P a g e | 2
Table of Contents
1. Introduction ...... 3
2. Summary ...... 3
3. Methodology & Terminology ...... 5
4. Terms of Reference ...... 5
5. History and Background ...... 6 5.1 A Short History of Modern Slavery and its Discontents ...... 6 5.2 International Efforts to Combat Modern Slavery: A New International Standard ...... 8 5.3 Regional Efforts to Combat Moderns Slavery ...... 9 5.4 Country Efforts to Combat Modern Slavery & Supply Chain Abuses ...... 10 5.5 Other Non-Binding Civil Society Developments ...... 12 5.6 Australian Business Developments to Address Modern Slavery ...... 12
6. Modern Slavery: The Australian Context...... 14 6.1 Identifying the Problem: Recent Concerning Trends of Corporate Activity in Australia ...... 14 6.2 Current Australian Legislative Scheme for Addressing Modern Slavery ...... 17 6.3 Current Australian International Legal Obligations for Addressing Modern Slavery ...... 19
7. A COMPARATIVE ANALYSIS - THE UK MODERN SLAVERY ACT 2015...... 20 This section addresses TOR5...... 20 7.1 Background – UK Legislative Landscape Prior to the Modern Slavery Act ...... 20 7.2 UK Modern Slavery Bill...... 21 7.3 Criticisms of the UK Modern Slavery Bill...... 22 7.4 2016 Independent Haughey Review & Further Identified Deficiencies ...... 25
8. International Best Practice Guidance for an Australian Modern Slavery Law and Implications ...... 27
This section addresses TOR 3 and TOR4...... 27 8.1 Identifying international best practice employed by governments, companies, businesses and organisations to prevent modern slavery in domestic and global supply chains ...... 27 8.2 Implications for Australia’s Visa Regime and conformity with the Palermo Protocol to Prevent, Supress and Punish Trafficking in persons, especially Women and Children regarding federal compensation for victims of modern slavery; ...... 29
9. Conclusions and Recommendations ...... 30 Recommendation 1: ...... 30 Recommendation 2: ...... 30 Recommendation 3: ...... 31 Recommendation 4: ...... 31 P a g e | 3
Recommendation 5: ...... 31 Recommendation 6: ...... 31
1. Introduction Synceritas is an international team of cyber intelligence analysts and corporate risk consultants engaged in the endeavour of investigating, tracking and reporting present and emerging risks to individuals and organisations. We concentrate our analysis on seven fundamental areas of organisational risk: conflict and security, modern slavery, cyber and data, environment, international human rights, political and financial. These areas are representative of the wide and deep scope of the global intelligence assessment and reporting that we conduct on behalf of our clients. Anderson Fredericks Turner is an associate firm and agent of Synceritas in Australia. The diverse range of expertise represented within Synceritas and its worldwide network of consultants enables us to adapt and customise our intelligence analysis and reporting in accordance with the specialist requirements of our clients. We can either focus our risk analysis exclusively on one or a selection of fields, or we can conduct an intelligence analysis that encompasses the full spectrum of Synceritas' fields of expertise. The Synceritas team comprises of legal practitioners (solicitors and barristers) academics and consultants located throughout the world and with expertise on business and human rights issues in multiple jurisdictions including international banking and finance and corporate risk management. Synceritas was founded in 2015 by graduates from the Master of Studies Programme in International Human Rights Law at the University of Oxford. Since its inception, Synceritas has expanded to become a global business and human rights consultancy with consultant practitioners and associate law firms in some ten countries around the world and covering five continents.1
2. Summary Synceritas has some experience in observing the implementation, application and performance of the Modern Slavery Act 2015 (UK) (UK MSA). It is therefore well positioned to provide perspective on the benefits and disadvantages of how that legislative agenda was introduced and implemented in the UK and what lessons could be learned by Australia should it choose to legislate a similar legislative model for apprehending the scourge of modern slavery. Synceritas submits that Australia should both follow, add to and build upon the design of the UK MSA and learn from its implementation in the United Kingdom in order to build upon its realised deficiencies and optimise the implementation, application and performance of any legislative regime to be introduced in Australia. The Australian government should act promptly and efficiently to introduce a legislative regime to address modern slavery including for, but not limited to, the following reasons: (i) To contribute substantively to the growing global movement to address and combat the scourge of modern slavery in all of its forms by international bodies, regional bodies and countries as well as governments, NGOs, religious groups and other civil society organisations;
1 For more information, please refer to: www.synceritas.com P a g e | 4
(ii) To send a clear, compelling and robust message to human traffickers that the systemic abuse of the dignity of human beings in contravention of basic universally recognised standards of human rights will not be tolerated in Australia;
(iii) To provide an enforceable legal regime to require mandatory annual reporting by medium and large business enterprises operating in Australia with regards to modern slavery in their global and domestic supply chains in order to:
a. Establish and provide a system of certainty and consistency for businesses operating in Australia with regards to their obligations, responsibilities, opportunities and liabilities regarding modern slavery in their global and domestic supply chains; b. Provide guidance and stability for the Australian economy and its constituent domestic and foreign investors and companies operating and/or domiciled in Australia and abroad as to the expectations for proper financial regulation are in Australia; c. Streamline reporting requirements for businesses operating in Australia as to transparency regarding their global and domestic supply chains, including by way of establishing a global repository for such reports.
(iv) To align Australia with its binding international legal obligations as follows under the seven (7) core international human rights law (IHRL) treaties which it has ratified2 and those which it needs to urgently ratify including the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families3and the 2008 Optional Protocol to the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR;4
(v) To align Australia and Australian businesses with their international obligations under the 2011 United Nations Guiding Principles on Business and Human Rights and the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (supplementing the United Nations Convention against Transnational Organized Crime) and other international instruments that establish best practice standards for combatting modern slavery;
(vi) To progress Australia toward implementing a National Action Plan (NAP) under the 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs);
2 International Covenant on Civil and Political Rights (Adopted by UNGA Resolution 2200A (XXI) 16 December 1966, Entry into Force 23 March 1976) UN Doc. A/6316 (1966) 999 UNTS 171. Australia Signed: 18 December 1972, ratified: 13 August 1980 (ICCPR); International Covenant on Economic, Social and Cultural Rights (Adopted by UNGA Resolution 2200A (XXI) 16 December 1966, Entry into Force 3 January 1976) UN Doc. A/6316 (1966) 993 UNTS 3. Australia Signed: 18 Dec 1972, Ratified: 10 Dec 1975 (ICESCR): International Convention on The Elimination of All Forms of Racial Discrimination (Adopted 7 March 1966, Entered into Force 4 January 1969) 660 UNTS 195 (ICERD); Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment (Adopted By UNGA Resolution 39/46, Entered Into Force June 26, 1987), U.N. Doc. A/39/51 (1984). Australia Signed: 10 December 1985, ratified: 8 August 1989; Convention on The Elimination of All Forms of Discrimination Against Women (Adopted by UNGA Resolution 34/180, Entered Force 3 September 1981) UN Doc. A/34/46. Australia Signed: 17 July 1980, ratified: 28 July 1980 (CEDAW); Convention on The Rights of The Child (Adopted by UNGA Resolution 44/25, Entered into Force 2 September 1990) UN Doc. A/44/49 (1989). Australia Signed: 22 August 1990, ratified: 17 December 1990 (CRC); Convention on The Rights of Persons with Disabilities (Adopted by UNGA Resolution 61/106, 13 December 2006, Entered into Force 3 May 2008). UN Doc. A/RES/61/106. Australia Signed: 30 March 2007, Ratified: 17 July 2008 (CRPD). Australia has ratified the Convention Relating to the Status of Refugees (Adopted in Geneva 28 July 1951, Entry into Force 22 April 1954) 189 UNTS 137. Australia Signed 22 January 1954; Accession 22 January 1954). 3 Adopted by General Assembly resolution 45/158 of 18 December 1990. Entered into force on 1 July 2003. 4 Adoption by the Human Rights Council, by its resolution 8/2 of 18 June 2008, of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights P a g e | 5
(vii) To reinforce and strengthen the commitment of the Australian government and the Australian business community to endorsing and adhering to the principles expounded by the 2000 United Nations Global Compact;
(viii) To further bolster and complement regional efforts to combat modern slavery and human trafficking in regional, neighbouring and similar jurisdictions (such as the Bali Process on Smuggling, Trafficking and Related Transnational Crime and the 2015 Australia-Asia Program to Combat Trafficking in Persons5) given that modern slavery and human trafficking are inter-jurisdictional problems and require consistent apprehension across all jurisdictions. In that regard, some aspects of the Australian modern slavery laws should have extra- territorial effect;
(ix) To establish a well-resourced, robust and streamlined criminal jurisdiction for combatting modern slavery which balances victim protection with law enforcement and prosecution and builds thoughtfully on the lessons about the shortcomings of the Modern Slavery Act 2015 (UK) as identified in the 2016 Haughey Review (as detailed at Sections 7.3 and 7.4 below).
3. Methodology & Terminology We have set out below the Terms of Reference relating to the Committee’s Inquiry into establishing a Modern Slavery Act in Australia.6 We respond to each Term of Reference individually, however, as there is often broad compass regarding the practice and promotion of human rights both within Australia and internationally and related international and domestic legal obligations, some of the Terms of Reference overlap and to some extent then, the issues are dealt with in a thematic context. The terms, “servitude”, “forced labour”, “indentured labour”, “human trafficking”, “sex trafficking”, “sex slavery” are often used interchangeably or in related ways as subset descriptions of modern slavery and vice-versa. For the purpose of consistency, this submission will adopt the definition of “modern slavery” in the Committee’s Terms of Reference detailed below so as to include: slavery, forced labour and wage exploitation, involuntary servitude, debt bondage, human trafficking, forced marriage and other slavery-like exploitation. 4. Terms of Reference The Terms of Reference to be addressed by this submission are as follows:
With reference to the United Kingdom’s Modern Slavery Act 2015 and to relevant findings from the Joint Standing Committee on Foreign Affairs, Defence and Trade’s report, Trading Lives: Modern Day Human Trafficking, the Committee shall examine whether Australia should adopt a comparable Modern Slavery Act. The Committee shall have particular regard to:
(i) TOR1: The nature and extent of modern slavery (including slavery, forced labour and wage exploitation, involuntary servitude, debt bondage, human trafficking, forced marriage and other slavery-like exploitation) both in Australia and globally;
5 Australia-Asia Program to Combat Trafficking In Persons, Signing of Memorandum of Subsidiary Arrangement (MSA) – Indonesia, Opening Remarks, Mr Simon Merrifield, Australian Ambassador to ASEAN, Indonesian National Police Headquarters, South Jakarta, 13 November 2015 6 Australian Government, Inquiry into establishing a Modern Slavery Act in Australia - Terms of Reference, available at:
(ii) TOR 2: The prevalence of modern slavery in the domestic and global supply chains of companies, businesses and organisations operating in Australia;
(iii) TOR 3: Identifying international best practice employed by governments, companies, businesses and organisations to prevent modern slavery in domestic and global supply chains, with a view to strengthening Australian legislation;
(iv) TOR 4: The implications for Australia’s visa regime, and conformity with the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children regarding federal compensation for victims of modern slavery;
(v) TOR 5: Provisions in the United Kingdom’s legislation which have proven effective in addressing modern slavery, and whether similar or improved measures should be introduced in Australia;
(vi) TOR 6: Whether a Modern Slavery Act should be introduced in Australia; and
(vii) TOR 7: Any other related matters. 5. History and Background This section addresses TOR1, TOR2 and TOR3 (in part).
