The committee endorses without reservation the objectives of the bill. The state-sponsored forced labour to which the Uyghur people are being subjected by the Chinese dictatorship is a grave human rights violation. It is incumbent on the government to take steps to ensure that Australian businesses and consumers are not in any way complicit in these egregious abuses.
The committee thanks Senator Patrick for providing the opportunity to explore how best Australia should respond. The committee is deeply grateful to the Uyghur community members and groups, in Australia and beyond, who shared the harrowing personal experiences of their family and community members.
The committee does not view the denials by the Chinese Communist Party (CCP) dictatorship with regards to the treatment of Uyghurs to be credible. The committee does not accept the CCP's characterisation of the situation in Xinjiang. It considers attempts to sow and perpetuate disinformation deeply concerning. The fact that the People's Republic of China (PRC) attacks those conducting research rather than the research itself demonstrates both the hollowness of the CCP's denials and its willingness to resort to bullying to perpetuate its false narratives.
The way forward
The committee is of the view that the bill as currently drafted does not represent the optimal way to address the issue at hand. Instead, the committee believes a preferable approach would be to: introduce a global ban on the import to Australia of goods produced by forced labour; provide the legislative framework for the relevant authorities to take targeted actions in the case of particularly egregious abuses; and then take such targeted action with respect to Uyghur forced labour.
Bringing our Customs Law up to international standards
The committee was persuaded by the view that the proceeds of forced labour originating from any part of the world should not be brought into this country. The omission of such a prohibition from Australian law is an historical oversight that needs addressing to bring Australia into alignment with laws in like-minded countries and our own values. Taking such an approach has the added benefit of ensuring Australia is not vulnerable to legal contest for erecting a discriminatory trade barrier.
The committee recommends that the Customs Act 1901 and/or other relevant legislation be amended to prohibit the import of any goods made wholly or in part with forced labour, regardless of geographic origin.
Taking targeted action to address Uyghur forced labour
While the committee endorses the principle that the government should take a non-discriminatory approach to addressing forced labour, it also recognises that the situation of the Uyghurs is such that targeted action is also warranted. Given the combination of (i) manifest evidence of Uyghurs being subjected to forced labour in China, (ii) the difficulty, occasioned by deliberate regime obstruction, of accessing Xinjiang to audit supply chains and (iii) the exposure of Australian supply chains to goods from Xinjiang, it is appropriate to give clarity to Australian importers by issuing measures specific to this situation.
The committee considers that the US model, which allows for the issuance of orders enacting a rebuttable presumption that specific goods, or all goods originating from specific companies or regions, (withhold release orders) has merit and that a similar system should be adopted in Australia.
The evidence of the widespread use of forced labour for particular classes of products in Xinjiang necessitates the issuance of such an order as a matter of priority.
The committee recommends that the government should consider taking steps to empower the Australian Border Force to be able to issue rebuttable presumptions for specific goods, companies and/or regions with particularly high risk of being associated with forced labour.
The committee recommends that, once the issuance of such orders is possible, the Australian Border Force should immediately consider issuing an order, at a minimum, for cotton sourced from Xinjiang.
Commonwealth Procurement Rules
The committee considered the suggestion that the government take steps to ensure its own procurement activities in no way abet forced labour to be a constructive one, and an area where action could be taken immediately.
The committee recommends the government consider amending the Commonwealth Procurement Rules to include a requirement on due diligence with regards to the possibility of exposure to forced labour and encourages state, territory and local governments and their various business enterprises to do likewise.
Implementation and enforcement issues
The committee noted the various difficulties associated with implementing and enforcing the provisions of the bill, some of which would also apply to the measures recommended above.
The committee did not view these difficulties to be intractable and noted a variety of promising proposals for facilitating implementation of a trade prohibition.
The committee was given clear evidence that any import ban would only be effective if the authorities are adequately resourced to conduct extensive activities in support of its implementation.
Given the complicated nature of modern supply chains, the Australian Border Force will require a dedicated team, which is adequately resourced and credentialed, to enforce prohibitions on the import of goods produced with forced labour and on goods from a designated region or country.
To be most effective, this team would be empowered to act not only in a responsive manner, but also to take a proactive approach to eliminating forced labour from Australian supply chains.
In crafting provisions to prohibit the import of goods produced by forced labour, the committee recommends the government give due consideration to adequate resourcing for the Australia Border Force to conduct investigations in support of those provisions.
The committee welcomed information provided on various new technologies that could assist with the implementation of the bill or a similar measure.
The committee recommends that the Home Affairs portfolio establish a working group to examine the role emerging technologies can play in tracing the geographical origin of products and raw materials.
Complementary trade-related measures
The committee noted the abundance of practical and constructive evidence regarding additional trade-related measures that would assist government and businesses to address the problem of supply chain exposure to forced labour. To ensure that legislative actions are effective, the committee recommends additional complementary measures be taken.
Advice to business
Business advisories are a highly regarded practical tool used in several other countries. The committee believes that Australian companies should be guided by advice from their own government, tailored to Australian supply chains, rather than rely on overseas advisories.
The committee recommends the government establish and maintain a list of products or companies considered to be at high-risk of being produced by forced labour.
