BILLS DIGEST NO. 39, 2023–24
23 January 2024

Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023

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Key points

The purpose of the Modern Slavery Amendment (Anti-Slavery Commissioner) Bill 2023 (the Bill) is to amend the Modern Slavery Act 2018 to establish the Australian Anti-Slavery Commissioner as an independent statutory office holder within the Attorney-General’s portfolio.
It was announced in the 2023–24 Budget that the Government would provide $8 million over 4 years from 2023–24 (and $2 million a year ongoing) to establish an Anti-Slavery Commissioner to work across Government, industry and civil society, to support compliance with the Modern Slavery Act, to improve transparency in supply chains and help fight modern slavery in Australia and abroad.
The 2017 Joint Standing Committee on Foreign Affairs, Defence and Trade report Hidden in Plain Sight and the Parliamentary Joint Committee on Law Enforcement report An Inquiry into Human Trafficking, Slavery and Slavery-like Practices both recommended the establishment of an Australian Anti-Slavery Commissioner. The Modern Slavery Act 2018 entered into force on 1 January 2019 following the conclusion of these inquiries, however, the Act did not include the establishment of an Australian Anti-Slavery Commissioner.
The Report of the Statutory Review of the Modern Slavery Act 2018 (Cth) was published on
1 January 2023 and discussed the role of an Australian Anti-Slavery Commissioner. It examined how the role could involve a monitoring and oversight function as well as providing national leadership in raising awareness of modern slavery risks.
Stakeholder submissions received by the committees and to the statutory review largely supported the establishment of an Australian Anti-Slavery Commissioner, however, submissions varied in their consideration of what powers and functions the Commissioner should hold and the appropriate level of independence of the Commissioner from government.

Introductory info

Date introduced: 30 November 2023

House: House of Representatives

Portfolio: Attorney-General

Commencement: the earlier of proclamation or 12 months after Royal Assent.

Purpose of the Bill

The purpose of the Modern Slavery Amendment (Anti-Slavery Commissioner) Bill 2023 (the Bill) is to amend the Modern Slavery Act 2018 (the Act) to establish the Australian Anti-Slavery Commissioner as an independent statutory office holder within the Attorney-General’s portfolio.

Background

Modern Slavery

Modern slavery is a term used to encompass a range of exploitative slavery and slavery-like practices. Modern slavery practices have different meanings under international treaties and domestic law, however, these practices are generally understood to include human trafficking, slavery and slavery-like practices such as debt bondage, servitude, forced marriage and forced labour.[1] Through Divisions 270 and 271 of the Criminal Code Australia recognises the following offences of slavery and slavery-like practices: slavery, servitude, forced labour, deceptive recruitment, forced marriage, debt bondage, trafficking in persons, trafficking in children and domestic trafficking in persons.

The nature of modern slavery practices has meant that it is difficult to quantify its extent accurately and reliably on a global and national level. As such, there is a large discrepancy between reported figures. The International Labour Organization (ILO) in partnership with Walk Free and the International Organization for Migration (IOM) published their most recent estimates of modern slavery in 2022.[2] The report estimated that there were 49.6 million people in situations of modern slavery on any given day in 2021, either forced to work against their will or in a marriage they were forced into.[3] Forced labour accounted for 27.6 million of those in forced slavery and 22 million were estimated to be in a forced marriage.[4]

Walk Free’s Global Slavery Index 2023 estimated that, as of 31 August 2022, 1.6 persons per 1,000 people were living in modern slavery in Australia.[5] This equates to an estimate of approximately 41,000 people living in situations of modern slavery domestically.[6] These figures represent a substantial increase from the 2018 Global Slavery Index which estimated that there were 15,000 persons who were living in modern slavery in Australia.[7]

Hidden in Plain Sight Inquiry Report

In February 2017 the Joint Standing Committee on Foreign Affairs, Defence and Trade (the JSCFADT) was provided a referral for an inquiry to investigate measures to better combat modern slavery in Australia and internationally.[8] The JSCFADT primarily focused on assessing the effectiveness of the United Kingdom’s Modern Slavery Act 2015 (UK) and whether similar or improved measures could be introduced in Australia.[9] The JSCFADT recommended the establishment of an Australian Modern Slavery Act, including an Independent Anti-Slavery Commissioner to lead and coordinate Australia’s response to combatting modern slavery.[10] The Modern Slavery Act 2018 entered into force on 1 January 2019, however, the Act did not include the establishment of an Anti-Slavery Commissioner.[11]

