The terms of reference asked the Committee to consider the effectiveness of provisions of the UK Modern Slavery Act 2015 and whether similar or improved measures should be introduced in Australia.
A number of submitters and witnesses supported the establishment of an Independent Anti-Slavery Commissioner in Australia, similar to the role established in the UK.
This chapter examines the arguments for an Australian Independent Anti‑Slavery Commissioner.
UK Independent Anti-Slavery Commissioner
Part 4 of the UK Modern Slavery Act 2015 (UK Act) established the office of the Independent Anti-Slavery Commissioner (UK Commissioner).
As noted in its interim report, the UK Commissioner, Mr Kevin Hyland OBE, told the Committee that the key focus of his role is in assisting to identify and support victims of modern slavery, and prosecute offenders:
… my role as the commissioner is about working with government and other agencies. We are working with non-government organisations, businesses and key stakeholders as a critical friend to ensure that consistent focus on the identification and support of victims is there for this abhorrent crime whilst, at the same time, we need to make sure that we are pursuing those who inflict the suffering so that they are brought to justice.
In his first strategic plan, the UK Commissioner set out five priorities:
improved identification of victims and enhanced levels of immediate and sustained support;
improved law enforcement and criminal justice responses;
understand and promote best practice in working in partnership between statutory bodies, civil society and the private sector;
engagement with the private sector to encourage supply chain transparency; and
Mr Hyland told the Committee of the many initiatives he had undertaken to address these priorities, including:
reforming the National Referral Mechanism;
training 1,200 judges to improve sentencing;
training law enforcement officers to identify victims;
improving data collection through crime reports;
working with the University of Nottingham to identify best practice partnerships with the non-government sector;
engaging with businesses to raise awareness of modern slavery and obligations under the UK Act;
advocating for the inclusion of addressing modern slavery in the Sustainable Development Goals; and
working with source countries such as Vietnam and Nigeria on specific programs funded by the UK Government’s international modern slavery fund.
Some UK submitters highlighted the important role the UK Commissioner has played in addressing modern slavery. Ms Caroline Haughey, who undertook a review of the Modern Slavery Act in 2016, told the Committee that the introduction of the Anti-Slavery Commissioner has ‘been a success’:
As well as raising the profile of the issue Kevin Hyland OBE has challenged data recording, ensured that there is an independent voice on the national and international stage presenting the UK picture. He has also brought back experience and knowledge from other jurisdictions.
During its visit to the UK in April/May 2017, the Committee delegation heard strong support for the role of the UK Commissioner and the actions taken by Mr Hyland to date to both raise the profile of modern slavery in the UK, and for working with law enforcement and the private sector to better address these crimes.
Roles similar to the UK Commissioner have been established throughout Europe and in the United States. This section examines these roles.
Europe – National Rapporteurs
In 2005, the Council of Europe adopted the Convention on Action against Trafficking in Humans (Convention) which focusses on the protection of victims, prevention and prosecution of perpetrators of human trafficking. Article 29(4) of the Convention provides that all parties shall consider appointing national rapporteurs or other mechanisms for monitoring the implementation of legislation and anti-trafficking activities.
In April 2011, the European Commission adopted a new directive on preventing and combating trafficking in human beings and protecting its victims (2011/36/EU). The directive aims to prevent trafficking, effectively prosecute criminals, and better protect victims.
Under the Directive, member states should establish national rapporteurs or equivalent measures to ‘carry out assessments of trends in trafficking in human beings, gather statistics, measure the results of anti-trafficking actions, and regularly report’.
Box 4.1 outlines examples of independent National Rapporteurs in the EU, the Netherlands and Finland.
