Chapter 1Introduction and key issues

1.1On 27 March 2024, the Senate referred the Customs Amendment (Preventing Child Labour) Bill 2023 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 1 July 2024.[1]

1.2The referral of the bill followed a recommendation of the Senate Standing Committee for the Selection of Bills.[2] Appendix 1 to that report stated that an inquiry into the bill was required as:

Elimination of child labour is an important goal that requires complex trade reform. The potential impact on import/export focused industries, customs enforcement agencies and trade relationships are some of the principal issues.[3]

Conduct of the inquiry

1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 29 April 2024. The committee received ten submissions, which are listed at Appendix 1.

1.4The committee decided to conduct the inquiry on the papers with reference to the bill, information contained in the Explanatory Memorandum (EM), and the submissions.

1.5The committee thanks those individuals and organisations who made submissions.

Purpose of the bill

1.6The bill would amend the Customs Act 1901 (Customs Act) to introduce measures that would encourage importers of goods involving child labour to alter their supply chains to avoid importing goods involving child labour. If they do not address child labour issues in their supply chains, the bill would impose civil penalties or import bans on the importer.

1.7In introducing the bill to the Senate, Senator Malcolm Roberts stated that it would 'impose a penalty leading to a product ban on importation into Australia of goods involving child labour'.[4]

1.8The sliding penalty scale that would be introduced by the amendment would give 'importers [time] to change their supply choices, the penalties including bans which are included in this bill are a last resort'.[5] The 48-month period 'between detection and banning means importers have time to work with suppliers down their supply chain to correct their labour practices'.[6]

1.9The bill would enable officers in:

…the Department of Home Affairs to take action in relation to a good being imported into Australia that is reasonably suspected of having a good involving child labour in the supply chain. This could be a material that forms part of the finished product. Or it could be the product itself was produced or assembled using child labour.[7]

1.10There would be limitations on the kinds of goods that the bill would affect. It would 'not cover secondary touchpoints such as packaging, transport or machinery used in production'.[8] According to Senator Roberts, these goods are 'almost impossible to identify' as involving child labour.[9] The bill would focus 'on the two areas any importer should rightly know—what is in the good they are importing and who made it'.[10]

1.11In relation to the evidentiary basis for suspicions of child labour, Senator Roberts informed the Senate that '[t]here are multiple organisations who track goods involving child labour'.[11] If the bill is passed:

…those organisations, or any concerned party would be able to advise Australian Border Force of a suspected good. If an authorised officer (in Australian Border Force), reasonably suspects that goods are imported, or intended to be imported, are goods involving child labour, the officer can issue a notice requiring the importer to provide further information or documents about the goods. Following the importer providing the information or documents, the officer can give another notice requiring the importer to take particular action to reduce the risk that the goods involve child labour.[12]

1.12The penalties that could be imposed on importers that fail to comply with the written notices would be 'calculated on a percentage of the value of the good, or a fixed penalty where the value of the good is not able to be determined, whichever is greater'.[13]

Key provisions of the bill

1.13The bill would insert Division 2A—Importation of goods involving child labour into Part IV of the Customs Act to introduce penalties for not complying with a notice that stipulates that imported goods have been produced using child labour.

1.14Division 2A comprises four Subdivisions, as follows:

Subdivision A—Preliminary;

Subdivision B—Penalties;

Subdivision C—Authorised officers may give notices to importers; and

Subdivision D—Miscellaneous.

1.15This report focuses on Subdivisions A–C of the bill, as they contain the provisions addressed by submitters.

Subdivision A—Preliminary

1.16Subdivision A of the bill would introduce definitions of 'child labour' and 'goods involving child labour'.[14]

1.17The bill would define child labour as work that was conducted by an individual outside of Australia where:

(a)the individual is under 14 years of age; and

(b)in the case of where there is compulsory schooling, and a minimum age for ceasing compulsory schooling, in the foreign country or the part of the foreign country—both:

(i)the individual is under that minimum age; and

(ii)the individual is absent at any time from compulsory schooling in the foreign country, or the part of the foreign country, as a result of carrying out the work.[15]

1.18The EM indicates that this definition 'draws on the International Labour Organisation Convention [ILO] No. 138: Convention concerning Minimum Age for Admission to Employment [ILO Convention 138] and considers the education status of the child'.[16] It clarifies that while ILO Convention 138:

…generally provides that a minimum age for admission to employment or work should be either 14 or 15 years of age, many countries only have compulsory schooling to a lesser age. Parts of South Asia are only 9.[17]

1.19The EM argues that each country should be able to determine at what age compulsory schooling ends and:

…it is not Australia's place to specify a higher age for work than the country itself requires. The whole point of the ILO Convention is to ensure every child receives compulsory schooling, and in that process, is equipped with the knowledge to advance their economic status. It remains a sovereign right of each country to specific [sic] what age that is.[18]

1.20The bill would define goods involving child labour as 'goods [that] are obtained or produced using child labour or…goods [that] are entirely or partially comprised of materials that are obtained or produced using child labour'.[19]

1.21If the good is not made or obtained with the involvement of child labour and is only 'packaged in packaging material or a container' either wholly or partially made or obtained through the use of child labour it would not be considered a good involving child labour.[20]

Subdivision B—Penalties

1.22Subdivision B would introduce the civil penalties that could be imposed on an importer if they fail to comply with a written notice described in SubdivisionC.[21]

1.23A penalty may be imposed on the importer if they have:

been given a written notice of the kinds outlined in paragraphs 1.29 to 1.34;[22]

imported goods into Australia 'of a kind covered by the notice';[23]

not complied with the notice at the time that the goods were imported;[24] and

imported the goods within 48 months of receiving the notice.[25]

1.24The maximum penalty that could be imposed by a relevant court would depend on the amount of time that has passed since the end of the period specified in the written notice.[26]

