Chapter 3 The Malaysia-Australia Free Trade Agreement: the issues
This chapter will review the main
issues that were identified through the inquiry process. Evidence presented to
the Committee has identified four central issues:
- overlapping treaty commitments;
- ‘Certificate of Origin’ vs. ‘Declaration of Origin’
- the (non) inclusion of environmental and labour standards
in MAFTA; and
- employment outcomes in Australia.
A tale of three treaties: overlapping treaty commitments
MAFTA will, along with the ASEAN-Australia-New Zealand Free Trade Agreement (AANZFTA), and the still to be completed Trans Pacific
Partnership (TPP) agreement, be part of a troika of trade treaties between
Australia and Malaysia.
Questions were raised as to how these
three treaties would interact and, in particular, which treaty’s provisions
would take precedence in trade agreements between both countries.
The Australian Council of Trade Unions
(ACTU) raised the question of duplication in their submission and observed that
there was a lack of clarity on how these treaties would interact and what the effects
would be on Australia’s civil society. The ACTU commented:
The question of duplication and
inconsistencies leads to a broader question of strategy with respect to
bilateral and regional trade negotiations. Australia already has trading
arrangements with Malaysia under the Australia-ASEAN-New Zealand trade
agreement. With respect to the TPP, for many negotiating parties it will lead
to the second or third trade arrangement with another party to the
negotiations. Australia has already negotiated bilateral agreements with
Chile, New Zealand, Singapore and the US. Australia also has an agreement with
ASEAN which includes Malaysia, Brunei and Vietnam. Therefore if the TPP
negotiations are finalised, Australia will have trading arrangements with
Malaysia under three trade agreements.
There is no clarity from the
Government on how the relationship between these multiple agreements will
operate in practice; despite questions being asked by civil society,
particularly with respect to the TPP.
The Australian Fair Trade and
Investment Network (AFTINET) made similar observations regarding the three
trade treaties that would apply between Australia and Malaysia. AFTINET
We note that the MAFTA contributes
to the “noodle bowl” of confusing overlapping agreements in our region.
Australia already has a free trade agreement with New Zealand and the ASEAN
countries, including Malaysia. Australia is also currently negotiating the
Trans-Pacific Partnership Agreement, (TPPA) which includes Australia, the US,
New Zealand, Peru, Chile, Singapore, Malaysia, Brunei, Vietnam, Canada and
Mexico. If the TPPA is concluded, the MAFTA will be the third agreement between
Australia and Malaysia, and it is unclear what the relationship between the
different agreements will be.
In response to these comments, the
Department of Foreign Affairs and Trade (DFAT) responded that all three
agreements were designed to be complementary and which agreement is actually
utilised will be decided by the industry in question.
These agreements will co-exist. Decisions
will need to be taken by the private sector on which of these agreements they
wish to operate under. That will depend obviously on what is contained in each
of these agreements…
… You have to make an upfront
decision. Let us use the example of a widget that has a tariff in the regional
FTA [Free Trade Agreement] and an associated rule of origin and then you have
the corresponding widget in the bilateral FTA with an associated rule of
origin. In the AANZFTA context, it is a regional rule of origin that is not
confined to sourcing it from Malaysia [rather] than from other countries, so
that gives you a bit more flexibility, but then you may find in the bilateral
FTA you have a lower tariff—perhaps a zero tariff as [opposed] to a tariff of
10 per cent—on the widget in the regional FTA, so it is a commercial
decision... It gives flexibility to the private sector in the commercial world
to decide where and how they wish to operate.
We also, as AFTINET has noted,
[are] engaged in other negotiations such as the Trans-Pacific Partnership
Agreement negotiations and there that is also pursuing further liberalisation.
