Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MODERN SLAVERY AMENDMENT (AUSTRALIAN ANTI-SLAVERY
COMMISSIONER) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
MODERN SLAVERY AMENDMENT (AUSTRALIAN ANTI-SLAVERY
COMMISSIONER) BILL 2023
GENERAL OUTLINE
1. The purpose of the Bill is to amend the Modern Slavery Act 2018 (Cth) ("the Act") to
establish the Australian Anti-Slavery Commissioner (Commissioner) as an independent
statutory office holder within the Attorney-General's portfolio.
2. There are several pillars to Australia's approach to combat modern slavery. The
Commissioner would further strengthen Australia's efforts by providing an independent
pillar to Australia's comprehensive response to modern slavery. The Commissioner
would provide an independent mechanism for victims and survivors, business and civil
society to engage on issues and strategies to address modern slavery.
3. The Bill delivers on a key election commitment made by the Australian Government to
establish the Anti-Slavery Commissioner, as part of its Tackling Modern Slavery package.
The Bill also gives effect to the Budget 2023-24 announcement on 9 May 2023 that the
Attorney-General, the Hon Mark Dreyfus KC MP, would establish this new role.
Background
Modern slavery risks in Australia
4. Modern slavery practices are major violations of human rights, are serious crimes and can
affect any country. Modern slavery has become more prevalent globally and is complex,
ever evolving and hidden.
5. In 2019, the Australian Institute of Criminology (AIC) released research which, for the
first time, estimated the extent of human trafficking and slavery in Australia. From
2015-16 to 2016-17 it was estimated there were between 1,300 and 1,900 victims of
human trafficking and slavery in Australia. Significantly, the AIC research also indicated
that for every victim detected there are approximately four undetected victims.
6. There is also a risk Australian businesses are exposed to modern slavery risks and that
some goods and services in Australia are tainted by modern slavery. This is why Australia
established the Act. Commencing on 1 January 2019, the Act introduced a modern
slavery reporting requirement that requires certain large businesses and other entities in
Australia to make annual public reports on their actions to assess and address modern
slavery risks in their operations and supply chains. Since the commencement of the Act,
over 9,000 entities have had modern slavery statements published on the Government's
Modern Slavery Statements Register, reporting on the risks of modern slavery in their
operations and supply chains, measures they are taking to address these risks, and the
effectiveness of these measures. The Act has increased transparency in supply chains and
has elevated awareness among the Australian business community of modern slavery
risks. It provides businesses, researchers, investors, consumers, and government an
unprecedented window into the operations and supply chains of large businesses based or
operating in Australia.
2
Support for an Australian Anti-Slavery Commissioner
7. Civil society, business, and academia have long advocated for a Commissioner who could
raise awareness of modern slavery in Australia, provide independent information and
support to victims and survivors, and targeted support to businesses to identify and
address modern slavery risks in their supply chains.
8. The 2017 Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT)
inquiry report, Hidden in Plain Sight and the 2017 Joint Committee on Law Enforcement
inquiry report, An inquiry into human trafficking, slavery and slavery-like practices also
explored the establishment of a Commissioner. Both reports made recommendations for
Australian modern slavery laws that would establish an independent Commissioner.
9. The independent statutory review of the Act by Professor John McMillan AO, tabled in
Parliament in May 2023, further explored the potential role of an independent
Commissioner in relation to the Act. The extensive consultations and submissions to the
review highlight continued strong support for the establishment of an independent, high-
profile specialist Commissioner.
Outline of the Bill
10. The Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023
amends the Modern Slavery Act to establish the Commissioner.
11. The Commissioner's functions would allow the Commissioner to work with Government,
business and civil society to support compliance with the Act, improve the transparency
of supply chains, and help fight modern slavery in Australia and abroad.
12. The Commissioner's functions would complement the work undertaken across the
Australian Government to prevent and combat all forms of modern slavery. This includes
complementing the roles performed by the Attorney-General's Department and other
government agencies, and the Ambassador to Counter Modern Slavery, People
Smuggling and Human Trafficking (who leads on Australia's international efforts to
tackle modern slavery). The Commissioner would not have investigative or coercive
powers that would enable them to compel others to provide information needed to
investigate individual complaints or allegations. The investigation of individual cases, or
suspected cases, is performed by Australia's law enforcement agencies. The
Commissioner would work with government agencies to support and enhance existing
initiatives while also progressing new initiatives to address modern slavery.