5.1 A Short History of Modern Slavery and its Discontents Slavery in History Exploitation through slavery dates back many thousands of years to the emergence of the first city- state circa 6800 B.C.7 The civil society movement for the abolition of slavery began with the French Revolution and the 1789 Declaration of the Rights of Man and of the Citizen article 1 of which declares, inter alia: “Men are born and remain free and equal in rights.”8 Since that time, the rise of the abolition movement has been intertwined with the recognition and development of universal human rights norms. Slavery was an integral part of European colonisation but in 1807, the British Parliament made it illegal for British ships to transport slaves and for British colonies to import them. The trend of abolition continued among European nations and on 1 August 1834, the Slavery Abolition Act 1833 (UK) took effect (having received royal assent on 28 August 1833) and abolished slavery throughout the British Empire, including British colonies in North America thereby freeing more than 800,000 enslaved Africans in the Caribbean and South Africa as well as a small number in Canada.9 The Abolition Act also appropriated nearly $100 million in today’s money to compensate slave owners for their losses.10 In 1840, the newly formed British and Foreign Anti-Slavery Society called the first World Anti-Slavery Convention in London to mobilize reformers and assist post-emancipation efforts throughout the world.11 In 1865, the US Congress gave final passage to, and a sufficient number of states ratified, the 13th Amendment to the U.S. Constitution to outlaw slavery. The amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall
7 Free the Slaves, “Slavery’s Roots: War and Economic Domination”, adapted from New Slavery: A Reference Handbook by Kevin Bales, Second Edition, Santa Barbara: ABC-CLIO, 2004, pp. 55-68. Available: http://www.freetheslaves.net/about-slavery/slavery-in-history/ accessed 17 May 2017. 8 Encyclopaedia Britannica, “Declaration of the Rights of Man and of the Citizen”, (undated). Available: https://www.britannica.com/topic/Declaration-of-the-Rights-of-Man-and-of-the-Citizen accessed 17 May 2017. 9 Encyclopaedia Britannica, “Slavery Abolition Act”, (undated). Available: https://www.britannica.com/topic/Slavery-Abolition-Act accessed 17 May 2017. 10 Free the Slaves, above n 4. 11 Ibid. P a g e | 7 have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”12 Through the late 1800s and early 1900s the abolition of slavery gradually spreads and increases throughout the world. In 1919, the International Labour Organization is formed to establish global labour standards and in 1926 the League of Nations adopts the Slavery Convention which defines slavery as: “status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”13 In 1930, the U.S. Tariff Act was enacted and prohibited the importation of products made with “forced or indentured labour” (in 1997, the Sanders Amendment clarified that this applies to products made with “forced or indentured child labour.”)14 The United Nations was established in 1945 with the protection of universal human rights as a core objective for establishing global peace and security.15 On 10 December 1948, the Universal Declaration of Human Rights is adopted by the international community thereby establishing a new global standard in human rights protection. In 1949, the Convention for the Suppression of the Traffic in Persons and Exploitation of the Prostitution of Others was adopted to prohibit any person from procuring, enticing, or leading away another person for the purposes of prostitution, even with the other person’s consent and this form the legal basis for international protections against traffic in people still used today.16 Modern Day Slavery Modern slavery is a global problem and a scourge against the foundational value of civilisation which infects every jurisdiction without exception. Modern slavery has been identified in every country that has looked for it, including modern affluent nations like Australia and the United Kingdom. According to the International Labour Organisation (ILO): ▪ Globally the forced labour workforce; o is estimated at more than 21 million people the equivalent of three in every thousand people being forced to work.17 Almost 19 million victims are exploited by private individuals or enterprises and over 2 million by the state or rebel groups.18 About 4.5 million of those are victims of forced sexual exploitation.19 o annually generates illegal profits of USD$150 billion;20 ▪ The Asia-Pacific region accounts for the largest number of forced labourers in the world – 11.7 million (56 per cent) of the global total, followed by Africa at 3.7 million (18 per cent) and Latin America with 1.8 million victims (9 per cent).21
12 Ibid. 13 Ibid 14 Ibid. 15 Preamble, 1945 Charter of the United Nations. 16 Ibid. 17 International Labour Organization, “Press Release: 21 million people are now victims of forced labour, ILO says”, (1 June 2012). Available: http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS 181961/lang-- it/index.htm accessed 17 May 2017: International Labour Organization, “Forced labour, modern slavery and human trafficking”, (2014). Available: http://www.ilo.org/global/topics/forced-labour/lang--en/index.htm accessed 17 May 2017. See also the ILO Protocol 2014 and a Recommendation which supplement the Forced Labour Convention, 1930 (No. 29) (“the ILO Forced Labour Protocol”), which was adopted by the International Labour Conference in June 2014, enters into force on 9 November 2016. 18 International Labour Organization, above n ??. 19 Ibid. 20 International Labour Organization, “ILO says forced labour generates annual profits of US$ 150 billion” (20 May 2014). Available: http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS 243201/lang--en/index.htm accessed 18 May 2017. 21 International Labour Organization, “Press Release: 21 million people are now victims of forced labour, ILO says”, (1 June 2012). Available: http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS 181961/lang-- it/index.htm accessed 17 May 2017. P a g e | 8
▪ Domestic work, agriculture, construction and manufacturing are the sectors where forced labour is most prevalent, and migrant workers and indigenous people are particularly vulnerable.22 In 2016, the Global Slavery Index estimated that 45.8 million people are in some form of modern slavery in 167 countries.23 Whilst Australia is regarded as a ‘destination’ country for modern slaves and at the low end of the spectrum of the problem in being economically stable and affluent, politically stable with low level of conflict, it is still estimated that Australia has 4,300 people subject to conditions of modern slavery. Furthermore, the data generated by the Global Slavery Index over the past few years illustrates both that while the problem of modern slavery is becoming increasingly visible and measurable, it also indicates that it is a growing and persistent problem for the world and thus requires robust regulatory responses throughout the nations of the world in order to comprehensively combat its pervasiveness. It is the submission of Synceritas that in 2017, any one person living in conditions of modern slavery in Australia and the world is unacceptable and it should be the aspiration of government to robustly regulate. Vulnerability to modern slavery is a rights-based complex of factors related to the existence or absence of adequate legal protections of basic human rights standards and fundamental freedoms. These include the universally accepted standards explicated in the seven (7) core IHRL treaties to which Australia is a contracting party24 which provide for the recognition and protection of basic rights and fundamental freedoms such as: adequate access to basic necessities of life such as food, water, housing, clothing; the right to safe, secure and fair employment; physical safety and security of person; economic security; the right to the highest attainable standards of physical and mental health; civil and political rights; inter alia. The issue of human trafficking is inextricably interlinked with modern slavery. Often people subjected to forced and indentured labour are smuggled across borders or internally displaced and made vulnerable by having their identity papers and travel documents taken from them by their exploiters.
5.2 International Efforts to Combat Modern Slavery: A New International Standard In November 2000, the United Nations established an international definition of human trafficking via the General Assembly’s adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (supplementing the United Nations Convention against Transnational Organized Crime) (‘the UN Trafficking Protocol’) as follows: "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs…25
22 Ibid. 23 Global Slavery Index. Available:
The UN Trafficking Protocol entered into force on 25 December 2003 and as of September 2016 it has been ratified by 170 UN member countries which is another strong indication with which the international community views the scourge of human trafficking and the urgent need to quell it.26 Ending modern slavery and human trafficking are aspirations identified in the 2030 United Nations Sustainable Development Goals (SDGs).27 UN Target SDG 8.7 provides: Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.28
In June 2014, governments, employers and workers at the ILO International Labour Conference (ILC) decided to give new impetus to the global fight against forced labour, including trafficking in persons and slavery-like practices. They voted overwhelmingly to adopt a new international standard on modern slavery by way of the Protocol and a Recommendation which supplement the Forced Labour Convention, 1930 (No. 29),29and complement existing international instruments by providing specific guidance on effective measures to be taken to eliminate all forms of forced labour.
