7.1
The terms of reference asked the Committee to consider the effectiveness of provisions of the UK Modern Slavery Act 2015 (UK Act) and whether similar or improved measures should be introduced in Australia.
7.2
This chapter examines whether provisions of the UK Act could improve Australia’s criminal justice responses to modern slavery.
7.3
The Committee notes that the Parliamentary Joint Committee on Law Enforcement (PJCLE) has recently examined the criminal justice response to modern slavery in detail. This chapter focusses on whether provisions of the UK Act could assist in improving this response.
Identifying, investigating and prosecuting modern slavery
7.4
As noted in Chapter 3, evidence to the inquiry suggests that modern slavery is a hidden crime and its true prevalence in Australia is not fully understood.
7.5
The Committee heard that, despite Australia’s strong legislative and policy frameworks for combatting human trafficking and slavery, criminal justice responses could be more effective in investigating and prosecuting modern slavery cases.
7.6
The Australian Government submitted that ‘[s]ecuring successful prosecutions’ is a key objective of the national strategy to combat human trafficking and slavery.
7.7
Since 2004, of the more than 750 human trafficking and slavery cases referred to the Australian Federal Police (AFP) there have been only 20 successful prosecutions. Table 7.1 outlines the details of cases since 2004.
Table 7.1: Number of prosecutions for human trafficking and slavery in Australia, 2004 to 30 June 2017
|
|
|
|
|
Slavery
|
270.3(1)
|
10
|
|
Servitude
|
270.5(1)
|
2
|
|
Sexual servitude
|
Previously 270.6(2)*
|
4
|
|
Trafficking in persons
|
271.2(1B)
|
1
|
|
Trafficking in persons
|
271.2(2B)
|
1
|
|
Trafficking in children
|
271.4(1)
|
2
|
|
Total
|
|
20
|
* In 2013, amendments to the Commonwealth Criminal Code broadened the existing offence of sexual servitude to apply to servitude in all industries.
Source: Australian Government, Response to Questions on Notice, 22 June 2017, p. 1.
7.8
A number of submitters expressed concern about the low rate of prosecutions of modern slavery offences under sections 270 and 271 of the Criminal Code and suggested that more could be done to identify, investigate and prosecute modern slavery cases. Ms Alison Rahill from the Salvation Army told the Committee:
… the lack of convictions and the low number of identified victims in Australia does not correlate with the scale of exploitation that has been so widely reported through formal and informal channels. We must identify and remove the barriers to identifying and assisting more victims, and commit adequate financial resources, guidance and tools to enable law enforcement to hold traffickers accountable under the law.
7.9
Other submitters suggested a comprehensive review of how criminal justice agencies identify, investigate and prosecute modern slavery cases. Dr Anne Gallagher AO submitted that Australia’s ‘underwhelming’ record of prosecuting modern slavery crimes highlights that there is an ‘urgent need’ for a ‘thorough, impartial review of Australia’s criminal justice response’.
Barriers to addressing modern slavery
7.10
The Committee notes that the PJCLE recently reviewed the barriers in the Australian criminal justice system to identifying, investigating and prosecuting human trafficking, slavery and slavery-like practices (including servitude, forced marriage and forced labour).
7.11
The Committee notes that evidence to this inquiry on the barriers to addressing modern slavery reflects the evidence presented to the PJCLE.
Inter-agency coordination
7.12
The PJCLE found that there is a need to improve coordination and engagement between the various Commonwealth agencies responsible for addressing human trafficking and slavery, and with their state and territory counterparts.
7.13
Similarly, evidence to this inquiry suggested there may be may be gaps in the ways Commonwealth, state and territory governments and NGOs cooperate to identify, investigate and prosecute modern slavery. The Salvation Army Freedom Partnership submitted:
The highly federalised model of Australia’s anti-slavery response means that many individuals who are likely to encounter victims at the state and local level are unaware of the indicators and available services for victims. Gaps within the victim screening process and limited outreach activities also contribute to falsely low numbers.
7.14
Ms Jenny Stanger from the Salvation Army suggested establishing ‘multidisciplinary task forces’ to bring together Commonwealth, state and territory frontline agencies and NGOs to address the lack of a framework for such an operational collaboration:
While the National Action Plan to Combat Human Trafficking and Slavery articulates the importance of the states and territories, it does not provide a framework for accountability or for action at the state level. As a result, state and territory government participation is voluntary and inconsistent, and engagement of civil society is ad hoc.
7.15
The Australian Government acknowledged that investigations of human trafficking and slavery can be ‘protracted, complex and resource intensive’, with ‘significant practical challenges’ in inter-agency coordination, including:
… the challenges of communication, and differences in the role of national institutions, legal and political systems. Victims, offenders and evidence can be located in more than one country, and the same set of circumstances can generate investigations and prosecutions in more than one jurisdiction.
7.16
The PJCLE recommended that member agencies of the Interdepartmental Committee on Human Trafficking and Slavery ‘strengthen their coordination and engagement’ with each other and with state and territory frontline agencies.
7.17
Similarly, in October 2017, the NSW Legislative Council Select Committee on human trafficking recommended that the NSW Government ‘allocate greater resources to the NSW Police Force, to enhance interagency cooperation and covert operations to address human trafficking’.
Training for law enforcement
7.18
The PJCLE found there was a need to improve awareness and training about human trafficking and slavery issues among law enforcement agencies.
7.19
Similarly, evidence to this inquiry indicated that frontline law enforcement officers may not be aware of modern slavery indicators when investigating cases of exploitation. Ms Alison Rahill from the Salvation Army told the Committee:
Despite legislative amendments, only three individuals have been convicted since 2013 and the number of victims identified since 2004 has yet to reach 500. In the absence of case law, it is unclear what tools or methods investigators used to assess whether a case rises to the threshold of forced labour or one of the other slavery offences ... This question of where the line is between labour exploitation and forced labour is critical to the development of an appropriate response. Recent cases with indicators of trafficking and slavery appear to have been treated as civil or immigration matters.
7.20
The Committee heard numerous examples of cases of exploitation reported in the media where potential modern slavery crimes were suspected but no victims were identified. In particular, submitters raised concerns about two recent cases in Carabooda and Pemberton in Western Australia. In both cases, exploited workers were assessed, but no victims of modern slavery were identified.
7.21
Box 7.1 outlines the details of the Carabooda and Pemberton cases.
Box 7.1: Potential modern slavery cases in WA
Carabooda
Between 3 and 11 May 2014, the WA Police led a joint agency operation in Carabooda in conjunction with the Australian Federal Police (AFP), the Department of Immigration and Border Protection (DIBP), the Australian Securities and Investment Commission (ASIC), the Australian Taxation Office (ATO), and Customs. The operation was primarily focussed on a money laundering syndicate operating out of farms and WA’s market garden industry.
The foreign workers living on the premises were reportedly living in sub-standard conditions and being paid below the award rate. The WA Police state crime assistant commissioner described the exploitation of the workers as ‘a human tragedy’.
A total of 122 non-citizens were located during the operation, and subsequently detained under section 189 of the Migration Act 1958 (Cth). Of these, 49 were females and 73 were males (including one male minor). According to the AFP, no victims of human trafficking were identified. 119 of the 122 detainees were deported by 23 May 2014, with the fastest removal occurring within five days of detention.
A number of individuals were charged with harbouring unlawful non-citizens and dealing in proceeds of crime. The majority of these matters are currently ongoing.
