Bob Kinnaird. The high price of Labor’s capitulation on ChAFTA

Nov 11, 2015

Labor’s capitulation in supporting the treaty-status ChAFTA has profound ramifications that go far beyond the China deal.

Labor’s support for ChAFTA has all but guaranteed the permanent surrender of Australian sovereignty over key parts of our migration program and laws, and the permanent loss of rights of Australian citizens and permanent residents to jobs in Australia.

The Labor and Coalition leaderships both know this but have not told the Australian people or the Australian Parliament.

Labor’s decision to pass the treaty-status ChAFTA unchanged effectively ensures the permanent removal of the Australian government and Parliament’s right:

  • To impose any limit on the number of visas granted in the entire standard 457 visa program for skilled workers or the shorter-term 400 visa.
  • To apply labour market testing (LMT) in the entire standard 457 visa program.
  • To apply LMT in the 400 visa program to a whole new foreign worker category in binding FTAs – ‘installers and servicers’ of machinery and equipment. These include for the first time in FTAs sub-trade or semi-skilled workers, and possibly even unskilled workers, as well as skilled workers.
  • To apply other regulatory measures in the 457 and 400 visa programs that remain unspecified and ambiguous, and which the Australian Parliament has not even inquired about. What is covered by Australia’s commitment not to apply ‘economic needs tests or other procedures of similar effect’ to foreign nationals in these visa programs is not even known.
  • To make laws giving preference in redundancy situations to Australian workers over standard 457 visa workers, and likewise over the ‘installers and servicers’ on 400 visas. The ‘national treatment’ provisions of FTAs prohibit such ‘discrimination’ in favour of Australian workers, but the Treaties Committee reports to Parliament on ChAFTA said nothing about this either.

These binding international obligations in ChAFTA on the 457 and 400 visa programs will now flow on to other countries through the plethora of FTAs the Coalition government is aggressively pursuing. That flow-on has already started, as shown below.

As well, Labor has guaranteed that all future FTA ‘packages’ with developing countries will allow semi-skilled and other ‘concessional’ 457 visa workers access to the Australian job market under the guise of ChAFTA-style ‘investment facilitation arrangements’ (IFAs).

Labor approved the IFAs as part of the ChAFTA package with only cosmetic changes to the migration regulations for concessional 457s under these arrangements. These provide no additional ‘safeguards for Australian jobs’, despite Labor pretending they do.

The MOU on IFAs is not part of the treaty-status FTA, but DFAT says it is nonetheless ‘a serious bilateral agreement’ between the governments of Australia and China. Changes to the MOU require China’s agreement. Labor and the Coalition have therefore succeeded in also reducing the previously unfettered right of the Australian government and Parliament to make laws and policies for concessional 457 visa workers on major projects.

In October Trade Minister Robb admitted the Coalition is lining up more ChAFTA-style IFAs (India is almost certainly next), saying:

‘This has to apply not just to China… – in the case of that issue, these major projects over $150 million – that opportunity is there for every company in every country, so we have to look beyond China; we have to make sure that this doesn’t discriminate against China and that it’s not a one-off provision just for China’ (transcript, Robb media conference on 13 October 2015).

As well as the loss of Australian sovereignty, all this means greatly increased legal rights for employers to use temporary foreign labour, and to use these workers as industrial relations weapons against Australian workers and unions.

The ChAFTA flow-on

The China FTA commits Australia not to apply LMT to all Chinese citizens in the standard 457 visa program – currently around 7 per cent of the total 457 program. That is a ‘point of no return’ moment.

Until the China FTA, the Coalition had declared that only the nationals of Japan, Korea, Chile, Thailand and NZ had a blanket 457 LMT-exemption due to Australia’s international trade obligations in FTAs. These comprise only a small fraction of the 457 visa program (around 4%) with the largest of these (Korea and Japan) in FTAs concluded by the Abbott government.

The China FTA will take that LMT-exempt share up to 11 per cent of the 457 visa program when it comes into force before end-2015.

Once China goes, the rest will follow. By late 2016 nearly half of the entire 457 visa program will probably be exempt from LMT due to Australia’s binding international trade obligations as the China FTA LMT concessions flow through to other new FTAs. It could be more than half.

Having capitulated on the China FTA, Labor is now unlikely to oppose extending the same blanket 457 LMT-exemption to all the other FTA countries that the Coalition is lining up in short order. Labor will need more resolve than shown so far to resist the claims of ‘discrimination’ that will be heard from every FTA country denied the same privileges as China.

The most important of these is India, the largest country in the 457 program with 24 per cent of all visas. Concluding the India FTA by the end of 2015 is the Coalition’s next self-imposed deadline. Having waved through the China FTA, Labor will do the same for India. At that point, 35 per cent of the 457 visa program will then be LMT-exempt due to binding international trade obligations.

In the Trans Pacific Partnership (TPP) announced in October, Australia has committed not to apply LMT in the standard 457 program to all nationals of five TPP countries – Brunei Darussalam, Canada, Malaysia, Vietnam, and Mexico – representing a further 5 per cent of the 457 program.

