Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Foreign Affairs, Defence and Trade Legislation Committee—Senate Standing—Customs Amendment (Banning Goods Produced By Uyghur Forced Labour) Bill 2020—Report, dated June 2021


Download PDF Download PDF

June 2021

The Senate

Foreign Affairs, Defence and Trade Legislation Committee

Customs Amendment (Banning Goods Produced By Uyghur Forced Labour) Bill 2020

© Commonwealth of Australia 2021

ISBN 978-1-76093-238-1 (Printed Version)

ISBN 978-1-76093-238-1 (HTML Version)

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License.

The details of this licence are available on the Creative Commons website: https://creativecommons.org/licenses/by-nc-nd/4.0/.

Printed by the Senate Printing Unit, Parliament House, Canberra

iii

Committee Members

Chair Senator the Hon Eric Abetz LP, TAS

Deputy Chair Senator Kimberley Kitching ALP, VIC

Members Senator Tim Ayres ALP, NSW

Senator the Hon David Fawcett LP, SA

Senator the Hon Concetta Fierravanti-Wells LP, NSW

Senator Jacqui Lambie JLN, TAS

Participating Senators: Senator Rex Patrick IND, SA

Senator Janet Rice AG, VIC

Senator Tony Sheldon ALP, NSW

Secretariat: Lyn Beverley, Committee Secretary Christopher Sautelle, Principal Research Officer Amy Dowler, Principal Research Officer Margaret Cahill, Research Officer Shannon Ross, Administrative Officer

Committee Webpage: http://www.aph.gov.au/senate_fadt

PO Box 6100 Phone: + 61 2 6277 3535

Parliament House Fax: + 61 2 6277 5818

Canberra ACT 2600 Email: fadt.sen@aph.gov.au

Australia

v

Table of Contents

Committee Members ........................................................................................................................ iii

List of Recommendations ............................................................................................................... vii

Chapter 1—Introduction .................................................................................................................... 1

Referral of the bill ................................................................................................................................. 1

Purpose of the bill ................................................................................................................................ 1

Conduct of the inquiry ....................................................................................................................... 1

Background to the bill ......................................................................................................................... 1

Consideration by other committees .................................................................................................. 7

Chapter 2—The evidence base ......................................................................................................... 9

Recent research ..................................................................................................................................... 9

Responses ........................................................................................................................................... 18

Chapter 3—Views on the bill.......................................................................................................... 25

Support for government action ........................................................................................................ 25

Issues with the bill ............................................................................................................................. 27

Chapter 4—Alternative and complementary measures ............................................................. 37

Withhold release orders .................................................................................................................... 37

Complementary measures ................................................................................................................ 40

Chapter 5—Conclusions and recommendations ......................................................................... 53

The way forward ................................................................................................................................ 53

Complementary trade-related measures ........................................................................................ 55

Complementary non-trade measures .............................................................................................. 56

Additional comment from Senator Rex Patrick .......................................................................... 61

Australian Greens additional comments ...................................................................................... 63

Appendix 1—Submissions and answers to questions on notice ............................................. 69

Appendix 2—Public hearing and witnesses ................................................................................ 73

vii

List of Recommendations

Recommendation 1

5.6 The committee recommends that the Customs Act 1901 and/or other relevant legislation be amended to prohibit the import of any goods made wholly or in part with forced labour, regardless of geographic origin.

Recommendation 2

5.10 The committee recommends that the government should consider taking steps to empower the Australian Border Force to be able to issue rebuttable presumptions for specific goods, companies and/or regions with particularly high risk of being associated with forced labour.

 The committee recommends that, once the issuance of such orders is possible, the Australian Border Force should immediately consider issuing an order, at a minimum, for cotton sourced from Xinjiang.

Recommendation 3

5.12 The committee recommends the government consider amending the Commonwealth Procurement Rules to include a requirement on due diligence with regards to the possibility of exposure to forced labour and encourages state, territory and local governments and their various business enterprises to do likewise.

Recommendation 4

5.18 In crafting provisions to prohibit the import of goods produced by forced labour, the committee recommends the government give due consideration to adequate resourcing for the Australia Border Force to conduct investigations in support of those provisions.

Recommendation 5

5.20 The committee recommends that the Home Affairs portfolio establish a working group to examine the role emerging technologies can play in tracing the geographical origin of products and raw materials.

Recommendation 6

5.23 The committee recommends the government establish and maintain a list of products or companies considered to be at high-risk of being produced by forced labour.

viii

Recommendation 7

5.25 The committee recommends the government, where feasible, publish Integrated Cargo System data online.

Recommendation 8

5.27 The committee recommends the relevant government departments coordinate closely with counterparts in likeminded countries, in particular Canada, the United Kingdom and the United States, both to ensure policy consistency and to ensure Australia can benefit from the practical implementation lessons learned by those countries.

Recommendation 9

5.34 The committee recommends that the government explore with likeminded States the possibility of introducing a resolution condemning the situation in Xinjiang at the 76th session of the Third Committee of the General Assembly in 2021.

Recommendation 10

5.37 Recalling the recommendation of the References Committee in its report on Issues facing diaspora communities in Australia, the committee recommends that the Department of Foreign Affairs and Trade explore options to better leverage the experience and expertise in Australia's diaspora communities.1

Recommendation 11

5.41 The committee recommends that the government initiate the review of the Modern Slavery Act 2018 as soon as possible following the conclusion of the first reporting cycle on 30 June 2021.

Recommendation 12

5.42 The committee recommends that the review of the Modern Slavery Act 2018 considers provisions for its strengthening and broadening, together with the establishment of an independent body to oversee and enforce its implementation.

Recommendation 13

5.44 The committee supports the work and recommendations of the Joint Standing Committee on Foreign Affairs, Defence and Trade, Human Rights

1 Senate Foreign Affairs, Defence and Trade References Committee, Issues facing diaspora communities

in Australia, February 2021, p. 126.

ix

Sub-committee on the use of targeted sanctions to address gross human rights abuses and echoes its recommendation that the government 'enact stand alone targeted sanctions legislation to address human rights violations and corruption similar to the United States' Magnistky Act 2012'.2

Recommendation 14

5.46 The committee recommends the government explore introducing guidelines to assist Australian businesses to avoid sourcing products from forced labour.

2 Joint Standing Committee On Foreign Affairs, Defence and Trade, Criminality, corruption and

impunity: should Australia join the Global Magnitsky movement?, December 2020, p. xxi.

1

Chapter 1 Introduction

Referral of the bill 1.1 On 8 December 2020, the Customs Amendment (Banning Goods Produced by Uyghur Forced Labour) Bill 2020, a private senator's bill sponsored by Senator Rex Patrick, was introduced into the Senate.1

1.2 On 10 December 2020, through the Selection of Bills Committee Report, by amendment, the bill was referred to the Senate Foreign Affairs Defence and Trade Legislation Committee for inquiry and report by 12 May 2021.2 On 18 March 2021, the reporting date was extended to 17 June 2021.3

Purpose of the bill 1.3 The bill seeks to amend the Customs Act 1901 to ban the importation of goods from Xinjiang in the PRC as well as goods from other parts of the PRC that are produced in whole or part by forced labour.4

Conduct of the inquiry 1.4 The committee advertised the inquiry on its website, calling for submissions by 5 February 2021. The committee also wrote directly to a range of organisations and individuals to invite them to make written submissions.

Submissions received are listed at Appendix 1.

1.5 The committee held a public hearing in Canberra on 27 April 2021. Witnesses who appeared at the public hearing are listed at Appendix 2.

Background to the bill

Forced labour and modern slavery 1.6 Forced labour is defined in Article 2 of the International Labour Organization (ILO) Forced Labour Convention, 1930 as 'work or service which is exacted from any person under the menace of any penalty and for which the said person has

not offered himself voluntarily.'5 In addition to the 1930 Convention, the other major international instruments on forced labour are the Abolition of Forced

1 Journals of the Senate No. 79—8 December 2020, p. 2800.

2 Journals of the Senate No. 81—10 December 2020, p. 2873.

3 Journals of the Senate No. 96—18 March 2021, p. 3364.

4 Explanatory Memorandum (EM), p. 1.

5 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C029,

access 9 February 2021.

2

Labour Convention, 1957 and the Protocol of 2014 to the Forced Labour Convention, 1930.

1.7 Australia's Criminal Code Act 1995 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:

(a) to cease providing the labour or services; or (b) to leave the place or area where the victim provides the labour or services.6

1.8 The same Act defines the related term, slavery, as:

the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.7

1.9 Australia's Modern Slavery Act 2018 defines modern slavery as:

conduct which would constitute:

(a) an offence under Division 270 or 271 of the Criminal Code; or (b) an offence under either of those Divisions if the conduct took place in Australia; or (c) trafficking in persons, as defined in Article 3 of the Protocol to Prevent,

Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, done at New York on 15 November 2000 ([2005] ATS 27); or (d) the worst forms of child labour, as defined in Article 3 of the ILO

Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, done at Geneva on 17 June 1999 ([2007] ATS 38).8

1.10 The ILO has developed 11 indicators of forced labour: abuse of vulnerability, deception, restriction of movement, isolation, physical and sexual violence, intimidation and threats, retention of identity documents, withholding of wages, debt bondage, abusive working and living conditions, and excessive overtime.9

1.11 The ILO estimates that over 40 million people are trapped in a form of modern slavery, with almost 24.9 million of these in forced labour.10

6 Criminal Code Act 1995, Volume II, Division 270, paragraph 270.6.

7 Criminal Code Act 1995, Volume II, Division 270, paragraph 270.1.

8 Modern Slavery Act 2018, Part 1, paragraph 4.

9 ILO, ILO Indicators of Forced Labour, 1 October 2012.

10 ILO, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage, 19 September 2017, p. 9.

3

Allegations of Uyghur forced labour 1.12 The Xinjiang Uyghur Autonomous Region (XUAR)11 in northwest China is home to Muslim minorities, mostly Uyghurs,12 but also Kazakhs, Kyrgyz and other Muslim groups.

1.13 Access to Xinjiang is strictly controlled by the Chinese communist dictatorship. There is however evidence that these groups have been and continue to be subjected to extensive state-sponsored repression and human rights abuses, including mass arbitrary detention,13 rape,14 forced sterilisation,15 forced political indoctrination,16 cultural destruction17 and mass surveillance.18

1.14 Reports identify forced labour as a key part of the dictatorship's efforts to 're-educate' these Muslim minorities under the guise of poverty alleviation programs.19 According to a December 2020 report by Dr Adrian Zenz of the Center for Global Policy, three Uyghur regions 'mobilized at least 570,000 persons into cotton-picking operations through the government's coercive labor training scheme'. Dr Zenz further states that 'the production of the majority of Xinjiang's cotton involves a coercive, state-run program targeting ethnic minority groups'.20

11 Hereafter Xinjiang. Also commonly referred to as East Turkestan or East Turkistan.

12 Sometimes spelled 'Uighurs'. According to Radio Free Asia, members of the group themselves

'overwhelmingly prefer the spelling "Uyghur"'. See Radio Free Asia, 'Uyghur' or 'Uighur'?, https://www.rfa.org/english/news/uyghur/uyghur-spelling-09062010161733.html (accessed 3 February 2021).

13 See for example Austin Ramzy and Chris Buckley, ''Absolutely No Mercy': Leaked Files Expose

how China Organized Mass Detentions of Muslims', New York Times, 16 November 2019.

14 https://www.bbc.com/news/world-asia-china-55794071 (accessed 3 February 2021).

15 See Adrian Zenz, Sterilizations, IUDs, and Mandatory Birth Control: The CCP's Campaign to Suppress

Uyghur Birthrates in Xinjiang, 21 July 2020.

16 Nathan Ruser, Documenting Xinjiang's detention system, ASPI.

17 Nathan Ruser, James Leibold, Kelsey Munro and Tilla Hoja, Cultural Erasure: Tracing the destruction

of Uyghur and Islamic spaces in Xinjiang, ASPI.

18 See https://www.chinafile.com/state-surveillance-china and

https://www.bbc.com/news/technology-55634388 (accessed 3 February 2021).

19 Amy K Lehr and Mariefaye Bechrakis, Connecting the Dots in Xinjiang: Forced Labor, forced

Assimilation, and Western Supply Chains, Centre for Strategic & International Studies, October 2019; Human Rights Watch, World Report 2021, pp. 8-9; Human Rights Watch, 'Eradicating Ideological Viruses', 9 September 2018; Human Rights Watch, 'China's Algorithms of Repression: Reverse Engineering a Xinjiang Police Mass Surveillance App', 1 May 2019; Maya Wang, 'More Evidence of China's Horrific Abuses in Xinjiang', Human Rights Watch, 20 February 2020; Dr Adrian Zenz, The Karakax List: Dissecting the Anatomy of Beijing's Internment Drive in Xinjiang, Journal of Political Risk, Vol 8, No 1, February 2020.

20 Adrian Zenz, Coercive Labor in Xinjiang: Labor Transfer and the Mobilization of Ethnic Minorities

to Pick Cotton, Center for Global Policy, Intelligence Brief, December 2020, p. 3.

4

1.15 A report released by the Australian Strategic Policy Institute (ASPI) in March 2020, Uyghurs for sale: 'Re-education, forced labour and surveillance beyond Xinjiang', identified 27 factories in 9 Chinese provinces using Uyghur labour transferred from Xinjiang since 2017. These factories are part of the supply chains for 82 well-known global brands in the technology, clothing and automotive sectors. The report estimated the transfer of more than 80,000 Uyghurs and other ethnic minorities from Xinjiang to factories across the country between 2017 and 2019 through labour transfer programs under a central government policy known as 'Xinjiang Aid'.21

1.16 ASPI also maintains the Xinjiang Data Project website, which brings together research on the human rights situation of Uyghurs and other minorities in Xinjiang. It focuses on mass internment camps, forced labour and supply chains, the 're-education' campaign, deliberate cultural destruction and other human rights issues.22

Response of the People's Republic of China 1.17 Reports of human rights abuses involving Uyghurs, including forced labour, are denied by the Chinese dictatorship, which asserts that the workers are 'rural surplus labour' and 'are an underemployed population that threatens

social stability'.23 On 7 April 2021, the Chinese Embassy in Canberra held a press event titled 'Xinjiang is a Wonderful Land', seeking to refute claims about human rights abuses in Xinjiang.24

1.18 The People's Republic of China (PRC) is not a party to the international treaties on forced labour outlined above.25

Growing international condemnation 1.19 In addition to the action taken by individual states outlined below and in the next chapter, the situation of Uyghurs has drawn increasing attention in United Nations (UN) forums.

1.20 In October 2020, Germany delivered a statement to the UN General Assembly's Third Committee on social, humanitarian and cultural issues on

21 Vicky Xiuzhong Xu with Danielle Cave, Dr James Leibold, Kelsey Munro and Nathan Ruser,

Uyghurs for sale, Australian Strategic Policy Institute, 1 March 2020.

22 See https://xjdp.aspi.org.au/ (accessed 14 January 2021).

23 Chris Buckley and Austin Ramsy, 'Inside China's Push to Turn Muslim Minorities Into an Army of

Workers', The New York Times, 30 December 2019.

24 Bang Xiao, 'Uyghur community leaders in Australia appalled and outraged the government

allowed a Chinese Communist Party propaganda parade', ABC,

https://www.abc.net.au/news/2021-04-07/uyghur-leaders-call-china-atrocities-genocide-xinjiang/100053014 (accessed 7 May 2021).

25 Australia is a party to the 1930 and 1957 Conventions. It has signalled its intention to ratify the

2014 Protocol.

5

behalf of 39 countries, including Australia, criticising the PRC for its human rights abuses against Uyghurs.26 Speaking to media after the meeting, German Ambassador to the United Nations, Christoph Heugen, noted that the number of countries condemning the PRC's actions at the General Assembly had increased from 23 in 2019, signalling growing international concern about the PRC's actions.27

1.21 In July 2020, the United Kingdom delivered a cross-regional statement on Hong Kong and Xinjiang on behalf of 27 countries, including Australia, at the UN Human Rights Council (HRC). The statement urged the PRC to allow the High Commissioner for Human Rights 'meaningful access to Xinjiang at the earliest opportunity'.28

1.22 In September 2020, an open letter to the UN Secretary-General, UN High Commissioner for Human Rights and UN Member States signed by 321 civil society organisations called for the creation of 'an international mechanism to address the Chinese government's human rights violations'.29 This followed a 26 June 2020 press release issued by 50 HRC special procedures30 in which they expressed concern about various issues in the PRC, including the treatment of religious and ethnic minorities in Xinjiang, and urged the HRC to 'take all appropriate measures to monitor Chinese human rights practices' including through the establishment of an impartial and independent UN mechanism.31

Action by other parliaments 1.23 On 23 March 2021, the European Union, Britain, Canada and the United States launched coordinated sanctions against Chinese officials involved with human rights abuses in Xinjiang.32 Australia and New Zealand issued a joint statement

26 See https://new-york-un.diplo.de/un-en/news-corner/201006-heusgen-china/2402648, accessed

15 January 2021.

27 Margaret Besheer, 'At UN: 39 Countries Condemn China's Abuses of Uighurs', VOA News on

China, 6 October 2020. See also Statement delivered by Ambassador Karen Pierce, UK Permanent Representative to the UN at the Third Committee session on the Committee for the elimination of racial discrimination, 29 October 2019.

