Be Slave Free Network’s Response to Hidden in Plain Sight

The Be Slave Free Network, which represents over 30 organisations from civil society, ethical business, and faith groups(1), welcomes the release of the report “Hidden in Plain Sight – An inquiry into establishing a Modern Slavery Act in Australia(2)”. The report adopts a human rights approach, supported by the Network.

The Network also welcomes an announcement by the Turnbull Government of a pilot program whereby access to the Support for Program for Trafficked Person’s is ‘de-linked’ from police processes for certain victims of forced marriage. Under the pilot program, the period of support for victims has been lengthened. This is an indication the government recognises the importance of a more victim-centred approach for trafficked persons and modern slavery.

Hidden in Plain Sight addresses the multifaceted nature of modern slavery crimes. Tackling its wide-ranging nature requires all key aspects of the report being picked up in the proposed legislation. Should all the recommendations be adopted it will have enormously positive impacts on the lives and destinies of potentially millions of people working in the supply chains in the Indo-Pacific region including Australia. It will also provide better options and outcomes for people at risks of being coerced into conditions of modern slavery and support for victims of the same crimes.

It will be good for business. It will create a level playing field whereby exploitation of workers through bonded labour and low or no wages cannot be used as a competitive advantage. Australian businesses will have an economic and reputational advantage over other countries where less compliance is required.

Further, the Network believes we have a chance to set a new world benchmark in the fight to end modern slavery. Whilst the 2015 United Kingdom Modern Slavery Act(3) was groundbreaking when it was adopted, its weaknesses are now showing. Within 18 months, there were moves to strengthen the transparency in supply chains component of the Act in the House of Lords. The lack of provision of legislation or regulation for a due diligence reporting framework, a central repository for reporting by business and penalties for non-compliance have all led to businesses not taking this requirement as seriously as they must. Australia can learn and do better. An Australian Modern Slavery Act offers business and government the chance to lead the way in shaping and positioning Australia as a country with the most promising practices to prevent, disrupt and abolish human trafficking, slavery and slave-like practices.

Below are the key elements the Be Slave Free Network believes should be in the legislation. Our experience of making changes to legislation (particularly the People Trafficking Visa Framework) is that this is a long and difficult process. It diverts the resources of civil society from preventing trafficking, supporting victims and survivors and undermines work with other sectors aimed at disrupting and abolishing slavery(4).

Transparency in Supply Chains

Summary

  • There should be penalties for non-compliance in reporting
  • The threshold should be $25 million (in step with the definition of a large company in the Corporations Act)
  • Entities with a high risk of having trafficking and slavery in their supply chains should be required to report below the agreed threshold
  • Federal government and public bodies should be required to report and State and Territory and Local governments encouraged to follow suit
  • A central government run reporting repository with clear reporting frameworks is necessary

Key to addressing slavery in Australia’s region is the introduction of mandatory modern slavery supply chain reporting for entities operating in Australia. The success of the legislation depends on listing and publishing the entities that are required to report. This was recommended by the landmark inquiry and is a crucial element in the public and business education and awareness campaign.

Penalties

There should be a penalty in place for noncompliance in reporting for the entities over the minimum threshold. One of the contributors to the poor response by U.K. businesses to reporting there is the lack of penalties. As well as immediate financial penalties, there can be the secondary penalties attached to being named in the Parliament for non-compliance. They should include being ineligible for government contracts, grants and participation in trade missions.

Threshold

We propose a reporting threshold of $25 million which is consistent with the definition of a large proprietary company in the Commonwealth Corporations Act. These companies are already required to report on their finances and activities. They are most likely to have global, multi-tiered supply chains where modern slavery is occurring. Further, with more entities reporting there will be a cascading effect through the supply chains of companies in the form of broader learnings within industries and shared knowledge bases. This proposed threshold is lower than the $100 million proposed by the Australian Government and the $50 million proposed by the inquiry report.

It does not make sense to have a threshold set higher than the U.K. threshold of approximately $50 million, because Australian companies that report in the UK would not have to report in Australia. It would miss a large number of companies that are likely to have multi-tiered global supply chains.

Technology allows us to be able to support a large number of reporting entities. There is already considerable experience in developing such reporting platforms. The Australian Charities and Not for Profit Commission has registered 55,921 (5) charities and monitors their reporting. Different levels of reporting are required by different size charities. The Workplace Gender Equality Agency provides a framework for reporting and generates industry as well as business comparisons.

