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NSW's Anti-slavery Commissioner James Cockayne reflects on the privileges and responsibilites of his role, and explains why as many as 98 per cent of modern slavery cases go unreported.

There is currently a plan to introduce a federal Anti-Slavery Commissioner. How do you envision working with this person to share intelligence, experience and to strengthen the goals of state and federal laws to eradicate modern slavery?

I welcome the proposal to create the role of Australian Anti-slavery Commissioner. There will be clear complementarity and synergy between the federal and NSW roles. The federal Anti-slavery Commissioner will play a critical role in raising awareness of modern slavery around the country, engaging federal government agencies, and engaging business. Prosecution of modern slavery offences is largely a matter for federal authorities. The NSW role adds a focus on work by state and local level actors to strengthen prevention, and to provide support and assistance to people with lived experience. The NSW Commissioner also works with public entities to address modern slavery risks in their operations and supply-chains. I envisage working closely with any Australian Anti-slavery Commissioner to discharge our complementary statutory functions, through cooperation on strategic, policy, programming and operational matters.

Has NSW had any substantiated cases of modern slavery since you began your role, and if so, what legal measures have been taken to hold them accountable?

Over 60 people have presented to my office in the 20 months since I took office, seeking support and assistance as victims of modern slavery. Under the legislation, we provide support and assistance including referrals to a wide variety of medical, legal, housing, counselling and other services. We also refer matters to child protection, law enforcement and workplace health and safety authorities. The Modern Slavery Act 2018 (NSW) does not give me investigative powers in individual cases. Our referrals have however contributed to investigations led by entities including the NSW Police, Australian Federal Police, Fair Work Ombudsman, SafeWork NSW, Office of Industrial Relations, Australian Maritime Safety Authority, and federal government Departments, to legal complaints, and to civil law suits.  Survivors that we have supported have also brought claims that have led to tens of thousands of dollars in victim support payments.

Tell us about working with victim-survivors of modern slavery in NSW and why this is a fundamental part of combating modern slavery?

Modern slavery is a theft of a person’s agency. When we provide support and assistance to survivors, we must do so in a way that restores their agency. This means giving them a voice in the design, delivery and oversight of the policies and programmes that affect them – with appropriate safeguards in place along the way. To help make this happen, the first person I invited to join my office was a Lived Experience Adviser, a survivor of modern slavery. We also have 6 people with declared lived experience of modern slavery in the 29-person Advisory Panel that provides me advice and support. And we work with people with lived experience on projects addressing everything from healthcare to modern slavery risks in solar supply-chains.

It’s not always easy for survivors to play these roles. They may need adjustments and support, as other workers sometimes do. By providing appropriate care, support and assistance, we can help survivors develop the capabilities they need to recover from their experiences of modern slavery and flourish in the future.

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James Cockayne, Anti-slavery Commissioner for New South Wales

There is a real fear from victims – especially where they are at risk of losing their Visas, or experiencing financial or physical abuse – that reporting their circumstances will result in their own punishment. How is this addressed by laws or policy in NSW to ensure victims are not also penalised if they are being used by criminals to take the blame for trafficking or worker exploitation?

Fear of retaliation in various forums is a very real bar to reporting by victims of modern slavery. Retaliation may appear to come from the hands of the perpetrator, or from government bodies, including the criminal justice system.

At present, NSW and federal law do not include a legislative defence for victims and survivors that aligns with the internationally-recognised non-punishment principle. However, the federal Attorney General’s Department has indicated that consideration of a new statutory defence should form part of the targeted review of support and legislative protections, defences and remedies available to modern slavery victims and survivors under Action Item 26 of the National Action Plan to Combat Modern Slavery 2020-2025. It also recommends guidance and training for criminal justice actors.

In practice, however, the AFP and CDPP do give partial effect to the principle, including through the Prosecution Policy of the Commonwealth, which requires close consideration of the interests of the victim and survivor, and that prosecutions are to be in the public interest. The CDPP may issue an undertaking not to prosecute in circumstances where a person is giving evidence in proceedings against another person.

There are of course other ways in which victims may experience what they feel is punishment or retaliation, such as loss of visa status, removal from the country, or loss of access to Medicare as a result of loss of visa status. The federal government has made several recent improvements to visa laws that will reduce some of these risks, but further training, particularly around culturally competent identification of victims of modern slavery, especially in the forced labour context, might be useful.

What areas of modern slavery in NSW have been the most difficult to investigate or substantiate, and what are the obstacles?

By our estimation, in NSW between 80 and 98 per cent of modern slavery cases go unreported. Last year there were 340 cases reported to the Australian Federal Police nationally, but just two convictions.  Modern slavery is a crime that is usually hidden from view, which means we need to pay a lot of attention to reporting pathways and improve the ability of a range of frontline workers to better identify those who need support.

While the NSW Anti-slavery Commissioner does not have investigative powers, the Modern Slavery Act 2018 (NSW) does afford me various functions that require detailed consideration and analysis of modern slavery in NSW. Through over 10 regional and rural visits in my 20 months in the role, I have learned about the huge variance in experiences of modern slavery in NSW. It ranges from forced marriage of young women and girls to exploitation of temporary migrant workers. It arises in sectors as varied as agriculture and commercial sex work, cleaning services and textile manufacturing. It always involves vulnerable people. It is their vulnerability that makes tackling modern slavery so challenging: victims are unlikely to be able to come forward and speak up, face significant risks of retaliation against them or their loved ones, and may struggle to recover even after they exit a situation of exploitation. Being tasked to tackle these challenges is a huge privilege, but one that brings with it great responsibility.