Australia does not need a Modern Slavery Act: Deakin law expert

In a submission to the Federal Parliamentary Inquiry into establishing laws comparable to the UK’s Modern Slavery Act 2015, Deakin Law School’s Dr Nicole Siller said Parliament should consider reviewing existing laws before introducing new ones.

“It is very important to take allegations of human trafficking and slavery offences seriously, however the Australian Parliament has already enacted significant legislative provisions criminalising such conduct,” Dr Siller said.

“It is my strong belief that Australia should refrain from legislating a Modern Slavery Act if it will merely reiterate and relabel current crimes, as was done in the UK’s legislation.

“Instead, any legislative efforts made in this legal arena should be spent simplifying and/or strengthening national laws already in place that criminalise trafficking in persons, slavery or slavery-like conditions.”

Dr Siller is a criminal lawyer with a research background in the legal issues relating to trafficking in people and human exploitation. From 2008—2013 Dr Siller was Assistant District Attorney in Philadelphia (USA) and prosecuted a large number of cases involving attempted murder, firearms offenses, assault, drug trafficking, sexual offenses and theft/fraud offenses.

She explained that in Australia reported cases of alleged human trafficking are declining.

“As stated in the 2016 United States Trafficking in Persons Report, Australia is primarily a destination country for women and girls subjected to sex trafficking and for women and men subjected to forced labour,” she said.

“The Australian Federal Police investigated 61 cases of alleged human trafficking and related offences in 2015, an 87 percent decrease from 2014. As mentioned in the Trafficking in Persons Report, none of those investigations materialised in to convictions for the crime of trafficking in persons in the last two years.”

Dr Siller believes that modern slavery is a politically-charged term that has no value under international law or within the majority of national criminal laws.

“If included in Australian legislation, the term ‘modern slavery’ may actually cause confusion rather than assist in the practice of law relating to slavery, slavery-like conditions and trafficking in persons,” Dr Siller said.

“There is no clear, consistent definition of modern slavery, it is essentially a made up concept with no legal meaning that has entered the conversation in academic research, political discourse and practice.

“The term is used in relation to a range of situations such as human trafficking, forced labour, debt bondage, sale and exploitation of children. It is the practice of using terms interchangeably that blurs the conceptual borders of these concepts and prevents legal clarity in practical applications.”

Dr Siller said that, similar to the UK, there does not appear to be any legally legitimate purpose behind inserting an additional legal concept, modern slavery, into Australian law.

“As far as substantive criminal law is concerned Divisions 270 (Slavery and slavery-like conditions) and 271 (Trafficking in persons and debt bondage) of the Australian Criminal Code Act 1995 criminalise everything encompassed in the UK Modern Slavery Act and more.

“The introduction of the term modern slavery into Australian criminal law is therefore redundant and unnecessary.”

Aspects of the UK’s Modern Slavery Act that Dr Siller believes the parliament could consider are whether Australia should adopt a law concerning the non-punishment principle for victims and the expansion of criminal liability to corporate entities.

“While Australia has put in place some victim protection measures, such as consent is not a valid defence to the perpetration of these crimes, it is yet to adopt a principle of non-punishment for victims of these offences, ie, a person should not be subject to penalties for offences they have committed in the course, or as a consequence, of being trafficked,” Dr Siller explained.

“Also, requiring various corporate or business entities to report its structure, business and supply chains as is required under the Modern Slavery Act may have some preventative effect if incorporated into Australian law. This would require companies to report on such things as their policies and risk in relation to slavery and human trafficking in its business and supply chains.”