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Legal and Constitutional Affairs Legislation Committee
01/08/2018
Modern Slavery Bill 2018

HOWELL, Mr Roscoe, Founder, Slavery Links Australia Inc.

STRACHAN, Mr Mark, Chair, Slavery Links Australia Inc.

[09:58]

CHAIR: Welcome. You have made a submission, which we have numbered 23. Thank you for your written submission and for coming along today. There being no objection, the committee will accept your postcards as an exhibit. I understand that we have provided you with information on parliamentary privilege and the protection of witnesses. If there is any evidence you want to give in private, please let us know. I now invite you to make a brief opening statement and then we will ask you some questions.

Mr Strachan : The chart we have given you illustrates the hierarchy of slavery offences in division 270 of the Criminal Code. We also undertake exhibitions in terms of awareness of the definitions of slavery.

Mr Howell : We thank the parliament for amending the Criminal Code by moving debt bondage from its mis-location in the trafficking division to division 270. Thank you for that. It is going to reduce possible confusion and, in due course, we are going to amend the chart and the indicia. Senator Macdonald featured in this discussion about the law in the High Court in 2008—I don't know if you know that, Senator. In Tang's case, in May 2008, you show up in the transcript because you made a speech to do with what was then an explanatory memorandum and the High Court had regard to your comments on the question: 'Is slavery about sex—in other words, the outward form of the entrapment—or is it about the underlying forms of control?' So you were one of the persons who triggered that discussion in the High Court. We have provided you with a summary of where the High Court got to. They formed the view that it is in fact the underlying expressions of control and over-control that are important.

The indicia come to us from the war crimes trials in Yugoslavia. They are not theory. These are tested, practical, concrete and very useful definitions. They include 'control of movement, environment, psychological control, control of escape, force, threat of force, durance'—which is effectively duration—'exclusivity, cruel treatment, control of sexuality and forced labour'. We commend these to you as tests that are part of Australian jurisprudence. The point is that the jurisprudence on this is settled. We have a sound definition of slavery in the Criminal Code, and we are urging the Senate to maintain consistency in the definitions between the two acts. We have tests of enslavement—courtesy of the Yugoslav war crimes trials—and our concern is that, if we change the definition, we lose all this set of case law and the years of work that has gone into developing it. And the Yugoslav war crimes trials come into this discussion in another way. Chris Crewther, who is the MP for Dunkley and chair of the joint standing committee, served in Bosnia on the aspect of reparations. Again, he brought experience to the joint standing committee report—which is not theory; there is evidence in that report that has very high standing in the field.

I now turn to our submission. It is a very narrow and tightly framed submission. It contains three points. It goes to the definition of slavery in the bill, the case for parliamentary scrutiny, and the need for a commissioner and a three-year review process. On the question of definitions, Slavery Links submits that modern slavery means conduct which would constitute an offence under division 270 or 271 of the Criminal Code. That is in paragraph 27 of our submission. Why do we say that? The terms 'slavery', 'servitude' and 'exploitation' are used in many places, but they can only be understood in Australian law with reference to the supplementary convention in division 270 of the code—the slavery part of the code, where those terms are, in effect, defined. We pick that up in paragraph 53 of our submission.

What about trafficking? In Australian law, exploitation is defined in terms of slavery and slavery-like practices—paragraph 49. Our submission takes you to section 271.1A of the code: 'where exploitation occurs and the other person's conduct causes the victim to enter into slavery, servitude, forced labour, forced marriage or debt bondage'. So these terms in division 271 are defined in division 270; the two bits go together. And they both come from the supplementary convention. You can only understand trafficking if you have slavery defined as in division 270 and in terms of the supplementary convention. So Slavery Links is saying: senators, please keep the definition of slavery intact.

