Referral of the bill
1.1
On 8 December 2020, the Customs Amendment (Banning Goods Produced by Uyghur Forced Labour) Bill 2020, a private senator's bill sponsored by Senator Rex Patrick, was introduced into the Senate.
1.2
On 10 December 2020, through the Selection of Bills Committee Report, by amendment, the bill was referred to the Senate Foreign Affairs Defence and Trade Legislation Committee for inquiry and report by 12 May 2021. On 18 March 2021, the reporting date was extended to 17 June 2021.
Purpose of the bill
1.3
The bill seeks to amend the Customs Act 1901 to ban the importation of goods from Xinjiang in the PRC as well as goods from other parts of the PRC that are produced in whole or part by forced labour.
Conduct of the inquiry
1.4
The committee advertised the inquiry on its website, calling for submissions by 5 February 2021. The committee also wrote directly to a range of organisations and individuals to invite them to make written submissions. Submissions received are listed at Appendix 1.
1.5
The committee held a public hearing in Canberra on 27 April 2021. Witnesses who appeared at the public hearing are listed at Appendix 2.
Background to the bill
Forced labour and modern slavery
1.6
Forced labour is defined in Article 2 of the International Labour Organization (ILO) Forced Labour Convention, 1930 as 'work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.' In addition to the 1930 Convention, the other major international instruments on forced labour are the Abolition of Forced Labour Convention, 1957 and the Protocol of 2014 to the Forced Labour Convention, 1930.
1.7
Australia's Criminal Code Act 1995 defines forced labour as:
the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free:
(a)
to cease providing the labour or services; or
(b)
to leave the place or area where the victim provides the labour or services.
1.8
The same Act defines the related term, slavery, as:
the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.
1.9
Australia's Modern Slavery Act 2018 defines modern slavery as:
conduct which would constitute:
(a)
an offence under Division 270 or 271 of the Criminal Code; or
(b)
an offence under either of those Divisions if the conduct took place in Australia; or
(c)
trafficking in persons, as defined in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, done at New York on 15 November 2000 ([2005] ATS 27); or
(d)
the worst forms of child labour, as defined in Article 3 of the ILO Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, done at Geneva on 17 June 1999 ([2007] ATS 38).
1.10
The ILO has developed 11 indicators of forced labour: abuse of vulnerability, deception, restriction of movement, isolation, physical and sexual violence, intimidation and threats, retention of identity documents, withholding of wages, debt bondage, abusive working and living conditions, and excessive overtime.
1.11
The ILO estimates that over 40 million people are trapped in a form of modern slavery, with almost 24.9 million of these in forced labour.
Allegations of Uyghur forced labour
1.12
The Xinjiang Uyghur Autonomous Region (XUAR) in northwest China is home to Muslim minorities, mostly Uyghurs, but also Kazakhs, Kyrgyz and other Muslim groups.
1.13
Access to Xinjiang is strictly controlled by the Chinese communist dictatorship. There is however evidence that these groups have been and continue to be subjected to extensive state-sponsored repression and human rights abuses, including mass arbitrary detention, rape, forced sterilisation, forced political indoctrination, cultural destruction and mass surveillance.
1.14
Reports identify forced labour as a key part of the dictatorship's efforts to 're-educate' these Muslim minorities under the guise of poverty alleviation programs. According to a December 2020 report by Dr Adrian Zenz of the Center for Global Policy, three Uyghur regions 'mobilized at least 570,000 persons into cotton-picking operations through the government's coercive labor training scheme'. Dr Zenz further states that 'the production of the majority of Xinjiang's cotton involves a coercive, state-run program targeting ethnic minority groups'.
1.15
A report released by the Australian Strategic Policy Institute (ASPI) in March 2020, Uyghurs for sale: 'Re-education, forced labour and surveillance beyond Xinjiang', identified 27 factories in 9 Chinese provinces using Uyghur labour transferred from Xinjiang since 2017. These factories are part of the supply chains for 82 well-known global brands in the technology, clothing and automotive sectors. The report estimated the transfer of more than 80,000 Uyghurs and other ethnic minorities from Xinjiang to factories across the country between 2017 and 2019 through labour transfer programs under a central government policy known as 'Xinjiang Aid'.
1.16
ASPI also maintains the Xinjiang Data Project website, which brings together research on the human rights situation of Uyghurs and other minorities in Xinjiang. It focuses on mass internment camps, forced labour and supply chains, the 're-education' campaign, deliberate cultural destruction and other human rights issues.
