Chapter 2 – A Modern Slavery Act for Australia?
Chapter 2 compares the UK Modern Slavery Act 2015 with Australia’s existing legal and policy frameworks to combat modern slavery.
This chapter recommends establishing a Modern Slavery Act in Australia.
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Recommendation
2.72
The Committee recommends that the Australian Government introduce a Modern Slavery Act in Australia. The Modern Slavery Act should include:
referencing in one location Australia’s existing modern slavery offences as outlined in Division 270 and 271 of the Criminal Code Act 1995, as well as offences relevant to combatting modern slavery such as withholding passports under section 21 of the Foreign Passports (Law Enforcement and Security) Act 2005, offences relating to sexual and labour exploitation and offences under the Migration Act 1958;
provisions for an Independent Anti-Slavery Commissioner;
provisions for a mandatory supply chain reporting requirement that requires certain entities to report on modern slavery risks in their supply chains;
measures to support victims of modern slavery, including establishing a national compensation scheme;
measures to improve criminal justice responses to modern slavery;
measures to address orphanage trafficking and child exploitation in overseas residential institutions; and
measures to address labour exploitation, including establishing a labour hire licensing scheme and making changes to Australia’s visa framework.
2.73
Consistent with the proposed Modern Slavery Act, the Committee recommends that the Australian Government incorporate the term ‘modern slavery’ into official usage to replace ‘human trafficking and slavery’, including by re-naming the National Action Plan to Combat Human Trafficking and Slavery 2015-19 and the Interdepartmental Committee on Human Trafficking and Slavery.
2.74
The Committee recommends that the Australian Government support the introduction of the Modern Slavery Act with a public awareness campaign about modern slavery.
Chapter 3 – Defining and measuring modern slavery
Chapter 3 outlines the current definitions of modern slavery crimes under Australian and international law and discusses challenges in measuring the prevalence of modern slavery in Australia and globally.
This chapter recommends a definition for modern slavery and measures to improve data collection on the prevalence of modern slavery in Australia.
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Recommendation
3.63
The Committee recommends that the Australian Government ratify the Protocol of 2014 to the Forced Labour Convention, 1930.
Recommendation
3.64
The Committee recommends that the Australian Government define modern slavery in the proposed Modern Slavery Act as a non-legal umbrella term, to include but not be limited to:
modern slavery crimes outlined in Division 270 and 271 of the Criminal Code Act 1995 (including slavery, servitude, forced labour, trafficking in persons, forced marriage, child trafficking, debt bondage and other slavery-like practices);
child labour and the worst forms of child labour, consistent with UNICEF’s definition of child labour and the International Labour Organisation’s Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 1999 (No. 182);
child exploitation including in residential institutions and through orphanage trafficking; and
other slavery-like practices.
3.65
In drafting this definition, the Australian Government should also take into account the latest definitions of modern slavery by international bodies such as the International Labour Organisation and the Walk Free Foundation, as well as under international instruments and initiatives.
Recommendation
3.95
The Committee recommends that the Australian Government continue its leadership role in Alliance 8.7 to support the International Labour Organisation, the United Nations Office on Drugs and Crime, the International Organisation for Migration, UNICEF and other bodies to develop more effective ways to measure the global prevalence of modern slavery.
Recommendation
3.120
The Committee recommends that the Australian Government support the Australian Institute of Criminology to develop an enhanced research and monitoring program to better understand the prevalence of modern slavery in Australia.
Chapter 4 – Independent Anti-Slavery Commissioner
Chapter 4 builds on the Committee’s interim report and assesses the role of the UK Independent Anti-Slavery Commissioner.
This chapter recommends establishing an Australian Independent Anti‑Slavery Commissioner, similar to the UK role.