FINANCIAL IMPACT
13. The Government allocated $8.0 million over four years at Budget 2023-24, and
$2.0 million a year ongoing, for the establishment of an Australian Anti-Slavery
Commissioner.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023
14. This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
15. This Bill establishes an Australian Anti-Slavery Commissioner (the Commissioner) as an
independent statutory office holder.
16. The Bill gives the Commissioner functions that would allow the Commissioner to work
with Government, business and civil society to support compliance with the Act, improve
transparency of supply chains, and thereby help combat modern slavery in Australia and
abroad.
17. The Bill sets out that the Commissioner has discretion in performing or exercising these
functions, and they are not subject to direction from anyone when doing so. In performing
their functions, the Commissioner must have regard to Australia's international
obligations.
18. The Bill includes relevant safeguards to ensure the integrity, transparency and
accountability of the Commissioner and their Office, including in relation to how funds
are used and managed.
19. The Bill sets out that the Commissioner will be appointed by the Governor-General,
through a merit-based appointment process, for a term of up to 5 years. A Commissioner
may be reappointed once. The Bill outlines the circumstances in which a person can act as
the Commissioner, and provides the Commissioner may resign, or the Commissioner's
appointment may be terminated.
20. The Bill provides that the staff assisting the Commissioner are to be Australian Public
Service employees in the Attorney-General's Department, whose services are made
available by the Secretary of the Department. The Commissioner may also engage
contractors or consultants in relation to the performance of their functions.
21. The Commissioner is accountable to Parliament through the preparation and publication
of strategic plans and tabling of annual reports.
4
Human rights implications
22. The Bill engages, or has the potential to engage, the following rights or freedoms:
a. Right to freedom from slavery and forced labour contained in article 8 of the
International Covenant on Civil and Political Rights (ICCPR)
b. Right to freedom from torture and other cruel, inhuman and degrading treatment
or punishment contained in article 7 of the ICCPR
c. Right to protection from exploitation, violence and abuse contained in article
20(2) of the ICCPR, article 19(1) of the Convention on the Rights of the Child
(CRC) and article 16(1) of the Convention on the Rights of Persons with
Disabilities (CRPD)
d. Rights of the child contained in article 32 of the CRC
e. Right to privacy and reputation in article 17 of the ICCPR
f. Rights to respect for family contained in article 23 of the ICCPR
g. Right to work and just and favourable conditions of work contained in articles 6
and 7 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR)
Right to freedom from slavery and forced labour
23. The right to freedom from slavery and forced labour is contained in article 8 of ICCPR.
This right provides that no one shall be held in slavery or servitude and that no one shall
be required to perform forced or compulsory labour. The right to freedom from slavery
and forced labour is an absolute right, meaning that it cannot be limited or qualified under
any circumstance.
24. The Bill engages and promotes the right to freedom from slavery and forced labour by
establishing an Australian Anti-Slavery Commissioner to help prevent and respond to
modern slavery in Australia and abroad.
25. The Commissioner will work across Government, industry and civil society to support
compliance with the Act, including through the provision of targeted advice and support.
26. The Commissioner will play an influential role in the promotion of evidence-based policy
and practice and the education of the broader community about modern slavery. The
Commissioner will also be a leader in supporting, engaging and empowering victims and
survivors of modern slavery.
27. By strengthening Australia's response to modern slavery, this Bill will further Australia's
commitment to upholding the absolute right to freedom from slavery and forced labour.
Right to protection against exploitation, violence and abuse, and right to freedom from
torture and other cruel, inhuman or degrading treatment or punishment
5
28. The right to protection against exploitation, violence and abuse is contained in article
20(2) of the ICCPR, article 19(1) of the CRC and article 16(1) of the CRPD. This right
provides that state parties are obliged to take all appropriate legislative, administrative,
social, educational and other measures to protect the persons whose rights are guaranteed
by those treaties from all forms of exploitation, violence and abuse. Exploitation, violence
and abuse includes the trafficking of adults and children.
29. The right to freedom from torture and other cruel, inhuman or degrading treatment or
punishment is contained in article 7 of the ICCPR, and articles 1, 2, 3, 13, 14 and 15 of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. This right provides that no one shall be subjected to torture or to cruel
inhuman or degrading treatment or punishment. The right to freedom from torture and
other cruel, inhuman or degrading treatment or punishment is an absolute right, meaning
that it cannot be limited or qualified under any circumstance.
30. The Bill promotes these rights as a legislative measure intended to combat modern
slavery.
31. Modern slavery is fundamentally concerned with exploitation. Under the Act, 'modern
slavery' includes conduct which would be a criminal offence under Division 270 or
Division 271 of the Criminal Code Act 1995. This encompasses a range of serious
exploitative practices, including slavery and the slavery-like practices of servitude, forced
labour, forced marriage, debt bondage and deceptive recruiting for labour or services.