Response of the People's Republic of China
1.17
Reports of human rights abuses involving Uyghurs, including forced labour, are denied by the Chinese dictatorship, which asserts that the workers are 'rural surplus labour' and 'are an underemployed population that threatens social stability'. On 7 April 2021, the Chinese Embassy in Canberra held a press event titled 'Xinjiang is a Wonderful Land', seeking to refute claims about human rights abuses in Xinjiang.
1.18
The People's Republic of China (PRC) is not a party to the international treaties on forced labour outlined above.
Growing international condemnation
1.19
In addition to the action taken by individual states outlined below and in the next chapter, the situation of Uyghurs has drawn increasing attention in United Nations (UN) forums.
1.20
In October 2020, Germany delivered a statement to the UN General Assembly's Third Committee on social, humanitarian and cultural issues on behalf of 39 countries, including Australia, criticising the PRC for its human rights abuses against Uyghurs. Speaking to media after the meeting, German Ambassador to the United Nations, Christoph Heugen, noted that the number of countries condemning the PRC's actions at the General Assembly had increased from 23 in 2019, signalling growing international concern about the PRC's actions.
1.21
In July 2020, the United Kingdom delivered a cross-regional statement on Hong Kong and Xinjiang on behalf of 27 countries, including Australia, at the UN Human Rights Council (HRC). The statement urged the PRC to allow the High Commissioner for Human Rights 'meaningful access to Xinjiang at the earliest opportunity'.
1.22
In September 2020, an open letter to the UN Secretary-General, UN High Commissioner for Human Rights and UN Member States signed by 321 civil society organisations called for the creation of 'an international mechanism to address the Chinese government's human rights violations'. This followed a 26 June 2020 press release issued by 50 HRC special procedures in which they expressed concern about various issues in the PRC, including the treatment of religious and ethnic minorities in Xinjiang, and urged the HRC to 'take all appropriate measures to monitor Chinese human rights practices' including through the establishment of an impartial and independent UN mechanism.
Action by other parliaments
1.23
On 23 March 2021, the European Union, Britain, Canada and the United States launched coordinated sanctions against Chinese officials involved with human rights abuses in Xinjiang. Australia and New Zealand issued a joint statement welcoming the measures. Several countries have taken action specifically on the issue of forced labour, as outlined below.
United States
1.24
The Uyghur Forced Labor Prevention Act was passed in the US House of Representatives in September 2020 and referred to the US Senate Committee on Foreign Relations on 27 January 2021. In addition to banning the importation of all goods produced in Xinjiang or by persons working with the Xinjiang government for the purposes of the 'poverty alleviation or 'pairing-assistance' programs, the Act will impose sanctions on persons knowingly engaged in or facilitating forced labour in Xinjiang.
1.25
The Uyghur Human Rights Policy Act of 2020 was signed into law on 17 June 2020. The act aims to 'impose visa and economic sanctions on [PRC] officials determined to be responsible for human rights abuses against Uyghurs and other Muslim minority groups in Xinjiang'. In July 2020, the United States designated six Chinese Communist Party officials in Xinjiang pursuant to its Global Magnitsky Human Rights Accountability Act.
1.26
The importation to the United States of any goods manufactured wholly or in part by forced labour has long been prohibited under Section 307 of the Tariff Act 1930. When there is reasonable evidence indicating that merchandise within the purview of this provision is being imported, the Commissioner of US Customs and Border Protection (CBP) may issue a withhold release order (WRO) on either a specific product produced by a specific manufacturer, or on an entire class of product from an entire region. All items subject to a WRO will be seized by the CBP and either destroyed, re-exported or released if the importer submits evidence they were not produced with forced labour. On 13 January 2021, the CBP issued a WRO for cotton, tomatoes and downstream products from Xinjiang.
Canada and the United Kingdom
1.27
On 12 January 2021, Canada and the United Kingdom each announced a comprehensive approach to the situation of the Uyghurs, including addressing the risk of goods produced from forced labour entering supply chains.
1.28
Canada's approach includes prohibiting the import of goods produced wholly or in part by forced labour from any country, a business advisory on doing business with Xinjiang-related entities, export controls and a Xinjiang Integrity Declaration. In that declaration, a Canadian company sourcing from Xinjiang is required to sign a declaration acknowledging it is aware of the human rights situation in Xinjiang, abides by relevant laws and seeks to meet or exceed the Organisation for Economic Co-operation and Development (OECD) guidelines for multinational enterprises and the UN Guiding Principles for Business and Human Rights.
1.29
The United Kingdom issued a new business advisory and business engagement campaign and announced it would strengthen its Modern Slavery Act and review export controls.
Consideration by other committees
1.30
In its Report 1 of 2021, the Parliamentary Joint Committee on Human Rights stated that it had no comment on the bill.
1.31
The Senate Standing Committee for the Scrutiny of Bills also had no comment on the bill.