Clare O'Neil (Hotham, Australian Labor Party, Shadow Minister for Justice) Share this | Link to this | Hansard source

by leave—I move:

(1) Clause 4, page 4 (line 15), after "Criminal Code", insert ", other than an offence against section 270.7B of the Criminal Code (forced marriage offences)".

(2) Clause 4, page 4 (line 17), after "Divisions", insert "(other than an offence against section 270.7B)".

Thank you for the opportunity to move these amendments to the Modern Slavery Bill 2018. We're delighted to be making some proposed changes that we think will strengthen this bill and make sure it is effective as it can be. Amendments (1) and (2) circulated in my name relate to forced marriage, which, as it currently stands, is a definition of slavery to which this modern slavery act would eventually be subject. Whether we should include forced marriage in the legislation before us is a complicated question. Under Australia's Criminal Code, forced marriage is considered one of the types of slavery that is outlawed under Australian law, but that doesn't really help us to answer the question as to whether it should in fact be subject to a modern slavery bill.

Labor has spoken to stakeholders quite extensively about this issue and we're concerned that the inclusion of forced marriage in this bill will have unintended consequences, including driving forced marriage further underground. Good Shepherd in its submission to the Senate inquiry said, 'There is a likelihood that the reporting requirement may function as a barrier to prevention.' The Salvation Army said in its submission, 'There is a risk that requiring entities to assess risk of this practise may lead to unintended negative consequences, including racial or religious profiling of some of their staff.'

It might assist the House and those in the gallery for me to step back a little and contextualise what we're talking about here. The bill that's before the parliament is to introduce a requirement on big companies that are operating into Australia. What we're saying to these big companies is that for the first time under Australian law they will be required to make a statement about what it is that they've done to make sure that slavery is not a part of their supply chain. It's a very important reform because for a long time we've had big business in Australia tell us that what happens in their supply chain is none of their business. That has to change. It's a really exciting moment for this parliament to stand together on this question of obligation, because we are saying that we do expect companies to look. To not know is no excuse.

The question, though, is how broadly we define slavery under this act, and, specifically, whether we want to put an obligation on big companies in this country that they investigate forced marriage, as a form of slavery, which would then subject to the reporting requirements that we are discussing? It may come to pass in the future that we will consider that this is an important part of the act, but Labor believes that under this first go at the Australian Parliament legislating on this matter it is not appropriate to include forced marriage. The reason for this is that we don't want to give big companies effectively a social licence, and in fact a legal licence, to inquire into the personal lives of their employees. We don't want, for example, big companies to see that under this bill the parliament is telling them that they should be talking to their employees about their marriage and how their marriage came to pass. There may be instances where a forced marriage becomes part of some type of human trafficking that brings slavery into the supply chain of companies, but our view, in listening to the experts, is that at this stage we would prefer to err on the side of caution and not include forced marriage in the definition under this law. What that means is that big Australian companies will have to comply with this law—they will have to make sure they make statements about whether there is slavery in the supply chain, but we won't be asking them to tell us about what they've done to prevent forced marriage, because we believe that in doing so we may actually drive this very significant social problem further underground.

We on this side of the House are very concerned about forced marriage. Earlier this year I was very lucky to stand with the Deputy Leader of the Labor Party and member for Sydney as we announced a very fresh, new and different approach to tackling forced marriage that a future Shorten Labor government would put in place. That would include establishing a Forced Marriage Unit to provide a one-stop shop to connect victims to the support they need. It would include increasing funding for civil society to support victims and, crucially, it would involve the full removal of the cooperation requirement. Today the cooperation requirement is a mechanism under Australian law that effectively requires victims of forced marriage, literally some of the most vulnerable people in our whole country, to get government support to escape from that marriage. We effectively require them to report against their own parents, and you can imagine that most are not willing to do that. It is a very complex issue, a very important one, and we don't believe that it belongs in this modern slavery act.