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Recommendation
4.59
The Committee recommends that the Australian Government establish an Independent Anti-Slavery Commissioner under the proposed Modern Slavery Act with powers and resources to undertake the following functions, including but not limited to:
overseeing the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015-19 and any future plans to combat modern slavery;
monitoring and investigating compliance of government agencies with the National Action Plan to Combat Human Trafficking and Slavery 2015-19 and existing modern slavery legislation;
ensuring victims of modern slavery, including children, have access to appropriate support services;
providing education, guidance and awareness training for government agencies and entities about modern slavery issues;
engaging with government and entities on the implementation and operation of the proposed supply chain reporting requirement and central repository;
collecting and analysing data on modern slavery in Australia;
undertaking legislated reviews of the proposed Modern Slavery Act at least every three years;
improving coordination between criminal justice agencies in identifying and prosecuting modern slavery cases;
providing advice on how to improve the proposed Modern Slavery Act, as well as responses to modern slavery, on an ongoing basis;
providing independent oversight of the response to combatting modern slavery across all sectors, and identifying gaps and solutions;
working with various agencies, law enforcement bodies, prosecutors and others to increase the identification and reporting of modern slavery crimes, and to bolster the prosecution rates for modern slavery offences;
raising community awareness of modern slavery; and
any other related matters.
4.60
The Committee recommends that the proposed Modern Slavery Act provide that the Commissioner be truly independent from government or any other body, such as the Australian Human Rights Commission or the Commonwealth Ombudsman, and oversee their own properly resourced and independent office. The Commissioner should report to Parliament.
4.61
The Committee recommends that the Commissioner’s role complement the existing roles of the Attorney-General’s Department and the Ambassador for People Smuggling and Human Trafficking. In developing the Commissioner position, consideration should be given to ensuring complementarity with the Ambassador position and avoiding an overlap of roles and responsibilities.
Recommendation
4.62
The Committee recommends that the Australian Government support the Independent Anti-Slavery Commissioner to undertake a legislated review of the proposed Modern Slavery Act three years after its commencement and every three years thereafter. This legislated review should include, but not be limited to:
the effectiveness of, and possible changes to, the proposed Modern Slavery Act and other measures in combatting modern slavery;
the public awareness of modern slavery;
the appropriateness of, and prosecution levels for, offences under Divisions 270 and 271 of the Criminal Code;
the operation of the proposed supply chain reporting requirement and the central repository (including but not limited to: the revenue threshold level; penalties and compliance measures; the prescribed reporting requirements; the idea of a consumer mark or logo for products and services which are deemed slavery-free; the potential for tax incentives for entities that are compliant with the proposed reporting requirement; the need for a grievance mechanism; expanding reporting to other human rights issues; auditing of suppliers to the Australian Government; and random audits of modern slavery statements for compliance);
further support measures for victims of modern slavery, including the need for specific risk and prevention orders;
Australia’s visa policies and their potential to create vulnerability for modern slavery; and
other measures recommended in this report.
Chapter 5 – Transparency in supply chains
Chapter 5 builds on the Committee’s interim report and examines the proposed model for a mandatory supply chain reporting requirement outlined in the Australian Government’s consultation paper released on 16 August 2017.
This chapter supports the main elements of the proposed model, including a central repository, guidance for entities and prescribed reporting areas. This chapter also recommends changes to the proposed model to include public procurement, penalties and compliance measures and a revenue threshold of $50 million.
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Recommendation
5.23
The Committee recommends that the Australian Government define entities that will be subject to the mandatory supply chain reporting requirement broadly to include, but not be limited to: companies; businesses; organisations (including religious bodies); Commonwealth government agencies and public bodies; the Australian Government; bodies corporate; unincorporated associations or bodies of persons; sole traders; partnerships; trusts; superannuation funds; and approved deposit funds.
Recommendation
5.36
The Committee recommends that the Australian Government require annual modern slavery statements to be provided within five months after the end of the Australian financial year.
Recommendation
5.39
The Committee recommends that the Australian Government require modern slavery statements to be approved at the equivalent of board level and signed by the equivalent of a director.
Recommendation
5.49
The Committee recommends that the Australian Government set the total revenue threshold for the mandatory supply chain reporting requirement at $50 million to capture most large entities operating in Australia, and to be internationally consistent with the UK threshold under the Modern Slavery Act 2015.
5.50
The Committee recommends that there be a legislated ‘opt-in’ option for smaller entities below the threshold that wish to voluntarily submit a modern slavery statement.