On 15 March 2017, at its 7898th Meeting, the UN Security Council held an open debate on human trafficking, modern slavery, forced labour in conflict situations with representatives from. The meeting was attended by representatives from some 70 countries and stressed “Prevention, Protection, and Prosecution” in combatting modern slavery.30 In March 2017, the ILO and Walk Free Foundation announced that they will jointly develop a single global estimate of modern slavery.31 The International Organization for Migration (IOM) will provide data from IOM’s victim assistance database.32 The 2017 Global Estimate of Modern Slavery and Child Labour will provide global and regional figures from which progress of global efforts to achieve SDG Target 8.7 can be measured.33
5.3 Regional Efforts to Combat Moderns Slavery The issues of human trafficking and modern slavery have subsequently been treated very seriously and comprehensively by majority of countries in the international community. The Council of Europe subsequently established a regional framework for confronting human trafficking via the 2005 Council of Europe Convention on Action against Trafficking in Human Beings.34 The Convention entered into force on 1 February 2008 and by July 2016, it had been ratified by 46 European states which includes every state in the Council of Europe except the Czech Republic (who signed in 2016
26 See, United Nations Treaty Collection. Available: < https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg no=XVIII-12-a&chapter=18&lang=en > accessed 12 May 2017. 27 Sustainable Development Goals, “Goal 8: Promote inclusive and sustainable economic growth, employment and decent work for all”. Available: http://www.un.org/sustainabledevelopment/economic-growth/ accessed 17 May 2017. 28 Ibid. 29 P029 - Protocol of 2014 to the Forced Labour Convention, 1930 Protocol of 2014 to the Forced Labour Convention, 1930 (Entry into force: 09 Nov 2016). Adoption: Geneva, 103rd ILC session (11 Jun 2014) - Status: Up-to-date instrument. Available: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100 ILO CODE:P029 accessed 17 May 2017. 30 UN Security Council, “Meetings Coverage: Prevention, Protection, Prosecution Stressed as Security Council Holds Open Debate on Human Trafficking, Modern Slavery, Forced Labour in Conflict Situations”, 15 March 2017. Available: https://www.un.org/press/en/2017/sc12751.doc.htm accessed 19 May 2017. 31 International Labour Organization, “Background Note: 2017 Global Estimates of Modern Slavery and Child Labour” (undated). Available: http://www.ilo.org/global/topics/forced-labour/publications/WCMS 547398/lang-- en/index.htm accessed 17 May 2017. 32 Ibid. 33 Ibid. 34 Council of Europe, 2005 Convention on Action against Trafficking in Human Beings (Warsaw, 16.V.2005). Done at Warsaw, this 16th day of May 2005, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. Available: https://rm.coe.int/168008371d accessed 17 May 2017. P a g e | 10 but is yet to ratify) and Russia.35 Belarus, a non–Council of Europe state, ratified the convention in 2013. Article 4(a) of the Convention adopts the definition established by the Palermo Protocol with the only difference being the Convention’s use of the terminology “Trafficking in Human Beings” rather than “Trafficking in Persons”. Another regional example is the European Union’s Non-Financial Reporting Directive adopted on 29 September 2014.36 The Council of the European Union adopted a directive setting out new transparency rules on social responsibility for large companies. Financial and non-financial reporting provides shareholders and other stakeholders with a meaningful, comprehensive view of the position and performance of companies. Large public-interest entities (listed companies, banks, insurance undertakings and other companies that are so designated by Member States) with more than 500 employees are required to disclose in their management report relevant and useful information on their policies, main risks and outcomes including with regards to respect for human rights and anticorruption and bribery issues. EU Member states were required to transpose the rules on non- financial reporting into national legislation by 6 December 2016.37 To date, 21 member states have achieved full transposition with infringement proceedings pending against 12 Member States.38
5.4 Country Efforts to Combat Modern Slavery & Supply Chain Abuses Many countries, including Australia, have for some time had criminal laws which recognise and seek to apprehend modern slavery in its variety of forms including servitude, forced labour, slavery, human trafficking and sexual exploitation. Some countries and/or internal states of countries have recently legislated domestically to attempt to also combat modern slavery and labour abuses in supply chains by passing transparency-in-supply - chain legislation including the following examples: • United States of America: o Dodd- Frank Wall Street Reform and Consumer Protection Act 2010 – section 1502 Section 1502 is a disclosure requirement that calls on companies to determine whether their products contain conflict minerals – by carrying out supply chain due diligence – and to report this to the Securities and Exchange Commission (SEC). o California Transparency in Supply Chains Act 2010 (Ca. Civ.Code 1714.43) (entered into force 1 January 2012): requires all retailers and manufacturers doing business in the state (whose annual worldwide gross receipts exceed $100 million), to annually report their implementation of anti-human trafficking compliance controls.39 o Tariff Act of 1930 (19 U.S.C. § 1307) section 307 provides in relevant part that “all goods, wares, articles and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions shall not be entitled to entry at any of the ports of the United States, and the importation thereof is hereby prohibited.”40 o Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA). Signed into law by President Obama in early 2016 the TFTEA had tucked away in the last title of the
35 Council of Europe, Chart of signatures and ratifications of Treaty 197 Council of Europe 2005 Convention on Action against Trafficking in Human Beings, Status as of 17/05/2017. Available: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/197/signatures?p auth=gUSlqaqR accessed 17 May 2017. 36 European Commission, “Banking and Finance: Non-0Financial Reporting” (undated). Available: http://ec.europa.eu/finance/company-reporting/non-financial reporting/index en.htm accessed 17 May 2017. 37 European Commission, “Non-financial reporting directive - transposition status”, 13 January 2017. Available: https://ec.europa.eu/info/publications/non-financial-reporting-directive-transposition-status en accessed 17 May 2017. 38 Ibid. 39 See: http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb 0651-0700/sb 657 bill 20100930 chaptered.pdf 40 United States Department of Labor website. Available: https://www.dol.gov/ilab/child-forced-labor/Relevant- Provision-of-the-Tariff-Act-of-1930.htm accessed 19 May 2017. P a g e | 11
TFTEA, (under a heading that reads Title IX—Miscellaneous Provisions), a Section 910, “Elimination of Consumptive Demand Exception to Prohibition on Importation of Goods Made with Convict Labor, Forced Labor, or Indentured Labor”.41 • United Kingdom: o UK Modern Slavery Act 2015 and Modern Slavery Act 2015 (Transparency in Supply Chain) Regulations 2015: This is covered in significant further detail later in this submission at Section 7 below.
• Switzerland: o Swiss Responsible Business Initiative: In April 2015, a broad coalition of 66 non- government organisations and civil society groups launched the Swiss citizen’s ‘Responsible Business Initiative’. Under the Initiative, companies will be legally obliged to incorporate respect for human rights and the environment in all their business activities. This mandatory due diligence will also be applied to Swiss based companies’ activities abroad. The Initiative has over 140,000 signatures and seeks a nationwide vote in the next few years on binding regulations requiring stricter rules to ensure that all Swiss companies carry out proper human rights and environmental due diligence and integrate such standards into their business practices. The Swiss cabinet and parliament continue to focus exclusively on voluntary measures for businesses, the coalition claims.
• France: o French government introduces Supply Chain Transparency laws: In February 2017, the French government took a historic step toward reducing supply chain abuses.42 The “duty of vigilance” law requires French companies to design and implement safeguards to ensure that human rights including employment rights are respected in their supply chains and lines of production.43
• Holland: o Dutch Child Labour Due Diligence Law: On 7 February 2017, the Dutch Parliament passed the Child Labour Due Diligence Law [‘Wet Zorgplicht Kinderarbeid’], which requires companies to examine whether child labour occurs in their supply chain. The law requires that if child labour is identified in a companies’ supply chain then the company must develop a plan of action to combat child labour and draft a declaration about their investigations and proposed plan of action. That statement will be recorded in a public register by a yet to be designated public authority.44 The legislation is still being considered by the Dutch Senate.
41 See: https://www.dlapiper.com/en/us/insights/publications/2016/09/us-prohibits-imports-forced-labor/ 42 Assemblée Nationale, Documents Parlementaires, Proposition De Loi Relative Au Devoir De Vigilance Des Sociétés Mères Et Des Entreprises Donneuses D’ordre. Available:
5.5 Other Non-Binding Civil Society Developments There have also been increasing attempts by civil society and religious groups to combat modern slavery and trafficking in persons. On 2 December 2014 at the Casina Pio IV, headquarters of the Pontifical Academies of Sciences and Social Sciences, Catholic, Anglican, Muslim, Hindu, Buddhist, Jewish and Orthodox religious leaders signed a Joint Religious Leaders Declaration Against Modern Slavery.45 The Declaration, which was signed by Pope Francis, Thích Nhất Hạnh, K. Sri Dhammananda, Mohamed Ahmed El-Tayeb, Mohammad Taqi al-Modarresi, Basheer Hussain al- Najafi, and Omar Abboud and others, states as follows: We, the undersigned, are gathered here today for a historic initiative to inspire spiritual and practical action by all global faiths and people of goodwill everywhere to eradicate modern slavery across the world by 2020 and for all time. In the eyes of God*, each human being is a free person, whether girl, boy, woman or man, and is destined to exist for the good of all in equality and fraternity. Modern slavery, in terms of human trafficking, forced labour and prostitution, organ trafficking, and any relationship that fails to respect the fundamental conviction that all people are equal and have the same freedom and dignity, is a crime against humanity. We pledge ourselves here today to do all in our power, within our faith communities and beyond, to work together for the freedom of all those who are enslaved and trafficked so that their future may be restored. Today we have the opportunity, awareness, wisdom, innovation and technology to achieve this human and moral imperative.46
5.6 Australian Business Developments to Address Modern Slavery
Australia is fortunate to have business leaders who have recently taken a publicly robust approach to combat modern slavery, human trafficking and supply chain abuses. For example, in 2010, Western Australian mining magnate, Mr. Andrew “Twiggy” Forrest (founder and director of Fortescue Metals Group) established the Walk Free Foundation to combat modern slavery. The Foundation’s website states that: “More than 45 million people are held in some form of slavery throughout the world. Modern slavery is a complex and often hidden crime that crosses borders, sectors and jurisdictions. It impacts on all of us, from the food we consume and the goods we purchase. And it is our responsibility to tackle this crime.” 47
In 2016, Mr Forest was awarded Western Australian of the Year and was nominated for the Australian of the Year Award for his work addressing modern slavery.48 This shows that there is a rising popular consciousness of Australian civil society which recognises that the issue of modern slavery is one that should receive significant priority by government, regulators and the business community.
In 2013, the Walk Free Foundation launched the Global Slavery Index.49 Since 2014, they have conducted 25 surveys with international research based company Gallup Inc. through their World Poll, interviewing more than 28,000 respondents in 52 languages.50 The Index ranks 167 countries via a model of 24 variables which affect vulnerability to enslavement, and cover: (i) Political rights and safety (ii) Financial and health protections (iii) Protection for the most vulnerable, and (iv) Conflict. Currently the Index estimates that there are approximately 45.8 million slaves in 167 countries, with 58% of those people coming from the following five countries: India; China; Pakistan; Bangladesh; Uzbekistan. In 2014, the Index estimated that there were approximately 29 million slaves in 162 countries with roughly half in India and Pakistan.
45 See: Joint Religious Leaders Sign Declaration Against Modern Slavery. Available:
The data generated by the Global Slavery Index over the past few years illustrates both that while the problem of modern slavery is becoming increasingly visible and measurable, it also indicates that it is a growing and persistent problem for the world and thus requires robust regulatory responses throughout the nations of the world in order to comprehensively combat its pervasiveness.
