Chapter 2Key issues
2.1Most submitters supported the establishment of an Australian Anti-Slavery Commissioner (Anti-Slavery Commissioner).
2.2Some submitters suggested that the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 (the bill) could be amended to:
clarify the independence of the Anti-Slavery Commissioner;
modify and add to the functions of the Anti-Slavery Commissioner to strengthen their role in addressing modern slavery; and
ensure that the guidance provided by the Anti‑Slavery Commissioner is tailored to specific industries.
Independence of the Anti-Slavery Commissioner
2.3The University of Sydney questioned how the amendments could reflect on the independence or perceived independence of the Anti‑Slavery Commissioner.
2.4The NSW Anti-slavery Commissioner stated:
In a Westminster system it’s almost inevitable that independent statutory officers will rely on the executive for funding. That creates an inevitable dependence. To counteract this it’s important that these officers can engage directly with parliament. For example, by presenting reports under their own motion, as I can in New South Wales. The bill currently doesn’t give the commissioner at the federal level this power, nor does it give the federal commissioner the ability that I enjoy in New South Wales to engage a standing committee in parliament dedicated to these issues. My submission suggests the bill be amended to create such a standing committee to demonstrate the parliament’s ongoing commitment to these issues and, critically, to give the Australian Anti-Slavery Commissioner a public policy partner in parliament to innovate and drive these matters forward over time.
2.5The University of Sydney ‘emphasise[d] that it is vital that the Commissioner is independent and that the role function to freely criticise the Government’. It also suggested that an independent Anti-Slavery Commissioner should be able ‘to provide advice to the Minister or Government’ on their own motion.
2.6Professor Paul Redmond AM shared this view:
I certainly would want to create an own-power initiative in the commissioner to advise the minister, and I’d go further and require that the government give a public response to the commissioner’s reports. I’d go further also in following the New South Wales act’s section 19(4) and having a provision empowering the commissioner, on its own initiative, to issue reports to parliament.
2.7The SlaveCheck Foundation (SlaveCheck) similarly argued that the Anti‑Slavery Commissioner:
…cannot be handcuffed or subservient to a minister or a department out of fear or favour. You need someone in this role who’s going to be gutsy and call a spade a spade and who’s going to save the victims and do what’s necessary to do it. Anyone that can be intimidated, under the leadership of the government or a minister, is never going to let the truth come out because what they come out with will always be shaped by them.
2.8The Law Council indicated there are concerns that the ‘requirement to consult on the strategic plan has the potential to curtail or limit the independence of the Commissioner’. It recommended the bill ‘be amended to state plainly that the Commissioner ultimately retains discretion over the content of the strategic plan’.
2.9Similarly, the University of Sydney was concerned that the consultation requirement ‘may affect the Commissioner’s ability to operate independently’. It recommended the bill be amended to remove any requirement on the Anti‑Slavery Commissioner ‘to consult with the Minister and Secretary of the Department on the Commissioner’s strategic plan’. The University of Sydney clarified this would:
…not preclude the commissioner from consulting with government, period, and sharing its strategic plan. It’s really to address the issue of perception of interference…and ensure that the matters that are included in the strategic plan, which the bill allocates clear requirements for, including priorities, are purely defined by the commissioner and their office and their function.
2.10Professor Redmond proposed a third option:
I think it’s valuable and reasonable for the commissioner to consult with the secretary and the minister, but I think it would be useful to add a note for more abundant precaution…to make clear that the requirement to consult on the strategic plan doesn’t require the approval of either to the plan. That, to me, seems to be an appropriate way of protecting independence as well as securing the comity and information exchange between involved parties.
2.11The AGD submitted that the Anti-Slavery Commissioner’s independence is ‘critical to advocate to Government on modern slavery issues including continuous improvement in policy and practice’.
2.12It noted that:
At the request of the Minister, the Commissioner could also provide independent advice on matter relating to modern slavery. The Commissioner would provide advice in so far as it is reasonably practicable to do so.
2.13The AGD pointed out that the Anti-Slavery Commissioner would be able to independently contribute to future reforms of the Modern Slavery Act:
Other reforms relevant to modern slavery are currently being considered by government. In particular, the government is currently considering the recommendations of the review of the Modern Slavery Act for response this year. Once appointed, the commissioner will play a key role in shaping the implementation of those future reforms.
2.14The AGD stated:
The Commissioner would be established as an independent statutory office‑holder, as independence will be key to their effectiveness in the role. The Bill provides that the Commissioner would have discretion in performing or exercising their functions, and would not be subject to direction from anyone when doing so.
The divulgence of sensitive information that could prejudice international relations
2.15The bill contains provisions that would prevent the Anti-Slavery Commissioner from publicly divulging ‘sensitive information’ in their strategic plans and annual reports (see paragraph 1.60). For the purposes of the bill, sensitive information includes information that ‘would or might prejudice the…international relations of Australia’.
