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Introduction Modern Slavery in Australia

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Introduction Modern Slavery in Australia To: Morry Bailes, President, Law Council of Australia Memo From: Belinda Wilson, President, Law Institute of Victoria Subject: Modern Slavery Bill 2018 Date: 13 July 2018 Introduction 1. The Law Institute of Victoria (‘LIV’) welcomes the opportunity to provide comments to the Law Council of Australia (‘LCA’) on the Legal and Constitutional Affairs Legislation Committee’s inquiry into the Modern Slavery Bill 2018 (‘the Bill’). These comments are informed by members of the LIV’s Workplace Relations Sec- tion. 2. Although the LIV supports the Bill, it is submitted that: • The revenue threshold be reduced from $100 million to $25 million; • A list of entities required to report be publicly available, noting those enti- ties that have and have not complied with reporting requirements; • An Independent Anti-Slavery Commissioner be appointed; and • Penalties for non-complying entities be introduced. Modern slavery in Australia Domestic business operations: 3. As relayed in Article 1 of the International Convention to Suppress the Slave Trade and Slavery of 1926, slavery is ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. The term ‘modern slavery’ refers to activities of slavery that exist in contemporary society.1 1 Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of the Commonwealth of Australia, ‘Hidden in Plain Sight: An inquiry into establishing a Modern Slavery Act in Australia’ (2017) 1. 1 These activities, which include servitude, forced labour, child labour and exploita- tion, present serious human rights concerns.2 According to the 2016 Global Slav- ery Index, 58% of the total number of people experiencing modern slavery live in India, China, Pakistan, Bangladesh and Uzbekistan.3 Although modern slavery is more likely to occur in countries where corruption is widespread, and the rule of law has broken down, it can happen in Australia where vulnerable groups are discriminated against, live in impoverished conditions, or are weakly protected by existing laws. Historically, many slavery-like practices in Australia have involved labour trafficking in the commercial sex industry.4 More recently, however, there have been cases of exploited migrant workers in Victoria’s horticultural sector, and in 7-Eleven retail stores nationwide.5 These revelations indicate that modern slav- ery is a real, yet often hidden, issue in Australia. 4. Many of these cases involve ‘labour hire contractors’: businesses that employ workers and provide a service to other organisations (‘host organisations’). The workers are assigned to perform work for the host organisations, who pay the on- hire business a fee for providing the on-hire workers. These workers are not em- ployed by the host organisation. Rather, they are employed by the on-hire busi- ness. 5. By using ‘labour hire contractors’, instead of employing directly, a host organisa- tion can reduce responsibility for what happens to the workers.6 In 2015, an epi- sode of the Australian Broadcasting Corporation’s Four Corners, entitled ‘Slaving Away’, uncovered slave-like practices in Australian farms and factories. Migrant workers, many on 417 visas, were paid $3.95 an hour, required to work 22-hour shifts, or perform sexual acts to extend their visas.7 Major supermarket and fast food chains, who used labour hire contractors, were implicated in the allegations.8 2 Ibid 98. 3 Global Slavery Index, Global Findings 2016 < https://www.globalslaveryin- dex.org/findings/>. 4 R v Tang [2008] HCA 39; R v McIvor and Tanuchit [2010] NSWDC 310; R v Nantankhum [2010] SCC 149. 5 Above n 1, 271 [9.8]. 6 Victorian Inquiry into the Labour Hire Industry and Insecure Work: Final Report (2016) 48. 7 Slaving Away: The Dirty Secrets Behind Australia’s Fresh Food (Four Corners / Australian Broadcasting Authority, 2015). 8 Ibid. 2 6. More recently, in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) (2017),9 a cleaning service provider, Grouped Property Services (‘GPS’), were found to have contravened the Fair Work Act 2009 (Cth) (‘Fair Work Act’) by failing to adhere to minimum employment standards. This included not paying award wages. GPS, in denying liability, argued that it was not the employer of any workers whom the allegations had been made. Rather, they were employees of National Contractors Pty Ltd; a labour hire contractor. Katzmann J described this arrangement as a “sham”,10 and described the treatment of some employees as “slaves”.11 7. Additionally, in 2018, the Fair Work Ombudsman (‘FWO’) released a report into the cleaning arrangements of Tasmanian supermarkets.12 It examined the use of labour procurement by the major supermarket chains, uncovering serious exploi- tation of workers in its cleaning supply chain. The report identified over $64,000 in underpayments.13 8. Cases and investigations have focused, predominantly, on skilled and working holiday visa