Additional Comments from the Australian Greens

1.1The question that this bill and the inquiry into it are meant to be answering is: What would it take to make the laws actually stop Australia participating in modern slavery?

1.2This report addresses many of the significant issues that stakeholders have said need to be fixed to make the scheme work properly.

1.3While the commentary and direction of this report are positive, I note that numerous important observations from stakeholders about how to improve the system that were discussed in the report were not included as recommendations in the final report. These recommendations included:

Providing the Anti-Slavery Commissioner with genuine independence, by permitting them to provide advice and reporting direct advice to the Minister and to Parliament and with oversight by a multi-partisan joint committee.

Ensuring the Anti-Slavery Commissioner’s work is informed by, and led by, the experience of victim survivors with a statutory reference and support panel.

Providing the Anti-Slavery Commissioner with far stronger compliance powers to monitor and enforce compliance by corporate Australia with modern slavery statements and the power to force government agencies to provide evidence and materials as required.

To meet the expectations from victims and survivors, the Anti-Slavery Commissioner must have Investigation powers to inquire into matters. This is not to replicate the functions of police but to allow it to adequately respond to complaints of modern slavery and refer matters where needed to other agencies for further action.

1.4Stakeholders also made it clear that the Anti-Slavery Commissioner’s existing functions, even without the proposed expansion set out above, could not be adequately exercised with the proposed $2 million annual budget. By way of perspective, the evidence before the committee was that this is a budget that is significantly less than that provided to the NSW Anti-slavery Commissioner and the Federal office will have a far greater remit than this important state equivalent.

1.5As noted above, while some of these issues are touched upon in the report, they have not been included as recommendations for amendments to the Bill. The Greens believe that they should have been included as specific recommendations. Accordingly, we will be moving amendments to the Bill when it comes to the Senate to insert these important additional provisions in the Bill.

1.6I do note the inclusion of useful recommendations designed to make the Commissioner respond to those with lived experience and the possible narrowing of the definition of ‘sensitive information’ that will be withheld from public reports issued by the Commissioner. These are useful steps forward.

1.7For the Anti-Slavery Commissioner to deliver on the public mandate that travels with the position, it needs to be able to take an active role in the identification and penalisation of modern slavery. Having a body that provides victim survivors with brochures on where they can go to seek justice or assistance and otherwise reviewing and commenting on government and corporate modern slavery statements does not deliver on this promise.

1.8In light of the above there are a number of headline matters that must be addressed for the Bill to meet these expectations. They include.

An Anti-Slavery Commission not just a Commissioner

1.9The Anti-Slavery Commissioner needs the backing of a Commission to be able to undertake the full scope of expected work. There is no question that a standalone Commissioner with a budget of around $2 million each year will be unable to discharge the duties required under the scheme. A Commission is clearly required to support the Commissioner to discharge the important duties required.

1.10As the ACTU made clear in the public inquiry:

We're also concerned about the small budget that the commissioner is being provided with-just $8 million over four years and $2 million a year ongoing. We're proposing that it be increased to enable it to effectively carry out its standard functions and be sufficient to deal with the scale and severity of the scourge of modern slavery.[1]

1.11The work of this office will include examination of the reports of some of the largest corporations in the country and without significant resourcing it will simply not be possible to do this job.

1.12As Dr Cockayne, the NSW Anti-slavery Commissioner, told the committee:

On the second question of whether there is a role for the New South Wales parliament's Modern Slavery Committee to discuss resourcing, yes, there is, and I do speak with them about that. I've raised on the record with them several times that my own budgetary allocation, which is currently out of the Department of Communities and Justice's own resources and which I note is larger than $2 million, which raises its own questions of why a federal commissioner would have a smaller allocation than an individual state. I believe that the allocation I receive is inadequate to allow me effectively to discharge my statutory functions at the New South Wales level.[2]

1.13This was compelling evidence that leads to only one conclusion: the proposed budget for the Federal Anti-Slavery Commissioner is manifestly inadequate.

1.14An independent budget process is also needed to ensure the Commission receives funding that enables it to fulfil its mandate. This would best be overseen by a joint parliamentary committee that reflects the makeup of the whole parliament and is not dominated by the government.

Enforcement powers and penalties

1.15The Commissioner needs enforcement powers and penalties to be able to deliver on the public mandate.