I have previously heard [Trade Minister] Dr Emerson explain that all these
approaches should be viewed as complementary and mutually supportive in trying
to achieve good outcomes…
We are seeking to achieve as much
consistency and coherence across all these FTAs as possible…
‘Certificate of Origin’ vs. ‘Declaration of Origin’
One issue raised was a bureaucratic one
– ‘Certificate of Origin’ vs. ‘Declaration of Origin’
documentation. The NIA explains that for Australian exporters, MAFTA
originating status will be based on a written ‘Declaration of Origin’ by the
exporter or producer. This is, according to the NIA, a more business-friendly
arrangement than the more formal ‘Certificate of Origin’ issued by a third
party that is required under AANZFTA. ‘Certificates of Origin’ will still need
to be obtained by exporters from Malaysia.
The Australian Chamber of Commerce and
Industry (ACCI) is concerned that the use of ‘Declaration of Origin’
documentation rather than the customarily accepted ‘Certificates of Origin’
documentation will potentially increase the risk, complexity and cost of doing
trade with Malaysia. ACCI argues:
…that if there is an Australian
requirement for export documentation to prove origin under MAFTA, then it
should be a standard used jointly. If the international standard of export
documentation proving origin is the ‘Certificate of Origin’, which has not only
been chosen by Malaysia for MAFTA, but is recognised by foreign Customs around
the world, then it is in the interests of Australian exporters to
retain in MAFTA the ‘Certificate of Origin’.
Conversely the dairy industry is
positive about what it believes to be administrative benefits through
streamlining of Rules of Origin declaration processes – i.e. that exported
dairy products will be able to claim MAFTA tariff treatment on the basis of a
‘Declaration of Origin’ completed by the exporter on either the commercial
invoice or on a company letter, rather than requiring a ‘Certificate of Origin’
as required for AANZFTA.
…we are clearly of the opinion that
this is a reduction in administrative overhead for exporters of dairy products,
and we believe that that, therefore, is an advantage to people who are
exporting dairy products to Malaysia because it will reduce the impost of
obtaining that ‘Certificate of Origin’ that needs to be issued by a third
DFAT essentially agrees with the dairy
industry. The Department explained that its preferred option was the
‘Declaration of Origin’, as it reduced bureaucratic burdens on business, and was
expected to be the accepted and standard method in the future.
…the key point we would make there
is that Australia's general preference is for the use of ‘Declarations of Origin’…
It is what we apply in the Australian system of tariff preferences… It is what
we have in our FTA with Chile. And that is why in the MAFTA negotiations that
was our preferred approach. The outcome, at least in terms of exports from
Australia, reflects Australia's preferred approach...
We accept the reality that AANZFTA
does have a ‘Certificate of Origin’ approach. That was a negotiated outcome.
It was not our preferred approach. We saw that as a second-best outcome. But
part of that was a reflection of where the ASEANs were at and the reality that
they have a rather more bureaucratic approach. But, even within ASEAN, you
actually have a movement towards looking at the adoption of ‘Declarations of Origin’.
Malaysia itself is already participating in a pilot project within ASEAN with
Brunei, Singapore and Thailand using ‘Declarations of Origin’.
When you look at MAFTA, at the way
it is actually crafted, the default position is the use of ‘Declarations of Origin’.
It has an exception to allow Malaysia to use ‘Certificates of Origin’, but it
is based on the assumption that, in coming years, Malaysia itself will move to
the use of ‘Declarations of Origin’....
There is an exception there at the
moment to allow Malaysia to use ‘Certificates of Origin’, but it allows for
Malaysia in future years to go to a ‘Declaration of Origin’ approach. That is
our expectation, given the fact that it has already participated in a pilot
project within ASEAN.
DFAT also stated that ‘Certificates of
Origin’ had also caused implementation problems: ‘we have experienced far more
problems with ‘Certificates of origin’ than we have with ‘Declarations of
Environmental and labour standards
Critics of free-trade agreements
frequently cite environmental and labour standards as a subject of concern.