1.25If less than 24 months have passed since the end of the period specified in the written notice and the court is able to determine the value of the imported goods, the maximum penalty imposed on the importer would be ten per cent of that value.[27] If the court is unable to determine the value of the imported goods, it may impose a maximum penalty of 200 penalty units ($62 600).[28]

1.26If between 24 and 48 months have passed since the end of the period specified in the written notice and the court is able to determine the value of the imported goods, the maximum penalty imposed on the importer would be 33 per cent of that value.[29] If the court is unable to determine the value of the imported goods, it may impose a maximum penalty of 500 penalty units ($156 500).[30]

1.27If more than 48 months have passed since the end of the period specified in the written notice, the importer would be prohibited from importing the goods specified in the notice.[31]

Subdivision C—Authorised officers may give notices to importers

1.28Subdivision C would allow an authorised officer to obtain information or documents from an importer if they suspect that the importer has, or is intending to, import goods involving child labour into Australia.[32]That information or documentation would assist them in considering whether the importer is importing goods that involve child labour.[33]

1.29The officer would be required to request the information or documentation by way of a written notice provided to the importer.[34] That notice would be required to:

state what kind of goods are covered by it;[35]

indicate how the importer is to provide the information or documentation;[36]

state the time period the importer has to comply with the request for information or documentation;[37] and

explain the effect of:

the penalties that could be imposed on the importer if they do not comply with the notice within 48 months;[38]

the prohibition on the importation of goods that could be imposed on the importer if they do not comply with the notice after 48 months;[39]

giving false or misleading information;[40] and

providing false or misleading documentation.[41]

1.30The importer would be required to provide the information or documentation within three months from the day of being given the notice.[42]

1.31If after reviewing the information or documentation provided in response to the written notice an authorised officer has reason to believe 'that goods imported or intended to be imported, into Australia are goods involving child labour' they may issue another written notice.[43]

1.32That written notice would require the importer 'to take one or more specified actions' to reduce the risk of the same kind of goods being imported into Australia.[44]

1.33The notice would be required to:

state what kind of goods are covered by it;[45]

indicate how 'the importer must notify the authorised officer that the specified action has been taken';[46]

state the time period the importer has to 'comply with the requirement to take the specified [sic]';[47] and

explain the effect of the:

penalties that could be imposed on the importer if they do not comply with the notice within 48 months;[48] and

prohibition on the importation of goods that could be imposed on the importer if they do not comply with the notice after 48 months.[49]

1.34The importer would be required to notify the authorised officer that they have taken the specified action within three months of being given the notice.[50]

Examination by other Parliamentary committees

1.35When examining a bill or bills, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).

1.36The Scrutiny Committee indicated that the bill may raise scrutiny concerns in relation to the potential for two provisions of the bill to 'trespass unduly on personal rights and liberties'.[51]

1.37The PJCHR 'note[d] that this non-government bill appears to engage and may limit human rights'.[52]

1.38Both the Scrutiny Committee and the PJCHR indicated that they 'may request further information' from Senator Roberts if the bill progresses to further stages of debate.[53] At the time of tabling, neither committee has provided further comment on the bill.

Key issues

1.39Most submitters agreed that measures should be adopted by the government to address child labour.[54]

1.40This section of the report outlines submitters' views in relation to the following four issues submitters raised in relation to the bill:

inconsistency with international human rights standards;

international legislation that addresses adverse labour practices;

standard of evidence and enforceability; and

exemptions for packaging and other components of goods.

Inconsistency with international human rights standards

1.41Some submitters indicated that the bill does not align with international human rights standards that relate to adverse labour practices.[55]

1.42The bill would introduce a definition of child labour that is inconsistent with internationally agreed labour standards. The EM explains that:

Child labour occurs where an individual who is under 14 years of age performs work in a foreign country and (if there is compulsory schooling and a minimum age for ceasing compulsory schooling in that foreign country) the individual is under that minimum age and absent from that compulsory schooling as a result of carrying out the work. A child under the age of 14 may work if their age is above the minimum age for compulsory school in their country.[56]

1.43Dr Katherine Christ and Professor Roger Burritt suggested that definition is 'complex' and that there are 'voluntary sustainability standards' available to businesses to report instances of child labour in their supply chains.[57] In their view, the Global Reporting Initiative's GRI 408: Child Labor 2016 standard 'is the most widely accepted by business'.[58] That standard defines a child as a 'person under the age of 15 years, or under the age of completion of compulsory schooling, whichever is higher'.[59] The inconsistent definition adopted by the bill would lead to 'unnecessary changes to existing data gathering'.[60]

1.44According to the GRI 408: Child Labor 2016 standard '[t]he internationally-agreed understanding of the meaning of child labour is set out in the International Labour Organization Convention 138 'Minimum Age Convention''.[61]

1.45Signatories to ILO Convention 138 agreed:

…to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.[62]

1.46The minimum age 'shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years'.[63] If a signatory's 'economy and educational facilities are insufficiently developed [they] may…initially specify a minimum age of 14 years'.[64]

1.47ILO Convention 138 allows signatories to develop:

…laws or regulations…[that] permit the employment or work of persons 13 to 15 years of age on light work which is-

(a)not likely to be harmful to their health or development; and

(b)not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received.[65]

1.48Pillar Two argued that the definition 'used in the bill should be tailored to align with the definitions used by the ILO and in relevant internationally accepted standards'.[66]

1.49Walk Free agreed that '[i]t is imperative that any definitions used, particularly 'child labour', reflect the internationally agreed understandings of these terms'.[67]

Other adverse labour practices

1.50Several submitters argued that the bill should be broadened to include measures that address other adverse labour practices such as forced labour, the worst forms of child labour and modern slavery.[68]

1.51A distinction was made between child labour and the worst forms of child labour.[69] The worst forms of child labour are defined in the ILO Worst Forms of Child Labour Convention, 1999 (No. 182) (ILO Convention 182):

(a)all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;

(b)the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;

(c)the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties;

(d)work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.[70]