2.16The Law Council saw the Anti-Slavery ‘Commissioner’s strategic plan to be key to the office’s independence’. It reported that practitioners raised concerns about the ‘requirement to consult on the strategic plan has the potential to curtail or limit the independence of the Commissioner’.
2.17The New South Wales Anti-slavery Commissioner (NSW Anti-slavery Commissioner) noted that the inclusion of the possibility of prejudicing the international relations of Australia through the disclosure of information:
…actually raises the question of whose prerogative it is to determine whether something is sensitive information. Under the bill as drafted, it’s actually the prerogative of the commissioner. It lies with the commissioner to determine whether this is sensitive information. The question is, what if theyget that wrong or what if the government doesn’t like their decision on that? Then you go to the various powers that the government has to control the behaviour of the commissioner. They could recommend to the Governor-General that she or he be terminated for misbehaviour or for the other reasons provided in the bill. I find that a stretch, depending on what the nature of the incident were. Or they could control their funding. I think that brings you to the real question of independence: the funding relationship.
2.18The NSW Anti-slavery Commissioner pointed out:
…the bill only speaks to the inclusion of sensitive information in the strategic plan and the annual report. It doesn’t speak to any other speech by the Anti-Slavery Commissioner. There is nothing in the bill as I read it that constrains the Anti-Slavery Commissioner from saying what they want to in other contexts.
2.19The Law Council argued ‘there’s every reason for independence to be supported and strengthened’. It suggested that the provision around the inclusion of sensitive information in the Anti-Slavery Commissioner’s strategic plan could be clarified. That provision:
…says, ‘A strategic plan must not include sensitive information.’ It becomes a matter then of ‘sensitive to who’—sensitive to the government or sensitive to the commissioner? Again, there probably needs to be more clarity around that so the commissioner knows exactly what the commissioner is able to report on, and maybe there needs to be some expansion of what is sensitive information for the purpose of [the provision].
2.20The Law Council recommended the bill ‘be amended to state plainly that the Commissioner ultimately retains discretion over the content of the strategic plan’.
2.21The AGD provided additional context around the rationale for controlling the divulgence of sensitive information that may prejudice the international relations of Australia. It explained that in the course of their work, the Anti‑Slavery Commissioner may be privy to information sourced from Australian or international government agencies. The AGD indicated that provisions related to the divulgence of sensitive information are intended to give the Anti-Slavery Commissioner:
…a role to identify what information would fall into ‘sensitive information’ and then how that would not be specifically included in their strategic plan or in that public version of the annual report. So, it was more around the information that governments may share with the commissioner to execute their functions rather than anything broader.
Functions of the Anti-Slavery Commissioner
2.22Some submitters raised concerns that the proposed functions of the Anti-Slavery Commissioner are inadequate to effectively address modern slavery and should be strengthened.
2.23Baptist World Aid Australia opined that reporting entities should be required to do more than just report instances of modern slavery:
Modern slavery reporting alone will not deliver the systemic change needed to combat modern slavery and forced labour. Due diligence must include a duty for entities to identify, prevent, mitigate and remediate modern slavery…this supports the need for the Commissioner to be given appropriate independence and authority for oversight, investigation and enforcement.
2.24The Australian Council of Trade Unions (ACTU) criticised the bill for:
…fall[ing] far short of what is required to ensure an effective response to modern slavery. It proposes a piecemeal response with the creation of a figurehead primarily exercising education, promotion and awareness-raising functions, with a very small budget to carry out this role. This is completely inadequate to deal with the scope and severity of the problem of modern slavery.
2.25The Maritime Union of Australia (MUA) similarly argued that the bill should engage more with the recommendations of the Report of the statutory review of the Modern Slavery Act 2018 (Cth) (McMillan report):
…the Bill is inadequate in its present form…[and] that the Bill’s passage in its present form be rejected, that it be returned to the Minister requesting it be re-drafted and re-presented to the Parliament in ways that fully address the recommendations in the Review of the Modern Slavery Act 2018 and the findings in the Targeted review of Divisions 270 and 271 of the CriminalCode.
2.26The ACTU agreed that the recommendations of the McMillan report shouldbe taken into consideration when designing the functions of the Anti-Slavery Commissioner:
…there are some key reforms required for the act and that it needs to be considered holistically with the role of the Anti-Slavery Commissioner. We’d like to see a response to the review recommendations, particularly to those regarding due diligence and penalties, because they will necessarily change the commissioner’s role.
2.27In a similar vein, Professor Paul Redmond AM opined the future development of the role appears to be ‘left to future political negotiation rather than legal specification’.
2.28He proposed that that the Anti-Slavery Commissioner would need to be alert to developments in the modern slavery field not just in Australia, but internationally. Professor Redmond argued that as a precondition for all its other functions:
…the commission needs to develop a reservoir of deep knowledge of modern slavery, including from victims in Australia but especially in offshore supply chains, where external visibility is least in the distant factories and the agriculture and extractive industries of low labour cost, low social protection countries to which we are all linked by consumption and investment.