Box 4.1: European Human Trafficking National Rapporteurs
EU Anti-Trafficking Coordinator
In 2011, under EU Anti-Trafficking Directive 2011/36/EU, the European Commissioner established the office of the Anti-Trafficking Coordinator (Coordinator). The Coordinator is responsible for improving coordination and coherence in developing existing and new EU policies to address trafficking in human beings. The Coordinator is responsible for compiling reports on the implementation of the Anti‑Trafficking Directive across EU member states, that highlight the challenges in addressing human trafficking, progress made and areas for priority action.
In April 2000, the Netherlands established the independent National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children, to report on the nature and extent of human trafficking and sexual violence against children in the Netherlands and the effects of government policies.
In 2009, Finland’s Ombudsman for Minorities was given the role of National Rapporteur on Trafficking in Human Beings. Since 2015, the role has been undertaken by the Non-Discrimination Ombudsman. The Rapporteur monitors action against human trafficking in Finland, human trafficking more broadly, compliance with international obligations and the effectiveness of national legislation.
In the United States, the Department of State’s Office to Monitor and Combat Trafficking in Persons (TIP Office) leads the US Government’s global efforts to combat modern slavery. The TIP Office was established in accordance with the Trafficking Victims Protection Act of 2000.
The TIP Office focusses on partnering with foreign governments to develop and implement strategies for prosecuting offenders, protecting victims and preventing trafficking, consistent with the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol). The TIP Office ‘assesses global trends, provides strategic foreign assistance funding, and engages foreign governments, civil society, other federal agencies and key stakeholders in the fight against modern slavery’. One of the key roles of the TIP Office is preparing the annual Trafficking in Persons report, which is the world’s most comprehensive resource of governmental anti-trafficking efforts.
The TIP Office is directed by the Ambassador-at-Large to Monitor and Combat Trafficking in Persons. The Ambassador’s role is to lead US global engagement against modern slavery.
Support for an Australian Commissioner
The Committee heard significant support for the establishment of an Independent Anti-Slavery Commissioner (Commissioner), similar to the role established in the UK. The Committee notes that Anti-Slavery Australia and the Law Council of Australia have advocated for the creation of a Commissioner over a number of years.
The Committee notes that some business groups do not support the establishment of a Commissioner at this stage. The Business Council of Australia submitted that the Attorney-General’s Department should maintain responsibility for modern slavery issues and that ‘other options to enhance coordination of activities and raise the profile of modern slavery’ should be explored before a Commissioner is established.
In its interim report, the Committee supported the establishment of a Commissioner in Australia. The Committee notes that the Parliamentary Joint Committee on Law Enforcement (PJCLE) has recently recommended that the Australian Government consider appointing an Anti-Slavery and Trafficking Commissioner. Similarly, the New South Wales Legislative Council Select Committee on human trafficking in NSW recommended the NSW Government urge the Australian Government to appoint an Independent Anti-Slavery Commissioner.
This section examines the current roles of the Attorney-General’s Department and the Ambassador for People Smuggling and Human Trafficking, as well as the arguments for an Australian Independent Anti-Slavery Commissioner.
Current Australian Government roles
As noted in Chapter 2, the Australian Government submitted that the functions of the UK Independent Anti-Slavery Commissioner are largely fulfilled by the Ambassador for People Smuggling and Human Trafficking (Ambassador) and the Attorney-General’s Department (AGD) as Chair of the Interdepartmental Committee (IDC) on human trafficking and slavery. Under Australia’s International Strategy to Combat 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 Co-Chairing the Bali Process forum.
Submitters suggested that a Commissioner would complement the roles already undertaken by AGD and the Ambassador. The Law Council of Australia noted that the existing Ambassador role is ‘largely diplomatic and focused on managing international relationships’ and that a dedicated Commissioner is ‘essential’ in addressing modern slavery in Australia and overseas, stating:
The forms of modern slavery found in Australia and/or affecting Australia are ever-changing and typically concealed, requiring a permanent and dedicated office uniquely tasked with identifying them and coordinating a response.
