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Will the Modern Slavery Act be effective in disrupting slave labour?

By Andrea Tokaji - posted Thursday, 30 April 2020


A 'transparency in supply chains' clause in the UK Act has been praised as the first of its kind, and seen as an improvement on the Californian Transparency in Supply Chains Act (2010) – legislation on which it was partly premised. The Californian law only applies to the retail and manufacturing industries, with the UK law going beyond targeting manufacturing companies to commercial organisations across all sectors with a lower turnover threshold for compliance and therefore capturing more companies under its reporting requirement.

As I got up to speak on Australia's proposed Modern Slavery Bill in December 2018 at the 9th International Human Rights Education Conference in Sydney, Federal Parliament debated the same Bill, passing it the following week. Australia's Modern Slavery Act 2018 came into effect on the 1 January 2019. As predicted, the new law focuses on a similar transparency in supply chains standards in line with the UK law - with some divergence.

As a lobbyist, I made recommendations to both the Federal and NSW Parliaments in relation to both Modern Slavery Bills, and I was a part fo the parliamentary inquiries on slavery for both of these jurisdictions, and other Committee hearings, giving evidence on slavery and human trafficking in our region since 2012. Therein theme of my recommendations focused on the importance of not only having regulatory measures in place for corporations to ensure that slavery in their business supply chains are addressed, but that deeper culture change needs to occur through due diligence human rights practices.

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Australia's Modern Slavery Act (Cth) 2018 calls for corporations above a $100m threshold to report on slavery in their supply chains in a public repository. The legislation establishes a Modern Slavery Reporting Requirement requiring Australian entities and foreign entities carrying on business in Australia to submit Modern Slavery Statements every twelve months if above the annual revenue of at least $100 million AUD, with the first of these statements due for publication at the end of this financial year.

The Modern Slavery Reporting Requirement's primary objective is to assist the business community in Australia to take proactive and effective actions to address modern slavery, aiming to mitigate the risk of modern slavery practices occurring in the supply chains of goods and services in the Australian market, with a requirement in the Statement to cover mandatory criteria, including the potential modern slavery risks in the entity's operations and supply chains, and actions the entity has taken to assess and address those risks, including due diligence and remediation processes.

Regulation versus Due Diligence Practices

The implementation of a human rights due diligence culture and practice seeks to uphold the dignity of all persons and refuses to allow slavery in commercial supply chains to exist on principle as a way of combating slavery by shifting consumer and commercial culture, practice and expectations.

Both the Californian and UK laws lack a due diligence element that the equivalent French law somewhat reflects. In early 2017, the French Parliament adopted Law No. 2017-399 on corporate 'duty of care' (devoir de vigilance) for parent and subcontracting companies. The French law encourages the practice of the principle of duty of care - more in line with due diligence human rights standards. There is international precedent that this is the best and most effective way forward.

The UN Guiding Principles Reporting Framework defines human rights due diligence as: "[A]n ongoing risk management process… in order to identify, prevent, mitigate and account for how [a company] addresses its adverse human rights impacts, and includes four key steps.

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Article 2 of the International Labour Organisation Protocol establishes that member states should take measures 'supporting due diligence by both the public and private sectors to prevent and respond to risk of forced or compulsory labour', including a strong focus on prevention and the education of those considered particularly vulnerable, employers and the wider public on the realities, harms and dangers of forced labour.

Universal Peace Based on Social Justice

For decades now, international instruments have linked social justice to stable economies and political and military peace. In fact, the International Labour Organisation's origins are foundin the Peace Conference and was entrusted with working towards several social justice objectives and was given the competence to adopt international labour standards as its principal means of action.

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About the Author

Andrea Tokaji is a lecturer in Business and Law at Sheridan, Perth, and is a trained international human rights lawyer.

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