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representatives vote 2018-09-17#4
Edited by
mackay staff
on
2018-10-12 18:38:52
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Title
Bills — Modern Slavery Bill 2018; Consideration in Detail- Modern Slavery Bill 2018 - Consideration in Detail - Penalties
Description
<p class="speaker">Clare O'Neil</p><p>by leave—I move amendments (3) to (6) as circulated in my name together:</p><p class="italic">(1) Clause 4, page 4 (line 15), after "<i>Criminal Code</i>", insert ", other than an offence against section 270.7B of the <i>Criminal Code</i> (forced marriage offences)".</p>- The majority voted against [amendments](https://www.openaustralia.org.au/debate/?id=2018-09-17.117.1) introduced by Labor MP [Clare O'Neil](https://theyvoteforyou.org.au/people/representatives/hotham/clare_o'neil), which means they failed.
- O'Neil MP explained her amendment:
- > *there is something crucially important missing from the bill that's before us. That is the issue of penalties. So Labor is moving amendments to this bill to introduce immediate penalties for companies that fail to submit a modern slavery statement and penalties for companies that submit inadequate modern slavery statements with a two-year delayed start.*
- ### What is this bill all about?
- According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1819a/19bd012):
- > *The Bill will require around 3,000 entities based or operating in Australia to prepare annual statements on potential modern slavery risks in their operations and supply chains, and the steps they have taken to address those risks.*
<p class="italic">(2) Clause 4, page 4 (line 17), after "Divisions", insert "(other than an offence against section 270.7B)".</p><p class="italic">(3) Clause 11, page 10 (lines 3 to 13), omit the clause, substitute:</p><p class="italic">11 Simplified outline of this Part</p><p class="italic">This Part requires modern slavery statements to be given annually to the Minister, describing the risks of modern slavery in the operations and supply chains of reporting entities and entities owned or controlled by those entities.</p><p class="italic">The statements must also include information about actions taken to address those risks.</p><p class="italic">Joint modern slavery statements may be given on behalf of one or more reporting entities.</p><p class="italic">There are civil penalties for reporting entities that fail to comply with these requirements.</p><p class="italic">The Minister must prepare an annual modern slavery statement on behalf of all non-corporate Commonwealth entities.</p><p class="italic">The Minister must report annually to the Parliament about compliance by reporting entities with this Act.</p><p class="italic">(4) Page 13 (after line 27), at the end of Part 2, add:</p><p class="italic">16A Civil penalty for failure to give or prepare modern slavery statement</p><p class="italic"> <i>Compliance within the first 2 years of this Act</i></p><p class="italic">(1) An entity is liable to a civil penalty if:</p><p class="italic">(a) a modern slavery statement that covers the entity, for a reporting period, is required to be given or prepared within the 2 year period starting on the day this section commences; and</p><p class="italic">(b) a modern slavery statement that covers the entity for that reporting period is not given or prepared under any of sections 13 to 15 (whether or not the entity giving or preparing the statement complies with the requirements of subsection 13(2), 14(2) or 15(2)).</p><p class="italic">Civil penalty: 1,000 penalty units.</p><p class="italic"> <i>Compliance from 2 years onwards</i></p><p class="italic">(2) An entity is liable to a civil penalty if:</p><p class="italic">(a) a modern slavery statement that covers the entity, for a reporting period, is required to be given or prepared after the end of the 2 year period starting on the day this section commences; and</p><p class="italic">(b) a modern slavery statement that covers the entity for that reporting period is not given or prepared in accordance with any of sections 13 to 15.</p><p class="italic">Civil penalty: 1,000 penalty units.</p><p class="italic">(3) Subsection 93(2) of the <i>Regulatory Powers (Standard Provisions) Act 2014</i> does not apply in relation to a contravention of subsection (2) of this section.</p><p class="italic">16B Annual report by Minister on compliance with Act</p><p class="italic">(1) As soon as practicable after the end of each financial year, the Minister must cause to be prepared a report on compliance by reporting entities with their obligations under this Act during the financial year.</p><p class="italic">(2) Without limiting subsection (1), the report must include:</p><p class="italic">(a) a list of each entity that is a reporting entity at any time during the financial year; and</p><p class="italic">(b) a list of each entity that has failed, at any time during the financial year, to comply with a requirement to give a modern slavery statement.</p><p class="italic">(3) The Minister must cause the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is prepared.</p><p class="italic">(5) Clause 21, page 16 (lines 3 to 9), omit the clause, substitute:</p><p class="italic">21 Simplified outline of this Part</p><p class="italic">This Part deals with the following miscellaneous matters:</p><p class="italic">(a) things done by an unincorporated entity;</p><p class="italic">(b) civil penalties;</p><p class="italic">(c) the Minister's capacity to delegate powers and functions under this Act;</p><p class="italic">(d) review of this Act;</p><p class="italic">(e) the power to make rules.</p><p class="italic">(6) Page 16 (after line 14), after clause 22, insert:</p><p class="italic">22A Civil penalty provisions</p><p class="italic"> <i>Enforceable civil penalty provisions</i></p><p class="italic">(1) Subsections 16A(1) and (2) of this Act are each enforceable under Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>.</p><p class="italic">Note: Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i> allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.</p><p class="italic"> <i>Authorised applicant</i></p><p class="italic">(2) For the purposes of Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>, the Secretary of the Department is an authorised applicant in relation to subsection 16A(1) or (2) of this Act.</p><p class="italic"> <i>Relevant court</i></p><p class="italic">(3) For the purposes of Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>, each of the following courts is a relevant court in relation to subsection 16A(1) or (2) of this Act:</p><p class="italic">(a) the Federal Court of Australia;</p><p class="italic">(b) the Federal Circuit Court of Australia;</p><p class="italic">(c) a court of a State or Territory that has jurisdiction in relation to the matter.</p><p class="italic"> <i>Extension to external Territories etc.