These offences involve varying degrees of limitations on a person's freedom. 'Modern
slavery' in the Act also includes trafficking in persons, trafficking in children, trafficking
in persons for the purpose of organ removal, and harbouring a victim. Exploitative
practices can lead to serious physical and psychological harm, and even death.
32. The Bill establishes a Commissioner who will work to protect individuals at risk of
modern slavery, including through engaging with victims and survivors of such
exploitative practices and organisations working to prevent modern slavery.
33. By strengthening Australia's response to modern slavery, this Bill will further Australia's
commitment to upholding the absolute right to freedom from torture and other cruel,
inhuman or degrading treatment or punishment, and the right to protection against
exploitation, violence and abuse.
Rights of the child
34. The rights of the child are contained in the CRC, with article 32 providing the right of the
child to be protected from economic exploitation and from performing any work that is
likely to be hazardous or to interfere with the child's education, or to be harmful to the
child's health or physical, mental, spiritual, moral or social development.
35. Under the Modern Slavery Act 2018 (Cth) the definition of 'modern slavery' includes
conduct that could constitute 'the worst forms of child labour', as defined in article 3 of
ILO Convention 182. Children are vulnerable to becoming victims and survivors of
modern slavery, including through practices such as trafficking, forced labour and forced
marriage.
6
36. This Bill engages and promotes this right by establishing an Australian Anti-Slavery
Commissioner to help prevent and respond to modern slavery in Australia and abroad,
including through educating the community and advocating to Government for better
policy and practice.
Right to privacy and reputation
37. The right to privacy and reputation is contained in article 17 of the ICCPR. This right
prohibits interference with privacy and attacks on reputation, including the prohibition on
unlawful or arbitrary interferences with a person's privacy, family, home and
correspondence.
38. The Bill engages this right as the Commissioner has a function to collect, analyse,
interpret and disseminate information relating to modern slavery. The Commissioner will
also engage victims of modern slavery to inform measures for addressing modern slavery,
and through the exercise of this function, there is a possibility that the Commissioner may
handle personal information of victims.
39. These functions are necessary to achieve the legitimate objective of the Bill, which is to
establish a Commissioner who will work to help prevent and respond to modern slavery
in Australia and abroad. It is reasonable to expect that the Commissioner, in the exercise
of their functions, will obtain, evaluate and publish a range of information related to
modern slavery.
40. The functions that empower to the Commissioner to handle information are also
proportionate, as they limit the right to privacy no more than required to achieve the
purpose of the Bill. The Commissioner does not have the power to compel individuals,
reporting entities, or agencies to provide them with information. They will handle
information that is publicly available, has been voluntarily provided to them, or provided
to them by a Commonwealth agency at their request and where practicable, where the
information is relevant to the performance of their functions.
41. In instances where a Commissioner has obtained sensitive information (as defined by the
Bill), the Bill contains safeguards that limit the publication of such information in the
Commissioner's strategic plans and annual reports.
42. In instances where the Commissioner has requested information from a Commonwealth
agency, the agency must comply so far as it is reasonably practicable to do so. If the
Commissioner identifies that personal information from agencies is required, the
Commissioner, and the agencies providing information to the Commissioner, are required
to comply with the Privacy Act 1988 (Cth).
7
Right to respect for the family
43. The right to respect for the family is contained in article 23 of the ICCPR. Article 23(3)
provides that no marriage shall be entered into without free and full consent of the
intending spouses.
44. Forced marriage is a slavery-like practice, a form of gender-based violence and an abuse
of human rights. Under the Modern Slavery Act 2018 (Cth) the definition of 'modern
slavery' includes conduct that could constitute a forced marriage offence under
Division 270 of the Criminal Code Act 1995 (Cth).
45. This Bill engages and promotes this right by establishing an Australian Anti-Slavery
Commissioner to help prevent and respond to modern slavery, including forced marriage.
Right to work and just and favourable conditions of work
46. The right to work is contained in article 6(1) of the ICESCR, and the right to enjoy just
and favourable conditions of work is contained in article 7 of the ICESCR. Article 7
encompasses a number of elements including remuneration, which at a minimum requires
fair wages and equal remuneration for work of equal value without distinction of any
kind, safe and health working conditions, equal opportunity to be promoted in
employment to the appropriate higher level, and rest, leisure and reasonable limitation of
work hours and periodic holidays.