28 https://www.gov.uk/government/speeches/un-human-rights-council-44-cross-regional-statement-on-hong-kong-and-xinjiang (accessed 2 February 2021).

29 https://www.hrw.org/news/2020/09/09/global-call-international-human-rights-monitoring-mechanisms-china (accessed 3 February 2021).

30 Special procedures refer to the HRC's special rapporteurs, independent experts and working

groups. They are the largest body of independent experts in the UN human rights system and address either specific country situations of thematic issues in all parts of the world.

31 https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26006&LangID=E

(accessed 3 February 2021).

32 https://www.state.gov/joint-statement-on-xinjiang/ (accessed 7 May 2021).

6

welcoming the measures.33 Several countries have taken action specifically on the issue of forced labour, as outlined below.

United States 1.24 The Uyghur Forced Labor Prevention Act was passed in the US House of Representatives in September 2020 and referred to the US Senate Committee on Foreign Relations on 27 January 2021.34 In addition to banning the

importation of all goods produced in Xinjiang or by persons working with the Xinjiang government for the purposes of the 'poverty alleviation or 'pairing-assistance' programs, the Act will impose sanctions on persons knowingly engaged in or facilitating forced labour in Xinjiang.

1.25 The Uyghur Human Rights Policy Act of 2020 was signed into law on 17 June 2020. The act aims to 'impose visa and economic sanctions on [PRC] officials determined to be responsible for human rights abuses against Uyghurs and other Muslim minority groups in Xinjiang'.35 In July 2020, the United States designated six Chinese Communist Party officials in Xinjiang pursuant to its Global Magnitsky Human Rights Accountability Act.

1.26 The importation to the United States of any goods manufactured wholly or in part by forced labour has long been prohibited under Section 307 of the Tariff Act 1930. When there is reasonable evidence indicating that merchandise within the purview of this provision is being imported, the Commissioner of US Customs and Border Protection (CBP) may issue a withhold release order (WRO) on either a specific product produced by a specific manufacturer, or on an entire class of product from an entire region. All items subject to a WRO will be seized by the CBP and either destroyed, re-exported or released if the importer submits evidence they were not produced with forced labour. On 13 January 2021, the CBP issued a WRO for cotton, tomatoes and downstream products from Xinjiang.36

Canada and the United Kingdom 1.27 On 12 January 2021, Canada and the United Kingdom each announced a comprehensive approach to the situation of the Uyghurs, including addressing the risk of goods produced from forced labour entering supply chains.

1.28 Canada's approach includes prohibiting the import of goods produced wholly or in part by forced labour from any country, a business advisory on doing

33 https://www.foreignminister.gov.au/minister/marise-payne/media-release/joint-statement-human-rights-abuses-xinjiang (accessed 7 May 2021).

34 https://www.congress.gov/bill/116th-congress/house-bill/6210 (accessed 7 May 2021).

35 Congressional Research Service, China Primer: Uyghurs, 28 January 2021, p. 2.

36 https://www.cbp.gov/trade/programs-administration/forced-labor/withhold-release-orders-and-findings (accessed 7 May 2021).

7

business with Xinjiang-related entities, export controls and a Xinjiang Integrity Declaration.37 In that declaration, a Canadian company sourcing from Xinjiang is required to sign a declaration acknowledging it is aware of the human rights

situation in Xinjiang, abides by relevant laws and seeks to meet or exceed the Organisation for Economic Co-operation and Development (OECD) guidelines for multinational enterprises and the UN Guiding Principles for Business and Human Rights.

1.29 The United Kingdom issued a new business advisory and business engagement campaign and announced it would strengthen its Modern Slavery Act and review export controls.38

Consideration by other committees 1.30 In its Report 1 of 2021, the Parliamentary Joint Committee on Human Rights stated that it had no comment on the bill.39

1.31 The Senate Standing Committee for the Scrutiny of Bills also had no comment on the bill.40

37 https://www.canada.ca/en/global-affairs/news/2021/01/canada-announces-new-measures-to-address-human-rights-abuses-in-xinjiang-china.html (accessed 7 May 2021).

38 https://www.gov.uk/government/news/uk-government-announces-business-measures-over-xinjiang-human-rights-abuses (accessed 7 May 2021).

39 Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 3 February 2021,

p. 46.

40 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2021, 29 January 2021,

p. 52.

9

Chapter 2 The evidence base

2.1 Many submissions discussed the available evidence of Uyghur forced labour in laying out their support for the objectives of the bill. Submitters pointed to various sources, in particular reports produced by academics and think tanks drawing on official People's Republic of China (PRC) government documents, evidence from publicly available satellite imagery and witness testimony.1

2.2 Many also noted the difficulty of ascertaining and verifying the full scope of Uyghur forced labour given the lack of access to and transparency about the region.2 Some submissions questioned whether sufficient credible evidence was available on this topic to justify the actions proposed in the bill.3

Recent research 2.3 Many respondents pointed to the research of Dr Adrian Zenz, including his work indicating that as many as 1.8 million Uyghurs and other ethnic groups are currently subjected to forced labour in the PRC.4

2.4 Dr Darren Byler, post-doctoral researcher at the University of Colorado, told the committee about his research:

Since 2019, I've interviewed 10 former Xinjiang workers and 30 immediate family members of workers and what I've learned from them through those interviews and through comparison to open-and-closed access Chinese government documents, such as internal police documents, is that a system of unfree labour is now widespread in Xinjiang and, to a certain extent, across China. In factories and other institutions, the workers are taught to speak Mandarin and embrace state political ideology, all while learning to work on an assembly line or as maintenance workers, cleaners, nannies and cooks in state-directed labour programs. Though some of these new workers referred to as 'surplus' labourers were simply farmers from nearby villages, many of them are also relatives of detainees or former detainees themselves. All of them know that overt refusal of these

1 World Uyghur Congress, Submission 10, p. 5; Campaign for Uyghurs, Submission 15; Human Rights

Watch, Submission 19; Uyghur Human Rights Project, Submission 21; Australian Jewish Association, Submission 22; St Vincent de Paul Society, Submission 25.

2 See for example Amnesty International, Submission 26, p. 1.

3 Professor Mobo Gao, Submission 3; Joint Submission of the Chinese Community Council of

Australia Inc., Multicultural Communities Council of NSW Inc., National Chinese Australian Leadership Group & National Sikh Council of Australia Inc., Submission 6; Mr John Queripel, Submission 55; Dr Anthony Pun OAM, Proof Committee Hansard, p. 33.

4 World Uyghur Congress, Submission 10, p. 5; Dr Anna Hayes, Submission 11, p. 1. Inter-Parliamentary Alliance on China, Submission 20, p. 2; East Turkistan Australian Association, Submission 31, p. 3.

10

job assignments could result in their internment in camps or imprisonment.5

2.5 Ms Ramila Chanisheff, President, Australian Uyghur Tangritagh Women's Association (AUTWA), provided evidence to the committee that '[e]very single Uyghur in Australia has family members and/or friends in these concentration and/or labour camps'.6

2.6 Dr Michael Clarke, an Associate Professor at the Australian National University focused on the history and politics of Xinjiang, told the committee that Xinjiang 'is the site of the largest mass repressing of an ethnic and/or religious minority in the world today'.7

2.7 Many submitters noted that the forced labour takes place under the guise of poverty alleviation programmes8 and vocational training.9 Dr Byler provided further detail on this aspect:

Many of the jobs that are assigned to these workers—or that workers are assigned to—are a part of a pairing assistance program called Xinjiang Aid, which is a poverty alleviation program, or that's how it's described, that pairs localities in eastern China with localities in Xinjiang. It runs a whole range of different pairing assistance, but the primary focus is economic assistance, which means that the locality in eastern China will set up an industrial park in the paired city or county where they're located in Xinjiang.10

2.8 The World Uyghur Congress (WUC) noted that forced labour tended to take place 'in or around internment camps, prisons, and workplaces inside East Turkistan, as well as across China'.11 Dr Byler also discussed this:

There is a direct relationship between the factory spaces and the concentrated, closed education training centres. Former workers I've interviewed see them as interrelated camp spaces. They indicate that factory managers often understand that they are what stand between the workers and their return or their entrance into the camps. They know that they can decide whether this person goes to the camp or not. Factory managers in Xinjiang often have clear knowledge of the conditions in the camp and, at times, are involved in the selection of workers from the

5 Proof Committee Hansard, p. 1.

6 Proof Committee Hansard, p. 10.

7 Submission 17, p. 2.

8 WUC, Submission 10, pp. 5-6; ETAA, Submission 31, p. 5, Professor Leibold and Ms Munro,

Submission 37, p. 2.

9 Dr Hayes, Submission 11, p. 1; AUTWA, p. 3.

10 Proof Committee Hansard, p. 3.

11 Submission 10, p. 5. See also Dr Hayes, Submission 11, p. 1; UCA and SAA, Submission 13, pp. 6-7;

and ETAA, Submission 31, p. 4.

11

camps. They actually go to the camps and select workers for their factories.12

2.9 The phenomenon of the transfer of Uyghur workers to other parts of the PRC, as documented in Uyghurs for sale report, was also widely referred to.13 Ms Vicky Xu, lead author of the report, explained that the report documented the movement of Uyghur workers out of Xinjiang to other parts of the PRC between 2017 and 2019:

The report Uyghurs for sale detailed how the Chinese government has facilitated the mass transit of Uighur and other ethnic minority citizens from the far west region of Xinjiang to factories across China. Under conditions that strongly suggest forced labour, Uighurs are working in factories that are in the supply chains of more than 80 well-known global brands in the technology, clothing and automotive sectors.14

2.10 Ms Xu said that '[n]umerous sources, including government documents, show that transferred workers are assigned minders—50 workers per minder—and have limited freedom of movement'.15

2.11 In her submission, Ms Xu, stated that despite the attention given to the issue:

Uyghurs are still for sale. Labor agents in China are still advertising tens of thousands of “absolutely obedient” Uyghur workers at a time; factories in coastal cities are still looking specifically for Xinjiang workers. Despite the Covid-19 outbreak and increasing international media attention, these labor transfers continue, in a Chinese government [official's] words, to “demonstrate the success” of Xinjiang’s “re-education camps”. In 2020, Shenzhen, just one of China’s technology hubs in China, has been…ordered to resettle 50,000 Uyghurs.16

2.12 Submitters drew the Committee's attention to the International Labour Organization (ILO) indicators on forced labour and argued that many were evident with respect to Uyghurs.17 For example, Professor James Leibold, Professor of Politics and Head of Department at La Trobe University and Senior Fellow at the Australian Strategic Policy Institute (ASPI), and Ms Kelsey Munro, Senior Analyst at ASPI, described how conditions experienced by

12 Proof Committee Hansard, p. 1.

13 Vietnamese Overseas Initiative for Conscience Empowerment Australia, Submission 4, p. 2; WUC,

Submission 10, p. 8; Belgium Uyghur Association, Submission 18, p. 1; St Vincent de Paul Society National Council of Australia, Submission 25, p. 2; Fair Supply, Submission 28, p. 5; Japan Uyghur Association, Submission 33, p. 1; AUTWA, Submission 39, p. 3; Australian Council of Trade Unions, Submission 44, pp. 3-4; Mr Adam Turan, Submission 45, p. 2.

14 Proof Committee Hansard, p. 2.

15 Proof Committee Hansard, p. 2.

16 Submission 50, p. 1. Italics in original.

17 See for example Mr Turan, Submission 45, p. 2; Be Slavery Free, Submission 48, pp. 8-9 and Josephite

Counter-Trafficking Project, Submission 49, p. 4.

12

Uyghur workers in the PRC today align with five of the indicators: abuse of vulnerability, restriction of movement, isolation, intimidation and threats, and withholding of wages.18

2.13 Submitters drew attention to the indicators of Uyghur forced labour developed by the Center for Strategic and International Studies. Fair Supply said that these included:

 Where the company’s factory is located within a detention facility  Where the company’s factory is located in an industrial park connected to a re- education facility  Where the company is hiring workers through government recruiters  Where the Chinese government is providing incentives or subsidies for

training supplements ‘vocational training, or ‘aid to Xinjiang’  Where the company is participating in poverty reduction or pairing assistance programs.19

Government incentives 2.14 The WUC noted reports that the Chinese government had put in place a 'policy of incentives to Chinese-owned companies to incorporate Uyghur workers into their businesses'.20 They reported that the government subsidies

include 'free land, lower electricity cost, low cost loans, transportation subsidies, and even subsidised labour'.21 Professor James Cockayne, affiliated with the University of Nottingham, US Council on Foreign Relations Study Group on Trafficking in Persons and Finance Against Slavery and Trafficking, also noted that the 'government’s subsidies incentivize employers, especially in cities and towns in eastern China ‘paired’ with urban centres in XUAR under earlier development policies, to hire this ‘reeducated’ labour force'.22

2.15 Dr Byler told the committee that, since 2017, factory owners from across eastern China have relocated parts of their manufacturing base to Xinjiang 'using state incentives such as rent-free manufacturing facilities and subsidies allowing them to expand their production.'23 He further outlined:

For each worker they train in their factories they're given 5,000 yuan. They're often given rent-free facilities. They're also given discounts on shipping, because logistically Xinjiang is far away from eastern China and

18 Submission 37, pp. 3-4.

19 Submission 28, p. 5.

20 Submission 10, p. 7. See also East Turkestan Australian Association, Submission 31, pp. 7-8.

21 Submission 10, p. 8.

22 Submission 30, p. 4.

23 Proof Committee Hansard, p. 1.

13

there are additional costs of shipping. There are all of these kinds of incentives that are built into it. 24

Ideological motivations and rationalisations 2.16 Various submitters considered that the use of forced labour acted as a means of social control.25 Dr Clarke observed that the Chinese Communist Party sought to 're-educate' various groups within the PRC through labour.26

2.17 Dr Anna Hayes, an academic focusing on human insecurity in in PRC based at James Cook University, told the committee that the global war on terror ' had a significant influence on Beijing's contemporary attitudes towards the Uyghurs'. She continued:

Beijing is also showing rising levels of Islamophobia. Prior distinctions between ‘good’ and ‘bad’ Uyghurs have disappeared and the Chinese Communist Party now identifies religion (Islam) as an aggressor.27

2.18 Dr Byler told the committee that a 2019 state-sponsored study noted that 'a primary purpose of the labour programs was to 'diminish the importance of Islamic practice and accelerate social modernisation within Uyghur and Kazakh societies'.28

2.19 The East Turkistan Australian Association (ETAA) said the PRC government 'purposefully conflates extremism and terrorism with quotidian religious practices and expression' and had criminalised 'basic tenets of Islam practiced by Uyghurs and other Turkic groups'.29

Economic motivations and rationalisations 2.20 Dr David Brophy, a historian of modern China at the University of Sydney, noted that the crackdown on Uyghurs had not only an ideological motivation, but also socio-economic ones:

This aims at removing Uyghurs from predominantly non-Chinese environments such as the rural regions of southern Xinjiang and integrating them into factory work. This facilitates surveillance but is also intended to eventually turn them into more loyal, Chinese-speaking citizens. Effectively, what is going on is the coercive “proletarianization” of large sections of the Xinjiang population.30

2.21 In a similar vein, Professor Cockayne said that:

24 Proof Committee Hansard, p. 3.

25 See for example WUC, Submission 10, p. 5.

26 Submission 17, p. 7.

27 Submission 11, p. 2.

28 Proof Committee Hansard, p. 2.

29 Submission 31, p. 3.

30 Submission 9, p. 1.

14

By late 2018, cheap labour emerging from ‘reeducation camps’ associated with the Xinjiang Aid strategy had become an important driver of Xinjiang’s economy, according to an official statement by the Xinjiang Development and Reform Commission.31

2.22 Professor Cockayne discussed the PRC government narrative around Uyghur forced labour:

In this narrative, forced labour is reframed as ‘vocational training’, re-skilling and re-education of Uyghurs and other minorities, transforming them into a low-wage, low-skill workforce.32

2.23 Dr Byler said that 'the goal of factories associated with internment camps in Northwest China is to turn Kazakhs and Uyghurs into a deeply-controlled working class'. He continued:

By turning a population of people regarded as not deserving of legal protections into workers, state authorities and private industrialist[s] hope that they will extend the market expansion of the Chinese textile and garment industry via an ethnoracialized dormitory work regime which squeezes a constant surplus value from ‘surplus workers'.33

2.24 Dr Byler also told the committee that:

My interviews and research suggest that the way that they can garnish wages from these workers and pay them very little is probably the greatest motivator in relocating factory work to Xinjiang. They have this supply of workers that is limitless, in some ways—at least from their perspective— and it's also incentivised by the state. There's kind of a push and a pull, but certainly the economic drivers I think are what's guiding this, because there's money to be made. They talk about it very openly, that they're making quite a lot of money by opening up these new factories in Xinjiang.34

Links to global and Australian supply chains 2.25 Submitters noted documentation of the links between goods produced by Uyghur forced labour and global supply chains, including in relation to textiles, electronics, fish, tomatoes, and the solar energy industry.35 Several

noted that cotton is of particular concern.36 Again, many referred to the Uyghurs for sale report on this topic.37

31 Submission 30, p. 3.

32 Submission 30, p. 4.

33 Submission 42, p. 1.

34 Proof Committee Hansard, pp. 3-4.

35 WUC, Submission 10, p. 5; Dr Hayes, Submission 11, p. 4; Campaign for Uyghurs, Submission 15,

p. 3.

