The China FTA and all international trade agreements are essentially undemocratic because they are ‘binding’ on all future Australian governments. They provide incumbent governments with the opportunity permanently to limit the options open to the Australian people and to tie the hands of their political opponents when they take office.
Most Australians and probably some Australian Parliamentarians would be astonished to discover that treaty-status trade agreements permanently limit the ability of future governments to make laws, regardless of the wishes of the electors.
If the treaty-status China FTA is ratified by the Australian Parliament with ALP support in the Senate and enters into force unchanged, the consequences will effectively be irreversible. The binding treaty obligation will permanently remove the ability of all future Australian governments and Parliaments (among other things) to apply ‘labour market testing or any economic needs test or other procedures of similar effect’ to all Chinese nationals in the standard 457 visa program and ‘installers and servicers’ in the shorter-term 400 visa program.
This suits the Coalition government perfectly. The Coalition is publicly committed to the abolition of labour market testing in the standard 457 visa program. But it does not have the numbers in the Senate to pass the necessary amendments to domestic legislation – the Migration Act – to achieve this.
So it is instead pursuing its aim via binding international treaties, first through the Korean and Japan FTAs which removed 457 labour market testing for nationals of those countries and now the China FTA.
It is undoubtedly doing the same in its FTA negotiations with India and the Trans Pacific Partnership (TPP) countries. Around 35 per cent of all 457 visas will be exempt from labour market testing by trade obligations, if the abolition of market testing is secured in the China and India FTAs.
In practice, future Australian governments will not be able to reverse these exemptions to our migration laws embedded in treaty-status FTAs. By this point if not sooner, the pressure from all other countries for the same privileges in Australian temporary visa programs will be immense and probably irresistible.
The Coalition government will therefore have achieved its aim of permanently removing the ability of all future Australian governments to reintroduce labour market testing in the 457 visa program as a whole.
But it is doing this not by honest disclosure and arguing the case for changing domestic laws with the Australian people, on the China FTA or the broader plan. Instead, it is using binding international trade agreements to bypass the Australian community and reduce the sovereignty of Australian governments over its own immigration laws.
True democrats and conservatives in the Coalition parties would oppose the government’s use of the China FTA and other treaties to do this.
Bob Kinnaird is Research Associate with The Australian Population Research Institute and was National Research Director CFMEU National Office 2009-14.