Additional Comments by Senator Paul Scarr
1.1I support the establishment of an Australian Anti-Slavery Commissioner (‘theCommissioner’). Hence, I support the recommendation in the Majority Report that the Senate pass the Bill with the amendments which are recommended in these additional comments. I support the recommendations made in the Majority Report subject to one important qualification in relation to Recommendation 1 (the definition of ‘sensitive information’). I explain my qualification below. Further, I make a number of additional recommendations.
1.2The Majority Report recognises that there is an issue with the definition of ‘sensitive information’ in the context of ‘international relations’. In particular, the Majority Report states at paragraph 2.105:
It is not clear to the committee that term ‘sensitive information’ is sufficiently defined in the bill or its explanatory memorandum, particularly in relation to information that would or may (sic) prejudice the international relations of Australia.[1] In the committee’s view, this term should be clearly defined to ensure that the independence of the Anti-Slavery Commissioner is not called into question.
1.3Based on the evidence provided to the committee (and as will be seen from my subsequent comments), I agree.
1.4The Majority Report, then makes the following recommendation:
Recommendation 1: The committee recommends that the term ‘sensitive information’, particularly regarding information related to the international relations of Australia, be clarified in either the bill or the explanatory memorandum.
1.5I agree that the matter needs to be clarified by amendment to the Bill. I do not agree that it can be clarified through amendment to the explanatory memorandum. This is my point of difference with this recommendation. It is an important one. Its importance is reflected by the extent of the AdditionalComments I provide in good faith on this issue.
1.6I am strongly of the view that the issue is of such importance that it must be resolved by amendment to the Bill. This is because the current wording (on its plain meaning) encompasses such a wide category of information as ‘sensitive information’; namely information which would or might prejudice the international relations of Australia. On its plain meaning, this would include information in the public domain. It includes public information which would reasonably require businesses to implement risk management processes to address the risk of modern slavery in their supply chains. In the context of this Bill, for the reasons I expand upon below, I am firmly of the view that this section needs to be amended to ensure that: (a) the independence of the Commissioner is maintained; and (b) the Bill is effective in countering modern slavery, particularly outside of Australia.
1.7A key theme in the evidence received by the Committee was the importance of the Australian Anti-Slavery Commissioner being independent from Government.The Attorney-General in his Second Reading Speech stated:
To be effective in their role, it is vital that the Commissioner be independent. [Therefore, t]he bill provides that the commissioner will have discretion in performing or exercising their functions, and will not be subject to direction.[2]
1.8However, the Bill does contain provisions which would have the effect of undermining the independence of the Commissioner, albeit that they might not make the Commissioner: ‘subject to direction’ (to use the phrase used by the Attorney-General in the Second Reading speech quoted above). It is in this context, that I now consider the definition of ‘sensitive information’.
1.9Clause 3 of the Bill proposes a new definition: ‘Sensitive Information’ which would read:
Sensitive information means information the disclosure of which would or might:
(a)prejudice the security, defence or international relations of Australia; or
(b)prejudice the investigation of, or the prosecution of a person for, an offence; or
(c)endanger the life or safety of any person.
1.10Where information falls within the definition of ‘sensitive information’, there is a constraint imposed upon the Commissioner with respect to the use of that information. This constraint is specifically imposed in relation to the adoption of strategic plans and the preparation and publication of annual reports.
1.11In the context of the strategic plan to be prepared by the Commissioner, section 20X(3) provides:
(3)A strategic plan must not include sensitive information.
1.12Hence, the Bill proposes a blanket prohibition upon the Commissioner including any reference to ‘sensitive information’ in the strategic plan. Whilst this is not a ‘direction’ from Government (again, to use the phrase adopted by the Attorney‑General in his second reading speech), it is a restriction imposed upon the Commissioner through the operation of the Bill.
1.13In the context of the annual report to be prepared by the Commissioner and provided to the Minister, and through the Minister to the Parliament, there are additional restrictions imposed by the Bill.
1.14Under section 20Y:
(3)If the Commissioner considers that the annual report contains sensitive information, the Commissioner must also prepare and give to the Minister, at the same time as the annual report, a version of the report which does not contain that information.
(4)In determining whether the annual report contains sensitive information, the Commissioner may consult the Minister.
(5)The Minister must cause a copy of:
(a)the annual report; or
(b)if the annual report contains sensitive information – the corresponding version of the report which does not contain that information;
to be tabled in each House of the Parliament within 15 sitting days of that House (sic)[3] after the report is given to the Minister.