The JSCFADT considered the role of the United Kingdom’s Independent Anti-Slavery Commissioner as part of its inquiry and noted the strong support for the establishment of an Independent Anti-Slavery Commissioner in Australia, similar to the role established under the UK Act.[12] As such, the JSCFADT recommended that the Australian Anti-Slavery Commissioner be given powers and resources to undertake a range of functions similar to the UK Commissioner.[13] In his evidence to the JSCFADT the UK Commissioner stated that the key focus of his role is in assisting to identify and support victims of modern slavery and to prosecute offenders.[14] Further recommendations by the JSCFADT were that the Australian Commissioner’s role be truly independent from Government (similar to that of the Australian Human Rights Commission or the Commonwealth Ombudsman) and that the role should be established separately from any existing statutory bodies and, as a result, report directly to the Parliament.[15]

An inquiry into human trafficking, slavery and slavery-like practices

On 2 December 2015 the Parliamentary Joint Committee on Law Enforcement (the PJCLE) initiated an inquiry into human trafficking. The enquiry lapsed at the end of the 44th Parliament but was reinstated on 12 October 2016. The role of the PJCLE was to examine Commonwealth law enforcement responses to human trafficking, including slavery, slavery-like practices (such as servitude, forced marriage and forced labour) and people trafficking, to and from Australia.[16] The Committee’s terms of reference included the examination of practical measures and policies that would address human trafficking and the effectiveness of relevant Commonwealth legislation and policies.[17] As such, the inquiry involved the examination and consideration of the role of an Anti‑Slavery and Trafficking Commissioner in Australia.

In its July 2017 report, the PJCLE recommended that the Australian Government consider appointing an Anti-Slavery and Trafficking Commissioner to:

monitor the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015–19 [18]
provide recommendations, advice and guidance to government agencies on the exercise of their functions
oversee the effectiveness of Commonwealth legislation and policies intended to reduce the prevalence of human trafficking, slavery and slavery-like practices and respond to corresponding offences and
collect and request data and information on these practices.[19]

Report of the Statutory Review of the Modern Slavery Act 2018 (Cth)

The Act requires a review to be conducted 3 years after the commencement of the Act, to be completed within 12 months.[20] The 12-month review commenced on 31 March 2022.[21] The 3 central questions of the review were:

Can a law such as the Modern Slavery Act 2018 be effective in combatting modern slavery?
Could the Act be more effective if changes were made to how it is framed and administered?
Is the law being taken seriously?[22]

The consideration of whether the Act could be more effective included analysis of the potential role of an Anti-Slavery Commissioner and how the position could involve a monitoring and oversight function as well as providing national leadership in raising awareness of modern slavery risks and ensuring those risks are addressed.[23]

The Issues Paper for the review invited submissions on what role the Anti-Slavery Commissioner should hold in administering and enforcing the reporting requirements under the Modern SlaveryAct and what functions and powers the Commissioner should have to fulfil that role.[24] Submissions to the review largely supported the establishment of an Anti-Slavery Commissioner and saw the role as:

A high profile, specialist and committed office that can provide national leadership in raising awareness of modern slavery risks and ensuring those risks are addressed. The Commissioner can play a national coordinating role across all sectors … A central role of the office will be to forge agreement and united action on common goals – chiefly the elimination of slavery risks, the protection of vulnerable people, and remediation and victim support.[25]

Although the review considered the creation of an Anti-Slavery Commissioner it did not make a recommendation for the establishment of the role. This was due to the Government’s announcement of the establishment of an Anti-Slavery Commissioner which occurred while the review was ongoing. In October 2022 the Government announced as part of the second 2022–23 Budget that a new unit would be established within the Attorney-General’s Department to scope options to establish an Anti-Slavery Commissioner to deliver on the Government’s election commitment.[26] The Government then announced the funding for the establishment of the Anti-Slavery Commissioner in the 2023–2024 Budget.[27]

The review therefore only made recommendations as to the functions of the Anti-Slavery Commissioner, which included:

the Attorney-General’s Department to establish a formal arrangement for annual review of the Commonwealth Modern Slavery Statement, and to consider the role of the Anti-Slavery Commissioner in that review
the Attorney-General’s Department, in consultation with the Anti-Slavery Commissioner, develop and publish a forward work program for reviewing and updating the Guidance for Reporting Entities and other guidance material
the legislation establishing the office of the Anti-Slavery Commissioner provides expressly that a function of the Commissioner is to issue guidelines on special issues relating to the reporting requirements in Part 2 of the Modern Slavery Act. Any guidelines must not be inconsistent with guidelines that the Minister has arranged to be published under the Act.[28]

Targeted Review of Modern Slavery Offences in Divisions 270 and 271 of the Criminal Code Act 1995 (Cth)

On 13 September 2022, the Attorney-General released the Terms of Reference for a Targeted Review of Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (the Targeted Review).

The Targeted Review considered the modern slavery offences in Divisions 270 and 271 of the Criminal Code against the objectives set out in the terms of reference to the review. The Targeted Review identified areas for possible legislative change to strengthen Australia’s modern slavery offences in line with international good practice, to better reflect growing understanding about what modern slavery looks like and to further future-proof Australia’s offences so that they remain flexible to apply to new and emerging forms of modern slavery.[29] The Targeted Review made 22 findings which recommended amendments to Divisions 270 and 271 of the Criminal Code. The Government has yet to respond to the recommendations of the Targeted Review.

