Modern Slavery

The Australian Modern Slavery Act: What it Needs

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[Brayden Sharp]

Over the past year we’ve talked a lot about the Australian Modern Slavery Act which has been in the works. We’re extremely pleased that modern slavery is being talked about in the Australian Parliament and we’re looking forward to seeing the Act introduced and approved soon.

That said, there are certain things that need to be included in the Act in order for it to be effective in combating slavery not only in Australia, but in other parts of the world as well. We’re going to give you a quick rundown of what needs to happen with the law without (hopefully) getting too legal.

There are three things that the Act must do well in order to be successful: establish criminal responsibility, construct mandatory transparency in supply chains, and protect victims. If Australia can get these three things right, the Australian Modern Slavery Act may become one of the most important pieces of national legislation for modern slavery.

Criminal Responsibility

Slavery in Australia is a Commonwealth offence and is contained within The Criminal Code Act 1995 (Cth).

It includes a range of slavery offences, including engaging in slave trading, entering into commercial transactions involving a slave, and possessing a slave or reducing a person to slavery. This crime applies both inside and outside of Australia and carries a maximum of 25 years imprisonment.

The Code also includes offences regarding forced marriage, forced labour, trafficking, child sex offences, and debt bondage.

As it stands, the Criminal Code provides a good umbrella coverage over slavery offences under criminal law. Like a lot of Commonwealth legislation drafted in the 90s, it is anything but concise and isn’t always specific, but the beauty of being a common law system is that our judges can interpret the general prohibitions for specific instances.

That said, we believe that the Modern Slavery Act would benefit from a more concise and specific piece of legislation which acknowledges the different forms of slavery. We also believe that the definition of slavery provided in section 270.1 needs to be updated to acknowledge the different forms of slavery.

Transparency in Supply Chains

This is probably the biggest one for us. Slavery is a global issue, but Australia can’t make laws which impose obligations on citizens in other countries due to the principle of sovereignty. However, Australia can impose obligations on businesses within its jurisdiction to not source materials from those who utilize slaves.

Australia should look to the UK’s Modern Slavery Act 2015 for inspiration here.

Section 54(1) of that Act requires commercial organisation to prepare a slavery and human trafficking statement each financial year which highlights the steps the organisation has taken during that year to ensure that slavery and human trafficking is not taking place in that business or any of its supply chains. It also requires the organisation to list its supply chain and policies in regards to slavery and human trafficking, as well as other obligations.

This ensures that those businesses that operate within the UK can’t use sweatshops in countries like India within their supply chain. If the sweatshops cannot be used, they are forced to either go legitimate or shut their doors.

This is a must for Australia’s Modern Slavery Act and needs to be done right to have a global impact on modern slavery.

Protection of Victims

While the UK got the transparency part of their Modern Slavery Act right, they have been heavily criticized for the lack of protection the Act affords victims of slavery.

The biggest concern is the lack of legal aid provided to victims of slavery to get their cases brought to Court. Whenever someone can’t afford to get their case to Court, that justice system has failed that person.

With Australia’s States considering to stop funding to Legal Aid, this is a real concern for victims of slavery in Australia. The very definition of a slave is someone who provides a service with no pay and against their will, it is illogical to not provide these people legal aid – especially if they are young people.

The very definition of a slave is someone who provides a service with no pay and against their will, it is illogical to not provide these people legal aid – especially if they are young people.

This is something that needs to be addressed when the Bill is introduced to Parliament so as to ensure legal aid is provided for victims as soon as that Bill becomes and Act.

 

Concluding Remarks

We’ve only really scratched the surface of what needs to happen with Australia’s Modern Slavery Act, but you can already see the importance of getting these three areas right.

Ticking these boxes provides punishment for offenders, discourages businesses from using sweatshops in their supply chain, and grants victims of slavery access to their respective judicial system.

We’ll be keeping an eye on the progress over the next few months and hopefully we see the Act implemented in 2018. If you want to have a more in depth legal conversation about the Act, or have any questions in general, drop us a comment below and we’ll get back to you as soon as possible!

Make Noise

Brayden has a Bachelor’s in Law, Bachelor’s in Criminology, and is currently undertaking his Master’s in Law (Public International Law). 

 

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