47. The Bill engages and promotes the right to work and rights at work by strengthening
Australia's response to combating modern slavery in business' operations and supply
chains. The establishment of the Australian Anti-Slavery Commissioner will support
businesses to undertake best practice when identifying and responding to modern slavery
risks in their supply chains.
48. By strengthening Australia's response to modern slavery, this Bill will further Australia's
commitment to upholding the right to work and just and favourable conditions of work.
Conclusion
This Bill is compatible with human rights because it promotes human rights and, to the extent
that measures in the Bill may limit human rights, each of these limitations is necessary,
reasonable and proportionate.
8
NOTES ON CLAUSES
Preliminary
Clause 1 Short Title
1. This clause provides for the short title of this Act to become the Modern Slavery
Amendment (Anti-Slavery Commissioner) Act 2023 ('the Act').
Clause 2 Commencement
2. This clause provides for the commencement of each provision of this Act.
3. Subsection (1) sets out the commencement of the whole of this Act as a day to be fixed by
Proclamation. A fixed date by Proclamation would enable the alignment of the
recruitment and appointment of the inaugural Australian Anti-Slavery Commissioner with
the commencement of the legislation that enables their establishment and operations.
4. The Proclamation period is limited to a period of 12 months. If Proclamation does not
occur within 12 months from when the Bill receives Royal Assent, the Act would
automatically commence on the day after 12 months has passed (since Royal Assent). A
12-month commencement period is appropriate considering the work necessary to recruit
and appoint the inaugural Commissioner and their staff. The 12-month period is a finite
period and is intended to ensure that commencement is not delayed beyond what is
reasonably necessary to establish the Commissioner and their Office.
Clause 3 Schedules
5. This clause provides that an Act specified in a Schedule to the Bill is amended in
accordance with the items set out in the relevant Schedule.
Schedule 1 - Amendments
Item 1 - Title
6. Item 1 would amend the title to insert 'to establish the Australian Anti-Slavery
Commissioner' after 'risks'.
Item 2 - Section 3
7. Item 2 would insert that the Act establishes the Australian Anti-Slavery Commissioner,
sets out the Commissioner's functions and deals with other matters relating to the role of
the Commissioner.
9
Item 3 - Section 4
8. Item 3 inserts the following definitions into section 4 of the Act:
• Commissioner means the Australian Anti-Slavery Commissioner referred to in
section 20B.
• paid work means work for financial gain or reward (whether as an employee, a
self-employed person or otherwise).
• sensitive information means information that would or might:
o prejudice the security, defence or international relations of Australia; or
o prejudice the investigation of, or the prosecution of a person for, an offence; or
o endanger the life or safety of any person.
• strategic plan means a strategic plan prepared under section 20X and includes a
strategic plan as revised under that section.
9. Sensitive information may include classified or unclassified information.
10. The strategic plan would set out the Commissioner's key objectives, priorities, and
activities over the term of the plan, and how the Commissioner intends to monitor and
evaluate their activities. To ensure efficient use of public resources, the Commissioner
must consult the Minister and the Secretary of the Department in the preparation or
revision of their strategic plan, and publish it on their website as soon as practicable
afterwards. The Commissioner will report on the outcomes of their activities in their
annual reports, which will be tabled in Parliament before being published on their
website.
Item 4 - After Part 3
11. Item 4 inserts a new Part 3A - 'Australian Anti-Slavery Commissioner', which would
establish an Australian Anti-Slavery Commissioner.
12. New Part 3A would include new Division 1, Division 2, Division 3, Division 4 and
Division 5.
Division 1 -- Preliminary
Section 20A Simplified outline
13. New section 20A provides a simplified outline of Part 3A of this Act to assist the reader.
This outline is not intended to be comprehensive and readers should rely on the
substantive provisions.
10
Division 2 -- Establishment, functions and powers of Australian Anti-Slavery
Commissioner
Section 20B Australian Anti-Slavery Commissioner
14. New section 20B provides there is to be an Australian Anti-Slavery Commissioner.
Provisions relating to the appointment of the Commissioner are contained in Part 3A,
Division 3 of this Act.
Section 20C Functions of Commissioner
15. New section 20C sets out the Commissioner's functions. Subsection (1) outlines that
these functions are:
• to promote compliance with this Act (paragraph (1)(a)).