1.52While Fair Futures agreed that child labour and forced labour are two legally distinct concepts, there are similarities between them.[71] It argued that there is 'little value' in differentiating between products involving child labour and products involving forced labour at the Australian border.[72] In its view, '[b]oth should be stopped at the border'.[73]

1.53The National Retail Association (National Retail) suggested that the bill would conflate the following two issues:

Forced child labour which falls under the scope of the Modern Slavery Act 2018 (Cth) which includes forced child labour under hazardous conditions, sexual exploitation and the production and trafficking of drugs; and

Child labour, which may be unpaid or poorly paid but contributes to the livelihood of the child’s family and possibly the wide [sic] community. The child, however, may be disadvantaged through missing education opportunities, or the practice may contravene the minimum age for child labour and mandatory education in the country.[74]

1.54In instances where:

… child labour is not coercive and contributes to the wellbeing of the child and its community, National Retail favours actions which allow communities an orderly transition to adult labour without undue hardship, and consistent with national definitions of the age of children and associated local mandatory education legislation. Banning the import of products should be an action of last resort in these cases.[75]

1.55Pillar Two indicated that the bill differs from approaches taken by other jurisdictions and 'recommend[ed] the Parliament consider whether there is merit in expanding the bill to address all forms of modern slavery'.[76]

1.56Dr Marinella Marmo and Dr Rhiannon Bandiera agreed that an import ban should be extended to cover imported goods and materials obtained or produced through any form of modern slavery.[77] In their view, Australia has 'international obligations…to uphold human rights at any point in time and towards everyone, notwithstanding their age'.[78] Introducing legislation that would prohibit the importation of goods involving child labour without addressing goods produced with other forms of modern slavery 'puts Australia out of step with comparable jurisdictions and must be remedied by the Australian Government to align us with best practice'.[79] Dr Marmo and Dr Bandiera also argued that a wider prohibition against the importation of goods involving forced labour would be less difficult to enforce as it would reduce:

…the complexity of demonstrating that a breach indeed occurred. The more 'cut-offs' we inject (age groups, working conditions, packaging line of work or not, other factors), the more difficult it is to operationalise any legislation. While we understand it is a good political statement to claim that Australia has banned child forced labour, it is not as incisive and easy-to-administer as a wider ban.[80]

1.57Walk Free advocated for an amendment to the bill to 'adopt a comprehensive approach and seek to prohibit the import of goods made with child labour but also the worst forms of child labour, forced labour and slavery'.[81] Expanding the bill to include those forms of labour would:

…help to align Australia's laws with the approach already being taken in the US and Europe. The Uyghur Forced Labor Prevention Act (UFPLA) (US) and the recently passed EU Regulation Prohibiting Products Made with Forced Labour (Import Ban) both seek to proactively prohibit the import of goods made with forced labour, including forced child labour.[82]

1.58The Department of Home Affairs explained that Australia is committed to promoting international labour standards, including those adopted by the ILO.[83] To that end, the Modern Slavery Act 2018 'defines 'modern slavery' to include the worst forms of child labour as defined in [ILO Convention 182]'.[84]The government is also:

…guided by the National Action Plan to Combat Modern Slavery 2020­–25 (the National Action Plan). The National Action Plan describes 'modern slavery' in Australia as referring to a range of serious exploitative practices, including trafficking in persons, slavery, slavery-like practices, and the worst forms of child labour.[85]

International legislation that addresses adverse labour practices

1.59Several submitters referred to international legislation that has been introduced to address adverse labour practices.[86]

1.60Those submissions specifically referred to legislation in the United States and European Union

1.61Pillar Two suggested that 'it is important that the Parliament consider how the proposed bill might align with these existing frameworks, including to help promote a consistent international approach'.[87] A consistent approach 'would assist businesses, which may need to comply with multiple laws, as well as stakeholders seeking to hold businesses to account'.[88] Without that consistency, there is 'a potential risk that goods denied entry into other jurisdictions with import restrictions in place could be diverted to the Australian market'.[89]

1.62Anti-Slavery Australia was concerned that the 48-month period for compliance and the introduction 'of a sliding scale of penalties based on time of compliance contradicts international standards and frameworks aimed at combating child labour'.[90] International agreements 'emphasise the urgency of eliminating child labour without delay'.[91] In Anti-Slavery Australia's view, the bill 'may undermine the sense of urgency required to address this human rights issue effectively.[92]

United States

1.63According to Anti-Slavery Australia, the United States was the first country to introduce customs and import controls to prohibit the importation of goods if they are suspected to 'be linked to adverse labour rights impacts'.[93]The US Tariff Act prohibits the importation of goods that were made in whole or in part with 'forced or indentured child labor'.[94]

1.64The US Customs and Border Protection (CBP) agency implements that prohibition 'through issuance of Withhold Release Orders (WROs) for any product suspected of using forced or child labour'.[95]

1.65Anyone 'who has reason to believe that merchandise produced by forced labor is being, or is likely to be, imported into the United States may communicate his belief to any Port Director or the Commissioner of CBP'.[96]

1.66Dr Christ and Professor Burritt suggested that the '48­-month window between non-compliance with notice and a full ban will achieve little if anything'.[97]They suggested the bill could have the unintended result of forcing 'children into work elsewhere or push[ing] the issue underground into illegal settings'.[98] That could include children moving into 'child prostitution, scavenging rubbish dumps or individuals having to move into extreme forms of child labour'.[99]

1.67Dr Marmo and Dr Bandiera were similarly concerned about the unintended consequences that could arise from the 48-month window given to importers and producers to correct their practices.[100] They suggested that by not immediately banning the import of offending goods, as in other international jurisdictions, Australia risked 'creat[ing] a regime of permission whereby importers can continue to profit knowingly from goods that use such labour'.[101]

1.68Anti-Slavery Australia shared their concerns as it could 'further perpetuat[e] harm to vulnerable children'.[102] To avoid that risk, it recommended that consideration be given to introducing WROs as:

Such an approach would enable authorised officers to withhold shipments it reasonably suspects of involving forced labour and forced child labour, placing the onus on importers to demonstrate the absence of such for entry into Australia.[103]

1.69The Uyghur Forced Labor Prevention Act 2021 (US) (UFLPA) introduced 'importation limits on goods produced using forced labour in China, especially the Xinjiang Uyghur Autonomous Region'.[104]

1.70The UFLPA interacts with the US Tariff Act and established 'a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in Xinjiang or by an entity on the UFLPA Entity List are prohibited from US importation'.[105] The UFLPA differs from 'the broader Tariff Act approach, [as] the UFLPA places the onus on importers to demonstrate relevant goods are not tainted by forced labour'.[106]

1.71Pillar Two suggested that the US model could be considered by the Parliament.[107] A version of that model could:

…empower the ABF to seize shipments it considers to be tainted by forced labour, which the importer would then need to demonstrate are free from child labour in order for them to enter the country. This would not involve the ABF identifying and specifying the steps required to be taken by the importer to address child labour risks more broadly (as currently envisaged by the bill).[108]

1.72Dr Marmo and Dr Bandiera also supported the introduction of a rebuttable presumption provision as '[c]urrently, the legal onus is on the ABF to demonstrate its reasonable ground that the good is in breach of an import prohibition, not the importing entity/individual'.[109]

1.73Anti-Slavery Australia highlighted the administrative burden that the bill would impose on authorities responsible for determining whether child labour was involved in the production of imported goods.[110] It suggested that the introduction of a rebuttable presumption on goods imported from certain 'companies, sectors, or regions where there is compelling evidence of widespread forced labour and child labour' would alleviate some of that burden.[111]

1.74The US Bureau of International Labor Affairs, which is part of the US Department of Labor, 'maintains a list of goods and their source countries which it has reason to believe are produced by child labour or forced labour in violation of international standards'.[112] The list includes '159 goods from 78 countries or regions'.[113]

1.75Dr Marmo and Dr Bandiera suggested that Australia should compile a similar list to support the gathering 'of reasonable evidence' to support claims of imported goods that involve child labour.[114] They suggested the list could be maintained by the Minister or the newly-established Australian Anti-Slavery Commissioner.[115]

1.76National Retail supported the creation of 'a similar list based on intelligence [the Federal government] may have regarding child labour practices overseas'.[116]

European Union

1.77On 23 April 2024, the European Parliament approved the Forced Labour Regulation (FLR).[117]

1.78Under that regulation, EU:

Member state authorities and the European Commission will be able to investigate suspicious goods, supply chains, and manufacturers. If a product is deemed to have been made using forced labour, it will no longer be possible to sell it on the EU market (including online) and shipments will be intercepted at the EU's borders.[118]

1.79Information about the importation of goods suspected to involve forced labour, including child labour, would be obtained from 'international organisations, cooperating authorities and whistle-blowers'.[119]

1.80If goods are found to have been made with forced labour, the manufacturer would be required:

…to withdraw their products from the EU single market and donate, recycle or destroy them. Non-compliant companies could be fined. The goods may be allowed back on the EU single market once the company eliminates forced labour from its supply chains.[120]

1.81Fair Futures argued that the FLR has several features that are likely to assist with its 'practical implementation'.[121] Those features include:

The creation of a Forced Labour Single Portal to bring disparate data sources together, including the newly established Database of Forced Labour Risk Areas or Products.

Provision from cooperation with third (exporting) countries, including the potential for field visits.

Establishing a Union Network Against Forced Labour Products, with responsibilities such as identifying common enforcement priorities, coordinating the collection and exchange of information, monitoring situations of systemic use of forced labour, and collecting data on remediation.[122]

Standard of evidence and enforceability

1.82Some submitters observed that the bill does not adequately explain how an imported good would be determined to be suspected of involving child labour and considered that it would be difficult to enforce the provisions of the bill.[123]

1.83Fair Futures acknowledged that it is not easy to identify products that have involved child labour, particularly in instances where a good has been manufactured with multiple components sourced from different suppliers.[124]

1.84Dr Christ and Professor Burritt were concerned that without evidential guidelines, companies and authorities could waste time and resources 'chasing shadows'.[125] That outcome could 'distract from cases of extreme child labour which should be addressed as a matter of priority'.[126]

1.85Be Slavery Free highlighted the importance of evidence in the enforceability of efforts to address child labour, it stated:

Legal actions relating to cases of child labour have been dismissed due to a lack of a 'traceable connection' between the products companies are importing and the places where children are labouring and experiencing child labour, worst forms of child labour and hazardous child labour conditions. Similarly, legislation relating to the banning of products made with child labour have proven lacking in enforceability because of the size and scale of the problem and difficulty in proving a child's age.[127]

1.86Pillar Two suggested that an importer of a good 'may not necessarily be the manufacturer of the relevant goods and may have limited visibility of that company's supply chains or ability to influence changes to these supply chains'.[128] Similarly, Australian Boder Force officers may also be limited in their 'ability to appropriately identify what actions may need be [sic] taken to address any incidents of child labour and verify their implementation'.[129]

1.87Walk Free argued that the measures that would be introduced by the bill would be difficult to enforce by 'relying on individual customs officers to simply spot forced labour in a particular product'.[130] It noted that the US Tariff Act, which operates in a similar way, 'has only been used to withhold goods 39 times since 2015'.[131]

1.88The UFLPA, 'which relies on a rebuttable presumption that is triggered by the geographic origin of materials, has a much higher rate of enforcement'.[132]It resulted in '5,346 shipments [being] detained under the act between June 2022 and September 2023'.[133]

1.89Be Slavery Free suggested that the development of 'a list of goods, services and jurisdiction [sic] where forced and child labour are of high-risk' would improve the enforceability of the bill's provisions.[134]