Mr Andrew Forrest, Chairman of the Walk Free Foundation, argued that existing government measures, including the role of AGD in coordinating the IDC, could be more effective in addressing modern slavery:
I look at the good work the Australian government tries to do, such as the fact that there is a department here that holds an annual meeting which produces documents and establishes that modern slavery exists and achieves nothing else but that establishment ... We need a very different approach, and an approach which is absolutely economic and highly effective. The precedent already established in Britain is an independent commissioner. If we continue the way we are, we are the best friends to the modern slavery industry.
A number of submitters and witnesses highlighted that one of the key limitations of the current Australian Government roles is the lack of independence from government. Ambassador Andrew Goledzinowski AM himself told the Committee that the independence of the role in the UK had no equivalence in Australia:
That independence gives him the capacity to, for example, deal with agencies well outside of the normal run of government agencies that we talk to. He can go and talk to the nurses federation in the United Kingdom. He can talk to the fire brigade about how they might witness things which others do not in trafficking. He can talk to the police in ways which is probably not something that either myself or … [the Attorney-General’s Department] would be able to do in the same way. He is invited by corporations to come and address their boards. It is not something which, for example, I would expect would happen in my situation. Independence means that government ministers come to him for counsel, as well, in a way that they would not come to a public servant.
In his evidence to the Committee, the UK Commissioner emphasised the importance of the independence of his office in fulfilling his role:
Parliamentarians in the UK from across the parties pushed for the term 'independent' to be a part of that description. My role is really independent. I have a statutory footing over law enforcement, over health services, over immigration services and over local government across the United Kingdom in order to make them adopt best practice to protect victims, to identify victims and to also call them to account when they are not doing that. So the legislation gives me real teeth to do that.
Submitters suggested that an Australian Commissioner would complement rather than replace the existing Ambassador role. The Walk Free Foundation noted that the Commissioner and Ambassador should have clearly distinct roles:
The Ambassador’s role is to represent the Australian Government’s interests internationally, including to ensure deterrence and resettlement is effectively coordinated across the Government. The Commissioner is an independent oversight body, focused on the domestic response to modern slavery.
Ambassador Goledzinowski also noted that any Commissioner role would need to consider the existing role of his office in working to promote Australia’s efforts overseas:
… if, for example, the Australian government was minded to create an anti-slavery commission here … the fact that there is already an ambassador position would be taken into account in the design of the anti-slavery commissioner position … there are certain diplomatic activities that my position undertake[s] that, probably, would not be as well served by the anti-slavery commissioner role. So I think there is a complementarity which would need to be considered.
Ambassador Goledzinowski stressed that his role would complement and work with an Australian Commissioner:
… there's importance in preserving the role of government in this space. I do not think an independent commissioner, for example, would be able to co-chair the Bali process, which is increasingly an important tool in our hands and in Indonesia's hands to deal with these issues. Government still has to have a voice, and government still has to be able to deal with the United Nations, with governments in our region, with agencies et cetera, and that's something we will need to maintain.
Proposed role in Australia
Submitters made a range of suggestions for the possible roles of an Australian Commissioner. Submitters recommended the role should be similar to but improving on the UK Commissioner role. These roles are outlined below.
The Committee notes that the PJCLE recently recommended that an Australian Commissioner should:
monitor the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015–19;
provide recommendations, advice and guidance to government agencies on the exercise of their functions;
oversee the effectiveness of Commonwealth legislation and policies intended to reduce the prevalence of human trafficking, slavery and slavery-like practices and respond to corresponding offences; and
collect and request data and information on these practices.
