Chapter 1Introduction
1.1On 7 December 2023, the Senate referred the provisions of the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 21 February 2024.
1.2On 6 February 2024, the Senate extended the reporting date to 28 February 2024.
1.3The referral of the bill followed a recommendation of the Senate Standing Committee for the Selection of Bills. Appendix 2 to that report listed the following reasons for referral:
Consideration of matters raised by the bill; and
Adequacy of the powers and resources available to the Commissioner under the bill including:
Adequacy of penalties and enforcement mechanisms; and
Need for an anti-slavery commission.
Conduct of the inquiry and acknowledgement
1.4In 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 22 January 2024. The committee received 42 submissions, which are listed at Appendix 1.
1.5The committee held a public hearing in Brisbane on 19 February 2024. A list of the witnesses who appeared at the hearing is at Appendix 2.
1.6The committee thanks those individuals and organisations who made submissions and who gave evidence at the public hearing. It particularly thanks those victim-survivors who gave evidence at the public hearing.
Structure and scope of the report
1.7This report comprises two chapters:
Chapter 1 provides background information relating to the bill, identifies its key provisions, and notes consideration of the bill undertaken by other parliamentary committees; and
Chapter 2 examines some key concerns raised in relation to the bill before setting out the committee’s findings and recommendations.
Background to the bill
1.8Modern slavery encompasses a range of exploitative crimes including trafficking in persons, slavery, and slavery-like practices such as deceptive recruiting, debt bondage, forced labour, and forced marriage.
1.9The Explanatory Memorandum (EM) to the bill states:
Modern slavery practices are major violations of human rights, are serious crimes and can affect any country. Modern slavery has become more prevalent globally and is complex, ever evolving and hidden.
1.10Globally, it is estimated that 50 million people are subject to human trafficking or modern slavery. To put that figure in context, an estimated 15 million people were enslaved during the three centuries that the trans-Atlantic slave trade operated.
1.11The Australian Institute of Criminology attested to the hidden nature of modern slavery in Australia. It estimated that between 2015–16 and 2016–17 there were between 1300 and 1900 victims of human trafficking and slavery in Australia and that, for every victim detected, there are approximately four undetected victims.
1.12According to the Office of the New South Wales Anti-slavery Commissioner there are about 300 cases of modern slavery reported in Australia each year. That office estimated ‘between 80 and 98 per cent of cases go unreported’ in NSW.
1.13According to Walk Free, the number of people living in modern slavery is considerably higher. It estimated in 2021 that ‘there were 41,000 individuals living in modern slavery in Australia’. Forced marriage, including cases that involve children, is the most common form of modern slavery reported to Australian authorities. According to Walk Free:
Forced labour in Australia predominantly occurs in high-risk industries such as agriculture, construction, domestic work, meat processing, cleaning, hospitality, and food services. Many of these industries rely on migrant workers who enter Australia on temporary visas.
1.14Forced labour is also present in Australia’s international supply chains, as WalkFree reported:
Australia annually imports US$17.4 billion worth of products at-risk of being made using forced labour. The top five most valuable at-risk products imported by Australia are electronics, garments, solar panels, textiles, and fish.
Consultations on modern slavery
1.15The EM lists two parliamentary committee inquiries related to modern slavery and an independent statutory review of the Modern Slavery Act 2018 (Modern Slavery Act) that supported the appointment of an Australian Anti-Slavery Commissioner.
Parliamentary Joint Committee on Law Enforcement
1.16On 2 December 2015, the Parliamentary Joint Committee on Law Enforcement (PJCLE) initiated an inquiry into human trafficking. That inquiry lapsed at the end of the 44th Parliament. On 12 October 2016, the PJCLE reinitiated an inquiry into human trafficking.
1.17That inquiry:
…examine[d] Commonwealth law enforcement responses to human trafficking, including slavery, slavery-like practices (such as servitude, forced marriage and forced labour) and people trafficking, to and from Australia…the inquiry involved the examination and consideration of the role of an Anti-Slavery and Trafficking Commissioner in Australia.