36 Uniting Church in Australia and Salvation Army Australia, Submission 13, p. 7; Inter-Parliamentary Alliance on China, Submission 20, p. 2.

37 See for example Amnesty International, Submission 26, p. 2.

15

2.26 Ms Xu told the committee that the brands identified in the Uyghurs for sale report included 'Apple, BMW, Gap, Huawei, Nike, Samsung, Sony and Volkswagen.' In the Australian context, Ms Xu informed the committee:

the Queensland state government is investigating Chinese rail manufacturer KTK for Uighur forced labour related concerns. KTK works with a number of other state governments in Australia, including New South Wales and Victoria.38

2.27 Professor Leibold pointed out that trade between Xinjiang and Australia is growing:

The fact that two-way trade between Xinjiang and Australia is not only significant but also increasing should be of serious concern to the parliament. The custom bureau of the Xinjiang regional government releases monthly statistics on the import and export of products between Xinjiang and other countries. Much to my surprise, Australia is one of the regime's top trading partners. Over the four years of the brutal crackdown in Xinjiang, Australia's two-way trade with Xinjiang increased by 150 per cent. The vast majority of that trade—about 73 per cent—is the import of goods from Xinjiang into Australia, with imports increasing by 150 per cent in 2009 and amounting to US$37 million. By comparison, in 2019, neither Canada nor the UK was among Xinjiang's top 30 trading partners. Germany and Japan imported far less. In fact, in 2019, Australia's imports from Xinjiang actually exceeded that of the United States and comprised about two per cent of Xinjiang's total exports.39

2.28 Ms Keren Adams, Legal Director, Human Rights Law Centre (HRLC), told the committee that the 'scale of China's forced labour program, and in particular Australia's reliance on Chinese cotton, means it's likely that some of us here today may be wearing clothes that are made with Uyghur forced labour'.40

Genocide 2.29 Some submissions argued that the human rights abuses in Xinjiang amounted to genocide.41 The Campaign for Uyghurs (CFU) called for the government to recognise the crimes against Uyghurs as genocide.42 The Inter-Parliamentary

Alliance on China (IPAC), an 'international cross party network of parliamentarians working to reform the approach of democratic countries towards China', said that forced labour was 'inseparable from the broader persecution endured by Uighurs' and that '[e]xperts argue that state sponsored

38 Proof Committee Hansard, p. 2.

39 Proof Committee Hansard, p. 3.

40 Proof Committee Hansard, p. 18.

41 WUC, Submission 10, p. 3-4; Dr Hayes, Submission 11, p. 1; CFU, Submission 15, p. 2; ETAA,

Submission 31, p. 3; Uyghur Association of Victoria, Submission 35, pp. 2-3.

42 Submission 15, p. 5.

16

mass sterilisation, forced abortions and the forced separation of families could meet internationally agreed criteria for genocide'.43

2.30 The Uyghur Human Rights Project (UHRP) said that:

Australia should undertake a determination of whether the Chinese government’s recent actions in Uyghur Region meet the threshold of acts constitutive of genocide, core international crimes under the Genocide Convention and are consistent with crimes against humanity, an international crime under the Rome Statute.44

2.31 Ms Ramila Chanisheff, President, Australian Uyghur Tangritagh Women's Association, told the committee that '[c]redible news, academic reports, and well-researched documentaries have all been made public in Australia and internationally on human rights abuses amounting to genocide of the Uighur people under the Chinese Communist Party.'45

Disputes over veracity of claims 2.32 The PRC regime has consistently denied allegations of human rights abuses against its Uyghur citizens; denials which many respondents found unconvincing.46

2.33 Witnesses provided troubling evidence of PRC government intimidation in response to the publication of research in this area. Professor Leibold and Ms Munro said that the Uyghurs for sale report had been 'repeatedly criticized by the Chinese government', seeking to 'besmirch ASPI as an organization and its researchers (who have been repeatedly doxed47 and threatened) while ignoring the substance of the report and the specifics of its evidence'.48 Ms Xu informed the committee that the PRC had 'threatened to sue ASPI for libel' following the publication of the reports.49

2.34 Ms Xu noted that although some characterise the evidence of Uyghur human rights violations as contested, that was 'not the understanding in the academic or journalistic world'. She continued:

As to the evidence from Dr Adrian Zenz and Darren [Byler,] to us at ASPI—we have done research into these issues with proper referencing, peer review, and so all we know about Xinjiang, forced labour, sterilisation

43 Submission 20, pp. 1, 2. The Chair and Deputy Chair of the committee are members of IPAC.

44 Submission 21, p. 1.

45 Proof Committee Hansard, p. 10.

46 See for example Dr Hayes, Submission 11, p. 1 and CFU, Submission 15, p. 2.

47 Doxing is the practice of releasing a person's private information on the internet.

48 Submission 37, p. 4.

49 Submission 50, p. 1.

17

and detention camps, are facts that have been fact checked by reporters on the ground in China when they still had access.50

2.35 In response to a question on notice, Professor Leibold described ASPI's peer review process:

All of ASPI’s research reports undergo rigorous internal and external peer-review at a standard that is not all that dissimilar to research published in an academic journal, and in fact can be more extensive. Our Uyghur for Sale report was externally peer-reviewed by Dr Darren Byler of University of Colorado Boulder, Ms Maya Wang of Human Rights Watch, and by multiple forced labour experts who reviewed the report as anonymous peer reviewers. Internally, it was reviewed by Fergus Hanson, Michael Shoebridge and Peter Jennings. There was a team of 7 researchers/analysts working on the report, and over 6 months of original empirical research fed into the report.51

2.36 Evidence of Uyghur forced labour has continued to emerge in the period since the inquiry's public hearing. For example, on 11 June 2021, Amnesty International published a report titled "Like We Were Enemies in a War": China's mass internment, torture and persecution of Muslims in Xinjiang.52 The report is based on field and remote research, including 'first-hand testimonies that Amnesty International gathered from former detainees of the internment camps and other people who were present in Xinjiang after 2017, as well as from an analysis of satellite imagery and data'.53 Specifically on forced labour, it outlined:

The testimony of former detainees shows that for many, there is a clear compulsory labour component to the system of detention and of “transformation-through-education” targeting Uyghurs, Kazakhs and other ethnic minority groups in Xinjiang.

Despite this being described by the Chinese authorities as a “voluntary” skills training and job placement programme, some detainees who spoke to Amnesty described arrangements that left them with little or no choice or control but to accept employment or “training placements” with minimal pay, poor working conditions, a discriminatory work environment, and often continued restrictions on their freedom of movement under threat of further punishment.54

50 Proof Committee Hansard, p. 7.

51 Answer to written question on notice, received 4 June 2021, p. 1.

52 https://xinjiang.amnesty.org/wp-content/uploads/2021/06/ASA_17_4137-2021_Full_report_ENG.pdf (accessed 11 June 2021).

53 Amnesty International, "Like We Were Enemies in a War": China's mass internment, torture and

persecution of Muslims in Xinjiang, p. 14.

54 Amnesty International, "Like We Were Enemies in a War": China's mass internment, torture and

persecution of Muslims in Xinjiang, p. 126.

18

2.37 The report further includes details on first-hand testimony from 11 former detainees who were transferred to different types of labour, including 3 who were sent to factories:

Arzu told Amnesty that after spending six months in one camp he was transferred to another camp, where he was taught to sew in preparation for being sent to a factory. He was then required to live and work in a factory for several months making government uniforms.

Aldiyar told Amnesty he spent three months working in a factory for low pay after being released from the camp. All workers were members of ethnic minorities but senior managers were Han Chinese.

Ibrahim told Amnesty he worked and lived in a factory for two weeks after being released from a camp. Some other workers in the factory had not been sent from camps; rather, they had been pressured to work in the factory when another member of their family was taken to a camp.55

Responses 2.38 Many submitters drew attention to the approaches to forced labour, modern slavery and Uyghur forced labour in other countries, particularly the United States, United Kingdom and Canada.

2.39 Some respondents noted the lack of response from Muslim states. Dr Hayes cited research assessing that this was a result of: those countries observing the principle of non-interference in the affairs of other states; a fear of political Islam in some Muslim states; their involvement in the Belt and Road Initiative; and a belief that the PRC is too big to challenge.56

United States 2.40 The US State Department informed the committee that the United States had issued measures similar to those contained in the bill 'pursuant to Section 307 of the US Tariff Act of 1930, which prohibits the importation of merchandise

mined, manufactured or produced, wholly or in part, by convict labor, forced labour, and/or indentured labor, including forced or indentured child labor.'57 The US Customs and Border Protection has issued 16 withhold release orders (WROs) on goods from the PRC since 2016, including most recently a 'WRO requiring the detention of all cotton and tomato products originating from

55 Amnesty International, "Like We Were Enemies in a War": China's mass internment, torture and

persecution of Muslims in Xinjiang, pp. 127-8.

56 Submission 11, p. 6. See also AUTWA, answer to question on notice (received 21 May 2021).

57 Submission 38, p. 1.

19

Xinjiang as well as any goods that use cotton or tomato products from Xinjiang as an input'.58

2.41 The State Department also outlined that the Departments of State, Commerce, Homeland Security and the Treasury 'issued a business advisory to caution businesses about the risks of supply chain links to entities that engage in human rights abuses, including forced labor, in Xinjiang and elsewhere in China'.59

2.42 In addition, the Department of Labor issues a biannual report flagging 'goods that agencies charged with enforcement duties should pay attention to when enforcing federal law', which identifies 'five goods produced by forced labor in Xinjiang, including textiles, thread/yarn, and tomato products'.60

United Kingdom 2.43 The British High Commission in Canberra informed the committee that on 12 January 2021, the UK Foreign Secretary 'announced a package of measures to help ensure that British organisations in the public and private sectors, are

not complicit in, nor profiting from, human rights violations in Xinjiang'. It outlined that these included:

…new, robust and detailed guidance to UK businesses on the specific risks of working with companies with links to Xinjiang, providing additional clarity on the challenges of conducting effective due diligence there. This has been supported by a minister-led campaign of business engagement to reinforce the need for UK businesses to take concerted action to address that particular and specific risk.61

2.44 The United Kingdom also introduced financial penalties for those that fail to comply with its Modern Slavery Act and declared that it would 'exclude suppliers from government procurement where there is sufficient evidence of human rights violations in any of their supply chains. It also announced a review of export controls 'as they apply specifically geographically to the situation in Xinjiang'.62

2.45 On 22 March 2021, the United Kingdom announced sanctions against four PRC government officials and one entity under its 'Global Human Rights sanctions for systemic violations against Uyghurs and other minorities'.63 The UK's Sanctions Act 'expressly provides that sanctions regulations may be made…to

58 Submission 38, p. 1.

59 Submission 38, p. 1. See https://www.cbp.gov/document/guidance/xinjiang-supply-chain-business-advisory (accessed 7 May 2021).

60 Submission 38, p. 1.

61 Submission 60, p. 1.

62 Submission 60, p. 1.

63 Submission 60, p. 2.

20

provide accountability for or be a deterrent to gross violations of human rights'.64

Canada 2.46 The Canadian High Commission in Canberra detailed for the committee its government's 'comprehensive approach to defending the rights of Uyghurs and other ethnic minorities, including by advancing measures to address the

risk of goods produced from forced labour from any country from entering Canadian and global supply chains and to protect Canadian business from becoming unknowingly complicit'.65 It further explained that Canada's approach includes:

…the prohibition of imports of goods produced wholly or in part by forced labour; a Xinjiang Integrity Declaration for Canadian companies; a Business Advisory on Xinjiang-related entities; enhanced advice to Canadian businesses; increasing awareness for Responsible Business Conduct linked to Xinjiang; export controls; and a study on forced labour and supply chain risks.66

2.47 In addition, on 1 July 2020, Canada amended its Customs Tariff Act 'to prohibit the importation from all countries of goods produced, in whole or in part, by forced or compulsory labour.'67

2.48 On sanctions, the High Commission informed the committee that new sanctions against four officials and one entity were announced on 22 March 2021' 'based on their participation in gross and systematic human rights violations in Xinjiang', under Canada's Special Economic Measures (People's Republic of China) Regulations.68

Australia 2.49 Australia has expressed deep concern about reports of human rights violations and abuses in Xinjiang. As outlined by Ms Vanessa Holben, Group Manager, Deputy Comptroller-General Customs, Australian Border Force:

The government continues to raise Australia's grave concerns about severe human rights abuses that include restrictions on freedom of religion, mass surveillance, large-scale extrajudicial detentions as well as forced labour and forced birth control, including sterilisation, directly with China, in public statements and at the United Nations. Foreign Minister Payne joined New Zealand Foreign Minister Mahuta in expressing grave concerns about severe human rights abuses in Xinjiang in a statement

64 Submission 60, p. 3.

65 Submission 61, p. 1.

66 Submission 61, p. 1.

67 Submission 61, p. 1.

68 Submission 61, p. 2.

21

issued on 23 March. Minister Payne has raised concerns directly with her Chinese counterpart, State Councillor Wang Yi, as well as in her Human Rights Council address in September 2020.

Australia is one of 39 countries that joined a statement delivered in the United Nations General Assembly Third Committee in New York on 6 October 2020 regarding the situations in Xinjiang, Hong Kong and Tibet. We were one of 28 countries that joined a statement in the Human Rights Council on 30 June 2020 conveying concerns about Xinjiang and Hong Kong and calling for China to allow independent access to the region. Australia has also consistently raised our concerns in our national statements at the Human Rights Council, and we continue to call on China to give unfettered, meaningful access to Xinjiang for international observers, including the UN High Commissioner for Human Rights, Michelle Bachelet, at the earliest opportunity.69

2.50 The government also provided the committee with information on its international engagement to address modern slavery, including involvement in:

…dedicated regional anti-trafficking programs; the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (the Bali Process), co-chaired by the Foreign Ministers of Australia and Indonesia, its Senior Officials Meeting, co-chaired by Australia’s Ambassador for People Smuggling and Human Trafficking; and the Bali Process Government and Business Forum.70

PRC 2.51 Ms Xu told the committee that the PRC had in 2021 started a 'nationwide campaign…to endorse Xinjiang cotton, which has now become a symbol of Uighur forced labour', with dozens of well-known PRC entertainers cutting

ties 'with brands that have expressed concerns over Uighur forced labour'.71

2.52 Professor Leibold told the committee that:

…the Chinese government's propaganda apparatuses are in absolute overdrive when it comes to Xinjiang and the Uighur issue. They are pulling out all stops to ensure that their side of the narrative gets out there. Putting it in the Global Times is not enough for them; they want to find Australian voices, American voices, to repeat that narrative.72

Private sector 2.53 Be Slavery Free (BSF) noted that the Better Cotton Initiative, a global not-for-profit organisation and the largest cotton sustainability program in the world,

69 Proof Committee Hansard, p. 39.

70 Submission 57, p. 5.

71 Proof Committee Hansard, p. 3.

72 Proof Committee Hansard, p. 8.

22

had 'suspended its activities in Xinjiang in China on the back of concerns over the prevalence of labour abuses in the region.'73

2.54 BSF also noted the actions taken by Woolworths, Kathmandu and PVH Brands, as outlined in their Modern Slavery Statements. Woolworths commenced tracing its 'garment supply chain in that region' and Kathmandu noted that the risk of exposure to forced labour was 'potentially present at all levels of the supply chain'. PVH Brands said it had 'withdrawn from the area'.74

2.55 Ms Xu noted the variety of responses of the brands identified in the Uyghurs for sale report since its publication in 2020:

Some have denied direct contractual relationships with the listed factories or they have claimed they have recently terminated these relationships. However, many were unable to rule out the possibility that forced labour may exist in a second or third tier of their supply chains. Others argued to be taken out of the report simply because they were satisfied with their suppliers' assurances that no forced labour had been found.75

2.56 Ms Xu also outlined in some detail for the committee how the response from Nike unfolded over time:

Firstly, there was a denial and then Nike said it had sent all 700 to 800 Uighur workers they had back to Xinjiang following expert advice, but it wasn't made available to us or to the public by what methods and how these workers were sent back, what conditions they were living in and which expert advice Nike was following. More recently, when Nike was facing another round of backlash in China for having put up statements last year showing concerns for forced labour, Nike is again subject to another round of public protest and government crackdown simply because they seemingly care about human rights, and Nike has made, as I understand it, renewed statements and has renewed positions on the issue. As far as I can see, companies I would like to believe are doing their part, consulting experts, politicians and auditing firms, but their power is very limited in this situation. The information they feel they can give us and make available to the public is also very limited, for the exact reason that they are stuck in between Chinese consumers, Chinese government, human rights organisations, research organisations and the Western parliaments.76