2.29Based on interviews it conducted with ‘six survivors of modern slavery in Australia’, Fair Futures observed:
…the bill does not address several issues raised by survivors as vital to the effectiveness of an Anti-Slavery Commissioner. Given their views are informed by lived experience of this crime in the Australian context and responses to it, their views offer valuable insights into how the Commissioner role could be strengthened.
2.30Professor Larelle Chapple conceived of the bill as part of a ‘journey’ that began with the Modern Slavery Act:
…Australia is on a journey here with this legislation. Of course, we were profoundly pleased to see the Modern Slavery Act 2018. That was the start. Now we have an amendment with a commissioner, and now we encourage a journey. The commissioner has these very proactive functions at the moment…but we also see a trajectory here where the commissioner’s role can mature into something that is much more about compliance, because business says that too. It may seem strange that business wants to be regulated, but that’s what business says too.
2.31In relation to the functions of the Anti-Slavery Commissioner, the AGD indicated the role could ‘evolve over time…[and the office] would be established with a view to considering further functions as necessary to support Australia’s efforts to end modern slavery’. The bill would:
…establish the Commissioner with critical core functions to enable the vital role of a Commissioner to be established without delay. A Commissioner is needed now to undertake advocacy, stakeholder engagement, and awareness-raising, to further strengthen Australia’s modern slavery response. The Commissioner’s establishment is also important to informing further steps in Australia’s broader response to modern slavery.
2.32It also explained that the government’s response to the McMillan report could inform the future functions of the Anti-Slavery Commissioner:
…seven out of the 30 recommendations included references to the functions that an antislavery commissioner could take on. I wouldn’t say it’s the case that the functions in the bill at the moment would implement all the recommendations in the Modern Slavery Act report. Depending on how the government wanted to take forward those recommendations, the role of the commissioner would evolve over time.
Monitoring and enforcing compliance with the Modern Slavery Act
2.33According to the Human Rights Law Centre (HRLC) the lack of an enforcement mechanism is one of the main criticisms of the Modern Slavery Act. It noted that the reviews into the Modern Slavery Act 2018 (NSW) (NSW Modern Slavery Act) and the Modern Slavery Act 2015 (UK) recommended that enforcement mechanisms be introduced to encourage compliance with modern slavery legislation.
2.34The ACTU argued:
The [Modern Slavery] act is based on the flawed assumption that reporting alone will improve business practices and create a race to the top, and that businesses failing to take action will be penalised by the market and consumers. This approach effectively outsources the enforcement to unions, civil society, consumers and shareholders to pressure companies to do the right thing, instead of the Australian government enforcing compliance through penalties and strict oversight.
2.35The HRLC similarly observed that the Modern Slavery Act is not focussed ‘on criminal investigations and enforcement but rather on driving changes in corporate behaviour in order to prevent modern slavery from happening in the first place’. In its view, the Anti-Slavery Commissioner should have the power to issue penalties and infringement notices.
2.36Ms Fiona McLeod AO SC submitted the Anti-Slavery Commissioner should have the power to:
monitor compliance with the Modern Slavery Act;
audit or undertake assurance checks and publish the results of those checks;
share relevant information with law enforcement agencies and the National Anti-Corruption Commission and refer matters to them; and
identify shortcomings and poor practices and develop and promote best practices.
2.37The HRLC opined the current monitoring system has the AGD checking:
…whether companies are submitting statements and whether they’re filling in the appropriate fields. But in order to get behind whether the statements are providing accurate information about what companies are actually doing, which is really the more important point in our view—compliance in substance rather than just technical compliance—we think that it’s more appropriate that that sit with the commissioner.
2.38Dr Shakoor Ahmed stated that an examination of some modern slavery statements shows that ‘in some instances, they are mostly ceremonial rather than substantive’. In his view, an Anti-Slavery Commissioner would have ‘some kind of real power to make companies accountable’.
2.39Providing the Anti-Slavery Commissioner with substantive compliance monitoring powers is important as:
That’s when we will start to get the actual heart of whether companies are actually doing what they are saying they’re doing in these statements, which is very difficult to tell on the basis of the provision of information alone.
2.40According to the HRLC, the Modern Slavery Business Engagement Unit (MSBEU) in the AGD is better placed to carry out the technical compliance monitoring because it is ‘not going to be necessarily the best use of the commissioner’s time to be reviewing hundreds of statements, or thousands of statements potentially, for technical compliance’.
2.41Submissions from unions pointed out that regulators in some foreign jurisdictions have stronger enforcement powers than those proposed in the bill. For example, under the Act on Corporate Due Diligence Obligations for the Prevention of Human Rights Violations in Supply Chains (Ger), officers working for the German Federal Office for Economic Affairs and Export Control:
…can receive and assess company reports, adopt necessary measures to detect, end and prevent violations of the law and may summon people, request information and enter business premises. They may do so ex officio or upon request by persons with a substantiated claim that their rights have been, or are at imminent risk of being, violated by a company as a result of not fulfilling its obligations under the law.
