We have previously written on the topic of legislation and practice overseas (especially the United States) enabling goods produced by “forced labour” to be seized at the border and destroyed.
The Australian experience has not yet reached the same stage. However, we are now seeing greater movement through the work of the independents1 in our Federal Parliament.
Our journey started with the Customs Amendment (Banning Goods Produced By Uyghur Forced Labour) Bill 2020 which was introduced in the Senate but discontinued as it was thought to be too limited in effect. The Department of Home Affairs and the Department of Foreign Affairs and Trade submission on behalf of the “Whole of Government” had also opposed the Bill during an Inquiry by the Senate Foreign Affairs, Defence and Trade Committee (Inquiry)2 on the basis that it could be too complex to implement and should be deferred pending the review of the existing Modern Slavery legislation due to take place in 2022.
That first Bill was followed by a second Bill (the Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2021), which was also introduced to the Senate by independent Senator Rex Patrick. Having passed through the Senate, that second Bill was introduced and read a first time in the House of Representatives on the 22nd November 2021. The link to the legislation can be found here.
The second Bill (the Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2021 (No. 2)) was moved for a second reading by Ms Rebekha Sharkie3 (Member for Mayo, a member of the Centre Alliance in the House of Representatives) which is linked here.
In the second reading speech of this second Bill before the Senate, it explains why this Bill was created, after the Customs Amendment (Banning Goods Produced By Uyghur Forced Labour) Bill 2020 was discontinued following the Inquiry.
“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… Accordingly, rather than amend the original bill, this new bill seeks to implement the committee’s primary recommendation without delay. The ban that this bill would implement is global in nature and does not specify any geographical origin for its application.”
The second Bill is quite simple, amending Section 50 to the Customs Act 1901 (Act) to make it known as “General” and adding a new section 50A to the Act as follows:
“The importation into Australia of goods produced or manufactured, in whole or in part, through the use of forced labour (within the meaning of the Criminal Code) is prohibited absolutely.”
The progress of this second Bill is not yet clear. We are now in the last two sitting weeks of Parliament for 2021 and will monitor developments with the second Bill or any other legislation which seeks to introduce this form of prohibition into Parliament. That will certainly create more regulatory issues for all of those in the supply chain.
We will continue to provide updates to industry in various forums. Stay tuned, and feel free to contact our Customs & Trade team should you have any questions.
1. https://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=265980, and https://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=144292;
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