2022

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

CUSTOMS AMENDMENT (BANNING GOODS PRODUCED BY FORCED LABOUR) BILL 2022

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Steele-John)

CUSTOMS AMENDMENT (BANNING GOODS PRODUCED BY FORCED LABOUR) BILL 2022

 

OUTLINE

 

The purpose of the Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2022 (the Bill) is to ban the importation of goods that are produced in whole or part by forced labour.

 

The Australian Parliament has expressed strong support for international efforts to end modern slavery. This included the Senate passing an identical form of this bill in 2021.

 

The International Labor Organisation’s Forced Labor Convention , 1930 defines forced labour as “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.” In 2021, the ILO estimated that 28 million people were in forced labour, with numbers significantly increasing since five years prior. They also found that almost one in eight of all those in forced labour are children (3.3 million). ^[1]

 

The issue of modern slavery has been highlighted by the well documented human rights abuse of hundreds of thousands of Uyghur people in Xinjiang Province in China. A recent report by the Office of the United Nations High Commissioner for Human Rights suggested that these abuses may amount to crimes against humanity. The exploitation of detained Uyghurs as a captive labour force is clear.

 

The Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2022 seeks to implement the Senate Foreign Affairs, Defence and Trade Legislation Committee’s recommendation of an amendment to the Customs Act 1901 (Customs Act), which would impose an absolute ban on the importation of goods produced in whole or part by forced labour. The proposed ban is global in nature and does not specify any geographic origin for its application.

 

The use of forced labour is defined in the Bill by reference to the Criminal Code Act 1995 (Criminal Code).

 

The importation into Australia of any goods found to have been produced by forced labour will be subject to the penalties that apply to the importation of other goods designated as prohibited imports by regulations made under the Customs Act .

 

The Bill supports Australia’s longstanding commitment to internationally recognised human rights to freedom from slavery and forced labour such as in Article 8 of the International Covenant on Civil and Political Rights and related international conventions against slavery and forced labour.

 

Recognising the need for urgent action to address a grave humanitarian problem, the Bill is introduced with the objective of implementing recommendation 1 of the Senate Foreign Affairs, Defence and Trade Legislation Committee’s report without further delay.

NOTES ON CLAUSES

Clause 1: Short Title

1.         This clause is a formal provision and specifies that the short title of the Act may be cited as the Customs Amendment (Banning Goods Produced by Forced Labor) Act 2022.

Clause 2: Commencement

2.         This clause provides for the commencement of the whole of the Act to be the day after the Act receives the Royal Assent.

Clause 3: Schedules

3.         This clause states that legislation specified in the Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Customs Act 1901

Item 1—Section 50 (at the end of the heading)

4.         Item 1 amends the heading of section 50 of the Customs Act to read: “Prohibition of the importation of goods—general”.

Item 2—After section 50

5.         Item 2 inserts after section 50 of the Customs Act a new section 50A which provides for an absolute prohibition on the importation of goods produced or manufactured, in whole or in part, through the use of forced labour within the meaning of the Criminal Code.

6.         Section 270.6 of the Criminal Code defines forced labour as the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free to cease providing the labour or services, or to leave the place or area where the victim provides the labour or services. The victim may be in a condition of forced labour whether or not escape is practically possible for the victim, or the victim has attempted to escape.

 

 

Item 3—Subsection 51(1)

7.         Item 3 amends subsection 51(1) of the Customs Act to include reference to the new section 50A, thereby providing that goods covered by that new section are prohibited imports for the purposes of the Act.

Item 4—Application provision

8.         Item 4 provides that the amendments made by the Schedule apply to goods imported into Australia on or after the commencement of the Schedule.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2021

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The purpose of the Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2021 is to impose an absolute ban on the importation of goods that are produced in whole or part by forced labour.

 

Human rights implications

The Bill supports human rights as it supports Australia’s commitment to the right to freedom from slavery and forced labour in Article 8 of the International Covenant on Civil and Political Rights , as well as the International Convention to Suppress the Slave Trade and Slavery and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery .

Trade in goods produced through forced labour helps perpetuate modern slavery and its associated human rights abuses. The Bill will ban the importation of goods produced in whole or part by forced labour, regardless of geographic origin.

 

Conclusion

This Bill is compatible with human rights as it prohibits trading activity that directly or indirectly supports human rights abuses.

 

Senator Steele-John