Tuesday 17th July 2018 Attention: Legal and Constitutional Affairs Legislation Committee (Senate) Modern Slavery Bill 2018 Enquiry Dear Senators, May I lodge this individual submission opposing this Bill in its current form? Yours faithfully, Andrew Oliver (copy with signature to follow by post), Constituent of Goldstein. Table of Contents Definitional Considerations..................................................................................................................... 3 Constitutional Considerations................................................................................................................. 4 This Bill Lacks Teeth ................................................................................................................................ 5 Property Restitution Of Stolen Wages .................................................................................................... 5 Antislavery Inspectorate ......................................................................................................................... 5 Demarcation Between Antislavery And Industrial Relations Legislation ................................................ 6 Recommendation .................................................................................................................................... 6 Definitional Considerations Winston Churchill famously stated: “A labour contract into which men enter voluntarily for a limited and for a brief period, under which they are paid wages which they consider adequate, under which they are not bought or sold and from which they can obtain relief … on payment of £17.10s, the cost of their passage, may not be a healthy or proper contract, but it cannot in the opinion of His Majesty’s Government be classified as slavery in the extreme acceptance of that word without some risk of terminological in exactitude.” House of Commons, 22nd February 1906.1 The left and the right have never agreed about employment industrial relations and the legal basis of employment. In the modern-day gig economy, with click through Internet contracts, never read but full of unfair terms, there is a race to the bottom in respect of both wages and conditions. There are some who believe in a narrow definition of slavery focused on recognition of the historical consequences of the African slave trade in the 1700s and 1800s, modern consequences of which still cause social grievance in the United States. There are those like myself who believe in a broader definition of slavery that covers all forms of forced labour. This Bill does not include an express definition of slavery. To my mind this shows a defect in the legislative drafting process. If too much of a Bill is via reference to explanatory memoranda and second reading speeches this will make judicial interpretation more contestable. A proper regard for legislative proprietaries means that this defect alone is sufficient for submitters to argue it is in sore need of re-drafting. The Economist published a daily chart 20th of September 2017 that summarised features of modern slavery which might be useful in supplementing a dictionary definition.2 Classified by means of coercion, these included sexual violence, withheld passport or other documents, punished through fine or financial penalty, physical violence, threats of violence, withheld wages, locked in work or living quarters, threats against family, punished through deprivation of food sleep et cetera, threat of legal action, had to repay debt, kept drunk or drugged, too far from home and nowhere to go. Given that judicial notice is taken by interpreting laws imposing criminal sanction with consideration to those at risk of imprisonment being given every opportunity allowed by lax drafting, definition is a matter of public importance if modern slavery is to be tackled vigorously and trenchantly stamped out. 1 Oxford Dictionary Of Political Quotations, p87 quote 4. 2 The Economist Daily Chart 20th September 2017, “Modern slavery is disturbingly common”, with figures sourced from the International Labour Organisation; International Organisation for Migration and Walk Free Foundation. Constitutional Considerations Australian constitutional law has something to say in relation to the policy of employment. Section 51 (xxiiiA) provides a policy covenant on social security “but not so as to authorise any form of civil conscription”. Section 51 (xxxv) provides a policy covenant on federal industrial legislation that it use “conciliation and arbitration for the prevention and settlement of industrial disputes”. During the First World War, two referendums voted against military conscription. If the federal government wishes these decisions changed, it should consult the electorate by referendum. That said, international treaties addressing modern slavery are arguably valid under the external power most particularly in respect of extraterritorial application of Australian law. I think the road forward for industrial relations in this country is to have a Modern Slavery Bill with penal provisions, and a Conciliation And Arbitration Bill that deals with the civil law of employment contracts by establishing tribunals where free workers can get their social grievances heard in relation to employment and individual matters affecting individuals or workers in a single workplace dealt with heard properly and conciliated mediated or arbitrated. Would not be better rather than never-ending disputes and endless quibbles, each separate matter of social grievance in relation to employment should be heard by an appropriate tribunal with the dispute settlement form in a schedule to the Conciliation And Arbitration Bill providing the cross- claim waivers both ways between the agent of the employees and the agent of the employer to go into a public register? However, the minimum wage is more a matter of antislavery law in that those in domestic servitude paid two dollars an hour plus accommodation and meals are better regarded as victims of modern slavery. This Bill Lacks Teeth This Bill is focuses on getting medium sized and large businesses to make empty token statements about their overseas supply chains rather than creating criminal sanctions and actionable rights and establishing an Anti Slavery Inspectorate to enforce the law. What is the mechanism of enforcement envisaged by this law? Corporate social responsibility? Or, … “It will drive a ‘race to the top’ as reporting entities compete for market funding and investor and consumer support.”3 This reminds me of the consumer boycotts of Streets Ice Cream and Victoria Bitter in relation to their employment practices. I think penal provisions a more appropriate mechanism of enforcement, for anti-slavery law, but the civil law of employment more appropriate for regulating healthy and proper employment contracts via establishment of tribunals to facilitate such. Property Restitution Of Stolen Wages It is impractical and socially unaffordable to pay out millions in compensation to every victim of slavery. Rather property restitution of stolen wages is not compensable by inferring employment relations and applying community standards of the minimum wage and basic community standards of conditions. Having a tribunal with powers to so infer employment relations would be better for the greatest good of the greatest number. But should it be under arbitration law or be done by an antislavery tribunal that imposes basic community standards? Antislavery Inspectorate There should definitely be an anti-slavery inspectorate. With powers to take complaints and also investigate of its own motion. Without such, we will get nothing but empty words of insincere compassion. 3 Explanatory Memorandum, p2. Demarcation Between Antislavery And Industrial Relations Legislation It is also important to demarcate between against public policy practices of slavery and lawful employment relationships. Though employment relationships sometimes deteriorate into enmity, and are needful of tribunals clothed with powers to address employment grievances, we should demarcate legally by separate pieces of legislation the civil laws of employment on the one hand and antislavery law criminal damage to property law and the criminal laws regulating violence all of which need penal provisions. Recommendation I recommend to the Committee that they recommend to the Senate that this Bill be rejected and sent back to cabinet for reconsideration. Andrew Oliver Constituent of Goldstein. .