Rights and obligations of refugees: A risk of modern slavery

International Association of Judges

61st Annual Meeting
Marrakesh Morocco 2018

Fourth Study Commission
Submission of Australia


His Honour Judge Josh Wilson QC
Professor of Law Deakin University
Judge of the Federal Circuit Court of Australia

  1. Under Australian law a refugee is a person who meets a very specific definition according to domestic federal legislation entitled the Migration Act, that definition having been incorporated from the international convention the full title of which is “the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951”, as amended by the protocol colloquially called the “Refugees Protocol”, the full title of which is “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a “refugee” as a person who –

    owing to the social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

  2. A person who enters Australia’s territorial limits does so either –
    1. legally, by visa or as a citizen, in all cases with valid, documented status; or
    2. in all other cases, with undocumented status and therefore illegally.
  3. Except in the case of a New Zealand citizen, a person who is not a citizen of Australia is not entitled to enter Australia’s territorial limits without a visa. Ordinarily, persons arriving in Australia with undocumented status are placed in immigration detention.
  4. Australia is extremely strict on the application of its migration laws. Persons with undocumented status encounter serious difficulties. They have no access to economic welfare or public healthcare (except crisis healthcare) and even are unable to obtain registration to enable them to travel on public transport. They have no entitlement to work.
  5. An offshore applicant for entry to Australia must first obtain a visa. If an applicant seeks entry to Australia with an undocumented status, that person is most likely to be a refugee. Ordinarily, such a person applies for a protection visa asserting that Australia owes that person protection obligations for a Convention reason or on the grounds of complementary protection.
  6. A person with undocumented status has an obligation to seek recognition in Australia, ordinarily by the grant of a visa in one form or another issued under the Migration Act. A person is not entitled to remain in Australia unless that person is a citizen or the holder of a valid visa. A person who has entered Australia illegally and has undocumented status will be detected whenever that person attempts to access social security that requires an identification number such as public health, welfare payments or public transport.
  7. A person with undocumented status must comply with all laws, especially criminal laws. That person will be dealt with by the criminal justice system irrespective of his or her undocumented status.
  8. Under Australian law, despite a person having undocumented status, that person nevertheless has certain rights. Those include –
    1. the right to sue in a domestic court to enforce a tort, for example a claim for damages for personal injuries arising out of a motor vehicle accident or a claim for damages for defamation;
    2. the right to sue in a domestic court to seek compensation for breach of contract or to enforce intellectual property rights, for example;
    3. the right to pursue his or her status as a visa holder before government bodies as well as through the courts on judicial review; and
    4. the right to a fair trial.
  9. A person with undocumented status is forbidden from seeking election to public office because only Australian citizens are entitled to pursue such a right.
  10. At a practical level, a person who enters Australia’s territorial limits illegally (and therefore has no documented status) is likely to be placed in immigration detention so that person’s opportunity to enforce whatever rights he or she possesses are very limited.
  11. For the purposes of Australian law a person becomes accepted as a refugee once the Australian government grants that person a protection visa. But the holder of a protection visa does not thereby become an Australian citizen. Statistically, most holders of protection visas subsequently go on to seek Australian citizenship. Usually, those applicants are granted Australian citizenship.
  12. Once a person acquires a protection visa and is therefore recognised under Australian law as having acquired the status of a refugee, that person becomes eligible for –
    1. social security entitlements;
    2. employment and workplace rights;
    3. payment of income tax; and
    4. public healthcare entitlements and others.
  13. A person who seeks the grant of a protection visa must apply to the court if his or her application is rejected at government departmental level. The stages are as follows –
    1. initial application to the relevant government department where the application is determined by a delegate of the minister;
    2. if unsuccessful, the applicant applies for merits review to the Administrative Appeals Tribunal (still administrative in nature);
    3. if unsuccessful, the applicant applies for judicial review asserting the existence of jurisdictional error by the Administrative Appeals Tribunal, such judicial review being conducted before a single judge of the Federal Circuit Court of Australia;
    4. if unsuccessful, the applicant appeals to the Federal Court of Australia before a single judge or a three-judge full court, the Chief Justice determining whether a single judge or full court hears the relevant appeal depending on the complexity of the point of law raised by the appeal;
    5. if unsuccessful, the applicant applies to the final appellate court  in Australia, the High Court of Australia, for special leave to appeal, such special leave application being heard before a bench of two justices;
    6. if special leave to appeal is granted, then the application for protection is heard by a bench of seven justices of the High Court of Australia; and
    7. if the application for special leave to appeal is refused, the decision of the Federal Court of Australia (whether a single judge or three-member bench) stands.
  14. Overwhelmingly, decisions about protection visas rest at the decision of the Administrative Appeals Tribunal. Most applications for a merits review of the delegate’s decision are unsuccessful.
  15. Very few applications for judicial review in the Federal Circuit Court of Australia concerning protection visas succeed and fewer still appeals to the Federal Court of Australia succeed. The rate of successful applications for special leave to appeal to the High Court of Australia is very low indeed. Occasionally, an appellant succeeds before a Full Court of the High Court of Australia.
  16. All levels of the Australian federal judiciary are inundated with migration cases, mostly in respect of persons who have unsuccessfully sought protection visas.
  17. While the appeals of those persons are being dealt with, visa applicants they are granted bridging visas that give them the entitlement to remain in Australia but no entitlement to work. A person whose application for protection has been rejected but who has applied for judicial review or whose appeal is pending is entitled to representation in relation to any crime he or she is alleged to have committed while in Australia.

