On 30 November 2023, the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 (the Bill) was introduced (and had its second reading) in the House of Representatives.
The Bill seeks to amend the Modern Slavery Act 2018 (Cth) (the Act) and follows the statutory review of the Act earlier this year (the Review Report – see our earlier article for further information). This article summarises key provisions of the Bill, which we expect to be just one part of a larger program of reform by the Australian Government in relation to modern slavery.
Importance of the Modern Slavery Act
Research by the Australian Institute of Criminology in 2019 highlighted the extent of human trafficking and slavery in Australia, revealing that for every detected victim, approximately four remain undetected. The establishment of the Act in 2019, with its modern slavery reporting requirement, marked a significant step in addressing these challenges.
The Bill seeks to further strengthen these efforts by establishing the Australian Anti-Slavery Commissioner (the Commissioner), an independent statutory office holder appointed by the Attorney-General.
The Review Report made a number of other recommendations in respect of the Act which have not been addressed in the Bill. In his second reading speech, the Attorney-General has indicated that the Government is still considering those other recommendations, and it is anticipated that the Government will announce its intentions in respect of these other recommendations next year.
The Role of the Australian Anti-Slavery Commissioner
The Commissioner is intended to complement other work being performed by the Australian Government by supporting compliance with the Act, improving corporate and social accountability, and better preventing modern slavery. The Commissioner’s functions will include:
- promoting compliance with the Act;
- supporting Australian entities and entities carrying on business in Australia to identify and address modern slavery risks in their operations and supply chains, and in the operations and supply chains of entities they own or control;
- engaging with various sectors to foster collaboration in preventing modern slavery;
- providing support, information and resources to victims and survivors of modern slavery, and engaging with such victims to inform policy measures for addressing modern slavery;
- conducting and encouraging education, community awareness and research on modern slavery;
- consulting and liaising with Commonwealth, State and Territory governments, agencies, bodies, other officeholders, persons and organisations relating to modern slavery; and
- advocating to the Commonwealth Government on matters relating to modern slavery such as the continuous improvement of modern slavery policies; and
- providing advice to the Minister on matters relating to modern slavery (when requested by the Minister).
When performing its functions, the Commissioner will be required to have regard to Australia’s international obligations. The Commissioner will not have any investigative or law enforcement (or similar) powers, so it will not be able to investigate or resolve complaints concerning instances, or suspected instances, of modern slavery.
The Commissioner is intended to be independent from Government. Although appointed by the Attorney-General, the Commissioner’s remuneration will be set by the Remuneration Tribunal (similar to other independent statutory office holders) and their appointment can only be terminated by the Governor-General for a limited number of circumstances prescribed in the Bill. The Bill requires the Commissioner to report annually on its strategic plans and activities, and to do so publicly.
The Commissioner’s appointment process will be for a term of up to five years, with the possibility of being reappointed once. The Bill requires the Commissioner to possess relevant qualifications and experience in human rights, regulation, and public policy related to modern slavery.
According to the Review Report, specialised oversight is central to the efficacy of the Act, a gap that the Commissioner is intended to fill. The Commissioner’s role, as an independent authority, brings a new level of specialised expertise to the table. With the Commissioner’s guidance, the Act’s implementation can be more closely monitored and fine-tuned to meet evolving challenges when it comes to combating modern slavery.
In addition, a reduction of the reporting threshold, as recommended in the Review Report, would significantly expand the scope of entities obligated to report under the Act (if implemented by the Government). As a result, the Commissioner's role would become even more critical, as the Commissioner would be required to provide support and guidance to a wider range of entities, particularly small to medium-sized enterprises.
To this end, the Commissioner’s role extends beyond mere compliance; it involves ensuring that entities are not only reporting on due diligence practices but are also actively implementing and acting upon these practices. This approach represents a proactive stance towards mitigating modern slavery risks, reinforcing the legislative intent of the Act.
Should the Australian Government’s response to the Review Report result in the introduction of financial penalties for non-compliance with the Act, having a dedicated Commissioner whose role includes guidance and compliance support can also help ensure that enforcement of the Act is balanced, consistent and proportionate.
Conclusion: Potential impact of the Australian Anti-Slavery Commissioner
The establishment of the Commissioner has the potential to make Australia’s approach to addressing modern slavery more targeted and coordinated and may result in significant changes to the way companies comply with the Act (and meet best practice). The full scope of this will become better known once the Government provides its full response to the Review Report.