selling workers down the river is just crazy. The opportunities presented by these free trade arrangements are job-creating opportunities for Australia; this is not a situation where Australian workers are in any way likely to be negatively impacted on.

In relation to the Greens amendment on the subclass 400 temporary work (short stay activity) visa, as I stated in many responses to questions asked by Senator Whish-Wilson, we are talking about a particular class of visa that has such a specific reason for being in existence and is extraordinarily short term. The average visa stay under this visa is just 20 days. When somebody is simply coming into Australia to play in a sporting tournament and they are going to be paid, to expect them to go through labour market testing strikes me as an overly unnecessary burden on them. For that reason, obviously the government does not support the introduction of labour market testing for subclass 400 temporary work visas.

As we have discussed ad nauseam here today, requirements for the 457 visas are very strict. People cannot come into Australia under a 457 visa if there are Australians who are capable of undertaking the same employment. As we said, the requirements of the states in relation to licensing, membership or registrations are mandatory and very strict. Anybody who comes into Australia on a visa is required to meet the requirements of that visa in relation to their skills. So there are massive amounts of protections that sit around 457 visas to ensure that Australian workers are not detrimentally impacted on. The fact is that many trade agreements that have been entered into, even those entered into under previous governments, have labour market testing requirements that are, if not identical, very similar to the requirements that we are requesting under the ChAFTA arrangement.

So, Senator Whish-Wilson, the government does not support the amendments that you have moved on behalf of the Australian Greens, because we believe they are unnecessary and largely irrelevant in the context of the China-Australia Free Trade Agreement. Therefore we will not be supporting them, on the basis that we believe this particular agreement is in the best interests of Australia, Australian businesses, Australian workers, Australian communities and Australian people in general.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I will respond on behalf of the opposition to the amendments moved by Senator Whish-Wilson. The first point I would make is that they say imitation is the greatest form of flattery, so I suppose we should be flattered that Senator Whish-Wilson has done such a good cut-and-paste job of including Labor's exposure draft amendments in relation to the China-Australia Free Trade Agreement. You did not do your own work, Peter—you just cut and paste the exposure draft that we put out.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Wong, direct your remarks through the chair.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I am sorry—Senator Whish-Wilson cut and paste what we put out. We put it out for very good reason—because we did think there were policy issues in relation to labour market testing which ought be resolved, and we achieved an outcome. We achieved an outcome by negotiation with the government around the matters that were canvassed in Labor's exposure. We have achieved outcomes which have legal force by way of regulation, and I will go through some of those again briefly.

I would take issue with one point that the minister made. I do not want to misquote her, but she made some comment about labour market testing continuing to be required. The government removed labour market testing under the chapter 10 provisions of the China free trade agreement in relation to a number of levels of employees—business executives and intracorporate transferees—which is, I think, unremarkable. It is uncontroversial—or it might be for Senator Whish-Wilson, but I think broadly it is not controversial. The government also removed labour market testing under the chapter 10 provisions for trades occupations—and that is a new thing in trade agreements. It is not the case in past trade agreements that labour market testing at that level has been removed. What is disappointing is that at no point has the government articulated the economic rationale for that.

Having said that, what we thought was important in the face of the very important economic relationship with China was to ensure that we achieved real safeguards by way of negotiation with the government. We went through a process of putting out draft amendments—which, as I said, Senator Whish-Wilson has now picked up—having a negotiation with the government and achieving the outcomes. I will go through them very briefly. Firstly, in relation to labour market testing, the outcome we have achieved is labour market testing on all work agreements—so not just the IFAs, investment facilitation arrangements—that are referenced in the China free trade agreement, which I think is a good outcome and it is included in regulation. I thank the government and Mr Robb for indicating that to us.

We sought a range of work agreement safeguards, and, again, a new regulation will be made which references the safeguards that Labor were seeking. In relation to Australian wages and conditions—and this goes to the chapter 10 issue—we were cognisant of the provisions of the ChAFTA and the fact that it was not going to be possible for the government to renegotiate those provisions. For this reason, as I outlined in my speech in the second reading debate, we have achieved an additional safeguard, which is in regulation that is legally binding, the requirement that the market salary requirement in what is called the TSMIT, the temporary skilled migration income threshold, must be assessed against enterprise agreement rates. We regard that as an important and significant safeguard.

In addition, in relation to skills assessment, as I went through in my speech in the second reading debate, we achieved significant improvements to the visa conditions and criteria in relation to individuals coming in on 457 visas who hold occupational licences or must hold occupational licences. I will not traverse again the additional visa conditions which have now been included and which we regard as a significant strengthening of the regulatory regime, because I did so in detail in my speech in the second reading debate. The opposition will not be supporting the Greens' amendments, because we believe that the outcomes that Labor identified some time ago in relation to these issues have been significantly resolved by way of the agreement we have achieved with the government in relation to the China free trade agreement.

As the opposition have also said, there remain issues in the temporary migration sphere. We have seen the exploitation of workers and we have seen the underpayment of wages. Many of these cases have been publicised in the media. These are issues to deal with the broader temporary migration framework, not specifically with the China free trade agreement, and we certainly believe that there is more work to be done in that area as we go forward. But I thought it was useful for me to outline the opposition's position in relation to the Greens' amendments.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I will provide a very brief clarification. Senator Wong is half right in relation to the flattery bit. Amendment (6) certainly was directly quoting the work that Labor did, but amendments (1) to (5) was work that we did. Nevertheless, in our point of view, they are all important amendments. Senator Wong, if amendment (6) is your good work I would expect you to support our amendment when it goes to a vote.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (1) through (6), moved by Senator Whish-Wilson, be agreed to.