2.42Similarly, the Norwegian Act Relating to Enterprises’ Transparency and Work on Fundamental Human Rights and Decent Working Conditions (Nor) grants the National Consumer Authority the power to impose penalties for non-compliance with the act. Those ‘[p]enalties include fines, prohibitions, injunctions, and enforcement or infringement penalties’.
2.43The Law Council supported an amendment to the Modern Slavery Act to introduce ‘civil penalties for non-compliance with reporting requirements in certain circumstances, as well as additional regulatory tools to aid compliance’. It suggested that while the Anti-Slavery Commissioner may be ‘the appropriate entity’ to wield those compliance powers, ‘there can be difficulties with the same person having both advisory and enforcement functions’. The Law Council ‘note[d] that the Australian Information Commissioner is an example of a statutory office-holder with guidance, monitoring and advice functions, as well as regulatory powers’.
2.44In a similar vein, the Australian Catholic Anti-Slavery Network (ACAN) recommended the bill be amended ‘to enable the Anti-Slavery Commissioner to drive best practice in public procurement’. To that end, the NSW Anti-slavery Commissioner could provide a useful model. Under the NSW Modern Slavery Act, the NSW Anti-slavery Commissioner is required to:
…regularly consult with the Auditor-General and the NSW Procurement Board to monitor the effectiveness of due diligence procedures in place to ensure that goods and services procured by government agencies are not the product of modern slavery.
2.45Professor Ellie Chapple and Dr Shakoor Ahmed pointed out that New South Wales and Western Australia ‘have integrated modern slavery prevention clauses in their public procurement’. They suggested ‘this practice should also be adopted at the federal level’.
2.46The ACAN agreed that the Anti-Slavery Commissioner should be empowered to ‘keep the public sector accountable for its operations and supply chains’. It reminded the committee ‘the purchasing power of the largest procurer of goods and services, the Australian public sector, has yet to be harnessed in this area’.
2.47The Business Council of Australia opposed the introduction of civil penalties and sanctions on businesses:
The current mechanisms, including the Minister’s capacity to publicly identify non-compliant companies, have proven effective in incentivising appropriate conduct. The BCA advocates for maintaining a non-punitive, educative approach, emphasising the need for clear communication of reporting obligations and support for businesses in fulfilling these requirements.
2.48The Property Council of Australia similarly argued the Anti-Slavery Commissioner should not be ‘regulating business compliance with the reporting requirement’. Instead, the Anti-Slavery Commissioner should ‘focus on providing advice and support to business, in the role of ‘critical friend’, as organisations progress in implementing policy responses’.
2.49Pillar Two noted that if the Anti-Slavery Commissioner were to have an enforcement role, it ‘may limit businesses’ willingness to engage openly with the Commissioner and would likely require significant resourcing’.
2.50The Department of Foreign Affairs and Trade (DFAT) pointed out that currently:
…it is the responsibility of companies to do due diligence to ensure they are compliant with the Modern Slavery Act, but the department does do outreach to companies to ensure that they are alert to risks in their supply chains and to talk about the risks of forced labour in those supply chains. While it’s their responsibility to comply, we do try to raise awareness.
Investigatory powers
2.51The HRLC argued that without investigative powers, the office the Anti-Slavery Commissioner would be unlikely to ‘be able to properly perform its functions of supporting victims or promoting compliance with the [Modern Slavery] Act’. In its view, the Commissioner should:
…be able to investigate companies that they believe to be providing misleading statements under the act. The office may also need to investigate particular high-risk sectors with a view to exposing bad systemic practices in order to better inform efforts to address modern slavery.
2.52Proponents of a stronger investigatory function for the Anti-Slavery Commissioner argued that they should have similar powers to the Australian Human Rights Commission, the eSafety Commissioner, the InformationCommissioner, the Fair Work Ombudsman and the Federal Safety Commissioner. The eSafety Commissioner, in particular, was described as:
…a comparative model with the power to investigate, enforce, handle complaints, and provide guidance. The eSafety office effectively manages a balance between ‘prevention’ through research and education, ‘protection’ through regulatory schemes, complaints and investigations and ‘proactive and systemic change’ by supporting industry to improve user safety standards and strengthening our impact across borders.
2.53International Justice Mission Australia recommended that the Anti-Slavery Commissioner be equipped with similar powers to those of the eSafetyCommissioner:
Australia’s eSafety Commissioner has powers to request transparency reporting from technology companies as to their implementation of the Basic Online Safety Expectations Determination…The level of detail and granularity afforded by the exercise of these powers helps to hold companies accountable for their actions, with the aim of lifting business performance in addressing the issue of online safety and child protection. Similar powers for the Australian Anti-Slavery Commissioner would enable a greater level of detail about modern slavery risks, helping to hold companies accountable for addressing those risks.