Another example of Australian business taking voluntary steps toward supply chain accountability occurred following the Rana Plaza garment factory collapse in Bangladesh on 24 April 2013 where 1,127 people were killed and more than 2,000 injured by the catastrophic collapse of a factory building in violation of Bangladesh building regulation. The day of the collapse, the factory owner used armed security guards to force the workers back in after they had begun to flee when they noticed large cracks forming in the (illegally built) building. The factory manufactured garments for global leading fashion brands such as Benetton and Walmart many of whose products are sold in Australia. The collapse of the factory brought global attention to employment conditions across Bangladesh’s massive but poorly regulated garment industry. In the immediate aftermath, on 15 May 2013 many companies signed the Accord on Fire and Building Safety in Bangladesh (the Accord) was signed.51 The Bangladesh Accord is a five-year independent, legally binding agreement between global brands and retailers and trade unions designed to build a safe and healthy Bangladeshi Ready Made Garment Industry. In June 2013, an implementation plan was agreed leading to the incorporation of the Bangladesh Accord Foundation in the Netherlands in October 2013.52
Although no Australian companies had clothes made in the Rana Plaza factory, the Australian market is full of such global fashion brand products consumed by Australian. Furthermore, many of Australia’s clothing and garment brands are stitched in the sprawling industrial suburbs of Bangladesh’s capital, Dhaka. Many Australian companies have now signed the Accord including: APG and Co; Designworks Clothing Company Pty Limited; Cotton on Group; Forever New; K-Mart Australia; Licensing Essentials Pty Ltd; Noni B; Pacific Brands; Specialty Fashions Australia; Target Australia; Woolworths Australia; Workwear Group Pty Ltd. Kmart and Woolworths have also publicly disclosed the location of its factories in Bangladesh and withdrew from those it deemed unsafe.53
More recently, Australian business leaders have been active in the space of establishing non-binding aspirational guidelines to combat human trafficking and modern slavery. In December 2015, eight large Australian companies (including Woolworths, Coles, Big W, Masters, Simplot Australia, Goodman Fielder, Inghams Enterprises and Officeworks) established the Australian Supply Chain pledge also known as the “Pledge Against Forced Labour” to work together to reduce, and ultimately eliminate, forced labour, human trafficking and slavery from their manufacturing process and supply chains.54 The Pledge was developed by the Retail and Supplier Roundtable sustainability council.55 The chair of the council and chief executive of Simplot, Terry O’Brien, said the signatories recognised that human trafficking, slavery and other forms of forced labour were human rights abuses
51 The Accord on Fire and Building Safety in Bangladesh. Available: http://bangladeshaccord.org/ accessed 12 May 2017. 52 Ibid. 53 B Doherty & S Whyte, “Kmart to reveal global factory locations”, The Sydney Morning Herald Online (10 July 2013). Available: http://www.smh.com.au/business/kmart-to-reveal-global-factory-locations-20130710-2ppzf.html accessed 12 May 2017; E Han & B Doherty, “Woolworths divulges Bangladeshi factory list”, The Sydney Morning Herald Online, (14 October 2014). Available: http://www.smh.com.au/business/woolworths-divulges-bangladeshi- factory-list-20140603-39gy9.html accessed 12 May 2017. 54 B Doherty, “Eight Australian businesses sign up to tackle forced labour and exploitation”, The Guardian Online (10 December 2015). Available:
This is the first step in what will be an ongoing process. Companies understand they can’t address this on their own, so we are keen to work cooperatively: business and civil society and government working together. “These supply chain issues are complex, and there are many different variables. This is the beginning of a journey. We know there are issues, we don’t know exactly what they are going to be, but we want to understand what is happening so we can work together to address it.56
Whilst some Australian business have taken proactive leadership on the issue of modern slavery, there is still a swathe of concerning recent examples of corporate conduct by business in Australia that demonstrates an urgent and critical need for more robust, targeted and rights- cognisant regulation to address modern slavery in Australia.
6. Modern Slavery: The Australian Context
This section addresses TOR1, TOR2 and TOR3.
6.1 Identifying the Problem: Recent Concerning Trends of Corporate Activity in Australia As detailed above, Australia is not immune from the perils of modern slavery. In fact, in recent years, the Australian economy has suffered numerous scandals involving modern slavery issues and large, medium and small companies operating in Australia and overseas. Like most other countries in the world, Australia has been dogged by a raft of scandals and controversies in regards to the rights- violating-operations of multi-national companies both in Australia and abroad (for those companies domiciled therein) including, but not limited to, the following:
• 2010 – Present; Australian based global mining company, Rio Tinto, has a significant history of human rights violations the world over including its mining operations in Australia’s neighbour PNG;57
• 2012 – present: The involvement of Ferrovial,58 Broadspectrum (formerly Transfield),59 Wilson Security,60 financial sector and international banks61 and other companies in the construction and operations of detention camps for asylum seekers on Manus Island Papua
56 B Doherty, “Eight Australian businesses sign up to tackle forced labour and exploitation”, The Guardian Online (10 December 2015). Available:
New Guinea (PNG) and the Republic of Nauru.62 In March 2015, former UN Special Rapporteur on Torture, Juan Mendez, found the operation of the camps as part of the Australian government’s offshore detention Border Force policy, in direct breach of Articles 1,3 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Punishment.63 On 26 April 2016, PNG's Supreme Court held that the detention of asylum seekers on Manus Island was illegal and in violation of the right to liberty.64 More recently, the Stanford Human Rights Clinic in concert with the Global Legal Action Network filed a Communique in the International Criminal Court implicating these corporate actors and the Australian Government in crimes against humanity;65
• 2012 – 2013: Australian sports ball manufacturers, including brands such as Sherrin and Summit, were found to be using child labour in India in 2012 and 2013. Both have taken steps to fix the situation;66
• 2014 - Present: A growth of Australian mining companies operating in Africa involved in gross human rights violations (The International Consortium of Investigative Journalists found more than 150 Australian-listed active mining companies listing properties in Africa at the end of 2014);67
• 5 November 2015: The notorious Bento Rodriguez catastrophic dam collapse at the Samarco iron ore mine in the Brazilian state Minas Gerais owned and operated by Australian based global mining juggernaut BHP Billiton which created a sea of mud killing 17 people and making hundreds homeless plus wide scale environmental catastrophe.68 The Brazilian government is now suing mining giants BHP Billiton and Vale for $US5.2bn.69
• February 2016: Human Rights NGO Oxfam calls on famous Australian surf wear brands to investigate and report on their supply chains after it was revealed that Australian Stock
62 The Guardian Online, The Nauru Files – An Interactive Database of Incident Reports of the Lives of Asylum Seekers in Detention, (undated). Available: https://www.theguardian.com/news/series/nauru-files accessed 12 May 2017. 63 United Nations Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez – Addendum Observations on communications transmitted to Governments and replies received, 28th session, Agenda Item 3, 6 March 2015 (UN Doc Number: A/HRC/28/68/Add.1). 64 E Tlozek & S Anderson, “PNG's Supreme Court rules detention of asylum seekers on Manus Island is illegal”, ABC News Online (27 April 2016). Available: < http://www.abc.net.au/news/2016-04-26/png-court-rules-asylum-seeker-detention-manus-island-illegal/7360078> accessed 12 May 2017. 65 International Human Rights and Conflict Resolution Clinic of Stanford Law School and the Global Legal Action Network, “Communiqué to the Office of the Prosecutor of the International Criminal Court Under Article 15 of the Rome Statute: The Situation in Nauru and Manus Island: Liability for Crimes Against Humanity” (14 February 2017). Available: https://law.stanford.edu/publications/communique-to-the-office-of-the-prosecutor-of-the- international-criminal-court-under-article-15-of-the-rome-statute-the-situation-in-nauru-and-manus-island-liability- for-crimes-against-humanity/ accessed 12 May 2017. 66 B Doherty, “Poor Children Made to Stitch Balls in Sweatshops”, The Sydney Morning Herald Online, (22 September 2012). Available: http://www.smh.com.au/national/poor-children-made-to-stitch-sports-balls-in- sweatshops-20120921-26c0z.html access 12 May 2017; B Doherty, “Child labour used to make rugby balls”, The Age Online (1 October 2013). Available: http://www.theage.com.au/national/child-labour-used-to-make-rugby- balls-20130930-2uos7.html accessed 12 May 2017. 67 See: https://www.icij.org/project/fatal-extraction/australian-mining-companies-digging-deadly-footprint-africa 68 See: https://www.theguardian.com/sustainable-business/2015/nov/25/brazils-mining-tragedy-dam-preventable- disaster-samarco-vale-bhp-billiton 69 See: https://business-humanrights.org/en/brazil-government-to-sue-bhp-and-vale-over-dam-disaster-that- caused-deaths-environmental-destruction P a g e | 16
Exchange (ASX) listed Ripcurl had garments being manufactured in North Korea when their labels stipulated “Made in China”;70
• 2015 - Present: Gross exploitation of workers by Australian companies, both at home and overseas, in the complex of modern supply chains:
o May 2015: Forced and indentured labour in the Australian agricultural industry which supplies Australian supermarkets and fast food giants including: Woolworths, Coles; Aldi; IGA; Costco; KFC; Red Rooster and Subway. A Four Corners investigation asserted that crime syndicates and unscrupulous labour hire contractors were exploiting Australia's 417 working holiday visa system, leading to foreign staff being abused, women being sexually harassed, staff being paid as low as $3.95 an hour, and potentially millions of dollars stolen in back pay.71
o June 2015: A report published by the federal workplace regulator, the Fair Work Ombudsman reveals that young chicken plant workers employed by major chicken processing company Baiada (which produces the Lilydale Select and Steggles brands for Woolworths, Coles, IGA, Aldi, McDonald's, KFC, Pizza Hut, Red Rooster, Nando's and Subway) are forced to work up to 18 hours a day for as little as $11.50 per hour while living in over-crowded slum accommodation. The Report identifies a murky web of sham contracting arrangements and exploitation of thousands of overseas workers mainly from Taiwan and Hong Kong in Australia on 417 working holiday visas. The inquiry found the workers were forced to live in housing provided by labour hire contractors and that weekly rent of around $100 was unlawfully deducted from their pay. 72
o October 2015: Myer and Spotless Cleaning accused of exploiting workers;73
o November 2015: Pizza Hut accused of using sham contracts to cheat staff of lawful employment entitlements;74
o 2015-2016: Multi-national 7-Eleven is caught out by investigative journalists as grossly exploiting their workforce which was subsequently investigated by the federal workplace regulator, the Fair Work Ombudsman;75
70 C Wahlquist, “Rip Curl's use of North Korean factories leads to calls for industry transparency” The Guardian Online, (22 February 2016). Available: https://www.theguardian.com/australia-news/2016/feb/22/rip-curls-use-of- north-korean-factories-leads-to-calls-for-industry-transparency accessed 12 May 2017. 71 See: C Meldrum-Hanna & A Russell, “Slaving Away”, ABC Four Corners (4 May 2015). Available: http://www.abc.net.au/4corners/stories/2015/05/04/4227055.htm accessed 12 May 2017; M Heffernan, ‘Workplace watchdog aims for top of retailers' supply chain on worker exploitation’, The Sydney Morning Herald Online (5 May 2015). Available: http://www.smh.com.au/business/workplace-relations/workplace-watchdog-aims- for-top-of-retailers-supply-chain-on-worker-exploitation-20150504-ggu5pl.html accessed 12 May 2017. 72 See: A Patty, “Chicken plant workers exploited: watchdog scathing of Baiada”, The Sydney Morning Herald Online (17 June 2015). Available: http://www.smh.com.au/business/workplace-relations/chicken-plant-workers- exploited-watchdog-scathing-of-baiada-20150617-ghq28d.html accessed 12 May 2017. 73 See: R Brown, “Myer cleaner sacked for complaining about exploitation gets job back after Federal Court win”, ABC News Online, (28 November 2015). Available: http://www.abc.net.au/news/2015-11-27/whistle-blower- cleaner-reinstated-by-myer/6982352 accessed 12 May 2017. 74 See: T Brunton, “Delivery driver alleges Pizza Hut puts its drivers in dangerous situations”, ABC News Online (23 November 2015). Available: http://www.abc.net.au/news/2015-11-23/delivery-driver-alleges-pizza-hut-puts- its-drivers/6967198 accessed 12 May 2017. 75 See: A Ferguson & S Danckert, “An inconvenient year for 7-Eleven”, The Sydney Morning Herald Online (27 August 2016). Available: http://www.smh.com.au/business/retail/an-inconvenient-year-for-7eleven-20160826- gr1xff.html accessed 12 May 2017; A Ferguson & S Danckert, “7-Eleven's wage fraud sparks $170 billion blowback” The Sydney Morning Herald Online (27 August 2016). Available P a g e | 17
o October 2016: class action launched against global marketing giant Appco, one of the world’s largest fundraising agencies, for gross exploitation of workforce including sham contracting, bullying and harassment (forced humiliating simulated sex act rituals, cross-dressing or slithering on their bellies in a "sluggie" race as punishment for not meeting sales targets).76
o April 2017: Fast Food Chain Red Rooster investigated by media and the federal workplace regulator, the Fair Work Ombudsman for significantly underpaying staff in eight (8) Queensland stores.77 Notably, the parent company and franchisor acted swiftly to reclaim the impugned businesses by taking charge of seven Queensland stores following the termination of franchise agreements for employee underpayments and working visa issues. Employees were visited by top level Red Rooster executives and advised of an independent hotline set up specifically to deal with this issue. While management remained available for employees, the franchisor required each franchisee to appoint an independent facilitator to oversee the back- payment settlements to ensure transparency of the process. The culprit franchisees were given the opportunity to continue running the restaurants for a set period under an agreement with Red Rooster to allow them to repay the outstanding wages. Chris Green, CEO of Red Rooster, told Inside Franchise Business “There’s never an excuse to underpay staff. These were profitable restaurants, this is a clear case of franchisees doing the wrong thing.78
6.2 Current Australian Legislative Scheme for Addressing Modern Slavery In Australia, federal criminal legislation has been enacted to attempt to confront modern slavery in its many forms (slavery, servitude, forced labour, human trafficking and slavery like offences, etc) including the following:
• Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999; • Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002; • Criminal Code Amendment (Trafficking in Person Offences) Act 2005; • Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013. The Commonwealth Director of Public Prosecutions (CDPP) states that: It is difficult to determine the true level of human trafficking in Australia due to the clandestine nature of this crime along with probable high levels of under-reporting. Australia is a known destination country for victims of trafficking particularly from Thailand, Malaysia, the Philippines and Korea.
