The shackles of modern slavery

A broad number of recommendations to amend the Modern Slavery Act 2018 (Cth) were made in 2023 which are yet to be implemented, including those of the NSW Anti-Slavery Commissioner.

NSW was a pioneer in introducing the Modern Slavery Act 2018 (NSW), which was followed by the Modern Slavery Act 2018 (Cth). NSW also installed Anti-Slavery Commissioner James Cockayne in August 2022 to serve a five-year term.

The Modern Slavery Act 2018 (Cth) implemented a number of vital measures, including the requirement for entities valued at $100 million and over to submit annual, comprehensive reports on their compliance with the Act, but a government review of the Act last year, and Walk Free’s own guidance, recommend tightening the compliance requirements and the penalties for entities that breach their duties under the Act.

Walk Free, the organisation researching and reporting on modern slavery, says that according to global data, in 2021 there were at least 41,000 people living under slavery conditions in Australia. This is potentially a vast underestimate of the true numbers considering the obstacles to reporting, including threats, surveillance, and language barriers.

Modern slavery has been legislated against in Divisions 270 and 271 of the Criminal Code, but there are missing elements. Walk Free has proposed a minimum legal age of 18 for marriage, irrespective of culture, religion or laws that currently allow for marriage of children aged 16 and 17 with court approval.

It has also called for greater financial penalties for individuals and companies that breach the modern slavery laws, and the banning of imported goods made in slavery conditions.

Where modern slavery exists

In Australia, women are the major victims of modern slavery. The predominant form of modern slavery is forced marriage, where the majority of victims are aged under 18 (in some cases as young as 12) and often live in circumstances of restricted movement, financial abuse, and physical or sexual violence.

Forced labour exploitation is also prevalent in farming, construction, domestic work (such as nannying or cleaning), hospitality, and abattoirs. In part, this is a flaw of Australia’s economic reliance on temporary foreign workers and previous systems requiring foreign workers to undertake mandatory seasonal work in agriculture to maintain their visa. In most cases, individuals were deceived during the recruitment process and only realised their true conditions upon arrival in Australia. In many cases, individuals had their identity documents taken, and were held hostage to threats of violence, financial penalties, or communication with their family withheld.

Sexual exploitation of adults trafficked for the purposes of prostitution was also prevalent, with women largely the victims of the legal system too. Between 2005 and 2019, women represented more than half of the convicted offenders of sex trafficking, many of whom had initially been victims of trafficking. Child victims were often identified through the online networks used to send and receive child sexual abuse material, including a majority of Australian men aged 50 – 69, sending payment to facilitate, or travelling overseas to engage in, sexual abuse of children.

Professor Justine Nolan has been Director of the Human Rights Institute since January 2021, and a Professor at the UNSW Faculty of Law for 20 years. She has been at the forefront of reporting on modern slavery and advocating for greater legislative power to address it.

She tells LSJ that “the number of victims of modern slavery in Australia vary vastly. In the last global survey by Walk Free, it was estimated at 41000. What we know is this is a small portion of what’s actually out there, but we know that from official figures from federal police, these are vastly underestimated.”

Walk Free’s Global Slavery Index puts the number of victims of modern slavery at 49.6 million worldwide, and estimates that the economic value of imports created under slavery conditions to be between $US468 to $US500 billion. Industries producing and exporting electronics, fashion garments, cocoa and agricultural goods are most at risk.

Strong legislation strong but penalties lack power

The National Action Plan to Combat Modern Slavery 2020-25 was launched in December 2020, building upon the Modern Slavery Act 2018 and the previous five year plan from 2015 to 2019.

In early December 2023, the federal government announced $12.1 million in funding over five years for the new Forced Marriage Specialist Support Program, and $2.2 million in further funding to extend the Speak Now project, which is delivered by Anti-Slavery Australia.

The Forced Marriage Specialist Support Program provides services to those experiencing, or at risk of forced marriage, including access to counselling and emergency accommodation where required. Both initiatives support the priority of supporting children and young victims-survivors according to the First Action Plan under The National Plan to End Violence against Women and Children 2022, which also aligns with the National Action Plan to Combat Modern Slavery 2020-25.

Presently, victims of modern slavery depend on contacting and engaging with police to report their conditions and ultimately provide evidence to a court. Doing so, in some cases, may result in their own prosecution for conduct they committed while under slavery conditions.

The submission from the NSW Anti-Slavery Commissioner provided the Commonwealth with features of the NSW framework, established in January 2022, that strengthened compliance and the onus on entities to combat slavery risks. These included imposing a legal duty on agencies to take reasonable steps not to procure goods and services produced under modern slavery conditions (according to the Public Works and Procurement Act); and implementing independent modern slavery audits of agencies (currently undertaken by the NSW Auditor-General).

Review of the Modern Slavery Act 

Every three years, a statutory review of the Act is conducted to assess its efficacy. The Review Report by Professor John McMillan issued in 2023 made a number of recommendations, including lowering the threshold for which companies must report under the Act from $100 million in consolidated revenue to $50 million.

This change would require approximately 2,400 entities to report on their compliance with the Act, beginning in late 2024. Reports cover assessment of risks and the method of identifying risks, measures taken to address these risks, and due diligence processes. The Review Report proposed that reporting also include what means staff have to report risks or incidences of modern slavery, how complaints and incidents are addressed, and what internal and external consultation is engaged in modern slavery risk mitigation and management.

At present, the only real penalty for entities that don’t comply with the Act is a public shaming in the form of having their failure to comply made public knowledge via the Minister. Considering the vast extent of modern slavery in Australia and internationally, the Review Report justifiably proposes offences for breaches of the Act, including failure to report according to the guidelines, falsifying information, and failing to have a due diligence process.