2.54The ACTU suggested the provision that would prevent the Anti-Slavery Commissioner from investigating individual cases must be removed from the bill. An amended bill should provide the office of an Anti-Slavery Commissioner with investigative powers that would allow it to:
produce an annual list of countries, regions, industries and products at high-risk of modern slavery;
investigate complaints relating to non-compliance with the [Modern Slavery Act];
investigate the veracity of modern slavery statements and the due diligence process;
conduct investigations on its own initiative, including instigating public inquiries and issuing public reports (for example, investigations into high-risk sectors or business practices); and
refer matters to law enforcement where there is prima facie evidence of criminal conduct and report that referral to the [AGD] and to Parliament.
2.55If the Anti-Slavery Commissioner could conduct self-initiated investigations, the office would then be able to determine whether there are grounds to refer the matter ‘to law enforcement or to other bodies or organisations such as the Fair Work Ombudsman or Fair Work Commission’.
2.56The HRLC opined ‘that while law enforcement authorities obviously have an important role to play in the detection and prevention of modern slavery, they do not have a strong record of successfully doing so’. Individuals experiencing modern slavery may be deterred from reporting to law enforcement agencies due to ‘mistrust of authorities, geographical or language barriers, fears of retaliation by their employer or visa cancellation’. For those reasons, the immediate involvement of law enforcement agencies in modern slavery investigations ‘may be counter-productive in many cases’.
2.57The Australian Chamber of Commerce and Industry supported the Anti-Slavery Commissioner ‘play[ing] a purely educative role in its duty to promote compliance with the [Modern Slavery] Act’. It submitted it ‘would be concerned if the Commissioner were to perform an investigative or complaints‑handling function’. The investigation function should exclusively remain with law enforcement agencies.
2.58The AGD maintained:
The [Anti-Slavery] Commissioner would not investigate or deal directly with individual matters of modern slavery. However, they may make observations regarding systemic issues based on their engagement with victims and survivors and the broader community.
Support for victim-survivors of modern slavery
2.59Be Slavery Free argued that the Anti-Slavery Commissioner should be able to provide guidance to victim-survivors of modern slavery to find help in addressing their situation. It suggested that currently:
…when people ask for help they don’t know where to go…[the Anti-Slavery Commissioner] will become an immediate magnet for victims and survivors and needs to be a clearing house and get rid of the confusion, and they need to be able to act or to do what needs to be done.
2.60A person with lived experience of modern slavery remarked upon the difficulties they faced in finding where they could report their experience:
When things go wrong in the modern slavery sector currently there is…nowhere to go as a survivor – you basically just fall through all the cracks. It’s very difficult to address things when you don’t get help or there’s a problem in the process and I would really love…the federal anti-slavery commissioner to be able to close some of those gaps.
2.61A survivor of modern slavery described how difficult it is to get access to support services:
A lot of my journey in recovery has just been fighting…on my own. No one was able to really assist me…when things went wrong. I never really had an understanding of why they went wrong and how to resolve those things…it would be great if we had someone somewhere that could actually help resolve some of those things.
2.62Mr Moe Turaga, a person with lived experience of modern slavery in Australia, explained that the bill would do little to support victim-survivors:
My main concern is with the victim support function outlined for the commissioner. The only support referenced in the bill is to provide information to victims. Sorry to say that just won’t cut it. We are talking about the most vulnerable people here, people who by nature of their situation are hard to reach to provide anything. When I found out that I hadn’t been paid for two years of farm work, I didn’t tell my story for years, as I only spoke up when I felt safe and secure and supported by the people around me. My strongest advice is for an explicit commitment in the bill to put survivors and our concerns at the centre of the commissioner’s work.
2.63Fair Futures suggested that in situations such as those recounted by individuals with experience of modern slavery, the Anti-Slavery Commissioner should be able to intervene in individual cases to ensure victim-survivors have assistance in ‘find[ing] a way forward’.
2.64The NSW Anti-slavery Commissioner is able ‘to identify and provide assistance and support for victims of modern slavery’. In doing so, they may ‘co-operate with or work jointly with persons and organisations to combat modern slavery and provide assistance and support to victims of modern slavery’.
2.65Be Slavery Free explained that the review of the NSW Modern Slavery Act found that the NSW Anti-slavery Commissioner has ‘little practical ability, in part due to the role’s lack of investigative powers, to directly take action that addresses the gap in reporting of modern slavery cases’.
2.66The NSW Anti-slavery Commissioner stated:
It’s clear from their advocacy that survivors are looking for a commissioner with stronger powers to assist and support victims, not simply by providing them with information—as the language of the bill currently envisages—but also by inquiring into their circumstances and their treatment and by accompanying them on the journey to obtain the support and assistance they need.