(6)The Commissioner must cause a copy of:
to be published on the Commissioner’s website as soon as practicable after the report is tabled in the House of Representatives.
1.15Hence, ‘sensitive information’ cannot be included in the report which is provided to Parliament nor in the report which is published for the information of the public.
1.16It is useful to compare the approach in the Bill to that which is adopted under the equivalent UK legislation; namely the Modern Slavery Act 2015 (UK) (the ‘UK Act’). Under Part 4 of the Act, the position of Independent Anti-Slavery Commissioner (‘UK Commissioner’) is established. Similar to the proposed position of Commissioner under the Bill, the UK Act provides that the UKCommissioner is to prepare a strategic plan and annual reports. The UKCommissioner also has power to make reports to public authorities, including making recommendations.
1.17In the context of the report function (both annual and ad hoc), there is recognition that there may be some information which should not be included in the report.For example, section 42(14) of the UK Bill states:
(14)The Secretary of State may remove from an annual report any material whose publication the Secretary of State thinks:
(a)would be against the interests of national security,
(b)might jeopardise the safety of any person in England or Wales, or
(c)might prejudice the investigation or prosecution of an offence under the law of England and Wales.
1.18A comparison of the Bill to the UK Act reveals the following differences:
(a)the UK Act does not include information ‘which would or might prejudice…international relations’ as being information which would be excluded from a report (including an annual report) or strategic plan prepared by the UK Commissioner; and
(b)the standard for the threshold to be met to trigger the power of the Secretary to omit information or material from a report (or annual report) with respect to a matter of national security is ‘would be against the interests of national security’, as opposed to ‘which would or might prejudice security, defence or international relations’ (i.e. the ‘or might’ does not apply as a qualifier in the UK legislation in this context, although it does apply in the context of personal safety or prejudice to an investigation or prosecution).
1.19With respect to the inclusion in the definition of sensitive information of: ‘information which would or might prejudice…international relations’, it is important to note that under the Bill, the Commissioner will play a key role in complementing the Government’s strategy to combat modern slavery both in Australia and abroad. As the Attorney General said in his second reading speech:
The Bill delivers on the Albanese Government’s election commitment to establish the first Commonwealth Anti-Slavery Commissioner to tackle modern slavery in Australia and abroad.[4] [my emphasis]
The commissioner will work across government, business and civil society to support compliance with the Modern Slavery Act, improve transparency in supply chains, and combat modern slavery in Australia and abroad. [my emphasis] Importantly, the establishment of the commissioner provides an independent mechanism for victims and survivors, business and civil society to engage on issues and design strategies to address modern slavery.[5]
1.20The concern is that the extension of the definition of sensitive information to information: ‘which would or might prejudice…international relations’ will constrain the activities of the Commissioner, including with respect to the formulation of the strategic plan and the content of the annual report. How is the Commissioner meant to deal with the issue of modern slavery (or alleged modern slavery) in countries which provide supply networks for businesses in Australia, unless the Commissioner is able to form their own independent judgement as to how these issues are dealt with in the Commissioner’s strategy?Is it intended that the Commissioner not be able to refer to ‘emerging issues’ in relation to such countries in the annual report (or at least in the unredacted annual report which is provided to Parliament and published for the benefit of the public)?[6] To continue the theme, how can the Commissioner provide meaningful guidance to business with respect to risk management relating to modern slavery in international supply networks unless the Commissioner can be open and transparent with respect to that risk?
1.21A review of the activities of the UK Commissioner indicates that it will be necessary for the Commissioner to deal with issues which might otherwise fall within the wide definition of sensitive information under the Bill.
