Coordination key to combat modern slavery

The federal government has responded to recent concerns about human trafficking and slavery with a legislative review and appointment of an anti-slavery commissioner.

The developments follow recent estimates that 41,000 people are victims of modern slavery in Australia today.

The Modern Slavery Act 2018 came under scrutiny amid rising reports of human trafficking filed with the Australian Federal Police, leading to calls for change from businesses and advocacy organisations.

The AFP confirmed incidents of modern slavery “continue to increase year on year” after it received 340 reports of modern slavery in the 2023 financial year, 46 reports more than the previous 12-month period.

Research has found 70 per cent of Australian businesses supported the establishment of an anti-slavery commissioner, while 61 per cent said they would provide more detailed and proactive responses to slavery concerns if required to undertake human rights due diligence, according to the Business & Human Rights Resource Centre.

In April 2023, the global organisation published results from a survey in which it asked 90 businesses about the effectiveness of Australian modern slavery legislation.

Two months later, in June, Attorney-General Mark Dreyfus announced Australia would be appointing its first anti-slavery commissioner.

Additionally, the federal government undertook a review of the former Modern Slavery Act, unveiling the Modern Slavery Amendment Bill 2023 in November.

The review made 30 recommendations to remedy weaknesses within the 2018 Act, which were primarily related to reporting inconsistency and lack of enforcement.

One key recommendation was the implementation of due diligence procedures, which would require businesses to take proactive action to identify and respond to risks, rather than just report on them.

Another was for the imposition of financial penalties for businesses that failed to comply with the legislation.

The Business & Human Rights Resource Centre’s research found 54 per cent of businesses would improve modern slavery responses if monetary penalties were introduced.

In conversation with Business News, a spokesperson for the attorney-general’s department said that, assuming the Amendment Bill passed, a commissioner would be appointed when a thorough recruitment processes had been undertaken.

“Subject to passage of the Bill, the Australian anti-slavery commissioner will work across government, industry and civil society, to support compliance with the Act, improve transparency in supply chains, and help fight modern slavery in Australia and abroad,” they said.

“On December 7 2023, the Bill was referred for inquiry to the Senate Legal and Constitutional Affairs Legislation Committee.”

(This article had gone to press before the committee was due to release its findings.)

The government will dedicate $8 million across four years to support the establishment of an anti-slavery commissioner.

University of Western Australia Law School associate professor of international human rights law Fiona McGaughey said the commissioner would encourage collaboration in the fight to end modern slavery.

“[A]t the moment, we’ve got all of these separate agencies,” she said.

“We’ve got the Australian Federal Police who deal with things like trafficking and forced marriage, we’ve got police at state and territory level who come across issues such as family and domestic violence, which may well be related to modern slavery or forced marriage.

“Then we’ve got big businesses, which are required to report on the risks of modern slavery within their operations and their supply chain. We’ve got the Department of Foreign Affairs and Trade, which has a particular agenda around tackling modern slavery.

“We’ve got all of this good work, but at the moment no-one joins any of that together, and there’s certainly a lack of information sharing.

“We’ve got a large group of civil society organisations that do important work like supporting survivors, providing advocacy … but again, in general, [those] people tend to work either through their own networks or just completely independently.

“So a really important part of what an anti-slavery commissioner would do would be bringing all of these agencies together with a holistic view of what the risks are of modern slavery in Australia in our supply chains and what we can do in a slightly more coordinated way.

“At the moment, that doesn’t happen.”

While the anti-slavery commissioner would be part of the government, Associate Professor McGaughey said it was vital for the role to operate independently.

“With the anti-slavery commissioner in the UK, one of the concerns raised about that role when they performed a review was that, at times, there was a lack of independence,” she said.

“We’re trying to learn from that and say it’s critical that this office is independent, and it’s sufficiently resourced to do what it needs to do. But also that we feel it should have more powers than what is currently proposed.

“It’s accepted that the role would be supportive … it would be an independent expert on modern slavery.

“So, just like any other entity who might undertake an investigation or make recommendations or reports, it should be completely independent of government so that, for example, if government policy changes on a particular issue they can still raise issues that affect people’s lives and make recommendations.”

Attorney-General Mark Dreyfus announced Australia would be appointing its first anti-slavery commissioner.

NSW has its own anti-slavery commissioner and is the only Australian state or territory to have taken this step.

The position was established in August 2022 as part of the introduction of NSW’s own Modern Slavery Amendment Act 2021, with James Cockayne appointed as the inaugural commissioner for a fiveyear term.

Associate Professor McGaughey said the only other modern slavery law in Australia was the federal legislation, which made the introduction of a national anti-slavery commissioner essential.

“It certainly wouldn’t hurt to have state- and territory-level antislavery commissioners, but a really important consideration would be, how does that fit with the existing architecture?” she said.

“For example, how would that person work alongside things like the Fair Work Commission or WA Police, if we think of our context here in Western Australia?

“It would require some kind of modern slavery law at each state and territory level to introduce that rule, and I don’t think that’s necessarily a bad thing.”

One reservation Associate Professor McGaughey had with this concept was around prioritising the prevailing issues within the national modern slavery laws before embarking on the establishment of individual state and territory laws.

“The issue is that [the anti-slavery commissioner would] sit within this legislation that is really, really weak,” she said.

“There are other proposals out there … to strengthen the Modern Slavery Act. It was reviewed, and the report was published last year and there were a number of recommendations about how that law needs to be strengthened, particularly to bring it more in line with international law, but also emerging laws in other jurisdictions.”

Associate Professor McGaughey referred to the Amendment Bill’s recommendation around imposing due diligence duties onto businesses.

“[This would mean] broader human rights issues are considered, and they have a due diligence approach, so companies actually have to do something, not just report,” she said.

“At the moment, all they really need to do is report, ‘yes, we’ve identified some risks, we will take some steps’.

“But they don’t really have to do anything. Whereas due diligence laws, which are being introduced across Europe, for example, are more onerous. Under those laws, the corporations would have to actually take steps to identify the risks and tackle the issues.

“The anti-slavery commissioner is good and it’s really important, but it could be much more effective if the law was stronger.”