Should Australia be Embracing the Modern Slavery Model of Regulation?

Date01 June 2018
AuthorShelley Marshall,Ingrid Landau
Publication Date01 June 2018
DOI10.1177/0067205X1804600206
SubjectArticle
SHOULD AUSTRALIA BE EMBRACING THE MODERN
SLAVERY MODEL OF REGULATION?
Ingrid Landau
and Shelley Marshall

ABSTRACT
Australia is following in the footsteps of the UK and US and embracing the discourse
and regulatory technologies associated with modern slavery regulation. This paper
offers a critical perspective on this development. It begins with a brief account of the
concepts rise to prominence, and discusses the political economy in which it is
embedded. It then explores some of the advantages, as well as the pitfalls, associated
with the frame, and its associated regulatory approaches, techniques and discourse. The
authors raise three broad sets of concerns. The first goes to the danger of exclusively
focusing on criminal justice responses to penalise and deter those who practice modern
slavery while neglecting other approaches that may help address the causes of the
phenomenon. The second set of concerns goes to the tendency to exaggerate the
transformative potential of one of the dominant regulatory responses in this area: the
mandatory corporate supply chain reporting provision. The third set of concerns relate
to the implications of addressing issues of worker exploitation and mistreatment
through a modern slavery and human trafficking approach rather than through other
well established and newer regulatory means. To support the third argument, the
authors compare the modern slavery approach with two alternate approaches: labour
regulation and human rights due diligence. The authors emphasise the need for
vigilance to ensure that the embracement of a modern slavery frame does not shift
attention (and resources) away from more thorough and effective means of securing
greater corporate accountability for labour standards in supply chains.
I INTRODUCTION
The global momentum to eradicate modern slavery has reached Australian shores. It is
increasingly common to hear activists, the media, and politicians describe and decry
workers found to be entrapped in situations of egregious labour exploitation as modern-
day slaves. Businesses, led and cajoled by mining magnate Andrew Forrest, have voiced
Lecturer, Department of Business Law and Taxation, Monash Business School, Monash
University, ingrid.landau@monash.edu.
 Vice Chancellor’s Senior Research Fellow, Graduate School of Business and Law, RMIT
University, shelley.marshall@rmit.edu.au. The authors wish to thank Irene Pietropaoli for
her thorough research assistance for this article.
Federal Law Review Volume 46
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314
their commitment to tackling slavery lurking in their own supply chains.
1
There is wide
support for enacting modern slavery legislation based on the UK model. The UK
Modern Slavery approach (described in further detail later in this paper) has three
prongs: first, consolidating and strengthening criminal punishment relating to modern
slavery; second, creating an independent anti-slavery commissioner; and third,
introducing a requirement for large companies to regularly disclose what, if any,
measures they are taking to address modern slavery in their operations and supply
chains. Both major political parties have committed to enacting legislation requiring
corporate disclosure.
2
Following a recent parliamentary inquiry into whether Australia
should have a UK-style modern slavery in supply chains reporting requirement,
3
and
the Federal Governments indication that we will,
4
the concept is only likely to be further
embedded in the Australian political and regulatory landscape.
These are positive developments. National and international human rights activists
and non-governmental organisations (NGOs) forming transnational advocacy
networks that are successfully putting pressure on nation-states to address a persisting
and abhorrent practice. Political parties acting in a bipartisan manner to produce
regulatory responses. Business offering to do their part. This is all heartening, though
not surprising given, in the words of labour law scholar Judy Fudge, no one is “for”
modern slavery.
5
But what exactly is modern slavery? And what does the rise of the
concept in Australia mean for how issues of worker exploitation and mistreatment are
understood and addressed? This paper seeks to highlight the particularities and
limitations of a modern slavery approach to addressing forced labour and other
egregiously exploitative forms of work.
A national conversation highlighting the extent of contemporary exploitation and the
importance of promoting and protecting workers human rights is welcome. However,
1
Anna Patty, ‘Business and religious groups join forces to end modern slavery’, The Sydney
Morning Herald (online), 1 December 2016 <http://www.smh.com.au/business/workplace-
relations/business-and-religious-groups-join-forces-to-end-modern-slavery-20161201-
gt1q1p.html>; Paul Farrell, ‘We had slavery in our supply chains, says Andrew Forrest’, The
Guardian (online), 7 April 2017
<https://www.theguardian.com/world/2017/apr/07/slavery-supply-chains-andrew-
forrest>; Business & Human Rights Resource Centre, Establishing a Modern Slavery Act in
Australia <https://business-humanrights.org/en/inquiry-into-establishment-of-a-modern-
slavery-act-in-australia>.
2
Australian Government Attorney-General’s Department, Modern Slavery in Supply Chains
Reporting RequirementPublic Consultation Paper and Regulation Impact Statement (2017)
<https://www.homeaffairs.gov.au/about/consultations/modern-slavery-supply-chains-
reporting-requirement>; ‘Labor Taking Action on Modern Slavery’, Media Release, the Hon
Bill Shorten MP, 5 June 2017
<http://www.billshorten.com.au/labor_taking_action_on_modern_slavery_monday_5_ju
ne_2017>.
3
Joint Standi ng Committee on Foreign Affairs, Defence and Trade, Parliament of Australia,
Hidden in Plain Sight An inquiry into establishing a Modern Slavery Act in Australia (2017) xxxi.
4
On 16 August 2017, prior to the completion of the parliamentary inquiry, the Australian
Government released a consultation paper on a proposed model for a Modern Slavery in
Supply Chains Reporting Requirement: Attorney-General’s Department, above n 2.
5
Judy Fudge, The Dangerous Appeal of the Modern Slavery Paradigm (25 March 2015)
openDemocracy <https://www.opendemocracy.net/beyondslavery/judy-
fudge/dangerous-appeal-of-modern-slavery-paradigm>.

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