2.57 Ms Xu also acknowledged how difficult it is for businesses to 'follow standard auditing protocols when it comes to human rights audits and Uighur related audits in China'. She continued:

73 Submission 48, p. 5.

74 Submission 48, p. 6.

75 Proof Committee Hansard, p. 2. See also Professor Leibold and Ms Munro, Submission 37, pp. 4-5.

76 Proof Committee Hansard, p. 4.

23

Auditors are routinely denied access and greeted by hostile government officials or police officers when they visit Chinese factories. In the unlikely event that others are able to conduct a private interview with a Uighur worker, concerns are that they're not in a position to truthfully describe their working conditions, and at a time when Uighurs continue to be thrown into camps with no reasons needed. By conducting Uighur related human rights audits, auditing firms also risk putting their employees in danger, especially those who are Chinese citizens. We understand that some global auditing firms have since begun changing their data collection practices to assess this risk, including identifying Uighur workers in factories across China and flagging labour agents with Chinese government links. However, without adequate auditing access it remains difficult to determine whether a factory uses forced labour or not.77

77 Proof Committee Hansard, p. 2.

25

Chapter 3 Views on the bill

3.1 There was widespread support for the objectives of the bill. Many submitters supported the bill as drafted.1 Many others considered the objectives of the bill would be better achieved with a slightly different approach. A minority of respondents expressed opposition to the bill.2

Support for government action 3.2 Be Slavery Free (BSF) affirmed the appropriateness of government action given the 'systemic, embedded and sanctioned' nature of the human rights violations, arguing that 'the actions of business and civil society become at best

limited and at worst futile without Government engagement' in such cases.3

3.3 Dr Katherine Christ and Ms Kyla Raby of the University of South Australia said that government action is needed 'where state-sanctioned forced labour is endemic' because consumers have 'questioned the efficacy of industry-led regimes designed to combat the slavery and poor labour conditions which occur in other countries'.4

3.4 Dr Marinella Marmo of Flinders University and Dr Rhiannon Bandiera of Maynooth University said the issue could not be relegated to private enterprise because it is governments who are signatories to relevant human rights frameworks.5

1 World Uyghur Congress, Submission 10, p. 9; Dr Anna Hayes, Submission 11, p. 1; Campaign for

Uyghurs, Submission 15, p. 5; Dr Michael Clarke, Submission 17, p. 1; Belgium Uyghur Association, Submission 18, p. 2; Inter-Parliamentary Alliance on China, Submission 20, p. 1; Fairtrade Australia & New Zealand, Submission 23, p. 1; St Vincent de Paul Society National Council of Australia, Submission 25, p. 11; Australian Uyghur Tangritagh Women’s Association, Submission 39, p. 1; Josephite Counter-Trafficking Project, Submission 49, p. 5; Uyghur Human Rights Project, Submission 21, p. 1; Uyghur Association of Victoria, Submission 35, p. 8. Several of these, while supporting the Bill, did not see its passage as sufficient to deal with the issue.

2 Professor Mobo Gao, Submission 3; Joint Submission of the Chinese Community Council of

Australia Inc., Multicultural Communities Council of NSW Inc., National Chinese Australian Leadership Group & National Sikh Council of Australia Inc., Submission 6; Australian Chamber of Commerce and Industry, Submission 24; Mr John Queripel, Submission 55.

3 Submission 48, p. 3. EPFM supported this statement (Submission 47, p. 2).

4 Submission 51, p. 7.

5 Submission 54, p. 4.

26

3.5 The Australian Council of Trade Unions (ACTU) said governments 'have a responsibility to effectively regulate global supply chains and hold corporations accountable for rights violations'.6

3.6 Fair Supply, an Australian law firm dedicated to modern slavery issues, said that the bill was an 'important indication to the world that Australia will not leave its international human rights obligations, reflected in numerous treaties to which Australia is party, at the merely rhetorical level.' It continued:

Through accompanying capacity building, research, investigation and awareness raising, the Bill has real potential to achieve a practical reduction of the importation of products into Australia that have been produced using forced labour in the most unimaginably suppressive and rights-violating conditions.7

3.7 Ms Angela Bell, National Manager of Ethical Clothing Australia (ECA), told the committee her view that:

when governments are aware of these issues overseas in any country or province or region that it is on government to act and to do something such as ban the importation of those goods and products, which assists consumers and takes the guess work away from a shopper such as one's self but it also protects the people who are actually being subjected to those abuses overseas as well.8

3.8 Ms Carolyn Kitto, BSF National Co-Director, told the committee that existing legislation, policies, regulation and enforcement measures in Australia were not 'effective in addressing the risk of business involvement in gross human rights abuses'. She continued:

If not Senator Patrick's recommendations, what? A modern slavery due diligence approach is not addressing this state sanctioned forced labour issue in Xinjiang province. The approach of the Modern Slavery Act has been a step forward, but it's insufficient to address such issues as the imminent genocide of Uighur and other minorities in the Xinjiang region. Business needs the support and guidance of government.9

3.9 However, Ms Vanessa Holben, Group Manager, Deputy Comptroller-General Customs, of the Australian Border Force (ABF), said the government was concerned that 'the presentation of the issue in the bill conflates distinct policy matters'.10

6 Submission 44, p. 2.

7 Submission 28, p. 1.

8 Proof Committee Hansard, p. 23.

9 Proof Committee Hansard, p. 26.

10 Proof Committee Hansard, p. 40.

27

Issues with the bill

Discriminatory approach 3.10 While several submitters were of the view that the situation in Xinjiang was sufficiently widespread and endemic that it should be the subject of specific legislation,11 a common critique of the bill was its singling out of the People's

Republic of China (PRC). This was due to (i) the widespread nature of the problem around the world, (ii) the potential that such a measure could fall afoul of international trade rules, and (iii) the possibility of PRC retaliation.

Widespread nature of forced labour 3.11 Several submitters provided information on the widespread nature of forced labour, as well as details on state-sanctioned forced labour in various countries and regions.12 Fair Supply drew attention to the US State Department's

Trafficking in Persons Report, which in 2020 listed 19 countries (including the PRC) as being of the highest level of concern with regards to the US Victims of Trafficking and Violence Protection Act's minimum standards for the elimination of human trafficking.13

3.12 Professor Justine Nolan of the University of New South Wales and Dr Martijn Boersma of the University of Technology Sydney submitted that an estimated 40.3 million people worldwide are 'trapped in some form of modern slavery and of these, 34.9 million people are estimated to be in forced labour.'14 They further noted that modern slavery is most commonly associated with 'labour intensive, poorly mechanised activities', with the goods most commonly produced being 'bricks, cotton, garments, gold, sugar cane, cattle and fish.15

3.13 Some submitters also noted evidence of groups other than Uyghurs being subject to forced labour in the PRC.16

11 See for example Fair Supply, Submission 28, p. 2 and Australian Uyghur Tangritagh Women’s

Association, Submission 39, p. 2.

12 See for example Walk Free, Submission 14, p. 3; Professor Nolan and Dr Boersma, Submission 16,

p. 5; Human Rights Watch, Submission 19, p. 2; Australian Chamber of Commerce and Industry, Submission 24, p. 1; Professor James Cockayne, Submission 30, p. 8; Human Rights Legal Centre, Submission 41, p. 8; Australian Council of Trade Unions, Submission 44, p. 6; Dr Christ and Ms Raby, Submission 51, p. 3; Australian Lawyers for Human Rights, Submission 53, p. 5; Dr Marmo and Dr Bandiera, Submission 54, pp. 2-3.

13 Submission 28, p. 4.

14 Submission 16, p. 4.

15 Submission 16, p. 4.

16 See for example Australia Tibet Council, Submission 8, pp. 7-9; Tibet Information Office, Submission

36, p. 2; Falun Dafa Association, Submission 43, p. 7.

28

3.14 Dr Christ and Ms Raby recommended action to identify state-sanctioned forced labour in other regions, saying the government should 'convene a separate inquiry into other regions where state-sanctioned forced labour occurs and where the presumption of forced labour should be made.'17 Human Rights Watch (HRW) made a similar call for the government to form a 'high-level committee to examine whether the presumption of forced labor should extend to other regions and countries from time to time', which should include 'consultations with relevant stakeholders such as labor rights groups and unions'.18

3.15 Slavery Links Australia (SLA) noted that other countries in our region had pulled out of the Abolition of Forced Labour Convention 1957 and should be included in any import prohibition.19

WTO rules 3.16 Several submitters considered that the discriminatory approach taken in the bill could open Australia to challenge under World Trade Organisation (WTO) rules.20

3.17 According to the Human Rights Law Centre (HRLC), the bill as drafted risks 'breaching Australia's international trade obligations', including its obligations in relation to 'non-discrimination, national treatment, most-favoured nation treatment, and fair and equitable treatment, under WTO rules and its two trade agreements with China'. HRLC considered that the bill could expose the Australian Government to legal challenge, including through investor-state arbitration or the WTO Appellate Body.21

3.18 As explained by Professor James Cockayne:

The Chinese government might claim that the ban created in this Bill constitutes a violation of the foundational GATT/WTO principle that ‘like’ products be treated alike, and served as a smokescreen for protection. This could however be met by the response that all goods manufactured with forced labour, including those so manufactured in Australia, are prohibited from sale and trade in Australia. Such a claim would be stronger if the prohibition provided for by the Bill applied not only to China and PRC, but to import of goods manufactured with forced labour from any origin; and stronger still if there were a specific provision in Commonwealth law

17 Submission 51, p. 8.

18 Submission 19, pp. 3-4.

19 Submission 40, p. 4.

20 Uniting Church in Australia and Salvation Army Australia, Submission 13, pp. 13-16; HRLC,

Submission 41, p. 8.

21 Submission 41, p. 8.

29

banning internal trade and commerce in goods made with forced labour, perhaps on the grounds they constitute proceeds of crime.22

3.19 Professor Cockayne noted that 'WTO Members have long been split over whether to allow trade actions based solely on labour standards.' He continued:

Developing countries, in particular, have argued that industrialized countries could use labour standards as a smokescreen for protectionism and to undermine the comparative advantage of lower wage trading partners. Nonetheless, at the 1996 Singapore Ministerial Conference, WTO members - which did not yet include PRC - committed to a narrow set of internationally recognized ‘core’ labour standards, including a prohibition on forced labour. The 2001 Doha Ministerial Conference - which PRC attended as a Member - affirmed the Singapore declaration and the position of WTO members that labour standards should be enforced through the ILO, not the WTO.23

3.20 Ms Freya Dinshaw, Senior Lawyer, HRLC, noted that the challenge would not have to be successful to be damaging:

given that the bill is clearly targeted towards China and is clearly discriminatory on its face, it will expose Australia to legal challenge—and the merits of that will become apparent as the years-long, expensive, onerous disputes process unfolds between the two countries. There is certainly a real risk that it could be exposed to challenge and eventually not be able to be enforced.24

3.21 The government noted that any amendments to the Customs Act 'would need to take into account Australia’s international trade and investment law obligations, which constrain our ability to impose import restrictions, particularly where applied in a discriminatory fashion'.25

Effect on bilateral relationship 3.22 The Joint Submission of the Chinese Community Council of Australia Inc., Multicultural Communities Council of NSW (MCC), National Chinese Australian Leadership Group & National Sikh Council of Australia Inc.

considered that prohibiting the import of goods produced by forced labour from the PRC only, could be perceived as racist or xenophobic. They were also of the view that this approach would contribute to the deterioration of the bilateral relationship.26 At the public hearing, Dr Anthony Pun OAM, MCC Chair, reiterated this point, saying that he worried 'a lot of these anti-Chinese

22 Submission 30, p. 7.

23 Submission 30, p. 7.

24 Proof Committee Hansard, p. 21.

25 Submission 57, p. 8.

26 Submission 6, p. 2.

30

sentiments are creating xenophobic overtones in this country'27 and 'the retaliation from China on our trade'.28

3.23 Ms Keren Adams, Director of Advocacy at the HRLC, said that it was very important 'that, if Australia passes legislation on this, it's done so in a way that is [in] alignment with our broad human rights frameworks and responsibilities and is not seen simply as just an anti-China measure'.29

3.24 Dr Cockayne considered that the PRC government 'would almost certainly react with open hostility to adoption of the ban envisaged in the Bill'.30

3.25 Dr David Brophy failed to see the rationale for taking a China-specific approach arguing that this was 'unlikely to be the most effective way to actually influence China's policies on this score' because the Chinese government will characterise it as 'part of a Western campaign to delegitimise it and harm its economy'.31

Blunt approach 3.26 There was a variety of views on whether the prohibition on the import of all goods from Xinjiang, and all goods made with forced labour from the rest of the PRC, was warranted or too blunt to be effective.

3.27 Some submitters supported the presumption that any good from Xinjiang is the result of forced labour given both the evidence of widespread forced labour in the region and the difficulty of providing case by case evidence given the lack of access.32

3.28 Professor Cockayne said that 'traditional supply-chain due diligence tools, such as on-site inspection' are ineffective in Xinjiang and that organisations should as such 'assume that goods sourced from XUAR, or from suppliers elsewhere in PRC that are using XUAR-sourced labour, are at high risk of having been made with forced labour'.33

3.29 Ethical Partners Funds Management (EPFM) said it was 'widely accepted that due diligence in the Xinjiang region is extremely difficult, with access tightly controlled and conditions increasingly difficult to detect and monitor'.34

27 Proof Committee Hansard, p. 33.

28 Proof Committee Hansard, p. 36.

29 Proof Committee Hansard, p. 21.

30 Submission 30, p. 7.

31 Submission 9, p. 2.

32 Professor Laura T. Murphy and Dr Shawn Bhimani, Submission 27, p. 1; Fair Supply, Submission 28,

p. 2; Inter-Parliamentary Alliance on China, Submission 20, p. 3.

33 Submission 30, p. 1.

34 Submission 47, p. 2.

31

3.30 Others did not think this was an optimal approach. Dr Brophy argued that such a ban 'would constitute sanctions on the entire Xinjiang economy'.35 The Australian Chamber of Commerce and Industry (ACCI) similarly said that the bill 'could lead to the lessening of economic opportunity for the Uyghur community'.36

3.31 Professor James Leibold and Ms Kelsey Munro considered that a ban on all goods produced in Xinjiang would not only be 'unwieldy but likely impossible to enforce'.37 Professor Leibold told the committee that the government should instead take a 'more targeted approach, that goes to the root source of the problem, and that is Xi Jinping's brutal regime in Xinjiang', including through 'a more targeted set of legislation and sanctions.'38

3.32 The government noted that import and export prohibitions usually 'have mechanisms facilitating a degree of flexibility in their application', without which trade with Xinjiang, 'even when forced labour is not known to be present in the supply chain', would be prohibited.39

Scope 3.33 Some respondents felt that the import prohibition should apply not only to goods, but also to services40 and investment. Professor Cockayne said that Australian investment in companies involved in Uyghur forced labour should

also be considered in the policy response.41

3.34 Australia-Hong Kong Link (AHKL) was in favour of the bill explicitly stating that the prohibition of the import of goods would apply 'if they are produced or manufactured wholly or in part in Xinjiang', pointing out that such wording has been used in legislation in Canada and the United States.42

3.35 SLA noted that it may be helpful to clarify the definition of forced labour in the explanatory memorandum given that (i) the Criminal Code meaning of forced labour has 'limited extra-territorial effect', as opposed to the definition of that term contained in the relevant International Labour Organization (ILO)

35 Submission 9, p. 2.

36 Submission 24, p. 1.

37 Submission 37, p. 6.

38 Proof Committee Hansard, p. 3.

39 Submission 57, p. 8.

40 Dr Hayes, Submission 11, p. 7.

41 Submission 30, p. 9.

42 Submission 32, p. 4.

32

conventions and (ii) the memorandum also refers to slavery, although the bill limits itself to forced labour.43

Need to coordinate with likeminded States 3.36 Many submissions pointed to relevant steps taken in other countries, particularly the United States, United Kingdom and Canada, as discussed above, but also the European Union,44 France,45 the Netherlands and

Germany.46

3.37 Professor Cockayne expressed the view that 'given the small fraction of exports from XUAR for which Australian demand accounts' a ban adopted solely by Australia is unlikely to be effective.47 He considered that working with other like-minded countries would be more effective.