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 21 February 2024. Details of the inquiry are at the inquiry homepage.

According to the report of the Selection of Bills Committee, the Bill was referred to the Committee to assess the adequacy of the powers and resources available to the Commissioner under the Bill, including the ‘adequacy of penalties and enforcement mechanisms’ and ‘need for an Anti-Slavery Commission’.[30]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[31]

Policy position of non-government parties/independents

At the time of publication of this Bills Digest there was no public indication of the policy position of non-government parties or independents on the Bill. However, non-government parties and independents made statements regarding the position of an Australian Anti-Slavery Commissioner in response to the recommendations of the JSCFADT Hidden in Plain Sight report and the PJCLE inquiry into human trafficking. The establishment of an Australian Anti-Slavery Commissioner was also commented on when the Modern Slavery Bill was initially introduced, as well as during the statutory review of the Modern Slavery Act.

Australian Greens

The Australian Greens submitted additional comments to the Hidden in Plain Sight report expressing support for a Modern Slavery Act in Australia which included provisions for the establishment of an Independent Anti-Slavery Commissioner.[32] When the Modern Slavery Bill 2018 was introduced Senator Nick McKim indicated the Greens’ support for the Bill, however, noted that the Bill did not include an independent office of oversight:

For the Greens, the lack of a genuinely independent office of oversight is the biggest flaw in this legislation, and it is extremely regrettable that the government, having supported the findings of the Legal and Constitutional Affairs Legislation Committee’s inquiry into the bill and having supported the recommendation for an independent anti-slavery commissioner, has now crab-walked away from that position. It’s very disappointing.[33]

Liberal-National Coalition

The Morrison Government’s response to the JSCFADT Hidden in Plain Sight report noted the recommendation made by the Committee that the Australian Government should establish an Independent Anti-Slavery Commissioner.[34] The Government response stated that Australia already has an effective and well-coordinated national response to human trafficking and slavery.[35] The Government further stated that the Interdepartmental Committee on Human Trafficking and Slavery (IDC) is responsible for carrying out many of the functions that were proposed for an Anti‑Slavery Commissioner.[36]

The role of the IDC and its Operational Working Group on Human Trafficking and Slavery is to coordinate the response to emerging human trafficking and slavery issues, to review the effectiveness of Australia's anti-trafficking and anti-slavery strategy, to review Commonwealth legislative and policy frameworks and to collate data on human trafficking and slavery trends.[37] The IDC reports to the Australian Parliament and to the ministerial-level National Roundtable on Human Trafficking and Slavery. The Modern Slavery Business Engagement Unit was also established through the 2018 Federal Budget to oversee the implementation of the Modern Slavery Act 2018 and to provide expert support and advice to business.[38] As such, the Morrison Government did not support the establishment of an Anti-Slavery Commissioner as it found that the proposed functions were already fulfilled.

Position of major interest groups

Business Council of Australia

In its submission to the statutory review of the Modern Slavery Act the Business Council of Australia (BCA) recommended that if the position or office of an Anti-Slavery Commissioner was to be established, its objective should be to increase awareness of modern slavery issues, to facilitate collaboration between government, business, and civil society and to assist in capacity building for reporting entities and smaller businesses.[39] The BCA submitted that if an office of an Anti-Slavery Commissioner were to be established it should not create another layer of bureaucracy, cost and regulation for business.

The BCA proposed that the functions of an Anti-Slavery Commissioner should be to assist businesses with reporting and engagement and to work closely to connect businesses and other reporting entities with government and civil society to help ensure that Modern Slavery Statements are achieving their intended objectives. The BCA also proposed that the Anti-Slavery Commissioner should assist in working with regional partners and should build links with other jurisdictions with modern slavery reporting requirements. It further proposed that the Anti-Slavery Commissioner should have a prominent public role through speaking and media engagements.[40]

Australian Human Rights Commission

In its submission to the statutory review of the Modern Slavery Act the Australian Human Rights Commission (AHRC) reaffirmed its previous recommendation that an Anti-Slavery Commissioner should be established with responsibility for raising awareness, monitoring, and oversight.[41] The AHRC saw a primary function of the Anti-Slavery Commissioner to be enforcing sanctions in cases of non-compliance with the Modern Slavery Act 2018.[42] The AHRC in its submission drew upon the functions of the UK Anti-Slavery Commissioner, stating that the broader remit allowed the UK Commissioner to meaningfully engage with the issue of modern slavery.[43]

