The Case for Establishing a National Compensation Scheme: Sign our Joint Statement of Support from Business
Sign our Joint Statement of Support from Business
Under Guiding Principle 25 of the United Nations Guiding Principles on Business and Human Rights, States have a duty to ensure that those affected by business-related human rights abuses have access to effective remedy.
Anti-Slavery Australia’s extensive experience in working with and providing legal advice and assistance to victims and survivors of modern slavery in Australia since 2003, has demonstrated a clear need for better access to remedy.
The current mechanisms for obtaining enforceable remedies, including compensation, present significant challenges. We believe it’s time for a National Compensation Scheme to ensure that victim-survivors of modern slavery receive the support they deserve.
Businesses have a responsibility to respect human rights. We encourage you to join us in recognising the gaps in existing State mechanisms that leave survivors of modern slavery without effective remedies and advocate for this essential change.
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If your business, or representative organisation, operates in Australia, please support our call for a National Compensation Scheme for survivors of modern slavery by signing our joint statement.
Find out more about Anti-Slavery Australia’s Justice for All project
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Business Support for a National Compensation Scheme: FAQs
Why is the current approach to accessing compensation not effective?
There are currently eight different victims of crime compensation schemes available to victim-survivors of modern slavery in Australia. We believe the current mechanisms for compensation are inadequate for victim-survivors of modern slavery for the following reasons:
- Inconsistencies between State and Territory schemes.
- State and Territory schemes vary with regard to categories of harm, time limits and amounts of compensation available.
- Differences in eligibility criteria.
- Not all jurisdictions recognise the various (and sometimes subtle) forms of violence that may be exerted by exploiters to coerce a person into forms of slavery such as debt bondage or forced labour.
- Differences in maximum compensation entitlements.
- Under State and Territory compensation schemes, the cap varies depending on jurisdiction.
- Not designed for the specific circumstances of modern slavery.
- A victim-survivor who has experienced harm in multiple States and Territories may be required to make separate State-specific applications for compensation.
The lack of a coordinated approach to compensation has resulted in inconsistent and varied outcomes for victim-survivors depending on the relevant jurisdiction in which they have brought their claim.
Further, where an offender has been convicted of an offence in Divisions 270 or 271 of the Criminal Code Act 1995 (Cth), victims may be able to obtain monetary redress under section 21B of the Crimes Act 1914 (Cth), at the conclusion of the criminal trial before the case has been finalised. As convictions in modern slavery are rare, this remedy is not an option for many victims. Even where a conviction is obtained, there are numerous challenges including:
- High standard of proof;
- Difficulty accessing legal representation;
- Prohibitive costs associated with the preparation of an application;
- For victims, participation in the process can be re-traumatising; and
- Ambiguity over jurisdictional issues.
Clearly, these shortcomings have been a major impediment to victim-survivors of modern slavery obtaining fair, effective, and timely access to justice, and this departs from international best practice.
How would the scheme be funded and would businesses have to financially contribute?
The scheme should be funded in a way consistent with Government objectives, and could be achieved by direct Government funding, through the proceeds of crime and/or through the establishment of a special fund.
It is not anticipated that it would be mandatory for businesses to contribute.
Would the scheme create any regulatory ‘red tape’ for businesses?
The proposed National Compensation Scheme is designed to streamline access to compensation for survivors of modern slavery without imposing additional regulatory burdens on businesses. The scheme primarily aims to address the existing gaps and inconsistencies in state-based mechanisms and provide a coordinated federal approach to remedy.
It does not introduce new compliance obligations for businesses, nor is it anticipated that businesses will be required to financially contribute to the scheme. In this context, the scheme complements, rather than complicates, business operations by ensuring that survivors of modern slavery have access to fair and timely compensation, while businesses can continue to fulfill their existing obligations under the UNGPs.
How would the scheme complement businesses’ own remediation efforts?
All businesses have an internationally recognised responsibility to respect human rights, which is set out in the UN Guiding Principles on Business and Human Rights (UNGPs), which are supported by the Australian Government. The UNGPs expect that businesses that identify they have caused or contributed to modern slavery or other human rights harm provide for or cooperate in remediating the harm. Businesses that identify they are directly linked to harm can also choose to provide for or cooperate in remediation.
Remediation can take a range of forms including financial compensation, as well as apologies, restitution, rehabilitation, non-financial compensation and guarantees of non-repetition. A National Compensation Scheme would complement business-specific remediation activities by enabling modern slavery survivors to access financial compensation but would not negate businesses’ responsibility to provide for or cooperate in the remediation of modern slavery harm in line with the UNGPs. For example, a business that identifies it has contributed to modern slavery harm may also provide financial compensation to survivors (in addition to any support received through the proposed National Compensation Scheme) as well as other forms of remediation, such as access to rehabilitation services.
Can affected stakeholders pursue multiple remediation mechanisms simultaneously?
In many cases, obtaining an effective remedy may require affected stakeholders to engage with multiple remediation mechanisms simultaneously. For example, they might use a company-based grievance mechanism to address immediate concerns while also seeking legal redress through the courts or pursuing action through international human rights bodies.
Access to a National Compensation Scheme does not preclude an affected stakeholder from seeking remediation at a company level and the UNGPs and related guidance stress that operational-level grievance mechanisms should not prevent access to other forms of remedy.
Can an affected stakeholder access the compensation scheme if our business is involved in modern slavery in an overseas jurisdiction?
Claimants need not be Australian citizens to make a claim, however, a nexus to Australia must be established.
They would need to show, to the appropriate standard of proof – such as ‘reasonable likelihood’ – that they have been a victim of one of the Federal modern slavery offences, such as forced labour, debt bondage, or servitude.
In what situations could someone affected by modern slavery by an Australian business be able to access the compensation scheme?
Here are some real-life cases demonstrating how a National Compensation Scheme could have significantly improved outcomes for survivors facing challenges in accessing legal compensation for business and human rights abuses in Australia:
- Divye Kumar Trivedi was found guilty of trafficking an Indian national for forced labour. He was sentenced to community service and a fine, and the victim-survivor later received compensation but through lengthy secondary civil action.[1]
- Taiwanese nationals Bo-Syun Chen and Yu-Hao Huang were convicted of forcing workers into servitude in their Brisbane call centres. They received prison sentences, but the victim-survivors were not compensated as an application for reparations was not made.[2]
Further, the following hypothetical examples provide insight into potential cases:
- A migrant worker from Southeast Asia was trafficked by a large agricultural business, working in forced labour conditions across farms in Queensland, New South Wales, and Victoria. The worker was denied pay, endured unsafe working conditions, and faced threats of violence. To access compensation, the survivor would need to apply separately under each state’s victim of crime compensation scheme or pursue complex criminal and civil proceedings under federal law.
- A cleaning company in Melbourne subjected international students to forced labour, making them work excessive hours under threats of deportation if they refused. The students were paid far below minimum wage, deprived of rest breaks, and forced to live in substandard housing controlled by the company. While the perpetrators were charged, the survivors faced significant barriers in securing compensation and wanted to go back home rather than stay in Australia to wait out further legal proceedings.
[1] R v Divye Kumar Trivedi, Unreported (NSWDC, 8 May 2012); Sam v D&D Indian Fine Food Pty Ltd & Trivedi [2015] FCCA 389.
[2] DPP (Cth) v Huang & Another, Unreported (QLDDC, 8 February 2017).