3.38 Many also called for Australia to improve its coordination with such States on this issue, including by taking action in a multilateral setting. Professor Leibold and Ms Munro stressed 'the importance of acting multilaterally in addressing forced labour:

To be truly effective, governments who are concerned about Uyghur forced labour and wider human rights abuses occurring in China, and elsewhere, must act collectively. A multilateral approach will provide companies with clarity and stability in how any new legislation, sanctions or reporting requirements will operate across multiple jurisdictions and increase the effectiveness of any bans or sanctions.48

3.39 Submitters noted the possibility of advocacy and action in two main multilateral bodies: the ILO and the Human Rights Council (HRC). The Uyghur Human Rights Project (UHRP) said that the government 'should raise the issue of state organized forced labour implemented by the Government of China' at the next meeting of the ILO governing body.49

3.40 Ms Ramila Chanisheff, President of the Australian Uyghur Tangritagh Women’s Association (AUTWA), said that Australia should 'work with the Five Eyes and other like-minded democratic countries' such as 'the US, the Netherlands, Canada and the UK'.50

43 Submission 40, p. 7.

44 UHRP, Submission 21, p. 5.

45 Inter-Parliamentary Alliance on China, Submission 20, p. 5.

46 Global Compact Network Australia, Submission 58, p. 7.

47 Submission 30, p. 8.

48 Submission 37, p. 6.

49 Submission 21, p. 1.

50 Proof Committee Hansard, p. 17.

33

3.41 AHKL said that '[t]rade restrictions, such as the ones outlined in the Bill, are more effective if they are part of the coordinated responses from like-minded countries and with clear advice and guidance to businesses'.51

3.42 The British High Commission in Canberra said that the United Kingdom 'believes that coordinated international action is needed to address the risk of forced labour entering global supply chains, and the UK welcomes the close partnership with Australia on this issue'.52

3.43 The US Department of State said that '[c]ommunication and coordination on these trade issues should continue as we advance our shared goals of addressing human and labor rights abuses'.53

Implementation and enforcement issues 3.44 Several submitters raised concern regarding the feasibility of implementing and enforcing the bill as drafted.

3.45 The government in its submission said that it had chosen to focus on 'transparency, public accountability and business-driven change through a risk-based reporting framework under the Modern Slavery Act' because 'action involving trade and importation restrictions, such as the import prohibition proposed by the Bill, inherently raises challenges in operation and implementation'.54

3.46 Ms Holben of the ABF said that the government view was that the bill did not 'take into account the practicalities of implementation' and 'suggests that it is possible to identify goods made by forced labour, regional and provincial origins of products, and modes and methods of product manufacture at the border'.55

3.47 The government noted that the bill 'does not propose a means by which goods, including individual components of the goods, can be identified as being from Xinjiang, or the product of forced labour'. It continued:

The vast majority of consumer goods and other refined products (such as textiles, electronics, and vehicles) involve long and complex supply chains. Manufacturing can take place in various stages and in various places. Manufacturing often involves combining components from different origins, different manufacturers, and different manufacturing methods to create a single finished product. Unlike basic raw materials, the importation of a manufactured product does not involve one clearly identifiable origin, source or method of manufacture.

51 Submission 32, p. 1.

52 Submission 60, p. 2.

53 Submission 38, p. 1.

54 Submission 57, p. 7.

55 Proof Committee Hansard, p. 40.

34

This complexity means there is rarely one single origin or method of manufacture applicable to a product. The components of complex manufactured goods, or their origins and methods of manufacture, are also not easily or reliably identifiable at the border, or otherwise. These evidentiary difficulties mean that the prohibition proposed by the Bill could not be applied to complex consumer goods and other refined products that carry high risks of modern slavery (such as textiles, electronics, and vehicle manufacturing).56

3.48 The ACCI foresaw 'significant difficulties for business and regulators in identifying the products emanating from the region in question'.57

3.49 Global Compact Network Australia, the Australian, business-led network of the UN Global Compact, said that many businesses would find it 'challenging to meet the requirements of an import ban due to the complexity of supply chains and limited visibility beyond tier one level'.58

3.50 The Uniting Church in Australia (UCA) and Salvation Army Australia (SAA) noted the 'real risk that Xinjiang goods produced by Uyghurs or other persecuted minority groups would be 'laundered' to mask the origin of production' with indirect shipments of items containing cotton 'along the intra-Asia trade route….challenging to follow'.59

3.51 Professor Cockayne noted that the bill 'relies on existing administrative and enforcement arrangements under the Customs Act 1901 (Cth)' and will as such:

create a non-trivial and ongoing burden on relevant customs authorities to furnish frontline customs officers with the information they need to reliably distinguish goods prohibited under this ban from other, permitted goods. The costs of developing that information will be borne by the taxpayer, and are not identified or discussed in the Explanatory Memorandum. Given the challenges involved in reliably assessing whether goods are sourced from XUAR and/or produced with forced labour, the danger of this approach is that it will simply lead to lax and unpredictable enforcement. This may […] undermine the efficacy of the legislation and create an uncertain commercial environment for importers.60

Audits and accreditation 3.52 Ms Xu observed that since the publication of the Uyghurs for sale report, she had 'heard from business alliances, auditors, and researchers, who say it is extremely difficult to follow standard auditing protocols when it comes to

human rights audits and Uyghur-related audits'. She continued;

56 Submission 57, p. 8.

57 Submission 24, p. 1.

58 Submission 58, p. 5.

59 Submission 13, p. 5.

60 Submission 30, p. 9.

35

The Chinese Communist Party considers any form of investigation of the treatment of Uyghurs as crossing a red line. Auditors are routinely denied access, and greeted by hostile government officials or police officers when they visit Chinese factories.61

3.53 Ethical Clothing Australia (ECA) said it is 'well documented that the [textile, clothing and footwear] industry is notorious for the exploitation of garment workers around the globe'. In addition, the 'complexity of supply chains in the TCF industry allows for poor practices, exploitation, and cases of modern slavery to flourish'.62

3.54 Ms Bell, ECA National Manager, noted that 'audits can be fraudulent'. She continued:

That's obviously highly concerning and that's why having a certification or something which is more rigorous, an independent body going in to check, not one of the companies paying is of more benefit to the consumer or the purchaser who's concerned about where those products have come from or where the fibres have come from.63

3.55 Fairtrade Australia and New Zealand does not have certified entities operating in Xinjiang, but provided information relevant to accrediting fair trade standards, including with respect to forced labour, more broadly.64

New technologies 3.56 Professor Leibold and Ms Munro called for the government to investigate the possible role of new technologies 'such as isotope, microbiome, blockchain and other tracing technologies' can play to empower 'companies and governments

to more efficiently and effectively trace their supply chains'.65

3.57 Ms Kitto described some of the new technologies that could be employed to assist implementation of the Bill or a similar measure, including: Bluenumber; Sourcemap, 'which is a company that can actually trace the supply chain back to the Xinjiang region, and they have been working with companies who are affected by WROs in the US to provide them with the information that is required for them to show that their products are not from that area'; and Oritain, a New Zealand company that 'can track the isotopes in products to within a kilometre of where that product comes from.'66 Ms Kitto also mentioned an Australian resource:

61 Submission 50, p. 2.

62 Submission 29, p. 2.

63 Proof Committee Hansard, p. 23.

64 Submission 23.

65 Submission 37, p. 6.

66 Proof Committee Hansard, p. 28.

36

Sydney University has the Eora database, which tracks all of the trade routes. They have internal Chinese trade routes. They can track 15,900 products in terms of how they move around the world economically. So that kind of data is now quite readily available. They can track supply chains to tier 10.67

3.58 In its submission, BSF provided additional detail on Sourcemap:

Companies like Sourcemap are offering businesses concerned about forced labour (particularly in relation to Xinjiang Province and Uyghur forced labour) a streamlined due diligence solution that can be rapidly deployed across a global supply chain for any industry. The supply chain mapping approach uses a vendor portal with cascading functionality to quickly and accurately identify sub-suppliers and ensure that they have the right policies and procedures in place, and transaction traceability to verify the authenticity of each inbound shipment. It enables business to provide the evidence they need to exclude forced labour.68

3.59 BSF also provided detail on Bluenumber:

Bluenumber is an NGO providing a platform for bottom-up opt-in by any workers in a supply chain. Bluenumber triangulates the count of workers volunteering their locations, declaring what they are working on, for whom, and with what that supplier produces. People with bluenumbers show up on a supply map so their existence can be matched with products. Bluenumber measures supply chains using unfiltered data provided by people, not just third-party audits of facilities and sampled product outputs. Bluenumber would enable enforcement when every legitimate worker is properly co-located within the supplier’s licensed facilities and their smartphone logs reasonable working hours at that place. A spot check on any audit report would simply require calling or messaging the worker directly to check details of their working conditions. Any unanswered or blocked call from a previously registered person would raise a red flag.69

3.60 Finally, on Oritain, BSF submitted:

Oritain traces actual products back to their true origin using advanced science. They analyse Isotopes and Trace Elements from samples of products and materials, to determine their origin or other characteristics. They can accurately determine the geographic origins of any natural product.70

67 Proof Committee Hansard, p. 28.

68 Submission 48, p. 17.

69 Submission 48, pp. 17-18.

70 Submission 48, p. 18.

37

Chapter 4

Alternative and complementary measures

4.1 There was considerable convergence on what many considered to be a superior approach to addressing the objectives of the bill. As outlined in the last chapter, there was a consistent call for the amendment of the Customs Act 1901 to be applied to products of forced labour from any part of the world, rather than only those originating in the People's Republic of China (PRC).1 Many stakeholders also said this should be complemented by legislation allowing for the relevant authorities to issue product, company, region or country-specific measures in certain circumstances, including in relation to the current situation facing Uyghurs in the PRC.

4.2 Fair Supply submitted that the ban should be expanded to other countries 'identified as having forced labour issues'.2 Mr Roscoe Howell, Founding Director, Slavery Links Australia (SLA), said that Australia should not let other trading partners who are not party to the International Labour Organization (ILO) Forced Labour Conventions 'off the hook'.3

4.3 Some submitters noted that introducing a blanket ban on the importation of any goods produced wholly or in part by forced labour would bring Australia in line with longstanding US policy, as reflected in its 1930 Customs Law.4

4.4 Ms Lucienne Manton, Ambassador for People Smuggling and Human Trafficking, Department of Foreign Affairs and Trade (DFAT), said that '[e]fforts to address these issues need to be global' given forced labour issues 'cross borders and touch all parts of the globe'.5

Withhold release orders 4.5 Many submitters discussed the US practice of issuing Withhold Release Orders (WROs) as a step that would be complementary to a global ban on the import

1 Uniting Church in Australia and Salvation Army Australia, Submission 13, p. 8; Walk Free,

Submission 14, p. 1; Professor Justine Nolan and Dr Martijn Boersma, Submission 16, p. 3; Human Rights Watch, Submission 19, p. 3; Professor Murphy and Professor Bhimani, Submission 27, p. 2; Professor James Cockayne, Submission 30, p. 9.

2 Submission 28, p. 4. The countries it identified were Afghanistan, Algeria, Belarus, Myanmar,

Burundi, Comoros, Cuba, Eritrea, Iran, Democratic People's Republic of Korea, Lesotho, Nicaragua, Papua New Guinea, Russia, South Sudan, Syria, Turkmenistan and Venezuela.

3 Proof Committee Hansard, p. 27.

4 Dr David Brophy, Submission 9, p. 3; Professor Nolan and Dr Boersma, Submission 16, pp. 5-6.

5 Proof Committee Hansard, p. 40.

38

of goods produced by foreign labour.6 Many of those advocating for a global ban nevertheless considered that the situation in Xinjiang was sufficiently dire and endemic to warrant a targeted WRO.

4.6 Ms Freya Dinshaw of the Human Rights Law Centre (HRLC) explained how WROs operate:

Pursuant to the US Tariff Act, anyone can petition US Customs and Border Protection to investigate suspected cases of imports produced with forced labour. If the investigations reveal reasonable evidence—and I note that it needs to only be reasonable but not necessarily conclusive evidence of imports having been produced with forced labour—US Customs can then detain the goods under detention orders known as 'withhold release orders'. The orders can target products from specific companies or, where appropriate, from specific regions. If an importer can demonstrate within a period of around three months or so that the goods weren't produced with forced labour, the goods are released. However, if they can't do this or if a conclusive finding is made by US customs that the goods were produced with forced labour, the goods will be destroyed or subject to seizure and summary forfeiture proceedings.7

4.7 Ms Dinshaw further explained:

The US system therefore places the onus on importers and suppliers, who are best placed to be able to investigate their own supply chains to prove that their goods are slavery-free. Before they can regain market access, they must first address instances of forced labour in their operations to the satisfaction of the regulator. These laws have proven highly effective at prompting action from industry to address forced labour in recent times.8

4.8 Ms Dinshaw informed the committee that the United States currently has 47 WROs, including 'a region-wide withhold release order in respect of all cotton and tomato products from the Xinjiang province, in addition to five orders that specifically target products by factories in Xinjiang and China that are connected to Uighur forced labour.'9

4.9 Professor Justine Murphy and Dr Martijn Bhimani said that 'Australia should adopt a rebuttable presumption that all products made in XUAR or by XUAR citizens employed through "surplus labour" or "labour transfer" programmes are made with forced labour unless companies can prove otherwise'.10

6 Uniting Church in Australia and Salvation Army Australia, Submission 11, pp. 9-11;

Professor Nolan and Dr Boersma, Submission 16, p. 6; Inter-Parliamentary Alliance on China, Submission 20, p. 4; Professor James Leibold and Ms Kelsey Munro, Submission 37, p. 6.

7 Proof Committee Hansard, p. 19. See also HRLC, Submission 41, p. 9.

8 Proof Committee Hansard, pp. 19-20.

9 Proof Committee Hansard, p. 19.

10 Submission 27, p. 2.

39

4.10 Professor James Cockayne outlined several advantages of this approach, including:

 First, it creates greater predictability for importers and the domestic market more broadly about which goods or categories of goods will be subject to enforcement action.  Second, it enlists the broader public and civil society in the task of

developing information to assess whether goods fall within the prohibited class. U.S. CBP has established formal procedures allowing for members of the public and non-governmental organizations to petition it to adopt WROs against specific importers. This not only spreads the cost of developing such information, but also strengthens the quality of information, given the specific expertise and global reach available to some NGOs.  Third, the WRO system gives CBP significant leverage over importers,

allowing it to induce companies to change their labour management practices and adopt remedial measures, in order for access to the US market to be restored. This is a powerful and targeted tool for promoting respect for human rights and labour standards.  And fourth, such a scheme is more responsive to changing facts on the

ground than an approach that rests on adoption of primary legislation to add and subtract goods from the list of prohibited imports, as this Bill does.11

4.11 Dr Marinella Marmo and Dr Rhiannon Bandiera drew the committee's attention to the evidentiary standard required to issue a WRO - reasonable, rather than conclusive, evidence - and considered this would be appropriate for use by Australia.12

4.12 Human Rights Watch (HRW), which called for a global ban on goods produced with forced labour, advocated for designating Xinjiang as 'a region where forced labor risks are high' and introducing a 'presumption of forced labour in cases of imports of finished goods from Xinjiang or imports of goods made with inputs from Xinjiang'.13

4.13 In response to a written question on notice on why the United States was pursuing standalone legislation on Uyghur forced labour given its existing ability to issue WROs, the HRLC said that the draft US legislation 'builds on the existing US Tariff Act' and 'would act similarly to a WRO but focuses on all products from the region as a whole, rather than issuing multiple bans on a product by product or company basis'. It continued:

It is important to note that this standalone legislation still proposes to operate under the auspices of the broader, non-discriminatory framework

11 Submission 30, p. 9.

12 Submission 54, p. 5.

13 Submission 9, p. 3.

40

set out in the Tariff Act in relation to banning imports produced with forced labour. The presumption is also able to be challenged on a case-by-case basis.

Given Australia does not have underlying legislation in place to address imports produced with forced labour, we believe that Australia should, as a necessary first step, introduce this, along with a WRO-style regime in order to be in a position to introduce more targeted measures focused on Xinjiang. In our view, this approach is more justifiable and less likely to be subject to challenge by China than legislation which specifically singles out all products from Xinjiang, for the reasons set out above. We note that it is possible for WROs to be framed broadly in any event so that they target whole product lines or industries, rather than just specific products or manufacturers. Thus much the same objective could be achieved through this approach.14

Complementary measures 4.14 Several submitters advocated for additional measures to address the situation of Uyghurs in the PRC. Some of these are complementary trade measures. Others would seek to address the situation in Xinjiang through non-trade

means.

