2019-2021

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

SENATE

CUSTOMS AMENDMENT (BANNING GOODS PRODUCED BY
FORCED LABOUR) BILL 2021

EXPLANATORY MEMORANDUM

(Circulated by authority of Senator Patrick)

CUSTOMS AMENDMENT (BANNING GOODS PRODUCED BY FORCED LABOUR) BILL 2021

OUTLINE

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

The Australian Parliament has expressed strong support for international efforts to suppress modern slavery.  

Estimates of the number of slaves across the world range from around 38 million to 46 million and the use of forced labour within global production chains has emerged as a major humanitarian concern. 

The issue of modern slavery has also been highlighted by the well documented human rights abuse of hundreds of thousands of Uyghur people in Xinjiang Province in China.  The massive and systematic oppression of the Uyghur people by the Chinese Government is undeniable.  The exploitation of detained Uyghurs as a captive labour force is clear. 

The need to address this pressing problem caused Senator Patrick to introduce the Customs Amendment (Banning Goods Produced By Uyghur Forced Labour) Bill 2020 on 8 December 2020.  The purpose of that Bill was to amend the Customs Act 1901 (Customs Act) to ban the importation of goods produced or manufactured in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China and goods produced or manufactured in the People’s Republic of China through the use of forced labour within the meaning of the Criminal Code. 

The Customs Amendment (Banning Goods Produced By Uyghur Forced Labour) Bill 2020 was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the Committee) which reported on 17 June 2021.  The Committee endorsed without reservation the objectives of that Bill and went on to observe that “[t]he 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.”

In considering the Customs Amendment (Banning Goods Produced By Uyghur Forced Labour) Bill 2020 in the wider context of modern slavery, the Committee took the view that it would be preferable to introduce a global ban on the import to Australia of goods produced by forced labour.  The Committee accordingly recommended 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 1). 

The Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2021 seeks to implement the Committee’s recommendation through amendment to the Customs Act to impose an absolute ban on the importation of goods produced in whole or part by forced labour.  The proposed ban is global in nature and does not specify any geographic origin for its application. 

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

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

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

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

NOTES ON CLAUSES

Clause 1: Short Title

1.                  This clause is a formal provision and specifies that the short title of the Act may be cited as the Customs Amendment (Banning Goods Produced By Forced Labour) Act 2021.

Clause 2: Commencement

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

Clause 3: Schedules

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

Schedule 1 – Amendments

Customs Act 1901

Item 1

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

Item 2

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

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

Item 3

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

Item 4

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

Statement of Compatibility with Human Rights

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

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

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

Overview of the Bill

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

Human rights implications

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

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

Conclusion

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

Senator Patrick