As McMillan wrote in the Review Report of 2023, imposing penalties is standard practice in existing Australian statutes:

“The reason for introducing penalties into the Act can be shortly stated. It is incongruous that the Modern Slavery Act imposes a reporting duty as regards a matter of fundamental global human rights importance but contains no robust procedure to ensure that duty is performed. The experience to date in Australia has not borne out the promise that good faith and the fear of adverse publicity are enough to ensure that statements will be submitted by all entities that are required to do so. It is customary in Australian legislation that duties to submit reports or information to government are accompanied by offence provisions for failing to report or for submitting false information. There are countless offence provisions of that kind in Australian statutes.”

Walk Free has proposed the Modern Slavery Act 2018 implement financial penalties for non-compliance with the legislation; enforce compliance measures under 16A of the Act (including publishing a list of non-compliant companies); and introduce a mandatory human rights due diligence requirement.

They have also called for whistleblower protections to be introduced to enable migrant workers to report exploitation without risking their visa, and that there is a ban on importation of goods made with forced labour, requiring support to producing countries to address forced labour issues.

Nolan says, “there are three main recommendations to draw out of about 30 from from McMillan’s very thorough report.”

“Firstly, there ought to be a central person who has oversight in Australia, and that’s the Anti-Slavery Commissioner. The bill has been introduced, there’s a senate inquiry and we expect a government response soon. Id’ be surprised if we don’t get a response within a couple of months, since the government has been sitting on McMillan’s report for a year now without response.”

She continues, “There are questions around how that position is substantive rather than purely a figurehead, and how their role should be resourced. We would argue that the current budget, which is about $8 million over four years, will be insufficient. We need someone who can engage with business and government, refer on complaints and investigate.”

“The other major recommendation that was made in the review was around looking beyond simply reporting to incorporate a human rights due diligence obligation within the law. And so this is the idea that companies are not just simply reporting on what they’re doing, but they’re actually undertaking action.”

This would require “driving some sort of transformative changes in the way that corporations deal with labour abuses in their supply chain. We’re not going to solve this problem by just sort of tweaking around the edges. So, a due diligence obligation would require these companies to take action to address modern slavery, not just report on what they’re doing. And that was a recommendation that was in the report and I think it’s really key to strengthening the law in practical terms.”

Thirdly? Penalties.

“For those who are not filing reports or deliberately filing misinformation, then there would be penalties applied,” Nolan says.

“So, it’s a penalty, a sanction to ensure the companies take the law seriously. It won’t fix all the things that are wrong, but I do think it’s a necessary but not sufficient step.”

Last November, the Modern Slavery Amendment (Anti-Slavery Commissioner) Bill 2023 was introduced in the House of Representatives, consequent to a review of the Modern Slavery Act 2018.  The Commissioner would be independent to the government, with the remit to oversight of Australia’s international obligations. The Commissioner would not have any investigative or law enforcement powers, but a strong element of their role will be to promote and educate businesses and organisations on their due diligence and need to report on anti-slavery policies and actions.

Attorney General Mark Dreyfus said in a press release, “The Anti-Slavery Commissioner Bill 2023 is a landmark reform which delivers on our election commitment to add a new, independent pillar to Australia’s comprehensive response to modern slavery.”

In the same press release, Minister for Social Services Amanda Rishworth said, “The Australian Government estimates there are at least 1900 modern slavery victims in Australia … To ensure there are a diverse range of supports available, the Forced Marriage Specialist Support Program builds on the Government’s existing Support for Trafficked People Program to ensure assistance is available to all victims of human trafficking, forced marriage, slavery, and forced labour.”

NSW anti-slavery laws: an Australian first

In January this year, the NSW Anti-Slavery Commissioner brought into effect a framework to guide more than 400 public entities meet their modern slavery due diligence and reporting obligations under NSW law. The Framework affects more than $42 billion of public spending in NSW this year.

Included is a comprehensive guide for entities to meet their annual reporting obligations, including transparency around their supply chains and operations. The NSW Auditor-General is empowered to conduct independent modern slavery audits of certain NSW government agencies at their discretion.

The introduction of a federal Anti-Slavery Commissioner was welcomed by Dr Cockayne in December, when he issued a press release that nodded to the federal plan to enable the Commissioner to engage with victims of modern slavery to better inform how the government responds to modern slavery.

He said, “Involving people with lived experience in efforts to combat modern slavery will be critical to those efforts’ success. Here in New South Wales, we have worked closely with people with lived experience since I took up the role in August 2022. This includes employing a survivor within my team, and the active involvement of survivors in my Advisory Panel. Their active participation is transforming efforts to combat modern slavery in NSW.”

Accessibility to justice requires trust

Nolan says, “It’s important to have a mechanism that people are able to use in terms of accessibility, awareness of the mechanism, and trust from workers in it. We can have all the apps in the world, but if workers don’t understand where their complaint is going to or what actions will be taken as a result, it isn’t valuable.”

The current system requires victims or whistleblowers to notify the police.

Nolan says, “The federal police have put in a lot of work over the last couple of years doing educational outreach within the force and outside of it. However, often people come from cultural backgrounds where there is little trust in the police.”

Ultimately, says Nolan, “there’s been a number of research projects over the last two years examining the efficacy of the Modern Slavery Act, particularly in business and human rights. What we found is that we’ve got a law that’s been very useful in raising awareness, but it’s not creating substantive change. So, we have to think about how we develop a more effective policy, and how we strengthen that law, provide more oversight, and then integrate these practices within business. It’s no use just having a law for a law’s sake, with a lot of lovely reports but no substance. You’ve got to have a law that’s effective.”