The AHRC reasoned that the Anti-Slavery Commissioner should be tasked with 2 main roles: providing educational guidance and support to business, while also being able to detect, investigate and prosecute non-compliance.[44] Unlike other submitters,[45] the AHRC did not view these two roles as incompatible. The AHRC further submitted that the role and functions of the Anti-Slavery Commissioner should be developed with regard to existing offices and bodies that have a formal role to play with respect to Australia’s modern slavery response, at both the federal and state and territory level.[46] The AHRC argued this was necessary to reinforce the existing whole-of-government response to modern slavery, as well as to avoid unnecessary duplication of role and function.[47]

Law Council of Australia

In its submission to the JSCFADT inquiry the Law Council of Australia stated that it considered the creation of an independent Anti-Slavery Commissioner in Australia to be essential.[48] The Law Council noted that it may be more appropriate to create an office of an Anti-Slavery Ombudsman as opposed to a Commissioner. Its reasoning was that the functions and powers of an Ombudsman in Australia are generally well-recognised and understood and, therefore, the creation of an Anti‑Slavery Ombudsman, rather than a Commissioner, may promote consistency and provide clarity regarding the new office.[49]

The Law Council also provided a submission to the Statutory Review of the Modern Slavery Act, reiterating its strong support for the establishment of an Anti-Slavery Commissioner consistent with the recommendations of the JSCFADT contained within the Hidden in Plain Sight report.[50] The Law Council also submitted that the Anti-Slavery Commissioner should be established with functions similar to those of the New South Wales Anti-slavery Commissioner.[51]

Human Rights Law Centre

In its submission to the statutory review of the Modern Slavery Act the Human Rights Law Centre (HRLC) submitted that the Anti-Slavery Commissioner should play a central role in enforcing the Modern Slavery Act, as enforcement is currently a critical missing element of the framework that should be prioritised in order to improve the effectiveness of the Act.[52] The HLRC submitted that the Anti-Slavery Commissioner’s functions and powers should include enforcement powers (including the imposition of penalties), complaint handling, investigatory powers, the ability to issue guidance and monitoring powers.[53]

The HLRC stated that the functions and powers of the Anti-Slavery Commissioner should be broader in remit than those of the UK and NSW Anti-slavery Commissioners.[54] The UK Commissioner’s primary responsibilities include encouraging good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences and the identification of victims.[55] In its submission, the HRLC noted that the UK Government has recognised that there is a lack of compliance with its Modern Slavery Act reporting requirements and, as a result, has committed to strengthening enforcement.[56]

The HLRC also considered the powers of the NSW Anti-slavery Commissioner, who is tasked broadly with monitoring the effectiveness of legislation and governmental policies and action in combatting modern slavery, as well as reporting concerning risks of modern slavery occurring in supply chains of government agencies.[57] Notably, the NSW Commissioner lacks any investigatory or compliance powers and is expressly restricted from investigating or dealing with the complaints or concerns of individual cases.[58]

The HLRC recommended that the Australian Anti-Slavery Commissioner should have enforcement powers and appropriate resources to ensure that enforcement action can be adequately and effectively undertaken. It noted that criminal enforcement of any modern slavery-related offences should be expressly excluded (as they are in the remit of the Commonwealth Director of Public Prosecutions and the Australian Federal Police), although the Anti-Slavery Commissioner should be empowered to make appropriate referrals to either agency.[59]

Financial implications

The Explanatory Memorandum states that, as part of the 2023–24 Budget (p. 60), the Government has allocated $8 million over 4 years, and $2 million a year ongoing, for the establishment of an Australian Anti-Slavery Commissioner.[60]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Government has stated that the Bill engages, or has the potential to engage, the following rights or freedoms:

the right to freedom from slavery and forced labour contained in Article 8 of the International Covenant on Civil and Political Rights (ICCPR)
the right to freedom from torture and other cruel, inhuman and degrading treatment or punishment contained in Article 7 of the ICCPR
the right to protection from exploitation, violence and abuse contained in Article 20(2) of the ICCPR, Article 19(1) of the Convention on the Rights of the Child (CRC) and Article 16(1) of the Convention on the Rights of Persons with Disabilities (CRPD)
the rights of the child contained in Article 32 of the CRC
the right to privacy and reputation in Article 17 of the ICCPR
the right to respect for family contained in Article 23 of the ICCPR and
the right to work and just and favourable conditions of work contained in Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights.

The Government considers that the Bill is compatible.[61]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had yet to consider the Bill.

Key issues and provisions

Item 4 of the Bill inserts new Part 3A into the Act, to establish the Australian Anti-Slavery Commissioner. New Part 3A contains proposed sections 20A to 20Y.