Risks of modern slavery

  1. On 14 July 2018, Australia became a signatory to the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. Slavery and trafficking in persons is a criminal offence under division 270 and division 271 of the Commonwealth Criminal Code. The provisions of that legislation were the subject of a constitutional challenge to its validity but the High Court of Australia decided in R v Wei Tang1 that the legislation was valid. Certain academic attention has been devoted to the imprecise nature of any definition of slavery under Australian criminal law, especially the indicia of slavery.2
  2. Following the UK’s enactment of the Modern Slavery Act, in December 2017 the Joint Standing Committee on Foreign Affairs, Defence and Trade of the Parliament of the Commonwealth of Australia produced an exhaustive report entitled Hidden in Plain Sight. An Inquiry into establishing a Modern Slavery Act in Australia. The committee highlighted that on latest estimates 40 million people around the world are victims of modern slavery, 4 300 of whom were in Australia, in the form of human trafficking, debt bondage and forced labour, with victims in Australia being migrant workers and backpackers sent to remote regional areas under tied visa conditions. The committee recommended the introduction of the Modern Slavery Act in Australia that addressed –
    1. enacting in one specific piece of legislation the offences existing in division 270 and 271 of the Commonwealth Criminal Code, the offences under the Foreign Passports (Law Enforcement and Security) Act, offences relating to sexual and labour exploitation and offences under the Migration Act;
    2. the creation of a statutory person to be called the Independent Anti-Slavery Commissioner;
    3. mandatory supply chain reporting;
    4. establishing a national compensation scheme for victims;
    5. improving criminal justice responses to modern slavery;
    6. measures concerning orphanage trafficking and child exploitation in residential institutions overseas; and
    7. replacing the phrase “human trafficking and slavery” by the phrase “modern slavery”.
  3. Australia has introduced a bill with a view to enacting the Modern Slavery Act. The bill has not yet been passed by both houses of parliament and therefore it has not received Royal assent so it is not yet operative legislation.
  4. Federal agencies caught by the proposed legislation include the Attorney-General’s Department, the Australian Criminal Intelligence Commission, the Australian Federal Police, the Australian Institute of Criminology, the Commonwealth Director of Public Prosecutions, the Department of Employment, the Department of Foreign Affairs and Trade, the Department of Home Affairs, the Australian Border Force, the Department of Prime Minister and Cabinet and the Department of Social Services along with the Fair Work Ombudsman.
  5. The joint standing committee stated that three key differences existed between the UK legislation and the proposed Australian legislation. They were the provisions relating to the Independent Anti-Slavery Commissioner, the transparency in supply chain reporting and the protections offered to victims. 
  6. Defining and measuring modern slavery remains perennially problematic. The phrase “modern slavery” is used –
    1. by the United Nations Office on Drugs and Crime as an umbrella term that brings together a variety of situations in which a person is forcibly or subtly controlled by an individual or group for the purpose of exploitation subsuming slavery, servitude, trafficking in persons, forced labour, debt bondage, forced marriage and the sale of or sexual exploitation of children;
    2. by the United Nations Convention to Suppress the Slave Trade and Slavery done in Geneva in 1926 as the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised;
    3. by the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children done in Palermo in 2000 as the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation;
    4. by the International Labour Organisation’s Forced Labour Convention done in 1930 in Geneva as amended by the Protocol of 2014 as all work or service exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily; and
    5. by the International Labour Organisation’s Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour done in Geneva in 1999 as –
      1. all forms of slavery or practices such as the sale and trafficking of children, debt bondage and serfdom the labour including forced or compulsory recruitment of children for use in armed conflict;
      2. the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;
      3. the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in international treaties; and
      4. work which, by its nature or circumstances in which it is carried out, is likely to harm the health, safety or morals of children. 
