Modern Slavery Reform – Punishing the victims and why this must stop – Non-Punishment Principle in Australia

Article Author: Anne O'Donoghue

Modern slavery and skilled migration are interconnected. Modern slavery exists in many situations, including where sponsoring companies take advantage of migrant workers who often have limited English and can be forced to undertake illegal activities and then subsequently threatened by their employer that they will be reported to immigration authorities and deported.

The Australian Government has recognised these problems and is trying to prevent these cycles of abuse. To this end, Australia’s Modern Slavery Act was enacted in 2018.  Currently, the non-punishment principle is not Australian policy or law.  However, in Australia there has been a discussion about introducing legislation which will protect victims for offences committed during a period when a migrant worker has been exploited.

As part of 5 general principles, the National Action Plan to Combat Trafficking and Slavery 2015-19 adopted a victim-centred approach to support trafficked people regardless of their immigration status, and to afford them access to an effective remedy.^[1] There was however no consideration of the ‘protection of trafficked persons accused of committing crime’.^[2] The same approach was included in the National Action Plan to Combat Modern Slavery 2020- 2025, where there was only a brief mention of a review into protections, defences, and remedies.^[3]

On 2 September 2022 as part of the Australian Jobs and Skills summit, a comprehensive review of Australia’s immigration system was announced (the Review).  The Review will be undertaken by Dr Martin Parkinson AC PSM, Dr Joanna Howe and Mr John Azarias‘[4]

This Review comes at a time when migration processes in Australia are facing severe backlogs and extended processing times due to the influx of migrants returning to Australia after the border closures were eased in early 2022. The Review terms of reference are extensive and as a result any report by the Review will need to outline a clear pathway to permanent residency and citizenship to reduce the exploitation of migrant workers and at the same time foster enhanced integration (in relation to people, trade, and supply chain links) with our international friends and partners.’

There are numerous matters that will need to be discussed and considered as part of this Review.  However at least three key concerns that will need to be aired are as follows:

• the total dependency of migrant worker permanent residency on their employer sponsors, and whether it would be preferable to allow migrant workers under temporary residence visas to work for multiple employers.
• the development of well-suited visa product and/or products for migrants who have experienced labour exploitation at the hands of their employer sponsors. In many cases, migrants are on bridging visas, and the current established process for asking the Minister to review a particular case by reference to the Administrative Appeal Tribunal.  Over many years, it has been demonstrated that this process is not as effective as it should be and in fact often works against the non-punishment rule.
• A mechanism to avoid double jeopardy for those situations where a migrant worker has been involved in criminal activity during a period of visa exploitation.  This may require legislative amendment and sentencing guidelines to assist judicial officers so that matters prevent being retried in their migration matters. For example see: ‘Australian carpentry giant exploiting migrant workers were finally barred by Border Force from sponsoring foreign workers^[5]

This topic was discussed at the International Bar Associations Miami Conference and was extremely well received and described as an amazing session.

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