Complementary trade measures

Advice to business 4.15 Submitters called for additional government advice to assist businesses seeking to avoid exposure to forced labour in their supply chains. Such advice could assist with implementation of the bill or a similar measure. Many cited

the Xinjiang Supply Chain Business Advisory issued by the US Departments of State, Treasury and Commerce as a model.15 Submitters also pointed to the policy support provided to business by the Canadian and UK governments.16

4.16 Australian Lawyers for Human Rights (ALHR) said it would be incumbent on the government 'to draft further provisions, regulations and guidelines' to assist 'businesses to make adequate risk assessments and undertake the required due diligence'.17

4.17 Ms Vicky Xu provided evidence on the acute need for government advice and guidance for businesses operating in China:

Businesses in China, as it's communicated to me, feel that they don't specifically have instructions or guidance to fall back on from the democratic world. When they're pitched thousands of Uighur workers

14 HRLC, answers to question on notice, received 6 May 2021.

15 See for example Dr Michael Clarke, Submission 17, p. 10.

16 See for example Australia-Hong Kong Link, Submission 32, p. 4.

17 Submission 53, p. 6.

41

they're not in a position to refuse per se, because they need to maintain their presence in China and they want to continue to do business in China.18

4.18 Fair Supply said that 'for maximum effectiveness and fairness, it is essential that the Bill’s passage be supported by accompanying guidance on the assessment approach(es) that are advisable for businesses' assessing what goods are likely to involve forced labour in certain regions.19 It added:

We strongly urge the Committee to consider the preparation of urgent and detailed accompanying guidance on the assessment approach(es) that entities should be undertaking by way of due diligence to satisfy themselves that they are not unknowingly importing products of a kind proscribed by the Bill.20

4.19 Global Compact Network Australia (GCNA) called for the government to produce 'clear and practical guidance for all businesses (both large and SMEs) to assist them with identifying, preventing and addressing their involvement in modern slavery through their activities and business relationships'.21 It further specified that areas for guidance could include:

 What constitutes modern slavery (as outlined in the MSA), so that companies understand what they are looking for.  Helping companies to identify red flags, including providing tools to assist them with understanding what products and services and

jurisdictions are at most risk of modern slavery.  Explaining how modern slavery fits into the broader human rights risk management framework with reference to core international standards including the UNGPs.  Good practice examples around due diligence and remediation

processes relating to conduct at home and abroad.  Good practice examples of multi-stakeholder partnerships to manage modern slavery in the context of human rights risks and to reduce the preconditions for modern slavery.  Direction that helps business navigate an approach where there are

instances of state sponsored harm or weak governance that increases the risk of modern slavery.  Explanations and good practice examples of what business can do to identify, prevent and address involvement in modern slavery

throughout the whole value chain, including downstream and upstream (i.e. suppliers and customers).22

18 Proof Committee Hansard, p. 5.

19 Submission 28, p. 6.

20 Submission 28, p. 7.

21 Submission 58, p. 1.

22 Submission 58,p. 6.

42

4.20 GCNA also called for the government to produce an annual list 'of products and their associated jurisdictions that are considered to be of at high risk of association with modern slavery'.23

4.21 Many further suggested that it would be useful for the government to publish a list of products associated with forced labour.24 HRW called for the government to issue an 'annual list of countries and products that the Australian government considers to be produced at risk of forced labor' modelled on the US department of Labor List of Goods produced by Child and Forced Labor.25

4.22 HRLC said the Australian Border Force (ABF) should compile 'an annual list of high-risk goods and their source countries which it has reason to believe are produced by forced labour' given that currently Australia business and civil society have to rely on the list published by the US Department of Labor.26

4.23 In response to a question on notice, Dr Byler recommended the government should 'work with allies to compile lists of complicit suppliers and publicize declassified evidence of forced labour'.27

4.24 Ethical Partners Funds Management (EPFM) also advocated for the use of:

a mechanism similar to the Trafficking Victims Protections Reauthorization Act (TVRPRA) and Executive Order 1312, under which the US Department of Labour produced a list of products and their source countries for which there is a reasonable basis to believe they are produced by forced or child labour. This mechanism also includes a clear process including how countries can protest being listed and how they can be removed from the list. Civil society and other stakeholders can make submissions to the process.28

4.25 In addition, EPFM called for the government to consider a 'mechanism such as the EU Yellow Card, which constitutes an official warning system issued to trading partners to tackle issues (including human trafficking and forced labour)' before imposing sanctions.29

4.26 In response to a question on notice, DFAT advised that it had 'set out the range of [its] concerns relating to Xinjiang' in its regular and ad hoc meetings with

23 Submission 58, p. 2.

24 See for example Ethical Partners Funds Management, Submission 47, p. 4 and Be Slavery Free,

Submission 48, p. 17.

25 Submission 19, p. 4.

26 Submission 41, p. 13.

27 Dr Byler, answers to question on notice, received 18 May 2021.

28 Submission 47, p. 4.

29 Submission 47, p. 4.

43

businesses. DFAT also encourages businesses to 'monitor public research and reporting and scrutinise their supply chains'.30

Resourcing for investigations 4.27 The Uniting Church in Australia (UCA) and Salvation Army Australia (SAA) contended that the government would need to 'allocate resources' to investigate whether imports to Australia are a product of forced labour.31 UCA

and SAA recommended Australia follow the US example by establishing 'specialised staff to investigate suspected cases of imports having been produced through forced labour'.32 The US Customs and Border Protection (CBP) established a division dedicated to such investigations in 2018.

4.28 Ms Dinshaw said that legislation would need to be accompanied by 'the establishment of a special investigations unit within the Australian Border Force' to ensure effective enforcement.33 In its submission, the HRLC recommended that the government establish a 'special investigations unit' within the ABF 'to identify and investigate suspected cases of imports produced with forced labour', modelled of the Forced Labor Division in the US CBP.34

4.29 Professor Murphy and Dr Bhimani said the government should fund a 'government inquiry into the Xinjiang supply chain and systems development' to enhance the enforceability of relevant provisions.35

4.30 Ms Xu also called for more assistance for researchers:

some auditing firms have said they are able to make a set of standards specific for the situation in Xinjiang and develop procedures to check. It could be desktop research. We are just researchers with an academic and journalistic background and we were able to identify quite a bit. Desktop research can raise red flags. They have visited neighbourhoods, interviewed residents around these factories. If enough red flags are seen, perhaps it could be categorised at a higher risk of Uighur forced labour.36

4.31 Dr Darren Byler echoed this call:

I think we really need governments to fund research on this, to look into supply chains on their own and not depend on investigative journalists and think-tanks to do that work independently. I think we need more funding and concentrated efforts that would help the private sector to

30 Answer to question on notice, received 26 May 2021.

31 Submission 13, p. 5.

32 Submission 13, p. 12.

33 Proof Committee Hansard, p. 20.

34 Submission 41, p. 10.

35 Submission 27, p. 3.

36 Proof Committee Hansard, p. 6.

44

know which companies they should not be partnering with in China and where the evidence is. Those things should be provided to them by governments.37

4.32 In response to a written question on notice DFAT noted that the government 'already supports research on supply chains.' It explained:

Research, including into modern slavery in supply chains, is one of five national strategic priorities in the Government’s National Action Plan to Combat Modern Slavery 2020-25. The Government has committed $10.6 million over five years to implement the National Action Plan. This includes $4.4 million in multi-year grant funding for civil society organisations, peak bodies and academic researchers to deliver projects that combat modern slavery in Australia, managed by the Australian Border Force. Round One of the grants program opened on 10 March 2021 and has a dedicated stream of funding for research into improving understanding of modern slavery risks in global supply chains, among other things.38

Customs data 4.33 The government captures information about the importation of goods through its Integrated Cargo System (ICS). As outlined by the UCA and SAA, this includes 'details such as the nature and quantity of the product, the supplier

and the intended recipient'.39 The information is not made publicly available.

4.34 Several submitters viewed that making this data publicly available to assist others to trace supply chains would deter Australian importers from dealing with suppliers linked to forced labour.40 Such information is publicly available in various other jurisdictions, including the United States and European Union.

4.35 The HRLC also called for greater transparency on and access to customs data to 'enable businesses and civil society to more accurately identify modern slavery risks in Australian supply chains, and incentivise companies to more closely scrutinise their potential links to forced labour.'41

37 Proof Committee Hansard, p. 6.

38 Answer to question on notice, received 26 May 2021.

39 UCA and SAA, Submission 13, p. 11.

40 See for example UCA and SAA, Submission 13, p. 11; Professor Murphy and Professor Bhimani,

Submission 27, p. 2; BSF, Submission 48, p. 16; Ms Dinshaw, Proof Committee Hansard, p. 20.

41 Submission 41, p. 11.

45

Non-trade measures

Strengthening the Modern Slavery Act 4.36 While some were of the view that the objectives of the bill would be better addressed in the framework of the Modern Slavery Act 2018 (MSA),42 others viewed the MSA as insufficient for this task.43 Regardless of position in this

respect, there was strong support for the strengthening of the MSA.

Operation of the Act 4.37 The MSA entered into force on 1 January 2019. It requires entities based or operating in Australia with an annual consolidated revenue of more than $100 million to report annually on the risks of modern slavery in their

operations and supply chains, as well as their actions to address those risks. The current requirements have resulted in companies uncovering hundreds of cases of modern slavery throughout supply chains.44

4.38 The Australian Border Force (ABF) is responsible for driving implementation of the Act.45 There is also a Modern Slavery Expert Advisory Group, comprising 15 representatives, including 5 from peak bodies,46 which provides strategic advice to government to support the effective implementation of the MSA Act.47

4.39 The whole of government submission outlined how the MSA operates. It noted that the government had established an online register of Modern Slavery Statements.48 The government also outlined some of its outreach efforts to promote implementation of the MSA:

the Government actively undertakes outreach to Australian entities on risks related to modern slavery and supply chains. Agencies, including the Australian Border Force and Department of Foreign Affairs and Trade, engage closely with peak bodies and individual businesses, both in Australia and overseas, as well as officials from state and territory

42 See for example Dr David Brophy, Submission 9, pp. 2-3 and Australian Chamber of Commerce

and Industry, Submission 24, p. 1.

43 HRW, Submission 19, p. 4; Inter-Parliamentary Alliance on China, Submission 20, pp. 3-4; Be Slavery

Free, Submission 48, p. 5.

44 Rob Harris, ''Grave violations of human rights': Supermarkets, retailers uncover exposure to

modern slavery', The Sydney Morning Herald, 8 December 2020.

45 https://www.homeaffairs.gov.au/criminal-justice/Pages/modern-slavery.aspx (accessed 10

February 2021).

46 Australian Chamber of Commerce and Industry, Australian Industry Group, Business Council of

Australia, Global Compact Network Australia and the Law Council of Australia.

47 https://www.homeaffairs.gov.au/criminal-justice/Pages/modern-slavery.aspx (accessed

10 February 2021).

48 Submission 57, p. 4.

46

governments to raise awareness of relevant supply chain risks. The Government encourages Australian companies and institutions to conduct appropriate due diligence, specific to their industries, to satisfy themselves that their commercial and other arrangements are consistent with Australian legislation and international standards.49

4.40 The government noted that it is required to review the MSA in 2022 and that this will include 'consideration of compliance, penalties and other complementary measures'. It also noted its willingness to bring the review forward if required.50

4.41 The government's implementation of the MSA is guided by the National Action Plan to Combat Modern Slavery 2020-25, which has five national strategic priorities: prevention; disruption, investigation and prosecution; support and protection; partnering; and research. The government committed $10.6 million to implementing the National Action Plan in the 2020-21 budget.51

Shortcomings of the Act 4.42 Ms Keren Andrews of the HRLC noted that the 2017 report of the Joint Standing Committee on Foreign Affairs, Defence and Trade on establishing a Modern Slavery Act in Australia made a number of recommendations and that

the government chose to enact one of those, relating to transparency, 'which requires companies to report on what they're doing about modern slavery, but it doesn't actually require them to do anything'.52 She further outlined:

at the moment, in the statements that we're looking at under the Modern Slavery Act, very few actually make commitments to do very much. For example, there has been a thousand or so statements now uploaded onto the register. If you search for the word 'Xinjiang', there are only 19 statements that mention that and only five of those have actually made commitments to stop sourcing from Xinjiang or to take action on this issue.53

4.43 The HRLC noted that the MSA:

does not impose any obligations on companies to undertake due diligence to identify, prevent and address forced labour risks. There is no independent oversight and no financial penalties for non-compliance with MSA requirements. There is also no clear avenue for exploited or trafficked workers to seek remedy from companies. In other words, while companies are encouraged to report and take steps to address forced labour risks, there are few consequences for those that fail to do so.

49 Submission 57, p. 4.

50 Submission 57, p. 4.

51 Submission 57, p. 5.

52 Proof Committee Hansard, p. 20. See Joint Standing Committee on Foreign Affairs Defence and

Trade, Hidden in Plain Sight, December 2017.

53 Proof Committee Hansard, p. 23.

47

4.44 Professor James Leibold said that the statements provided by companies pursuant to the MSA look 'like a box-ticking exercises done by lawyers'.54

Possible improvements to the Act 4.45 There was considerable overlap among submitters about ways to strengthen the MSA. These include: lowering the annual turnover threshold for reporting,55 introducing penalties for non-compliance56 and establishing an

independent watchdog.57

4.46 Many submitters considered the reporting threshold of $100 million annual revenue too high. Dr Katherine Christ and Ms Kyla Raby pointed out that 'small and medium-sized enterprises account for over 90% of businesses currently operating in Australia'.58

4.47 The Josephite Counter-Trafficking Project (JCTP) said that the review of the MSA should consider 'an Independent Anti-Slavery Commissioner be appointed whose role includes the investigation of allegations of forced labour, child labour and human trafficking in supply chains'.59 Amnesty International also supported this idea, stating that the Commissioner should 'also have the remit to comment on and make recommendations regarding companies based and operating overseas, but have a presence or trade with…Australian companies'.60

4.48 Professor Cockayne said the MSA should be amended to create a 'Commonwealth 'Modern Slavery List' - a list of goods, classes of goods, regions and/or entities rebuttably presumed to be using forced labour or modern slavery' with changes to the list 'achieved through Ministerial declaration or secondary legislation'.61

4.49 Professor Murphy and Dr Bhimani recommended that the government require 'companies to disclose any supply chain connections to XUAR in their Modern Slavery Act 2018 disclosures'.62 They also called for the Act's amendment to include 'an explicit prohibition on government procurement or corporate

54 Proof Committee Hansard, p. 6.

55 FDA, Submission 43, p. 4; Professor Leibold and Ms Munro, Submission 37, p. 5.

56 Dr David Brophy, Submission 9, p. 3; Professor Leibold and Ms Munro, Submission 37, p. 5; HRLC,

Submission 41, p. 12; Australian Council of Trade Unions, Submission 44, p. 8.

57 Dr Brophy, Submission 9, p. 3; Amnesty International, Submission 26, p. 3.; Professor Murphy and

Dr Bhimani, Submission 27, p. 3; SLA, Submission 40, pp. 12-13; HRLC, Submission 41, p. 12.

58 Submission 51, p. 7.

59 Submission 49, p. 5.

60 Submission 26, p. 3.

61 Submission 30, p. 10.

62 Submission 27, p. 2.

48

imports of products made, in whole or in part, through slavery, forced labour, or child labour'.63

4.50 The Australian Council of Trade Unions (ACTU) said the government should 'withhold government procurement contracts from companies who have failed to report or show they are taking action on modern slavery in their supply chains'.64

Diplomatic efforts 4.51 Many submitters also called for renewed efforts to persuade the PRC to ratify the Convention on Forced Labour 1930 and Abolition of Forced Labour Convention 1957.65

Independent investigations 4.52 Submitters encouraged Australia to continue its advocacy in favour of an independent investigation into alleged human rights abuses in Xinjiang, including through access for the UN High Commissioner for Human Rights.66

4.53 The International Coalition to End Transplant Abuse in China said the government should 'pursue through the United Nations the establishment of a Commission on inquiry to thoroughly investigate internment camps in China'.67 Australian Lawyers for Human Rights (ALHR) also called for the government to pursue a commission of inquiry through the United Nations.68

4.54 The Campaign for Uyghurs (CFU) said Australia should push for the PRC to be stripped of its membership of the UN Human Rights Council.69

4.55 In response to a written question on notice, DFAT observed that:

Independent and unfettered access to Xinjiang for international observers would assist by providing independent and credible assessments of the situation in Xinjiang. This is particularly important given the divergence between official statements and the growing number of credible reports of

63 Submission 27, p. 3.

64 Submission 44, p. 8.

65 CFU, Submission 15, p. 4; Uyghur Human Rights Project, Submission 21, p. 1; EFPM, Submission 47,

p. 3; ACTU, Submission 44, p. 5; Mr Adam Turan, Submission 45, p. 3; Be Slavery Free, Submission 48, p. 8.

66 Amnesty International, Submission 26, p. 3; Professor Murphy and Dr Bhimani, Submission 27, p. 2;

EPFM, Submission 47, p. 5; BSF, Submission 48, p. 11; JCTP, Submission 49, p. 5; GCNA, Submission 58, p. 8.

67 Submission 52, p. 11.

68 Submission 53, p. 7.

69 Submission 15, p. 5.

49

severe human rights abuses against ethnic Uighurs and other Muslim minorities, including testimony from those alleging detention.70

2014 Protocol to Forced Labour Convention 4.56 Several submitters noted that Australia had not signed or ratified the 2014 Forced Labour Protocol to the Forced Labour Convention, which includes guidance on specific measures for eliminating forced labour, and called for it to do so. 71

4.57 Professor Leibold said it was 'difficult for us to speak with a strong moral voice internationally' without having ratified the protocol.72 Dr David Brophy said that joining this protocol would signal Australia's 'adhere to the international standards that it wishes to hold China accountable to'.73

4.58 Be Slavery Free (BSF) outlined that, despite the government's indication that it intends to ratify the protocol, it cannot do so until Western Australia amends its industrial relations law.74

4.59 In response to a question on notice, DFAT provided an update on the government's announced intention to progress ratification of the protocol, confirming that 'the final remaining compliance issue to be resolved is a gap in coverage for certain categories of workers currently excluded from the definition of 'employee' under Western Australia's industrial relations framework'. DFAT noted that the WA Government had 'committed to making the necessary amendments to its industrial relations legislation to ensure state laws are compliant with the Protocol'.75

Sanctions 4.60 Some respondents called for the government to apply targeted sanctions against individuals and entities implicated in human rights abuses against Uyghurs.76

4.61 A subset specifically called for the government to adopt Magnitsky-style legislation to facilitate the adoption of such targeted sanctions.77

70 Answer to question on notice, received 26 May 2021.

71 Professor Justine Nolan and Dr Martijn Boersma, Submission 16, p. 4; Australian Uyghur

Tangritagh Women’s Association, Submission 39, p. 3; EPFM, Submission 47, p. 3; Dr Christ and Ms Raby, Submission 51, p. 8; ALHR, Submission 53, p. 8; Professor Leibold and Ms Munro, Submission 37, p. 5; HRLC, Submission 41, p. 14; ACTU, Submission 44, pp. 6-7; GCNA, Submission 58, p. 2.