• to support Australian entities and entities carrying on business in Australia to address
risks of modern slavery practices in their operations and supply chains, and in the
operations and supply chains of entities they own or control (paragraph (1)(b))
• to support collaboration and engagement within and across sectors in relation to
addressing modern slavery (paragraph (1)(c))
• to support victims of modern slavery by providing information in relation to
government and non-government resources, programs and services (paragraph (1)(d))
• to engage with, and promote engagement with, victims of modern slavery to inform
measures for addressing modern slavery (paragraph (1)(e))
• to support, encourage and conduct education and community awareness initiatives
relating to modern slavery (paragraph (1)(f))
• to support, encourage, conduct and evaluate research about modern slavery
(paragraph (1)(g))
• to collect, analyse, interpret and disseminate information relating to modern slavery
(paragraph (1)(h))
• to consult and liaise with Commonwealth, State and Territory governments, agencies,
bodies and office holders on matters relating to modern slavery (paragraph (1)(i))
• to consult and liaise with other persons and organisations on matters relating to
modern slavery (paragraph (1)(j))
• to advocate to the Commonwealth Government on matters relating to modern slavery,
including for continuous improvement in policy and practice (paragraph (1)(k))
• at the request of the Minister, to provide advice to the Minister on matters relating to
modern slavery (paragraph (1)(l))
• such other functions as are conferred on the Commissioner by this Act or any other
law of the Commonwealth (paragraph (1)(m))
• to do anything incidental or conducive to the performance of any of the above
functions (paragraph (1)(n))
16. These functions would enable the Commissioner to work collaboratively with
Government, business, civil society, and other key stakeholders to support compliance
with the Act, increase transparency in supply chains and fight modern slavery in Australia
and abroad.
11
17. References to victims reflect drafting conventions and are intended to also encapsulate
individuals who identify as survivors of modern slavery or individuals with lived and
living experience.
18. The Commissioner may also engage directly with victims, and promote engagement with
victims of modern slavery to ensure victims' views and voices are heard and reflected in
modern slavery policy and strategies. Through direct engagement with victims, the
Commissioner may advocate on behalf of victims for improvements to the range of
policies and services available to address and respond to modern slavery. While the
Commissioner may provide information to victims they are not expected to advocate on
behalf of individual circumstances.
19. Subsection 2 also clarifies that the Commissioner may not investigate, or resolve
complaints concerning individual instances or suspected instances of modern slavery.
Law enforcement agencies conduct these activities.
20. The Commissioner's functions would enhance government actions to fight modern
slavery. For example, the Commissioner could undertake a range of activities that
promote compliance with the Modern Slavery Act. These would be distinct from the
functions of the Modern Slavery Business Engagement Unit in the Attorney-General's
Department, which is responsible for administering the Act, providing guidance and
awareness raising to reporting entities on compliance with the Act, assessing modern
slavery statements, and maintaining the Modern Slavery Statements Register. The
Commissioner would not, as general practice, provide tailored advice or financial support
to entities to complete their modern slavery statements but may support businesses by
developing targeted resources which promote best practice in addressing modern slavery
risks.
21. The Commissioner's consultation and liaison functions would ensure alignment of the
Commissioner's activities with those of governments, business and civil society. They
may also expand connections within and between sectors that drive continuous
improvement in strategies to prevent, identify, and address modern slavery.
22. The Commissioner may engage with individuals and organisations based abroad in
performing the Commissioner's functions. For example, engaging with victims overseas
or with existing counterparts, such as the UK's Independent Anti-Slavery Commissioner
or relevant United Nations Special Rapporteurs. However, the Commissioner will not
undertake functions performed by Australia's Ambassador to Counter Modern Slavery,
People Smuggling, and Human Trafficking, nor represent the Australian Government at
international meetings or events.
Section 20D Commissioner must have regard to international obligations
23. New section 20D provides that the Commissioner must have regard to Australia's
international obligations. A range of international treaties are relevant to modern slavery
practices and possible responses which the Commissioner will need to have regard to.
Section 20E Application of finance law
24. New section 20E clarifies that the Commissioner is an official of the Attorney-General's
Department for financial accountability purposes only.
25. This provision supports accountability for use of public money.
12
Section 20F Arrangements relating to staff of the Department
26. Subsection (1) provides that the Secretary may make available Australian Public Service
(APS) staff in the Attorney-General's Department to assist the Commissioner in the
performance or exercise of their functions or their powers.
27. Subsection (2) provides the APS staff are subject to the direction of the Commissioner.
28. While under the direction of the Commissioner, APS staff must still abide by the Public
Service Act 1999.
Section 20G Contractors
29. New section 20G allows the Commissioner to engage contractors through written
agreement to assist them to perform or exercise their functions or powers. For example,
this could include engaging a service provider to ensure services to victims to support
their engagement with the Commissioner.
