Bob Kinnaird. Turnbull Government buries the FTA bad newsJan 28, 2016
The Turnbull government has proved just as determined as the Abbott government to hide from the Australian community the truth about what their FTA deals mean for the 457 visa and other temporary work visa programs.
Under the Turnbull administration, the conclusion of Trans-Pacific Partnership (TPP) negotiations was announced on 6 October 2015 and the TPP text released on 5 November 2015. The China FTA (ChAFTA) entered into force on 20 December 2015.
In both cases, the Turnbull government has treated the Australian community like the proverbial ‘Mushroom Club’.
Three months after releasing the TPP text, no Turnbull government Minister has yet admitted publicly that it has once again negotiated away Australia’s sovereign right to regulate key temporary visa programs in crucial areas.
Australia has committed not to apply labour market testing (LMT) or caps (quotas) in the entire 457 visa program to all citizens of Canada, Peru, Mexico, Malaysia, Brunei and Vietnam; or to all foreign nationals who are employees of businesses in Canada, Peru and Mexico who transfer to an Australian branch of that business (‘intra-corporate transferees’).
On top of that, 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.
The ChAFTA concession not to apply LMT to ‘installers and servicers’ of machinery and equipment on 400 visas has also been extended to eight TPP countries – Brunei Darussalam , Chile, Japan, New Zealand, Peru, Canada, Malaysia and Mexico.
The only public admission of Australia’s real TPP commitments on what FTA-jargon calls ‘the Movement of Natural Persons’ (or MNP) was extracted from an official of the Department of Trade in Senate Estimates by Labor Senator Penny Wong in October 2015.
Ms Elizabeth Ward, First Assistant Secretary, Office of Trade Negotiations in DFAT had this exchange confirming LMT ‘waivers’ for various categories of persons from several TPP countries:
Ms Ward: In this particular agreement what we have done is provide MNP on a category-by-category reciprocity basis. If parties offered to us, then we offered to them. Many of them already have had LMT waived as a result of previous FTAs. The additional LMT waivers, as a result of the TPP, are intra-corporate transferees for Canada, Peru and Mexico and contractual service suppliers for Canada, Peru, Mexico, Malaysia, Brunei and Vietnam.
Senator WONG: We reserved policy space for LMT in the Malaysia free trade agreement. Has that been removed by the TPP?
Ms Ward: That has.
Ms Ward was not asked why the DFAT TPP ‘Fact Sheet’ failed to mention that Australia had committed to ‘waive’ LMT in 457 visa program and the 400 visa program for the various TPP countries.
The best that DFAT could do was: ‘Australia’s TPP commitments are consistent with Australia’s existing immigration and workplace relations frameworks and the approach taken in other free trade agreements’.
Apparently the drafting instruction was ‘Don’t mention we’re removing 457 labour market testing’ after the bruising ChAFTA experience.
The main effect of Australia’s ChAFTA obligations on the 457 visa is that from 20 December 2015, Australia has given up the right to apply labour market testing or quotas in the standard 457 visa program to all Chinese citizens or nationals; and to all foreign nationals who are employees of businesses in China and transferring to an Australian branch of that business (‘intra-corporate transferees’).
There was no official announcement of this important change by Trade Minister Robb, Immigration Minister Dutton or any Turnbull government Minister when ChAFTA entered into force.
This was despite Trade Minister Robb putting out two media releases (on 9 and 20 December 2015) announcing that ChAFTA would enter into force on 20 December. Both neglected to mention the 457 visa program changes in the list of claimed ChAFTA ‘benefits’.
On Friday 18 December 2015, the Immigration department quietly updated its 457 visa website to incorporate the ChAFTA 457 obligations described above, with a link to the relevant legislative instrument. Neither the Immigration Minister nor his department made any public announcement of the update.
The Immigration Minister also had nothing to say publicly on 4 December 2015 when he signed the formal legislative instrument listing the categories of ‘natural persons’ for which ‘the imposition of labour market testing would be inconsistent with international trade obligations of Australia arising under the China-Australia Free Trade Agreement’. This ‘Determination’ is the only regulatory change needed to implement all of Australia’s temporary work visa obligations under ChAFTA.
The instrument was simply posted on the Comlaw website along with all others made that day.
The Turnbull government’s silence on ChAFTA and the 457 visa program follows the same pattern set by the Abbott administration. When the Korea and Japan FTAs entered into force in 2014, there was no public announcement that they removed 457 LMT for all ‘citizens/nationals/permanent residents of Korea’ and ‘citizens/nationals of Japan’; and for all foreign employees of businesses in Korea and Japan transferring to an Australian branch.
The Immigration 457 website was simply updated, with a link to the relevant legislative instruments.
In fact, the department’s email advice to Registered Migration Agents on the removal of 457 LMT in the Korea and Japan FTAs even warned that ‘this information is not for external distribution or publication’!
Apparently the Immigration department wanted migration agents to play their part in keeping the Australian public in the dark about how these FTAs removed labour market testing from the 457 program – or, more likely, their Ministers did.
The Department also told Senate Estimates in December 2015 that it would communicate any impact of ChAFTA to ‘relevant stakeholders’ – which apparently does not include the general Australian community.
The Federal Labor Opposition, having voted for ChAFTA in the Parliament, is not likely to draw attention to the Turnbull government’s efforts to hide the truth about ChAFTA, other FTAs and the 457 visa program either.
The irony is that it is only because of Labor’s 457 reforms to the Migration Act in 2013 that the Australian community has faintest chance of knowing anything about the impact of FTA obligations on the 457 visa program.
Labor’s June 2013 457 amendments provide for the Immigration Minister to make a publicly-available legislative instrument setting out the categories of persons in FTAs and other international trade agreements for which ‘the imposition of labour market testing would be inconsistent with international trade obligations of Australia’ (s.140GBA of the Migration Act 1958).
As a result, the Immigration department must now also publish information on its website and elsewhere about the precise 457 LMT exemptions due to Australia’s international trade obligations, as determined by the government of the day.
Before Labor’s 2013 amendments, Ministers and bureaucrats had no legal obligation to disclose this information, did not voluntarily disclose it and obfuscated when asked.
Labor’s decision to support ChAFTA means it is now less likely to hold the Turnbull government to account when it fails in its duty to inform the Australian community about what proposed FTA obligations mean for the 457 and other temporary visa programs.
Bob Kinnaird is Research Associate with The Australian Population Research Institute and was National Research Director CFMEU National Office 2009-14.