72 Proof Committee Hansard, p. 6.

73 Submission 9, p. 3.

74 Submission 48, p. 8.

75 Answer to question on notice, received 26 May 2021.

76 See for example World Uyghur Congress, Submission 10, p. 9; Uyghur Human Rights Project,

Submission 21, p. 1; East Turkistan Australian Association, Submission 31, p. 9.

50

4.62 Professor Leibold noted that 'Uighur individuals who were listed as being associated with terrorist organisations' remained on DFAT's consolidated sanctions list and appealed for that list to be updated.78

Mandatory human rights due diligence obligations 4.63 The HRLC recommended the government introduce mandatory human rights due diligence obligations for Australian companies. Ms Adams explained that this would be similar to 'an environmental impact assessment which

companies have to put in here in Australia before they start an operation somewhere to show what the predicted environmental impacts will be and to take steps to mitigate those'. She noted relevant developments in Europe and further detailed:

it's going to increasingly be a question that is asked of the Australian government by Europe as to what it's doing to ensure that companies have a level playing field in this regard. Why is it that companies that do the right thing are being penalised or undercut by companies that turn a blind eye to these types of abuses? We would like to see a measure that also imposes the regulatory burden there back onto companies rather than onto government to take steps in the first place to ensure that when they're sourcing garments from China, what measures do they have in place to ensure that these aren't being produced with Uighur forced labour or from cotton that is picked by Uighurs in Xinjiang, for example? It's the direction that things are increasingly moving at an international level.79

4.64 The HRLC noted that such a move would be in line with Australia's obligations under the UN Guiding Principles on Business and Human Rights.80 Amnesty International also noted the relevance of that framework, outlining that the Guiding Principles 'require that business enterprises take proactive steps to ensure that they do not cause or contribute to human rights abuses within their global operations and respond to any human rights abuses when they do occur'.81

4.65 GCNA also expressed support for a mandatory human rights due diligence regime, which it said 'could involve civil penalties for non-compliance'.82

4.66 The government stated that it had supported the UN Guiding Principles 'since their inception in 2011 and encourages businesses to apply the principles in their operations in Australia and abroad'.83

77 See for example CFU, Submission 15, p. 4 and Professor Murphy and Dr Bhimani, Submission 27,

p. 3.

78 Proof Committee Hansard, p. 6.

79 Proof Committee Hansard, p. 23. See also HRLC, Submission 41, p. 13.

80 Submission 41, p. 13.

81 Submission 26, p. 2.

82 Submission 58, p. 2.

51

Labour provisions in free trade agreements 4.67 Dr Christ and Ms Raby pointed out that the United States-Mexico-Canada Agreement contains a 'forced labour provision which explicitly requires each country to prohibit the importation of goods made with forced labour'.84

4.68 Mr Roscoe Howell of SLA supported the introduction of a requirement that all Australian free trade agreements include a labour chapter.85 SLA noted and supported a 2013 private Senator's Bill that sought to bring such a requirement into effect.86

4.69 BSF called for any amended or new free trade agreements to 'include clauses reflective of Australia's stance on modern slavery and respect for human rights including minimum standards for worker's rights'.87

4.70 The ACTU called for the government to 'review the China-Australia Free Trade Agreement' to 'seek the inclusion of legally enforceable labour rights, including the elimination of all forms of forced or compulsory labour'.88

4.71 In response to a written question on notice, DFAT advised that Australia takes a 'case-by-case approach to the inclusion of labour provisions in its FTAs'.89

83 Submission 57, p. 5.

84 Submission 51, p. 5.

85 Proof Committee Hansard, p. 30.

86 Submission 48, p. 8.

87 Submission 48, p. 16.

88 Submission 44, p. 10.

89 Answer to question on notice, received 26 May 2021.

53

Chapter 5

Conclusions and recommendations

5.1 The committee endorses without reservation the objectives of the bill. The state-sponsored forced labour to which the Uyghur people are being subjected by the Chinese dictatorship is a grave human rights violation. It is incumbent on the government to take steps to ensure that Australian businesses and consumers are not in any way complicit in these egregious abuses.

5.2 The committee thanks Senator Patrick for providing the opportunity to explore how best Australia should respond. The committee is deeply grateful to the Uyghur community members and groups, in Australia and beyond, who shared the harrowing personal experiences of their family and community members.

5.3 The committee does not view the denials by the Chinese Communist Party (CCP) dictatorship with regards to the treatment of Uyghurs to be credible. The committee does not accept the CCP's characterisation of the situation in Xinjiang. It considers attempts to sow and perpetuate disinformation deeply concerning. The fact that the People's Republic of China (PRC) attacks those conducting research rather than the research itself demonstrates both the hollowness of the CCP's denials and its willingness to resort to bullying to perpetuate its false narratives.

The way forward 5.4 The committee is of the view that the bill as currently drafted does not represent the optimal way to address the issue at hand. Instead, the committee believes a preferable approach would be to: introduce a global ban on the

import to Australia of goods produced by forced labour; provide the legislative framework for the relevant authorities to take targeted actions in the case of particularly egregious abuses; and then take such targeted action with respect to Uyghur forced labour.

Bringing our Customs Law up to international standards 5.5 The committee was persuaded by the view that the proceeds of forced labour originating from any part of the world should not be brought into this country. The omission of such a prohibition from Australian law is an historical

oversight that needs addressing to bring Australia into alignment with laws in like-minded countries and our own values. Taking such an approach has the added benefit of ensuring Australia is not vulnerable to legal contest for erecting a discriminatory trade barrier.

54

Recommendation 1

5.6 The committee recommends that the Customs Act 1901 and/or other relevant legislation be amended to prohibit the import of any goods made wholly or in part with forced labour, regardless of geographic origin.

Taking targeted action to address Uyghur forced labour 5.7 While the committee endorses the principle that the government should take a non-discriminatory approach to addressing forced labour, it also recognises that the situation of the Uyghurs is such that targeted action is also warranted.

Given the combination of (i) manifest evidence of Uyghurs being subjected to forced labour in China, (ii) the difficulty, occasioned by deliberate regime obstruction, of accessing Xinjiang to audit supply chains and (iii) the exposure of Australian supply chains to goods from Xinjiang, it is appropriate to give clarity to Australian importers by issuing measures specific to this situation.

5.8 The committee considers that the US model, which allows for the issuance of orders enacting a rebuttable presumption that specific goods, or all goods originating from specific companies or regions, (withhold release orders) has merit and that a similar system should be adopted in Australia.

5.9 The evidence of the widespread use of forced labour for particular classes of products in Xinjiang necessitates the issuance of such an order as a matter of priority.

Recommendation 2

5.10 The committee recommends that the government should consider taking steps to empower the Australian Border Force to be able to issue rebuttable presumptions for specific goods, companies and/or regions with particularly high risk of being associated with forced labour.

 The committee recommends that, once the issuance of such orders is possible, the Australian Border Force should immediately consider issuing an order, at a minimum, for cotton sourced from Xinjiang.

Commonwealth Procurement Rules 5.11 The committee considered the suggestion that the government take steps to ensure its own procurement activities in no way abet forced labour to be a constructive one, and an area where action could be taken immediately.

Recommendation 3

5.12 The committee recommends the government consider amending the Commonwealth Procurement Rules to include a requirement on due diligence with regards to the possibility of exposure to forced labour and encourages state, territory and local governments and their various business enterprises to do likewise.

55

Implementation and enforcement issues 5.13 The committee noted the various difficulties associated with implementing and enforcing the provisions of the bill, some of which would also apply to the measures recommended above.

5.14 The committee did not view these difficulties to be intractable and noted a variety of promising proposals for facilitating implementation of a trade prohibition.

Resourcing investigations 5.15 The committee was given clear evidence that any import ban would only be effective if the authorities are adequately resourced to conduct extensive activities in support of its implementation.

5.16 Given the complicated nature of modern supply chains, the Australian Border Force will require a dedicated team, which is adequately resourced and credentialed, to enforce prohibitions on the import of goods produced with forced labour and on goods from a designated region or country.

5.17 To be most effective, this team would be empowered to act not only in a responsive manner, but also to take a proactive approach to eliminating forced labour from Australian supply chains.

Recommendation 4

5.18 In crafting provisions to prohibit the import of goods produced by forced labour, the committee recommends the government give due consideration to adequate resourcing for the Australia Border Force to conduct investigations in support of those provisions.

New technologies 5.19 The committee welcomed information provided on various new technologies that could assist with the implementation of the bill or a similar measure.

Recommendation 5

5.20 The committee recommends that the Home Affairs portfolio establish a working group to examine the role emerging technologies can play in tracing the geographical origin of products and raw materials.

Complementary trade-related measures 5.21 The committee noted the abundance of practical and constructive evidence regarding additional trade-related measures that would assist government and businesses to address the problem of supply chain exposure to forced labour.

To ensure that legislative actions are effective, the committee recommends additional complementary measures be taken.

56

Advice to business 5.22 Business advisories are a highly regarded practical tool used in several other countries. The committee believes that Australian companies should be guided by advice from their own government, tailored to Australian supply chains,

rather than rely on overseas advisories.

Recommendation 6

5.23 The committee recommends the government establish and maintain a list of products or companies considered to be at high-risk of being produced by forced labour.

Customs data 5.24 An additional aid to business and others seeking to conduct research and audits with respect to Australian supply chains would be the publication by government of customs data. The committee notes that similar information is

made public in various other countries.

Recommendation 7

5.25 The committee recommends the government, where feasible, publish Integrated Cargo System data online.

Coordinating with likeminded States 5.26 In matters of foreign policy, and in particular with regards to trade measures, the committee notes that coordinating with likeminded States is an essential prerequisite for effectiveness. On the specific topic of Uyghur forced labour,

the need for international coordination is particularly evident given that many likeminded countries have taken action in advance of Australia. This coordination should encompass both policy and implementation.

Recommendation 8

5.27 The committee recommends the relevant government departments coordinate closely with counterparts in likeminded countries, in particular Canada, the United Kingdom and the United States, both to ensure policy consistency and to ensure Australia can benefit from the practical implementation lessons learned by those countries.

Complementary non-trade measures 5.28 While trade measures can be expected to have an impact, especially when taken in coordination with like-minded international partners, they will not necessarily be sufficient to address the human rights abuses being suffered by

Uyghurs in the PRC. The committee welcomed the many ideas for complementary measures, several of which merit further consideration.

57

Diplomacy 5.29 The committee is aware of the current difficulties in the Australia-China bilateral relationship. Nonetheless, there remain important tools in the diplomatic toolbox. In particular, Australia should continue to work with

partners to put pressure on the PRC in the context of relevant multilateral organisations.

5.30 The committee commends the government's consistent call for the PRC to allow independent UN human rights investigators access to Xinjiang. Australia should also continue to call for the PRC to ratify relevant treaties in the context of the International Labour Organization.

5.31 The committee is convinced of the merits of further exploring the scope for action to expose and condemn the treatment of the Uyghurs in multilateral settings.

The General Assembly 5.32 The committee considers there may be scope for further action at the General Assembly. The joint statements delivered at the General Assembly's Third Committee are welcome. While non-binding, a general assembly resolution

condemning the PRC's treatment of the Uyghurs would be even more powerful, demonstrating international unity and resolve on the issue.

5.33 Unlike the Security Council, action in the General Assembly cannot be blocked by a PRC veto. Nonetheless, securing a majority of votes is in no way a given and would require significant diplomatic legwork.

Recommendation 9

5.34 The committee recommends that the government explore with likeminded States the possibility of introducing a resolution condemning the situation in Xinjiang at the 76th session of the Third Committee of the General Assembly in 2021.

Countering disinformation 5.35 The committee also considers that Australia can play a constructive role to counter false narratives with respect to the evidence base on the abuse and exploitation of Uyghurs in the PRC. This should include supporting evidence-

based research and empowering Uyghur diaspora communities.

Empowering our diaspora community 5.36 The committee is deeply concerned for the wellbeing of Uyghur Australians with family members either subjected to, or vulnerable to, human rights abuses in the PRC. The feeling of not being able to do anything to assist their

loved ones is a contributing factor to the mental anguish felt in these communities. One way to seek to address this sense of helplessness is to empower Uyghur Australians to assist Australian Government efforts and

58

policy development on this topic. The benefits of such empowerment are multifaceted, with government standing to gain from the unique knowledge and expertise of Australia's Uyghur diaspora.

Recommendation 10

5.37 Recalling the recommendation of the References Committee in its report on Issues facing diaspora communities in Australia, the committee recommends that the Department of Foreign Affairs and Trade explore options to better leverage the experience and expertise in Australia's diaspora communities.1

Review of the Modern Slavery Act 5.38 Australia has demonstrated global leadership through its adoption of the Modern Slavery Act 2018. The Act is a welcome framework for addressing modern slavery.

5.39 It is clear that there are some relatively straightforward ways to strengthen the Act, and there is moreover an opportunity to consider these in its upcoming review. The committee sees merit in the suggestions that the Act's requirements be applied to more Australian businesses by lowering the annual turnover threshold for reporting. It further considers that the introduction of penalties for non-compliance appears to be a sensible reform.

5.40 The committee welcomes the government's openness to bringing the scheduled review forward.

Recommendation 11

5.41 The committee recommends that the government initiate the review of the Modern Slavery Act 2018 as soon as possible following the conclusion of the first reporting cycle on 30 June 2021.

Recommendation 12

5.42 The committee recommends that the review of the Modern Slavery Act 2018 considers provisions for its strengthening and broadening, together with the establishment of an independent body to oversee and enforce its implementation.

Introduction of Magnitsky-style legislation 5.43 The committee notes that the introduction of Magnitsky-style legislation could assist the government to address issues such as the current situation of the

1 Senate Foreign Affairs, Defence and Trade References Committee, Issues facing diaspora communities

in Australia, February 2021, p. 126.

59

Uyghurs. It is regrettable that Australia was not able to join international partners in applying sanctions in this regard in March 2021.

Recommendation 13

5.44 The committee supports the work and recommendations of the Joint Standing Committee on Foreign Affairs, Defence and Trade, Human Rights Sub-committee on the use of targeted sanctions to address gross human rights abuses and echoes its recommendation that the government 'enact stand alone targeted sanctions legislation to address human rights violations and corruption similar to the United States' Magnistky Act 2012'.2

Introduction of human rights due diligence obligations for Australian businesses 5.45 Effectively addressing the insidious problem of forced labour will require the efforts not only of government, but also civil society, industry groups, unions

and business. A clear set of guidelines to this effect would assist businesses to undertake such due diligence and provide for the standardisation of due diligence actions across the board.

Recommendation 14

5.46 The committee recommends the government explore introducing guidelines to assist Australian businesses to avoid sourcing products from forced labour.

Senator the Hon Eric Abetz Chair

2 Joint Standing Committee On Foreign Affairs, Defence and Trade, Criminality, corruption and

impunity: should Australia join the Global Magnitsky movement?, December 2020, p. xxi.

61

Additional comment from Senator Rex Patrick

ACTION ON UYGHUR FORCED LABOUR MUST NOT BE DELAYED

1.1 I thank the Committee and the Secretariat for the work they have done in relation to this important inquiry.

1.2 I also thank the many people and organisations that made submissions, especially members of the Australian Uyghur community who face harassment from Chinese Government officials and agents here in Australia and grave threats to family members, relatives and friends in Xinjiang.

1.3 I am very pleased that my Bill has provided the catalyst for this inquiry and the important recommendations adopted by the Committee.

1.4 I fully support the recommendations, including the wider approach to the prohibition of any goods made wholly or in part with forced labour, and I make one additional comment.

1.5 This is not a matter that can be delayed. The Chinese Communist Party’s oppression of the Uyghur people is an immediate and continuing affront to human decency. It requires an immediate response, not a protracted process of government review that may lead to legislative and administrative action in two or three years time.

1.6 The need for prompt action is made clear by reports that the Victorian Government has turned a blind eye to the use of forced Uyghur labour by the Chinese state-owned company KTK Group, which supplies components for the construction of Victoria’s metro railway system.

1.7 The supply of goods produced in whole or part with what amounts to slave labour is an immediate problem of the utmost gravity and must be addressed without delay.

1.8 In this context the Committee should have recommended a clear timeframe for action by the Government; otherwise it is all too likely that the Government’s response to this report and recommended legislative and administrative measures will not be implemented during this current Parliament.