The argument in favour of parliamentary scrutiny for the supplementary convention is straightforward. We set it out in paragraph 78 and 79 of our submission. In paragraphs 88 to 96 we describe a perverse outcome of the current situation: the Modern Slavery Bill was subject to scrutiny without reference to the supplementary convention, which is where slavery is defined. It is not on the list of treaties that are eligible for scrutiny. So the remedial action we request is simple and straightforward: amend section 3 of the Human Rights (Parliamentary Scrutiny) Act by adding to the list of treaties the supplementary convention. It is a very simple thing to do; it is one line.

Slavery Links submits that an independent statutory commissioner is required in Australia. We cover that in paragraph 104 of our submission. Implementing the recommendation for a commissioner would also encourage the three-year review that the joint standing committee recommended.

That concludes our opening statement.

CHAIR: Mr Strachan, do you want to add anything further?

Mr Strachan : Not to the opening statement, thank you.

Mr Howell : Our apologies. Dr Mark Burton, who is our joint submitter to the joint standing committee, is in Sydney and not available. Detailed questions on that aspect we may need to take notice, but we will do what we can today with what we have got.

CHAIR: Mr Howell, do you have a legal background?

Mr Howell : I am a social planner. My work is about who gets a slice of the pie—who is included and who is excluded. It is about community education and community resources.

CHAIR: You sound like a lawyer—I don't know whether that is a compliment or an insult!

Mr Howell : My lawyer colleagues on the board have whipped me into shape. We started this work in 2005. And our first engagement with the joint standing committee was in 2010, I think, so we had Philip Ruddock and Laurie Ferguson both working on us to bring us up to speed. We run workshops. We have found over the years that we can run this material with Australian audiences and, because they travel in Asia, they have seen this stuff first hand—in Cambodia, India, Bengal and so on—and it resonates.

CHAIR: Did you take part in the consultation—

Mr Howell : Absolutely, yes. We put a submission in to the joint standing committee and there was a process of consultation with what was somewhere between the Attorney-General's Department and Home Affairs.

CHAIR: In paragraph 28 you comment about the definition of slavery. Have you raised that with the government or the minister—

Mr Howell : Absolutely.

CHAIR: since the draft of the legislation came out?

Mr Howell : Senator, this is an apology, but I'm not sure who's apologising. Somehow, we dropped off the list in between the consultation and the process of framing the draft bill, so the first notice we had of this was when in May—I forget the date—we slipped off the radar somehow.

CHAIR: Without going into it in any detail, it seems that your suggestion is sensible and harmless to the legislation. It would help it, but I just wondered if the government gave a reason why they have different—

Mr Howell : I can't answer that, but, if I may, Senator Hume raised the question of the flaw in the British bill, and our Joint Standing Committee submission went to that. The Brits have this Gestalt term 'exploitation', but they don't define it. They refer to the European convention, which doesn't define slavery. So Australia is streets ahead in terms of our legislation. Whoever drafted this part of the Criminal Code did a stunning job, and we're very grateful to parliament again for sticking with the definition and case law that we've got.

CHAIR: Just on a personal basis, I don't think I've ever been mentioned in the High Court before, andI'm not sure that you've got the right person.

Mr Howell : I don't think there were two Senator Macdonalds.If you want, I'll send you the copy of the transcript. Your staffer is in the room, and I'll—

CHAIR: If you just give us the page of Hansard, it'll be interesting—

Mr Howell : You didn't feature in the Commonwealth law report. This is in the May hearing when there was the argy-bargy hearing, not the—

CHAIR: I don't recall whether I was giving my own views or actually reading something that someone had given me to put into the bill—

Senator PRATT: Just take the credit.

Mr Howell : However it was, it turned out to be very helpful. And, yes, you can take the credit.

Senator PRATT: In relation to the questions about consistent definitions that you've raised, do you know what the views of other stakeholders are?

Mr Howell : There were 220 submissions to the Joint Standing Committee, and we went through every one of those. I think we missed a few. We've missed a number of the submissions to this inquiry. It's all come about very quickly during the school holidays.

