LAW20010 - Business and Administrative Law & The Indonesia Australia Comprehensive Economic Partnership - Law Assignment Help

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Question 1 
The Indonesia-Australia Comprehensive Economic Partnership (IA-CEPA) came into force on 5  July 2020. In order to take advantage of these new trade arrangements, companies have sought to  establish new business opportunities. One of the key areas of access is that Australian engineers will  have greater permission to work in Indonesia. 

Consequently, Nusantara Technical Recruitment Pty Ltd (NTR) has sought permission to  participate in the recruitment of Australian engineers to work in Indonesia. NTR is a wholly-owned  subsidiary of Indonesian conglomerate, Prabowo Brothers. As one of Indonesia largest businesses,  Prabowo Brothers, has significant connections to the Indonesian military and political elites. There  have been allegations that senior executives of Prabowo Brothers participating in unsavoury  behaviour and have connections to criminal networks. 

In order to participate in the Australian recruitment market just over two months ago they sought a  foreign recruitment licence from the Commonwealth Department of Home Affairs. The governing  legislation is the Transnational Human Resources Act (THRA) (Commonwealth, 2020) [fictional]  and the Foreign Labour Access (Indonesia) Special Regulations (2020) [fictional].

The Department of Home Affairs is the statutory authority that administers these regulations, with oversight and  approval power for these licences resting with the Commonwealth Immigration Minister. 

The following are relevant international agreements, legislation and regulations for the provision  and approval of these recruitment licences:
 

Section 
a) Subsidiaries of foreign companies seeking to undertake labour hire activities in Australia  need approval from the Minister [Immigration Minister] before undertaking such services;

b) The Minister will authorise a “foreign recruitment licence” according to international  treaties, including The Indonesia-Australia Comprehensive Economic Partnership (2020);  and 
c) In issuing the “foreign recruitment licence”, the Minister will be guided by the subordinate  legislation delegated under this Act. 
Foreign Labour Access (Indonesia) Special Regulations 

Section 1 
a) The Minister will provide approvals for “foreign recruitment licences”;

b) These will be deemed to be automatically approved unless there are tangible national  security or economic reasons to deny such an approval;

 c) Determinations under this regulation will be guided by The Australia-Indonesia  Comprehensive Economic Partnership (2020) and the Transnational Human Resources Act  (THRA) (Commonwealth, 2020); and 
d) Rejection will require written reasons explaining the denial of a licence. a. This written decision needs to incorporate the exact reason(s) for the licence  rejection; and 
b. The reasons provided must identify means to remedy any defects in this application. 

Under The Australia-Indonesia Comprehensive Economic Partnership (2020), both the Republic of  Indonesia and the Commonwealth of Australia expressed their desire to ensure their officers and  public servants support bilateral business activities, such as in the human resources sector. Despite  these government-to-government activities and intentions, the Commonwealth Immigration  Minister, Claus Priv, has denied the foreign recruitment licence to NTR.  

The denial of NTR’s application occurred less than two working days after receiving an over 500- page independent audit report from an international accounting firm on NTR, and Prabowo  Brothers, asserting that these two companies were financially solvent, had strict legal compliance  protocols and management oversight of recruitment practices. The independent report was strongly  supportive of the application lodged with Minister’s office. 

In rejecting the NTR licence, Commonwealth Minister Claus Priv, provided no explanation, written  or otherwise, for this decision. 

The Victorian Premier, Dan Lock, has publicly supported NTR in their objections to this decision.  Premier Lock wants NTR’s activities to commence as soon as possible, as their proposed  headquarters would be in Melbourne and it is believed that this new venture will bring significant  business opportunities to Victorian engineering consultancies wanting to gain access to the  Indonesian market.

Given the economic downturn caused by the Covid-10 pandemic it is hoped that  NTR will support a strong economic rival in Victoria during 2021-2 as the problems caused by the  pandemic ease. 
Lock had asserted that it is a concern that Commonwealth Minister Priv had made such a quick  decision and one that seemed to be contrary to the spirit of The Australia-Indonesia Comprehensive Economic Partnership. 

Australian Representatives of Prabowo Brothers have also been given grainy recordings of a private  meeting between Priv and members of the Australian Recruitment Agents Association. At this  meeting the Minister seemed to ridicule Indonesian businesses, particularly Prabowo Brothers, and  suggested that the Australia-Indonesia Comprehensive Economic Partnership labour hire  provisions were a mistake.

The tape alleges Indonesia’s “corrupt” business practices shouldn’t be  allowed to “infect” our market. The source of the recording and its authenticity is unclear. 
 

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