2.67The HRLC recommended the bill be amended to enable the Anti-Slavery Commissioner:
…to receive and investigate complaints about suspected instances of modern slavery, provide support and assistance to victims to access remedy and, where appropriate, refer cases to law enforcement or other authorities.
2.68Be Slavery Free added that while law enforcement agencies should remain responsible for criminal investigations, modern slavery may be difficult for those agencies to detect as it may require ‘expert support to determine if and how laws are being violated and by whom’.
2.69Conversely, SlaveCheck outlined that there are reasonable grounds to prevent the Anti‑Slavery Commissioner from becoming involved in individual cases:
The prohibition on the [Anti-Slavery] Commissioner from investigating cases is well founded and will prevent the role holder from being drawn into individual cases or engulfed in prosecutions or legal actions. The protection from civil action if acting in good faith, is evidence that the Commissioner will be able to report without fear or favour and can demonstrate the independence well promoted in the Bill.
2.70The Australian Human Rights Commission recommended that the Anti‑Slavery Commissioner should have additional roles to:
‘encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences, as well as the identification of victims’.
undertake ‘own motion investigations into modern slavery risks in industry sectors in Australia’.
independently review and evaluate ‘the National Action Plan to Combat Modern Slavery 2020-25 (and any subsequent national frameworks)’.
2.71The AGD explained that the Anti-Slavery Commissioner would be able to support victim-survivors of modern slavery without investigating individual cases ‘through the provision of information about government and non‑government resources, programs and services’.
2.72It wanted to ensure that the Anti-Slavery Commissioner did not duplicate ‘functions that are performed elsewhere in government’. To that end, the bill would enable the Commissioner ‘to provide an avenue to assist victims‑survivors in knowing where they can go’.
Consultation of people with lived experience of modern slavery
2.73The Office of the NSW Anti-slavery Commissioner was concerned that the development of the bill did not appear to include consultation of people with lived experience of modern slavery:
In this day and age, we would not develop complex legislation on victims of child sexual abuse, domestic and family violence, or disability services without direct engagement with people with lived experience. Why should such a landmark reform of Australia’s modern slavery response proceed without hearing directly from survivors of modern slavery?
2.74Being subjected to modern slavery ‘involves the theft of people’s agency, the denial of their self-determination’. For that reason, the NSW Anti-slavery Commissioner argued:
Our responses to modern slavery should not repeat, even by accident, that denial of voice, agency and self-determination. Instead, our responses should themselves enhance survivor voice, agency and self-determination, for example by providing dedicated, appropriately designed and safe‑guarded opportunities for people with lived experience to interact directly with policymakers and legislators.
2.75Similarly, the Uniting Church in Australia, Synod of Victoria and Tasmania stated ‘the Commissioner should have the role of facilitating victims of modern slavery to exercise their own agency whenever possible and appropriate, rather than speaking on behalf of them after consulting with them’.
2.76Fair Futures suggested that consulting people with lived experience of modern slavery, perhaps through a lived experience advisory panel or through their employment with the Office of the Anti-Slavery Commissioner, is required to:
…challenge the assumption that the existing system is working. For the people we spoke to, their experience is it’s fractured, it’s competitive over funding, it’s not designed around their needs and there are gaps and barriers to the services they’re getting. The response was described as lacking transparency and lacking accountability. People described having nowhere to turn when the system that is set up to help them fails them. That’s a pretty dire indictment of a system that’s now been in place for some 20 years.
2.77Mr Turaga stated:
I want to see footprints of lived experience people throughout the whole process from selection and appointment to work on the ground and the administration of the role. Why couldn’t we have a panel of survivor advocates to support the commissioner’s work? Survivor-led trauma informed is the best practice for remedy. So why shouldn’t we be working with the commission to develop the pathways and remedies for people escaping modern slavery?
2.78Walk Free advocated for the establishment of a ‘Lived Experience Advisory Panel to ensure the [Anti-Slavery] Commissioner’s actions are based on the advice of those with lived experience’. That panel could be modelled on the ‘practice of the New South Wales [Anti-slavery] Commissioner and Australia’s first Domestic Violence Commissioner’.
2.79The NSW Anti-slavery Commissioner outlined the structure of the advisory panel:
We have an advisory panel that is not limited to people with lived experience. It’s 29 people currently, and 20 per cent of them have declared lived experience. There may or may not be others without declared lived experience. We’ve deliberately not had a segregated lived experience advisory panel, in part because, in the early days of the shift in the antislavery sector to bring survivor voices into the discussion, we didn’t want to overburden a small cohort in New South Wales.
2.80He argued that the advisory panel has played a positive role in his work:
I think it really is transformative. It shifts this from being an abstract discussion and a question of charity to one where we really focus every day on: How does the way I’m approaching this issue actually not only help this particular individual but restore agency for those who come behind? How are we building their capabilities so that a future antislavery commissioner is a person with lived experience and so that that that can be done safely, for example? I think that’s really the transformation we’re going through in this sector currently.
