Looking to modernise: new review lays ground for reform of modern slavery offences in Criminal Code

While Australian law directly criminalises slavery and human trafficking with significant penalties, the findings of the Review of Federal modern slavery offences, released on 22 August 2023, reveal there is still work to be done to better support victims and survivors, as well as ensure the legislative framework is fit for purpose in the future.

The review focuses on Divisions 270 and 271 of the Criminal Code 1995 (Cth) which contain offences relating to trafficking in persons, slavery and slavery-like practices with penalties of up to 25 years’ imprisonment. Relevant to large businesses, the transparency framework under the Modern Slavery Act 2018 (Cth) explicitly contemplates that organisations must comply with them, as that regime was designed to complement Australia's criminal justice response to modern slavery.

Seven key points for reforming Australia's modern slavery offences

• Australia's modern slavery legislative framework is comprehensive but has not been significantly amended since 2013. The trafficking in persons offences in Division 271 could be strengthened by broadening their reach beyond physical movement or transportation to better align with modern conceptualisations of these offenses, which are not focused on physical movement of persons, such as recruitment or harbouring of others, and online-based offending.
• Few prosecutions or convictions have been made under the current offences which likely reflects under-detection and reporting of modern slavery crimes but may also decrease the impact of the offences as a deterrent of crime.
• Australia has a particularly complex legislative framework of offences. For example, there are 23 in person trafficking offences, whereas other jurisdictions take a more streamlined approach. The number of offenses poses challenges for fitting a victim's circumstances under a specific narrow offence as well as ensuring consistent application of the appropriate charge. A more simplified, streamlined framework with new guidance material would be helpful. In that regard, it was also raised in submissions that the existing Criminal Code should better account for the role of corporations in their involvement in modern slavery offences.
• The regime could benefit from additional guidance on the meaning of key concepts, as well as strengthened definitions within legislation, so that it can be more easily determined whether conduct is captured by the criminal offences.
• Offences could be improved by better accommodating the unique social, cultural, religious, political, economic and personal context of victims and survivors, and their relationships with others.
• Outside of the terms of reference of the review, stakeholders highlighted other measures to assist victims and survivors such as a Commonwealth compensation scheme and better access to existing remedies like reparation orders under the Crimes Act 1914 (Cth) and victim compensation schemes which already exist in States and Territories.
• Concerns were also raised that access to the Australian Government’s Support for Trafficked People Program for victims and survivors is connected to their participation in the criminal justice process. This may disadvantage victims and survivors who may have barriers to engaging with legal system, including fear of law enforcement, stigma, or their own prosecution. To this end, a new additional pathway which involves a referral from a community services provider and does not require engagement with the AFP is currently being trialed.

Future reforms to modern slavery laws, and improving your compliance with them

The Review of the Criminal Code suggests that concrete plans for legislative reform in line with the findings are on the horizon. Further consultation with key stakeholders, such as victims and survivors, criminal justice practitioners, civil society organisations, community groups and academia will likely be required in the development of any specific reforms.

The review bears note that there are a number of other reviews in various stages of completion which will also inform the approach of the Labor Government in tackling modern slavery more broadly, including the Review of the Modern Slavery Act, the Migration System Review and the Rapid Review into the Exploitation of Australia’s Visa System.

In tandem with these reviews, businesses should be critically assessing existing processes to ensure compliance with modern slavery laws and in developing capacity to quickly make changes to their operations and supply chains where necessary. This is especially so in the context of the Modern Slavery Review, which highlighted that improving the standard of modern slavery reporting and enforcing obligations of large businesses will be targeted as areas for reform, as well as the Labor Government's promise to introduce penalties for non-compliance to give the laws some teeth.

Large companies that are subject to modern slavery reporting requirements under the Modern Slavery Act 2018 (Cth) should be aware of expanded understandings of what constitutes modern slavery (for example, in relation to the trafficking in persons offenses) as part of any future reforms to the Criminal Code when considering responses to modern slavery risks. This is particularly relevant as previous reviews conducted – such as the 2022 Paper Promises report – have found that many organisations are falling short of adequately identifying obvious modern slavery risks in their operations and supply chains.