1.22A review of the annual report of the UK Commissioner for 2021–2022 provides a number of examples of the UK Commissioner referring to information which under the Bill may fall within the definition of ‘sensitive information’.Refer to the following:
Over the past year there has rightly been much media focus on state sponsored forced labour of Xinjiang Uyghur Autonomous Region in China, as well as exploitation of workers in Malaysia’s rubber glove factories.[7]
Nevertheless, the risk of goods made with forced labour entering the public sector is significant. In October 2021, US Agency Customs and Border Protection (CBP) issued an import ban, or withhold release order (WRO) against Malaysian glove producer Supermax. Responding to this event, Lord Alton of Liverpool asked the UK government what assessment it had made of alleged labour abuses by the company; how many of the company’s products it had purchased and the cost of those purchases.[8]
I have also continued to closely monitor developments in relation to human rights abuses in the Xinjiang Uyghur Autonomous Region. The government has implemented measures to help ensure British organisations are not complicit, nor profiting from, human rights violations in Xinjiang. The overseas Business Risk Guidance makes businesses aware that conducting due diligence in Xinjiang is challenging and that traditional methods may not be effective in identifying human rights violations.[9]
1.23In response to my question on notice, the Human Rights Law Centre provided the following evidence to the Committee in relation to the definition of ‘sensitive information’:
In our view, references to modern slavery in overseas jurisdictions (including issues of state sponsored forced labour) should not be excluded from the scope of the annual report or the strategic plan. As noted above, the UKIASC 2021-2022 annual report commented on work monitoring human rights abuses in Xinjiang, and also mentions issues in the Malaysian glove manufacturing sector.
In addition, we note the evidence of the Assistant Secretary of the Modern Slavery and Human Trafficking Branch in the Attorney-General's Department during the hearing that the reference to information that may ‘prejudice the security, defence or international relations of Australia’ within the definition of ‘sensitive information’, was intended to focus on sensitive information relating to defence, security and international relations that may have been shared with the [Commissioner] by Government.
We would expect much (if not all) of the information about modern slavery in overseas jurisdictions that would be included in an annual report or strategic plan would already be in the public sphere. Therefore, we recommend that the definition of ‘sensitive information’ is amended to remove ‘international relations’ as there does not appear to be a clear justification for its inclusion in the meaning of sensitive information.[10] [my emphasis]
1.24A submission to this inquiry was received from SlaveCheck. This global organisation simplifies and automates modern slavery compliance for business while supporting the Modern Slavery Stakeholder Community with technologies, data, AI and training to address identified shortcomings in global efforts to eliminate modern slavery.[11]
1.25SlaveCheck’s submission was written by Mr Kevin Hyland OBE, Global Strategy Advisor. Mr Hyland served as the first UK Commissioner. In relation to this issue, the Committee had the benefit of receiving his evidence through an answer to a question taken on notice. Mr Hyland has material concerns with the definition of ‘sensitive information’, in particular with respect to the reference to ‘international relations’.
1.26Given Mr Hyland’s standing in these matters, I quote the question on notice and Mr Hyland’s response at length:
Question from Senator Scarr:
One of the issues that's been discussed during the course of this inquiry is this definition of 'sensitive information'. It has a number of impacts in the context of this [Bill]: first, in relation to the strategic plan that's not to include any sensitive information, and secondly in relation to annual reports. There's a public annual report that's not to contain any sensitive information. The particular component of the definition which I'm exploring is, 'sensitive information means information, the disclosure of which would or might prejudice international relations'
In the context of the UK legislation and the relevant section, that phrase 'international relations' is not included in section 42(14). It refers to national security, and then the other elements of the definition. I'm keen to understand what Mr Hyland's view might be in relation to the inclusion of that phrase in the context of the legislation.
Response from Mr Hyland [the first UK Commissioner]:
The UK Modern Slavery Act 2015 provides for occasions where the Secretary of State (Home Secretary) may direct that the Anti-Slavery Commissioner remove material from their reports. There are three circumstances where this can occur. The Lord Advocate in Scotland and the Minister in Northern Ireland can also exercise this power.
The Secretary of State may direct the Commissioner to omit from any report before publication any material whose publication the Secretary of State thinks—
(b)might jeopardise the safety of any person in England and Wales, or
In the UK Parliament, there were many debates on the Modern Slavery Act 2015 on the independence of the Commissioner and the role the Government should play in publishing the Commissioner’s reports.
As modern slavery is a serious crime, it was agreed that the Anti-Slavery Commissioner would be expected to access sensitive information and data. Being granted access to intelligence held by State agencies was crucial to understanding threat levels and preparing recommendations. [my emphasis]
As Anti-Slavery Commissioner, I would meet with the Prime Minister, ministers, heads of police, the national intelligence agencies and military chiefs.At meetings hosted by the Prime Minister in Downing Street or with the Home Secretary or police chiefs, items discussed could not and should not be in the public domain for operational or security reasons.Being given this level of access required high-level vetting and signing of the Officials Secrets Act. [my emphasis]
The UK Anti-Slavery Commissioner is in an unusual position in that the role requires public reporting to Parliament, and it was accepted that this may include criticism of the government or statutory agencies. The Commissioner would develop a strategy agreed upon with the Home Secretary to address any deficits and promulgate successes.