David Coleman (Banks, Liberal Party, Minister for Immigration) Share this | Link to this | Hansard source

The government does not support the proposed amendment and the removal of forced marriage from the definition of modern slavery. We've carefully considered this issue in consultation with over 100 experts in the business community and broader society. The broad feedback was strongly in favour of the inclusion of forced marriage within the definition of modern slavery. This is because some entities may directly contribute to forced marriage through their business activities. We believe that should be captured within the definition under the act. For example, a mining company may report on forced marriage risks because it runs remote overseas accommodation camps for workers who are forcibly marrying women. The bill will also apply to entities that may choose to include information in their statements about their actions to ensure that forced marriages don't occur as part of their services. The bill doesn't require entities to investigate or assess the private activities of their employees, which is important to note. Our approach to forced marriage is consistent with the way we will require entities to report on other modern slavery risks linked to their business activities. For example, members have highlighted the potential vulnerability of some private domestic workers to modern slavery. Under this act we will expect companies that provide domestic workers for their overseas employees to report on what they are doing to ensure these workers are not exploited. For these reasons the government does not support the proposed amendment.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) as moved by the member for Hotham be agreed to.

Clare O'Neil (Hotham, Australian Labor Party, Shadow Minister for Justice) Share this | Link to this | Hansard source

by leave—I move amendments (3) to (6) as circulated in my name together:

(1) Clause 4, page 4 (line 15), after "Criminal Code", insert ", other than an offence against section 270.7B of the Criminal Code (forced marriage offences)".

(2) Clause 4, page 4 (line 17), after "Divisions", insert "(other than an offence against section 270.7B)".

(3) Clause 11, page 10 (lines 3 to 13), omit the clause, substitute:

11 Simplified outline of this Part

This Part requires modern slavery statements to be given annually to the Minister, describing the risks of modern slavery in the operations and supply chains of reporting entities and entities owned or controlled by those entities.

The statements must also include information about actions taken to address those risks.

Joint modern slavery statements may be given on behalf of one or more reporting entities.

There are civil penalties for reporting entities that fail to comply with these requirements.

The Minister must prepare an annual modern slavery statement on behalf of all non-corporate Commonwealth entities.

The Minister must report annually to the Parliament about compliance by reporting entities with this Act.

(4) Page 13 (after line 27), at the end of Part 2, add:

16A Civil penalty for failure to give or prepare modern slavery statement

Compliance within the first 2 years of this Act

(1) An entity is liable to a civil penalty if:

(a) a modern slavery statement that covers the entity, for a reporting period, is required to be given or prepared within the 2 year period starting on the day this section commences; and

(b) a modern slavery statement that covers the entity for that reporting period is not given or prepared under any of sections 13 to 15 (whether or not the entity giving or preparing the statement complies with the requirements of subsection 13(2), 14(2) or 15(2)).

Civil penalty: 1,000 penalty units.

Compliance from 2 years onwards

(2) An entity is liable to a civil penalty if:

(a) a modern slavery statement that covers the entity, for a reporting period, is required to be given or prepared after the end of the 2 year period starting on the day this section commences; and

(b) a modern slavery statement that covers the entity for that reporting period is not given or prepared in accordance with any of sections 13 to 15.

Civil penalty: 1,000 penalty units.

(3) Subsection 93(2) of the Regulatory Powers (Standard Provisions) Act 2014 does not apply in relation to a contravention of subsection (2) of this section.

16B Annual report by Minister on compliance with Act

(1) As soon as practicable after the end of each financial year, the Minister must cause to be prepared a report on compliance by reporting entities with their obligations under this Act during the financial year.

(2) Without limiting subsection (1), the report must include:

(a) a list of each entity that is a reporting entity at any time during the financial year; and

(b) a list of each entity that has failed, at any time during the financial year, to comply with a requirement to give a modern slavery statement.

(3) The Minister must cause the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is prepared.

(5) Clause 21, page 16 (lines 3 to 9), omit the clause, substitute:

21 Simplified outline of this Part

This Part deals with the following miscellaneous matters:

(a) things done by an unincorporated entity;

(b) civil penalties;

(c) the Minister's capacity to delegate powers and functions under this Act;

(d) review of this Act;

(e) the power to make rules.

(6) Page 16 (after line 14), after clause 22, insert:

22A Civil penalty provisions

Enforceable civil penalty provisions

(1) Subsections 16A(1) and (2) of this Act are each enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014.

Note: Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, the Secretary of the Department is an authorised applicant in relation to subsection 16A(1) or (2) of this Act.

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, each of the following courts is a relevant court in relation to subsection 16A(1) or (2) of this Act:

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia;

(c) a court of a State or Territory that has jurisdiction in relation to the matter.

Extension to external Territories etc.

(4) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to subsection 16A(1) or (2) of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

Liability of Crown

(5) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to subsection 16A(1) or (2) of this Act, does not make the Crown liable to a pecuniary penalty.