2.81Mr Turaga, who sits on the NSW Anti-slavery Commissioner’s advisory panel remarked:
It’s quite educative, working with him and identifying the issues. Most of the issues are in regard to the pathways for victims who identify themselves—how we put them into some sort of protection and what the services available to them are. Those are some of the issues that we would make comment on and give opinions on.
2.82Professor Ellie Chapple and Dr Shakoor Ahmed advocated for:
…a survivor-centric approach, focusing on those adversely affected by modern slavery practices within reporting entities. Key initiatives should include providing support and assistance to victims of modern slavery. This includes overseeing support and referral assistance mechanisms, administering a national victim compensation scheme, and establishing a confidential reporting hotline.
2.83According to Slavery Links, a focus on survivors alone would ‘not address the slave-making systems that expose people to risk’. To effectively combat modern slavery, an understanding of the reasons and benefits that motivate perpetrators is also required. Slavery Links submitted ‘[a]n effective anti‑slavery Commissioner will comprehend the mind of a perpetrator; will be a strategic thinker who is conversant with models for criminal enterprises that compromise legitimate business’.
2.84The AGD stated that during the development of the bill it:
…considered the diversity of views canvased by the review and inquiries and how the commissioner would complement other existing critical pillars of Australia’s response to modern slavery. This includes the diverse range of work undertaken by government, business and civil society to work collaboratively to prevent and respond to modern slavery, and the opportunity to recognise and build survivor voices into the commissioner’s core functions.
2.85It pointed out that victim-survivors of modern slavery had opportunities to contribute to the proposed functions of the Anti-Slavery Commissioner:
There wasn’t an exposure draft process of the bill, but there has been a range of consultation on the proposal for an Anti-Slavery Commissioner, most recently through the review of the Modern Slavery Act, and victims-survivors were part of a consultation through that process, including on the establishment of a commissioner. We also have engagement with victims‑survivors through a range of mechanisms, including the national roundtable on modern slavery and direct meetings.
2.86The AGD agreed that the input of multiple stakeholders is required to address modern slavery in Australia:
Modern slavery is a challenge that cannot be addressed in isolation or by Government alone—ongoing coordinated and aligned action is required from governments, businesses, and civil society. The establishment of an Anti-Slavery Commissioner would further strengthen Australia’s response to modern slavery by providing a new advocate at the national level. This would involve harnessing innovation and insights across government and non-government sectors and forging connections amongst diverse stakeholders to achieve meaningful action.
2.87It stated it has ‘not been prescriptive in the bill as to the form that engagement by the commissioner would or could take’. It outlined some of the options the Anti-Slavery Commissioner might choose make:
The commissioner could have a staff member—a lived experience staffing position—or it could have an advisory panel. There’s discretion for the commissioner as to how they might want to go about that, but we very much support the suggestion that engagement with victims-survivors is a critical issue in influencing how policies and programs are developed and implemented.
2.88The AGD further explained that government and civil society are still collaborating on the best way to engage with victim-survivors:
It’s an area that’s emerging for government…but we have a lot of civil society partners who’ve been engaging with victims and survivors for many years. We are trying to leave the door open in terms of ensuring engagement and the empowerment of victims and survivors to speak for themselves is part of the Anti-Slavery Commissioner’s functions. Given a lot of this work is still in the piloting and new part of our public policy work, we didn’t go as far as describing how the commissioner should do that because that’s very much under their control once they are appointed.
Approach to specific industries
2.89One of the main functions of the Anti-Slavery ‘Commissioner is to support business engagement and collaboration’. To that end:
The Office [of the Anti-Slavery Commissioner] could provide tools and resources for businesses to identify and mitigate the risk of modern slavery in their supply chains. The Office [of the Anti-Slavery Commissioner] could develop guidelines and best practices for organisations to follow, ensuring they comply with the [Modern Slavery Act].
2.90Through the development of those tools and resources, the Anti-Slavery Commissioner could ‘facilitate the sharing of best practices and promote joint initiatives’.
2.91The Housing Industry Association (HIA) and the Australian Retailers Association argued that the Anti-Slavery Commissioner should be aware of the differences between sectors and accordingly develop resources that are tailored to the specific circumstances of those sectors.
2.92The HIA requested that the resources be ‘a collation of information and a collation of education—not necessarily template documents, because…that’s quite superficial’.
2.93Dr Shakoor Ahmed reported that his research indicated ‘disclosing entities seek out industry-specific guidance, preferably from a source that is credible and independent from the product market’. His research also found:
…some industries have a greater prevalence of modern slavery. This means that the same legislation or the same minimum requirement is not fit for all. We have to focus on industry-specific guidance.