Whilst the anti-slavery commissioners in the UK and Australia must be independent, there does need to be a system to ensure that the public reports do not in any way detract from efforts in fighting modern slavery when it comes to security, safety or being prejudicial to a prosecution. Therefore, some Government body needed to have the role of commenting on the reports before they were published.
If it were believed that there was a risk of breaching national security, placing a person at risk, or being prejudicial to an investigation or prosecution, these areas could be redacted from the report in consultation between the Commissioner and the Home Secretary.
In the UK, I never had part of my annual report redacted by the Home Secretary. If the Home Secretary had redacted my report, this has to be reported to Parliament. The conditions attached to the publishing of reports and the limited circumstances for removing material were both necessary and proportionate.However, I believe there should have been an added section stating,
‘If the Commissioner believes the removal of material from an annual report is not justified, the Commissioner should refer the matter to the Cabinet Secretary for a decision by the Prime Minister. The Commissioners report will record this and the Prime Minister's decision.’
It should also include a time frame for reports to be published from the time of their submission to the Government. I would suggest six weeks.
As proposed in Australia adding ‘might prejudice international relations’ is very vague. Might is a very subjective term, and what might be applicable today might not be applicable tomorrow; that’s how vague it is. Also, international relations can quickly move into international trade or many other elements of foreign and trade affairs or justice matters. Turning a blind eye to get a deal between governments is not an option. Eradicating modern slavery needs everyone, in particular governments, to be open to all the risks at an international level and how to prevent them. [my emphasis]
Where prejudicing international relations amounts to a security risk, then it would be covered by the three terms used in the UK Act. If it were that the Commissioner identified business practices in a particular country that involved modern slavery, providing this was based on evidence, this must be publicly reported. If the term ‘might prejudice international relations’ were included, the media would have better reporting abilities than the Commissioner. If any government were to place restrictions on disclosing slavery and exploitation for fear of offending another nation who were engaged in modern slavery, this would amount to ‘wilful blindness.’ [my emphasis]
Currently, Australia is leading in creating transparency of modern slavery in supply chains. It would seem somewhat perverse and retrograde if legislation designed to increase transparency actually placed unnecessary and disproportionate restrictions on the very person, they appoint to identify the risks. [my emphasis]
What this does highlight is the importance of selecting the right person for the role, someone who has experience in all the areas an anti-slavery commissioner is expected to examine. An important part of the role will be diplomacy, communications and being evidence-based.[12]
1.27Other stakeholders raised similar concerns in relation to the issue.
1.28In its response to my question on notice, the ACTU responded:
It is important that the Australian Anti-Slavery Commissioner is able to provide guidance, make comment on, report on, and conduct inquiries and research into issues and risks of modern slavery in all industries, sectors, and geographical locations around the world. As we put forward in our submission, this guidance should inform the due diligence processes of reporting entities and inform the publication of an annual list of countries, regions, industries and products with a high risk of forced labour that should be subject to an import ban, where companies seeking to import products would be required to prove that goods are not made with forced labour.
The ACTU has long called for an independent Anti-Slavery Commissioner, and an important element of this independence is the ability to carry out these duties without fear or favour.
We are concerned that the definition of sensitive information as including ‘information the disclosure of which would or might prejudice the international relations of Australia in relation to the Commissioner’s strategic plan and annual report, may constrain the ability of the Anti-Slavery Commissioner to carry out its duties. The committee should consider, for the avoidance of doubt, recommending the words ‘or international relations of Australia’ be deleted from the definition of sensitive information in the bill.[13] [my emphasis]
1.29The Law Council of Australia also expressed concerns (albeit that in the limited time which was available to answer questions on notice, the Law Council of Australia was not able to consult widely on the issue). Their response is provided in full below:
The Law Council has not, in the limited time available, had an opportunity to consult widely on the definition of ‘sensitive information’ in the Bill. In principle, the Law Council supports limiting the Commissioner’s independence and functions only to the extent strictly necessary in the circumstances, which is reflected in the recommendation in our original submission to strengthen the proposed section 20X.[14]
We note that the restriction on sensitive information only applies to the Commissioner’s strategic plans and published Annual Reports, rather than all publications by the office. The Law Council is also mindful that the formulation in the proposed definition of ‘sensitive information’ (in clause 3 of the Bill) has been used in numerous other pieces of Commonwealth legislation, including the Migration Act 1958 (Cth); the Privacy Act 1988 (Cth); the Evidence Act 1995 (Cth) and the Biosecurity Act 2015 (Cth).
