Re-Imagining the Shackles of Modern Slavery



The phrase ‘modern slavery’ would ordinarily bring a person to imagine a child in shackles in some faraway land. However, the reality is far more complex and closer to home. It is a phrase that has gained traction in international political discourse, promoted into the spotlight through the work of organisations such as the Walk Free Foundation and the International Labour Organisation. Despite its newfound fame, the phrase’s true meaning and its practical application remains unknown to many. In truth, the phrase ‘modern slavery’ is an umbrella term which includes various forms of exploitation such as slavery, forced labour, human trafficking, child exploitation, slavery-like practices and servitude.[1]


Sadly, while we may like to associate slavery with the past, modern slavery is ever-present and can be seen all over the world. There has been a reintroduction of the slave trade by ISIS, who trade Yazidi women in Syria and Iraq as sexual slaves.[2] In Australia, a couple has recently been jailed for holding a woman as a slave for eight years.[3] In addition, the Walk Free foundation has declared that 40.3 million people are victims of modern slavery.[4] Clearly, the phrase still has a place in the present. However, there has been a recent pivot in attention towards the business landscape, which requires us to re-imagine the preconception of a faraway child in shackles. The links between big brands and modern slavery, especially forced labour, have been brought into the spotlight. Events like the Rana Plaza disaster of 2013, which killed 1,138 workers in Bangladesh who were producing materials for some of the best known labels,[5] have revealed the importance of assessing all levels of global supply chains for malpractice.[6] But in a world where corporations reign supreme, how can we expect them to hold themselves accountable? The answer: we cannot. That is where the law needs to step in.


There has been some progress made by Australia in this regard. After the UK enacted the Modern Slavery Act 2015,[7] Australia followed suit with the introduction of the Modern Slavery Act 2018 (Cth) (‘Commonwealth Act’).[8] It should be noted that this legislation does not appear to define what modern slavery is; instead, it refers to several international conventions, as well as the Commonwealth Criminal Code 1995 (Cth) which detail offences such as trafficking.[9] This goes to show how the term itself has come to encompass a number of different exploitative practices, rather than having a concrete legal definition of its own.


The substance of the legislation is focused on a business-led approach to controlling modern slavery. The Commonwealth Act makes two main changes. Firstly, it states that entities with a consolidated annual income over $100 million are ‘reporting entities’, as long as they are an Australian entity which carries on its business within Australia.[10] These entities are required to create a ‘modern slavery statement’ which covers the criteria under s 16 of the Commonwealth Act.[11] This includes reporting on the risks of modern slavery within the entity’s operations, as well as any efforts taken to combat this. Other entities may also voluntarily submit statements even if they do not meet the income threshold.[12] Secondly, the Commonwealth Act establishes a Modern Slavery Statements Register, which is run by the Australian Border Force, where all statements must be registered to allow for public access.[13] This can be contrasted with the approach taken by the UK initiative, where statements need to be made available by each entity.[14]


On the plus side, this allows the phrase ‘modern slavery’ to add the punch that is desired. Companies are forced to lay bare any blights in their supply chain, and the transparency of the register allows consumers to access this information. Additionally, the government can name and shame the entities that do not adhere to this requirement— which will further encourage compliance.[15] Nonetheless, companies are ultimately not bound to lodge their statements, because the legislation expressly removes any civil or criminal penalties which may have otherwise flowed from such an omission.[16] Therefore, it is left up to businesses and corporations to comply; each having to take the initiative to look into their own supply chains to determine how they may act to eradicate any form of modern slavery present. This may seem like the government is pulling their punches when it comes to regulating businesses, and instead depending on rhetoric and a ‘woke’ society to pull corporations into line. Here we see further indications of a global arena where corporations can do as they wish, with minimal government intervention.


However, there is hope for the future. The NSW government introduced its own Modern Slavery Act 2018 (NSW) (‘NSW Act’) which is not yet in force.[17] To avoid any constitutional conflict with the Commonwealth Act, this applies to entities which report a revenue between $50 million and $100 million. There is one fundamental difference which presents the NSW Act as a stronger front. Rather than simply allowing the minister to publicly name and shame non-compliant companies, as the Commonwealth Act does, the NSW Act imposes active punishment. Companies face a penalty of up to $1.1 million if they fail to prepare and publish a modern slavery statement, or provide false and misleading information in this respect.[18] This presents an important step forward in the fight against modern slavery, since it goes beyond mere rhetoric and creates a legal obligation for businesses to prevent exploitative practices within their supply chains. The Commonwealth Act is also up for a review in 2021, and it is possible that greater enforcement mechanisms will be implemented.[19]