Pemberton
In early March 2017, DIBP, including the AFP, Australian Border Force (ABF), Fair Work Ombudsman (FWO) and WA Police participated in a joint operation in Pemberton in WA as part of Taskforce Cadena.
Media reports suggested foreign workers, mainly from Malaysia, were employed by labour hire intermediaries and housed in sub-standard conditions and paid below the award rate.
The operation identified a number of non-citizens and others working in breach of visa conditions. The Australian Government noted that ABF officers involved were trained in identifying human trafficking indicators and aware of the obligation under the National Action Plan to refer any cases to the AFP for further assessment. No victims of human trafficking were identified. Investigations are ongoing.
7.22
Ms Fiona David from the Walk Free Foundation described the Carabooda case was a ‘missed opportunity’, as the potential victims were deported without contributing to any criminal proceedings against their exploiters:
One of the huge missed opportunities with Carabooda was to really understand what was going on. It is very likely that the criminality that was happening in that case is still continuing to this day. I understand their network spanned across the eastern states and was not just in Western Australia. So, by removing the witnesses, we have both revictimised potential victims and lost an opportunity for law enforcement here in Australia. We have lost an opportunity to break some serious and organised crime.
7.23
Similarly, in the Pemberton case, the Employment Law Centre of WA expressed concerns that victims were displaying indicators of modern slavery, which were not recognised and, instead, they were detained and deported:
… we understand that Border Force officials interviewed a large number of foreign workers who displayed multiple indicators of human trafficking, but did not refer the matter to the AFP, as required under the National Action Plan.
7.24
The Australian Institute of Criminology (AIC) noted that its 2010 research into labour exploitation concluded that there is ‘underreporting and a lack of awareness by “frontline” agencies and services that certain exploitative practices are criminal under Australian law’.
7.25
To improve awareness of modern slavery and victim identification, submitters suggested improving the training available for police and frontline service providers on forced labour and the exploitation of migrant workers. For example, Anti-Slavery Australia recommended that training on the indicators of all forms of human trafficking and slavery should be delivered to frontline officers of Commonwealth agencies, including the DIBP, AFP, DHS, AGD, Centrelink and Medicare Australia.
7.26
The Committee heard that Australian Government agencies have recently sought to improve the training available to frontline agencies in this area.
7.27
The Committee heard that the AFP has developed a set of human trafficking and slavery indicators, including general indicators, and specific indicators for forced marriage, sexual servitude (commercial), servitude (domestic), child exploitation and labour exploitation.
7.28
The Committee also heard that the AFP, ABF and FWO aim to provide comprehensive training about human trafficking and slavery for frontline officers. Box 7.2 outlines these programs.
Box 7.2: Training offered by AFP, ABF and FWO
Australian Federal Police (AFP)
Human Trafficking Investigations Course
The Human Trafficking Investigations Course (HTIC) is a five day program for AFP senior investigators. The course is designed to ‘highlight areas critical to the successful investigation of these crimes, including relevant legislation, investigative methodologies and victim liaison and support’.
The Committee heard that understanding and appreciation of the indicators of human trafficking and slavery ‘are continually discussed’ and a number of exercises are conducted in which participants are asked ‘to identify the indicators and relevant offences’.
Look a Little Deeper
Look a Little Deeper is a human trafficking and slavery awareness-raising package for frontline officers developed in conjunction with Victoria Police and launched in October 2014. The package contains information relating to ‘human trafficking and slavery indicators, legislation and includes interviews with individuals involved in human trafficking and slavery matters and examples of where human trafficking and slavery offences may be identified’.
An online training course is also being developed to raise awareness of human trafficking and slavery offences across the AFP. The online course is expected to be completed by all AFP staff over the next 12 months and is expected to be provided to all state and territory law enforcement agencies.
Australian Border Force (ABF)
ABF Training College and Specialist Compliance Field training course
ABF officers receive training on human trafficking and slavery, including serious forms of labour exploitation, through the standard ABF Training College program.
A Specialist Compliance Field training course module on human trafficking and slavery is also provided that aims to:
educate and train staff on DIBP’s role in the National Action Plan;
educate and train staff to identify possible instances of human trafficking and slavery;
define common indicators of human trafficking and slavery;
describe Compliance Field Officers’ role in combatting human trafficking and slavery; and
identify Human Trafficking Contact Officers with whom officers can raise suspected cases of human trafficking and slavery.
During 2016/17, 201 ABF officers received the introductory training and a further 65 officers undertook the Specialist Compliance Field training.
eLearning modules that aim to equip staff to recognise indicators of human trafficking and slavery are also available. As at 4 September 2017, 1 313 officers across DIBP and ABF had completed these modules.
Human Trafficking Contact Officer Training
Each Australian state and territory has a representative Human Trafficking Contact Officer (HTCO). HTCOs receive a training package on commencement and ongoing training through the Compliance Field Training course, eLearning modules on human trafficking and slavery, and dedicated HTCO teleconferences and workshops.
The ABF currently has 10 HTCOs based in Sydney, Melbourne (covering Victoria and Tasmania), Brisbane, Adelaide, Perth, Darwin and Canberra.
Fair Work Ombudsman (FWO)
National Technical Training for Fair Work Inspectors
Since 2015, National Technical Training for Fair Work Inspectors has contained information and guidance on the referral of matters which are outside the FWO’s jurisdiction, including suspected cases of human trafficking and slavery. The training sets out indicators of human trafficking and slavery and alerts new Inspectors to referral processes.
Knowledge Article
The Knowledge Article for all staff sets out the AFP’s indicators of human trafficking and slavery and the processes for handling suspected instances of these crimes.
Refresher package
The FWO has collaborated with Anti-Slavery Australia to develop a refresher training package for inspectors containing new resources to ensure staff identify and respond to potential cases of human trafficking and slavery. The package will be operational in the first half of 2017-18.
7.29
The PJCLE examined the role of the AFP in training state and territory police officers and recommended that the Australian Government increase the number of AFP officers with specialised human trafficking and anti-slavery in all states and territories.
7.30
The PJCLE also recommended that in regard to human trafficking and slavery, the Australian Government:
expands training for frontline AFP, DIBP and FWO personnel;
works with its state and territory counterparts to ensure that state and territory police also receive adequate training; and
ensures that this training includes reference to relevant NGOs so that they can refer victims for support and assistance.
Training for the judiciary
7.31
During its visit to the UK in April/May 2017, the delegation from the Committee heard concerns about the adequacy of training for the judiciary on how to prosecute modern slavery cases. The delegation heard concerns that in the UK, witnesses to modern slavery offences are often treated as suspects in judicial processes and do not receive appropriate support. As a result, witnesses may be reluctant to come forward to provide vital evidence.
7.32
In her review of the UK Act, Ms Caroline Haughey found that training for police officers, investigators and prosecutors on modern slavery was ‘patchy and sometimes absent’. Ms Haughey recommended introducing training for prosecution agencies, lawyers and the judiciary on the UK Act, including:
‘significantly extended’ vulnerable witness training covering ‘cultural awareness, victim empathy and question management’;
cultural awareness of different ethnicities that predominate in trafficking offences; and
awareness of offences and orders available under the UK Act.
7.33
Ms Felicity Gerry QC, a barrister who practices in both the UK and Australia, recommended that, in Australia, guidance should be developed for Commonwealth prosecutors on modern slavery cases, including advice on the option not to prosecute witnesses to modern slavery offences:
… we have to stop prosecuting people and we have to take a big step into saying, 'We are not going to prosecute' … There are all sorts of issues around case presentation, fear of going to court and so forth, and we are taking small steps in that direction. Australia's laws are slightly better in relation to procedure, for example, for vulnerable people. But our substantive laws … simply [are] not encouraging people to give that witness evidence. We see them as 'grasses', or we see them as suspects. We have a very old-fashioned attitude towards people who could actually help.