The Law Council has commented on the potential overextension of the ambit of what may be considered national security concerns in relation to the concept of ‘international relations’ in recent submissions on the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).The Law Council (citing the Australian Law Reform Commission) noted that there is potential for such a provision to be used to restrain disclosures that merely cause embarrassment, rather than those that could actually have a damaging effect on national security. The prejudice to the international relations aspect of this common provision does not appear to have been considered separately in any detail by the High Court.
There is, however, obiter to the effect that Australia’s international relations ‘raises directly a matter more naturally reserved to the executive branch of government’ and goes to the public interest.
In the context of the present Bill, it appears that the concern is about potential damage to Australia’s political and/or trade relations from reports or allegations of slavery or slavery-like practices within the jurisdiction of political or trading partners. Paragraph 66 of the Explanatory Memorandum sheds no light on whether a departure from the ‘standard’ provision was considered in the context of this Bill.
In particular, it is unclear whether the public interest in ensuring human rights are respected in the value chains of Australian business was weighed against the public interest in maintaining good trade and political relations. In the time available, the Law Council can only recommend that proper consideration be given to weighing these imperatives, so that the Commissioner’s independence and functions are not unduly restricted by the definition of ‘sensitive information’ in the Bill.[15] [my emphasis]
1.30There was no meaningful discussion of the meaning of ‘sensitive information’ in the Attorney-General’s second reading speech. Whilst the speech referred to the strategic plan and the annual report as a means to support: ‘transparency, accountability and the effectiveness of the independent commissioner’s functions’,[16] there was no mention that the strategic plan would not be permitted to contain sensitive information. Nor does the speech deal with the proposal that there would be two annual reports – one with sensitive information and another (to be tabled in Parliament and available to public) which expunged sensitive information, including information ‘which would or might prejudice international relations’.
1.31The Explanatory Memorandum did contain some commentary. In the context of the definition of ‘sensitive information’, paragraph 9 of the Explanatory Memorandum states:
9. Sensitive information may include classified or unclassified information.
1.32Hence, on the basis of the current drafting, it is clear that information (or allegations) in the public domain may be caught by the definition of ‘sensitive information’.
1.33The commentary provided in relation to the strategic plan simply restates the definition as ‘sensitive information’.[17] The same applies in relation to the discussion of annual plans except there is a reminder that sensitive information may be classified or unclassified.[18] There is no explanation as to why ‘international relations’ is included in the definition, let alone any explanation as to why the definition of information extends to unclassified information or indeed information in the public domain.
1.34The approach taken under the Bill also begs the question as to how the Government will treat a number of recommendations made by Professor John McMillan AO in his: Report on the statutory review of the Modern Slavery Act 2018 (Cth) – the first three years.[19] In particular, the recommendations made by Professor McMillian in relation to the declaration of regions or locations which may be regarded as carrying a high modern slavery risk.
1.35Recommendation 27 of Professor McMillan’s review states:
The Modern Slavery Act be amended to provide that:
the Minister or the Anti-Slavery Commissioner may make a written declaration of a region, location, industry product, supplier or supply chain that is regarded as carrying a high modern slavery risk, and
the declaration may prescribe the extent to which reporting entities must have regard to that declaration in preparing a modern slavery statement under the Act.[20]
1.36Any such declarations could be reasonably expected to trigger a response from the relevant country which ‘would or might prejudice…international relations…’. How does the Government propose to deal with this issue in the context of that recommendation? We do not know.