1.18In July 2017, the PJCLE tabled its report. In that report, the committee stated that it:
…considers there may be merits in establishing an anti-slavery and trafficking commissioner, independent from government. The committee notes that such an office could be responsible for collecting data, currently lacking, on the prevalence of human trafficking, slavery and slavery-like practices in Australia.
1.19To that end, the PJCLE recommended:
…that the Commonwealth government considers appointing an Anti‑Slavery and Trafficking Commissioner, to:
monitor the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015–19;
provide recommendations, advice and guidance to government agencies on the exercise of their functions;
oversee the effectiveness of Commonwealth legislation and policies intended to reduce the prevalence of human trafficking, slavery and slavery-like practices and respond to corresponding offences; and
collect and request data and information on these practices.
Joint Standing Committee on Foreign Affairs, Defence and Trade
1.20On 15 February 2017, an inquiry into establishing a Modern Slavery Act in Australia was referred to the Joint Standing Committee on Foreign Affairs Defence and Trade (JSCFADT). On the same day, the JSCFADT referred the inquiry to the Foreign Affairs and Aid Sub-Committee.
1.21In December 2017, the JSCFADT tabled its final report for that inquiry. In that report, the JSCFADT assessed ‘the effectiveness of the United Kingdom’s Modern Slavery Act 2015 (UK) and whether similar or improved measures could be introduced in Australia’. The JSCFADT ‘note[d] the strong support for the establishment of an Independent Anti-Slavery Commissioner in Australia, similar to the role established under the UK Act’.
1.22Recommendation 1 of JSCFADT report stated:
The Committee recommends that the Australian Government introduce a Modern Slavery Act in Australia. The Modern Slavery Act should include…provisions for an Independent Anti-Slavery Commissioner.
1.23It also ‘recommend[ed] that the Commissioner be given powers and resources to undertake a range of functions similar to the UK Commissioner, including undertaking a legislated review of the proposed Modern Slavery Act’. Based on the concerns raised by the UK Independent Anti-Slavery Commissioner in evidence to the JSCFADT, it further recommended:
…that the Commissioner role should be established separately from any existing independent statutory bodies, such as the Commonwealth Ombudsman or the Australian Human Rights Commission, and report directly to the Parliament. This separation does not imply that the work of these bodies is any less important than the issues addressed by the proposed Commissioner, but to ensure their ability to function independently.
The Modern Slavery Act 2018
1.24On 1 January 2019, the Modern Slavery Act commenced operation. Under that Act, reporting entities must prepare modern slavery statements. A reporting entity has consolidated revenue of more than $100 million and is an Australian entity, or conducts business in Australia.
1.25The minister is also required to prepare modern slavery statements for all non‑corporate Commonwealth entities.
1.26As the EM explains:
…certain large businesses and other entities in Australia [are required] to make annual public reports on their actions to assess and address modern slavery risks in their operations and supply chains.
1.27Since its commencement, ‘over 9,000 entities have had modern slavery statements published on the Government’s Modern Slavery Statements Register’. Those statements outline the risks of modern slavery present in business operations and supply chains, measures that entities are taking to address those risks, and the effectiveness of those measures.
1.28The Modern Slavery Act required a review to be undertaken into the first three years of its operation. That review was also required to make recommendations about how the operation of the Modern Slavery Act could be improved.
Report of the statutory review of the Modern Slavery Act
1.29On 31 March 2022, the statutory review of the Modern Slavery Act commenced. On 25 May 2023, the Report of the statutory review of the Modern Slavery Act 2018 (Cth) (McMillan report) was published by the Attorney‑General’s Department (AGD).
1.30The McMillan report commented on the strong support from submitters to the review for the establishment of an Anti-Slavery Commissioner:
With only a few exceptions, all submissions expressed strong support for creating the office of Commissioner to play a leadership and regulatory role in overseeing the operation of the Modern Slavery Act. The observation made in nearly all submissions was that the Commissioner should be an independent statutory office that was properly resourced to play an effective role in combating modern slavery.