1.9 Any such delay would be unconscionable.

62

Recommendation 1

1.10 That the Government introduce and deal with legislation to implement Recommendation 1 before the 46th Parliament is dissolved; and

Recommendation 2

1.11 Report to the Parliament on its implementation of all other

recommendations no later than 31 December 2021.

Senator Rex Patrick

63

Australian Greens additional comments

Human rights 1.1 The Australian Greens believe that universal human rights are fundamental and must be respected and protected in all countries and for all people. All people must have the right to pursue their well-being in conditions of freedom

and dignity, economic security and equal opportunity.

Forced labour in China 1.2 Witnesses and submissions to the committee have presented credible, devastating evidence of mass detention and forced labor by the Chinese Government. As Human Rights Watch summarised:

Since April 2017, the Chinese government has arbitrarily detained more than one million Uyghurs and other Turkic Muslims in a mass system of political education camps and formal detention centres … There are credible allegations of forced labor across Xinjiang.1

1.3 Amnesty International similarly summarised:

Since 2017, the Chinese government has engaged in a massive campaign of intrusive surveillance, arbitrary detention, political indoctrination and forced cultural assimilation targeting Uyghurs, Kazakhs and other predominantly Muslim people in Xinjiang.

The full scope and nature of human rights abuses in Xinjiang is hard to identify mainly because the Chinese government has steadfastly resisted calls to admit independent monitors into the region, instead allowing only carefully stage-managed tours for select journalists and diplomats.

…over the past two years, there have been extensive reports by researchers and journalists revelating that the re-education campaign had entered a new phase as government officials claimed that all “trainees” had “graduated”. Their investigations suggests that thousands of these “graduates” and other Uyghurs have been forced to work in factories across Xinjiang and in other parts of China under a government-led labour transfer scheme to help with “poverty alleviation”, and that many Uyghur workers have been sent directly from the “re-education camps”.2

1.4 Academic David Brophy also summarised:

The situation facing the Uyghurs, and other non-Han ethnic “minorities” (a term most Uyghurs prefer us to avoid) is truly dire. There are various dimensions to the hard-line policies currently being implemented in

Xinjiang. As part of a security crackdown, justified primarily in terms of counterterrorism and anti-extremism, detention and imprisonment are

1 Submission 19, p. 1.

2 Submission 26, pp. 1-2.

64

being carried out on a mass scale. Much of this is motivated by ideological imperatives, but there is also a socioeconomic dimension to the campaign. This aims at removing Uyghurs from predominantly non-Chinese environments such as the rural regions of southern Xinjiang and integrating them into factory work. This facilitates surveillance but is also intended to eventually turn them into more loyal, Chinese-speaking citizens. Effectively, what is going on is the coercive “proletarianization” of large sections of the Xinjiang population.

To the best of my knowledge, the issue of forced labour arises in two main areas in present-day Xinjiang. First, there are certain detention centres which, alongside political indoctrination and Chinese language training, include an element of “vocational” training. These are production facilities in and of themselves and may be linked to international supply chains.

Secondly, internees who have “graduated” from these centres may find themselves assigned to work in factories either in Xinjiang itself or elsewhere in China. Available reporting has shown that the government is sponsoring companies elsewhere in the country to take quotas of “surplus labour” from Xinjiang, as well as to relocate to Xinjiang and set up production there, so detainees can transition directly to the workplace. Ex-detainees, or Uyghurs recruited directly to these labour transfer programs, appear to have little ability to turn down such assignments. To do so would of course risk landing you back in a worse facility.3

1.5 The Australian Greens strongly support recommendation 13 for the introduction of stand alone targeted sanctions legislation to address human rights violations. The Australian Government has already failed to respond to an order for the production of documents moved by Senator Rice, requiring the Minister to provide a response to the report of the Joint Standing Committee on Foreign Affairs, Defence and Trade on its Inquiry into whether Australia should examine the use of targeted sanctions to address human rights abuses.

Broadening the prohibition on products produced using forced labour to other countries 1.6 A number of submissions and witnesses noted concerns about the selective focus on human rights in China, while Australia and other countries have

failed to address human rights violations within their own borders, or to speak out in support of human rights in other contexts. Academic David Brophy questioned why the prohibition on importing goods produced with forced labour was not broadened:

This part of the bill [proposed subsection 50A(b) proposes adding a PRC-specific clause to the Customs Act 1901. Here I have to query why this particular approach is being taken, and not the alternative, which would be to apply an all-encompassing ban on the importation of goods

3 Submission 9, pp. 1-2.

65

produced by forced labour anywhere. It’s hard for me to understand why the government would take such action against China alone, while refraining from applying the same principle to the rest of the world. China, obviously, is not the sole global offender on this question.4

1.7 Similarly, Walk Free noted in their submission that:

Unfortunately, the use of forced labour in the production of goods and services is not limited to only one country. As the research detailed in our submission notes, there is an urgent need for legislative action to prevent entry of all products tainted by modern slavery into Australia, and thereby deny market access to those who are seeking to profit from the vulnerability of others.

Accordingly, we argue that the proposed amendment to the Customs Act should prohibit the import of any goods produced or manufactured through the use of forced labour … from any country [emphasis original].5

1.8 The submission by academics Justine Nolan and Martjin Boersma argued that the geographic approach in the bill “is a narrow focus that does not acknowledge the pervasive nature of forced labour that features in developed and emerging economies around the globe.” They noted that:

State-sanctioned slave labour can play a substantial role in commodity production in the formal economy and can potentially affect any company and consumer in the world through cross-border sourcing and production.

For example, state-sanctioned slave labour is particularly common in the cotton sector. In Uzbekistan and Turkmenistan, each year during the harvest season citizens are forced out of their regular jobs to spend weeks picking cotton to work.

Another example of state-sanctioned forced labour are goods produced through prison labour. Exporting prison-produced goods is illegal under domestic and international trade laws. United States prison labour is a

billion-dollar industry. Thirty-seven states allow the use of prison labour by private companies. In eight states prisoners are not paid for their work in state-run facilities. The countrywide average for inmates receiving the least for their work is 14 cents per hour, the average for those earning the most is 63 cents per hour.6

1.9 The Human Rights Law Centre (HRLC) also submitted that:

… we have concerns about the current Bill’s exclusive focus on goods imported from Xinjiang and China. Such a narrow ban fails to acknowledge that forced labour is a pervasive global problem which

4 Submission 9, p. 2.

5 Submission 14, p. 1.

6 Submission 16, p. 5.

66

impacts numerous products and services linked to Australian supply chains.7

In their testimony to the Committee, the HLRC stated:

… it is our view that the bill should target the crime and not the country. Around 25 million people worldwide are now working in conditions of forced labour and around two-thirds of those are in our region. A law that singles out imports from just one country or region is discriminatory on its face and also risks being subject to challenge by China under international trade laws. It's critical that Australia's response is principled and nondiscriminatory, while also enabling us to take specific, targeted action where goods are likely to have been made with forced labour, whether in Xinjiang or elsewhere.8

1.10 The Australian Council of Trade Unions also recommended that “The Bill should be expanded to ban all imports of goods produced or manufactured through the use of forced labour from any country.”9

1.11 The Australian Greens support the recommendation in the main Committee report that the Customs Act 1901 and other relevant legislation be amended to prohibit the import of any goods made wholly or in part with forced labour, regardless of geographic origin.

Australia’s failure to adopt measures to prevent forced labour 1.12 A number of submissions provided clear recommendations, which the Australian Government could adopt to strengthen its approach to forced labour across multiple jurisdictions.

1.13 Professor Justine Nolan and Dr Martjin Boersma recommended a number of steps, in addition to expanding the focus of the bill to all countries.

2. The Government should consider the ability to impose fines on importers and end-buyers who import prohibit good and apply such fines for the provision of institutional support for survivors of trafficking and modern slavery.

3. Ratify ILO Protocol of 2014 to the Forced Labour Convention, 1930 (PO29) to ensure the development of holistic legislative framework that will sit alongside the Modern Slavery Act, and a new law that bans the importation of goods produced or manufactured using forced labour.

4. The Government should consider publicly disclosing which goods are prohibited from importation, as well as associated importers, manufacturers and geographical locations.10

1.14 Amnesty International recommended that the Australian government:

7 Submission 41, p. 4.

8 Ms Keren Adams, Legal Director, HRLC, Proof Committee Hansard, p. 19.

9 Submission 44, p. 2.

10 Submission 16, p. 3.

67

Appoints an independent Federal Anti-Slavery Commissioner to provide oversight, with powers to monitor laws and hold domestic and overseas businesses and governments accountable to ensure the protection of human rights.11

1.15 The HRLC recommended that the Australian Government should:

2. Establish a clear mechanism to ensure the effective enforcement of the prohibition, modelled on the US approach, and which includes:

(a) A special investigations unit within the ABF, to identify and investigate suspected cases of imports produced with forced labour, with an open referral system and clear guidance on the evidence standards for imposing an import ban; (b) A presumption of detention where the evidence reasonably, but not

conclusively, indicates that the imports were produced or manufactured by forced labour, and which can be challenged by importers upon provision of appropriate evidence (akin to the US ‘Withhold Release Order’ system); and (c) Publication of customs data from the Australian Government’s

Integrated Cargo System (ICS) to enable the identification of Australian importers that are sourcing goods from businesses overseas that may be involved in forced labour.

3. Introduce further complementary measures to help tackle forced labour in Australian supply chains:

(a) Strengthen the current Modern Slavery Act 2018 (Cth) (MSA) through the addition of penalties for non-compliance and an independent anti-slavery commissioner; (b) Introduce mandatory human rights due diligence obligations for large

Australian companies and those operating in high-risk sectors or locations (like Xinjiang); (c) Publish an annual list of products and source countries which the Australian Government considers to be at high risk of association with

forced labour; and (d) Ratify the ILO Protocol of 2014 to the Forced Labour Convention, 1930 (PO29).12

1.16 This highlights the need for a coordinated, well resourced strategy from the Australian Government. In addition to adopting relevant recommendations in the main committee report, which relate to steps against forced labour, the Australian Government should also ratify the ILO Protocol of 2014 to the Forced Labour Convention.

11 Submission 26, p. 3.

12 Submission 41, p. 5.

68

Recommendation 1

1.17 That the Australian Government ratify the ILO Protocol of 2014 to the Forced Labour Convention.

Racism in Australia 1.18 A number of community members noted concerns about rising xenophobia or racism in Australia. For example, a joint submission from a number of community groups noted:

The ban of such goods should not only be applied to China but to all goods from global sources where goods are made by forced labour, otherwise the world would condemn us for being "racists" or "xenophobic".13

1.19 Dr Anthony Pun OAM stated in his testimony to the Committee:

I'm worried about that because a lot of these anti-Chinese sentiments are creating xenophobic overtones in this country14

1.20 Given concerns from community members about rising Sinophobia and anti-Chinese racism in the community, and given government leaders can intentionally or unintentionally inflame the situation, we call on all government leaders to commit to supporting the Australian-Chinese community, and funding national anti-racism work. In addition to Recommendation 10 in the main committee report, the Australian Government should work urgently to develop an anti-racism strategy.

Recommendation 2

1.21 That the Australian government develop, resource and implement a comprehensive national anti-racism strategy.

Senator Janet Rice Senator for Victoria Greens Foreign Affairs spokesperson

13 Chinese Community Council of Australia, Multicultural Communities Council of NSW, National

Chinese Australia Leadership Group and National Sikh Council of Australia, Submission 6, p. 2.

14 Proof Committee Hansard, p. 33.

69

Appendix 1

Submissions and answers to questions on notice

1 Name Withheld 2 Mr David Noonan  2.1 Supplementary to submission 2

3 Professor Mobo Gao 4 VOICE Australia 5 Mr James Hamilton 6 Joint submission from Chinese Community Council of Australia Inc.,

Multicultural Communities Council of NSW Inc., National Chinese Australian Leadership Group & National Sikh Council of Australia Inc. 7 South Eastern Melbourne Vietnamese Associations' Council Inc (SEMVAC) 8 Australia Tibet Council 9 Dr David Brophy 10 World Uyghur Congress (WUC) 11 Dr Anna Hayes 12 Name Withheld 13 Joint submission from the Uniting Church in Australia, Synod of Victoria and Tasmania and The Salvation Army 14 Walk Free 15 Campaign For Uyghurs 16 Australian Human Rights Institute and UTS 17 Dr Michael Clarke 18 Belgium Uyghur Association 19 Human Rights Watch 20 Inter-Parliamentary Alliance on China 21 Uyghur Human Rights Project 22 Australian Jewish Association 23 Fairtrade ANZ 24 Australian Chamber of Commerce and Industry 25 St Vincent de Paul Society National Council 26 Amnesty International 27 Dr Laura Murphy and Dr Shawn Bhimani 28 Fair Supply Pty Limited 29 Ethical Clothing Australia 30 Prof James Cockayne 31 East Turkistan Australian Association 32 Australia-Hong Kong Link 33 Japan Uyghur Association 34 Mr Benjamin Cronshaw

70

35 Uyghur Association of Victoria 36 Tibet Information Office 37 Professor James Leibold and Ms Kelsey Munro 38 United States Department of State 39 Australian Uyghur Tangritagh Women's Assoc. 40 Slavery Links Australia Inc. 41 Human Rights Law Centre 42 Dr Darren Byler 43 Falun Dafa Association of Australia Inc 44 Australian Council of Trade Unions 45 Mr Adam Turan 46 Name Withheld 47 Ethical Partners Funds Management 48 Be Slavery Free 49 Josephite Counter-Trafficking Project 50 Ms Vicky Xu 51 Dr Katherine Christ and Ms Kyla Raby 52 End Transplant Abuse in China 53 Australian Lawyers for Human Rights 54 Associate Professor Marinella Marmo and Dr Rhiannon Bandiera 55 Mr John Queripel 56 Ms Marhaba Salay 57 Australian Government 58 Global Compact Network Australia 59 Name Withheld 60 British High Commission, Canberra 61 High Commission of Canada 62 Confidential 63 Confidential

Answer to Question on Notice 1 Ethical Clothing Australia - Answer to question on notice from public hearing held on 27 April 2021 (received 29 April 2021) 2 Human Rights Law Centre - Answer to questions on notice from public

hearing held on 27 April 2021 and in writing (received 6 May 2021) 3 Australian Uyghur Tangritagh Women's Assoc. - Answer to question on notice from public hearing held on 27 April 2021 (received 11 May 2021) 4 Australian Border Force - Answers to questions on notice from public hearing

held on 27 April 2021 and in writing (received 14 May 2021) 5 Dr Darren Byler - Answers to question on notice from public hearing held on 27 April 2021 and in writing (received 18 May 2021)

71

6 Department of Foreign Affairs and Trade - Answer to questions on notice from public hearing 27 April 2021 (received 26 May 2021) 7 Department of Home Affairs - Answer to written question on notice (received 26 May 2021) 8 Department of Foreign Affairs and Trade - Answer to questions on notice from

public hearing 27 April 2021 (received 28 May 2021) 9 Professor James Leibold - Answer to questions on notice from public hearing 27 April 2021 (received 7 June 2021) 10 Department of Foreign Affairs and Trade - Answer to question on notice from

public hearing 27 April 2021 (received 16 June 2021)

73

Appendix 2

Public hearing and witnesses

Tuesday, 27 April 2021 Committee Room 2S1 (and via videoconference) Parliament House Canberra

Dr Darren Byler, Private capacity

Ms Vicky Xu, Private capacity

Professor James Leibold, Private capacity

East Turkistan Australian Association  Mr Nurmuhammad Majid, President

Uyghur Association of Victoria  Mr Alim Osman, President

Australian Uyghur Tangritagh Women's Assoc.  Ms Ramilla Chanisheff, President

Ethical Clothing Australia  Ms Angela Bell, National Manager

Human Rights Law Centre  Ms Keren Adams, Legal Director  Ms Freya Dinshaw, Senior Lawyer

Be Slavery Free  Ms Carolyn Kitto, National Co-Director

Slavery Links Australia Inc.  Mr Roscoe Howell, Founding Director

Chinese Community Council of Australia Inc., Multicultural Communities Council of NSW Inc., National Chinese Australian Leadership Group & National Sikh Council of Australia Inc.  Dr Anthony (Tony) Pun, Chair, Multicultural Communities Council of NSW

Inc.

74

Department of Foreign Affairs and Trade  Ms Alice Cawte, Acting First Assistant Secretary, East Asia Division  Mr Neil Hawkins, Assistant Secretary, East Asia Political Branch  Ms Lucienne Manton, Ambassador for People Smuggling and Human

Trafficking  Ms Suzanne McCourt, Assistant Secretary  Mr Ravi Kewalram, Acting Chief Trade Law Officer

Department of Home Affairs  Mr Chad Hodgens, Acting First Assistant Secretary  Ms Kimberlee Stamatis, Acting Assistant Secretary

Australian Border Force  Ms Vanessa Holben, Group Manager, Deputy Comptroller-General Customs  Ms Frances Finney PSM, Assistant Secretary, Modern Slavery and Human

Trafficking  Mr Matthew Duckworth, Assistant Secretary  Ms Erin Dale, Assistant Commissioner