holders. There is limited information available on unlawful migrant workers. Per s 14 of the Migration Act 1958 (Cth) (‘Migration Act’), an ‘unlawful non-citizen’ is a non-citizen in the migration zone who is not a lawful non-citizen. Many migrant workers are ‘unlawful’ due to entering Australia without authorisa- tion, or having overstayed the expiration date of their visa.14 In 2011, it was esti- mated that between 50-100,000 non-citizens are working unlawfully in Australia.15 9. A recent report by Monash University explored the experiences of unlawful mi- grant workers in Australia (‘Segrave Report’), drawing data from semi-structured interviews. The participants relayed that agents and recruiters had, in print adver- tisements or in person, suggested that coming to Australia was an opportunity to make money.16 However, upon arrival, the same participants experienced non- 9 FCA 557. 10 Ibid [2]. 11 Ibid [456]. 12 Fair Work Ombudsman, ‘An inquiry into the procurement of cleaners in Tasma- nian supermarkets’ (February 2018). 13 Ibid 14 Marie Segrave, ‘Exploited and Illegal: Unlawful Migrant Workers in Australia (July 2017) Monash University, 5. 15 Ibid 7. 16 Ibid 20. 3 or low-payment for the work they performed.17 In addition, there were situations that arose in relation to debt bondage and wage theft.18 Migration status was also found to have been used as leverage to enable and sustain breaches to the Fair Work Act.19 Despite their exploitation, participants often accepted the powerless- ness of their position. As one participant relayed: “[We] just accept, because this, the intention to come here was to work, okay so [we] just accept whatever wages paid. Of course, [we] feel that it’s a bit low but [we] have no choice, [we’ve] already made [the] decision to come to look for job here [without work rights]”.20 10. The Segrave Report concluded that unlawful migrant workers were the least pro- tected of all migrant workers in Australia. Further, that they were susceptible to experiencing slavery-like conditions in their work.21 International supply chains: 11. As globalisation increases, there will be greater dependence on international trade, as well as Australian companies operating in more than one country. Numerous submissions to the inquiry by the Joint Standing Committee on Foreign Affairs, Defence and Trade (‘Joint Standing Committee’) relayed that, undoubtedly, some Australian goods are produced through modern slavery. This risk may be greater for large companies with extensive supply chains; especially if they run through the Asia-Pacific region. Per the International Labour Organisation (‘ILO’), the Asia-Pacific region accounts for the largest number of forced labourers.22 The Department of Foreign Affairs and Trade notes that China, Singapore, Malaysia, Thailand and Korea are among Australia’s top 15 trading partners.23 Key goods produced by forced labour include sugar, cane, coffee, cotton, bricks, gold, coal, 17 Ibid 35. 18 Ibid. 19 Ibid 8. 20 Ibid 36. 21 Ibid 7. 22 International Labour Organisation, Forced Labour < http://www.ilo.org/asia/ar- eas/forced-labour/lang--en/index.htm>. 23 Department of Foreign Affairs and Trade, Australia’s Trade in Goods and Ser- vices < http://dfat.gov.au/about-us/publications/trade-investment/australias-trade-in- goods-and-services/Pages/australias-trade-in-goods-and-services-2016.aspx>. 4 tobacco, garments, carpets, fish products and textiles, many of which are imported to Australia. International and comparative legal frameworks 12. Modern slavery is comprehensively addressed under international law. The fol- lowing table details those treaties which Australia has ratified, as well as declara- tions that have been endorsed. International Covenant on • Article 8 confirms the absolute right to freedom Civil and Political Rights from slavery and forced labour. International Covenant on • Articles 6 recognises the right to work, which in- Economic, Social and Cul- cludes the right of everyone to the opportunity to tural Rights gain their living by working, which they freely choose or accept. State Parties are required to take appropriate steps to safeguard this right. • Article 8 recognises the right of everyone to the enjoyment of just and favourable conditions of work, which ensure: a) remuneration which pro- vides all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind; and, a decent liv- ing for themselves and their families; b) safe and healthy working conditions; c) equal opportunity for everyone to be promoted in their employment to an appropriate higher level; and d) rest, lei- sure and reasonable limitation of working hours and periodic holidays with pay. Minimum Age Convention • The Convention sets the general minimum age 1973 for admission to employment at 15 years, and the minimum age for hazardous work at 18. Worst Forms of Child La- • The Convention requires states to eliminate all bour Convention 1999 forms of slavery-practices, such as the sale and trafficking of children.
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