Australia has also made a standing offer to do the same for the three other TPP countries without a total 457 LMT exemption (the USA, Peru and Singapore) if they provide access to limited categories of ‘Australian business persons’ down the track – another 7 per cent of 457s.

The ChAFTA concession not to apply LMT to ‘installers and servicers’ on 400 visas has also been extended to eight TPP countries – Brunei Darussalam , Chile, Japan, New Zealand, Peru, Canada, Malaysia and Mexico -and no doubt shortly India also.

Waiting in the wings are other FTAs including the Regional Comprehensive Economic Partnership (RCEP), the Trade in Services Agreement (TISA) with 51 WTO members, Indonesia, the Gulf states and now the EU. The RCEP is perhaps the next most important for Australian temporary visa concessions. It includes the ten ASEAN member states and those countries which have existing FTAs with ASEAN – Australia, China, India, Japan, Republic of Korea and New Zealand. 

Labor’s road to capitulation 

Labor’s decision to support ChAFTA is a clear breach of commitments given by Opposition Leader Mr Shorten. In the Labor leadership contest in September 2013, Mr Shorten publicly committed to ‘opposing the removal of LMT in bilateral and multilateral trade agreements’ – as did Mr Albanese, the other candidate. (See ALP Leadership Questionnaire

Both candidates also committed to ‘opposing all attempts by the Coalition government to weaken sponsors’ legal obligations to undertake Labour Market Testing (LMT) so that 457 visa nominations may be approved only where a suitable Australian resident is not available to fill the position’.

Labor failed to honour these commitments at the first test. When the Coalition brought the Korea Australia FTA (KAFTA) before Parliament in September 2014, Labor voted to support the FTA even though it removed Australia’s right to apply LMT to all Korean nationals (and permanent residents) in the standard 457 visa program.

A few months later, Labor did the same with the Japan FTA which included identical provisions to KAFTA, removing Australia’s right to apply LMT to all Japanese nationals in the standard 457 visa program.

Even after conceding on the first two North Asian FTAs, Labor still had good reasons to draw the line under Japan and Korea, and oppose the China FTA ‘labour mobility’ provisions.

Labor’s own Treaties Committee Dissenting Report on ChAFTA warned ‘ there is a danger that Australia’s labour mobility commitments in CHAFTA will be used as the new baseline demand by all countries with which Australia is negotiating FTAs and all will expect Australia to offer additional concessions.’

The 2007-13 Labor governments concluded several FTAs, with Chile, Malaysia, and ASEAN/NZ. But none of Labor’s FTAs removed Australia’s right to apply LMT in the 457 program to all nationals of the FTA parties. This was despite the fact that during this time, Labor did not withdraw the Howard government’s (non-binding) 2005 Doha Round offer in WTO GATS to remove LMT from the entire 457 program, but had actually re-affirmed it. 


The sorry truth is that both Labor and the Coalition are prepared to trade away Australian sovereign rights and the work rights of Australian citizens in binding FTAs in return for improved market access for Australian business and investment flows.

The crude calculus dominant in the major parties and among unelected trade bureaucrats is that Australia has little to offer in trade negotiations with many countries, except greater and ‘guaranteed’ access to the Australian job market. This is because the (mostly unilateral) trade liberalisation already undertaken by Australia has left us with nothing much to offer that our FTA negotiating partners want!

The major political parties won’t say this openly, especially when both maintain the fiction that Australia’s 457 and other temporary work visa programs are designed to meet ‘shortages’ of Australian workers.

But DFAT admitted this to the tripartite Skilled Migration Consultative Panel in 2008:

‘Australia is now negotiating or planning to negotiate FTAs with a number of large developing countries….Given the degree of trade liberalisation already undertaken in Australia, and the limited ability of persons from some developing countries to take advantage of opportunities at the highly skilled end of the Australian market, temporary entry for semi-skilled and low skilled persons is one of the few areas (along with economic capacity building) where some of Australia’s developing county FTA partners have strong offensive interests. Naturally, Australia’s bargaining power in any trade negotiations with these countries will be significantly enhanced if it is able to respond favourably to their temporary entry interests.

’ From a trade policy perspective, therefore, it is in Australia’s national interest to ensure that its approach to temporary entry for work and business purposes is liberal, transparent, flexible and market-driven.’

(Source: DFAT, Trade commitments and reform of the subclass 457 visa program, Discussion Paper to Skilled Migration Consultative Panel, September 2008).

The Productivity Commission and others have shown that the alleged economic benefits of FTAs have been grossly overstated. The Commission recently noted that promotion of the benefits of FTAs and the TPP has been “characterised by a lack of transparent and robust analysis, a vacuum consequently filled at times by misleading claims”.

The costs of FTAs – and indirectly, unilateral reform – have also been understated or ignored. The permanent loss of Australia’s sovereign right to make laws concerning temporary migration, with no public debate, is too high a price to pay for the dubious benefits of FTAs.

Bob Kinnaird is Research Associate with The Australian Population Research Institute and was National Research Director CFMEU National Office 2009-14.

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