7.34
The Committee heard that modern slavery offences are referred by the AFP to the Commonwealth Director of Public Prosecutions (CDPP) to prosecute. Decisions about whether to proceed with human trafficking or slavery-related prosecutions are guided by the Prosecution Policy of the Commonwealth.
7.35
The Australian Government noted that the Crimes Act 1914 provides protections for people giving evidence in Commonwealth criminal proceedings, including victims of modern slavery. These protections include:
giving evidence by closed-circuit television, video-link or, if granted leave by the court, by video recording;
have their contact with the defendant or members of the public limited;
have a support person with them while they give evidence;
an offence to publish material identifying a trafficked person;
allowing trafficked people to make victim impact statements to the court outlining the harm they have experienced; and
allowing a court to order that an offender make reparation to the victim for any loss suffered or any expense incurred by reason of the offence.
Withholding passports
7.36
During its visit to the UK in April/May 2017, the delegation from the Committee heard concerns about perpetrators of modern slavery crimes withholding the passports of victims as a form of coercion. Dr Anne Gallagher AO told the Committee:
It's very well-known that this is a means of compelling someone to either enter or remain in a situation of exploitation from which they can't escape.
7.37
The UK Independent Anti-Slavery Commissioner (UK Commissioner, Mr Kevin Hyland OBE, noted that the withholding of passports is a particular issue for agricultural workers in the UK:
… where we have an agricultural sector, we do see that there are criminals who have infiltrated those areas and they will attract people, particularly from Eastern Europe or elsewhere in the world, and put them to work in exploitation in the agricultural sector but also food packing and other areas. What they will do is they will control people by not paying them, putting them into multiple occupancy, taking away their passports and so on.
7.38
The Committee heard that, in Australia, section 21 of the Foreign Passports (Law Enforcement and Security) Act 2005 prohibits the improper use or possession of a foreign travel document, carrying a maximum penalty of 10 years. The Committee heard that since this offence has been in force there have been 63 matters where the offence was found proven and a conviction recorded.
7.39
However, the Committee heard that awareness of this offence in Australia is low, particularly among migrant workers. For example, Tom and Mia’s Legacy highlighted that many Working Holiday visa holders have their passports withheld by employers and are not aware this is an offence. Tom and Mia’s Legacy in fact recommended that withholding passports be made an offence in Australia, demonstrating the low awareness of the existing offences.
7.40
Dr Gallagher told the Committee that this separate offence is a strength of Australia’s legislative framework:
I think it’s really good that this is actually a separate offence—it should be in many of the other laws that I am asked to look at and contribute to—because we know very well that keeping someone’s documentation is almost inevitably not for a good reason; it’s almost inevitably to coerce them.
Committee view
7.41
The Committee recognises that the PJCLE has considered the criminal justice response to modern slavery in greater detail. The Committee notes that this inquiry has focussed more on provisions in the UK Act.
7.42
Evidence to this inquiry highlights that there may be gaps in how law enforcement agencies cooperate and how frontline officers identify modern slavery and related offences including withholding passports.
7.43
The Committee recognises that the evidence and findings highlighted by the PJCLE on criminal justice responses are consistent with this inquiry. The Committee supports recommendations 1, 3 and 4 by the PJCLE to improve inter-agency coordination and training for law enforcement officers, and increase the number of AFP officers with specialist modern slavery training.
7.44
The Committee is of the view that to improve inter-agency coordination, the Australian Government should establish multi-disciplinary taskforces involving relevant Commonwealth agencies, state and territory authorities and civil society.
7.45
The Committee considers that AFP officers with modern slavery training should be located in regional areas where modern slavery is potentially prevalent.
7.46
In addition, evidence from the UK highlighted the importance of extending training and guidance to the judiciary and legal profession on modern slavery. The Committee recognises that Australia’s legal framework already contains a number of important protections for vulnerable witnesses. The Committee supports reviewing the training available to the judiciary and judicial officers, with a view to improving the ability of judicial officers and lawyers to support witnesses to give evidence in modern slavery cases. The Committee agrees that this training should cover options not to prosecute victims or witnesses of modern slavery offences.
7.47
The Committee also recognises that awareness of offences relating to the withholding of passports is low, particularly for migrant workers, and recommends the Australian Government investigate measures to educate the Australian community and migrant workers on this offence.
7.48
The Committee recommends that member agencies of the Interdepartmental Committee on Human Trafficking and Slavery strengthen their coordination and engagement with each other, and that frontline Commonwealth agencies strengthen existing relationships with state and territory frontline agencies. This should include establishing multi-disciplinary taskforces that bring together relevant Commonwealth, state and territory agencies and civil society NGOs.
7.49
The Committee recommends that the Australian government increase the number of Australian Federal Police officers with specialised modern slavery training in all states and territories. The Committee recommends that these officers be based in, and service, regional areas where there may be a high prevalence of potential modern slavery offences.
7.50
The Committee recommends that the Australian Government:
expand training for frontline staff employed by the Australian Federal Police, the Department of Immigration and Border Protection and the Fair Work Ombudsman, as well as other frontline agencies including Centrelink and Medicare, with respect to the Commonwealth offences at Divisions 270 and 271 of the Criminal Code Act 1995 and related offences including withholding passports under section 21 of the Foreign Passports (Law Enforcement and Security) Act 2005;
work with its state and territory counterparts to ensure that state and territory police and prosecution services also receive adequate training with respect to the Commonwealth offences at Divisions 270 and 271 of the Criminal Code Act 1995 and related offences; and
ensure that this training includes reference to non-government organisations working on human trafficking, modern slavery and slavery-like practices so that they can refer victims for support and assistance offered through non-government organisations.
7.51
The Committee recommends that the Australian Government increase public awareness in Australia and in the region, particularly for new migrants before and on arrival, that the withholding of a passport and other documents is an offence under Australian law.
7.52
The Committee recommends that the Australian Government review and expand training for the judiciary, judicial officers, prosecutors and lawyers on prosecuting and managing cases of modern slavery. This should include guidance on protections for vulnerable witnesses under the Crimes Act 1914, and include options for non-prosecution in the Prosecution Policy of the Commonwealth.
Relevant provisions of the UK Act
7.53
Evidence to the inquiry suggests that the introduction of the UK Act has had a positive impact on improving the criminal justice response to addressing modern slavery.
7.54
In 2016, the UK Government commissioned barrister, Ms Caroline Haughey to conduct a review of the UK Act. Ms Haughey’s review found that, while modern slavery ‘remains under-reported’, the UK Act and wider work has raised awareness of the issue with the general public and authorities, as well as made improvements to the criminal justice response, including:
More victims are being identified: in 2015, 3 266 potential victims were identified and referred for support, a 40% increase on the previous year.
Better protections are in place.
Increased number of proactive and reactive police investigations.
Increased number of prosecutions and convictions (most still under the old offences).
Prosecutors are enhancing their understanding of the law and needs of victims through use of the vulnerable witness tools.
At a judicial level awareness is increasing and training is being put in place.