Section 20H Consultants
30. New section 20H allows the Commissioner to seek the advice of consultants in the
performance of their functions. For example, this could include engaging experts in the
field of business and human rights, or victim engagement, to provide advice to the
Commissioner to support delivery of their functions or development of their strategic
plan.
Section 20J Independence of Commissioner
31. Subsections (a) and (b) clarify respectively that the Commissioner has complete
discretion in performing or exercising their functions and powers, and is not subject to
direction from anyone.
Section 20K Commissioner not to be sued
32. New section 20K provides that the Commissioner and those working under their direction
or authority are not be sued for an act done or omitted to be done in the performance or
said performance of their functions, or exercise or said exercise of their powers. This is
vital to the Commissioner and their staff being able to perform their functions effectively,
without fear of legal proceedings for performing their duties, which would require public
communication about areas for improvement in modern slavery responses across sectors.
13
Division 3 -- Appointment
Section 20L Appointment of Commissioner
33. New section 20L provides the administrative arrangements for the appointment of the
Commissioner. It provides that Governor-General would appoint the Commissioner by
written instrument on a full-time basis and a person must not be appointed under unless
the Minister is satisfied that:
• the person has appropriate qualifications, knowledge or experience in one or more of
the following fields (paragraph (2)(a)):
o human rights issues relating to business practices (subparagraph (i));
o regulation (subparagraph (ii));
o public policy relating to modern slavery or related forms of human exploitation
(subparagraph (iii));
• selection of the person for appointment is a result of a process that (paragraph (2)(b)):
o that was merit-based (subparagraph (i)), and
o included public advertising of the position (subparagraph (ii)).
34. Subsection (3) explains that paragraph (2)(b) does not apply in relation to the
reappointment of a person who immediately before the start of the period of
reappointment, held office as the Commissioner under a previous appointment.
Section 20M Obligation to fill vacancy as soon as practicable
35. New section 20M provides that a new Commissioner or an acting Commissioner must be
appointed as soon as possible should the Commissioner role become vacant.
Section 20N Period of appointment
36. New section 20N provides the term of the Commissioner's appointment.
37. Subsection (1) provides the Commissioner holds office for a period specified in the
instrument of appointment, and this period must not exceed 5 years.
38. This period would enable the Commissioner to develop their strategic plan and have
sufficient time to achieve goals articulated in the plan, evaluate activities, and report on
outcomes.
39. Subsection (2) provides a person may be reappointed once.
40. A person's reappointment may be for consecutive terms or non-consecutive terms.
14
Section 20P Acting appointments
41. Subsection (1) provides that the Minister may, by written instrument, appoint a person to
act as the Commissioner:
• during a vacancy in the office of the Commissioner (whether or not an appointment
has previously been made to the office) (paragraph a) or
• during any period, or during all periods, when the Commissioner (paragraph b):
o is absent from duty or from Australia (subparagraph (i)), or
o is, for any reason, unable to perform the duties of the office (subparagraph (ii)).
42. Subsection (2) provides that a person must not be appointed to act as the Commissioner
unless the Minister is satisfied that the person has appropriate qualifications, knowledge
or experience to be appointed as the Commissioner.
43. This section is consistent with the appointment requirements set out in Division 3, section
20L - Appointment of Commissioner.
Division 4 -- Terms and conditions etc
Section 20Q Remuneration and allowances
44. Subsection (1) provides that the Commissioner would be paid remuneration determined
by the Remuneration Tribunal or if no determination is made they would be paid
remuneration prescribed by the rules.
45. Subsection (2) provides that the Commissioner is to be paid the allowances that are
prescribed by the rules.
46. Subsection (3) provides section 20Q operates subject to the Remuneration Tribunal Act
1973.
Section 20R Leave of absence
47. Subsection (1) provides that the Remuneration Tribunal would determine the
Commissioner's recreation leave entitlements.
48. Subsection (2) provides the Minister may allow the Commissioner a leave of absence
other than recreation leave on terms and conditions as to remuneration or otherwise that
the Minister determines.
Section 20S Other paid work
49. New section 20S provides that the Commissioner must not do any paid work outside of
their Commissioner's duties without the Minister's approval.
50. The intention of new section 20S is to prevent conflicts of interests arising which would
prevent the Commissioner from performing their functions properly and spending public
money appropriately.
15
Section 20T Resignation
51. Subsection (1) provides that the Commissioner must give the Governor-General a written
resignation if they want to resign from the appointment.
52. Subsection (2) provides that the written resignation takes effect on the day the
Governor-General receives it, or on the day that is specified in the written resignation.
