Should Australia be Embracing the Modern Slavery Model of Regulation?
| Author | Shelley Marshall,Ingrid Landau |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1177/0067205X1804600206 |
| Subject Matter | Article |
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
concept’s 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.
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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 Government’s 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
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
forrest>; Business & Human Rights Resource Centre, Establishing a Modern Slavery Act in
Australia of -a-modern-
slavery-act-in-australia>.
2
Australian Government Attorney-General’s Department, Modern Slavery in Supply Chains
Reporting Requirement—Public Consultation Paper and Regulation Impact Statement (2017)
reporting-requirement>; ‘Labor Taking Action on Modern Slavery’, Media Release, the Hon
Bill Shorten MP, 5 June 2017
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
fudge/dangerous-appeal-of-modern-slavery-paradigm>.
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it is important to recognise that framing a widening class of labour exploitation as
slavery to be dealt with by criminal law carries both advantages and risks. It helps
galvanise governments, business, and civil society to demand change, to amend laws,
and to prosecute those involved. But it also runs the risk of overlooking the importance
of addressing labour exploitation within broader labour standards and business
regulation frames.
6
As others have pointed out, the realities of severe labour exploitation
are more complex than can be portrayed by images of chains or that can be addressed
by isolated prosecutions. They frequently involve a complex web of worker
vulnerabilities and social exclusion, often within the context of poor rule of law and
economic justice. Casting severe forms of labour exploitation solely as matters for
criminal law and as isolated rather than as systemic issues risks diverting attention from
the business models that make exploitation a systemic issue in certain sectors. It also
risks overlooking the fact that strong and effective labour market regulation across all
industries is a critical aspect—indeed, we would argue the most critical aspect—of any
successful strategy to prevent severe forms of labour exploitation. The most important
and likely effective remedy for egregious exploitation is to ensure that all workers enjoy
internationally-recognised labour rights and decent working standards, and that these
standards are enforced. As currently framed, the modern slavery approach does not
deliver this.
This paper raises a number of concerns with the nature and trajectory of
developments in this area. These concerns fall into three categories. The first set of
concerns relates to problems with using a criminal justice approach to penalise and deter
those who practice modern slavery in favour of approaches that might address the
causes of the phenomenon. The second goes to the tendency to exaggerate the likely
impact of the dominant emergent regulatory response for addressing modern slavery in
corporate supply chains: that is, transparency in supply chain provisions. It is important
to be accurate and realistic about what is being proposed and what it is capable of
achieving. The third and final set of concerns is broader and more paradigmatic. It goes
to the implications of addressing issues of worker exploitation and mistreatment
through a modern slavery and human trafficking lens rather than through other
regulatory means.
We attempt to bring the shortcomings of the modern slavery approach into relief by
comparing it with two other regulatory approaches. The comparison aims to highlight
the availability of other more robust and effective, but also feasible, means of addressing
issues of labour exploitation within corporate supply chains. The first is labour
regulation, which focuses on the responsibility of the state to recognise and enforce
labour rights through labour institutions with established labour inspectorates, trade
unions, and employer representative bodies. The second is human rights due diligence.
This concept, elaborated upon in the United Nations Guiding Principles on Business and
6
See generally Judy Fudge and Kendra Strauss (eds) Temporary Work, Agencies and Unfree
Labour: Insecurity in the New World of Work (Routledge, 2014); Judy Fudge, ‘Modern Slavery,
Unfree Labour and the Labour Market: The Social Dynamics of Legal Characterization’ (2017)
Social & Legal Studies 1 ;
Judy Fudge, Modern Slavery and Migrant Domestic Workers The Politics of Legal Characterization
(24 October 2016) The Foundation for Law, Justice and Society
legal-characterization>; Janie A Chuang, ‘Exploitation Creep and the Unmaking of Human
Trafficking Law’ (2014) 108(4) American Journal of International Law 609.
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Human Rights,
7
emphasises that companies need to undertake, and be accountable for,
due diligence processes across all human rights. This is a newer approach, without the
established institutions and civil society actors of labour regulation. However, it is
increasingly gaining traction and provides a method of conceptualising and
operationalising corporate responsibility that was previously lacking, particularly in
international supply chains.