Functions and powers of the Anti-Slavery Commissioner

Proposed section 20C of the Act sets out the proposed functions of the Australian Anti-Slavery Commissioner. Proposed subsection 20C(1) outlines that the proposed functions of the Anti‑Slavery Commissioner are:

to promote compliance with this Act;

to support Australian entities and entities carrying on business in Australia to address risks of modern slavery practices in their operations and supply chains, and in the operations and supply chains of entities they own or control;

to support collaboration and engagement within and across sectors in relation to addressing modern slavery;

to support victims of modern slavery by providing information in relation to government and non-government resources, programs and services;

to engage with, and promote engagement with, victims of modern slavery to inform measures for addressing modern slavery;

to support, encourage and conduct education and community awareness initiatives relating to modern slavery;

to support, encourage, conduct and evaluate research about modern slavery;

to collect, analyse, interpret and disseminate information relating to modern slavery;

to consult and liaise with Commonwealth, State and Territory governments, agencies, bodies and office holders on matters relation to modern slavery;

to consult and liaise with other persons and organisations on matters relating to modern slavery;

to advocate to the Commonwealth Government on matters relating to modern slavery, including for continuous improvement on policy and practice;

at the request of the Minister, to provide advice to the Minister on matters relating to modern slavery;

such other functions as are conferred on the Commissioner by this Act or any other law of the Commonwealth;

to do anything incidental or conductive to the performance of any of the above functions.

Proposed subsection 20C(2) prohibits the Commissioner from investigating or resolving complaints concerning individual instances or suspected instances of modern slavery.

Proposed section 20W establishes that the Commissioner may request information from Commonwealth agencies if the Commissioner reasonably believes that the information is relevant to the performance of the functions of the Commissioner. The agency must comply with the request as far as is reasonably practicable.

RMIT University’s Business and Human Rights Centre and the University of Liverpool Management School, UK conducted an interview with Dame Sara Thornton, the previous UK Anti-Slavery Commissioner, to inform their submission to the Statutory Review of the Modern Slavery Act. Informed by this interview, it was submitted that imposing a ‘duty to cooperate' on government departments was only partially effective in enabling an Anti-Slavery Commissioner to gather information.[62] Data gathering was inhibited in several respects, most departments took an unduly long time to respond or provided sanitised responses which lacked full transparency.[63]

Proposed section 20X requires the Commissioner to prepare a strategic plan in relation to the Commissioner’s functions. The strategic plan must relate to a period of up to 3 years and must state the Commissioner’s priorities and principal objectives for the period in relation to the performance of the Commissioner’s functions. In preparing or revising a strategic plan, the Commissioner must consult the Minister and the Secretary of the Attorney-General’s Department.

The lack of investigation and enforcement powers

As discussed above, submissions to the committee inquiries and the statutory review analysed the role and functions of the UK Anti-Slavery Commissioner, the NSW Anti-slavery Commissioner and the Australian Human Rights Commissioner in considering what the role and functions of the Australian Anti-Slavery Commissioner should be.[64]

The Human Rights Law Centre submitted that the Anti-Slavery Commissioner should be provided with powers to conduct investigations on its own initiative or upon receipt of a complaint relating to non-compliance with the Modern Slavery Act or suspected instances of modern slavery.[65] Other submissions suggested that the Anti-Slavery Commissioner should have narrower investigative powers, with most suggesting that the investigative powers should be limited to investigations into suspected instances of non-compliance with the Modern Slavery Act.[66] It was also submitted that the Anti-Slavery Commissioner should be given enforcement powers and appropriate resources to ensure that enforcement action could be undertaken effectively and adequately.[67]

However, other stakeholders submitted that the Anti-Slavery Commissioner should not have any powers of enforcement and should, instead, focus on providing advice and support to business.[68]

Duplication of Role

The Australian Government made a submission to the JSCDFAT inquiry into establishing a Modern Slavery Act, stating that the functions of the UK Anti-Slavery Commissioner were largely fulfilled by Australia’s Ambassador for People Smuggling and Human Trafficking (now the Ambassador to Counter Modern Slavery, People Smuggling and Human Trafficking) and the Attorney-General’s Department.[69]

The main function of the Ambassador to Counter Modern Slavery, People Smuggling and Human Trafficking is to play a leading role in driving international cooperation, including through Australia’s work as Co-Chair of the Bali Process.[70] The Ambassador works with Australia’s regional partners to strengthen the response to modern slavery and works closely with the Operation Sovereign Borders Joint Agency Task Force.[71]

There is a Modern Slavery Business Engagement Unit within the Attorney-General’s Department to implement the Modern Slavery Act. The Unit has five main functions:

providing advice and support to entities about compliance with the reporting requirement
undertaking awareness-raising and training about modern slavery and the reporting requirement
promoting best practice and monitoring overall compliance, including by reporting annually to Parliament about the implementation of the Act
administering the online central register for statements and
coordinating the Commonwealth Modern Slavery Statement.[72]

Several stakeholders made submissions to the Review of Australia’s Modern Slavery Act 2018, as well as to earlier committee inquiries, arguing that the role of the Australian Anti-Slavery Commissioner should be developed with regard to existing offices and bodies to avoid unnecessary duplication.[73]

Independence of the Australian Anti-Slavery Commissioner

Proposed section 20J of the Act establishes that the Anti-Slavery Commissioner is to be independent. The proposed section states that, subject to any legislative requirements, the Commissioner has complete discretion in performing or exercising the Commissioner’s functions or powers and that the Commissioner is not subject to direction from anyone when doing so.