Senator PRATT: I go to these questions because we can see thematic issues around penalties and around the need for a commissioner, and we've got a fair view about where stakeholders are lining up. There are some arguing for more penalties. Most of them are arguing for a commissioner. But it's very hard for us to adopt something out of the blue based on what one set of stakeholders say if the rest of the stakeholders are silent, because we don't know where they might get tripped up. At this pointy end of legislating on this question, how do we test whether or not what you're saying is a good idea? It's very hard for us to now have the time to ask other stakeholders that question.

Mr Howell : What is it that we're saying that you think might be at odds with other stakeholders?

Senator PRATT: You're going back to Criminal Code definitions.

Mr Howell : Yes. That's been part of Australian law for a long time. It's not a new thing. And I would expect any other stakeholder to have read the law.

Senator PRATT: And that they would agree with that?

Mr Howell : Not to agree, but I would expect them to have read the law and be familiar with it.

Senator PRATT: Is it an oversight that they haven't also commented on those issues?

Mr Howell : I beg your pardon?

Senator PRATT: Why haven't other stakeholders commented on that? Are they happy with it?

Mr Howell : In the audit we did, there were 220-odd submissions to the Joint Standing Committee. There were only three of us that referred to the Criminal Code. The bulk of submissions, even from the human rights people and universities were talking in terms of the framework for business and human rights without reference to the Criminal Code.

Senator PRATT: But clearly that indicates that they're happy with the existing—

Mr Howell : That indicates that they haven't thought through the fact that slavery is a crime and that, at some point, reference to the Criminal Code needs to be made. I can't explain our universities and the bulk of some of those in the human rights field, but there was a clear trend that the business and human rights framework was the one being discussed and an extraordinary gap in that the criminal code wasn't part of the conversation. In our submission, the joint standing committee picked up this document, and it appears in their report as part of their consideration that we need to have regard for the law and the bits of our law need to be consistent from one path to another. So we're not saying anything new, and I'm a bit taken aback that you might think that there's anything novel in what we're saying.

Senator PRATT: I'm trying to work out whether there is anything novel in what you're saying based on what other stakeholders might also say about it.

Mr Howell : I can't take responsibility for any gaps in their understanding of the field.

Senator PRATT: We're really trying to work through where there's broad buy-in on all of these issues. Introducing things that seem novel at the eleventh hour is—

Mr Howell : It's not novel and it's not the eleventh hour. This started in 2008.

Senator PRATT: Okay. I'll test these questions with some other stakeholders during the course of the year.

Mr Howell : Yes. You might find them perplexed, because clearly from the joint standing committee numbers of people haven't worked this issue through. We most earnestly submit that we need to keep our definitions consistent between the two acts.

Senator PRATT: Yes, between the two acts, but you nevertheless maintain that the conventions on slavery should also be referenced.

Mr Howell : That was again a submission of the joint standing committee. It's not new. It's not novel. And, indeed, we can hand this up if you wish. There's a Slavery Links document on the subject. Philip Ruddock, a former attorney-general, was kind enough to say to me, 'Roscoe, I've learnt things about my committee that I hadn't known before.' If you would like to receive this as a supplementary submission, we'd be more than happy to provide it. The patrons in chief for this include two former governors-general, a state governor and a former minister of finance. So this has, again, been around for three or four years. You may remember the pigeon pair, if I can describe it is that, between Mr Ruddock and Mr Ferguson, who were chair and deputy chair of the human rights committee. These things were well aired, but, if you would like us to provide that as a supplementary submission to you, we can certainly do so. There is nothing new or novel in what we're saying and it's firmly embedded in the law as it's been established since 2008.

Senator PRATT: Thank you.

CHAIR: Senator Molan.

Senator MOLAN: I will look at the submissions in detail and the comments you've made now. Can you reassure me that, by bringing international law into this, we lose no sovereignty ourselves within our own law—we're not beholden to overseas tribunals or anything like that?