Recommendation
5.64
The Committee recommends that the Australian Government introduce a requirement to only procure from entities that complete a modern slavery statement.
5.65
The Committee further recommends that Commonwealth public bodies over the prescribed threshold amount, including the Australian Government, be required to provide a modern slavery statement.
5.66
The Committee recommends that the Australian Government, through the Council of Australian Governments (COAG) and local government associations, encourage state, territory and local governments to introduce requirements to only procure from entities that comply with the modern slavery supply chain reporting requirement, as well as to submit modern slavery statements.
Recommendation
5.76
The Committee recommends that the Australian Government include in the proposed Modern Slavery Act a provision to enable entities, in particular smaller entities, to provide a modern slavery statement to other requesting entities as evidence of them having found no modern slavery in their own supply chains, as opposed to having to provide different sets of information to multiple requesting entities. An entity should not have to provide further information to a requesting entity, unless the request covers specific information not addressed in their modern slavery statement.
Recommendation
5.93
The Committee recommends that the Australian Government prescribe the following specific areas for reporting under the proposed Modern Slavery Act, which takes in account the outcomes of the Australian Government’s consultation process, best practice in international jurisdictions and the suggested areas outlined in section 54(5) of the UK Modern Slavery Act 2015, being:
the organisation’s structure, its business and its supply chains;
its policies in relation to modern slavery;
its due diligence and remediation processes in relation to modern slavery in its business and supply chains;
the parts of its business and supply chains where there is a risk of modern slavery taking place, and the steps it has taken to assess and manage that risk;
its effectiveness in ensuring that modern slavery is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate;
the training about modern slavery available to its management and staff; and
5.94
The Committee recommends that the Australian Government encourage existing supply chain audit and quality assurance providers to include a specific requirement that their clients provide evidence that their suppliers, both in Australia and overseas, are paying workers piece rates or hourly wages in accordance with local laws, and are not perpetuating any forms of modern slavery.
5.95
The Committee recommends that the operation of the prescribed reporting requirements, including possible escalation to prescribed full or stepped due diligence reporting, be considered as part of a legislated review after three years undertaken by the Independent Anti-Slavery Commissioner.
Recommendation
5.115
The Committee recommends that the Australian Government provide detailed, clear guidance on the operation and expectations of the supply chain reporting requirement to entities required to report. In preparing this guidance, the Australian Government should consult with the proposed Independent Anti-Slavery Commissioner.
5.116
The Committee recommends that this guidance be complemented through:
resources to raise awareness of the modern slavery reporting requirements;
training for entities on how to report;
advice on mapping supply chains;
writing to entities that are required to report;
raising public awareness about modern slavery;
funding training for entities required to report, as well as training for frontline services, government departments, NGOs and embassies;
including a definition of supply chains for goods and services (including financial services) that considers the OECD Due Diligence Guidance, and which covers aid, donations and giving by government and entities; and
publishing a list of products or services, people groups, areas and industries with a high risk of modern slavery, both within Australia and internationally.
Recommendation
5.119
The Committee recommends that the Australian Government legislate in the proposed Modern Slavery Act to require entities above the threshold to publish their modern slavery statement on their website, or otherwise make their statement available in their annual report or other public document if that entity does not have a website.
Recommendation
5.134
The Committee recommends that the Australian Government establish and support a legislated and government funded central repository of modern slavery statements under the proposed Modern Slavery Act.
5.135
The Committee recommends that the Australian Government support and fund an independent civil society NGO or NGOs to run and administer the central repository, as well as to undertake benchmarking and analysis of modern slavery statements.
5.136
The Committee recommends that the Independent Anti-Slavery Commissioner have powers to make recommendations to improve the operation of the central repository.
5.137
The Committee recommends that, in developing this central repository, the Australian Government consult with organisations operating existing repositories in the UK, including the Business and Human Rights Resource Centre and TISC Report. The Committee strongly recommends the establishment of a combined international repository to provide for international consistency and to avoid unnecessary duplication, particularly for entities reporting in multiple jurisdictions.
Recommendation
5.142
The Committee recommends that the Australian Government publish a list of entities required to report under the proposed mandatory supply chain reporting requirement, as soon as possible after the commencement of the proposed Modern Slavery Act. The list should be published alongside the central repository of statements to improve accountability and transparency.