Part 2 of the paper provides the background. It explains what we are talking about
when we speak of a ‘modern slavery and trafficking approach’ and outlines its rise,
globally and within Australia. This section also provides a brief political economy
analysis of why the idea of modern slavery has gained such traction. In Part 3 of the
paper, we lay out our concerns with the increasing dominance of this perspective. We
argue that a modern slavery approach downplays, if not deflects attention away from,
the importance of addressing the broader structural causes of exploitation, the role of
the state, and the need to strengthen labour standards and business regulation.
Before proceeding, it is important to emphasise that we are not the first to raise
concerns with the modern slavery frame. Other labour law scholars have highlighted
the dangers implicit in the encroachment of criminal justice into areas conventionally
seen through a labour law lens. They have powerfully argued that other more fruitful
frames are available through which to pursue issues of worker exploitation and
mistreatment.
8
Scholars such as Janie Chuang
9
and Julie O’Connell Davidson
10
have
also engaged in powerful critiques of the rise of the phenomenon and its implications.
To date, however, such critiques have largely focused on developments in the United
Kingdom and the United States, and have tended to focus on issues surrounding the
exploitation of domestic migrant workers. This paper makes a unique contribution
through focusing on the arrival of ‘modern slavery abolitionism’ in Australia, and its
particular implications within the Australian context. The comparison with a labour
regulation approach and a human rights due diligence approach adds more depth to the
critiques already made. By adding to existing literature we seek to prompt greater
critical engagement with these developments among those working in research and
advocacy on business and human rights who are often not exposed to labour regulation
scholarship.
II THE RISE OF THE MODERN SLAVERY FRAME
The term ‘modern slavery’ is a recent one, and largely the result of an incremental
expansion of the human trafficking concept. It lacks a precise legal definition or
7
Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect,
Respect and Remedy’ Framework—Report of the Special Representative of the Secretary-General on
the issue of human rights and transnational corporations and other business enterprises, John Ruggie,
Human Rights Council, 17th sess, Agenda Item 3, UN Doc A/HRC/17/31 (21 March 2011)
annex.
8
Ibid. See also Hila Shamir, ‘A Labor Paradigm for Human Trafficking’ (2012) 60(1) UCLA Law
Review 76.
9
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’, above n 6.
10
Julia O’Connell Davidson, ‘New Slavery, Old Binaries: Human Trafficking and the Borders
of Freedom’ (2010) 10(2) Global Networks 244; Julia O’Connell Davidson, Modern Slavery: The
Margins of Freedom (Palgrave MacMillan, 2015).
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parameters. It is generally understood as encompassing various forms of egregious
labour exploitation that constitute criminal offences under Australian law, including:
(i) human trafficking, defined by the UN Protocol to Prevent, Suppress and Punish
Trafficking in Persons (the Palermo Protocol) as the ‘recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use of force
or other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of payments
or benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation’;
11
(ii) slavery, a jus cogens norm and defined in the Slavery Convention as ‘the status
or condition of a person over whom any or all of the powers attaching to the
rights of ownership are exercised’;
12
(iii) forced labour, defined in the ILO’s Forced Labour Convention of 1930 as ‘work
or service which is exacted from any person under the menace of any penalty
and for which the said person has not offered himself voluntarily’;
13
(iv) ‘debt-bondage’, defined in the 1956 UN Supplementary Convention on the Abolition
of Slavery as ‘the status or condition rising from a pledge by a debtor of his
personal services or of those of a person under his control as security for a debt,
if the value of those services as reasonably assessed is not applied towards the
liquidation of the debt or the length and nature of those services is not
respectively limited and defined’;
14
and
(v) the worst forms of child labour, which comprise ‘all forms of slavery or practices
similar to slavery, such as the sale and trafficking of children, debt bondage and
serfdom and forced or compulsory labour, including forced or compulsory
recruitment of children for use in armed conflict’.
15
The antecedents of the current modern slavery phenomenon are commonly traced to
two developments in the late twentieth and early twenty-first centuries.
16
The first is the
rapid proliferation in legal, political and bureaucratic initiatives directed at combatting
human trafficking at the national and international levels. This charge was led by the
US, where efforts to combat trafficking through the use of criminal law have long
enjoyed bipartisan support. The precise legal parameters of human trafficking vary, but
11
Protocol to Prevent Suppress and Punish Trafficking in Persons Especially Women and Children
supplementing the UN Convention against Transnational Organized Crime, GA Res 55/25,
UNGAOR, 55th sess, Agenda Item 105, UN Doc A/RES/55/25 (8 January 2001) annex II art
3.