Oversight and compliance
Submitters recommended that a key role of a Commissioner should be to oversee the implementation of the Australian Government’s response to addressing modern slavery through the National Action Plan to Combat Human Trafficking and Slavery 2015-19 (National Action Plan). The Law Council of Australia argued that the role of the Commissioner is ‘essential’ to implementing the National Action Plan:
While the Australian Government should be commended for its National Action Plan that sets out a whole-of-community, including whole-of-government, approach to addressing modern slavery, there is no dedicated body in charge of ensuring this worthy yet ambitious undertaking is implemented and effective. An Independent Anti-Slavery Commissioner in Australia could fill that void, as well as undertaking several other important functions, like being the central point of contact on all matters relevant to modern slavery in Australia, both for within Australia and internationally, and being responsible for community outreach and providing education to the various stakeholders involved in Australia's response to modern slavery, including law enforcement, civil society and the private sector.
Similarly, the Walk Free Foundation recommended:
The Australian Commissioner should be tasked with providing independent oversight of the response across all sectors; from those on the ground identifying victims and providing emergency support services, to the police enforcing laws and prosecutors pursuing offenders, to businesses addressing modern slavery within their supply chains. He or she must identify gaps or weaknesses in [the] existing framework, provide solutions, and ultimately bolster the success of Australia’s response to modern slavery, including Australia’s prosecution rates.
Ms Fiona David from the Walk Free Foundation used the example of forced marriage to emphasise the potential role for a Commissioner in overseeing the role of different government agencies:
If we take the issue of forced marriage of a child, for example, we are talking about a crime that involves the AFP [Australian Federal Police] with a federal offence, state and territory child protection services, potentially Immigration with passport controls, faith leaders and education departments. That is beyond the capacity of one government department to try to oversee. It really is the sort of thing that needs an independent commissioner to stand above it and ensure accountability.
Anti-Slavery Australia also highlighted the importance of oversight of government agencies coupled with investigative powers to ensure compliance:
… to provide high-level oversight and monitoring of the Australian response to human trafficking and slavery, as well as compliance with applicable laws and regulations. The ombudsman will promote systemic change by following up on findings and recommendations that it and other bodies make, and by ensuring that there is an open dialogue between its office, government agencies and other third party stakeholders, including business and civil society. The ombudsman should have the power to take referrals related to specific cases, investigate, and make recommendations about actions related to individual cases.
Coordination, education and raising awareness
Submitters highlighted the importance of having a central coordinating office to raise awareness of modern slavery and running education and training for key stakeholders, including law enforcement and government agencies. Ms Molly Olson, CEO of Fairtrade Australia and New Zealand, told the Committee:
… the role of the commissioner is absolutely pivotal in a variety of ways—bringing attention to it, raising public awareness about it, ensuring that there is regular attention to some of the difficulties. We cannot anticipate right now what some of the difficulties will be. It is about having a mechanism that enables removing road blockages, if there are problems with the way the standards or the regulations have been set out—someone who can help to facilitate the effectiveness, the public awareness and the working of the thing. We find that that is really valuable and we would say that that not only needs to be a high-profile, high-level individual but one with well-resourced and well-staffed capabilities.
The Law Council of Australia highlighted the importance of ensuring that the Commissioner delivers education on modern slavery independently of law enforcement and government agencies responsible for investigation and enforcement.
Chapter 7 examines the role of a Commissioner in improving Australia’s criminal justice responses to modern slavery.
Private sector engagement and supply chain reporting
Submitters suggested that the Commissioner should be appropriately resourced to engage with the private sector on the proposed supply chain reporting requirement. The Law Council suggested the Commissioner should:
… provide guidance and education to the private sector on how to comply with reporting requirements, both for companies eligible for mandatory reporting, and non-eligible companies seeking to make voluntary disclosures.
Similarly, Hagar Australia suggested that the Commissioner could work with the private sector to encourage compliance with the requirement:
An Anti-Slavery Commissioner should play a leadership role in highlighting best practice, undertaking research, stimulating debate and working with key stakeholders to advance Australia’s efforts to combat slavery. The Commissioner should also be invested with powers to investigate and seek remedies where companies engage in slavery or are negligent in their efforts to prevent it in their business or supply chains.