Additionally, proposed section 20E states that, for the purposes of finance law, the Commissioner is an official of the Attorney-General’s Department. The Explanatory Memorandum states that the Commissioner is an official of the Attorney-General’s Department for financial accountability purposes only.[74]

Proposed section 20F states that the staff assisting the Commissioner are to be APS employees in the Attorney-General’s Department whose services are made available to the Commissioner by the Secretary of the Attorney-General’s Department. Proposed subsection 20F(2) states that, when performing services for the Commissioner (as an APS employee made available to the Commissioner from the Attorney-General’s Department), the person is subject to the directions of the Commissioner.

The independence of the Commissioner was an issue raised by stakeholders in their submissions to the committee inquiries and the review of the Modern Slavery Act. Many stakeholders advocated for the Anti-Slavery Commissioner to be formed as an independent body/entity, fully autonomous from the government with its own resources to fulfil its mandate.[75] The JSCFADT also recommended that the Commissioner be independent from the government and its role ‘should be established separately from any existing independent statutory bodies, such as the Commonwealth Ombudsman or the Australian Human Rights Commission, and report directly to the Parliament’.[76] Although the Bill does establish the Anti-Slavery Commissioner as an independent statutory office-holder, it has relatively limited powers compared with other statutory offices (for example, the AHRC) and does not have its own resourcing.

Appointment of Australian Anti-Slavery Commissioner

Proposed section 20L of the Act establishes how the Commissioner is to be appointed. Proposed paragraph 20L(2)(a) states that a person must not be appointed as the Commissioner unless the Minister is satisfied that:

the person has the appropriate qualifications, knowledge or experience in one or more of the following fields:

human rights issues relating to business practices;

regulation;

public policy relating to modern slavery or related forms of human exploitation.

Proposed subparagraph 20L(2)(a)(ii) is a broader category of appointment, only requiring the potential Commissioner to have qualification, knowledge, or experience in the field of ‘regulation’. It is particularly broad when compared to the specificity of the other fields with respect to areas of qualification, knowledge, or experience.

Concluding comments

The Australian Government is yet to provide its responses to the Statutory Review of the Modern Slavery Act 2018 and the Targeted Review of Modern Slavery Offences in Divisions 270 and 271 of the Criminal Code Act 1995 (Cth). The Statutory Review made 30 recommendations, only a few of which relate to the Anti-Slavery Commissioner, while none of the findings made by the Targeted Review relate to the role of the Commissioner. The majority of the recommendations from these reviews are not addressed in this Bill.

The full scope of the potential changes in this space will become better known after the Government provides a response to these two reports, however, further legislative changes relating to modern slavery in Australia may be proposed in 2024.

References

[1]. Key international instruments under which Australia has international obligations in relation to modern slavery include: the International Convention to Suppress the Slave Trade and Slavery, done in Geneva on 25 September 1926, [1927] ATS 11 (entered into force for Australia 18 June 1927); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, done in Geneva on 7 September 1956, [1958] ATS 3 (entered into force for Australia 6 January 1958); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime done in New York on 15 November 2000, [2005] ATS 27 (entered into force in Australia on 14 October 2005). Australia’s obligations under these international instruments are implemented domestically primarily through Divisions 270 and 271 of the Criminal Code Act 1995 (Criminal Code).

[2]. International Labour Organization (ILO), Walk Free, and International Organization for Migration (IOM), Global Estimates of Modern Slavery: Forced Labour and Forced Marriage, (Geneva: ILO, 2022).

[3]. ILO, Estimates of Modern Slavery, 2.

[4]. ILO, Estimates of Modern Slavery, 2.

[5]. Walk Free, Global Slavery Index, 31 August 2022.

[6]. Walk Free, Modern Slavery in Australia, n.d.

[7]. Walk Free Foundation, The Global Slavery Index 2018, [Western Australia: Minderoo Foundation, 2018], 88.

[8]. Joint Standing Committee on Foreign Affairs, Defense and Trade (JSCFADT), Hidden in Plain Sight: an Inquiry into Establishing a Modern Slavery Act in Australia, (Canberra: JSCFADT, December 2017), ix.

[9]. JSCFADT, Hidden in Plain Sight, ix.

[10]. JSCFADT, Hidden in Plain Sight, x.

[11]. The purpose of the Modern Slavery Act is to require certain entities based or operating in Australia to prepare annual statements on potential modern slavery risks in their operations and supply chains, and the steps they have taken to address those risks. These statements are placed on an online public register, the Modern Slavery Statements Register. The Australian Government is also required by the Act to prepare a separate annual statement covering all non-corporate Commonwealth entities (NCEs). This statement is published on the Register as the Commonwealth Modern Slavery Statement (Commonwealth Statement). The Commonwealth Statement is formally endorsed by the Minister administering the Act.