7.55
Ms Haughey’s review also identified the following weakness in the UK criminal justice system’s approach to addressing modern slavery and made a series of recommendations for improvements:
Training for police officers, investigators and prosecutors is patchy and sometimes absent
Insufficient quality and quantity of intelligence about the nature and scale of modern slavery at national, regional and international level, which hampers the operational response
Lack of a structured approach in operational agencies to identifying, investigating, prosecuting and preventing slavery, including learning from what works and what does not
Some complainants not being afforded the vulnerable witness protections available to them during and after the Court process.
7.56
The Committee heard that one of the key achievements following the introduction of the UK Act was the increase in prosecutions of modern slavery cases. The UK Commissioner, Mr Hyland, told the Committee that since the introduction of the UK Act in 2015, there had been a 63% increase in the identification of victims (to almost 4 000) and a 71% increase in prosecutions (to 81).
7.57
Mr Hyland told the Committee that prior to the introduction of the UK Act, the UK, like Australia, had a low rate of prosecutions of modern slavery offences. Mr Hyland attributed the low rate of prosecutions to the lack of awareness and the lack of accurate identification of modern slavery as ‘serious and organised crime’:
… it was because it was not being looked at in the right vein … If you want to get prosecutions, you need to make the criminal justice systems, from police to the courts, understand that this is serious and organised crime … It has not been seen as a crime … Once you up the response and you start to look at it as organised crime, you will see criminal justice respond in the way that it does to other serious and organised crime.
7.58
Mr Hyland told the Committee that one of the weaknesses of the UK Act was a lack of focus on awareness raising among law enforcement authorities. Mr Hyland told the Committee that the UK was ‘a little bit slow out of the starting gates’:
… we need to get it in the right place where it can be responded to, and understanding what it is, as well as what we are saying it is. Historically, it has been looked at as a social issue perhaps, like homelessness. Of course, it does have that vulnerability, and that is why we look at the assistance and the value that the non-government organisations bring, which is essential. However, this is serious and organised crime. Yes, it does have a nexus with immigration crime, but these are vulnerable people who are trafficked and exploited, and we need to look at it very clearly at what it is.
7.59
Provisions in the UK Act that have been effective in improving criminal justice responses in the UK, including the role of the UK Commissioner and the duty to notify requirement, are outlined below.
Independent Anti-Slavery Commissioner
7.60
As discussed in Chapter 4, the Committee heard strong support for the establishment of an Independent Anti-Slavery Commissioner similar to the role established by the UK Act.
7.61
Submitters suggested that an Australian Commissioner could assist in addressing some of the key challenges to identifying, investigating and prosecuting modern slavery cases.
Awareness raising
7.62
The Committee heard that one of the key strengths of the establishment of the UK Commissioner role was in driving change in the criminal justice system to the way modern slavery is addressed. As noted in Chapter 4, one of the UK Commissioner’s five priorities is improving law enforcement and criminal justice responses.
7.63
During its visit to the UK in April/May 2017, the delegation from the Committee heard that one of the key strengths of the establishment of the UK Commissioner was raising the profile and awareness of modern slavery, particularly among police. Ms Haughey, who met with the delegation, told the Committee that the UK Commissioner role:
… is excellent both domestically and internationally. Domestically, he ensures, almost as a roving reviewer, that the police forces are doing what they should be doing. The added advantage is that he is a former police officer and an expert in this field. He knows where things can be hidden in the wrong filing cabinet. He knows where stones can be shoved to hide an issue. His role is a right one because he is reporting back to government and ensuring that there is constant oversight of this as an issue. Furthermore he maintains the profile. I see articles and commentary in the paper on a near weekly basis which, hitherto, we never would have had. I also would say that he has heightened the profile of the United Kingdom as a leading force internationally and educated us as to the benefits of what other jurisdictions are doing.
7.64
Submitters highlighted that the introduction of the UK Commissioner ‘has generated considerable attention among the different stakeholders and mainstream media, and mobilised action against modern slavery both within the UK and globally’. Ms Fiona David from the Walk Free Foundation told the Committee that an Australian Commissioner could improve prosecution rates in Australia:
… since his position has been in place, there has been a 60 per cent increase in victim identification and a 70 per cent increase in prosecutions. That is what we want to see in Australia.
7.65
To improve awareness, Mr Hyland told the Committee that his office has undertaken a range of measures to work with law enforcement agencies to improve crime reporting of modern slavery cases:
Of the 3,146 victims from the 2015 data, only 884 of those ended up in crime reports. I have pushed and driven for a change in that, and now we have seen already that double to over 1,600 but I want it to be the full number of 3,000.
7.66
Mr Hyland noted that improving crime reporting has flow on effects for ensuring victims have access to support and compensation:
The fact that crimes were not being recorded properly meant that victims were exempt from that process. That is something I have addressed quite robustly so that that is an opening for victims, and we have seen victims be compensated through that authority and receive sizeable sums, and that is with or without a conviction.
7.67
Mr Hyland said that monitoring the performance of law enforcement agencies and holding them to account is a key aspect of his role:
It is about identifying what the targets are that should be looked at and then actually saying to law enforcement and statutory agencies that we need a response ... Once they are called to account, that is very much what my role is as the commissioner is—to say to them: 'This is the number of offences, this is the amount of crimes. Where are the outcomes?' Sometimes you have to create metrics and look at those numbers. I know that is sometimes simplistic, but if something is measured then you will get a response.
Training for law enforcement
7.68
Mr Hyland told the Committee that improving training is ‘crucial’ to his key priority area of ‘driving’ law enforcement and criminal justice processes in the UK. For example, to raise awareness of modern slavery indicators among law enforcement, local authorities and health services in the UK, Mr Hyland’s office developed three short videos:
These are only three or four-minute videos, but I have required them to go across these agencies that have got millions of people working for them—for example, by working with the director of nursing for England. She has 700,000 nurses who report to her, and I have been able to get these videos across. They may be three minutes, but they are telling them what it will look like in their workplace and who to call—that might be just, 'Call the police: it's a crime' or, 'Call your safeguarding lead in your organisation'—and are actually starting to give them the empowerment that they need. And they are doing this in other areas of vulnerability.
7.69
Mr Hyland’s office has also developed a specific training program for police officers:
… we have also worked with law enforcement and trained a number of key officers. We have also developed a training package that is going to be delivered across all police forces in the UK.
7.70
To complement these measures, the UK Home Secretary submitted that the UK Government has committed to mobilising a ‘major cross-agency effort to fill remaining capability gaps in our response to slavery’, including:
Investment of £8.5m in stronger police capabilities to deal with modern slavery, including more analysts, a cross-agency assessment centre, professional trainers, and a best practice centre.
Stronger guidance on crime reporting and referral of potential victims into specialist support and investment in new systems, including IT, to make it easier for law enforcement to collect and exploit modern slavery data.
The National Crime Agency made modem slavery one of its top intelligence collection and operational priorities.
Training for the judiciary
7.71
The UK Commissioner also plays a key role in providing training to the judiciary. Mr Hyland’s office has assisted in developing training packages for the judiciary:
I have worked with the college of judiciary and we have now trained 1,200 judges in the UK on this issue so we are now seeing sentences that are more severe, we are seeing compensation more structured and we are seeing that the judiciary now know this issue.
7.72
Ms Haughey, who also contributed to this training program, told the Committee of the importance of training and education for the judiciary:
… a lot of changes can be achieved effectively through education at limited cost. The difficulty is knowing it when you see it, and that can't be achieved unless you're educated in the first place and unless there are even a small group of people whose position of education, exposure and experience is given profile.