There are also positive signs if we consider an international lens. The second draft of the Treaty on Human Rights and Business has been discussed by the United Nations Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights. If this treaty comes into force, it will become a legally binding document which will promote further state regulation into the activities of businesses.[20] Furthermore, this treaty promotes due diligence on human rights which appears to expand beyond modern slavery— requiring businesses to assess a broader range of impacts, such as environmental footprints.[21] Looking elsewhere, Canada is seeking to introduce legislation which will impose a duty of care on businesses to not only report modern slavery present in their supply chains, but also take active steps to prevent it. This will include expansive investigative powers and large fines for non-compliance.[22] In addition, Germany has passed the Supply Chain Due Diligence Act 2021 which creates obligations for companies to assess, document and prevent against human rights violations that occur in their supply chains. Importantly, this can be enforced through penalties.[23]


Therefore, it is clear the world is starting to notice that the shackles we imagine when we hear the phrase ‘modern slavery’ are more complexly connected than we would think. Indeed, they are linked to businesses that we interact with every day. The magnitude of this connection is why it is essential that supply chains are kept transparent, and corporations are held accountable for exploiting people all over the world. Hopefully, with more legislation and regulation in this growing area, the shackles will eventually be broken.


Image: Skill Cast


References:

[1] Nicola Piper, Marie Segrave and Rebecca Napier-Moore, ‘Editorial: What’s in a name? Distinguishing forced labour, trafficking and slavery’ (2015) (5) Anti-trafficking review 1.

[2] Samar El-Masri, ‘Prosecuting ISIS for the sexual slavery of the Yazidi women and girls’ (2018) 22(8) The International Journal of Human Rights 1047, 1047-1048.

[3] Danny Tran, ‘Melbourne couple who kept grandmother as slave for eight years jailed for “crime against humanity”’, The Age (online, 21 July 2021) < https://www.abc.net.au/news/2021-07-21/melbourne-couple-who-kept-slave-sentenced/100310094>.

[4] Walk Free Foundation, ‘The Global Slavery Index 2018’ (2018) Walk Free Foundation 1.

[5] Dan Viederman, ‘Supply chains and forced labour after Rana Plaza’, The Guardian (online: 24 April 2014), <https://www.theguardian.com/global-development-professionals-network/2013/may/30/rana-plaza-bangladesh-forced-labour-supply-chains>.

[6] Genevieve LeBaron, ‘The role of supply chains in the global business of forced labour’ (2021) 57(2) Journal of Supply Chain Management 29, 33-34.

[7] Modern Slavery Act 2015 (UK).

[8] Modern Slavery Act 2018 (Cth) ('Commonwealth Act').

[9] Commonwealth Criminal Code 1995 (Cth); Commonwealth Act 2018 (Cth) s 4.

[10] Commonwealth Act 2018 (Cth) s 5(1).

[11] Ibid s 16.

[12] Ibid s 6.

[13] Ibid s 18.

[14] Modern Slavery Act 2015 (UK).

[15] Ibid s 16A(4).

[16] Ibid s 25(2).

[17] NSW Government, ‘Modern Slavery’, <https://www.nsw.gov.au/modern-slavery>.

[18] Standing Committee on Social Issues 2020, ‘Modern Slavery Act 2018 and associated matters’, report 56.

[19] Commonwealth Act Act 2018 (Cth) s 24.

[20] UN Open-ended Intergovernmental working group on transitional corporations and other business enterprises with respect to human rights, 46th sess, Agenda Item 3, UN Doc A/HRC/46/73 (22 February – 19 March 2021).

[21] Legally Binding Instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises second revised draft 2020 (not yet in force) arts 6.1 and 6.3.

[22] Meaghan Farrell and Carole Gilbert, ‘Bill S-216: Canada moves forward to combat modern slavery’, Norton Rose Fulbright, (November 19 2020), <https://www.nortonrosefulbright.com/en/knowledge/publications/a160af52/bill-s-216-canada-moves-forward-to-combat-modern-slavery>.

[23] Rachel Nicolson, Dora Banyasz, Emily Turnbull and Alexander Batsis, ‘Recent developments set to shake up modern slavery landscape for Australian businesses’, Allens Linklaters (6 July 2021), <https://www.allens.com.au/insights-news/insights/2021/07/shake-up-to-modern-slavery-landscape/>.

Malinthi Mallawa is a third year Law/Arts student majoring in Human Rights. She is part of the Progressive Law Network and is a Paralegal at the Asylum Seeker Resource Centre. She is very interested in international human rights law and how it can be used domestically to further social justice initiatives. Having recently completed some studies in Modern Slavery and Human Trafficking, this is an area that she finds particularly fascinating.

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