Mr Howell : Absolutely.

Senator MOLAN: Thank you.

Mr Howell : Do you want a one-word answer or—

Senator MOLAN: Oh, no. Give me as many words as you like.

Mr Howell : The supplementary convention is a stunner. Because of your background, I can go back. World War 2 is when operations research was developed—the start of systems thinking. The Brits were prime movers in the 1926 League of Nations slavery convention. The matter was revisited in 1956 at the United Nations but the systems thinking in the convention. So they are talking about systems of servitude: debt bondage for child trading, forced marriage and so on. It's a systems document. It's a remarkable one. In law, as I understand it—in fact, we make this this point in our submission—whether or not countries have ratified the supplementary convention, it's an obligation on those. Everyone is entitled is required to provide freedom from slavery for everyone else. It's not open to debate or discussion. In the Australian law—to answer what might have been embedded in your question—we have extraterritoriality. If an Australian has sex with a child overseas, that's an offence here in Australia. That's a layman's way of putting it.

Senator MOLAN: That's a very specific one, isn't it? That's not a basic rule.

Mr Howell : I know Philip Ruddock used to be concerned that that our connection to the supplementary convention would justify or warrant interfering in the internal arrangements of other countries. That's not happened. The convention's been in since '56.

Senator MOLAN: And I'm more concerned about it coming the other way—that anything that we've signed up to in a normal sense is normally operating. But you're assuring me that, by reconciling the definitions, which I think is a very good idea, we don't lose any independence in our own legal system.

Mr Howell : Indeed, the definition of slavery in division 270 comes straight out of the convention.

Senator MOLAN: Good. Thank you.

Mr Howell : So where we're sitting on it and securely.

Senator MOLAN: Thank you.

CHAIR: Senator Hume.

Senator HUME: On the same sort of issue: because this is a global problem, can you speak to the committee about how important it is to have a level of consistency in legislation across jurisdictions?

Mr Howell : You mean Australia, Britain, the US and so on?

Senator HUME: Yes.

Mr Howell : At the moment, we lack that consistency. I don't know why, but Americans don't like international conventions and they develop their own legislation without regard to the supplementary convention. Can't explain it. Don't understand it. That's just how it is. We've got a different framework that's coming through the legislation in California. With the French there's a case called Siliadin where they've adopted a different view again. We don't have control over what happens in other countries. I can assure you that our view is that Australia's legislation is way ahead in its robustness and tensegrity.

Senator HUME: And that is even without having an independent commissioner and penalties?

Mr Howell : Sorry;I'm talking about the Criminal Code there. Nicholas Craft summarised the role of this hearing this as: is the bill fit for purpose? We do draw attention to a couple of gaps, and one of them is the commission. We haven't revisited the arguments in detail. We've listed in our appendix the recommendations made regarding a commissioner. Those recommendations were evidenced based. Heather Moore's in the room behind me with Chris Evans. They're going to do this, as will Mark Zirnsak. There is good evidence to say that an independent statutory commissioner can do things that public servants can't. Our experience is that in 2005 we began developing workshops and looking for language that works for Australians.It's not an easy task, and this needs to be resourced and removed from the day-to-day grind and concerns of government in our submission. I heard some of the questions on this to the previous speaker. If you want to revisit that, we'll take on notice and give you something in writing that's considered and coherent, but we've at the very least reiterated the recommendations that came to you from the joint standing committee. They were well founded and based in evidence, and we commend them to you.

Senator HUME: Thank you.

CHAIR: Gentlemen, thank you very much for your help today, for your written submissions and for the work you've obviously been doing for a long time on this very important subject.

Mr Howell : Should I inquire: when you say I sound like a lawyer, is that a compliment or a warning?

CHAIR: I did make that qualification that I wasn't sure whether it was a compliment or a criticism, and only I, as a former lawyer, can say that! But thank you very much. We appreciate your long-held interest in this very significant subject.