Inter-agency coordination
7.73
Submitters suggested that an Australian Commissioner could assist in improving inter-agency coordination between the various Commonwealth, state and territory agencies involved in combatting modern slavery, as well as non-government organisations (NGOs) and business.
7.74
As noted in Chapter 4, one of the five priorities for the UK Commissioner is to understand and promote best practice in working partnership between statutory bodies, civil society and the private sector.
7.75
Mr Hyland told the Committee that to improve coordination with the NGO sector, he chairs two separate groups:
… one about labour exploitation and then one about other areas of modern slavery where they can explain to me the issues they are facing and the information and the challenges we need to address. I think that including them in that sort of dialogue has been key to gaining their trust, to listening to what they are saying and then actually making the difference on the ground in what they are doing and informing government to make sure that they are doing the right thing in the right way. That is very much what my role is, as well.
7.76
The Walk Free Foundation highlighted that the independent oversight provided by the UK Commissioner is a key strength of the role and suggested a similar role in Australia could improve coordination between agencies:
To combat modern slavery effectively requires highly coordinated, coherent responses from many different agencies and stakeholders. The range of stakeholders can include government bodies (at both the state and federal level), police, universities, civil society, faith based communities, businesses, industries, unions and those offering victim support. Independent oversight is vital in order to step back and assess the effectiveness of each of these responses, identify gaps and inconsistencies and to provide a focus point for a comprehensive and cohesive strategy.
7.77
Similarly, Ms Stanger highlighted that:
… having a commissioner whose sole focus really was to work on this issue only would create so many more opportunities for us to improve the response, and also to more-quickly identify and address key issues with various departments or industries or business. We may be able to identify trends that we are currently not seeing.
Committee view
7.78
The Committee recognises that the UK Commissioner has performed an important role in driving change in the UK criminal justice system’s response to identifying, investigating and prosecuting modern slavery crimes.
7.79
Evidence based on the UK experience suggests that the establishment of an Independent Anti-Slavery Commissioner in Australia could assist in driving change in these important areas.
7.80
The Committee reiterates Recommendation 5 that the Australian Government establish an Independent Anti-Slavery Commissioner.
Duty to notify
7.81
As noted in Chapter 2, the UK Act contains provisions requiring specified public bodies to notify the UK Government where they have ‘reasonable grounds to believe that a person may be a victim of slavery or human trafficking’, even if those victims do not wish to receive specialist support. This duty to notify applies to a range of public bodies including law enforcement officers and local authorities (such as county councils).
7.82
The Committee heard that this duty to notify has contributed to an increase in victim identification in the UK.. The UK Home Office submitted that this provision ‘means that we are now receiving better data on potential slavery victims who do not wish to engage with the State’.
7.83
The Anti-Trafficking Monitoring Group (ATMG), a coalition of NGOs that monitors the UK’s implementation of the Council of Europe Convention on Action against Trafficking in Human Beings 2005, expressed concerns about how the information collected under the duty to notify provision is used, particularly for children. The ATMG submitted:
Despite government assurances that the Duty to Notify forms would not be used to identify victims, the reporting form contains a section in which sensitive, identifying information can be provided, with the individual’s consent. Clarity is required as to exactly who will handle and store this sensitive information, and how it will be used, and whether the person referred will receive acknowledgement that their information has been shared.
7.84
The Committee heard support for introducing a similar ‘duty to notify’ requirement in Australia to improve the identification of modern slavery victims. The Salvation Army Freedom Partnership suggested that public bodies be required to notify the proposed Independent Anti-Slavery Commissioner of potential victims.
Committee view
7.85
The Committee notes that the duty to notify provisions in the UK Act have contributed to improving the identification of potential victims of modern slavery in the UK.
7.86
The Committee agrees that a similar provision in Australia could have a positive impact on increasing awareness of modern slavery and identifying potential victims. The Committee notes that such a provision could also assist in data collection on the prevalence of modern slavery in Australia, but would need to protect the privacy of potential victims and their families.
7.87
The Committee recommends that the Australian Government introduce a duty for certain public bodies to notify relevant authorities about potential victims of modern slavery. These public bodies should include relevant Australian Government departments and agencies (including law enforcement agencies).
7.88
The Committee recommends that the introduction of the duty to notify provision be accompanied by training and awareness raising measures for these public bodies.
International engagement
7.89
As noted in Chapter 2, the Committee heard that the Australian Government supports a range of measures to combat modern slavery internationally through engagement with regional partners and foreign aid.
7.90
Australia’s International Strategy to Combat Human Trafficking and Slavery (International Strategy) aims to amplify the impact of Australia’s international efforts to combat human trafficking and slavery, consistent with the four pillars of prevention and deterrence, detection and investigation, prosecution and compliance, and victim support and protection as outlined in the National Action Plan to Combat Human Trafficking and Slavery 2015-19.
7.91
The Committee heard that Australia plays a key regional role in combatting human trafficking and slavery through the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process). The Bali Process is a forum for policy dialogue, information sharing and practical cooperation to address human trafficking and slavery in the Asia-Pacific region. The Bali Process is Co-Chaired by Australia and Indonesia and has more than 48 members.
7.92
The Committee heard that Australia’s foreign aid budget supports a range of international anti-trafficking programs. Australia’s ‘flagship investment’ to build and strengthen criminal justice responses to human trafficking in the region is the $50m Australia-Asia Program to Combat Trafficking in Persons (AAPTIP). The AAPTIP is one of Australia’s largest aid investments in South East Asia and aims to:
strengthen criminal justice responses to trafficking at both national and regional levels;
train judges, prosecutors, and investigators to increase rates of fair and just convictions;
deliver research to inform strategic directions for the criminal justice response;
boost regional coordination and exchange of information; and
assist countries in the region to implement obligations under the 2015 ASEAN Convention on Trafficking in Persons.
7.93
Australia’s Ambassador for People Smuggling and Human Trafficking, Mr Andrew Goledzinowski AM, told the Committee that Australia has been partnering with ASEAN for 15 years through the AAPTIP. Ambassador Goledzinowski highlighted an example of the work supported through the AAPTIP in a ‘landmark human trafficking legal case’ in Thailand in July 2017:
It saw over 60 defendants, including senior army and police figures, who were found guilty of trafficking Rohingya victims. This was during the 2015 Rohingya crisis, which we all remember. That was a breakthrough moment, I think, for Thai practice in this area. The entire prosecutorial team had received training through AAPTIP for more than two years, and then we see the result.
7.94
Ambassador Goledzinowski told the Committee that the Australian Government is ‘committed to continuing’ this work and that the AAPTIP will be ‘rebooted in a new phase’ after it concludes in 2018.
7.95
DFAT highlighted that Australia also contributes to the following regional anti-trafficking programs:
TRIANGLE in ASEAN safe migration program in partnership with the International Labour Organisation (ILO);
ILO Better Work Program to prevent serious forms of labour exploitation in supply chains in the Indo-Pacific ($5m); and
Preventing Exploitation of Women Migrant Workers in ASEAN ($2m).
7.96
As noted in Chapter 3, the Committee also heard that Australia is taking a lead role in Alliance 8.7, the global strategic partnership committed to achieving United Nations Sustainable Development Goal (SDG) Target 8.7 to end modern slavery. Ambassador Goledzinowski told the Committee:
Alliance 8.7 is a grouping of member states, in which Australia is playing a leadership role, with the aim of accelerating action and joining up global regional and national efforts to tackle modern slavery.
