Submission to the consultation on ‘Strengthening Australia’s legislative response to modern slavery in supply chains
ALHR recently made a submission to the Attorney-General’s Department consultation on strengthening Australia’s legislative response to modern slavery in supply chains. The consultation proposes a new offence of failing to prevent modern slavery, along with associated enforcement mechanisms.
ALHR welcomes the proposed offence as a significant step forward. The current reporting regime under the Modern Slavery Act 2018 (Cth) has improved transparency, but it has not consistently given businesses enough incentive to prevent and address modern slavery risks. A failure to prevent offence would help close that accountability gap.
To make the offence effective, proportionate and consistent with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, ALHR makes 18 recommendations. The key recommendations are:
Designing the offence
- Introduce the failure to prevent offence as a preventative accountability mechanism informed by human rights due diligence, while keeping it a criminal offence.
- Adopt a strict liability model supported by a robust reasonable steps defence, with human rights due diligence as a central (but not the only) way for a business to show it took reasonable steps.
- Give greater clarity on the standard of prevention expected of businesses, and further consider the evidentiary burden for the reasonable steps defence.
- Broaden the offence to cover deceptive recruitment where it is closely connected to later slavery, servitude, forced labour or debt bondage.
- Make sure liability is not confined to exploitation at or near Tier 1 of the supply chain.
- Keep the $100 million revenue threshold, in line with the Modern Slavery Act, but review it within three years of commencement.
Enforcement and remedy
- Establish a civil liability and regulatory enforcement regime alongside the criminal offence, including direct access to remedy for affected workers.
- Complement financial penalties with corrective measures such as remediation orders, independent monitoring and compensation orders.
- Direct penalty revenue, at least in part, to a National Compensation Scheme for victims and survivors of modern slavery.
- Introduce a Deferred Prosecution Agreement scheme only with strong safeguards, including independent oversight, publication of agreements and consultation with victims and survivors.
- Strengthen civil remedies so victims and survivors have more accessible and effective avenues of redress.
Implementation
- Provide a transition period before commencement, with final guidance available well in advance.
- Establish a central resource hub with practical guidance, templates, sector-specific tools and training materials, with particular support for small and medium-sized enterprises.
- Align the offence with existing domestic and international frameworks to avoid duplication.
- Encourage responsible engagement and supplier improvement rather than businesses simply cutting ties with higher-risk suppliers, which can leave vulnerable workers worse off.
Above all, ALHR submits that the regime should put prevention, worker-centred remediation, responsible use of corporate leverage and continuous improvement in supply chains at its centre, rather than a narrow focus on avoiding liability.
Read full submission here and accompanying consultation responses here