The terms of reference asked the Committee to consider whether Australia should consider legislation similar to or improving upon the United Kingdom’s (UK) Modern Slavery Act 2015.
The Committee heard significant support for establishing a Modern Slavery Act in Australia. In most cases, this support focussed on those elements of the UK legislation not present in Australia’s legislative and policy framework, namely establishing an Independent Anti-Slavery Commissioner and introducing a supply chain reporting requirement.
This chapter outlines the key elements of the UK legislation and compares them with Australia’s existing legislative and policy frameworks to address modern slavery.
UK Modern Slavery Act
The UK Prime Minister, the Rt Hon Theresa May MP, has described modern slavery as the ‘great human rights issue of our time’ and has committed that the UK Government will ‘lead the way in defeating modern slavery and preserving the freedoms and values that have defined our country for generations’.
The Modern Slavery Act 2015 (UK Act) was passed by the UK Parliament and received royal assent on 26 March 2015, applying in England and Wales. Separate legislation was passed in Northern Ireland and Scotland.
The Act comprises seven parts. The key components of the Act, together with relevant international comparisons, are outlined below.
Offences, prevention orders and enforcement
The UK Act provides definitions for ‘modern slavery’ offences including slavery, servitude, forced or compulsory labour and human trafficking.
The Act strengthens the existing offences and penalties for modern slavery by:
consolidating and clarifying the existing offences of slavery and human trafficking;
increasing maximum penalties for slavery and human trafficking offences, including introducing life sentences for certain offences; and
enabling the court, where a person is convicted of a slavery or trafficking offence, to order the defendant to provide reparation to the victim.
The Act introduces two new civil preventative orders that enable prohibitions to be imposed by the courts on individuals involved in trafficking or slavery, or convicted of a slavery or trafficking offence:
Slavery and Trafficking Prevention Order (STPO); and
Slavery and Trafficking Risk Order (STRO).
The Act provides new maritime enforcement powers in relation to ships where an offence of slavery or trafficking is suspected.
Independent Anti-Slavery Commissioner
The Act establishes the office of the Independent Anti-Slavery Commissioner. The Commissioner is required to encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences and the identification of victims of those offences.
Activities the Commissioner may undertake in carrying out this function include:
make reports to the Secretary of State;
undertake research and support others to do so;
provide information, education or training, for example to law enforcement agencies on good practice in investigating modern slavery; and
consult with any person, including public authorities, to carry out functions.
The Independent Anti-Slavery Commissioner is Mr Kevin Hyland OBE. The functions of the Commissioner are examined in detail in Chapter 4.
Protection of victims
The Act introduces a number of measures focussed on supporting and protecting victims, including:
a statutory defence for victims of slavery or trafficking who are compelled to commit an offence due to their exploitation (section 45);
special measures for witnesses in criminal proceedings (section 46);
extending provisions for civil legal aid to suspected victims of slavery (section 47);
providing for independent child trafficking advocates (section 48);
requiring statutory guidance on victim identification and victim services to be issued to public authorities and other relevant persons (section 49);
enabling the secretary of state to make regulations relating to the identification of and support for victims (section 50); and
requiring specified public authorities to notify the secretary of state about suspected victims of slavery or human trafficking (section 52).
The Home Office submitted that the independent child trafficking advocates have ‘not yet been brought into force’ and that trials are being undertaken in several local areas.
Transparency in global supply chains
One of the most significant changes introduced in the Act seeks to improve transparency in the supply chains of business and organisations operating in the UK.
Chapter 2 of the Committee’s interim report outlined the details of the transparency in global supply chain requirements set out in section 54 of the UK Act.
Whole-of-government anti-slavery measures
In addition to the Modern Slavery Act, the UK Government has introduced a range of other mechanisms to combat modern slavery.
Modern slavery strategy
In 2014, the UK Government launched its Modern Slavery Strategy. The Strategy sets out a comprehensive cross-Government approach to tackling modern slavery in the UK and internationally.
Inter-departmental Ministerial Group on Modern Slavery
The Inter-departmental Ministerial Group on Modern Slavery (IDMG) was established in 2011 and comprises representatives from the UK Government, the Northern Ireland Executive, the Scottish Government and the Welsh Government, led by the UK Home Office. The IDMG produces an annual report on the UK government’s response to combatting modern slavery.