7.97
The UK Commissioner, Mr Hyland, also noted the leading role that Australia, together with the UK, has played in Alliance 8.7. Mr Hyland told the Committee that having a modern slavery target in the SDGs:
… means that the UK can now use international development in how we address things at source. The government has created a 33.5 million pounds international modern slavery fund, which is dedicated to funding projects in priority countries.
7.98
The PJCLE considered Australia’s international efforts to combat human trafficking and slavery and noted evidence that suggested Australia ‘could play a bigger role to combat these offences, specifically by providing additional and more secure funding to organisations working in the region’. The PJCLE recommended that the Australian Government commit to continuous funding of overseas anti-trafficking programs, including the AAPTIP and TRIANGE in ASEAN program.
7.99
Evidence to this inquiry similarly highlighted the importance of funding programs to combat modern slavery, including addressing its root causes. CARE Australia recommended that Australia reduce the opportunities for modern slavery to occur through supporting ‘decent and dignified work programming through overseas development assistance’, increased funding for gender-equality initiatives, and continuing to be ‘a leading champion for women’s economic empowerment in the Asia-Pacific region’.
7.100
Similarly, Hagar Australia argued that Australia’s aid program ‘has a vital role to play in combatting the drivers of human trafficking [and] slavery’ and recommended the aid program continue its flagship programs under the International Strategy and consider prioritising community-based initiatives. Hagar suggested that the aid program should be resourced to fund specific anti-slavery programs, as well as programs to address the drivers of modern slavery aimed at:
reducing poverty and inequality;
promoting inclusive economic growth;
achieving gender equality;
ending violence against women;
strengthening child protection;
security and peace building at the community, national, regional and global level; and
strengthening public institutions and democratic processes.
7.101
The Committee heard that the Australian aid budget supports Hagar Australia in its community-based work supporting victims of modern slavery in Cambodia. Ms Sreyna Sam, Client Care Operations Manager with Hagar in Cambodia, told the Committee:
In Hagar, we do community-based recovery, providing a safe family home placement with the family of origin, kinship or foster care—where our clients can stay safely. Living in a community can help them with self-determination and to recover quickly. They have to learn to adapt to their community when they are ready to get back to their families. Hagar case management provides community awareness training to the community and to families regarding human rights abuses and trafficking, and parenting skills and understanding the impact of the trauma to help them be responsible for protecting their children in their community.
7.102
Evidence also suggested that Australia could improve its regional engagement to better address the drivers of modern slavery. The Refugee Council of Australia suggested that the Bali Process could be:
… used more actively as a way of addressing the reasons behind irregular migration and the protection needs of those in the region that drive some of this migration.
Committee view
7.103
The Committee recognises and commends the work of the Australian Government in combatting modern slavery in the region through the Bali Process, Alliance 8.7 and its aid program, particularly the AAPTIP.
7.104
The Committee notes that, like Australia, the UK Government has recognised the importance of foreign aid in supporting the UK’s role in combatting modern slavery through establishing the £33.5 million International Modern Slavery Fund.
7.105
The Committee supports recommendation 5 by the PJCLE that Australia should continue to fund its overseas aid programs to combat modern slavery.
7.106
In addition, the Committee is of the view that the Australian Government consider how its aid program can better address the drivers of modern slavery, consistent with Australia’s commitments to UN SDG Target 8.7 to end modern slavery.
7.107
The Committee recommends that the Australian Government continue to fund overseas aid programs to combat modern slavery and increase this funding as deemed appropriate.
7.108
The Committee recommends that the Australian Government consider how Australia’s aid program could better address the drivers of modern slavery, consistent with Australia’s commitments to United Nations Sustainable Development Goal Target 8.7.
Specific offences
7.109
The Committee heard that there may be gaps in the criminal justice response to addressing specific modern slavery offences. These gaps are examined below.
7.110
The Committee notes that these issues were examined in detail by the PJCLE. The Committee’s examination of these issues focusses on comparisons with the UK Act and associated measures.
Diplomatic officials
7.111
During its visit to the UK in April/May 2017, a delegation from the Committee heard that in the UK there is a particular problem of domestic workers employed by diplomatic missions being subject to modern slavery. The Committee heard that law enforcement officials are limited in their ability to investigate such cases and victims have limited access to support due to the diplomatic immunities granted to diplomatic staff and missions.
7.112
The Committee heard that there have been incidences in Australia of domestic workers in diplomatic missions being subject to forced labour who have faced similar challenges. Ms Heather Moore from the Salvation Army Freedom Partnership told the Committee:
The Salvation Army safe house has assisted many domestic workers who have escaped from embassies. The main concern there is that all of the onus to escape, all of the onus to get away, is on the victim himself or herself—and there have been male victims in this type of exploitation. Because of the rules around entering diplomatic residences, it is impossible for the AFP to go in ... It is difficult for most victims to get out of these situations. It is even more difficult for this group, because there is nothing that requires them, obligates them or enables them to leave the premises once they are on the premises.
7.113
Representatives from the Australian Government noted that any suspected victim of trafficking, including those in diplomatic missions, can access the Support for Trafficked People Program. However, law enforcement officers must respect diplomatic immunities granted to diplomatic staff and missions in Australia:
… the Australian Government is required to respect the diplomatic privileges and immunities accorded to foreign diplomatic staff and foreign missions in Australia. This can include immunity from Australia’s criminal jurisdiction for acts performed in both personal and professional capacities. Foreign diplomatic missions and their documents are also inviolable. This means that where an alleged victim or offender enjoys diplomatic immunity, the Australian Government may be unable to progress a criminal investigation unless the sending State agrees to waive immunity.
7.114
Representatives from the Department of Foreign Affairs and Trade (DFAT) told the Committee that private domestic workers in diplomatic missions have been identified as a vulnerable group and that the Australian Government has undertaken a series of initiatives to raise awareness among the diplomatic and consular corps about Australia’s employment laws and minimum working conditions. Ms Lyndall Sachs, Chief of Protocol, told the Committee that these initiatives include:
establishing a working group to develop a range of measures to protect private domestic workers;
preparing a suite of awareness-raising materials for private domestic workers, foreign diplomatic and consular officials, immigration and other frontline officers;
reviewing the clarity of the protocol guidelines ‘to remind the diplomatic community of what the entitlements and rights are of domestic workers here in Australia’;
introducing a declaration for employers that states the employer will employ the private domestic worker in accordance with Australian employment conditions;
implementing a requirement for a pre-departure interview for all domestic workers who are proposing to come into Australia;
introducing annual renewal of ID cards, which gives DFAT officials an opportunity to discuss ongoing working conditions with private domestic workers; and
holding an annual briefing with the diplomatic corps and consular corps on their obligations as employers of private domestic workers, involving WorkSafe Australia and the FWO.
7.115
Ms Sachs told the Committee that when DFAT does become aware of alleged mistreatment, the department’s role:
… is that we can act as a mediator between the foreign mission or official and the private domestic worker. For example, if there is an issue involving disputed wages, we can place bans on individual officials or foreign missions preventing them from employing further domestic workers. We're also working with NGOs to provide assistance to private domestic workers, as well. In the most serious cases, we can seek the removal of the offending official, as well. As you can see, we're taking this matter very seriously. We acknowledge it is a vulnerable group. We're keen to put in as many protections as possible.
Committee view
7.116
The Committee acknowledges that domestic workers in foreign missions in Australia may be particularly vulnerable to exploitation.