1.31Many submissions to the review supported the Anti-Slavery Commissioner:
…play[ing] a national coordinating role across all sectors—government, industry, unions, professional associations, civil society, not-for-profit bodies, research institutions and the community. A central role of the office will be to forge agreement and united action on common goals—chiefly the elimination of slavery risks, the protection of vulnerable people, and remediation and victim support.
1.32The McMillan report found that there were three main approaches to ‘the preferred style and priorities of the Commissioner’. Those approaches are summarised as a:
‘soft power’ role in which the Anti-Slavery Commissioner would be primarily involved in public engagement and education, issuing guidance on modern slavery risks, giving sound-out advice, and promoting and facilitating collaboration to improve performance standards.
‘strong regulator’ role in which the Anti-Slavery Commissioner would target non-compliance with reporting standards, hold businesses to account for due diligence and reporting failures, and utilise regulatory sanctions.
‘victim protection and support’ role in which the Anti-Slavery Commissioner ‘could make a profound and humane difference’.
1.33The McMillan report noted that the different ‘approaches are not mutually exclusive’ and that the role of the Anti-Slavery Commissioner is likely to evolve over time in line with ‘the thinking and preferences of the particular occupant of the office’.
1.34The McMillan report recognised that, based on the submissions received during the review process:
There are high expectations that the Anti-Slavery Commissioner will play a pivotal role in lifting both recognition within Australia of modern slavery risks and the standard of business performance in addressing those risks—to ‘move the dial’, as it were. Business, equally, has expressed strong support for the new office and a desire to work closely with it in identifying special risks and devising strategies for responding.
1.35As at 22 February 2024, the government has not yet provided its response to the McMillan report.
Introduction of the bill
1.36In introducing the bill, the Attorney-General, the Hon Mark Dreyfus KC MP, described it as ‘a landmark reform in Australia’s response to modern slavery’. He stated that it ‘delivers on the Albanese government’s election commitment to establish the first Commonwealth Anti-Slavery Commissioner to tackle modern slavery in Australia and abroad’.
1.37The Attorney-General explained ‘[t]here are several pillars to Australia’s response to combat modern slavery underpinned by Australia’s National Action Plan to Combat Modern Slavery 2020–25’. According to the Attorney‑General, the Australian response to combatting modern slavery encompasses:
…comprehensive criminal offences, specialist Australian Federal Police investigative teams, and a dedicated support program for victims and survivors. We have a dedicated human-trafficking visa framework and a human-trafficking and modern slavery research program and associated network. The Modern Slavery Act established a transparency regime to shine a light on modern slavery risks in the supply chains and operations of certain entities carrying out business in Australia.
1.38The establishment of an Anti-Slavery Commissioner would be ‘a pioneering reform and a new, independent pillar in Australia’s comprehensive response to countering modern slavery’.
1.39The Attorney-General indicated that the Anti-Slavery Commissioner would ‘complement Australia’s response to modern slavery by working with others to raise the national profile of the issue of modern slavery’. In addition to that function, the Anti-Slavery Commissioner would:
…work across government, business and civil society to support compliance with the Modern Slavery Act, improve transparency in supply chains, and combat modern slavery in Australia and abroad. Importantly, the establishment of the commissioner provides an independent mechanism for victims and survivors, business and civil society to engage on issues and design strategies to address modern slavery.
1.40The Attorney-General stressed the importance of the Anti-Slavery Commissioner’s independence:
To be effective in their role, it is vital that the commissioner be independent. The bill provides that the commissioner will have discretion in performing or exercising their functions, and will not be subject to direction.
1.41To further support that independence and promote ‘transparency, accountability and the effectiveness of the independent commissioner’s functions’, the Anti-Slavery Commissioner would:
…be required to develop a strategic plan as soon as possible after their commencement that sets out what and how they intend to deliver and monitor the effectiveness of their functions. They will be required to develop an annual report, to be tabled in parliament, outlining their key progress and milestones.