  7. Even without the enactment of the proposed Modern Slavery Act in Australia, various pieces of Australian federal legislation currently in operation in Australia criminalise activities indirectly or directly associated with modern slavery. Those enactments include the Criminal Code, the Crimes Act, the Migration Act, the Fair Work Act, the Marriage Act and the Proceeds of Crime Act. Penalties applicable to those provisions include imprisonment for up to 25 years for certain offences especially child trafficking and slavery, imprisonment for up to 12 years for trafficking in persons or organs, imprisonment for up to 15 years for servitude, imprisonment for up to nine years for forced labour, imprisonment for seven years for deceptive recruiting for labour and imprisonment for up to four years for forced marriage and debt bondage.
  8. In the year 2016 to 2017, being the most recent period during which data was collected, only 138 referrals to the Australian Federal Police were made. These were made up of offences relating to forced marriage, sexual exploitation, labour exploitation, child trafficking, general trafficking and other trafficking or slavery related offences. The low number of referrals and prosecutions does not reflect the prevalence of the crimes because offences go unreported or undetected.
  9. In Australia, the federal government has identified the need to strike at global supply chains, especially those that produce goods in developing countries where labour costs are significantly reduced and consumers, unknowingly, benefit from modern slavery by purchasing goods derived from producers who engage in modern slavery. Operators in specific industries well-known to engage in exploitative conduct prior to Australian retailers purchasing those products include those in the garment industry, the palm oil industry and the fishing industry. Goods produced include bricks, coal, cocoa, coffee, cotton, floor coverings, footwear, gems, rubber, rice, seafood, sugars and textiles.
  10. In formulating its approach to the enquiry undertaken by the joint standing committee, the UK Independent Anti-Slavery Commissioner gave evidence and the committee heard from international rapporteurs across Europe and in the United States of America. The committee accepted recommendations that a newly created Australian Anti-Slavery Commissioner should –
    1. monitor the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015 – 2019;
    2. provide recommendations, advice and guidance to government agencies on the exercise of their functions;
    3. oversee the effectiveness of federal legislation and policies intended to reduce the prevalence of human trafficking, slavery and slavery like practices and respond to corresponding offences; and
    4. collect and request data on those practices.
  11. A very considerable discrepancy existed in the comprehensive report prepared by the joint standing committee as compared with the Modern Slavery Bill that was introduced into the federal parliament. The bill does not make provision for the creation of the Independent Anti-Slavery Commissioner, for example. However, the proposed legislation does take up some of the committee’s recommendations about combating modern slavery insofar as it relates to transparency in supply chains.  Reporting requirements are deliberately broad and they apply to an equally deliberately broad classification of entities that are required to report. Those include, but are not limited to, companies, businesses, organisations, religious bodies, federal government agencies and public bodies, the Australian government, bodies corporate, unincorporated associations or bodies or persons, sole traders, partnerships, trusts, superannuation funds and approved deposit funds. 
  12. Bodies that are required to report must provide a modern slavery report as approved.
  13. Mandatory supply chain reporting will apply to entities with a revenue threshold of $100 million. Entities with a lower revenue threshold have an opt-in option. The joint committee focused on the publication of a list of at risk industries, products, areas and people. Ultimately, the legislation did not embrace that nor did it embrace the comprehensive regime endorsed by the committee for victim support measures. 
  14. The joint standing committee highlighted labour exploitation particularly among migrant workers in Australia. Personal experience in cases involving workers holding limited visas show the exploitation can be in many varied forms including –
    1. unscrupulous employers hiring migrants to work in conditions (often in restaurants offering national cuisine) where the worker is forced to accept wages less than the prescribed minimum wage upon the threats that the employer will turn the worker over to migration authorities for deportation if the worker complains;3 and
    2. an unscrupulous hire placement agency hiring a visa holder to work in the automotive industry then paying the migrant less than his proper wages, instead applying part of the visa holder’s wages towards the agent’s purchase of a luxury car.4
  15.  Other cases, although not mine, have addressed underpayments to sex workers.
  16. The Modern Slavery Bill in Australia is expected to be passed and to be operative in the year 2019.

September 2018                                                        His Honour Judge Josh Wilson QC


1 (2008) 238 CLR 1

2 See, for example, Irina Kolodizer, R v Tang: Developing an Australian Anti-slavery jurisprudence (2009) 31 Sydney Law Review 487

3 Fair Work Ombudsman v Shaik [2016] FCCA 2345

4 Fair Work Ombudsman v Greenan (No 2) [2017] FCCA 2059