7.117
The Committee welcomes the proactive approach DFAT has taken to addressing the possible exploitation of domestic workers in foreign missions in Australia. The Committee considers that these measures will assist in increasing awareness of Australian employment law among the diplomatic corps and provide more avenues for foreign domestic workers to report cases of exploitation.
Sex trafficking
7.118
The Committee received a number of submissions on sex trafficking in Australia. Many of these submitters did not support the introduction of a Modern Slavery Act based on the UK model and disagreed with how trafficking and sexual exploitation is defined in the UK Act.
7.119
Submitters representing sex workers argued that the definition of sex trafficking in UK Act conflates exploitation and trafficking with sex work. Ms Jules Kim, CEO of the Scarlet Alliance, the peak body for sex workers, told the Committee that in Australia:
… we already have ample legislative provisions in dealing with slavery, servitude and trafficking and the [UK] act would actually weaken instead of strengthen those definitions.
7.120
Other submitters representing secular and faith-based NGOs expressed concern that the definition of sex trafficking in the UK Act is too rigid and not consistent with international law. For example, the Committee heard that the Nordic Model Australia Coalition (NorMAC) did not support:
… the implementation of a modern slavery act based on the UK legislation which seems blind to the exploitation faced by persons, particularly women in the sex trade, and its very rigid definition of sex trafficking.
Decriminalisation and preventative measures
7.121
Instead, these submitters suggested other changes to Australia’s policy and legislative frameworks for addressing sex trafficking, including decriminalisation and preventative measures. The Committee notes that PJCLE considered these issues in its recent report.
7.122
A group of secular and faith-based NGOs argued for the introduction of the Swedish or ‘Nordic Model’ of prostitution legislation as the most effective way to stop human trafficking for the purposes of sexual slavery. The Nordic Model was first enacted in Sweden in 1999 and aims to reduce the demand for sexual services by decriminalising sex workers through the abolition of solicitation offences and criminalising the purchasing of people for sex. The Fighting for Justice Foundation submitted that the Nordic Model:
… acknowledges that less demand for prostitution and less demand for trafficking equates to less prostitution and less trafficking - reducing the number of women exposed to the harmful abuse, objectification, commodification and gender based violence that the women in the industry face - and therefore the community as a whole has more of a chance to achieving gender equality outcomes for all women and girls.
7.123
Other submitters representing sex workers strongly opposed the Nordic model and advocated for the full decriminalisation of the sex work industry. The Scarlet Alliance, the peak body for Australian sex workers, submitted that decriminalisation:
… has proven to create the most enabling environment to ensure migrant sex workers are afforded workplace rights; have access to legal, health and supportive services and bilingual peer educators; and has proven to reduce organised crime and police corruption.
7.124
The Scarlet Alliance argued that the Nordic Model has increased ‘persecution and deportation of migration sex workers, reproducing the very circumstances that make migrant sex workers vulnerable to trafficking and exploitation’ and reduced ‘safe legal migration pathways and the capacity of peer outreach to reach migrant sex workers’.
7.125
In addition, Ms Jane Green from the Vixen Collective, a member of the Scarlet Alliance representing sex workers in Victoria, advocated for the introduction of better prevention strategies:
… to prevent human trafficking and modern slavery within Australia and those strategies come from things like funding peer services to work within our own community, to provide training and peer education, to provide information on labour rights, to have culturally and linguistically diverse peer educators that can interact with people in their own language, and to have migration information available for people that are prospectively migrating to Australia, again in their own language.
7.126
The Committee also heard concerns that two projects formerly funded by the Attorney-General’s Department to support sex workers and prevent sex trafficking, the Scarlet Alliance’s Migration Project and Project Respect, were not renewed by the Australian Government.
7.127
The Committee notes that these same issues were considered by the Human Rights Sub-Committee in its 2013 Trading Lives report. The Human Rights Sub-Committee did not support either the Nordic Model or decriminalisation and was of the view ‘that a thorough examination of these options should be undertaken before any mechanisms can be developed or agreed upon’.
7.128
The PJCLE also considered legislative approaches to the sex industry, including the Nordic Model, and concluded that ‘balanced and constructive research’ into the prevalence of sex trafficking in Australia was needed ‘so that the quantum of the problem can be properly understood before possible solutions are proffered’.
7.129
The PJCLE further recommended that the Australian Government strengthen visa systems to prevent involuntary human trafficking in the sex industry, and fund initiatives to inform migrant sex workers about their legal rights and obligations both pre-departure and post-arrival in Australia.
Committee view
7.130
As noted in Chapter 3, the Committee agrees that the definitions of sex trafficking as outlined in the UK Act are not appropriate for adoption in Australia. The Committee supports the current Australian definitions of human trafficking, slavery and slavery-like offences under the Criminal Code.
7.131
The Committee recognises the many submissions it received on measures to prevent sex trafficking in Australia. The Committee notes that these issues were considered in detail by the Human Rights Sub-Committee and the PJCLE.
7.132
The Committee supports the PJCLE’s recommendations that further research into the prevalence of sex trafficking is required before solutions are offered, and that further investment in preventative measures, including strengthening Australia’s visa framework, should be considered.
7.133
The Committee recommends that the Australian Government implement recommendations 13, 14 and 15 of the Parliamentary Joint Committee on Law Enforcement’s Inquiry into human trafficking, slavery and slavery-like practices regarding sex trafficking.
Forced marriage
7.134
The Committee received a small number of submissions proposing measures to better combat forced marriage, including introducing a Forced Marriage Protection Order, similar to the orders introduced by the UK Act.
7.135
The Committee heard some support for referencing the forced marriage offences in the Criminal Code in the proposed Modern Slavery Act. Ms Christine Carolan from Australian Catholic Religious Against Trafficking in Humans (ACRATH) told the Committee that following reforms in 2013, Australia’s laws against forced marriage are ‘very good … at naming the problem of forced marriage’.
7.136
The Committee notes that these issues were examined by the PJCLE. The PJCLE considered these issues and concluded that ‘the existing legislative provisions are sufficient to address this practice’. The PJCLE did not support the introduction a Forced Marriage Protection Order based on the UK Act noting that border alerts relating to forced marriage have been available in Australia since October 2016. The PJCLE did express concern about protections available to adults and recommended that the Australian Government consider extending the application of protection orders to people over 18 years of age.
7.137
The PJCLE considered that protections for potential victims of forced marriage ‘could be strengthened by other means’ and recommended that the Australian Government: continue to fund organisations and programs that engage in outreach, education and awareness-raising activities; consider including information on forced marriage in school curricula; and that information on forced marriage be ‘consistently and routinely’ provided to new migrants.
Committee view
7.138
As discussed in Chapter 3, the Committee notes that offences against forced marriage are clearly outlined Division 270.7B of the Criminal Code. The Committee has already recommended that these offences be referenced in the proposed Modern Slavery Act.
7.139
The Committee notes that the issues raised by submitters to this inquiry around forced marriage were considered in detail by the PJCLE, including the proposal to introduce Forced Marriage Protection Orders based on the UK Act. The Committee notes that similar provisions already exist in Australia’s legislative and policy frameworks.
7.140
The Committee supports the conclusions and recommendations of the PJCLE to improve protections for potential victims of forced marriage, including providing funding for organisations that engage in outreach, education and awareness raising, including forced marriage in the school curricula, and providing information on forced marriage to new migrants.
7.141
The Committee recommends that the Australian Government implement recommendations 17, 18, 19 and 20 of the Parliamentary Joint Standing Committee on Law Enforcement’s Inquiry into human trafficking, slavery and slavery-like practices regarding forced marriage.
