AFTINET impacts Parliamentary Reports on the A-UK FTA and India agreement: legislation passed

November 22, 2022: Enabling legislation for the Australia-UK FTA (AUKFTA) and the Interim Australia-India Economic Cooperation and Trade Agreement (AIECTA) was tabled in parliament on October 27 and was passed on November 22. The Joint Standing Committee on Treaties (JSCOT) Report on the AUKFTA was tabled on November 17 and the Interim India JSCOT Report on November 18, leaving  little time for them to be considered by parliament. The government made statements urging the quick passage of the legislation. Both reports recommended in favour of the enabling legislation, but they reflected some of AFTINET’s concerns. See our JSCOT submissions here and here.

Our preference was for these issues to be addressed before the enabling legislation, but failing this we have asked the government to address these issues in the reviews of the AUKFTA which are scheduled in the next two years, and in the negotiations for a more comprehensive Economic and Trade Cooperation Agreement with India which is due to be negotiated next year.

Both agreements were negotiated by the previous Coalition government. Both JSCOT reports reflected our concerns that there was no access to the text before it was signed, there was little consultation with unions and community organisations, and there has been no independent evaluation of the costs and benefits of the agreements.

AFTINET welcomes the recommendation in both JSCOT reports that for future agreements the Australian government implement the previous JSCOT Report 193 of 2021 for greater consultation and transparency about texts during future negotiations and for independent modelling and analysis of the costs and benefits of trade agreements (JSCOT Report 201 p. 221 and JSCOT Report 202 p. 164).

AFTINET recommendations on the Australia-UK FTA (AUKFTA)

• The government should use the review of the temporary labour provisions in the next two years (MOU on temporary workers, page 4 paragraph 22) to restore labour market testing and review the other provisions on temporary workers to ensure they are consistent with the goals of increasing local skill development, employment of local workers and supporting the permanent migration program.
• The government should review whether the additional government procurement commitments are consistent with the use of government procurement to support the government’s local skills training and industry development policies, and should not proceed with proposed future negotiations on local government procurement.
• The government should not proceed with negotiations foreshadowed in article 13.13.9 to remove the exception which allows state government to require foreign investors to use local technology, to locate regional world headquarters locally, to conduct research and development locally, and to regulate royalty payments.
• The government should review and remove Annex 8B which qualifies the exception for cabotage. Cabotage requires Australian-flagged and crewed ships for transport of goods between domestic ports and is usually completely exempted from trade rules. Annex 8B could be an obstacle for government policy to strengthen an Australian-based shipping fleet.
• AFTINET welcomes chapters that commit governments to implement ILO and UN standards on labour rights and environmental standards, (although they are less enforceable than other chapters in the agreement), and chapters on gender equality and animal rights, but the latter are aspirational only and have no enforcement provisions at all. While there are some provisions on Indigenous people, there is no chapter on the rights of Indigenous Peoples as defined in the UN Declaration on the Rights of Indigenous Peoples. The government should use the review processes for these chapters over the next two years to propose a chapter on Indigenous rights based on the UN Declaration and to ensure that all these chapters are fully enforceable in the same way as other chapters in the agreement.

AFTINET recommendations on the Interim Australia-India Economic Cooperation and Trade Agreement (AIECTA)

The India interim agreement contains only 14 chapters of a possible 20-30, pending the negotiations for a more comprehensive agreement. Chapter 14 Article 4.5 makes it clear that aspects of the interim agreement may be amended in the comprehensive negotiations. See AFTINET’s submission here.

• In the Services Chapter 8, all services are included unless they are specifically excluded. There are specific restrictions on regulation of services which could include qualifications, licensing and technical standards, unless specifically excluded. Annex 8F does appear to exclude licensing, qualifications and technical standards in services like aged care for current regulation in Part A. However, this exception is not included in Part B which refers to future regulation. In the AUKFTA the exemption applies both to current and future regulation. Annex 8FB should be amended to ensure that governments have the right to regulate and improve licensing qualifications and service standards in future regulation for services like aged care.
• Arrangements about temporary workers should be separate government-to-government agreements which are consistent with government policy on local skills development, protect workers’ rights and define the obligations of employers.
• If arrangements about temporary workers are to be in the comprehensive agreement, future negotiations should retain labour market testing, and the government should review whether other commitments are consistent with its permanent migration polices and local skills development policies.
• The interim agreement has no chapters on labour rights, environmental standards, rights of indigenous peoples or gender equity. Such chapters or provisions are included in the AUKFTA and the A-EUFTA currently under negotiation. The government should include in the comprehensive negotiations proposals for enforceable provisions in all these areas.
• Consistent with government policy, foreign investor rights to sue governments (Investor- State Dispute Settlement or ISDS) should not be included in the comprehensive agreement.