1.16There are real concerns that if the Commissioner does not have sufficient powers to directly levy penalties, then it will essentially be toothless. At a minimum there must be penalties available for the failure of government agencies or corporate Australia to meet the requirements of reporting on modern slavery. The Anti-Slavery Commissioner must also have the necessary power to compel the production of documents, records and other evidence where the Anti‑Slavery Commissioner has reasonable grounds to suspect there has been such a failure.

1.17It would be a mistake for this position to be one that is limited to referring victims and survivors of modern slavery to other agencies and otherwise writing letters and reports identifying modern slavery. Such a model fails to deliver on the mandate for this Commissioner.

Investigation Powers

1.18The Commissioner needs to be able to take an active role in the identification and investigation of slavery. Those experiencing or suspecting slavery should be able to directly approach the Anti-Slavery Commissioner. While it may be appropriate for some matters to be handled by other agencies there is a strong public policy argument for the Anti-Slavery Commissioner to have the basic function of investigating matters to assess if slavery is occurring.

1.19As the Human Rights Law Centre told the committee:

But, in our view, the commissioner should not merely be a first point of contact; they should also be able to initiate their own investigations and inquiries. In order to promote compliance with the act, for example, the commissioner will need to be able to investigate companies that they believe to be providing misleading statements under the act. The office may also need to investigate particular high-risk sectors with a view to exposing bad systemic practices in order to better inform efforts to address modern slavery. These functions would not be intended to duplicate or interfere with investigations into individual suspected cases of modern slavery that may be more appropriately undertaken by law enforcement. The focus of the Modern Slavery Act is not on criminal investigations and enforcement but rather on driving changes in corporate behaviour in order to prevent modern slavery from happening in the first place.[3]

1.20Such investigative powers would be an essential precursor to then referring a matter to the police or other authorities as per the agreements recommended in Recommendation 4 of the report. It’s hard to know how the Commissioner will know how or when to refer matters without this basic investigative function.

1.21These proposals should have been given form in the report by alternate recommendations to recommendation 4 as follows:

Recommendation 4.1 The committee recommends that the Anti-Slavery Commissioner not have the power to undertake a full investigation of individual cases of modern slavery, but that once established, the office of the Commissioner should make appropriate arrangements, for example a memorandum of understanding, with relevant law enforcement agencies to facilitate the referral of cases for investigation as requested.

Recommendation 4.2 The committee recommends that the Anti-Slavery Commissioner have sufficient powers to undertake a preliminary investigation of allegations of modern slavery to ensure that individual cases of modern slavery are appropriately referred to law enforcement or other regulators including the Australian Competition and Consumer Commission or the National Anti-Corruption Commission.

Conclusion

1.22Finally, this Bill is a chance for Australia to regain the mantle as being a world‑leading jurisdiction in the fight against modern slavery. As Carolyn Kitto from Be Slavery Free advised the Committee about the need for a fully resourced and empowered Anti-Slavery Commissioner:

So why do we need one? In 2018 we boasted that we were leading the world in our actions on modern slavery, and we were. We can no longer make that claim. It is one thing to have good legislation; it is another thing to actually decide that you're going to put in place the things that make that legislation actionable and enforceable, and that's what an anti slavery commissioner would do. We need one to provide business, government, civil society and victims-survivors opportunities to work together.[4]

1.23To understand the scale of this challenge, and why Australia must move faster, it is appropriate to end with the words of Walk Free who advised the Committee:

The Global Slavery Index estimates the prevalence of modern slavery at the country level around the world. The 2023 index said the global number was 50 million, which is an increase of 10 million since we did the last estimate five years ago, and in Australia that number is 41,000 for people living in modern slavery. That includes people living in forced labour and people living in forced marriage. That number has gone up from 15,000 five years ago, I believe, which I think was 2016.[5]

1.24Let’s work together to fix this.

Senator David Shoebridge

Greens Senator and Justice Spokesperson

Footnotes

[1]Ms Clare Middlemas, Senior International Officer, Australian Council of Trade Unions, Committee Hansard, 19 February 2024, p. 26.

[2]Dr James Cockayne, New South Wales Anti-slavery Commissioner, Office of the New South Wales Anti-slavery Commissioner, Committee Hansard, 19 February 2024, p. 49.

[3]Ms Keren Adams, Legal Director, Human Rights Law Centre, Committee Hansard, 19 February 2024, pp. 2–3.

[4]Ms Carolyn Kitto, Director, Be Slavery Free, Committee Hansard, 19 February 2024, p. 35.

[5]Ms Serena Grant, Head of Business Engagement, Walk Free, Committee Hansard, 19 February 2024, p. 41.