David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise on behalf of the Greens to indicate we will be supporting the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023, but, in doing so, we seek to amend and improve it in order to rise to the challenge that is modern slavery. I want to acknowledge the comments of previous speakers, and I particularly want to acknowledge the significant work of the Legal and Constitutional Affairs Legislation Committee—the chair, deputy chair Senator Scarr and other members of that committee—in discussing with stakeholders the necessary improvements to the bill and looking at the significant gaps in the legislation as proposed, because the question that this bill and the inquiry that we had were meant to answer was this: what would it take to make laws that actually stop Australia and Australians participating in modern slavery, and not just in Australia but in increasingly global supply chains?

The report of the committee addresses a number of significant issues that stakeholders raised, and, while the recommendations that come from that are useful, they are modest. They've been included now in a series of amendments that the government is proposing to the bill to improve the system, but they didn't include a number of critical measures that were raised by stakeholders to make this bill actually rise to the challenge of trying to stamp out modern slavery in this country and around the world. For example, the bill does not provide the Anti-Slavery Commissioner with genuine independence by permitting them, when they're appointed, to provide advice and reporting directly to both the minister and parliament, and the bill does not provide for a multipartisan, joint oversight committee. They are elements you would include if you wanted a genuinely independent and empowered Anti-Slavery Commissioner.

The bill as initially drafted does not ensure that the Anti-Slavery Commissioner's work is informed by and led by the experience of victims-survivors, and it doesn't have a statutory reference and support panel. There are very modest amendments being proposed by the government, but they go nowhere near providing the kind of reference point and grounding in the experience of victims-survivors that, for example, the New South Wales legislation provides. It's inexplicable to the Greens why the government isn't willing to entrench those kinds of provisions more firmly in the legislation.

The legislation does not provide the Anti-Slavery Commissioner with the strong compliance powers needed to monitor and enforce compliance by corporate Australia and, indeed, require the Commonwealth to lodge full and complete modern slavery statements, and it's inexplicable why it doesn't. We've heard the evidence from the inquiry that significant elements of corporate Australia treat the provision of modern slavery statements as a tick-and-flick exercise because they know that there's no stick. There's no compliance stick if they fail to do their reporting or if they do it in a way that is derisory. Why not give the Anti-Slavery Commissioner the power to enforce compliance?

I think one of the issues that is going to arise from day one of the establishment of this office is that it will not meet the expectations of victims and survivors that the Anti-Slavery Commissioner will be able to seriously help them—that the commissioner will, first of all, have sufficient investigative powers to inquire into matters when a victim-survivor comes forward and says, 'I was the victim of modern slavery,' either the victim perhaps of an exploitative industry in Australia—and it does happen—or, as we've seen on multiple occasions, the victim of an exploitative industry in a foreign country.

This bill gives the Anti-Slavery Commissioner no power to even do preliminary investigations to understand the likelihood and the veracity of those complaints in order to inform industry and government as to how to respond, let alone to identify other victims-survivors who they could reach out to and help. They have no investigative powers. Stakeholders and the Greens don't believe the Anti-Slavery Commissioner's investigative powers should replicate the functions of police, but they should allow the Anti-Slavery Commissioner to respond to complaints of modern slavery, to do adequate investigations and to refer matters off where needed. What we get from the government is that there will be memorandums of understanding. They are not investigative powers.

Stakeholders also made it clear that the Anti-Slavery Commissioner's proposed existing functions—even the very modest existing functions—cannot be adequately exercised with the proposed $2 million annual budget. And it wasn't just one stakeholder who said that; it was every single engaged stakeholder—every single one of them. Yet we look again in this year's budget, and that's what we see for the Anti-Slavery Commissioner.

By way of perspective, the evidence before the committee was that this is a budget that's significantly less than is provided to the New South Wales Anti-Slavery Commissioner. Of course, the federal office will have a far greater remit than that important state equivalent. How can the government pass legislation and say that they're doing generational reform and seriously addressing modern slavery when they're establishing a federal regulator which has a fraction of the budget of its state equivalent and when much of this is going to be involved with assessing Australia's international trade connections? How can the Albanese Labor government seriously say that they're committed to addressing modern slavery when they are giving the federal regulator a fraction of what the state equivalent is being provided with?

I note that, following the work of the committee—and I particularly want to acknowledge the work of Senator Scarr in this regard—there are useful recommendations designed to deal with the narrowing of the definition of sensitive information that will be withheld, and, as I said, there are some modest but useful recommendations to require the commissioner to respond to those with lived experience, though they are well below the standard set by the New South Wales example. The reason I'm familiar with the New South Wales example is that I was a member of the parliament and of the two committees that reviewed the New South Wales legislation. It was initially a private member's bill that was moved in New South Wales, which was agreed to by the then government, but then the then government refused to implement it. It took a further two years of arm wrestling and wrangling with opposition from parts of corporate Australia to finally get the New South Wales legislation up and running and implemented. Every step of the way there was corporate resistance and, indeed, political resistance. It is a terrible missed opportunity for this federal legislation to not even meet the standards of the existing New South Wales legislation—to fall below that on critical elements. A lack of investigative powers, a lack of engagement with those of lived experience and a lack of funding stand out as highlights for what a tepid response this is from the Albanese Labor government.