An additional aid to business and others seeking to conduct research and audits with respect to Australian supply chains would be the publication by government of customs data. The committee notes that similar information is made public in various other countries.
The committee recommends the government, where feasible, publish Integrated Cargo System data online.
Coordinating with likeminded States
In matters of foreign policy, and in particular with regards to trade measures, the committee notes that coordinating with likeminded States is an essential prerequisite for effectiveness. On the specific topic of Uyghur forced labour, the need for international coordination is particularly evident given that many likeminded countries have taken action in advance of Australia. This coordination should encompass both policy and implementation.
The committee recommends the relevant government departments coordinate closely with counterparts in likeminded countries, in particular Canada, the United Kingdom and the United States, both to ensure policy consistency and to ensure Australia can benefit from the practical implementation lessons learned by those countries.
Complementary non-trade measures
While trade measures can be expected to have an impact, especially when taken in coordination with like-minded international partners, they will not necessarily be sufficient to address the human rights abuses being suffered by Uyghurs in the PRC. The committee welcomed the many ideas for complementary measures, several of which merit further consideration.
The committee is aware of the current difficulties in the Australia-China bilateral relationship. Nonetheless, there remain important tools in the diplomatic toolbox. In particular, Australia should continue to work with partners to put pressure on the PRC in the context of relevant multilateral organisations.
The committee commends the government's consistent call for the PRC to allow independent UN human rights investigators access to Xinjiang. Australia should also continue to call for the PRC to ratify relevant treaties in the context of the International Labour Organization.
The committee is convinced of the merits of further exploring the scope for action to expose and condemn the treatment of the Uyghurs in multilateral settings.
The General Assembly
The committee considers there may be scope for further action at the General Assembly. The joint statements delivered at the General Assembly's Third Committee are welcome. While non-binding, a general assembly resolution condemning the PRC's treatment of the Uyghurs would be even more powerful, demonstrating international unity and resolve on the issue.
Unlike the Security Council, action in the General Assembly cannot be blocked by a PRC veto. Nonetheless, securing a majority of votes is in no way a given and would require significant diplomatic legwork.
The committee recommends that the government explore with likeminded States the possibility of introducing a resolution condemning the situation in Xinjiang at the 76th session of the Third Committee of the General Assembly in 2021.
The committee also considers that Australia can play a constructive role to counter false narratives with respect to the evidence base on the abuse and exploitation of Uyghurs in the PRC. This should include supporting evidence-based research and empowering Uyghur diaspora communities.
Empowering our diaspora community
The committee is deeply concerned for the wellbeing of Uyghur Australians with family members either subjected to, or vulnerable to, human rights abuses in the PRC. The feeling of not being able to do anything to assist their loved ones is a contributing factor to the mental anguish felt in these communities. One way to seek to address this sense of helplessness is to empower Uyghur Australians to assist Australian Government efforts and policy development on this topic. The benefits of such empowerment are multifaceted, with government standing to gain from the unique knowledge and expertise of Australia's Uyghur diaspora.
Recalling the recommendation of the References Committee in its report on Issues facing diaspora communities in Australia, the committee recommends that the Department of Foreign Affairs and Trade explore options to better leverage the experience and expertise in Australia's diaspora communities.
Review of the Modern Slavery Act
Australia has demonstrated global leadership through its adoption of the Modern Slavery Act 2018. The Act is a welcome framework for addressing modern slavery.
It is clear that there are some relatively straightforward ways to strengthen the Act, and there is moreover an opportunity to consider these in its upcoming review. The committee sees merit in the suggestions that the Act's requirements be applied to more Australian businesses by lowering the annual turnover threshold for reporting. It further considers that the introduction of penalties for non-compliance appears to be a sensible reform.
The committee welcomes the government's openness to bringing the scheduled review forward.
The committee recommends that the government initiate the review of the Modern Slavery Act 2018 as soon as possible following the conclusion of the first reporting cycle on 30 June 2021.
The committee recommends that the review of the Modern Slavery Act 2018 considers provisions for its strengthening and broadening, together with the establishment of an independent body to oversee and enforce its implementation.
Introduction of Magnitsky-style legislation
The committee notes that the introduction of Magnitsky-style legislation could assist the government to address issues such as the current situation of the Uyghurs. It is regrettable that Australia was not able to join international partners in applying sanctions in this regard in March 2021.
The committee supports the work and recommendations of the Joint Standing Committee on Foreign Affairs, Defence and Trade, Human Rights Sub-committee on the use of targeted sanctions to address gross human rights abuses and echoes its recommendation that the government 'enact stand alone targeted sanctions legislation to address human rights violations and corruption similar to the United States' Magnistky Act 2012'.
Introduction of human rights due diligence obligations for Australian businesses
Effectively addressing the insidious problem of forced labour will require the efforts not only of government, but also civil society, industry groups, unions and business. A clear set of guidelines to this effect would assist businesses to undertake such due diligence and provide for the standardisation of due diligence actions across the board.
The committee recommends the government explore introducing guidelines to assist Australian businesses to avoid sourcing products from forced labour.
Senator the Hon Eric Abetz