Risk Industries and Source Regions

The size of the company is not usually the key predictor of whether there is likely to be modern slavery in the supply chain. In fact, larger companies are often already aware of the reputational risk and are addressing these in their supply chains. The type of industry and the geographic regions entities are sourcing from is a far better predictor. Entities in high risk industries, operating or sourcing from high risk regions should have additional due diligence reporting requirements. A list of such industries (such is produced by the US Department of Labor(6)) should be made available through the proposed office of the Anti-Slavery Commissioner. It would be important for guidance to be provided to companies in risk industries and locations.

 

Government Procurement

It is essential that the Australian Government lead the way in the fight against human trafficking and modern slavery., The Commonwealth Government is the largest procurer of goods and therefore its impact is substantial. Including it is vital. State and Territory governments should be encouraged to follow suit.

 

Central Reporting Repository

The Network supports an Act that sees mandatory reporting published in a government run and funded central and public repository. It’s widely acknowledged that one of the failings of U.K. system is the absence of such a mechanism. The legislation must make clear what is expected of business in terms of what is they report, including due diligence reporting which places the onus on entities to demonstrate that they are taking all necessary measures to identify, prevent and mitigate incidences of modern slavery in their operations and supply chains.

A dynamic, regularly updated database will encourage transparency and accountability. It will allow entities to revise their actions and provide the public with information about the actions entities have taken when slavery is found in their supply chains. Voluntary reporting by entities that fall outside the threshold or legislated definitions should be enabled.

An Independent Anti-Slavery Commissioner

The Be Slave Free Network strongly supports the establishment of Independent Anti-Slavery Commissioner as outlined in Recommendation 6 of the Inquiry Committee’s report and also supported by the Parliamentary Joint Committee on Law Enforcement: An inquiry into “Human trafficking, slavery and slavery-like practices” (July 2017)(7). The Commissioner’s role should include reviewing the legislation every three years and the monitoring the National Action Plan. The ‘picture’ of trafficking, slavery and slave-like practices in Australia is different to that of the U.K. as is the progress Australia has already made in addressing this in its criminal code. The Commissioner’s role should respond to the local context as opposed to being a replica of the British model, Importantly, the office must be adequately funded to ensure it is able to operate effectively and interact with the Departments of Home Affairs and Foreign Affairs and Trade.

Support for Survivors

Survivors of this crime in Australia suffer serious harm and require support to rebuild their lives. The total number of recognised victims and survivors is not large and should eventually decline as a result of this legislation. The Network believes Australia has an obligation to recognise the harm and provide reparation. Both the recent inquiry and the earlier Parliamentary Joint Committee on Law Enforcement’s inquiry support such a scheme. Human trafficking and modern slavery is a federal crime as it happens around Australia with violations across states. It therefore requires a federal response.  The current situation of state differences in relation to this matter is not satisfactory. The Inquiry report offers suggestions for funding such a scheme.

Positions of the Parties (8)

Inquiry Coalition Labor Greens Centre Alliance
The establishment of an MSA
Transparency in Supply Chains Legislation
Penalties for non-compliance in reporting
Threshold for reporting $50 mill $100 mill No position given $25 mill $25 mill
Reporting by industries identified at risk but below the threshold Only above threshold Only above the threshold Only above the threshold No position given No position given
Legislating for Federal Government Procurement Under consideration Under consideration
Central Reporting Repository
Due Diligence Reporting 9
List of companies required to report available
Voluntary reporting for entities outside the threshold
Business / Civil Society consultations on MSA No position given No position given
Independent Commissioner
Changes to survivor support including national compensation & de-linking Under consideration Under consideration
3-year review of legislation, including consideration of Due Diligence Reporting Under consideration Under consideration

 

Endnotes

1. Be Slave Free Network https://beslavefree.org

2.   Joint Standing Committee on Foreign Affairs, Defence and Trade, Hidden in Plain Sight – An inquiry into establishing a Modern Slavery Act in Australia, http://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024102/toc_pdf/HiddeninPlainSight.pdf;fileType=application%2Fpdf . Accessed 15/03/2018.

3.  http://www.legislation.gov.uk/ukpga/2015/30/contents/enacted

4.  We also support other aspects of the report including improving criminal justice responses to modern slavery; measures to address orphanage trafficking and child exploitation in overseas residential institutions; measures to address labour exploitation, including  establishing a labour hire licensing scheme; measure to address organ trafficking and making changes to Australia’s visa framework.

5.  http://acnc.gov.au . Current at 5/4/18.

6.  https://www.dol.gov/agencies/ilab/reports/child-labor Accessed 5/4/18.

7.  Parliamentary Joint Committee on Law Enforcement, An inquiry into human trafficking, slavery and slavery-like practices. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Law_Enforcement/Humantrafficking45/Report . Accessed 15/03/2018.