http://www.smh.com.au/business/retail/7elevens-wage-fraud-sparks-170-billion-blow-back-20160826-gr264h.html accessed 12 May 2017. 76 See: A Ferguson, “Appco case reveals dark underbelly of charity”, The Sydney Morning Herald Online (10 March 2017). Available: http://www.smh.com.au/business/consumer-affairs/appco-case-reveals-dark-underbelly- of-charity-20170310-guvcx0.html accessed 12 May 2017. 77 See: S Love, “Paying like $8 an hour': Red Rooster stores under investigation for underpaying staff:, Yahoo7 News Online (10 April 2017_). Available: https://au.news.yahoo.com/qld/a/34980762/seven-brisbane-red-rooster- stores-under-investigation-for-underpaying-staff/#page1 accessed 12 May 2017. 78 Inside Franchise Business, “Red Rooster Halts Wage Fraud”, (26 April 2017). Available: http://www.franchisebusiness.com.au/news/red-rooster-halts-wage-fraud accessed 14 May 2017. P a g e | 18
Slavery involves exercising rights of ownership over another including from a debt or contract. Slavery-like offences include servitude, forced labour, deceptive recruiting and forced marriage.
To date, the majority of victims identified by Australian authorities and matters prosecuted by the CDPP have involved women working in the sex industry. However increasingly, victims of other forms of labour exploitation are being identified including in the agricultural, construction and hospitality industries.79 Offences in the area of modern slavery are contained in Divisions 270 and 271 of the Commonwealth Criminal Code 199580 and cover the following types of offences:
• slavery;81 • servitude;82 • forced labour;83 • deceptive recruiting;84 • trafficking in persons;85 • debt bondage;86 and • organ trafficking.87 Many of these offences enjoy an extended geographical jurisdiction and have extraterritorial effect which means it matters not whether the offensive conduct takes place within or outside Australia.88 Importantly, a person or persons attempting to rescue a victim from slavery or slavery-like conditions are immunised from prosecution.89 The crime of engaging in human trafficking, slave trading or to enter into a commercial transaction involving a slave is punishable by a maximum penalty of 25 years’ imprisonment.90 A person conducting a business engaged in servitude is liable to a maximum penalty of 15 to 20 years’ imprisonment. Conduct involving forced labour or inducing another person into forced labour are recognised as a crime punishable with a maximum penalty of 12 years’ imprisonment.91 The current laws in Australia also capture the financing of modern slavery and human trafficking. Businesses can be criminally liable for intentionally or recklessly providing finance to “any commercial transaction” involving slavery.92 Furthermore, if a business operation involves forced labour or servitude, criminal liability arises automatically from another third-party entity providing finance to it.93 While it may be possible to defend a business against charges of criminal liability if a the business has conducted due diligence to attempt to prevent slavery, servitude or forced labour in its supply chain, this remains an open question and the current Australian laws have not imposed any
79 Commonwealth Director of Public Prosecutions, “Human Trafficking and Slavery”. Available: https://www.cdpp.gov.au/crimes-we-prosecute/human-trafficking-and-slavery accessed 17 May 2017. 80 Schedule 1, Criminal Code Act 1995 (Cth). 81 Section 270.3. 82 Section 270.5. 83 Sections 270.6 and 270.6A. 84 Section 270.7. 85 Sections 271.2, 271.3, 271.4, 271.5., 271.6, and 271.7. 86 Sections 271.8 and 271.9. 87 Sections 271.7A, 271.7B, 271.7C, 271.7E, and 271.7F. 88 See: Sections 270.3A, 270.9, 271.10, 271.11. 89 See for example, Section 270.3(4). 90 Section 270.3(1). 91 Ibid. 92 Sections 270.1(1)(c) and (d); 270.3(2)(a) and (b). 93 Sections 270.5(2) and 270.6A(2). P a g e | 19 reporting standards by companies in order to neutralise such liabilities. This is problematic in that there has been no legislative effort to quell such uncertainty in the marketplace. This is why an Australian modern slavery legislative regime involving supply-chain- transparency-reporting is so urgently required. Introducing an Australian modern slavery act will enhance stability by providing legal avenues for business to pursue security against liability. All of this will invoke a corporate culture in Australia educated enough to identify and flush out modern slavery and comfortable enough to condemn it in all its forms.
6.3 Current Australian International Legal Obligations for Addressing Modern Slavery Since the formation of the United Nations and the drafting and adoption of the 1948 Universal Declaration of Human Rights, in which Australia played a key role, the Australian government has signed and ratified the even (7) core international human rights treaties and many other related instruments including many and various Conventions of the International Labour Organization (ILO). International human rights law contained within these instruments is focused on protecting and promoting the inherent dignity of every human person. Needless to say, the profound indignity of any and all forms of servitude, forced labour and slavery-like conditions is a complete anathema to international human rights standards which Australia has comprehensively and consistently endorsed over the past six (6) decades. In addition to the seven (7) core IHRL instruments, Australia has signed, ratified, endorsed or adopted the following international instruments relevant to confronting modern slavery:
• 2011 United Nations Guiding Principles on Business and Human Rights - the Australian Government co-sponsored the UN Human Rights Council resolution endorsing the Guiding Principles;94 • 1999 Worst Forms of Child Labour Convention- ratified by Australia on 19 December 2006. • 1993 Vienna Declaration and Programme for Action – Article 5 states that human rights are ‘universal, indivisible, and interdependent and interrelated’ and requires party States to promote and protect all human rights and urges the international community to address issues globally, equally and fairly. • United Nations Convention against Transnational Organized Crime (the Palermo Convention) signed by Australia on 13 December 2000 and ratified on 27 May 2004. Australia has also signed and ratified two of its three supplementary protocols; o the Protocol to Prevent, Supress and Punish Trafficking in Persons, especially Women and Children; o the Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition; o the Protocol against the Smuggling of Migrants by Land, Sea or Air. Australia has signed but not ratified the third protocol;
• 1957 Abolition of Forced Labour Convention- ratified by Australia on 7 June 1960. However, Australia has still neither signed nor ratified the following relevant international instruments for addressing modern slavery:
• the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.95
94 See: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR EN.pdf 95 Adopted by General Assembly resolution 45/158 of 18 December 1990. Entered into force on 1 July 2003. P a g e | 20
• 2008 Optional Protocol to the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR):96 which establishes an individual complaints mechanism, as well as an inquiry mechanism, for alleged breaches of the ICES|CR– Australia not yet ratified this optional protocol. Given that Australia has become a destination country for human trafficking of modern day slaves, Synceritas submits that it is imperative that the Australian government ratify the convention forthwith. The status of ratification by Australia of other ILO conventions is as follows:
• 1932 - ILO Convention concerning Forced or Compulsory Labour 1930 (No 29) adopted 28 June 1930 and ratified by Australia on 2 January 1932; • 1947 – ILO Migration for Employment Convention (Revised)- not ratified. • 1975 – ILO Migrant Workers (Supplementary Provisions) Convention- not ratified • 1996 – ILO Home Work Convention- not ratified. • 2006 – ILO Maritime Labour Convention- ratified on 21 December 2011 • 2011 – ILO Convention Concerning Decent Work for Domestic Workers- not ratified. • 2014 - ILO Protocol to the Forced Labour Convention – in June 2014 Australia delegates voted in favour of it and it was tabled in Parliament in May 201597 but it remains un-ratified.
7. A COMPARATIVE ANALYSIS - THE UK MODERN SLAVERY ACT 2015
This section addresses TOR5.
7.1 Background – UK Legislative Landscape Prior to the Modern Slavery Act Prior to the passage of the UK MSA, the United Kingdom had an array of disparate legislative provisions designed to address slavery. These included:
• Section 59A of the Sexual Offences Act 2003 (UK)- an offence for trafficking a person for sexual exploitation. • Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (UK)- a more general offence for trafficking a person for exploitation • Section 71 of the Coroner’s and Justice Act 2009 (UK) - an offence for slavery, servitude and forced or compulsory labour.
The UK MSA aimed to consolidate these offences in order to make them and their elements clearer for prosecution purposes, and to ensure that prosecutions are correctly addressed and recorded as instances of modern slavery.