I do so because, while we are very pleased to be in this chamber this evening debating the Modern Slavery Bill 2018, there is something crucially important missing from the bill that's before us. That is the issue of penalties. So Labor is moving amendments to this bill to introduce immediate penalties for companies that fail to submit a modern slavery statement and penalties for companies that submit inadequate modern slavery statements with a two-year delayed start. We will also be moving amendments to require the minister to report to parliament on the operation of the act annually, including the list of companies the minister believes are required to report and those the minister believes are noncompliant.

We do this in the full knowledge that there are a number of very big companies around this country that are doing everything they can to fight modern slavery. We are, in part, instituting a report to the parliament because we want the parliament to draw the public's attention to companies that are doing the right thing—and there are a lot of them. But it is also the case that there are big companies in this country that are not doing what we believe is required to fight modern slavery.

In this parliament, we make laws and all of us in this chamber are subject to those laws. The bill before us will introduce a regime which requires big public companies to report on what they're doing to fight modern slavery, yet effectively the government are making the regime optional. This is slavery we are talking about, one of the grossest infringements of human rights that there is. We believe that, when it comes to making laws in this parliament, we need to make a crystal clear statement about what is acceptable and what is not. If we introduce the Modern Slavery Bill through this parliament, all we will be doing is introducing a requirement that big companies merely report on what it is they are doing to fight modern slavery. It is not that onerous a requirement. I don't want to downplay it: for really big companies, it is going to take some time and resources. But we are talking about slavery here and all we are requiring of these companies is that they make a statement. If big companies in this country cannot be bothered to look into their supply chains to do what we as a parliament are saying is their obligation as corporate citizens then they deserve to be punished. They deserve to have their names brought forward to the people of Australia so they know which companies are doing the right thing and which are not and they deserve a financial penalty. Part of the purpose of a modern slavery act is this parliament, for the first time, laying down in black-and-white letters what the obligations are of these companies to human rights in this country. I believe, and the Labor Party believes, that it is perfectly reasonable to expect companies to comply with Australian law and, if they don't comply with Australian law, just like if we didn't follow the law, penalties should be the result.

We also know from experience in the UK where a similar piece of legislation applies what happens when we don't have a penalties regime. What we found in the UK version of the modern slavery act is that only half of the 9,000 to 11,000 organisations that are required to report under the act actually produce a slavery and human trafficking statement. It's not very hard. All they need to do is look at their supply chains and provide a report as to what they've done and what they've seen, and yet half of the big companies in the UK cannot be bothered complying with this act. This is meant to be a legal obligation, and the Labor Party believe that it's perfectly reasonable for companies that are going to be subject to this act to be forced to comply with this law. So we are moving amendments to the bill to make sure that there are penalties as a consequence of failure to comply with it. We believe that's fair and reasonable given that we are talking about something that is so crucially important to everyone in this parliament, and that is tackling modern slavery.

David Coleman (Banks, Liberal Party, Minister for Immigration) Share this | Link to this | Hansard source

The government does not support the proposed amendments. The feedback from the extensive consultation process undertaken for the introduction of this important legislation was that reputational risk and reward will drive compliance far more effectively than any penalty regime. The proposed regime would be complex, would be resource intensive and would likely require a new regulatory enforcement body. The proposed penalties wouldn't address the most likely reason for noncompliance over the first three years of the bill, being a lack of understanding of the new regime.

What the government is doing is establishing a business engagement unit within the Department of Home Affairs resourced with some $3.6 million to advise on the new requirements under the modern slavery act and to support those businesses in fulfilling the requirements of the act. Importantly, the legislation provides for a three-year review, and at that time there will be an opportunity to review the evidence about reporting rates. It's also notable that this issue of penalties was considered by the Senate committee recently, who took a range of submissions from civil society and business. Importantly, after considering the evidence, the Senate committee supported the government's approach on penalties. Rather than immediate penalties, the Senate committee recommended, similar to the government's position, that this issue be assessed after the three-year period has elapsed.

The member for Hotham talked about noncompliance rates in the UK, but it is important to understand that the UK application has a very, very broad application to UK businesses and quite a low threshold, which has driven up the noncompliance rate. Importantly, the UK government did not actually establish a government body to provide support for the introduction of this new regime. That's precisely what we've done with the business engagement unit within the Department of Home Affairs. We think there's an important distinction to be made there. For those reasons, the government does not support the amendments as proposed by the member for Hotham.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that amendments (3) to (6) moved by the member for Hotham be agreed to.

The question now is that this bill be agreed to.

Question agreed to.

Bill agreed to.