8.  We acknowledge that for the parties their responses are a “work-in-progress” and these commitments may change. We also acknowledge these are our interpretation of the commitments of the parties.

9. The Inquiry foreshadows the introduction of due diligence reporting at a later stage.

A Human Rights Approach – Briefing sheet

Reports and convictions of trafficking in Australia have occurred. They have occurred in situations of slavery, sexual servitude, forced labour, forced marriage, domestic servitude ( in home workers) and debt bondage. Exact numbers of people trafficked to Australia each year is not known due to difficulty in reporting and because of the illegal nature of the crime. There is also a need for a national compensation scheme for people who have been caught in slavery in Australia. All the compensation schemes are state based and different. Yet slavery is a national crime. To address these issues adequately, Australia will need a Domestic Slavery Commission. The Commissioner would be a focus and a central “go to” point to ensure the implementation of an Act and adequate care for people caught in slavery in Australia.

Laws reflect the values of a culture. Freedom is a human right and not a privilege. Human rights protection has traditionally been a matter for the State. However, due to globalisation, the liberalisation of trade and the immense economic power of corporations, it is now well recognised that there is also a crucial link between the way in which businesses conduct their operations, human rights and diligent corporate social responsibility policies. In addressing human trafficking, slavery and slave like practices in Australia, our laws should take into account that the most immediate obligation is to ensure that the victim is protected from further exploitation and harm and that compensation and remediation is available. These are basic human rights that Australia has committed to. These should underpin a Modern Slavery Act.

Human Rights Approach REVISED Human Rights Approach

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Australia has obligations under a number of international treaties to protect survivors of human tra cking and slavery.5 It is essential that the rights and safety of survivors are at the heart of any legislation or policy to combat human trafficking and slavery.

Human rights protection has traditionally been a matter for the State. However, due to globalisation, the liberalisation of trade and the immense economic power of corporations, it is now well recognised that there is a crucial link between the way in which businesses conduct their operations and human rights. Businesses have a responsibility to protect human rights impacts that are linked directly to their operations. Around the world more and more responsible businesses are investing in corporate social responsibility prolicies that put human rights front and centre of business practice. In the list of the world’s top 100 economic entities, 31 are nation states and 69 are corporations.

Supply Chain Due Diligence – Briefing Notes

So much manufacturing has gone offshore. Australians mostly impacted by slavery through the products we buy. Imported manufactured goods may contain slavery and labour exploitation. There are workers who are trafficked into work places in many of these countries. An Australian Modern Slavery Act should incorporate mandatory due diligence reporting for businesses who reach an appropriate financial threshold, or source from high risk areas of the world. Voluntary reporting should also be available for businesses falling outside these parameters.  The Australian Government should lead the way in ensuring that public money is only used to procure goods and services from companies that demonstrate sufficient measures to minimise the risk of slavery in their supply chains.

Supply ChainsSupply Chain

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Australia is inevitably implicated in slavery through the consumption of imported goods where forced labour and child labour are used in their production. Currently there is little way of knowing with certainty the extent of slavery which touches Australian consumer goods. Whilst statistics can provide an indication as to the extent of slavery in developing nations, they are unable to demonstrate the extent to which developed nations are touched by slavery as a result of importing goods from o shore manufacturing and labour, including forced labour.

The only way in which Australian consumers can develop an awareness of the potential connection between the products they consume and human trafficking, forced labour and slavery is if corporations are required to be transparent with regard to the way in which their products are produced and made available for sale within Australia.

Anti-Slavery Commissioner – Briefing Notes

anti-slavery commissioneranti-slavery commissioneranti-slavery commissioner

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We believe an Anti-Slavery Commissioner will be essential to be appointed to oversee Australia’s implementation of any Modern Slavery Act and the complexities associated with the same. This requires a sophisticated and cross-departmental approach with Government. It crosses human rights, human services and law enforcement at a minimum. Its implementation will require building relationships with the States, NGOs, Trade Unions, business and the legal community.

 

 

A National Compensation Scheme – Briefing Notes

Compensation

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While human trafficking is a federal crime there is no federal compensation scheme for victims of human tra cking.

People who have been tra cked have already experienced incredible trauma in experiencing the crime that was committed against them and in having to retell their story as they seek the support they need to recover. Compensation is their right not a privilege.

The current legislative framework for combating tra cking in Australia does not a ord victims of tra cking adequate human rights protection. Australia requires a holistic human rights based approach to bring domestic laws in line with Australia’s international human rights obligations. A Federal Compensation scheme is one aspect of this.