5.143
The Committee recommends that a separate list be published to indicate which entities have reported, and to indicate which entities below the threshold have reported voluntarily. This list should be published alongside the central repository of statements to improve accountability and transparency, and to reward compliance.
Recommendation
5.171
The Committee recommends that the Australian Government, in mandating supply chain reporting, introduce penalties and compliance measures for entities that fail to report under the proposed Modern Slavery Act, applying to the second year of reporting onwards. This should include publishing a list of entities above the threshold that fail to report after the second year of reporting onwards, published alongside the central repository of statements.
5.172
The Committee recommends that the Australian Government consider the appropriate level of penalties in the proposed Modern Slavery Act and how penalties should be administered, including a possible role for the Australian Securities and Investment Commission (ASIC).
5.173
The Committee recommends that the proceeds from any penalties collected under this measure be used to support victims of modern slavery.
5.174
The Committee recommends that the first legislated three-year review by the Independent Anti-Slavery Commissioner consider penalties for entities above the threshold that fail to adequately report on the prescribed reporting areas, as well as publishing a list of such entities as a further compliance measure, and penalties for entities that fail to take action, or sufficient action, on modern slavery found within their supply chains.
Recommendation
5.187
The Committee recommends that the Australian Government consider introducing other trade mechanisms to address modern slavery risks in the supply chains of goods entering Australia. In considering these mechanisms, the Committee suggests the Australian Government consider the US model of importation restrictions under the Trade Facilitation and Trade Enforcement Act 2015.
Chapter 6 – Support for victims
Chapter 6 examines how to better improve support for victims of modern slavery in Australia.
This chapter recommends changes to the Support for Trafficking People Program and Human Trafficking Visa Framework, introducing a statutory defence for victims, establishing a national compensation scheme and funding for NGOs working to support victims.
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Recommendation
6.79
The Committee recommends that the Australian Government de-links access to the Support for Trafficked People Program and the Human Trafficking Visa Framework (including the Bridging F visa and Referred Stay (Permanent) visa) from compliance with criminal investigations.
6.80
The Committee recommends that the Australian Government amend the Human Trafficking Visa Framework to facilitate and expedite family reunification for victims of modern slavery.
6.81
The Committee recommends that the Australian Government extend the ability to refer potential victims to the Support for Trafficked People Program and the Bridging F visas beyond the Australian Federal Police to other approved entities, such as the Department of Immigration and Border Protection, Australian Border Force, approved NGOs, state and territory police, the proposed modern slavery hotline operators and the Fair Work Ombudsman.
6.82
The Committee recommends that the Australian Government consider extending the 45 day ‘reflection and recovery’ period for victims on Bridging F visas to a minimum of 90 days, with multiple options for extension.
6.83
The Committee recommends that the Australian Government consider extending the 45 day period of initial support available under the Support for Trafficked People Program to a minimum of 90 days, with multiple options for extension.
Recommendation
6.101
The Committee recommends that the Australian Government introduce defences for victims of modern slavery offences who are compelled to commit a crime due to exploitation, similar to but improving on section 45 of the UK Modern Slavery Act 2015 and drawing from international best practice. This should include a pathway for appeal and/or expungement of criminal convictions for victims of modern slavery who have legitimate defences.
6.102
The Committee recommends that specific guidance (including sentencing guidance) be developed to support the introduction of these defences, which takes into account the impact of modern slavery, exploitation, coercion and vulnerability on victims.
Recommendation
6.133
The Committee recommends that the Australian Government establish a national compensation scheme for victims of modern slavery in Australia, modelled on existing victim compensation schemes administered by the Commonwealth.
6.134
The Committee recommends that eligibility for compensation should not be contingent on participation in criminal investigations or prosecutions.
6.135
The Committee recommends that victims who are not Australian citizens and do not hold valid visas, or who hold Bridging F visas, Referred Stay (Permanent) visas or other similar visas, should be permitted to remain in Australia while their application for compensation is considered and finalised.