2.94The Australian Institute of Company Directors supported the Anti-Slavery Commissioner playing an educative and awareness raising role. In its view, that would include streamlining the due diligence and verification processes that reporting entities implement by:
‘developing codes of practice and certification measures for suppliers’;
‘publishing an annual list of high risk regions, locations, industries, products, suppliers or supply chains’;
‘developing practical guidance for high-risk sectors, [not-for-profits], Aboriginal and Torres Strait Island organisations and small and medium enterprises’;
undertaking ‘assessments of modern slavery statements to provide real-word insights into current practices and highlight areas of due diligence and reporting that require improvement’; and
‘facilitating collaboration across industry, Government and civil society’.
2.95Dr Katherine Christ advised there:
…is an increasing burden being placed on small and medium sized enterprises. Many are being asked to provide different types of information in different forms by supply chain partners. This is obviously very burdensome, and these organisations often don’t understand what modern slavery is. They don’t know what they need to do, and they don’t know how to do it. So there is a space there for the Anti-Slavery Commissioner to try and navigate that chasm between large reporting entities and small business.
2.96In reflecting upon its experience as a reporting entity, the University of Sydney highlighted that the current arrangements impose considerable financial costs on reporting entities:
The current lack of sector specific guidance, centralised source of risk information and lack of good practice benchmarking, means compliance with the [Modern Slavery] Act requires a significant resource investment from reporting entities, which for many smaller entities is not financially viable.
2.97The University of Sydney recommended the bill be amended to require the Anti‑Slavery Commissioner ‘to develop and provide a central, consistent, evidence-based source of risk information and sector specific guidance which enables reporting entities to take risk-based and targeted due diligence actions’. The inclusion of that requirement ‘would better enable academics, civil society, consumers, and investors to assess modern slavery statements and provide recommendations on the effectiveness of the [Modern Slavery] Act’.
2.98Reflecting upon its experience as a reporting entity and based on insights from its academic staff, the University of Sydney stated:
…meaningful action on modern slavery requires an approach that is evidence based and context-specific. We recommend that the commissioner’s functions include the requirement to develop and provide essential, consistent evidence based source-of-information risk information and sector-specific guidance which enables reporting entities to take risk based and targeted due diligence actions.
2.99The AGD submitted that ‘the [Anti-Slavery] Commissioner could produce targeted products to help prevent or address modern slavery in particular sectors’.
2.100According to DFAT, the Modern Slavery Expert Advisory Group includes representatives of the ACCI and ACTU. That group ‘provides practical advice on the operation of the Modern Slavery Act. So, in tandem with ethical business companies, others in the private sector and civil society and academics, who are doing a significant amount of work on this too, there are resources to help and support business in addressing what is a very complex and challenging area of exploring these supply chains’.
Committee view
2.101The Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 would establish an independent Australian Anti-Slavery Commissioner to support compliance with the Modern Slavery Act 2018 and address modern slavery in Australia and internationally.
2.102The committee recognises that two parliamentary committee inquiries and the Report of the statutory review of the Modern Slavery Act 2018 (Cth) recommended that the government establish an Australian Anti-Slavery Commissioner.
2.103The evidence received by the committee during this inquiry, including from people with lived experience of modern slavery in Australia, further demonstrates that there is widespread support for the establishment of an independent Australian Anti-Slavery Commissioner to address modern slavery.
2.104The committee is aware that the government is carefully considering the 30 recommendations made in the Statutory review of the Modern Slavery Act 2018 (Cth). It understands that the government’s response may outline further functions and powers for the Anti-Slavery Commissioner and that the role will continue to evolve.
2.105It is not clear to the committee that the term ‘sensitive information’ is sufficiently defined in the bill or its explanatory memorandum, particularly in relation to information that would or may prejudice the international relations of Australia. In the committee’s view, this term should be clearly defined to ensure that the independence of the Anti-Slavery Commissioner is not called into question.
2.106The committee recommends that the term ‘sensitive information’, particularly regarding information related to the international relations of Australia, be clarified in either the bill or the explanatory memorandum.
2.107The committee received evidence from people with lived experience of modern slavery that highlighted the importance of consulting them in the development of the Anti-Slavery Commissioner’s role. Victim-survivors also emphatically explained to the committee that they often do not know where to go to get advice or support. Many of them are reluctant to approach law enforcement agencies. The Anti-Slavery Commissioner has a role to play in advising and supporting victim-survivors of modern slavery in Australia.
2.108The committee recommends that the bill be amended to include a requirement that the Anti-Slavery Commissioner develops specific guidelines in their strategic plan to support victim-survivors of modern slavery.
2.109 The committee recommends that the bill be amended to include a requirement that the Anti-Slavery Commissioner engages with victim-survivors of modern slavery in carrying out the functions of their role.
2.110The committee recommends that while the Anti-Slavery Commissioner should not have the power to investigate individual cases of modern slavery, once established, the office of the Commissioner should make appropriate arrangements, for example a memorandum of understanding, with relevant law enforcement agencies to facilitate the referral of cases for investigation as requested.
2.111Subject to the preceding recommendations, the committee recommends that the Senate pass the bill.
Senator Nita Green
Chair