Issues such as these are often discussed by economists as being
This Committee has already, as part of
its review of AANZFTA, recommended that: ‘the Australian Government include
consideration of environment protection, protection of human rights and labour
standards in all future negotiation mandates for free trade agreements’. Similarly, the Joint Standing Committee on Foreign Affairs, Defence
and Trade did, in its report on Australia’s relationship with ASEAN, recommend:
…that human rights, core labour
standards, and the environment be pursued in future free trade agreements and,
when existing free trade agreements which do not contain such issues are
reviewed, these issues should be pursued; and
…that when the Department of
Foreign Affairs and Trade reports annually to the Parliament under
Recommendation 2, progress with regard to human rights, core labour standards,
and the environment be included.
MAFTA contains three legally binding
side letters that form part of the agreement. The first ‘side letter’ is on
alcoholic beverages. The remaining two ‘side letters’ on labour standards and the
environment confirm both Governments’ commitment to environmental protection
and to labour standards as members of the International Labour Organisation and
under the Declaration on Fundamental Principles and Rights to Work and
its follow-up (1998). As both countries are currently involved in negotiations
in the Trans Pacific Partnership (TPP), it was agreed that Malaysia and
Australia should, in the context of what is agreed to in the TPP, review the inclusion of labour and environment provisions in MAFTA
within two years of MAFTA’s entry into force, or as otherwise agreed.
The Certified Practising Accountants
(CPA) Australia expressed concern over the inclusion of environmental and
labour standards in the agreement, arguing that there were already sufficient
mechanisms to address these concerns in other international forums.
CPA Australia [is] concern[ed] over
the proposal to incorporate provisions on labour and the environment into MAFTA
at some point in the future. CPA Australia considers there are more
appropriate international forums in place where discussions related to labour
and the environment can take place. Trade treaties should be singularly focused
on facilitating growth in international trade. The introduction of peripheral
non-trade issues can only undermine this objective.
Furthermore, where there are
genuine concerns over possible environmental impacts arising from international
trade, the World Trade Organisation’s General Agreement on Tariffs and Trade
(GATT) and the General Agreement on Trade in Services (GATS), both of which
Australia and Malaysia are signatories to, already provide appropriate and
sufficient environmental protections under the General Exceptions provisions.
As such, CPA Australia considers that the attempt to introduce labour and
environment provisions into Australia’s trade treaties is an entirely unwelcome
As the peak union organisation in
Australia, the ACTU disagreed with the CPA Australia’s assessment. The ACTU
believes that the inclusion of labour laws is a mechanism through which the
benefits of such agreements can be fairly distributed and that certain minimum
standards should be observed. The ACTU commented:
International labour rights are
important for distributing the benefits of trade to workers. It is essential,
therefore, that trading partners uphold the fundamental rights of workers –
including freedom of association and the right to collectively bargain –
because it is consistent with a commitment to ensuring the benefits of trade
are fairly shared with workers. Respect for fundamental labour rights is also
a responsibility of ILO membership and as signatories to the UN Declaration on
Therefore, it has been the
long-held position of the ACTU that all bilateral and regional trade agreements
negotiated by Australia include an enforceable labour rights chapter that
requires trading partners to adopt and effectively enforce international labour
rights. At a minimum, the labour rights chapter should:
- clearly demonstrate that commitment to implement
fundamental labour rights, as articulated in core ILO conventions on rights at
work, is a fundamental and integrated part of the agreement;
- include a commitment by parties to not weaken but to
improve labour rights;
- provide for this obligation on labour rights to be
monitored and enforced, including a role for trade unions; and
- include procedures for alleged breaches of core labour
rights and settling disputes.
Similarly, AFTINET also expressed
support for the inclusion of labour and environmental standards in the main
body of the agreement. This should apply, AFTINET believes, not only to MAFTA
but to all trade agreements. AFTINET commented:
The most glaring omission from the
MAFTA is the lack of labour and environment chapters...
AFTINET’s view is that all trade
agreements should contain a labour rights chapter which commits the parties to
implement fundamental rights at work as expressed in ILO conventions, includes
commitments to improve, not weaken, labour rights, and provides mechanisms for
monitoring and enforcement of labour rights, including access to the
government-to-government disputes settlement process of the agreement.