Modern slavery taskforce
In July 2016, the UK Prime Minister announced the establishment of a more coordinated policy and operational response to modern slavery through a new modern slavery taskforce. The taskforce has four objectives:
Bring efforts and resources targeted at modern slavery in line with resources to tackle other forms of organised crime, including by increased investigatory resources, capabilities and intelligence provision;
Increase and improve investigations into the perpetrators of modern slavery, through further education of law enforcement officers;
Improve successful prosecution levels with further education of prosecuting authorities on modern slavery, and improvements to the quality of supporting evidence; and
Improve international cooperation to tackle modern slavery.
National Referral Mechanism
The National Referral Mechanism (NRM) is the UK’s framework for identifying victims of human trafficking and ensuring they receive appropriate protection and support. The NRM was introduced in 2009 to meet the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings. Following the introduction of the Modern Slavery Act in 2015, the NRM was extended to all victims of modern slavery in England and Wales.
International Modern Slavery Fund
In July 2016, the UK Prime Minister announced the establishment of a £33.5 million International Modern Slavery Fund to support the UK’s leading role in combatting modern slavery. This includes an £11 million Modern Slavery Innovation Fund announced by the Home Secretary in October 2016 to tackle modern slavery in high-risk countries from which victims are trafficked to the UK.
Australia’s response to modern slavery
The Committee notes that many provisions of the UK Act are already present in Australia’s legislative and policy frameworks to address human trafficking and slavery.
Offences, prevention orders and enforcement
In its submission to this inquiry, the Australian Government asserted that a number of measures related to offences introduced in the UK Act are already present in Australian law and practice:
Offences – Australia’s human trafficking and slavery criminal offences were amended in 2013 consistent with international best practice;
Reparation orders – Courts can make reparation orders in human trafficking and slavery cases;
Prevention orders – Courts can make a range of orders to protect victims from criminal conduct, including apprehended violence orders; and
Maritime enforcement – The Maritime Powers Act 2013 provides for a broad set of enforcement powers for use in, and in relation to, maritime areas, including ships, where there is a reasonable suspicion of a contravention of Australian law.
Chapter 7 examines Australian criminal justice responses to modern slavery and assesses recommendations for improvements.
Whole-of-government anti-slavery measures
Like the UK, Australia also has a coordinated, whole-of-government approach to combatting modern slavery. The different components to this approach are outlined below.
National Action Plan
The Australian Government has had a comprehensive whole-of-government strategy to combat human trafficking since 2004. Australia’s strategy is based on ‘four central pillars’: prevention and deterrence, detection and investigation, prosecution and compliance, and victim support and protection.
Australia’s strategy is guided by the National Action Plan to Combat Human Trafficking and Slavery 2015-19 (National Action Plan). The National Action Plan, launched on 2 December 2014, provides:
… the strategic framework for Australia’s whole-of-community response to human trafficking and slavery and sets clear goals and action items which align to Australia’s domestic laws and international obligations and are underpinned by key performance indicators for monitoring purposes. These are supported by a series of guiding principles, which provide the high-level and strategic foundation for the National Action Plan.
In March 2016, the Minister for Foreign Affairs, the Hon Julie Bishop MP, launched Australia’s International Strategy to Combat Human Trafficking and Slavery (International Strategy), which complements the National Action Plan. The International Strategy aims to amplify the impact of Australia’s international efforts to combat human trafficking and slavery in line with the four pillars of the National Action Plan.
The implementation of the National Action Plan is overseen by an Interdepartmental Committee (IDC) on Human Trafficking and Slavery, chaired by the Attorney-General’s Department (AGD). The IDC is responsible for:
… oversight of Australia’s anti-trafficking strategy, including monitoring its implementation, reporting to the Australian Government on its effectiveness, and ensuring emerging issues are addressed on a whole-of-government basis. Relevant agencies remain responsible for administering individual components of the strategy.
The Committee heard there are 11 Commonwealth agencies involved in the IDC. Box 2.1 outlines the roles of each of these agencies.
Box 2.1: Agencies involved in modern slavery
Attorney-Generals’ Department (AGD): AGD has overarching responsibility for managing and coordinating Australia’s response to human trafficking and slavery under the National Action Plan to Combat Human Trafficking and Slavery 2015-19 (National Action Plan).
Australian Criminal Intelligence Commission (ACIC): The ACIC is Australia’s national criminal intelligence agency and works to develop a national understanding of serious and organised crime, including threats associated with human trafficking and slavery.
Australian Federal Police (AFP): The AFP is the primary investigative agency for human trafficking and slavery and is responsible for referring suspected victims to the Support for Trafficked People Program.
Australian Institute of Criminology (AIC): The AIC is responsible for the research component of Australia's whole-of-government response to human trafficking and slavery.
Commonwealth Director of Public Prosecutions (CDPP): The CDPP is responsible for prosecuting Commonwealth criminal offences, including human trafficking and slavery.