Debt bondage
7.142
The Committee heard concerns about the practice of debt bondage in Australia. Ms Felicity Gerry QC submitted that in Australia:
Often, men, women and girls are held in debt bondage, being forced to provide profit for their traffickers to pay off a unilateral, legally unenforceable debt.
7.143
The Committee notes allegations of debt bondage have been reported across a range of industries in Western nations, including the UK. A 2016 report by the UN Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Ms Urmila Bhoola, found that debt bondage remains one of the most prevalent forms of modern slavery in all regions of the world.
7.144
In Australia, media reports have highlighted allegations of debt bondage, particularly for skilled migrants and international students, as well as migrant workers in the horticultural industry.
7.145
Some submitters to this inquiry expressed concern about the prevalence of debt bondage in the sex industry. Ms Linda Rayment, Chief Executive Officer of the Human Trafficking Resource and Assistance Centre that supports victims of sex trafficking, estimated that approximately 2 000 women are trafficked or held in debt bondage each year in Australia for the purposes of sexual exploitation.
7.146
The Committee also heard concerns about debt bondage for migrant workers. At its Mildura hearing, Mr Mocieca Turaga, who was trafficked to Australia from Fiji to work in the horticultural industry, told the Committee he was not paid for his work and was told ‘there was a debt that I had to pay off for travel and visa costs’.
7.147
However, Ms Jules Kim, Chief Executive Officer of the Scarlet Alliance, citing a study by the Australian Institute of Criminology, told the Committee that while ‘debt contracts’ were common across a range of industries, including the sex industry, these did not necessarily lead to debt bondage and exploitation:
For the most part … people do see it as an opportunity and, in a lot of cases, as an interest-free loan, in order to travel and start work and have an opportunity to earn a good wage. And it's not just in the sex industry, either. It is a lot of men in construction and across a wide field. Even in Australia you might have people who sign a work contract and get their ticket paid for. There are a lot of situations like that, and that does not necessarily constitute exploitation.
7.148
As noted above, the Committee heard concerns about the ability of law enforcement agencies to effectively investigate and prosecute cases of debt bondage and other modern slavery crimes.
7.149
Representatives from the FWO told the Committee that some practices that could constitute debt bondage were within their powers to investigate:
Debt bondage could come from a number of ways. It could be exorbitant rent in inappropriate accommodation. It could be cash back—'You'll get paid but then you have to provide me money back.' That is some evidence we received in our 7-Eleven inquiry. There is a range of other issues as well. We would say that unlawful deductions against an employee that resulted in the employee receiving less than their minimum entitlements under the Fair Work Act would be within our jurisdiction and obviously something that we would take seriously.
7.150
Slavery Links Australia suggested that moving debt bondage from Division 271 (trafficking in person offences) and to Division 270 (slavery offences) of the Criminal Code ‘would make a significant impression with regard to education and, indeed, prosecution of slavery and slavery-like offences’. Slavery Links Australia argued that moving debt bondage to Division 270 with other slavery offences would ‘remove ambiguity by uncoupling debt bondage from human trafficking’ and would expand the categories of slavery and slavery-like offences consistent with international law. Dr Mark Burton from Slavery Links Australia told the Committee the suggestion was to improve ‘consistency’:
One of the things clearly to avoid …[is] the danger of trivialising … the notion of slavery by bringing everything in underneath it, such that it becomes a meaningless or indeed a tame concept rather than a truly abhorrent, internationally recognised point of criminal law.
It is really not to add new nomenclature but really to standardise it so that wherever you went, in terms of Australian legislation … these things are consistent across the board and not open to individual frolics or little adventures in interpretation.
Committee view
7.151
The Committee is concerned by evidence suggesting debt bondage may be prevalent across a range of industries in Australia. The Committee recommends that the Australian Government investigate measures to better identify and prosecute cases of debt bondage, including reviewing where debt bondage sits in the Criminal Code.
7.152
The Committee recommends that the Australian Government investigate measures to better identify and prosecute cases of debt bondage in Australia, and to reduce where possible the unnecessary or illegitimate taking of upfront debt or deductions from wages.
7.153
As part of these measures, the Committee recommends that the Australian Government move debt bondage from Division 271 to Division 270 of the Criminal Code Act 1995.
Cybersex trafficking
7.154
The Committee received a small number of submissions on the issue of cybersex trafficking. Collective Shout recommended that the Committee include cybersex trafficking and the online exploitation of children in the scope of its considerations on modern slavery.
7.155
The Committee also heard from Thorn: Digital Defenders of Children (Thorn) a US-based non-profit organisation that partners with technology companies, law enforcement and NGOs to develop technology tools to combat cybersex trafficking that ‘find victims faster, make online environments safer and deter criminal behaviour’. Thorn recommended that, as part of its response to modern slavery, Australia develop a national response to address the online sexual exploitation of children.
7.156
The Committee notes that in February 2017, Thorn’s Co-Founder, Mr Ashton Kutcher, and CEO, Ms Elisa Massimino, appeared before the United States Senate Committee on Foreign Relations to discuss modern slavery. Mr Kutcher told that Committee of the importance of using technology to address the online exploitation of children:
While our goal is that no one falls prey to trafficking ever, if and when they do, we must have a rapid response. When children are being trafficked and exploited, time is of the essence. There is not a moment to waste. And this is where technology can help.
7.157
The Committee notes that the PJCLE examined cybersex trafficking in its recent report and recommended that the Australian Government review current legislative provisions and criminal offences.
Committee view
7.158
The Committee notes it received limited evidence on the issue of the online exploitation of children.
7.159
However, the Committee agrees that this important issue should be considered as part of Australia’s response to combatting modern slavery and agrees with the recommendation by the PJCLE for the Australian Government to investigate and review its response to this crime.
7.160
The Committee recommends that the Australian Government implement recommendation 16 of the Parliamentary Joint Committee on Law Enforcement’s Inquiry into human trafficking, slavery and slavery-like practices regarding cybersex trafficking.
Parliamentary scrutiny
7.161
The Committee heard support for a proposal to add the 1956 Supplementary Convention on the Abolition of Slavery (Slavery Convention) to the list of core human rights treaties considered by the Parliamentary Joint Committee on Human Rights (PJCHR). Submitters suggested this would ensure that the PJCHR considered the implications of any future legislation with Australia’s obligations under the Slavery Convention.
7.162
Mr Laurie Ferguson, former Deputy Chair of the PJCHR and former Chair of the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade during the 2013 Trading Lives report, submitted that including the Slavery Convention in the process of parliamentary scrutiny by the PJCHR was overlooked by that inquiry.
7.163
Mr Ferguson noted that during his time as Deputy Chair of the PJCHR, the Slavery Convention and related conventions ‘did not come to the attention of the PJCHR’. Mr Ferguson submitted that a ‘direct reference to slavery certainly seems required’ and could be achieved through amending section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Committee view
7.164
The Committee considers that improving parliamentary scrutiny of modern slavery would assist to raise the profile of the issue and emphasise the commitment of the Australian Parliament to combatting these crimes.
7.165
The Committee agrees that the Slavery Convention and other relevant instruments should be added to the list of instruments considered by the PJCHR.
7.166
The Committee recommends that the Australian Government add the 1956 Supplementary Convention on the Abolition of Slavery and other related international instruments addressing modern slavery to the list of core human rights treaties considered by the Parliamentary Joint Committee on Human Rights, by amending the Human Rights (Parliamentary Scrutiny) Act 2011.