Environment chapters should include
commitments by the parties to implement relevant United Nations environmental
agreements, to improve, not weaken, national environmental protections and
include mechanisms for enforcement of environmental protections, including
access to government-to-government disputes settlement processes of the
In the absence of enforceable
labour rights and environmental protections, rapid trade liberalisation
intensifies competition and can lead to a race to the bottom on labour rights
and environmental standards.
DFAT’s response to these concerns was
to explain that Government policy was that the inclusion of environmental
protection and labour standards issues in FTA negotiations was done on a
case-by-case basis. Furthermore, the inclusion of these issues as
‘side-letters’ was already a step forward as Malaysia has not included labour
provisions in any of its other trade agreements. Finally, although included as
‘side-letters’, labour and environmental standards are in no way diminished as
they are, like the rest of the agreement, legally binding.
…the government's April 2011 trade
policy statement… articulated the rationale behind seeking these provisions in
respect of both environment and labour in FTAs and concluded that a
case-by-case approach be taken for each FTA under negotiation with the
government's general approach applied to the circumstances of each negotiation.
What is important to appreciate with Malaysia is there are no labour or
environment provisions in AANZFTA. So the concept of MAFTA is AANZFTA-plus and
we, consistent with the policy, sought the incorporation of environment and
labour as well as government procurement in MAFTA.
We did pursue this but Malaysia
pointed out that it has not included labour provisions in any of its other
trade agreements, although it did agree a co-operation and dialogue oriented
side agreement with New Zealand in 2009. Malaysia then joined the TPP
negotiations in October 2010, and then after exploring elements of a possible
chapter text and other options such as a side agreement Malaysia concluded that
it could not agree to include labour provisions in the MAFTA treaty text at
this point in time, because of concerns that it had about possible duplication
and conflicting commitments with possible TPP outcomes on those issues. So
Malaysia suggested the side letter approach. I should note that the effect of
both of those side letters on labour and environment issues is that they are an
integral part of the agreement. They are not chapters, but they are legally
binding elements of the overall package.
With regard to the two-year delay until
the TPP negotiations are complete, DFAT reassured the Committee that the agreement
to re-examine these commitments was not conditional or dependent on other
outcomes. DFAT stated:
all participants in the TPP are
very committed to pursuing very ambitious and solid outcomes for the TPP. Let
me just note that the formulation agreed with Malaysia, as reflected in the
side letter, is that we will review the inclusion of labour provisions no later
than two years after entry into force of the MAFTA. So it is not conditional
on any other development. Within two years we will do it and we will obviously
need to take into account developments and deliberations in other fora.
DFAT also argued that the commitments
were firm and not vaguely worded:
[The side-letters] affirm certain
commitments that both parties make, both in respect of labour and environment.
They are spelt out in the letter. So there are in fact some commitments there
affirming both parties' commitments as members of the ILO under the Declaration
on Fundamental Principles and Rights at Work and its follow-up et cetera.
It is spelt out. So we did not keep it to one simple paragraph saying that we
are going to review this within two years.
The Committee re-iterates its
recommendation that labour and environmental standards be included in FTAs and,
despite DFAT reassurances, the Committee expects that every effort will be made
to include provisions on labour and environmental standards in the main body of
FTAs, rather than in ‘side-letters’. The Committee also notes the commitment
to review MAFTA’s labour and environmental provisions in two years’ time and
anticipates examining the final outcomes.
Employment outcomes in Australia
There has been concern expressed that free
trade has played a role in job losses, particularly in manufacturing, and the
stagnation of middle-class incomes.
On 29 August 2012, the respected US
foreign policy think-tank, the Council on Foreign Relations, published an
article that indicated there may now be some evidence that
supports this argument – at least in the United States during the past decade.
Although conceding that ‘the evidence is still not conclusive’, they cite a
series of publications which provide some support for the proposition.