Department of Employment: The Department of Employment is responsible for national policies and programmes that help Australians work in safe, fair and productive workplaces. The Department provides secretariat services for the Migrant Workers’ Taskforce, which has membership from a number of key IDC agencies.
Department of Foreign Affairs and Trade (DFAT): DFAT is primarily responsible for regional and international engagement on human trafficking and slavery, including through Australia’s Ambassador for People Smuggling and Human Trafficking.
Department of Immigration and Border Protection (DIBP) and Australian Border Force (ABF): DIBP administers the Human Trafficking Visa Framework and provides capacity building and technical assistance in the region. As the operational arm of DIBP, ABF is responsible for protecting Australia’s border and managing the movement of people and goods across it, including leading Taskforce Cadena with the Fair Work Ombudsman. DIBP and ABF refer cases of suspected human trafficking and slavery to the AFP.
Department of the Prime Minister and Cabinet (PM&C): PM&C provides high quality advice and support to the Prime Minister, the Cabinet, Portfolio Ministers and Assistant Ministers to achieve a coordinated and innovative approach to the development and implementation of Government policies. PM&C is a member of the IDC in this capacity.
Department of Social Services (DSS): The Department of Social Services administers the Support for Trafficked People Program.
Fair Work Ombudsman (FWO): FWO is responsible for enforcing compliance with national workplace laws. The FWO’s services also involve the provision of education, assistance and advice about Australia’s workplace relations system.
An Operational Working Group, chaired by AGD, operates as a sub‑committee of the IDC to resolve systemic operational issues regarding individual cases, meeting every six weeks. An International Working Group, led by the Ambassador for People Smuggling and Human Trafficking, reports to the IDC on Australia’s international efforts and implementation of the International Strategy.
The Australian Government also administers the National Roundtable on Human Trafficking and Slavery (National Roundtable), a consultative mechanism between government, NGOs, industry, business and unions. Since 2008, the National Roundtable has been convened annually by the Commonwealth Minister responsible for human trafficking and slavery (currently the Minister for Justice).
Figure 2.1 outlines the current members of the National Roundtable.
Figure 2.1: National Roundtable on Human Trafficking and Slavery members as at 2 November 2017
Source: Australian Government, Responses to Questions on Notice, 11 August 2017, pp 14 – 15.
The National Roundtable convenes specialist working groups to examine specific issues. Representatives from AGD told the Committee there is currently a labour exploitation working group examining how the Australian Government can improve its response to serious forms of labour exploitation. The National Roundtable has previously convened a supply chains working group and a communication and awareness working group.
The Committee heard that the role of the National Roundtable has been instrumental in influencing three significant changes to Australia’s modern slavery framework:
2009 reforms to the victim support program and visa framework (including extension of the support period to 45 days);
2013 reforms to broaden offences; and
2015-16 reforms to the human trafficking visa framework.
The Australian Government supports a range of measures to combat modern slavery internationally through regional engagement and foreign aid.
Australia plays a key regional role in combatting human trafficking and slavery through co-chairing the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process).
Australia’s aid program supports a range of programs in the Asia Pacific region including the Australia-Asia Program to Combat Trafficking in Persons (AAPTIP).
Chapter 7 outlines Australia’s international efforts to combat modern slavery.
The key differences between the UK Act and Australia’s legislative framework are the provisions related to the Independent Anti-Slavery Commissioner, transparency in supply chains reporting and protections for victims. These differences are outlined below.
Independent Anti-Slavery Commissioner
Australia does not have an equivalent to the UK Independent Anti‑Slavery Commissioner established under the UK Act.
Under Australia’s 2016 International Strategy to Combat Human Trafficking and Slavery, the Ambassador for People Smuggling Issues was renamed the Ambassador for People Smuggling and Human Trafficking. The Ambassador is an advocate for enhanced international cooperation, and aims to give greater focus to Australia’s international engagement on human trafficking and slavery issues, including by Co-Chairing the Bali Process.
The Australian Government submitted that a number of the functions of the UK Anti-Slavery Commissioner are fulfilled by the Ambassador for People Smuggling and Human Trafficking and the AGD, as chair of the IDC on Human Trafficking and Slavery. These functions include ‘coordination of Government activities, publication of reports and international advocacy’.
The Committee’s interim report recommended that the Australian Government consider establishing an Independent Anti-Slavery Commissioner, noting this would be further examined in the final report.
Chapter 4 examines the case for establishing an Independent Anti‑Slavery Commissioner.