1.37This issue is placed in stark relief by the current issues relating to state sponsored forced labour in Xinjiang Uyghur Autonomous Region (‘XUAR’) in the People’s Republic of China. This issue was discussed in the UKCommissioner’s report for 2021–2022 referred to above.[21]
1.38On 31 August 2022, the Office of the UN High Commissioner for Human Rights (‘OHCHR’) issued: OHCHR assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China.[22]
1.39Relevantly, the OHCHR found:
128. In summary, there are indications that labour and employment schemes, including those linked to the [Vocational Educational and Training Centres], appear to be discriminatory in nature or effect and to involve elements of coercion, requiring transparent clarification by Government.[23]
143. Serious human rights violations have been committed in XUAR in the context of the Government’s application of counter-terrorism and counter-extremism strategies. The implementation of these strategies, and associated policies in XUAR has led to interlocking patterns of severe and undue restrictions on a wide range of human rights. These patterns of restrictions are characterised by a discriminatory component, as the underlying acts often directly or indirectly affect Uyghur and other predominantly Muslim communities.[24]
146…Similarly, there are indications that labour and employment schemes for purported purposes of poverty alleviation and prevention of ‘extremism’, including those linked to the [Vocational Educational and Training Centres] system, may involve elements of coercion and discrimination on religious and ethnic grounds.[25]
1.40These findings led to the following recommendation:
152. OHCHR recommends to the business community that it:
(i)Takes all possible measures to meet the responsibility to respect human rights across activities and business relationships as set out in the UN Guiding Principles on Business and Human Rights, including through enhanced human rights due diligence, and report on this transparently;…[26]
1.41In response to the OHCHR assessment, the Chinese Government was scathing:
China firmly opposes the release of the so-called ‘assessment of the human rights situation in the Xinjiang Uyghur Autonomous Region, China’ by the OHCHR.This so-called ‘assessment’ runs counter to the mandate of the OHCHR, and ignores the human rights achievements made together by people of all ethnic groups in Xinjiang…Based on the disinformation and lies fabricated by anti-China forces and out of presumption of guilt, the so-called ‘assessment’ distorts China’s laws and policies, wantonly smears and slanders China, and interferes in China’s internal affairs…[27]
1.42The NSW Anti-slavery Commissioner summarised the response of China to western efforts to call out human rights abuses in Xinjiang (which include the application of Magnitsky Sanctions upon individuals and import controls)[28] as follows:
195. Western efforts to call out human rights abuses in Xinjiang, and to regulate supply-chains passing through Xinjiang, have been met by a furious backlash from Beijing, with many components:
195.1 a full-court media and diplomatic push, describing the allegation as the ‘lie of the century’;
195.2 the adoption of an Anti-Sanctions Law that criminalizes cooperation with foreign supply chain due diligence efforts;
195.3 harassment and intimidation of auditors and raids on auditing firms;
195.4 government stoked online vitriol against campaigners, including several leading Australian researchers; [and]
195.5 organised government boycotts and administrative harassment of Western retail brands operating in China, including major players such as H&M, Walmart and Intel.[29]
1.43Consider the above in the context of the relevant part of the proposed definition of ‘sensitive information’; namely: ‘information the disclosure of which would or might prejudice the…international relations of Australia’. How would the Commissioner be able to refer to the issues relating to Xinjiang in the strategic plan or the annual report given that any reference is likely to lead to a strong reaction from China? The current wording of the definition is problematic.
1.44There are a number of options available to rectify the issue.
1.45First, the reference to international relations could be removed altogether. This is the suggestion of Mr Hyland, the former UK Commissioner, the ACTU, the Human Rights Law Centre and a number of other stakeholders. It was not considered necessary in the UK legislation given the reference to national security.
1.46Second, it could be made clear that the definition does not apply to information in the public domain. However, what if the Australian Government and the Commissioner are aware of information which is relevant in this context, but is not in the public domain? The information may be classified or unclassified. The information may or may not have been conveyed to the Commissioner by the Australian Government. In that regard, perhaps a public interest test could be added for the disclosure of information which is not in the public domain and then the decision would be left to the Commissioner to form a view with respect to the public interest.
1.47Third, there may be another way to amend the Bill to more precisely deal with the issue of concern but which protects the independence of the Commissioner and recognises the importance of issues being dealt with in the strategic plan and the annual report; especially in circumstances where business will be expected to manage the relevant risk under the provisions of the Modern Slavery Act 2018 (Cth).
1.48In any event, it is not acceptable for the Bill to contain a definition which has the effect (albeit probably unintended) to establish a system where there is ‘wilful blindness’ (to use the words of Mr Hyland, the previous UK Commissioner) to activities in an overseas location due to sensitivities around international relations.
Recommendation 1: Sensitive Information
1.49It is recommended that the Bill be amended by either:
(a) removing the reference to international relations in the definition of ‘sensitive information’; or
(b) in the context of prejudice to international relations, provide that information is only sensitive information if:
(i) it is not in the public domain; and
(ii) the Commissioner forms the view (after consultation with Government) that it is not in the public interest for such information to be disclosed; or
(c) amending the Bill in another way to address the issue.
1.50The Law Council of Australia made additional recommendations which have substantial merit. Many of these recommendations augment the independence of the Commissioner. Some of these recommendations were supported by a number of stakeholders in addition to the Law Council of Australia. (In the time available, I have not been able to refer to all stakeholders supporting each recommendation.)