Concerns over the impact of trade
agreements on domestic employment are not limited to the United States. In
Australia, this too has been a theme in debates over free trade.
In terms of MAFTA, the Federal Chamber of Automotive Industries (FCAI) is concerned about the non-tariff barriers and local content
rules that are in place in Malaysia and believes that under the current MAFTA
criteria, it is unlikely that Australian built vehicles will be exported to Malaysia.
Conversely, the FCAI believes that MAFTA will facilitate a significant increase
in Malaysian vehicle imports to Australia.
The Construction, Forestry, Mining and
Energy Union of Australia (CFMEU) expressed concerns about MAFTA and Australian
manufacturing employment. The CFMEU considers the Government’s analysis of
MAFTA to be deficient in terms of the treaty’s impact on domestic employment,
and stated that job losses were expected in the wood products sector. The
Australian manufacturing jobs are
currently being decimated by import competition including products exported
from Malaysia. Employment in the timber, wood products, pulp and paper and
furniture manufacturing industries has fallen by 54,900 in the last ten years.
These job losses have been in the context of tariff reductions. In the next
five years employment in these industries is already projected to fall by a
There is real potential of
manufacturing job losses and the loss of diversified capacity in the economy as
a result of this agreement according to initial analysis from the CFMEU. The
National Interest Analysis (NIA) and Regulation Impact Statement (RIS) tabled
in parliament with MAFTA do not adequately consider this or the negative impact
on workers, their families and their communities…
On the issue of automotive employment
and the concerns raised by the FCAI, DFAT responded by providing the following
The reality is that at this point
in time Malaysia does not have an internationally competitive automotive
industry. It is very much an internally focused, highly protected automotive
sector. When you look at exports of fully built passenger cars, Malaysia's
exports tend to be around 25,000 units a year. When you look at Australia over
the last three years—this is even after the global financial crisis and the
drop in our exports—you find that we export around 80,000 passenger motor
vehicles a year. So we are a significantly bigger exporter of fully built cars
than Malaysia is. I am just putting it into perspective here: this is not a
case of a big, competitive Malaysian automotive industry.
DFAT conceded, though, that Australian
automotive exports would be dependent on further reforms and social changes:
…if Malaysia continues down that
reform path of trying to open up or trying to modernise and make its automotive
industry competitive—there will be opportunities for collaboration, including
for parts and components for vehicles. I think a lot of it is dependent on
Malaysia becoming a more middle-class society. Again, it is about the quality
of the cars people buy in Malaysia; that is also an issue. As for the question
of whether there will be an opportunity for Australian car exports there, who
knows? Certainly there are non-tariff barriers there, particularly on the
excise tariffs. But, again, just as you saw in Australia, we would see the
pressure for that reform to continue, both through Malaysia's domestic process
of opening up and trying to become internationally competitive and also through
other free trade agreement negotiations.
On the broader question of
manufacturing employment in Australia and the impact of FTAs, there does not
appear to be a clear answer. DFAT responded that it was difficult to analyse
the specific impact of FTAs on manufacturing employment as a number of other
factors, such as the broader structural shift in the economy towards services
and the higher Australian dollar, also influenced manufacturing employment
outcomes. DFAT also observed that manufacturing employment had been broadly
stable between 2000 – 2008, and that falls in manufacturing employment had
coincided with the 2008 – 2009 Global Financial Crisis.
DFAT pointed to some broader
international studies conducted by the Organisation for Economic Co-operation
and Development (OECD) which indicated that in open trading economies,
manufacturing workers benefitted from higher pay rates when compared to closed
economies and that trade plays an independent and positive role in raising
DFAT did not provide any studies
specific to Australia and they noted that unemployment is likely to result when
low-skilled workers find it difficult to transition to the new expanding sectors
of the economy. The studies showed the importance of complementary policies to
support inclusive growth and job creation –macroeconomic policy, a positive
business environment, flexible labour market, high quality education, skills
training systems and adequate safety nets.