Transparency in supply chains
As noted in the Committee’s interim report, Australia does not have an equivalent to the transparency in supply chain reporting requirements set out in section 54 of the UK Act.
The Committee’s interim report examined section 54 in detail and recommended introducing a similar requirement in Australia, improving on the UK model.
Following the preparation of the Committee’s interim report, the Minister for Justice, the Hon Michael Keenan MP, announced that the Australian Government proposes to introduce transparency in supply chains legislation. On 16 August, the Minister released a consultation paper on the Australian Government’s proposed model for a modern slavery in supply chains reporting requirement.
Chapter 5 examines the Australian Government’s proposed model for a supply chain reporting requirement.
Protections for victims
The Committee heard that many of the protections for victims introduced in the UK Act are already present in Australia’s framework. Representatives from AGD told the Committee that, in relation to protection of victims:
Some aspects of the Australian framework are arguably more comprehensive than the UK framework. This goes into areas such as extended support for trafficking victims who assist with the criminal justice process and opportunities for trafficking victims to remain in Australia on temporary and permanent visas.
Submitters recommended that some protections in the UK Act, including a statutory defence for victims of modern slavery who are compelled to commit a crime, should be introduced in Australia.
Many submitters argued that the UK Act does not go far enough to protect and support victims of modern slavery. These submitters recommended that Australia improve on the UK Act and introduce a range of support measures including a federal compensation scheme.
Chapter 6 examines the adequacy and effectiveness of Australia’s programs for protecting and supporting survivors of modern slavery.
Support for an Australian Modern Slavery Act
As noted in its interim report, the Committee heard significant support for establishing a Modern Slavery Act in Australia. The Committee acknowledges the support from a broad cross-section of Australian society including organisations dedicated to combatting modern slavery, faith leaders and religious groups, lawyers and law students, businesses, community organisations and individuals.
The Committee notes that, following the release of its interim report, a Statement of Support for an Australian Modern Slavery Act developed by the Australian Human Rights Commission was endorsed by a diverse range of business, community, faith and industry leaders.
Submitters to this inquiry recognised that, in many respects, Australia’s legislative and policy frameworks for addressing modern slavery are stronger and more effective than the UK. Submitters noted that the wholesale adoption of the UK Act would not be appropriate in Australia. International human rights expert, Dr Anne Gallagher AO, told the Committee:
… while the UK experience is useful, the Modern Slavery Act is not a suitable model for wholesale adoption in this country ... Australia has a much longer and more distinguished history than the UK when it comes to legislative responses to trafficking and related exploitation.
Some submitters suggested that, rather than legislative change based on the UK Act, Australia should focus on improving the implementation and enforcement of existing laws. Ms Jules Kim, CEO of the Scarlet Alliance suggested that previous inquiries have highlighted that the key issues with Australia’s approach to combatting modern slavery:
… are not issues about legislation; they are issues about the gaps in coordination between the states and territories and between the federal agencies. It's about the gaps in training in terms of victim identification. It's about the gaps for victim compensation and support. It's about the need for de-linking the support for victims of trafficking from the criminal justice system. Instead of looking at these areas, there is a tendency to look at introducing wide-reaching laws, which is problematic because it is often the case that these laws that are introduced for our own good can inadvertently contravene our human rights.
Submitters recognised that some elements of the UK Act, particularly the Independent Anti-Slavery Commissioner and supply chains reporting requirement, coupled with additional support for victims and law enforcement agencies, would significantly strengthen Australia’s efforts to combat modern slavery. Anti-Slavery Australia submitted:
While many parts of the UK Act are not appropriate in the Australian response, the UK provisions which establish a transparency in supply chains mechanism and an independent Anti-Slavery Commissioner are innovative and beneficial reforms that should be considered and expanded within the Australian context.
The Committee heard that consolidating these measures into a single Modern Slavery Act could have benefits in raising the profile of modern slavery in Australia. Evidence from the UK suggests that one of the key benefits of the UK Act to date has been to raise awareness of modern slavery, which in turn has led to an increase in the number of cases identified and prosecuted. The UK Independent Anti-Slavery Commissioner, Mr Kevin Hyland OBE, told the Committee:
Though most of the provisions of the act have only been in force for less than two years, I am pleased to say the legislation has actually changed the approach in the UK. The aim of the act and what has happened has had a two-fold impact. These provisions have been effective, but the positive consequences of the act are much wider because modern slavery is often seen as a hidden crime and previously in the UK that was probably true. But, since the introduction of the act, we have seen real activity.