1.51I adopt each of the following recommendations made by the Law Council of Australia:
Recommendation 2 – Reviewing Modern Slavery Statements
1.52In support of the function of the Commissioner promoting compliance in proposed section 20C(1)(a), and in anticipation of a possibly strengthened role in compliance with the Modern Slavery Act 2018 (Cth), a function of reviewing Modern Slavery Statements should be included in the proposed section 20C.
1.53In my view, there is clear benefit in the Commissioner undertaking this process in order to assess the quality of disclosure that is being made, any systemic issues arising from the statements being lodged, and to assist in the making of recommendations or providing guidance to government or business.[30] Whilst I appreciate that the Attorney-General’s Department has a role in this regard, I see no reason why the Commissioner should not undertake this function.
Recommendation 3 – Additional function in relation to modern slavery risks
1.54Proposed section 20C(1)(b) should be amended to add a function of identifying and assessing modern slavery risks and processes for their elimination, minimisation and avoidance.
1.55This is a sensible recommendation which better tracks the wording of Guiding Principle 17 of the United Nations Guiding Principles on Business and Human Rights.[31]
Recommendation 4 – Provisionof advice on Commissioner’s own motion
1.56Proposed section 20C(1)(l) should be amended to allow the Commissioner to provide advice to the Minister on an ‘own motion’ basis.
1.57This recommendation goes to the heart of the independence of the Commissioner. If the Commissioner forms an independent view that advice needs to be provided to Government/the Minister, then the Commissioner should not have to wait for the Minister to ask for the advice.[32]
Recommendation 5 – Clarification of international obligations
1.58Proposed section 20D should be amended to refer to section 7(2) of the Modern Slavery Act 2018 (Cth), to clarify the scope of international obligations that the Commissioner must consider.
1.59It would of course be helpful to refer to the particular international treaties in this regard.[33]
Recommendation 6 – Independence regarding content of strategic plans
1.60Proposed section 20X(6) should be amended to ensure that the Commissioner retains discretion over the content of the strategic plans for their office.
1.61Whilst some stakeholders suggested removing the obligation to consult with the Minister and the Secretary entirely, in my view, the recommendation of the Law Council of Australia strikes the right balance.[34]
Recommendation 7 – Qualifications of Commissioner
1.62(a) The Commissioner should be required to have qualification, knowledge, and experience in at least two of the three fields specified under proposed section 20L(2);
(b) Proposed section 20L(2) should also be amended to enable additional regard to be had to experience in engaging with vulnerable people, to ensure the Commissioner is equipped to discharge functions under proposed section 20C(1)(d) and (e).
1.63In relation to paragraph (a), under the current formulation of the section, it would be possible for the Commissioner to simply have experience with respect to ‘regulation’ and qualify. This is inadequate.[35]
1.64In relation to paragraph (b), the evidence of the NSW Anti-slavery Commissioner and Mr Moe Turaga who sits on the NSW Anti-slavery Commissioner’s advisory panel was particularly compelling.[36]
Recommendation 8 – Reporting non-compliance of agencies with information requests
1.65The proposed section 20Y should enable the Commissioner to include in the annual report any non-compliance by agencies with requests made under proposed section 20W(1).
1.66This is a very important check and balance. There should be transparency around which agencies fail to provide information when requested by the Commissioner.[37]
1.67I appreciate the submissions made by all stakeholders. I particularly pay tribute to victim-survivor and anti-slavery advocate, Mr Moe Turaga (referred to in paragraph 2.62 of the majority report), who provided evidence to the committee.His testimony was very moving. It is inspiring that he is now an advocate for vulnerable people who are the victims of modern slavery. It is worth repeating again his message imparted to members of this committee (and reflected in Recommendations 2, 3 and 4 of the Majority Report which I whole-heartedly support):
My strongest advice is for an explicit commitment in the bill to put survivors and our concerns at the centre of the commissioner’s work.[38]
1.68I would like to sincerely thank those organisations who have advocated against modern slavery and who support victims of modern slavery, both in Australia and overseas. Your advocacy has made a profound difference.
Recommendation 9
1.69Subject to the preceding recommendations, I recommend that the Senate pass the Bill.
Senator Paul Scarr
Deputy Chair
Liberal Senator for Queensland
Footnotes
[1]I note the phrase used in the proposed definition of ‘sensitive information’ in clause 3, Schedule 1 of the Bill is ‘would or might’, rather than ‘would or may’ (albeit there is probably no material difference between the two formulations).