Some submitters suggested that the Commissioner’s role should go further to include monitoring and enforcing the proposed supply chain reporting requirements. For example, the Walk Free Foundation suggested that the Commissioner host the repository of modern slavery statements:
The Office of the Commissioner may be the appropriate home for the repository, particularly given the Commissioner’s remit to work with the private sector. While the maintenance and management of a repository will require a different skill set and additional staff, the Office of the Commissioner would provide the required independence and ensure business and community confidence.
Data collection and analysis
Submitters suggested that an Australian Commissioner could improve on the UK role by including a mandate to request and collect data on modern slavery in Australia.
In its 2016 evaluation of the UK’s compliance with the Council of Europe’s Convention on Action against Trafficking in Human Beings (Council of Europe Convention), the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) found that the UK Commissioner did not meet the requirements of the National Rapporteur as its mandate does not include data collection and analysis.
In its submission to this inquiry, the UK Anti-Trafficking Monitoring Group, a coalition of NGOs that monitors the UK’s implementation of the Council of Europe Convention, suggested the Commissioner’s role could be strengthened with a mandate to collect and analyse data on modern slavery:
This would allow the Commissioner to have a comprehensive understanding of the picture of modern slavery across the UK, and the gaps in the UK’s response to tackling it. This function would better inform the Commissioner’s work and increase the role’s effectiveness in spearheading the UK’s fight against modern slavery.
Submitters strongly supported that the Commissioner be independent from government. Hagar Australia suggested that the Commissioner should:
… operate independently of government similar to chairs and commissioners of ASIC and the ACCC, or the President and Commissioners of the Australian Human Rights Commission.
The Committee heard that independence is one of the key strengths of the UK Commissioner’s role, particularly internationally. Mr Nick Grono, Chief Executive Officer of UK-based NGO the Freedom Fund, told the Committee:
… if the Australian government sees this as a priority and wants to help influence the international debate … then an independent antislavery commissioner is an important part of that effort … Having an independent actor can certainly advance an agenda of wanting to have influence internationally, and that's certainly been the experience with the UK antislavery commissioner.
Anti-Slavery Australia noted that GRETA’s 2016 evaluation of the UK’s compliance with the Council of Europe Convention found that the UK Commissioner is not sufficiently independent of government as the role is ‘appointed by and answerable to the Home Secretary’.
Anti-Slavery Australia suggested that the Australian role should be an ombudsman, rather than a commissioner, as ombudsman roles are firmly established in Australia law and operate in many jurisdictions:
… an ombudsman would be better positioned than a commissioner to monitor the response to human trafficking and slavery in Australia, make recommendations, monitor compliance with applicable laws and regulations and receive and investigate complaints from individuals and organisations with a sufficient interest.
Anti-Slavery Australia argued an Ombudsman model would ensure the role is truly independent from the executive branch of government and address the concerns raised by GRETA about the independence of the UK Commissioner:
In order to perform these functions effectively, it is essential that the role of an Anti-Slavery Ombudsman in Australia be independent. This should be recognised in the establishing legislation. By building on the model of the Commonwealth Ombudsman, the Anti-Slavery Ombudsman would be able to conduct independent investigations and audit the response of the Australian government.
The Committee notes the strong support for the establishment of an Independent Anti-Slavery Commissioner in Australia, similar to the role established under the UK Act.
The Committee recognises the positive role the UK Commissioner has played in raising awareness of modern slavery issues and improving compliance with UK legislation.
The Committee recognises the existing roles of AGD and the Ambassador for People Smuggling and Human Trafficking in monitoring the implementation of Australia’s National Action Plan to Combat Human Trafficking and Slavery 2015-19 and Australia’s International Strategy to Combat Human Trafficking.
The Committee considers that the establishment of an Independent Anti-Slavery Commissioner in Australia would complement these roles and strengthen Australia’s response to combatting modern slavery.