In the 2016 review of the UK Act commissioned by the UK Home Office, barrister Ms Caroline Haughey found that the legislation had ‘set an international benchmark to which other jurisdictions aspire’ and that ‘the Act and wider work have raised slavery in the consciousness of the general public and practitioners’ and had led to a 40% increase in the number of victims identified. In her evidence to the Committee, Ms Haughey suggested that Australia should consider consolidating modern slavery legislation into a single Act to:
Ensure this is a topic that maintains its profile. Lead by example by having an act. Currently, the UK is almost stand-alone. Australia is equally a great nation, with a great many positive and brilliant attributes. It would be a terrible shame if Australia turned its back on what we know happens. It does not have to be as complex and convoluted, perhaps, as the English legislation is, but what it has to do is empower your prosecutors and investigators to know that they can battle this and win. It doesn't have to be expensive. Raise its profile by having this act on the books, by simplifying it and by putting the legislation in one place.
Some submitters and witness suggested that introducing a Modern Slavery Act in Australia could have similarly positive impacts in raising the profile and awareness of modern slavery issues. Noting the challenges in addressing the hidden nature of modern slavery crimes, Mr Andrew Forrest, Chairman of the Walk Free Foundation, told the Committee that introducing a Modern Slavery Act:
… will change that conversation and encourage victims to speak up exactly as has happened in Britain. I do not think their Modern Slavery Act is efficient, and neither is business as encouraging as what we are considering here in Australia, but it has still been highly effective at increasing the confidence of victims to come forward, which has led immediately to the increase in prosecutions. We must do that in Australia. We must let victims of modern slavery know that they are safe and that the Australian people do not tolerate modern slavery.
Submitters suggested that the introduction of a Modern Slavery Act in Australia should be accompanied with a general public awareness campaign about modern slavery and the provisions included in the legislation.
The Committee notes that many of measures introduced in the UK Act are already present in Australia’s legislative and policy framework. The Committee acknowledges the long-term commitment by the Australian Government to addressing modern slavery and the strength of Australia’s legal and policy frameworks to combat these crimes.
The Committee acknowledges the many submissions to this inquiry that highlighted ways to improve Australia’s framework to better combat modern slavery, including incorporating elements of the UK Act.
The Committee acknowledges that most submissions to this inquiry focussed on those measures not present in Australia, namely, establishing an Independent Anti-Slavery Commissioner and introducing a supply chains reporting requirement. The Committee recognises that support for a ‘Modern Slavery Act’ expressed by submitters refers mainly to these two measures. The Committee notes that these measures are examined in chapters 4 and 5.
The Committee recognises that there is an opportunity to adopt and improve on aspects of the UK Act relating to support and protection for survivors, as well as criminal justice responses. The Committee acknowledges that there are many other best practice examples from other international jurisdictions that could be implemented in Australia. The Committee notes these measures are examined in chapters 6 and 7.
The Committee recognises suggestions that consolidating Australia’s legislation on modern slavery into a single ‘Modern Slavery Act’ could have a beneficial impact in raising the profile of modern slavery in Australia and in our region, similar to the UK.
The Committee agrees that the introduction of the Modern Slavery Act should be accompanied with a public awareness campaign to educate the Australian community about modern slavery.
The Committee notes that its interim report recommended that the Australian Government develop a Modern Slavery Act.
The Committee recommends that the Australian Government introduce a Modern Slavery Act in Australia. The Modern Slavery Act should include:
referencing in one location Australia’s existing modern slavery offences as outlined in Division 270 and 271 of the Criminal Code Act 1995, as well as offences relevant to combatting modern slavery such as withholding passports under section 21 of the Foreign Passports (Law Enforcement and Security) Act 2005, offences relating to sexual and labour exploitation and offences under the Migration Act 1958;
provisions for an Independent Anti-Slavery Commissioner;
provisions for a mandatory supply chain reporting requirement that requires certain entities to report on modern slavery risks in their supply chains;
measures to support victims of modern slavery, including establishing a national compensation scheme;
measures to improve criminal justice responses to modern slavery;
measures to address orphanage trafficking and child exploitation in overseas residential institutions; and
measures to address labour exploitation, including establishing a labour hire licensing scheme and making changes to Australia’s visa framework.
Consistent with the proposed Modern Slavery Act, the Committee recommends that the Australian Government incorporate the term ‘modern slavery’ into official usage to replace ‘human trafficking and slavery’, including by re-naming the National Action Plan to Combat Human Trafficking and Slavery 2015-19 and the Interdepartmental Committee on Human Trafficking and Slavery.
The Committee recommends that the Australian Government support the introduction of the Modern Slavery Act with a public awareness campaign about modern slavery.