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Australia’s Modern Slavery Act

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

The Modern Slavery Act will take effect on the 1st January 2019. The  Assistant Minister for Home Affairs introduced the Bill to Parliament, saying that Australia’s legislative framework does not target modern slavery, a problem affecting thousands of people in Australia.

The Modern Slavery Act will address modern slavery risks in the Australian business community by establishing a mandatory reporting framework. It aims to address the human rights issues posed by practices amounting to slavery by requiring businesses to identify how their operations may contribute to slavery and account for what they are doing to minimise the risks.

The Modern Slavery Act has been modelled on the UK Modern Slavery Act.

Modern slavery in Australia

Slavery occurs when a person effectively owns another person. It can also occur when a person has their movement or physical environment controlled, is psychologically controlled, is subjected to cruel treatment and abuse, forced labour or has their labour or serviced used without commensurate remuneration.

Although slavery is often thought of as a relic of the past, more than 40 million people are believed to be the victims of modern slavery worldwide. It is estimated that between 15,000 and 20,000 people living in Australia are victims of modern slavery. Slavery practices include people trafficking, forced marriage, child labour, sexual servitude, domestic servitude, debt bondage and forced labour. In Australia, individuals are held in slave-like conditions in industries including fishing, cleaning, farming and sex work.

Existing laws against slavery

In 2013, the Crimes Legislation Amendment (Slavery, Slave-Like Conditions and People Trafficking) Act was passed. Under that act, it is an offence to hold a person in forced labour (Section 270.6A), to cause a person to enter a forced marriage (Section 370.7B) or to hold a person in slavery-like conditions (Section 270.8).

As Australia does not have a bill of rights, the criminal law is the only other legislative instrument that addresses the problem of modern slavery.

What does the Modern Slavery Act do?

The Modern Slavery Act requires corporations, trusts and other entities above a certain size to publish modern slavery statements each year. The statements must address criteria set out in the act, including identifying the entity’s modern slavery risks and outlining actions being taken to address these risks. It requires companies to examine their supply chain to ensure that there are no modern slavery practices being deployed at any stage in the production of goods in order to lower the costs of production. The statements must be approved by the governing body of the entity, meaning the responsibility for compliance with the act is placed on senior management.

Smaller business can make modern slavery statements voluntarily. The government will also be required to publish an annual modern slavery statement encompassing all commonwealth government entities.

The statements will be freely available online, promoting transparency in the business community.

The Modern Slavery Act does not impose any penalties for failing to complete a modern slavery statement or for lodging an incomplete statement. However, the public register means that non-complying entities can be ‘named and shamed’ by the community sector or by consumers.

In three years’ time, the scheme will be reviewed and a regime of civil penalties for non-compliance will be considered.

Responses to the Act

The passage of the Bill has been applauded by anti-slavery organisations as a crucial step in stamping out human trafficking and forced labour.  It has also been hailed as allowing Australian consumers to have confidence that they are not supporting businesses that employ modern slavery either directly or indirectly. The legislation’s inclusion of reporting requirements on the Commonwealth government has also been lauded.

Criticisms of the Modern Slavery Act have included its failure to impose penalties for non-compliance with reporting requirements and the fact that smaller companies are not required to report. The use of the term ‘modern slavery’ has also been criticised because of its lack of a legal definition.

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