Australia is currently in a similar position, with slavery and exploitation offences spread throughout legislation. The Criminal Code Act (Cth) 1995 has offences covering slavery, servitude, forced labour, forced marriage, human and organ trafficking, child sexual exploitation, and people smuggling. The Migration Act 1958 (Cth)has offences for employers who knowingly or recklessly employ people without visas or in breach of visa conditions. Employing someone in conditions of slavery, servitude, forced labour, forced marriage and debt bondage is an aggravating factor of these offences. The Fair Work Act 2009 (Cth) establishes minimum conditions that all employees are entitled to with regards to
96 Adoption by the Human Rights Council, by its resolution 8/2 of 18 June 2008, of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 97 Australian Government, Department of Employment, Tabling of Forced Labour Protocol and Recommendation Report, 14 May 2015, at [7]. Available: https://docs.employment.gov.au/documents/tabling-fporced-labour- protocol-and-recommendation accessed [insert date] P a g e | 21 pay, maximum weekly hours, leave entitlements, termination and redundancy pay. Implementing an Australian Modern Slavery Act is an excellent opportunity to consolidate and strengthen these offences under one piece of legislation, facilitating prosecution and identification of modern slavery and ensuring current gaps are addressed and international standards of best practice are observed.
Furthermore, prior to the passage of the UK MSA, there were no mandatory reporting requirements for large and medium companies with regards to human rights and/or slavery concerns within their supply chains. Section 54 of the UK MSA now provides for Transparency in Supply Chains as follows:
(1) A commercial organisation within subsection (2) must prepare a slavery and human trafficking statement for each financial year of the organisation.
(2) A commercial organisation is within this subsection if it—
(a)supplies goods or services, and
(b)has a total turnover of not less than an amount prescribed by regulations made by the Secretary of State. 7.2 UK Modern Slavery Bill The United Kingdom’s Modern Slavery Bill (‘the Bill’) was introduced to the House of Commons in October 2013 by Conservative Party member, and then Parliamentary Under Secretary of State for Crime and Security, James Brokenshire. The Bill was sponsored by Theresa May and Lord Bates and had the support of former Prime Minister David Cameron. After passing through the various Committee and Reporting stages in the House of Commons and the House of Lords, the final bill (significantly different from that initially proposed) was given Royal Assent on 26 March 2015.98
During her Second Reading Speech in the House of Commons on 8 July 2014, then Secretary of State for the Home Department and now British Prime Minister, Mrs Theresa May stated:
In few other crimes are human beings used as commodities for the personal gain of others as they are in the appalling crime of modern slavery. Men, women and children, British and foreign nationals of all ages are forced, tricked and coerced into a horrendous life of servitude and abuse: women forced into prostitution, raped repeatedly, and denied their liberty; children groomed and sexually exploited for profit; vulnerable men conned into brutal and inhumane work in fields, in factories and on fishing vessels; people forced into a life of crime; and some people even made to work as servants in people’s homes. Throughout, there are accounts of sexual violence, beatings, humiliation, hunger and mental torture.
This crime is taking place, hidden from view, across Britain today. That it is taking place is an affront not just to those it affects, but to the collective human dignity of all of us. Modern slavery has no place in Britain, and like many people in this House and beyond, I want to see it consigned to history. But if we are to stamp it out, we must ensure that the police and the courts have the powers they need to bring the perpetrators to justice. More arrests and more prosecutions will mean more traffickers and slave drivers behind bars, but importantly, it will also mean more victims released from slavery and more prevented from ever entering it in the first place.
98 See British Parliamentary website, progress of bills, Modern Slavery Act 2015. Available: http://services.parliament.uk/bills/2014-15/modernslavery.html accessed 14 May 2017. P a g e | 22
The Bill, the first of its kind in Europe, will ensure that we can effectively prosecute perpetrators, properly punish offenders and help prevent more crimes from taking place. Most crucially, it will enhance protection and support for the victims of these dreadful crimes. Tackling modern slavery will require more than legislation alone. I have always been clear that it will take a determined and focused law enforcement response, greater awareness among front-line professionals, coordinated police action internationally, close working with business and support from communities, charities and all faiths. But by passing a Modern Slavery Bill in this Parliament, we can take an important step along this road.99
Notably, the final 2015 Bill was significantly different from that originally proposed in 2013, due in part, to a robust civil society campaign which advocated from strengthened victim-protection. The UK NGO Anti-Slavery, commented:
The draft Bill was rather flawed: it over-emphasised the importance of prosecution and contained no victim provision protection – a key ingredient of any successful anti-slavery legislation…On 26 March 2015, Parliament passed an altogether different Bill, a vastly improved one. From the outset, one of our key criticisms was the lack of focus on the rights of those affected by slavery, to which end we launched our Victim Protection campaign. The inclusion of a victim protection section in the Bill was very important then, with clauses covering victim identification and witness protection measures, although without the minimum standards of protection put on statute.100
7.3 Criticisms of the UK Modern Slavery Bill While the intent of the Bill was widely lauded by both major parties, many of its provisions and omissions were strongly criticised by members of parliament, NGOs and civil society groups.101 Some major shortcomings identified by stakeholder organisations in the UK MSA are as follows:
• Failure to address slavery and exploitation in supply chains
The absence of provisions to address instances of modern slavery in supply chains of UK companies was another widely criticised and debated aspect of the Bill during its passage. The loophole identified was that businesses could hide their supply chains overseas and would not face liability for modern slavery practices in the UK so long as the goods they produce do not end up in the UK (for example some of the British construction companies building stadiums with forced labour for the FIFA world cup in Qatar). As passed, the UK MSA did not in fact include reporting provisions. There was general agreement that this issue should be addressed, but some thought it would be more appropriately addressed by separate legislation or through the addition of reporting requirements in the Companies Act 2006.102
99 Hansard, House of Commons Debates, 7 July 2014 Column 166 (Relevant document: Report from the Joint Committee on the draft Modern Slavery Bill, HC 1019, and the Government response, Cm 8889) (Mrs Theresa May, The Secretary of State for the Home Department). Available: https://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140708/debtext/140708- 0001.htm#14070874000001 accessed 14 May 2017. 100 K Skrivankova (Anti-Slavery’s Europe Programme and Advocacy Co-ordinator), “Analysis of Modern Slavery Act: Big step in the right direction but deficiencies leave us – and victims of modern slavery – wholly unsatisfied”, Anti-Slavery (27 March 2015). Available: https://www.antislavery.org/analysis-modern-slavery-act/ accessed 14 May 2017. 101 See: Ibid; T Breakwell, “Slaves in the UK Are Being Failed by the UK's Modern Slavery Bill”, Vice Magazine Online (4 November 2014). Available: https://www.vice.com/en dk/article/uk-modern-slavery-bill-830 accessed 14 May 2017. 102 Hansard, House of Commons Second Reading Speech, 8 July 2014, Column 217 (Frank Field), Column 227 (Caroline Spellman), Column 232 (Sir John Randall), Column 236 (Mark Lazarowicz), and Column 237 (John Glenn). Available: https://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140708/debtext/140708- 0001.htm#14070874000001 accessed 8 May 2017; Written submission by Peter L Talibart. Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/memo/modernslavery.pdf accessed 8 May 2017. P a g e | 23
There was also discussion of the introduction of a voluntary reporting scheme, but most contributors to discussions preferred enforced reporting to ensure a level playing field between companies.103 Ultimately, however, the UK MSA was amended in October 2015 to include section 54 (detailed above) and require UK businesses with an annual turnover of at least $36.0 million to prepare a slavery and human trafficking statement each financial year. However, although some guidance was provided, the Bill stated no specific requirements for what has to be contained in the report, and no enforcement mechanism if companies fail to report. The effectiveness of reporting requirements has also been question, as ‘companies need to do more, not disclose more’.104
• Does not ensure independence of the Anti-Slavery Commissioner
The establishment of the role of an Anti-Slavery Commissioner was warmly welcomed, but many raised concerns that they would not be truly independent as they are required to report to the State-Secretary (who has the authority to veto/edit the Commissioner’s reports before they go before parliament)105 Instead it was suggested that the Anti-Slavery Commissioner report directly to parliament and that they have a wider remit, specifically with respect to providing support to victims and cooperating with various international bodies.106
• Lack of extraterritorial effect
Despite the UK MSA, a person can still abuse someone overseas and not be held to account back in UK;
• Failure to address gaps in legislation
Although it aimed to make prosecution of modern slavery offences easier by consolidating various legislation, there were concerns that it did not make them less complicated or fix existing gaps;107
• Lack of protection of child victims
The Bill was criticised for failing to account for the particularly complex and vulnerable cases of child victims of modern slavery. Many urged for the inclusion of a specific offence for child exploitation.108 There were counter-arguments that including child specific offences
103 Hansard, House of Commons Second Reading Speech, 8 July 2014, Column 168 (Michael Connarty), Column 171 (Kerry McCarthy), Column 184 (Yvette Cooper). Available: https://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140708/debtext/140708- 0001.htm#14070874000001 accessed 8 May 2017; Hansard, House of Commons Debate, (Kate Roberts) (Lucy Maule), (Andrew Wallis),; Written submissions by Ethical Trading Initiative, Joseph Rowntree Foundation, Association of Labour Providers, Homeworkers Worldwide, Unseen, Amnesty International UK, Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/memo/modernslavery.pdf accessed 8 May 2017. 104 Written submission by PricewaterhouseCoopers. Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/memo/modernslavery.pdf accessed 8 May 2017. 105 Modern Slavery Act 2015, s41(7). 106 See written submission by the Immigration Law Practitioners’ Association. Available https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/memo/modernslavery.pdf accessed 8 May 2017. 107 Hansard, House of Commons Second Reading Speech, 8 July 2014, Column 193 (Mark Durkan) Available: https://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140708/debtext/140708- 0001.htm#14070874000001 accessed 8 May 2017; See written submission from Peter Carter QC. Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/memo/modernslavery.pdf accessed 8 May 2017. 108 Hansard, House of Commons Second Reading Speech, 8 July 2014, Column 194 (Mark Durkan), Column 197 (Tracey Crouch), Colum 172 (Lisa Nandy), Column 230 (Hywel Williams), Colum 249 (Sammy Wilson), and P a g e | 24
would make prosecutions more complex as it may add the difficulties of proving the victims’ ages.109 As a compromise, a presumption about age provision was included. This ensures that where there are reasonable grounds to believe a potential victim may be under 18 years old, all public authorities are to treat them as if they are under 18 until their age is properly established. Unfortunately, this provision only applies to victims of trafficking, not other forms of exploitation.
There were also concerns that provisions that protect victims from prosecution for crimes they commit as a result of modern slavery are inadequate, as the defences requires victims to shows there were ‘compelled’ and a child cannot consent to their own exploitation. Ultimately, this element was removed where a victim was under 18 years old at the time of the offence.