1.42The Attorney-General acknowledged:
The government is committed to strengthening the Modern Slavery Act and is carefully considering the recommendations of the review of the Modern Slavery Act finalised earlier this year. Once appointed, the commissioner will play a key role in shaping implementation of future reforms.
1.43He stated that the bill ‘marks a necessary and critical next step in our fight against modern slavery’. It ‘follows the extraordinary efforts and tireless work of victims and survivors, civil society and industry stakeholders who campaigned for this important milestone’.
1.44The Attorney-General concluded ‘[t]he commissioner will make a tangible, positive impact’.
Key provisions of the Bill
1.45The bill comprises one schedule of amendments: Schedule 1 would insert Part3A—Australian Anti-Slavery Commissioner into the Modern Slavery Act to establish and set out the functions of an Australian Anti-Slavery Commissioner.
1.46Schedule 1 of the bill comprises five Divisions, as follows:
Division 1 – Preliminary;
Division 2 – Establishment, functions and powers of Australian Anti-Slavery Commissioner;
Division 3 – Appointment;
Division 4 – Terms and conditions etc; and
Division 5 – Other matters.
1.47This report focuses on proposed Divisions 2, 3, and 5 of Part 3A of the bill, which contain the provisions addressed by those who provided evidence (see Chapter2).
Establishment, functions and powers of the Anti-Slavery Commissioner
1.48Division 2 of Part 3A of the bill would establish the role of an Australian Anti‑Slavery Commissioner and outline the functions and powers available to them.
1.49The functions of the proposed Anti-Slavery Commissioner would include:
to promote compliance with the Modern Slavery Act;
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;
to support collaboration and engagement within and across sectors in relation to addressing modern slavery;
to support victims of modern slavery by providing information in relation to government and non-government resources, programs and services;
to engage with, and promote engagement with, victims of modern slavery to inform measures for addressing modern slavery;
to support, encourage and conduct education and community awareness initiatives relating to modern slavery;
to support, encourage, conduct and evaluate research about modern slavery;
to collect, analyse, interpret and disseminate information relating to modern slavery;
to consult and liaise with Commonwealth, State and Territory governments, agencies, bodies and office holders on matters relating to modern slavery;
to consult and liaise with other persons and organisations on matters relating to modern slavery;
to advocate to the Commonwealth Government on matters relating to modern slavery, including for continuous improvement in policy and practice;
at the request of the Minister, to provide advice to the Minister on matters relating to modern slavery;
such other functions as are conferred on the Commissioner by this Act or any other law of the Commonwealth;
to do anything incidental or conducive to the performance of any of the above functions.
1.50The Anti-Slavery Commissioner would ‘not investigate, or resolve complaints concerning, individual instances or suspected instances of modern slavery’. The EM explains that this limitation on the proposed powers of the Anti-Slavery Commissioner would exist as:
The Commissioner would not have investigative or coercive powers that would enable them to compel others to provide information needed to investigate complaints or allegations. The investigation of individual cases, or suspected cases, is performed by Australia’s law enforcement agencies.
1.51The Anti-Slavery Commissioner would be able to perform and exercise their functions and powers independently and without ‘direction from anyone when doing so’.
1.52The Anti-Slavery Commissioner’s powers would enable them to work collaboratively with key stakeholders to prevent, identify, and address modern slavery. Their powers would primarily comprise of consultation and liaison activities that ‘drive continuous improvement in strategies’ to address modern slavery and promote compliance with the Modern Slavery Act within government, business, and civil society.
Appointment of the Anti-Slavery Commissioner
1.53Division 3 of Part 3A of the bill would set out the conditions around the appointment of a person to the role of the Anti-Slavery Commissioner.
1.54The Anti-Slavery Commissioner would be selected through a merit-based application process that takes into consideration the applicant’s:
…qualifications, knowledge or experience in one or more of the following fields:
human rights issues relating to business practices;
regulation;
public policy relating to modern slavery or related forms of human exploitation.