1.90Anti-Slavery Australia noted that Australian businesses and civil society currently use 'the annual list published by the US Department of Labor to inform consideration of potential links to modern slavery in international supply chains'.[135] It supported the Australian Government developing a similar 'list of high-risk goods and their source countries which it has reason to believe are produced by forced and child labour in violation of international standards'.[136]

1.91Be Slavery Free noted that the bill would allow non-government organisations (NGO) to report the suspected importation of goods made using child labour to the Australian Border Force.[137] It saw itself as an NGO that could be granted that power under the bill and suggested that it would be inappropriate to expect them to provide evidence to government:

As one of the organisations who undertakes work that could be used in this way, we do not see it as our primary mission to provide the evidence to enforce government legislation relating to business practices in supply chains. Whilst NGO's [sic] have a role to play, they should not be relied upon; especially if their work is not funded by the Government.[138]

1.92Pillar Two raised similar concerns about the potential burden the enforcement of the provisions of the bill could place on government resources.[139] It suggested that while information about child labour risks could be sourced from 'third parties…this information is typically indicative. The Government may also need to independently verify any third party data before taking enforcement action'.[140]

1.93National Retail recognised that NGOs have a role 'in monitoring and drawing attention to human rights abuses including forced child labour'.[141] It noted that any advice provided to enforcement agencies about alleged involvement of child labour should be 'based on firm evidence'.[142]

1.94To ensure that allegations of involvement of child labour are based on robust evidence and 'to avoid other similar goods being affected by enforcement actions', National Retail suggested that NGOs be required to:

Give details about the goods, the identity of suppliers at point of origin of the goods, the nature of the child labour being used, and

Provide production dates, batch numbers and/or other identifiers.[143]

1.95National Retail argued that importers accused of importing goods involving child labour 'must be protected from poorly informed enforcement actions, including those which may originate from vexatious, malicious, or mischievous sources'.[144] It recommended that the bill be amended to 'make it an offence to make vexatious or mischievous allegations' related to the involvement of child labour in imported goods.[145]

1.96The Department of Home Affairs stated that 'child labour goods of the kind proposed by the Bill must be identifiable at the border for a prohibition to be enforceable'.[146] In its assessment:

There are significant practical, administrative and enforcement challenges of achieving the Bill's intent through the proposed prohibition. In the current legislative and policy framework, supported by intelligence, IT systems and operational activities, effective enforcement is not possible to the level for which any Customs Act 1901 amendment would require.[147]

1.97The Department of Home Affairs explained that it would be difficult to enforce the prohibitions contained in the bill as:

Australia's border systems and processes for identifying imported goods are not able to automatically and reliably determine processes or labour standards applied in the manufacture of imported goods due in large part to the complexity of modern day supply chains…The ABF obtains relevant objective details of imported goods—including description, origin, value and tariff classification—to enable the accurate identification of the goods for customs purposes. The ABF also conducts physical interventions on consignments of goods at the border to confirm the nature of the goods and inform any decision to detain them. Physical intervention relies on ABF officers screening, inspecting or testing the goods to positively identify their contents and characteristics. These processes apply to the imported goods as they appear at the border, and they are not able to determine conditions of labour that may have applied in their manufacture.[148]

1.98The Department of Home Affairs would require new capabilities to properly enforce the measures that would be introduced by the bill. For its officers to identify goods involving child labour at the border, the department would require 'new intelligence and oversight functions, and [measures] to manage the complex notification process proposed by the Bill'.[149] The notification process would require the 'development of a mechanism to receive evidence from the public that a good was produced with child labour, and a new penalty regime'.[150]

1.99The passage of the bill would require:

…a complete and long term overhaul of the current regulatory framework and supporting IT systems, just to capture the small percentage of child labour goods that members of the public could report on and meet the appropriate evidentiary standard for to [sic] merit a seizure.[151]

1.100Such an overhaul 'would be disruptive, time intensive and expensive, and would require extensive scoping and consultation domestically and internationally'.[152] In the view of the Department of Home Affairs, 'it is highly unlikely the Commonwealth would be able to reliably meet such a standard for most imported goods'.[153] For those reasons, the Department of Home Affairs stated that the bill would not achieve its 'intended outcome'.[154]

Exemptions for packaging and other components of goods

1.101Some submitters queried the appropriateness of excluding packaging from the bill.[155]

1.102For example, Dr Christ and Professor Burritt outlined the implications that the manufacturing of packaging can have on children's health argued:

…packaging has a pervasive presence in society and where children are used to operate packing machines, are open to lung disease from cardboard and plastics they cover products without masks, etc., packaging and unpackaging can have a terrible health effect on their lives.[156]

1.103Dr Marmo and Dr Bandiera advocated against introducing exceptions to the bill and for that reason stated that packaging should be included as a banned good if its manufacture involved child labour.[157]

1.104Anti-Slavery Australia argued that there is an international expectation that businesses will take all necessary steps to respond to human rights transgressions, including by addressing child labour in their value chain.[158]In its view, if a business became aware of packaging material that involved child labour in its value chain, that business would still be expected to respond.[159]On that basis it recommended that there should not be any exemptions for any goods, including packaging material, in the bill.[160]

1.105Conversely, National Retail maintained that packaging should be excluded from the provisions of the bill due to 'the complexity in tracking the origin of packaging material and the subsequent difficulty in enforcing compliance'.[161]

1.106In addition to the exclusion of packaging, National Retail argued that the bill should be amended to introduce other exemptions as 'similar difficulties exist for the minor components of some products'.[162] For that reason, National Retail 'recommend[ed] further consideration should be given as to how the Bill proposes multi-component products might be treated, when very minor components may be non-compliant'.[163]

Committee view

1.107The Customs Amendment (Preventing Child Labour) Bill 2023 would amend the Customs Act 1901 to introduce penalties for non-compliance with notices to cease the importation of goods involving child labour.