[12]. JSCFADT, Hidden in Plain Sight, 87.

[13]. JSCFADT, Hidden in Plain Sight, 88.

[14]. JSCFADT, Hidden in Plain Sight, 73.

[15]. JSCFADT, Hidden in Plain Sight, 88.

[16]. Parliamentary Joint Committee on Law Enforcement (PJCLE), An Inquiry into Human Trafficking, Slavery and Slavery-like Practices, (Canberra: PJCLE, 2017), 1.

[17]. PJCLE, An Inquiry into Human Trafficking, 1.

[18]. Australian Government, National Action Plan to Combat Human Trafficking and Slavery 2015–19, (Canberra: Attorney-General’s Department, 2014). A further action plan was published in 2020: Australian Government, National Action Plan to Combat Modern Slavery 2020–25, (Canberra: Department of the Prime Minister and Cabinet, 2020).

[19]. PJCLE, An Inquiry into Human Trafficking, 42.

[20]. Modern Slavery Act 2018, section 24.

[21]. John McMillan, Report of the Statutory Review of the Modern Slavery Act 2018 (Cth): the First Three Years, report prepared for the Attorney-General’s Department (AGD), (Canberra: AGD, 2023), 7.

[22]. McMillan, Statutory Review of the Modern Slavery Act, 7.

[23]. McMillan, Statutory Review of the Modern Slavery Act, 9–10.

[24]. Australian Government, Review of Australia’s Modern Slavery Act 2018, Issues paper, (Canberra: AGD, August 2022), 48–49.

[25]. McMillan, Statutory Review of the Modern Slavery Act, 105.

[26]. Australian Government, ‘Budget Measures: Budget Paper No. 2’, October 2022–2023, 54. Australian Labor Party, ALP National Platform, 92. Australian Labor Party, A Fair go for Australia: National Platform, Australian Labor Party policy document, Election 2019, 30. Australian Labor Party, ALP National Platform: as adopted at the 2021 Special Platform Conference, Australian Labor Party policy document, Election 2022, 92.

[27]. Australian Government, ‘Budget Measures: Budget Paper No. 2’, 2023–2024, 60.

[28]. McMillan, Statutory Review of the Modern Slavery Act, 11–14.

[29]. AGD, Targeted Review of Modern Slavery Offences in Divisions 270 and 271 of the Criminal Code Act 1995 (Cth), (Canberra: AGD, 2023), 5.

[30]. Senate Standing Committee for the Selection of Bills, Report, 16, 2023, 7 December 2023: 73.

[31]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 1, 2024, 18 January 2024, 30.

[32]. JSCFADT, Hidden in Plain Sight, 315.

[33]. Nicholas McKim, Second Reading Speech: Modern Slavery Bill 2018, Senate, Debates, 28 November 2018, 8799–800.

[34]. Australian Government, Australian Government Response to the Parliamentary Joint Committee on Foreign Affairs, Defence and Trade Inquiry Reports: Hidden in Plain Sight: An inquiry into establishing a Modern Slavery Act in Australia and the Modern Slavery and Global Supply Chains: Interim Report of the Joint Standing Committee on Foreign Affairs, Defence and Trade’s Inquiry into Establishing a Modern Slavery Act in Australia, October 2020, 18.

[35]. Australian Government, Response to JSCFADT Inquiry Reports, 18.

[36]. Australian Government, Response to JSCFADT Inquiry Reports, 18. The Interdepartmental Committee on Human Trafficking and Slavery comprises 11 government agencies that provide oversight of Australia’s response to human trafficking: Attorney‑General’s Department, Australian Criminal Intelligence Commission, Australian Federal Police, Australian Institute of Criminology, Commonwealth Director of Public Prosecutions, Department of Foreign Affairs and Trade, Department of Home Affairs, Australian Border Force, Department of Social Services, Department of the Prime Minister and Cabinet and the Fair Work Ombudsman.

[37]. Australian Government, Response to JSCFADT Inquiry Reports, 18.

[38]. Australian Government, Response to JSCFADT Inquiry Reports, 18–19.

[39]. Business Council of Australia (BCA), Submission to AGD, Statutory Review of the Modern Slavery Act, [Submission no. 81], November 2022, 9.

[40]. BCA, Submission, 9.

[41]. Australian Human Rights Commission (AHRC), Submission to AGD, Statutory Review of the Modern Slavery Act, [Submission no. 112], November 2022, 22.

[42]. AHRC, Submission, 22.

[43]. AHRC, Submission, 22.

[44]. AHRC, Submission, 23.