[2]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House of Representatives Hansard, 30 November 2023, p. 8925
[3]‘of that House’ appears redundant and may be a drafting error.
[4]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House of Representatives Hansard, 30 November 2023, p. 8924.
[5]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House of Representatives Hansard, 30 November 2023, p. 8925.
[6]The Bill proposes that section 20Y(2) requires the annual report of the Commissioner to contain ‘any emerging issues relating to the Commissioner’s functions’. This is canvassed in the Majority Report at paragraph 1.64. There will no doubt be emerging issues which develop in foreign jurisdictions in the future.The Commissioner may determine that such issues warrant comment even though such comment ‘would or might’ jeopardise international relations.
[7]Independent Anti-Slavery Commissioner, Independent Anti-Slavery Commissioner Annual Report 2021–2022, April 2022, p. 33.
[8]Independent Anti-Slavery Commissioner, Independent Anti-Slavery Commissioner Annual Report 2021–2022, April 2022, p. 41.
[9]Independent Anti-Slavery Commissioner, Independent Anti-Slavery Commissioner Annual Report 2021–2022, April 2022, p. 57.
[10]The Human Rights Law Centre, Answers to spoken questions on notice, 19 February 2024 (received 23 February 2024).
[11]SlaveCheck, SlaveCheck, www.slavecheck.com/ (accessed 28 February 2024).
[12]SlaveCheck, Answers to question on notice, 19 February 2024 (received 23 February 2024).
[13]Australian Council of Trade Unions, Answers to spoken questions on notice, 19 February 2024 (received 23 February 2024).
[14]I say more on this below in my additional recommendations.
[15]The Law Council of Australia, Answers to spoken questions on notice, 19 February 2024 (received 23 February 2024).
[16]The Hon Mark Dreyfus KC MP, Attorney-General and Cabinet Secretary, House of Representatives Hansard, 30 November 2023, p. 8925.
[17]Explanatory Memorandum to the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023, p. 18.
[18]Explanatory Memorandum to the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023, p. 19.
[19]Attorney-General’s Department, www.ag.gov.au/crime/publications/report-statutory-review-modern-slavery-act-2018-cth, 25May 2023 (accessed 28 February 2024).
[20]Attorney-General’s Department, Report of the statutory review of the Modern Slavery Act 2018 (Cth): The first three years, 25 May 2023, p. 103.
[21]Independent Anti-Slavery Commissioner, Independent Anti-Slavery Commissioner Annual Report 2021–2022, April 2022.
[22]United Nations Human Rights, Office of the High Commissioner, OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, 31 August 2022.
[23]United Nations Human Rights, Office of the High Commissioner, OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, 31 August 2022, p. 40
[24]United Nations Human Rights, Office of the High Commissioner, OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, 31 August 2022, p. 43.
[25]United Nations Human Rights, Office of the High Commissioner, OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, 31 August 2022, p. 43.
[26]United Nations Human Rights, Office of the High Commissioner, OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, 31 August 2022, p. 45.
[27]Response from the People’s Republic of China, Permanent Mission to the United Nations Office, Geneva, 2022, https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/ANNEX_A.pdf (accessed 28 February 2024), p. 1.
[28]Government of the United Kingdom, UK sanctions perpetrators of gross human rights violations in Xinjiang, alongside EU, Canada and US, 22 March 2021, https://www.gov.uk/government/news/uk-sanctions-perpetrators-of-gross-human-rights-violations-in-xinjiang-alongside-eu-canada-and-us (accessed 28 February 2024).
[29]The Office of the NSW Anti-slavery Commissioner, Answers to spoken questions on notice, 19February 2024 (received 23 February 2024), p. 17.
[30]Law Council of Australia, Submission 42, pp. 10–11.
[31]Law Council of Australia, Submission 42, pp. 11–12.
[32]Law Council of Australia, Submission 42, pp. 11–12.
[33]Law Council of Australia, Submission 42, p. 13.
[34]Law Council of Australia, Submission 42, p. 14.
[35]Law Council of Australia, Submission 42, p. 15.
[36]See paragraphs 1.31 and 2.62 of the majority report.
[37]Law Council of Australia, Submission 42, p. 16.
[38]Mr Moe Turaga, Survivor Consultant, Australian Catholic Anti-Slavery Network, Committee Hansard, 19 February 2024, p. 31.
An inquiry into the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 [Provisions].
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