</i></p><p class="italic">(4) Part 4 of the <i>Regulatory Powers (Standard</i><i> Provisions) Act 2014</i>, as it applies in relation to subsection 16A(1) or (2) of this Act, extends to<i>:</i></p><p class="italic">(a) every external Territory; and</p><p class="italic">(b) acts, omissions, matters and things outside Australia.</p><p class="italic"> <i>Liability of Crown</i></p><p class="italic">(5) Part 4 of the <i>Regulatory Powers (Stand</i><i>ard Provisions) Act 2014</i>, as it applies in relation to subsection 16A(1) or (2) of this Act, does not make the Crown liable to a pecuniary penalty.</p><p>I do so because, while we are very pleased to be in this chamber this evening debating the Modern Slavery Bill 2018, there is something crucially important missing from the bill that's before us. That is the issue of penalties. So Labor is moving amendments to this bill to introduce immediate penalties for companies that fail to submit a modern slavery statement and penalties for companies that submit inadequate modern slavery statements with a two-year delayed start. We will also be moving amendments to require the minister to report to parliament on the operation of the act annually, including the list of companies the minister believes are required to report and those the minister believes are noncompliant.</p><p>We do this in the full knowledge that there are a number of very big companies around this country that are doing everything they can to fight modern slavery. We are, in part, instituting a report to the parliament because we want the parliament to draw the public's attention to companies that are doing the right thing—and there are a lot of them. But it is also the case that there are big companies in this country that are not doing what we believe is required to fight modern slavery.</p><p>In this parliament, we make laws and all of us in this chamber are subject to those laws. The bill before us will introduce a regime which requires big public companies to report on what they're doing to fight modern slavery, yet effectively the government are making the regime optional. This is slavery we are talking about, one of the grossest infringements of human rights that there is. We believe that, when it comes to making laws in this parliament, we need to make a crystal clear statement about what is acceptable and what is not. If we introduce the Modern Slavery Bill through this parliament, all we will be doing is introducing a requirement that big companies merely report on what it is they are doing to fight modern slavery. It is not that onerous a requirement. I don't want to downplay it: for really big companies, it is going to take some time and resources. But we are talking about slavery here and all we are requiring of these companies is that they make a statement. If big companies in this country cannot be bothered to look into their supply chains to do what we as a parliament are saying is their obligation as corporate citizens then they deserve to be punished. They deserve to have their names brought forward to the people of Australia so they know which companies are doing the right thing and which are not and they deserve a financial penalty. Part of the purpose of a modern slavery act is this parliament, for the first time, laying down in black-and-white letters what the obligations are of these companies to human rights in this country. I believe, and the Labor Party believes, that it is perfectly reasonable to expect companies to comply with Australian law and, if they don't comply with Australian law, just like if we didn't follow the law, penalties should be the result.</p><p>We also know from experience in the UK where a similar piece of legislation applies what happens when we don't have a penalties regime. What we found in the UK version of the modern slavery act is that only half of the 9,000 to 11,000 organisations that are required to report under the act actually produce a slavery and human trafficking statement. It's not very hard. All they need to do is look at their supply chains and provide a report as to what they've done and what they've seen, and yet half of the big companies in the UK cannot be bothered complying with this act. This is meant to be a legal obligation, and the Labor Party believe that it's perfectly reasonable for companies that are going to be subject to this act to be forced to comply with this law. So we are moving amendments to the bill to make sure that there are penalties as a consequence of failure to comply with it. We believe that's fair and reasonable given that we are talking about something that is so crucially important to everyone in this parliament, and that is tackling modern slavery.</p> <p class="speaker">David Coleman</p><p>The government does not support the proposed amendments. The feedback from the extensive consultation process undertaken for the introduction of this important legislation was that reputational risk and reward will drive compliance far more effectively than any penalty regime. The proposed regime would be complex, would be resource intensive and would likely require a new regulatory enforcement body. The proposed penalties wouldn't address the most likely reason for noncompliance over the first three years of the bill, being a lack of understanding of the new regime.</p><p>What the government is doing is establishing a business engagement unit within the Department of Home Affairs resourced with some $3.6 million to advise on the new requirements under the modern slavery act and to support those businesses in fulfilling the requirements of the act. Importantly, the legislation provides for a three-year review, and at that time there will be an opportunity to review the evidence about reporting rates. It's also notable that this issue of penalties was considered by the Senate committee recently, who took a range of submissions from civil society and business. Importantly, after considering the evidence, the Senate committee supported the government's approach on penalties. Rather than immediate penalties, the Senate committee recommended, similar to the government's position, that this issue be assessed after the three-year period has elapsed.</p><p>The member for Hotham talked about noncompliance rates in the UK, but it is important to understand that the UK application has a very, very broad application to UK businesses and quite a low threshold, which has driven up the noncompliance rate. Importantly, the UK government did not actually establish a government body to provide support for the introduction of this new regime. That's precisely what we've done with the business engagement unit within the Department of Home Affairs. We think there's an important distinction to be made there. For those reasons, the government does not support the amendments as proposed by the member for Hotham.</p> <p class="speaker">Tony Smith</p><p>The question is that amendments (3) to (6) moved by the member for Hotham be agreed to.</p><p>The question now is that this bill be agreed to.</p><p>Question agreed to.</p><p>Bill agreed to.</p>
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