The Bill does not ensure the mandatory provision of legal guardians for child victims who have the authority to fully act in the best interests of the child. The practical reality is this is important as legal advocates are obliged to act on the clients’ instructions, and often children especially do not wish to assist with investigating or prosecuting their abusers.
• General lack of victim focus and protections
Throughout the Bill’s passage through parliament and since its enactment it has been criticised for a focus on prosecutions rather than on victim support and protections. While it does have victim protection provisions, it does not specify a minimum of protection that must be given. Furthermore, the schedule 4 list of exceptions to the defence given to victims of modern slavery who commit a crime greatly weaken that defence. The exceptions notably include robbery, possession of a prohibited firearm, assisting illegal immigration, perverting the course of justice, destruction of property, or a trafficking, slavery, servitude forced or compulsory labour offence under section 1 and 2 of the UK MSA. Merely aiding and abetting in any of these offences will mean a victim has no defence under the Act.
Arguably none of these concerns had been adequately dealt with by the time the UK MSA was enacted, and they remain valid criticisms of the Act that Australia should seek to learn from should it decide to pass its own Modern Slavery laws.
Column 255 (Diana Johnson). Available: https://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140708/debtext/140708- 0001.htm#14070874000001 accessed 8 May 2017; Hansard, House of Commons Debates, 21 July 2014, Column18 (Cecilia Taylor-Camara), Column 34 (Peter Carter QC), and Column 40 (Nadine Finch). Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/140721/pm/140721s01.htm accessed 8 May 2017; Written submissions from TRAC, Christine Beddoe, UNICEF UK, Law Society, Amnesty International UK, Immigration Law Practitioners’ Association, Anti-Trafficking Monitoring Group, Peter Carter QC, Nadine Finch. Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/memo/modernslavery.pdf accessed 8 May 2017; UK, House of Lords Second Reading Speech, 17 November 2014, Columns 262-263 (Lord Patel). Available: https://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/141117- 0001.htm#1411179000440 accessed 8 May 2017. 109 Hansard, House of Commons Debates, 21 July 2014, Colum 6 (Alison Saunders, Director of Public Prosecutions). Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/140721/pm/140721s01.htm accessed 8 May 2017; Written submission by the Law Society. Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/memo/modernslavery.pdf accessed 8 May 2017. P a g e | 25
7.4 2016 Independent Haughey Review & Further Identified Deficiencies In 2016, an independent review of the UK MSA was commissioned by the Home Secretary to be carried out by barrister Caroline Haughey. The final report was published on 31 July 2016.110 Ultimately, Haughey found that: One year on, operational agencies are beginning to use the powers in the Act. While slavery remains under-reported, the Act and wider work have raised slavery in the consciousness of the general public and practitioners. The operational response to slavery is improving:
• More victims are being identified… • Better protections are in place • Increased number of proactive and reactive police investigations • Increased number of prosecutions and convictions (most still under the old offences) • Prosecutors are enhancing their understanding of the law and needs of victims through use of the vulnerable witness tools • At a judicial level awareness is increasing and training is being put in place
But work to translate the Act into real world results is inevitably a work in progress. Despite stand-out examples of good practice, there is a lack of consistency in how law enforcement and criminal justice agencies deal with modern slavery. The stand-out issues are:
• Training for police officers, investigators and prosecutors is patchy and sometimes absent • Insufficient quality and quantity of intelligence about the nature and scale of modern slavery at national, regional and international level, which hampers the operational response • Lack of a structured approach in operational agencies to identifying, investigating, prosecuting and preventing slavery, including learning from what works and what does not • Some complainants not being afforded the vulnerable witness protections available to them during and after the Court process.111
The Review further found that:
• There had been 340 cases of modern slavery between January 2015 and July 2016 and this had resulted in 215 charges and a 75% conviction rate. • There had been a 40% increase in referral of victims to the National Referral Mechanism in 2015 and there was growing awareness of modern slavery in enforcement agencies. While this all indicated progress, Haughey was careful to note that it was too early to truly gauge the effectiveness of the UK MSA barely a year after its enactment. Haughey made 29 recommendations that she felt would support and strengthen the UK MSA’s practical application and overall effectiveness. Many of these recommendations involved providing sufficient resources and training to law enforcement officers112 and establishing comprehensive intelligence and data gathering and sharing protocols.113
110 C Haughey, “The Modern Slavery Act Review” (31 July 2017). Available: https://www.gov.uk/government/uploads/system/uploads/attachment data/file/542047/2016 07 31 Haughey Re view of Modern Slavery Act - final 1.0.pdf accessed 17 May 2017. 111 Ibid, 3-4. 112 See for example, Recommendations 2-4, 7 113 See for example, Recommendation 5-6 P a g e | 26
Haughey noted that the 45 days of support from the National Referral Mechanism (‘NRM’) that the UK MSA allows for is often inadequate and frontline officers have been known to refer victims to homeless support agencies to avoid the appearance of incentivising victim cooperation in investigations or prosecutions.114 Many officers did not know of the possibility of an extension of the 45-day support period, or have awareness of the operation of Prevention and Risk Orders.115 She recommended that officers be provided with more training and guidance on how best to investigate, and support victims of, modern slavery. Further, because of a lack of understanding of victimology and law, evidence was often poorly gathered and presented at trial. There was a growing need for specialist advocates and judicial training. She praised the movement towards presenting cases by drawing up a list of acts that support the alleged offence/s. This allows the defence to address each in turn and enables better jury comprehension in these frequently complex cases. Additionally, she recommended that victim support required from local authorities and agencies once the victim was no longer covered by the NRM should be clarified and formalised. These findings and recommendations demonstrate that for a UK MSA to be effective, it needs to be supported by a strong framework of practical enforcement and victim support measures. In terms of surrounding legislative amendments, Haughey recommended implementing Benchbook guidance on jury directions specific to modern slavery offences, as well as ensuring sentencing guidelines to reflect new sentencing powers under the UK MSA. She further recommended the following improvements to the UK MSA itself:
• The interplay between sections 1, 2 and 3 (definition of exploitation) of the UK MSA and the personal circumstances of the victim is unclear. Consequently, the distinction between the offences of slavery, servitude and forced or compulsory labour needs clarification. • Possible creation of a separate exploitation offence. Labour exploitation cases have shown there is a gap between the definition and application of the term ‘exploitation’. • Risk and Prevention Orders could be extended to include prostitution, child grooming, other sexual offences, and assisting unlawful immigration. • Review the current definition of ‘false imprisonment’ as it is unclear and no longer accurately covers all modern instances of detention. • Convicted offences should either be barred from sponsoring a visa holder, or be required to disclose their convictions to the visa applicant. • Clarification of the section 45 defence for victims of modern slavery who consequently commit crimes. The meaning of ‘direct consequence’ needs to be defined, and it is unclear where the evidentiary burden for this defence lies (the assumption has been that it lies on the defence). Further, the defence could be extended to cover every offence committed by a victim of trafficking. Haughey gave the example of section 31 of the Trinidad and Tobago Trafficking in Persons Act 2011 as an illustration of an absolute defence and stated as follows: ‘Where a victim has been compelled to engage in unlawful activities as a direct result of being trafficked and he has committed any immigration-related offence, or any other criminal offence for which he is being prosecuted, he may offer as a defence, evidence of having been compelled as a victim of trafficking to engage in such unlawful activities’ Haughey noted that others argue the defence should be more restrictive, like the defence of duress.
It is our submission that there is much that Australia can look to inherit from the UK model, but we urge that close attention should be paid to its shortcomings so that we may learn from
114 C Haughey, above n 108, 25. 115 Recommendation 23. P a g e | 27 them and set a new international legislative benchmark for combatting modern slavery. In particular, we recommend that a Modern Slavery Act for Australia have at least:
• Robust victim support and adequate resources for frontline law enforcement and prosecutorial services; • Broad reach and extraterritorial effect; • Mandatory reporting guidelines with an enforcement mechanisms and penalty for failing to report; • Establishment of an independent Anti-Slavery Commissioner with broad investigative powers. • See further recommendations below at Section 9.
8. International Best Practice Guidance for an Australian Modern Slavery Law and Implications
This section addresses TOR 3 and TOR4. 8.1 Identifying international best practice employed by governments, companies, businesses and organisations to prevent modern slavery in domestic and global supply chains
International legal standards adopted by the international community offer the most reliable best practice guidance for an Australian Modern Slavery Law. The Australian government has signed, ratified and adopted many of these standards but many remain un-ratified. We reiterate and refer to those binding and non-binding instruments not all of which Australian has ratified, listed at Section 6.3 above. The Country Efforts to Address Modern Slavery listed above at Section 5.4 will also provide important instructive guidance on Best Practice and Implications of any Modern Slavery laws that Australia might introduce.
In addition to the seven (7) core international human rights law conventions ratified by Australia, there is an abundance of world best practice established standards employed and developed in consultation with businesses to prevent modern slavery in domestic and global supply chains. As modern slavery often involves human trafficking and people trafficked from source countries to destination countries like Australia, a robust recognition of the rights of migrant workers is indispensable to a strong Australian regime to address modern slavery.
The most recent global best practice guidelines for business operations in relation to promoting, protecting and respecting human rights are the 2011 Guiding Principles on Business and Human Rights.116 From 2005 – 2011, the Guiding Principles were developed by Harvard Professor John Ruggie, the Special Representative of the UN Secretary-General on business and human rights (SRSG).117 The Protect, Respect and Remedy Framework for Business and Human Rights to the establishes an authoritative statement on the relationship between business and human rights. Importantly, it recognised that while governments have a primary duty to protect and promote human rights, businesses also have a distinct responsibility to respect human rights, expressed as a “do no harm” standard. It also recognised the importance of access to effective judicial and non-judicial remedy for victims of human rights abuses by business.