12
Convention to Suppress the Slave Trade and Slavery, signed 25 September 1926, 60 LNTS 253
(entered into force 9 March 1927) art 1(1).
13
UNTS 55 (entered into force 1 May 1932) art 2(1).
14
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and
Practices Similar to Slavery, signed 30 April 1956, 226 UNTS 3 (entered into force 30 April 1957)
art 1(a). In Australia, debt bondage is criminalised under the Criminal Code Act 1995 (Cth) s
271(8).
15
Worst Forms of Child Labour Convention, opened for signature 17 June 1999, 38 ILM 1207 (entry
into force 19 November 2000), art 3(a).
16
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’, above n 6, 613–
28.
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the concept is generally understood to encompass the recruitment, movement,
harbouring or receipt of a person, by means of force, fraud or coercion, for the purpose
of exploitation.
17
Towards the end of the first decade, however, the trafficking frame
was broadened significantly to encompass other forms of severe labour exploitation
such as forced labour.
18
This expansion, which occurred under the Obama
administration, saw the term ‘trafficking’ expanded significantly beyond its original
formulation to become an umbrella term used to describe all forms of forced labour and
enslavement.
19
It arguably occurred as a result of human rights activists’ reaction to the
focus of the George W Bush administration on sex sector trafficking only. Activists
fought for the anti-trafficking regime to capture more forms of exploitation and to be
applied to the large number of victims trafficked outside of the sex sector.
20
It was also
during this period that these various practices began to be commonly described as
‘modern slavery’.
21
The second source of modern slavery abolitionism is the influence of certain
powerful individuals who have zealously advocated for greater attention to be paid to
recognition and eradication of the practice.
22
O’Connell Davidson shows how Kevin
Bales, prominent academic and co-founder of US NGO Free the Slaves, has played a key
role in driving and broadening interest in modern slavery since the late 1990s.
23
Philanthropists have added further momentum to the movement. Among the most
prominent in the field include the Australian mining magnate Andrew ‘Twiggy’ Forrest,
who in 2012 founded the anti-slavery NGO ‘Walk Free Foundation,’ which aims ‘to end
modern slavery in our generation’.
24
Rich and powerful individuals such as Twiggy Forrest perform a number of roles.
25
They act as advocates—calling on governments, international organisations and
individual businesses to do more to address modern slavery. Indeed, one of the Walk
17
See, eg, Protocol to Prevent Suppress and Punish Trafficking in Persons Especially Women and
Children supplementing the UN Convention against Transnational Organized Crime, GA Res
55/25, UNGAOR, 55th sess, Agenda Item 105, UN Doc A/RES/55/25 (8 January 2001) annex
II art 3.
18
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’, above n 6.
19
J J Gould, Slavery’s Global Comeback (19 December 2012) The Atlantic
comeback/266354/>.
20
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’, above n 6.
21
In an address to the Clinton Global Initiative on 25 September 2012, for example, President
Obama explained ‘I’m talking about the injustice, the outrage of human trafficking, which
must be called by its true name—modern slavery’: The Daily Conversation, Obama On
‘Modern Slavery’ (27 September 2012) YouTube
expansion of the trafficking frame under the Obama administration, see Chuang,
‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6, 619–28.
22
See generally Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’,
above n 6, 626–8; O’Connell Davidson, ‘Modern Slavery—the Margins of Freedom’, above n
10.
23
O’Connell Davidson, Modern Slavery: The Margins of Freedom, above n 10, ch 2.
24
Walk Free Foundation, Modern Slavery (2018)
25
On the dynamics of ‘philanthrocapitalism’ in the realm of trafficking and slavery, see Janie A
Chuang, ‘Giving as Governance? Philanthrocapitalism and Modern-Day Slavery
Abolitionism’ (2015) 62 UCLA Law Review 1516.
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Free Foundation’s objectives is securing legislative change in ‘key countries’ that
requires supply chain transparency in corporate supply chains.
26
Forrest has
successfully enrolled other powerful individuals to his cause, including senior religious
figures and movie stars.
27
Forrest has also successfully rallied the support of big
business in Australia behind the push for modern slavery legislation.
This leads to the second role of these individuals: through enrolling other actors,
funding research and having the power to attract media attention, these philanthropists
act as ‘storytellers’—shaping public awareness and understanding of an issue, and with
the power in some cases to even make their story come true.
28
The third and most
obvious role these actors perform is a funding one. They can devote significant sums to
compiling data that show the scale and scope of the problem.