6.136
The Committee recommends that the national compensation scheme should be funded through the proceeds of crime, where possible, and/or by the Australian Government.
Recommendation
6.146
The Committee recommends that the Australian Government continue to fund NGOs and civil society to support victims of modern slavery, and increase this funding where deemed appropriate.
6.147
The Committee recommends that the process for administering grants from the Human Trafficking and Slavery Prevention Grant be reviewed to ensure victims of modern slavery receive appropriate support.
Recommendation
6.158
The Committee recommends that the Australian Government introduce a right to civil remedy for victims of modern slavery.
6.159
The Committee recommends that the Australian Government consider ways to better enable victims of modern slavery to access support and compensation, including by ensuring victims have access to legal aid.
Chapter 7 – Criminal justice responses
Chapter 7 examines measures to improve Australia’s criminal justice responses to combatting modern slavery in order to improve the identification of victims and prosecution of offenders.
This chapter recommends improving coordination between and training for law enforcement agencies and the criminal justice system, introducing a duty to report suspected modern slavery cases and measures to address debt bondage. It also supports a number of recommendations by the Parliamentary Joint Committee on Law Enforcement on sex trafficking, forced marriage and cybersex trafficking.
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Recommendation
7.50
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.
7.51
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.
7.52
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.
7.53
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.
7.54
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.
Recommendation
7.89
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).
7.90
The Committee recommends that the introduction of the duty to notify provision be accompanied by training and awareness raising measures for these public bodies.
Recommendation
7.109
The Committee recommends that the Australian Government continue to fund overseas aid programs to combat modern slavery and increase this funding as deemed appropriate.
7.110
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.
Recommendation
7.135
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.
Recommendation
7.143
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.
Recommendation
7.154
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.
7.155
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.
Recommendation
7.162
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.
Recommendation
7.168
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.
Chapter 8 – Orphanage trafficking
Chapter 8 examines the specific issue of orphanage trafficking and child exploitation in overseas residential institutions (or ‘orphanages’) and measures to ensure that Australian tourists and donors are not contributing to perpetuating these exploitative practices.
This chapter recommends funding a national awareness campaign on the risks of orphanage trafficking, changes to charity regulations and establishing a register of legitimate overseas residential institutions, with penalties applying to visiting or donating to non-registered institutions.
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Recommendation
8.32
The Committee recommends that the Australian Government fund and/or support research into the prevalence of orphanage trafficking and exploitation in overseas residential institutions around the world, including the contribution that Australian aid and/or donations inadvertently make to perpetuating these practices.
8.33
The Committee further recommends that the Australian Government work with its international partners in Alliance 8.7 to ensure that children living in overseas residential institutions are included in data gathered to monitor progress against the United Nations Sustainable Development Goals.
Recommendation
8.70
The Committee recommends that the Australian Government, through the Department of Foreign Affairs and Trade, the Department of Education and other public bodies, continue its initiatives to raise awareness about the risks of orphanage trafficking and the exploitation of children in residential institutions by:
continuing to work with education providers, particularly high‑schools and tertiary institutions, to provide guidance, advice and further information in relation to volunteering overseas on the risks of orphanage trafficking and the exploitation of children in residential institutions;
engaging with the travel industry on awareness and advice to discourage orphanage tourism, except to overseas residential institutions registered as compliant by the Australian Government (see recommendation 41) and operating in compliance with the United Nations Convention on the Rights of the Child and the United Nations Guidelines for the Alternative Care for Children;
working with the Australian Charities and Not-for-profits Commission and the Overseas Aid Gift Deduction Scheme to raise awareness of, and examine ways to strengthen, child-safeguarding standards;
further strengthening the SmartTraveller website to provide definitive advice to travellers not to engage in orphanage tourism, except to overseas residential institutions registered as compliant by the Australian Government and operating in compliance with the United Nations Convention on the Rights of the Child and the United Nations Guidelines for the Alternative Care for Children;
providing examples through media channels (including SmartTraveller, traditional media and social media) on alternative ways to support vulnerable children and families;
including information on this issue on the upcoming Australian Volunteers website; and
increasing awareness and advice to educational institutions and the public regarding the risks of orphanage voluntourism to vulnerable children.