To be clear, for the Anti-Slavery Commissioner to be able to deliver on the public mandate that will inevitably travel with that position, it needs to be able to take an active role in the identification and penalisation of modern slavery, and there's none of that in this bill. Having a body that provides victim-survivors with brochures on where they can go to seek justice or assistance, and otherwise just reviews and comments on government and corporate modern slavery statements, does not deliver on the promise that was made by the Albanese government first when it was in opposition and now that it's in government. To be clear, the Anti-Slavery Commissioner needs the backing of a commission to be able to undertake the full scope of expected work. There is no question that a standalone commissioner with a budget of around $2 million a year will be unable to discharge the duties required, even under this scheme, as the ACTU made clear during the public inquiry. It said:

We're also concerned about the small budget that the commissioner is being provided with—just $8 million over four years and $2 million a year ongoing. We're proposing that it be increased to enable it to effectively carry out its standard functions and be sufficient to deal with the scale and severity of the scourge of modern slavery.

Dr James Cockayne, the New South Wales Anti-slavery Commissioner, told the committee:

On the second question of whether there is a role for the New South Wales parliament's Modern Slavery Committee to discuss resourcing, yes, there is, and I do speak with them about that. I've raised on the record with them several times that my own budgetary allocation, which is currently out of the Department of Communities and Justice's own resources and which I note is larger than $2 million, which raises its own questions of why a federal commissioner would have a smaller allocation than an individual state. I believe that the allocation I receive is inadequate to allow me effectively to discharge my statutory functions at the New South Wales level.

There was a bucketload of this compelling evidence that leads to only one conclusion: the proposed budget for the federal Anti-Slavery Commissioner is manifestly inadequate. There should be an independent budget process and an adequate budget to ensure that the commissioner receives the funding that it needs. That would best be done if it were overseen by a joint parliamentary committee that reflected the make-up of this whole parliament, not one dominated by the government, which have indicated from day one that they want to strangle this office of the funding that's needed.

On enforcement powers, there are real concerns that, if the commissioner does not have sufficient powers to directly levy penalties, then it will be essentially toothless. As a minimum, there should be penalties available for the failure of government agencies or corporate Australia to meet the reporting requirements on modern slavery. The Anti-Slavery Commissioner should also have the necessary power to compel the production of documents, records and other evidence where the Anti-Slavery Commissioner has reasonable grounds to expect there has been such a failure. But, for reasons that are not explained other than by saying, 'Computer says no,' none of those powers have been given to the modern slavery commissioner. It would be a serious mistake on the part of the Albanese government to create this position and then limit it in large part to referring victims and survivors of modern slavery off to other agencies and otherwise just writing letters and reports identifying modern slavery. This model will fail to deliver on the mandate for the commissioner, and we will inevitably have to come back and significantly reform it.

On the question of investigative powers, the Human Rights Law Centre told the committee:

… in our view, the commissioner should not merely be a first point of contact; they should also be able to initiate their own investigations and inquiries. In order to promote compliance with the act, for example, the commissioner will need to be able to investigate companies that they believe to be providing misleading statements under the act. The office may also need to investigate particular high-risk sectors with a view to exposing bad systemic practices in order to better inform efforts to address modern slavery. These functions would not be intended to duplicate or interfere with investigations into individual suspected cases of modern slavery that may be more appropriately undertaken by law enforcement. The focus of the Modern Slavery Act is not on criminal investigations and enforcement but rather on driving changes in corporate behaviour in order to prevent modern slavery from happening in the first place.

I endorse those comments of the Human Rights Law Centre, but, unfortunately, those powers are not found in the bill. Carolyn Kitto from Be Slavery Free spoke to the committee, and I want to acknowledge her and Fuzz's work and their bravery over years and years. They said about the need for a fully-resourced and empowered antislavery commissioner:

So why do we need one? In 2018 we boasted that we were leading the world in our actions on modern slavery, and we were. We can no longer make that claim. It is one thing to have good legislation; it is another thing to actually decide that you're going to put in place the things that make that legislation actionable and enforceable, and that's what an antislavery commissioner would do. We need one to provide business, government, civil society and victims-survivors opportunities to work together.

To understand the scale of this challenge and why Australia must move faster, I think it's appropriate to end with the words of Walk Free, who advised the committee:

The Global Slavery Index estimates the prevalence of modern slavery at the country level around the world. The 2023 index said the global number was 50 million, which is an increase of 10 million since we did the last estimate five years ago, and in Australia that number is 41,000 for people living in modern slavery. That includes people living in forced labour and people living in forced marriage. That number has gone up from 15,000 five years ago, I believe, which I think was 2016.

Let's work together to fix this.

I move:

At the end of the motion, add ", but the Senate is of the opinion that the Australian Anti-Slavery Commissioner should have the budget necessary to:

(a) administer and enforce the reporting requirements in the Modern Slavery Act across government, business and non-profit reporting entities; and

(b) deliver leadership on anti-slavery policy and practice".

I indicate we will be moving significant amendments to address the matters raised in that second reading contribution.