[45]. Pillar Two, Submission to AGD, Statutory Review of the Modern Slavery Act, [Submission no. 126], December 2022, 13; Property Council of Australia, Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 39], 22 November 2022, 10. Pillar Two submitted that the Anti-Slavery Commissioner should act as a ‘critical friend’ to business and should therefore not have powers of investigation or enforcement. Pillar Two stated that making any Anti-Slavery Commissioner responsible for penalties would limit their ability to engage openly and constructively with business. The Property Council of Australia also submitted that the role for an Anti-Slavery Commissioner should have no responsibility for regulating business compliance with the reporting requirements under the Modern Slavery Act but should instead be focused on providing advice and support to business.

[46]. AHRC, Submission, 23.

[47]. AHRC, Submission, 23.

[48]. Law Council of Australia (LCA), Submission to JSCFADT, Hidden in Plain Sight: Inquiry into Establishing a Modern Slavery Act in Australia, [Submission no. 60], 28 April 2017, 35.

[49]. LCA, Submission to JSCFADT, 36.

[50]. LCA, Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 127], 13 December 2022, 46.

[51]. LCA, Submission to AGD, 46. The functions of the NSW Anti-Slavery Commissioner are set out in Division 2 of Part 2 of the Modern Slavery Act 2018 (NSW).

[52]. Human Rights Law Centre (HRLC), Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 38], 22 November 2022, 20.

[53]. HRLC, Submission, 20.

[54]. HRLC, Submission, 20.

[55]. HRLC, Submission, 20.

[56]. HRLC, Submission, 20.

[57]. HRLC, Submission, 21.

[58]. HRLC, Submission, 21.

[59]. HRLC, Submission, 21.

[60]. Explanatory Memorandum, Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023, 3–4.

[61]. The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.

[62]. RMIT University business and Human Rights Centre (RMIT), Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 24], 21 November 2022, 24.

[63]. RMIT, Submission, 24.

[64]. The role of the Australian Human Rights Commissioner was discussed in: HRLC, Submission, 20-1. The role of the UK Anti-Slavery Commissioner and the NSW Anti-Slavery Commissioner was discussed in: AHRC, Submission, 22 and LCA, Submission to AGD, 46.

[65]. HRLC, Submission, 21; Australian Council of Trade Unions (ACTU), Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 116], 22 November 2022, 19. The ACTU submitted that the Anti-Slavery Commissioner should have the power to conduct investigations of its own initiative, instigate public inquiries and issue public reports. Similar to the below submissions, the ACTU also suggested that the Anti-Slavery Commissioner should have the power to conduct investigations upon receipt of a complaint relating to non-compliance with the Modern Slavery Act, or to investigate the veracity of modern slavery statements and the due diligence process, seek more information from the reporting entity, and require the submission of statements where they do noy meet an established standard.

[66]. International Justice Mission (IJM), Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 84], 2022, 17; Uniting Church of Australia, Synod of Victoria and Tasmania (Uniting Church), Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 103], 22 November 2022, 40; Financial Services Council (FSC), Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 104], 23 November 2022, 5; Australian Lawyers for Human Rights (ALHR), Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 110], November 2022, 19.

[67]. HRLC, Submission, 21. IJM, Submission, 17; ALHR, Submission, 19-20; ACTU, Submission, 19.

[68]. Property Council of Australia, Submission, 10; LCA, Submission to JSCFADT, Hidden in Plain Sight: Inquiry into Establishing a Modern Slavery Act in Australia, [Submission no. 60], 28 April 2017, 38.

[69]. Australian Government, Submission to JSCFADT, Hidden in Plain Sight: Inquiry into Establishing a Modern Slavery Act in Australia, [Submission no. 89], April 2017, 3.

[70]. Senator Penny Wong (Minister for Foreign Affairs), ‘Ambassador to counter modern slavery, people smuggling and human trafficking’, media release, 28 June 2023.

[71]. Wong, ‘Ambassador to counter modern slavery’.

[72]. AGD, Commonwealth Modern Slavery Act 2018: Guidance for Reporting Entities, (Canberra: AGD, 2023), 73.

[73]. Submissions that raised concerns about the duplication of functions between the Australian Anti-Slavery Commissioner and the Ambassador to Counter Modern Slavery, People Smuggling and Human Trafficking/Modern Slavery Business Engagement Unit included the following: AHRC, Submission, 23; Uniting Church, Submission, 40. HRLC, Submission, 22. Property Council of Australia, Submission to AGD, Statutory Review of the Modern Slavery Act 2018 (Cth), [Submission no. 39], 22 November 2022, 11.

[74]. Explanatory Memorandum, 12.

[75]. For example, see AHRC, Submission, 23; Walk Free Foundation, Submission to JSCFADT, Hidden in Plain Sight: Inquiry into Establishing a Modern Slavery Act in Australia, [Submission no. 91], 28 April 2017, 7; Project Respect, Submission to JSCFADT, Hidden in Plain Sight: Inquiry into Establishing a Modern Slavery Act in Australia, [Submission no. 53], April 2017, 23-24.

[76]. JSCFADT, Hidden in Plain Sight, 88.
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