Recommendation
8.71
The Committee recommends that the Australian Government, through the Department of Foreign Affairs and Trade, fund and develop a national awareness campaign about the risks of orphanage exploitation and orphanage tourism, targeting: volunteers and donors; charities; faith-based organisations; educational institutions; businesses and the travel industry. This campaign should include providing written information to these groups on the risks of orphanage trafficking, and include information about the proposed register (see recommendation 41).
8.72
As part of this awareness campaign, the Committee recommends that the Australian Government work with Australian businesses to develop a memorandum of understanding to discourage supporting overseas residential institutions that do not operate in compliance with the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Alternative Care for Children and the proposed register (see recommendation 41).
Recommendation
8.84
The Committee recommends that the Australian Government, particularly through its work with Alliance 8.7, ASEAN, APEC and other regional fora, as well as international bodies such as the Commonwealth Heads of Government Meeting (CHOGM), continue to work with international governments to raise awareness of orphanage trafficking and exploitation as a form of modern slavery.
Recommendation
8.107
The Committee recommends that the Australian Government, through the Department of Foreign Affairs and Trade, ensure that Australian aid and other funds do not support overseas residential institutions not operating in compliance with the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Alternative Care for Children and the proposed Australian Government register (see recommendation 41).
8.108
The Committee further recommends that the Australian Government prioritise aid and other funding for family preservation and community‑based initiatives that enable children to remain in, or return to, their own families, under kinship care and/or under foster care, where safe and appropriate.
Recommendation
8.109
The Committee recommends that the Australian Government review its guidance for organisations operating overseas regarding the risks of orphanage trafficking, to ensure that there are consistent guidelines across regulatory agencies and schemes, including the Australian Charities and Not-For-Profit Commission, the Overseas Aid Gift Deduction Scheme and the Direct Aid Program.
8.110
As part of this review, the Committee recommends that the Australian Government introduce minimum ‘external conduct standards’ for organisations operating overseas, including child protection safeguards and compliance with the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Alternative Care of Children and the proposed Australian Government register (see recommendation 41).
Recommendation
8.111
The Committee recommends that the Australian Government work with the Australian Charities and Not-for-profits Commission to assist Australian charities to transition away from supporting overseas residential institutions, particularly in developing countries, that are not operating in compliance with the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Alternative Care of Children and the proposed Australian Government register (see recommendation 41).
Recommendation
8.157
The Committee recommends that the Australian Government establish a publicly available register of overseas residential institutions, and develop a set of principles that these institutions must meet in order to be registered, consistent with the United Nations Convention on the Rights of the Child and the United Nations Guidelines for the Alternative Care for Children. These principles should include minimum qualification standards for volunteers, and should encourage family preservation and community-based initiatives that enable children to remain in, or return to, their own families, under kinship care and/or under foster care, where safe and appropriate.
Recommendation
8.159
The Committee recommends that the Australian Government, through the Department of Foreign Affairs and Trade, work with governments in source countries to identify residential care institutions and to then encourage these institutions to seek registration through the proposed register.
Recommendation
8.160
The Committee recommends that the Australian Government introduce offences and penalties for individuals, businesses, organisations and other entities that facilitate, enable, organise, benefit from, or profit from tourist visits to overseas residential institutions, and/or who donate to or fund overseas residential institutions, that do not operate in compliance with the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Alternative Care for Children and the proposed Australian Government register. The Committee recommends that these offences and penalties take effect at least two years after the establishment of the register, in accordance with recommendation 44.
Recommendation
8.161
The Committee recommends that the Australian Government introduce a two-year transition period during which Australian individuals, businesses, organisations and other entities are supported to divest from funding ‘orphanage tourism’ visits and/or establishing, funding, donating to, or supporting overseas residential institutions that do not operate in compliance with the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Alternative Care for Children and the proposed Australian Government register. The Committee recommends that individuals, businesses, organisations and other entities be supported by an independent committee during this period to develop responsible divestment plans.
Chapter 9 – Labour exploitation and Australia’s visa framework
Chapter 9 examines measures to address labour exploitation in Australia, particularly for migrant workers and backpackers.