116 See: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR EN.pdf 117 See: http://www.ohchr.org/EN/Issues/Business/Pages/SRSGTransCorpIndex.aspx P a g e | 28
Other international instruments and guidelines that comprise best practice standards and international legal framework to prevent modern slavery in domestic and global supply chains include:
• 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.118 • 1990 United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;119
• 1975 ILO Migrant Workers (Supplementary Provisions) Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers;
• 1949 ILO Migration for Employment Convention(Revised);
• The 2000 UN Global Compact:120 which asks companies to commit to ten (10) universal sustainability principles, and to support broader UN and societal goals such as the 2015-2030 Sustainable Development Goals. The ten principles are derived from:
(i) The 1948 Universal Declaration of Human Rights;121 (ii) The 1998 International Labour Organization’s Declaration on Fundamental Principles and Rights at Work;122 (iii) The 1992 Rio Declaration on Environment and Development; (iv) The 2004 United Nations Convention Against Corruption.123
• 2015 – 2030 UN Sustainable Development Goals: In September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs) – 17 global goals which lay out a path to 2030 to end extreme poverty, fight inequality and protect our planet. Business has a crucial role to play in achieving the SDGs – through responsible business operations, new business models, investment, innovation and technology, and collaboration;124 • Organisation for Economic Co-operation and Development (OECD) Resources: o OECD Guideline for Multinational Enterprises and Global Forum for Responsible Business Conduct;125
118 Adopted and opened for signature, ratification and accession by General Assembly resolution 55/25 of 15 November 2000. Australia signed on 11 December 2002 and ratified on 14 September 2005. 119 Adopted by General Assembly resolution 45/158 of 18 December 1990. Entered into force on 1 July 2003. The Australian government has neither signed nor ratified the Migrant Workers Convention. 120 See: https://www.unglobalcompact.org/ accessed 14 May 2017. 121 See: http://www.un.org/en/universal-declaration-human-rights/ accessed 14 May 2017. 122 See: http://www.ilo.org/declaration/lang--en/index.htm accessed 14 May 2017. Adopted in 1998, the Declaration commits Member States to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions. These categories are: (i) freedom of association and the effective recognition of the right to collective bargaining, (ii) the elimination of forced or compulsory labour, (iii) the abolition of child labour and (iv) the elimination of discrimination in respect of employment and occupation. 123 See: https://www.unodc.org/unodc/en/treaties/CAC/ accessed 14 May 2017. Australia signed on 9 December 2003 and ratified on 7 December 2005. The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument. The Convention's far-reaching approach and the mandatory character of many of its provisions make it a unique tool for developing a comprehensive response to a global problem. The Convention covers five main areas: preventive measures, criminalization and law enforcement, international cooperation, asset recovery, and technical assistance and information exchange. The Convention covers many different forms of corruption, such as bribery, trading in influence, abuse of functions, and various acts of corruption in the private sector. A highlight of the Convention is the inclusion of a specific chapter on asset recovery, aimed at returning assets to their rightful owners, including countries from which they had been taken illicitly. The vast majority of United Nations Member States are parties to the Convention. 124 UN Global Compact Network, Sustainable Development Goals. Available: http://www.unglobalcompact.org.au/issues/sustainable-development/sustainable-development-goals-sdgs/ accessed 14 May 2017. 125 See: http://www.oecd.org/corporate/mne/ P a g e | 29
o OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector;126 o OECD-FAO Guidance for Responsible Agricultural Supply Chains;127 o OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas;128
International Organization for Standardization (ISO) – ISO 26000 – Social Responsibility:129 ISO 26000 provides guidance on how businesses and organizations can operate in a socially responsible way. This means acting in an ethical and transparent way that contributes to the health and welfare of society. ISO 26000:2010 provides guidance rather than requirements, so it cannot be certified to unlike some other well-known ISO standards. Instead, it helps clarify what social responsibility is, helps businesses and organizations translate principles into effective actions and shares best practices relating to social responsibility, globally. It is aimed at all types of organizations regardless of their activity, size or location. The standard was launched in 2010 following five years of negotiations between many different stakeholders across the world. Representatives from government, NGOs, industry, consumer groups and labour organizations around the world were involved in its development, which means it represents an international consensus.
8.2 Implications for Australia’s Visa Regime and conformity with the Palermo Protocol to Prevent, Supress and Punish Trafficking in persons, especially Women and Children regarding federal compensation for victims of modern slavery;
Australia is a destination country for human trafficking and modern slavery. That is, and as shown in the examples in Section 6.1 above, often vulnerable persons are sourced from developing countries to travel to Australia on working visas (414 working visas or subclass 457 visas). While it is beyond the scope of our organisation to offer a comprehensive review of Australian immigration law and potential implications, we submit that an Australian Modern Slavery Act should be supported by a visa regime that ensures visa holders have adequate protection against modern slavery. This should include the ability to change employers and extend visa stay where necessary. 2012 changes to Overseas Workers Visas in the UK that deprived holder of such protection left them particularly vulnerable to exploitation and were the subject of much discussion during the UK Bill’s passage through parliament.
We note there are limited victim protections currently in place in Australia’s visa regime. Suspected victims of modern slavery may be granted an initial bridging visa which generally lasts for up to 45 days and does not allow the holder to work in Australia. Victims cooperating with investigations or prosecutions of modern slavery offences may be granted further bridging which does allow them to work throughout the investigation and/or prosecution process.130 Victims may also apply for Protection visas (if they qualify as refuges or have complementary protection status)
We welcome the recently introduced sponsor requirements for Partner and Perspective Marriage visa applications (effective from 18 November 2016). Sponsors may now have to provide police checks and will have to consent to any relevant offences being disclosed to the visa applicant. Relevant offences include violent offences such as assault or breach of an apprehended violence order, as well
126 See: http://mneguidelines.oecd.org/responsible-supply-chains-textile-garment-sector.htm 127 See: http://mneguidelines.oecd.org/rbc-agriculture-supply-chains.htm 128 See: http://mneguidelines.oecd.org/mining.htm 129 See: https://www.iso.org/iso-26000-social-responsibility.html 130 Anti-Slavery Australia, Fact Sheet #9: Visa Options for Trafficked People. Available: http://www.antislavery.org.au/resources/fact-sheets/112-fact-sheet-9-visa-options-for-trafficked-people.html accessed 18 May 2017/ P a g e | 30 as offences related to modern slavery such as human trafficking, slavery, forced marriage, kidnapping and unlawful confinement.
It is vital that immigration status is irrelevant to victims’ ability to report and prosecute their abusers and access support services (e.g. healthcare, accommodation and legal aid). Fear of deportation, detention or other repercussions should not act as a deterrent for victims to come forward.
9. Conclusions and Recommendations Synceritas makes the following recommendations for the Joint Standing Committees consideration:
Recommendation 1: The Australian government introduce a Modern Slavery Act with broad reach, based up but improved upon the UK MSA, with the following features: a) A robust, streamlined and well-resourced criminal prosecution regime balanced with sufficient victim/survivor protection mechanisms (including with requisite visa/immigration status provisions and criminal liability immunities for crimes committed under duress); b) Extraterritorial effect which applies to both person, companies, organisations and businesses operating within Australia; c) Establishment of an adequate legal immigration status for victims of modern slavery to be protected, supported and rehabilitated including support for assisting prosecutions where appropriate; d) Establishment of an independent Australian Anti-Slavery Commissioner with adequate statutory powers to investigate and review issues regarding modern slavery in Australian business and organisations operating in Australia to promote and protect rights of victims and investigate prosecutions and balance victim protection support services (e.g. healthcare, accommodation, legal aid, etc); e) Establishment of an adequately resourced National Referral Mechanism which has a 24- hour public reporting hotline and access to victim support resources; f) Mandatory annual due diligence and Supply-Chain-Transparency-Reporting requirements for large and medium companies/businesses both domiciled in Australia and operating in Australia with an enforceability mechanism if companies/businesses fail to report; g) Establishment of a Centralised National Repository for Annual Supply-Chain- Transparency Reports to complement reporting requirements in other jurisdictions and counter against unnecessary duplication by multinational business; h) Mandatory requirements for the depositing of Annual Supply-Chain-Transparency Reports into the national repository as well as publication on company websites; i) A voluntary opt-in annual reporting mechanism for small businesses to report on supply chain transparency and an associated accreditation system and accreditation certification logo for small business who achieve compliance; j) Production of significant resources for educating, training and supporting: a. Frontline law enforcement officers; b. State prosecutorial bodies; c. Large, medium and small business and especially the latter with the establishment of a Small Business Modern Slavery Code of Awareness. d. Non-Government Organisations; e. The general public.
Recommendation 2: In order to complement and fortify the implementation of a Modern Slavery Act in Australia as detailed in Recommendation 1, and to combat the scourge of modern slavery globally, the Australian government should urgently: P a g e | 31
a) Ratify the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;131 b) Ratify the 2008 Optional Protocol to the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR);132 c) Ratify the 2014 ILO Protocol and a Recommendation which supplement the Forced Labour Convention, 1930 (No. 29);133 d) Implement a National Action Plan pursuant to the 2011 United Nations Guiding Principles on Business and Human Rights;
Recommendation 3: Consult with and within International Bodies (UN Human Rights Council, UNHCR, ILO, etc) and Regional Bodies (ASEAN) and civil society (such as the Walk Free Foundation) tom establish a global reporting repository for Annual-Supply Chain Transparency Reports and Due Diligence Reports by companies including to attempt to avoid duplication for multinational enterprises.
Recommendation 4: Establish working partnerships with UN agencies (such as the UNHCR) and sourcing countries in the Region to educate government, businesses, employers, employees and the general public in sourcing countries about modern slavery and child labour exploitation.134
Recommendation 5: General Public Education Campaign on Modern Slavery. Similar to the UK government, the Australian government the Australian government invest in a comprehensive and savvy public education campaign regarding the existence and prevalence of modern slavery in Australia similar to the UK Home Office producing a number of educative advertisements and a short film135 for television and social media one of which a 30 second ad entitled “Slavery is closer than you think” has more than 930,000 views on YouTube.136 There is also a dedicated UK government website registered at the domain name: www.modernslavery.co.uk and includes the following resources on which the Committee should draw for information and guidance about the introduction of modern slavery legislation in Australia and in particular resources about the following: A National referral mechanism; Duty to notify; Transparency in supply chains; Research and publications; Promotional materials; Independent child trafficking advocates.
Recommendation 6: Australia should take further measures to combat modern slavery on a global level by enhancing customs and border protection laws to restrict the importation of goods produced through modern slavery and forced labour.
131 Adopted by General Assembly resolution 45/158 of 18 December 1990. Entered into force on 1 July 2003. 132 Adoption by the Human Rights Council, by its resolution 8/2 of 18 June 2008, of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 133 P029 - Protocol of 2014 to the Forced Labour Convention, 1930 Protocol of 2014 to the Forced Labour Convention, 1930 (Entry into force: 09 Nov 2016). Adoption: Geneva, 103rd ILC session (11 Jun 2014) - Status: Up-to-date instrument. Available: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100 ILO CODE:P029 accessed 17 May 2017. 134 See for example, adidas Group Submission #1, p 6. Available: http://www.aph.gov.au/Parliamentary Business/Committees/Joint/Foreign Affairs Defence and Trade/ModernS lavery/Submissions accessed 15 May 2017. 135 UK Home Office, “Modern Slavery is closer than you think: Understanding Modern Slavery and Human Trafficking” (28 August 2014). Available: https://www.youtube.com/watch?v=Jv1H fAoOG4 accessed 14 May 2017. 136 UK Home Office, “Slavery is closer than you think – watch the new Modern Slavery campaign TV advert to find out more” (31 July 2014). Available: https://www.youtube.com/watch?v=yOe2-j3QzKI accessed 14 May 2017.