1.55The Anti-Slavery Commissioner would be appointed for a fixed term of no more than five years. A person may be appointed as the Anti-Slavery Commissioner for another period of no more than five years but is not eligible to hold the office more than twice. A Commissioner may be reappointed ‘for consecutive terms or non-consecutive terms’.
1.56The EM clarifies that the appointment period of no more than five years ‘would enable the Commissioner to develop their strategic plan and have sufficient time to achieve goals articulated in the plan, evaluate activities, and report on outcomes’.
Information sharing, strategic plan, and annual reporting requirements
1.57Division 5 of Part 3A of the bill would enable the Anti-Slavery Commissioner to request information from Commonwealth agencies. It also articulates the requirements of the office’s strategic plan and annual report.
1.58The Anti-Slavery Commissioner may request information from Commonwealth agencies if they have reason to believe that those agencies have information relevant to the performance of their functions. The Anti-Slavery Commissioner may impose a reasonable time period for the agency to respond to their request for information. The agency would be required to ‘so far as is reasonably practicable, comply with the request’. There may be occasions when:
…it is not reasonably practicable to comply with the request. For example, where the request would substantially and unreasonably divert agency resources from its other operations, relates to an ongoing investigation, relates to information obtained in confidence, or the information requested does not exist.
1.59While the Anti-Slavery Commissioner would not be able to compel the provision of information from state and territory agencies, they may request information from them.
1.60The bill would limit the publication of sensitive information in the Anti-Slavery Commissioner’s strategic plans and annual reports. Sensitive information includes:
…information that would or might prejudice the security, defence or international relations of Australia; prejudice the investigation of, or prosecution of a person for, an offence; or endanger the life or safety of any person. It may include classified or unclassified information.
1.61The Anti-Slavery Commissioner and the agencies providing information to their office would be required to comply with the Privacy Act 1988.
1.62The Anti-Slavery Commissioner would be required to prepare a strategic plan in relation to their functions. The strategic plan would outline the Anti-Slavery Commissioner’s ‘priorities and principal objectives’ for a period of up to three years. In preparing or revising their strategic plan, the Anti-Slavery Commissioner would be required to consult the minister and the secretary of the department. The purpose of that consultation is to align:
…the Commissioner’s activities, as an additional independent pillar in Australia’s response to modern slavery, with the efforts of the Australian Government, where practicable. Facilitating alignment also enables the efficient use of public resources.
1.63The first strategic plan would be required to come ‘into force as soon as practicable after the commencement of [the bill]’. The Anti-Slavery Commissioner would be required to have a strategic plan ‘in force at all times after the first strategic plan comes into force’.
1.64The Anti-Slavery Commissioner would be required to prepare and provide the minister with an annual report that outlines their activities during the financial year. That annual report would need to contain:
(a)the Commissioner’s activities during the financial year in relation to the Commissioner’s functions;
(b)the progress made towards any objectives set out in the strategic plan or plans that were in force during all or part of the financial year;
(c)a description of any milestones in relation to the Commissioner’s activities that were reached during the financial year; and
(d)any emerging issues relating to the Commissioner’s functions.
1.65If the annual report contains sensitive information, the Anti-Slavery Commissioner would be required to ‘prepare and give to the Minister, at the same time as the annual report, a version of the report which does not contain that information’. The Anti-Slavery Commissioner may decide whether the annual report contains sensitive information through their own consideration of the report or through consultation with the minister.
1.66The minister would be required to table the annual report, or the version of it without sensitive information, in both houses of Parliament. The Anti-Slavery Commissioner would be required to publish the annual report, or the version of it without sensitive information, on their office’s website after it is tabled in the House of Representatives.
Examination by other parliamentary committees
1.67When 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).
1.68The Scrutiny Committee and the PJCHR reported that they have no comments on the bill.
1.69The committee notes that the EM recognises that the ‘[b]ill is compatible with human rights because it promotes human rights and, to the extent that measures in the [b]ill may limit human rights, each of these limitations is necessary, reasonable and proportionate’ to achieving the intended outcomes in the bill.
Note on references
1.70In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.