Section 20U Termination of appointment
53. Subsection (1) provides the Governor-General may terminate the appointment of the
Commissioner:
• for misbehaviour (paragraph a) or
• if the Commissioner is unable to perform the duties of the Commissioner's office
because of physical or mental incapacity (paragraph (b)).
54. Misbehaviour includes behaviour that is inconsistent with Australian Public Service
values and laws.
55. Termination of appointment due to physical or mental incapacity relates to incapacity that
cannot be overcome with reasonable adjustments that enable the appointed person to
continue to effectively perform the Commissioner role.
56. Subsection (2) provides the Governor-General may terminate the appointment of the
Commissioner if:
• the Commissioner (paragraph a):
o becomes bankrupt (subparagraph (i)), or
o applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors (sub-paragraph (ii)), or
o compounds with the Commissioner's creditors (sub-paragraph (iii)), or
o makes an assignment of remuneration for the benefit of the Commissioner's
creditors (sub-paragraph (iv)), or
• the Commissioner is absent, except on leave of absence, for 14 consecutive days or
for 28 days in any 12 months (paragraph (b)) or
• the Commissioner engages, except with the Minister's approval, in paid work outside
the duties of the Commissioner's office (see section 20S) (paragraph (c)), or
• the Commissioner fails, without reasonable excuse, to comply with section 29 of the
Public Governance, Performance and Accountability Act 2013 (which deals with the
duty to disclose interests) or rules made for the purposes of that section
(paragraph (d)).
Section 20V Other terms and conditions
57. New section 20V provides the Commissioner holds office on the terms and conditions (if
any) in relation to matters not covered by this Act that are determined by the
Governor- General.
16
Division 5 -- Other matters
Section 20W Commissioner may request information from Commonwealth agencies
58. Subsection (1) provides that the Commissioner can request information from
Commonwealth agencies that is relevant to the performance of the Commissioner's
functions.
59. In instances where a Commissioner has obtained sensitive information (as defined by the
Bill), the Bill contains safeguards that limit the publication of such information in the
Commissioner's strategic plans and annual reports. The Commissioner and agencies
providing information to the Commissioner are also required to comply with the Privacy
Act 1988.
60. This section does not extend to State and Territory agencies, however does not prevent
the Commissioner from requesting or receiving information from State and Territory
agencies. The Commissioner would not be able to compel State and Territory agencies to
provide information in response to a request.
61. Subsection (2) provides that the request may specify a period within which the
information is to be given. This should be a reasonable timeframe.
62. Subsection (3) provides that the agency receiving the request must, as far is reasonably
practicable, comply with the request. This subsection envisages there may be a range of
circumstances in which it is not reasonably practicable to comply with the request. For
example, where the request would substantially and unreasonably divert agency resources
from its other operations, relates to an ongoing investigation, relates to information
obtained in confidence, or the information requested does not exist.
63. Subsection (4) provides that a Commonwealth agency refers to:
• a Commonwealth entity (within the meaning of the Public Governance, Performance
and Accountability Act 2013); or
• a person who performs the functions of, or performs functions within, a
Commonwealth entity (within the meaning of that Act).
Section 20X Strategic Plan
64. Subsection (1) provides that the Commissioner must:
• prepare a strategic plan in relation to the Commissioner's functions (paragraph (a)),
and
• ensure that (paragraph (b)):
o the first strategic plan comes into force as soon as practicable after the
commencement of this section (subparagraph (i)), and
o a strategic plan is in force at all times after the first strategic plan comes into force
(sub-paragraph (ii)).
17
65. Subsection (2) provides that a strategic plan must:
• relate to a period of up to 3 years (paragraph (a)), and
• state the Commissioner's priorities and principal objectives for the period in relation
to the performance of the Commissioner's functions (paragraph (b)).
66. Subsection (3) provides a strategic plan must not include sensitive information. Sensitive
information is defined in Item 3 as including information that would or might prejudice
the security, defence or international relations of Australia; prejudice the investigation of,
or the prosecution of a person for, an offence; or endanger the life or safety of any person.
It may include classified or unclassified information.
67. Subsection (4) provides a strategic plan prepared by the Commissioner is in force for the
period to which the plan relates.
68. Subsection (5) provides the Commissioner may revise a strategic plan at any time during
the period to which the strategic plan relates.
69. Subsection (6) provides in preparing a strategic plan, the Commissioner must consult:
• the Minister (paragraph (a)), and
• the Secretary of the Department (paragraph (b)).