1.108The committee agrees that child labour is a pernicious global problem that should be addressed in Australia and internationally. The committee also agrees that some of the goods imported into Australia are likely to involve child labour.

1.109In the committee's view, the bill would introduce a definition of child labour that is inconsistent with the international understanding of the term. Child labour is an aspect of modern slavery, which is a global problem that requires a global effort to address. For that reason, Australia is committed to promoting international labour standards that aim to eradicate all forms of modern slavery. Introducing a definition of child labour that is inconsistent with international labour standards risks creating unintended outcomes for Australia and wider international efforts to prevent child labour and address modern slavery in all its forms.

1.110The committee is concerned that the bill does not include robust standards of evidence to support accusations of child labour in international supply chains. It fears that the bill could impose undue hardship on Australian businesses and, in the worst case scenario, provide an avenue for vexatious or unfounded accusations of improper business practices.

1.111The committee is similarly concerned that the bill would introduce measures that would be difficult for the Australian Border Force to enforce without a significant redevelopment of its existing systems. Based on the evidence received from the Department of Home Affairs, such a redevelopment would be unlikely to produce outcomes commensurate with the resources that would be required to complete it.

1.112The committee received evidence that outlined approaches to addressing child labour that have been, or are in the process of being, adopted in international jurisdictions. It suggests that there could be merit in considering those approaches should Parliament be minded to introduce legislation to establish customs and import controls on goods suspected of being linked to adverse labour practices.

1.113On 28 May 2024, the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 passed both Houses of Parliament.[164] On 11 June 2024, the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Act 2024 received Royal Assent. That Act established the Australian Anti-Slavery Commissioner and set out their functions.[165] One of the functions of the Anti‑Slavery Commissioner is:

to support Australian entities and entities carrying on business in Australia to address risks of modern slavery practices in their operations and supply chains, and in the operations and supply chains of entities they own or control.[166]

1.114In the committee's view, this function appropriately addresses the problem of child labour, and other forms of modern slavery, in Australian supply chains.

1.115The committee recommends that the Senate does not pass the bill.

Senator Nita Green

Chair

Footnotes

[1]Journals of the Senate, No. 108, 27 March 2024, pp. 3234–3237.

[2]Senate Standing Committee for the Selection of Bills (Selection of bills committee), Report No. 4 of2024, 27 March 2024, p. [1].

[3]Selection of bills committee, Report No. 4 of 2024, 27 March 2024, p. [2].

[4]Senator Malcolm Roberts, Senate Hansard, 29 November 2023, p. 6191.

[5]Senator Roberts, Senate Hansard, 29 November 2023, p. 6191.

[6]Senator Roberts, Senate Hansard, 29 November 2023, p. 6192.

[7]Senator Roberts, Senate Hansard, 29 November 2023, p. 6191.

[8]Senator Roberts, Senate Hansard, 29 November 2023, p. 6191.

[9]Senator Roberts, Senate Hansard, 29 November 2023, p. 6191.

[10]Senator Roberts, Senate Hansard, 29 November 2023, p. 6191.

[11]Senator Roberts, Senate Hansard, 29 November 2023, p. 6192.

[12]Senator Roberts, Senate Hansard, 29 November 2023, p. 6192.

[13]Senator Roberts, Senate Hansard, 29 November 2023, p. 6193.

[14]Proposed sections 53 and 54 of the Customs Amendment (Preventing Child Labour) Bill 2023 (the bill).

[15]Proposed section 53 of the bill.

[16]Explanatory Memorandum (EM), p. [1].

[17]EM, p. [4].

[18]EM, p. [4]. Note: Anti-Slavery Australia argued that this interpretation does not accord with the objectives of the International Labour Organization Convention No. 138: Convention concerning Minimum Age for Admission to Employment (ILO Convention 138) or Australia’s international human rights obligations. That convention encourages member states to set a minimum age for admission to employment or work that is not less than 15 years. See: Anti-Slavery Australia, Submission 8, pp.6–7.

[19]Proposed subsection 54(1) of the bill. Note: the EM explains that this provision provides 'clarity as in other situations unrelated to this Act packaging may be considered part of the product’, see: EM, [p. 4].

[20]Proposed subsection 54(2) of the bill.

[21]Proposed subsection 55(2) of the bill.

[22]Proposed paragraph 55(1)(a) of the bill.

[23]Proposed paragraphs 55(1)(b) and (c) of the bill.

[24]Proposed paragraphs 55(1)(d) of the bill.

[25]Proposed paragraph 55(1)(e) of the bill.

[26]Proposed subsection 53(3) of the bill. Note: a relevant court would be either the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2), see: proposed subsection 57C(3) of the bill.

[27]Proposed subsection 53(3) of the bill.

[28]Proposed subsection 53(3) of the bill.

[29]Proposed subsection 53(3) of the bill.

[30]Proposed subsection 53(3) of the bill.

[31]Proposed section 51B of the bill.

[32]Proposed subsection 56(1) of the bill.

[33]Proposed subsection 56(2) of the bill.

[34]Proposed subsection 56(2) of the bill.

[35]Proposed paragraph 56(3)(a) of the bill.

[36]Proposed paragraph 56(3)(b) of the bill.

[37]Proposed paragraph 56(3)(c) of the bill.

[38]Proposed subparagraph 56(3)(d)(i) of the bill.

[39]Proposed subparagraph 56(3)(d)(ii) of the bill.

[40]Proposed subparagraph 56(3)(d)(iii) of the bill. Note: as defined in s. 137.1 of the Criminal Code Act1995 (Criminal Code).

[41]Proposed subparagraph 56(3)(d)(iv) of the bill. Note: as defined in s. 137.2 of the Criminal Code.

[42]Proposed subparagraph 56(4) of the bill.

[43]Proposed subsection 57(1) of the bill.

[44]Proposed subsection 57(2) of the bill. A note in the bill suggested that the actions could include 'a requirement to change suppliers for goods of the same kind or a requirement that the goods of the same kind do not contain a particular material’.

