Covid-19 and modern slavery in Australia

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Anne O’Donoghue
Immigration Solutions Lawyers, Sydney
anne@immigrationsolutions.com.au

The Covid-19 crisis will challenge how businesses combat modern slavery globally as they face major disruption and grasp how best to protect and manage their employees.

In Australia, the government has ordered the shutdown of a range of non-essential services. The domino effect of the economic downturn resulting from this lockdown threatens to hurt modern slavery victims even more than before. Many people have already experienced redundancy and loss of employment, making them more susceptible and vulnerable to labour exploitation and modern slavery abuses.

It can be argued that the impact of Covid-19 can not only worsen the risks for those already exploited but also increase the risks of exploitation. Those people are now at greater risk as they become vulnerable to barriers to basic healthcare, restriction of movement due to border closures and travel bans and discrimination by politics.

The International Labour Organization estimates that the economic and labour crisis created by Covid-19 may see global unemployment increase by almost 25 million.^[1] The rise of job insecurity can leave people in desperation and needing to search for more precarious and exploitative employment. In this risky environment, working conditions may often be undermined resulting in modern slavery instances including forced labour and human trafficking.

Globally the virus is affecting supply chains and manufacturing industries. In Bangladesh, more than 100 factories have lost business as retailers close shops and reduce orders. These workers are now at risk of losing their jobs and are in a situation of vulnerability due to loss of steady income.

Added to this is the recent increased demand for certain products such as hand sanitisers and masks. Such purchasing practices can put extreme pressure on suppliers, and these unforeseen increased demands may also be accompanied by unreasonably tight production turnaround heightening the risk of labour exploitation. The increase on quantities and need to make up for losses incurred as a result of reduced supply caused by the spread of the pandemic makes an eventual increase in the use of exploitative labour entirely plausible.

It is essential to turn our minds to not only the risks to businesses during these times, but also the risks that businesses may pose to others. This pandemic has stressed the need for stronger protection of the most vulnerable in our community. The Covid-19 crisis could force a backwards step in human rights protection, undermining and disrupting the progress that has been made in key sectors in recent years. It is important for companies to engage and cooperate with others such as suppliers, workers and the community to work out how to best respond to these risks.

Overview of modern slavery in Australia

The Australian government, along with Canada, New Zealand, the United Kingdom and the United States, have developed a set of principles for governments to adopt as a framework for tackling the issues of forced labour in public and private sector supply chains. While governments have demonstrated progressive efforts to address modern slavery, persistent gaps remain, particularly in the governments’ understanding and perception of the issue and inconsistencies in the implementation of domestic legislation.

Australia has demonstrated continued efforts to combat modern slavery. This included implementing legislation which requires businesses disclose efforts to combat human trafficking in their supply chains, increasing personnel levels in the Witness Assistance Service to provide support to victims of trafficking testifying against their traffickers, increasing funding for their victim support programme, and identifying and referring victims to services.

In November 2018, the Australian Government passed the Modern Slavery Act 2018 (Cth) (the 'Act'), which requires businesses and entities with annual revenue of AU$100m (approx. $64m) or greater to publish an annual modern slavery statement detailing their efforts to combat modern slavery in their supply chains and operations.

As a result, sponsoring companies must be aware of the risk of modern slavery in their operations and supply chains. They must examine whether the entity falls within the scope of the Act and what actions are thereby required to address those risks, especially for the purpose of sponsorship approval.

The focused areas for risk compliance include domestic workers, restaurant and hotel workers, agricultural workers and fashion production workers.

What organisations are required to report

Entities with a revenue of AU$100m or more that are required to prepare a Modern Slavery Statement (MSS) include:

• companies that are Australian residents within the meaning of the Income Tax Assessment Act 1936 (Cth);
• trusts, where the trust entity is a resident trust estate;
• corporate limited partnerships that are Australian residents’;
• other partnerships or entities where either
• the partnership or entity is formed or incorporated within Australia; or
• the central management or control of the partnership or entity is in Australia; and
• entities that carry on business in Australia at any time in the reporting period.

Australia has a strong criminal law framework that criminalises human trafficking, slavery and slavery-like practices, regardless of whether they occur in Australia or overseas. However, the United States Department of State has recently called on Australia to strengthen its efforts significantly in investigating and prosecuting trafficking offences, given its low conviction rate.^[2]

Australia is currently developing a new five-year National Action Plan to Combat Modern Slavery 2020-2024 (the '2020-2024 Plan') to drive the strategic direction of Australia’s response to these crimes. Australia must build on the considerable progress made under the National Action Plan to Combat Human Trafficking and Slavery 2015-2019. The 12 proposed goals of the 2020-2024 Plan are:

1. maintain and promote compliance with international standards on modern slavery;
2. engage the Australian community to understand and combat modern slavery;
3. promote an evidence-based response to modern slavery;
4. maintain a robust and comprehensive legislative framework to combat modern slavery;
5. train frontline officials to support the identification of victims and effective investigations of modern slavery;
6. progress effective prosecutions to secure convictions against offenders;
7. enhance our response to combat forced marriage;
8. enhance our response to combatting serious forms of labour exploitation, including forced labour and deceptive recruiting;
9. promote transparency and accountability for combating modern slavery risks in global supply chains including in government procurement;
10. provide appropriate support, protections and remedies to empower victims of modern slavery;
11. enhance our leadership and partnerships to promote regional and international cooperation on combatting modern slavery; and
12. work collaboratively across government, along with non-governmental stakeholders, to combat modern slavery.^[3]

The main objective behind the proposed 12 goals in the 2020-2024 Plan is to ‘address the full cycle of exploitation, from recruitment to reintegration, and aim to give equal weight to the critical areas of prevention, enforcement and victim support’.^[4]

The Law Council of Australia’s submission on the 2020-2024 Plan expressed the significance of immigration outcomes and support services for victims of slavery which are not contingent upon cooperation with the criminal justice system.^[5] The Law Council of Australia recommended measures to ensure traffickers are successfully prosecuted under the criminal justice system, but not at the expense of victims, who must be supported in a manner that upholds their dignity and rights.^[6]

It is essential to turn our minds to not only the risks to businesses during these times, but also the risks that businesses may pose to others. This pandemic has stressed the need for stronger protection of the most vulnerable in our community. It is important for companies to engage and cooperate with others such as suppliers, workers and the community to work out how to best respond to these risks.

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