This chapter recommends changes to Australia’s visa framework to remove conditions of vulnerability for migrant workers and backpackers, incentivising reporting of modern slavery and exploitation through the establishment of a community hotline and establishing a national labour hire licensing scheme.
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Recommendation
9.94
The Committee recommends that the Australian Government, particularly through the Migrant Workers’ Taskforce:
urgently review Australia’s visa framework for migrants to replace or eliminate ‘tied’ visa conditions, such as employer sponsorship and sign-off requirements, that often create conditions of vulnerability to exploitation and modern slavery, particularly in relation to the following visa categories:
Working Holiday visa (subclass 417) (such as by removing the 1263 form given other options for verification are now available);
Work and Holiday visa (subclass 462);
Temporary Work (International Relations) visa (subclass 403) (Seasonal Worker Program visa);
Training visa (subclass 407);
Temporary Activity visa (subclass 408);
Temporary Work (Skilled) (subclass 457);
Visitor visa (subclass 600);
Student Visa (subclass 500);
Partner Visa (subclass 309 and 100);
Partner Visa (subclass 820 and 801); and
Prospective Marriage Visa (Subclass 300).
develop a monitoring scheme for Australia’s visa framework for migrant workers to ensure that visa conditions, for both existing and new visas (such as the replacement for the 457 visa), do not create conditions of vulnerability to exploitation and modern slavery;
introduce specific measures to improve flexibility for migrant workers to change employers and reduce conditions of vulnerability to exploitation and modern slavery;
introduce specific measures to improve protections for Working Holiday visa holders during the three month specified work requirement;
introduce specific measures to improve protections for workers on the Seasonal Worker Program, including by introducing Pacific liaison officers;
introduce specific measures to prevent exploitation in the agricultural sector, including by granting an amnesty for illegal workers and introducing a specific agricultural worker visa;
provide a safe avenue for workers to report unlawful workforce conduct, exploitation and modern slavery (through the proposed modern slavery hotline or other means) and to remain in Australia while their cases are considered;
change visa requirements for ‘tied’ visas to reduce the vulnerability of visa holders to exploitation by employers and other sponsors; and
review the adequacy of existing penalties for employers found to be exploiting workers.
Recommendation
9.118
The Committee recommends that the Australian Government:
review and expand pre-departure briefings and information on Australian employment rights and responsibilities currently available to all visa holders eligible to work in Australia (including information given upon application for a visa online or otherwise); and
introduce post-arrival briefings to ensure migrant workers are provided with relevant information from the Fair Work Ombudsman and other relevant bodies.
9.119
The Committee recommends that the Australian Government support government and non-government organisations to deliver these post-arrival briefings to provide advice to migrant workers on their employment rights and responsibilities, accommodation options and mechanisms for reporting cases of concern, including via the recommended modern slavery hotline (see recommendation 47).
Recommendation
9.120
The Committee recommends that the Australian Government introduce measures to incentivise the reporting of modern slavery and exploitation, including by introducing a national modern slavery hotline available via phone and online. The functions of the hotline should include, but not be limited to:
providing information on the indicators of labour exploitation and modern slavery;
providing information about mechanisms to report cases of labour exploitation and modern slavery;
the ability to report potential modern slavery and exploitation abuses and offences;
providing advice on visa conditions; and
referring matters to law enforcement and/or support services.
9.121
The modern slavery hotline should be accessible to culturally and linguistically diverse communities and people with a disability. The public should also be made aware of this hotline via national efforts to raise public awareness about modern slavery, for example by commencing a national television and online advertising campaign.
Recommendation
9.152
The Committee recommends that the Australian Government establish a uniform national labour hire licensing scheme, consistent with recommendations by the Parliamentary Joint Committee on Law Enforcement, the Joint Standing Committee on Migration and the Senate Education and Employment References Committee. This licensing scheme should incorporate random audits and unannounced inspections of labour hire firms to ensure compliance.
Recommendation
9.153
The Committee recommends that the Australian Government ensure that the Fair Work Ombudsman is further resourced to investigate allegations of modern slavery and exploitation and to provide all migrant workers with information on employment rights and responsibilities.