[45]Proposed paragraph 57(3)(a) of the bill.

[46]Proposed paragraph 57(3)(b) of the bill.

[47]Proposed paragraph 57(3)(c) of the bill.

[48]Proposed subparagraph 57(3)(d)(i) of the bill.

[49]Proposed subparagraph 57(3)(d)(ii) of the bill.

[50]Proposed subsection 56(4) of the bill.

[51]Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny Digest 1 of 2024, 18 January 2024, p.29.

[52]Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report: Report 14 of 2023, 19December 2023, p. 3.

[53]Scrutiny of Bills Committee, Scrutiny Digest 1 of 2024, 18 January 2024, p. 29; PJCHR, Human rights scrutiny report: Report 14 of 2023, 19 December 2023, p. 3.

[54]See, for example: Dr Katherine Christ and Professor Roger Burritt, Submission 1, p. 2; Be Slavery Free, Submission 3, p. 11; Walk Free, Submission 4, p. [1]; Pillar Two, Submission 5, p. 5; Dr Marinella Marmo and Dr Rhiannon Bandiera, Submission 6, p. 1; National Retail Association (National Retail), Submission 7, p.5; Anti-Slavery Australia, Submission 8, p. 2021; Fair Futures, Submission 9, p. 1; The SlaveCheck Foundation (SlaveCheck), Submission 10, p. 10.

[55]See, for example: Walk Free, Submission 4, p. [3]; Pillar Two, Submission 5, p. 8; Anti-Slavery Australia, Submission 8, p. 5.

[56]EM, p. 2.

[57]Dr Christ and Professor Burritt, Submission 1, p. 3.

[58]Dr Christ and Professor Burritt, Submission 1, p. 3.

[59]Dr Christ and Professor Burritt, Submission 1, p. 3.

[60]Dr Christ and Professor Burritt, Submission 1, p. 3.

[61]Global Reporting Initiative, GRI 408: Child Labor 2016, 1 July 2018, p. 4.

[62]International Labour Organization Convention No. 138: Convention concerning Minimum Age for Admission to Employment (ILO Convention 138), Geneva, 26 June 1973, [2022] ATNIF 10, Article 1. Note: On 13 June 2023, Australia ratified ILO Convention 138. It will enter into force 12 months from that date. See: ILO, 'Ratifications for Australia’, https://normlex.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:102544 (accessed 7 May 2024).

[63]ILO Convention 138, Geneva, 26 June 1973, [2022] ATNIF 10, Article 2, para. 3.

[64]ILO Convention 138, Geneva, 26 June 1973, [2022] ATNIF 10, Article 2, para. 4.

[65]ILO Convention 138, Geneva, 26 June 1973, [2022] ATNIF 10, Article 7, para. 1.

[66]Pillar Two, Submission 5, p. 8.

[67]Walk Free, Submission 4, p. [3].

[68]See, for example: Dr Christ and Professor Burritt, Submission 1, p. 3; Department of Home Affairs (Home Affairs), Submission 2, p. 5; Be Slavery Free, Submission 3, p. 11; Walk Free, Submission 4, p.[1]; Anti-Slavery Australia, Submission 8, p. 5; Fair Futures, Submission 9, p. 2.

[69]Home Affairs, Submission 2, p. 5; Be Slavery Free, Submission 3, p. 6; Walk Free, Submission 4, p. [1]; Anti-Slavery Australia, Submission 8, p. 5.

[70]ILO Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, Geneva, 17 June 1999, entry into force 19 December 2007, [2007] ATS 38, Article 3.

[71]Fair Futures, Submission 9, p. 2.

[72]Fair Futures, Submission 9, p. 2.

[73]Fair Futures, Submission 9, p. 2.

[74]National Retail, Submission 7, p. 6.

[75]National Retail, Submission 7, p. 3.

[76]Pillar Two, Submission 5, p. 8.

[77]Dr Marmo and Dr Bandiera, Submission 6, p. 1.

[78]Dr Marmo and Dr Bandiera, Submission 6, p. 5.

[79]Dr Marmo and Dr Bandiera, Submission 6, p. 5.

[80]Dr Marmo and Dr Bandiera, Submission 6, p. 5.

[81]Walk Free, Submission 4, p. [1].

[82]Walk Free, Submission 4, p. [2].

[83]Home Affairs, Submission 2, p. 5.

[84]Home Affairs, Submission 2, p. 6.

[85]Home Affairs, Submission 2, p. 7.

[86]See, for example: Be Slavery Free, Submission 3, p. 3; Pillar Two, Submission 5, p. 7; Fair Futures, Submission 9, pp. 3–4.

[87]Pillar Two, Submission 5, p. 7.

[88]Pillar Two, Submission 5, p. 7.

[89]Pillar Two, Submission 5, p. 7.

[90]Anti-Slavery Australia, Submission 8, p. 14.

[91]Anti-Slavery Australia, Submission 8, p. 14.

[92]Anti-Slavery Australia, Submission 8, p. 14.

[93]Anti-Slavery Australia, Submission 8, pp. 18–19.

[94]Tariff Act of 1930 (US), s. 307.

[95]Be Slavery Free, Submission 3, p. 10. Also see: US Customs and Border Protection (CBP), 'Forced Labor’, 30 April 2024, www.cbp.gov/trade/forced-labor (accessed 7 May 2024).

[96]CBP, 'Forced Labor’, 30 April 2024, www.cbp.gov/trade/forced-labor (accessed 7 May 2024).

[97]Dr Christ and Professor Burritt, Submission 1, p. 2.

[98]Dr Christ and Professor Burritt, Submission 1, p. 2.

[99]Dr Christ and Professor Burritt, Submission 1, p. 2.

[100]Dr Marmo and Dr Bandiera, Submission 6, p. 3.

[101]Dr Marmo and Dr Bandiera, Submission 6, p. 4.

[102]Anti-Slavery Australia, Submission 8, p. 14.