70. This consultation is aimed at aligning the Commissioner's activities, as an additional
independent pillar in Australia's response to modern slavery, with the efforts of the
Australian Government, where practicable. Facilitating alignment also enables the
efficient use of public resources. The Minister or Secretary of the Department may
consult other portfolios as necessary.
71. Subsection (7) provides the Commissioner must cause a strategic plan to be published on
the Commissioner's website as soon as practicable after the plan is prepared or revised (as
the case may be).
72. Subsection (8) provides a strategic plan is not a legislative instrument.
73. Section 8 of the Legislation Act 2003 provides the definition of a legislative instrument.
74. Subsection (8) is included to assist readers, as the strategic plan is not a legislative
instrument within the meaning of subsection 8(1) of the Legislation Act 2003.
Section 20Y Annual report by Commissioner
75. Subsection (1) provides the Commissioner must, within 3 months after the end of a
financial year, prepare and give to the Minister an annual report on the Commissioner's
activities during the financial year.
76. A note to subsection (1) is included in the Act to reference section 34C of the
Acts Interpretation Act 1901, as this contains extra rules about periodic reports.
77. Subsection (2) provides the report prepared by the Commissioner for a financial year
must set out:
18
• the Commissioner's activities during the financial year in relation to the
Commissioner's functions (paragraph (a)), and
• the progress made towards any objectives set out in the strategic plan or plans that
were in force during all or part of the financial year (paragraph (b)), and
• a description of any milestones in relation to the Commissioner's activities that were
reached during the financial year (paragraph (c)), and
• any emerging issues relating to the Commissioner's functions (paragraph (d)).
78. Subsection (3) provides if the Commissioner considers that the annual report contains
sensitive information, the Commissioner must also prepare and give to the Minister, at the
same time as the annual report, a version of the report which does not contain that
information. Sensitive information is defined in Item 3 as including information that
would or might prejudice the security, defence or international relations of Australia; the
investigation of, or the prosecution of a person for, an offence; or the life or physical
safety of any person. Sensitive information may include classified or unclassified
information.
79. Subsection (4) provides in determining whether the annual report contains sensitive
information, the Commissioner may consult the Minister.
80. Subsection (5) provides the Minister must cause a copy of:
• the annual report (paragraph (a)), or
• if the annual report contains sensitive information--the corresponding version of the
report which does not contain that information (paragraph (b));
to be tabled in each House of the Parliament within 15 sitting days of that House after the
report is given to the Minister.
81. Subsection (6) provides the Commissioner must cause a copy of:
• the annual report (paragraph (a)), or
• if the annual report contains sensitive information--the corresponding version of the
report which does not contain that information (paragraph (b));
to be published on the Commissioner's website as soon as practicable after the report is
tabled in the House of Representatives.
Item 5 - Section 21
82. Item 5 removes the words 'the Minister's capacity to delegate powers and functions' in
section 21 and replaces them with the word 'delegations'.
Item 6 - After section 22
83. Item 6 adds new section 22A in Part 4, which provides the Commissioner may, in writing,
delegate all or any of the Commissioner's functions or powers under this Act to an APS
employee whose services have been made available under section 20F and who is:
• an SES employee (paragraph (a)), or
19
• an acting SES employee (paragraph (b)), or
• classified as Executive Level 2 or equivalent (paragraph (c)), or
• acting in a position usually occupied by an APS employee who is so classified
(paragraph (d)).
84. Subsection (2) provides in performing functions or exercising powers under the
delegation, the delegate must comply with any written directions of the Commissioner.
85. The purpose of the delegation provision is to ensure the effective and efficient exercise of
relevant functions, powers or duties. Delegation of the Commissioner's functions may be
necessary at times due to the staffing profile of the Commissioner's office and broad
range of functions that would need to be performed concurrently or during periods of
absence. The Commissioner's staff will be APS officers. Should all or any functions be
delegated, the delegate would be required to comply with the Commissioner's written
directions. This item includes SES and Executive Level 2 staff to provide flexibility
depending on the staffing profile of the Commissioner's office.
Item 7 - Section 23
86. Item 7 amends the title of section 23 to include 'by Minister'.
Item 8 - Application-annual reports
87. Item 8 provides that section 20Y of the Act, as inserted by this Schedule, applies in
relation to a financial year beginning on or after the commencement of this item.
88. That section applies in relation to the first annual report prepared by the Commissioner
under that section as if a reference to the financial year were instead a reference to the
period:
• commencing on the commencement of this item (paragraph (a)), and
• ending at the end of the financial year (paragraph (b)).
89. This item is to provide for a full twelve-month period from commencement before the
Commissioner must provide an annual report.
20