The Committee recommends that the Commissioner be given powers and resources to undertake a range of functions similar to the UK Commissioner, including undertaking a legislated review of the proposed Modern Slavery Act.
The Committee notes the concerns that the independence of the UK Commissioner role may be compromised by being appointed by and answerable to the Home Secretary. The Committee recommends the Australian Commissioner’s role be truly independent from government and this be set out in the proposed Modern Slavery Act.
The Committee recommends that the Commissioner role should be established separately from any existing independent statutory bodies, such as the Commonwealth Ombudsman or the Australian Human Rights Commission, and report directly to the Parliament. This separation does not imply that the work of these bodies is any less important than the issues addressed by the proposed Commissioner, but to ensure their ability to function independently.
The Committee recommends that a broader title such as Independent Anti‑Modern Slavery Commissioner, or Independent Commissioner to Eliminate Modern Slavery, be considered in order to incorporate the wider umbrella term of 'modern slavery'.
The Committee notes that its interim report and the recent PJCLE report have also supported the establishment of Independent Anti-Slavery Commissioner.
The Committee recommends that the Australian Government establish an Independent Anti-Slavery Commissioner under the proposed Modern Slavery Act with powers and resources to undertake the following functions, including but not limited to:
overseeing the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015-19 and any future plans to combat modern slavery;
monitoring and investigating compliance of government agencies with the National Action Plan to Combat Human Trafficking and Slavery 2015-19 and existing modern slavery legislation;
ensuring victims of modern slavery, including children, have access to appropriate support services;
providing education, guidance and awareness training for government agencies and entities about modern slavery issues;
engaging with government and entities on the implementation and operation of the proposed supply chain reporting requirement and central repository;
collecting and analysing data on modern slavery in Australia;
undertaking legislated reviews of the proposed Modern Slavery Act at least every three years;
improving coordination between criminal justice agencies in identifying and prosecuting modern slavery cases;
providing advice on how to improve the proposed Modern Slavery Act, as well as responses to modern slavery, on an ongoing basis;
providing independent oversight of the response to combatting modern slavery across all sectors, and identifying gaps and solutions;
working with various agencies, law enforcement bodies, prosecutors and others to increase the identification and reporting of modern slavery crimes, and to bolster the prosecution rates for modern slavery offences;
raising community awareness of modern slavery; and
any other related matters.
The Committee recommends that the proposed Modern Slavery Act provide that the Commissioner be truly independent from government or any other body, such as the Australian Human Rights Commission or the Commonwealth Ombudsman, and oversee their own properly resourced and independent office. The Commissioner should report to Parliament.
The Committee recommends that the Commissioner’s role complement the existing roles of the Attorney-General’s Department and the Ambassador for People Smuggling and Human Trafficking. In developing the Commissioner position, consideration should be given to ensuring complementarity with the Ambassador position and avoiding an overlap of roles and responsibilities.
The Committee recommends that the Australian Government support the Independent Anti-Slavery Commissioner to undertake a legislated review of the proposed Modern Slavery Act three years after its commencement and every three years thereafter. This legislated review should include, but not be limited to:
the effectiveness of, and possible changes to, the proposed Modern Slavery Act and other measures in combatting modern slavery;
the public awareness of modern slavery;
the appropriateness of, and prosecution levels for, offences under Divisions 270 and 271 of the Criminal Code;
the operation of the proposed supply chain reporting requirement and the central repository (including but not limited to: the revenue threshold level; penalties and compliance measures; the prescribed reporting requirements; the idea of a consumer mark or logo for products and services which are deemed slavery-free; the potential for tax incentives for entities that are compliant with the proposed reporting requirement; the need for a grievance mechanism; expanding reporting to other human rights issues; auditing of suppliers to the Australian Government; and random audits of modern slavery statements for compliance);
further support measures for victims of modern slavery, including the need for specific risk and prevention orders;
Australia’s visa policies and their potential to create vulnerability for modern slavery; and
other measures recommended in this report.