[103]Anti-Slavery Australia, Submission 8, p. 14.

[104]Be Slavery Free, Submission 3, p. 10.

[105]CBP, 'Uyghur Forced Labor Prevention Act’, 26 April 2024, www.cbp.gov/trade/forced-labor/UFLPA (accessed 7 May 2024). Also see: 'US Department of Homeland Security, 'UFLPA Entity List’, 12 August 2023, www.dhs.gov/uflpa-entity-list (accessed 7 May 2024).

[106]Pillar Two, Submission 5, p. 7.

[107]Pillar Two, Submission 5, p. 9.

[108]Pillar Two, Submission 5, p. 9.

[109]Dr Marmo and Dr Bandiera, Submission 6, p. 4.

[110]Anti-Slavery Australia, Submission 8, p. 13.

[111]Anti-Slavery Australia, Submission 8, p. 13.

[112]Be Slavery Free, Submission 3, p. 3. Also see: US Bureau of International Labor Affairs, List of Goods Produced by Child Labor or Forced Labor, 28 September 2022, www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods (accessed 7 May 2024).

[113]Be Slavery Free, Submission 3, p. 3.

[114]Dr Marmo and Dr Bandiera, Submission 6, p. 4.

[115]Dr Marmo and Dr Bandiera, Submission 6, p. 4.

[116]National Retail, Submission 7, p. 11.

[117]Be Slavery Free, Submission 3, p. 10. Also see: European Parliament, 'Products made with forced labour to be banned from EU single market’, www.europarl.europa.eu/news/en/press-room/20240419IPR20551/products-made-with-forced-labour-to-be-banned-from-eu-single-market, 23 April 2024 (accessed 7 May 2024).

[118]European Parliament, 'Products made with forced labour to be banned from EU single market’, www.europarl.europa.eu/news/en/press-room/20240419IPR20551/products-made-with-forced-labour-to-be-banned-from-eu-single-market, 23 April 2024 (accessed 7 May 2024).

[119]European Parliament, 'Products made with forced labour to be banned from EU single market’, www.europarl.europa.eu/news/en/press-room/20240419IPR20551/products-made-with-forced-labour-to-be-banned-from-eu-single-market, 23 April 2024 (accessed 7 May 2024).

[120]European Parliament, 'Products made with forced labour to be banned from EU single market’, www.europarl.europa.eu/news/en/press-room/20240419IPR20551/products-made-with-forced-labour-to-be-banned-from-eu-single-market, 23 April 2024 (accessed 7 May 2024).

[121]Fair Futures, Submission 9, p. 4.

[122]Fair Futures, Submission 9, p. 4.

[123]See, for example: Dr Christ and Professor Burritt, Submission 1, p. 4; Home Affairs, Submission 2, p.3; Be Slavery Free, Submission 3, p. 6.

[124]Fair Futures, Submission 9, p. 3.

[125]Dr Christ and Professor Burritt, Submission 1, p. 4.

[126]Dr Christ and Professor Burritt, Submission 1, p. 4.

[127]Be Slavery Free, Submission 3, p. 6.

[128]Pillar Two, Submission 5, p. 9.

[129]Pillar Two, Submission 5, p. 9.

[130]Walk Free, Submission 4, p. [2].

[131]Walk Free, Submission 4, p. [2]. Also see: Congressional Research Service (CRS), Section 307 and Imports Produced by Forced Labor, 25 October 2023, p. [2].

[132]Walk Free, Submission 4, p. [2]. Also see: CRS, Section 307 and Imports Produced by Forced Labor, 25 October 2023, p. [2].

[133]Walk Free, Submission 4, p. [2]. Also see: CRS, Section 307 and Imports Produced by Forced Labor, 25 October 2023, p. [2].

[134]Be Slavery Free, Submission 3, p. 7.

[135]Anti-Slavery Australia, Submission 8, p. 17.

[136]Anti-Slavery Australia, Submission 8, p. 17.

[137]Be Slavery Free, Submission 3, p. 11.

[138]Be Slavery Free, Submission 3, p. 11.

[139]Pillar Two, Submission 5, p. 8.

[140]Pillar Two, Submission 5, p. 8.

[141]National Retail, Submission 7, p. 9.

[142]National Retail, Submission 7, p. 9.

[143]National Retail, Submission 7, p. 10.

[144]National Retail, Submission 7, p. 10.

[145]National Retail, Submission 7, p. 10.

[146]Home Affairs, Submission 2, p. 3.

[147]Home Affairs, Submission 2, p. 3.

[148]Department of Home Affairs, Submission 2, p. 3.

[149]Department of Home Affairs, Submission 2, p. 3.

[150]Department of Home Affairs, Submission 2, p. 3.

[151]Department of Home Affairs, Submission 2, p. 3.

[152]Department of Home Affairs, Submission 2, p. 3.

[153]Department of Home Affairs, Submission 2, p. 3.

[154]Department of Home Affairs, Submission 2, p. 3.

[155]See, for example: Dr Christ and Professor Burritt, Submission 1, p. 4; Dr Marmo and Dr Bandiera, Submission 6, p. 1; Anti-Slavery Australia, Submission 8, pp. 10–11.

[156]Dr Christ and Professor Burritt, Submission 1, p. 4.

[157]Dr Marmo and Dr Bandiera, Submission 6, p. 4.

[158]Anti-Slavery Australia, Submission 8, p. 10.

[159]Anti-Slavery Australia, Submission 8, p. 11.

[160]Anti-Slavery Australia, Submission 8, p. 11.

[161]National Retail, Submission 7, p. 3.

[162]National Retail, Submission 7, p. 3.

[163]National Retail, Submission 7, p. 3.

[164]Votes and Proceedings, No. 120, 28 May 2024, p. 1558.

[165]Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Act 2024 (Anti-Slavery Commissioner Act), s. 20B and s. 20C.

[166]Anti-Slavery Commissioner Act, para. 20C(1)(b).