29
Additionally, they
provide a funding source for NGOs that is not susceptible to the vagaries of changes in
political administrations or membership numbers.
30
The influence of these actors is
compounded by the perception among NGOs that the casting of issues in trafficking
frames significantly increases funding possibilities.
31
The global momentum around modern slavery was given a significant boost in 2015
focuses on the prevention and prosecution of modern slavery and the protection of
victims, and its passage was described by the then-Home Secretary Theresa May as an
‘historic milestone’.
32
The Act consolidates existing offences relating to modern slavery,
imposes severe punishments (including life sentences) for modern slavery crimes, and
enhances the court’s ability to place restrictions on individuals in order to protect people
from the harm caused by modern slavery offences. In relation to victim protection, the
Act introduces a statutory defence for victims of slavery and trafficking, and introduces
a new reparation order to encourage the courts to compensate victims where assets are
confiscated from perpetrators. A position of independent anti-slavery commissioner is
created under the statute, to improve and better coordinate the response to modern
slavery.
33
The UK MSA also introduced a requirement on companies that meet certain
threshold criteria to regularly disclose what, if any, measures they are taking to address
26
Walk Free Foundation, The Case for an Australian Modern Slavery Act (2017)
2.amazonaws.com/content/uploads/2017/03/20160209/The-Case-for-an-Australian-
Modern-Slavery.pdf>
27
Russell Crowe, for example, spoke at the Global Slavery Index Launch in London in 2016.
28
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’, above n 6, 626–
7.
29
Walk Free has produced a ‘Global Slavery Index’ for a number of years and, in 2017, released
its report Global Estimates of Modern Slavery: Forced Labour and Forced Marriage, ‘Global
Estimates of Modern Slavery’ (International Labour Office and Walk Free Foundation, 2017)
dcomm/documents/publication/wcms_575479.pdf>—the outcome of a collaboration with
the International Labor Organisation and the International Organisation for Migration.
30
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’, above n 6.
31
Ibid.
32
United Kingdom Government, News Story: Historic law to end Modern Slavery passed (26 March
2015) Home Office /government/news/historic-law-to-end-modern-
slavery-passed>.
33
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modern slavery in their operations and supply chains.
34
This provision is rightly
regarded by many as a pioneering attempt to encourage companies to start taking
responsibility for modern slavery within their supply chains, and has attracted
considerable interest internationally.
Australia has taken longer than the UK and US to move towards framing egregious
labour exploitation in terms of modern slavery and to develop a legislative response.
For some time now, however, the Australian government has been funding and
fostering initiatives to address human trafficking within Australia and Asia-Pacific.
35
It
has also supported various initiatives within the region focused on safe migration and
decent work in global supply chains.
36
More recently, as co-chair (with Indonesia) of the
Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime,
37
(‘Bali Process’) it introduced a ‘Government and Business Forum,’ to bring together
prominent business leaders in the region ‘to advise government on how to prevent and
combat human trafficking and related abuses, and share experiences on best practice.’
38
Andrew Forrest was nominated as ‘Australia’s business champion’ at this Forum.
As in the UK and the US, one of the extraordinary features of the modern slavery
discourse in Australia has been the extent of support from various quarters.
39
Support
for greater regulatory action in this area—including by way of a UK-style transparency
in supply chain provision—has been voiced from the business and investor community,
civil society groups, trade unions, and from within the bureaucracy. In February 2017 a
federal parliamentary inquiry was announced into whether Australia should have a UK-
style modern slavery act and in what form.
40
There were a remarkable 225 submissions
to this inquiry, and 10 public hearings were held.
41
The number of submissions far
exceeded, for example, the 150 or so lodged during the inquiry into Australia’s federal
labour law, the Fair Work Bill, in 2009 and the 100 or so lodged during the inquiry into
the proposed Trans-Pacific Partnership in 2016. An unusually high proportion of
submissions to the modern slavery inquiry were from overseas, indicating the power of
transnational civil society networks in this movement.
In August 2017, the Australian Attorney-General’s Department released a discussion
paper outlining the government’s proposed model for the Modern Slavery in Supply
34
Ibid s 54. See also Part III below.
35
See, eg, Australian Government Department of Foreign Affairs and Trade, Amplifying our
Impact: Australia’s International Strategy to Address Human Trafficking and Slavery (March 2016).
36
This includes, for example, by way of funding the ILO’s Triangle project and funding the
ILO’s Better Work Programme.
37
The Bali Process is a regional forum for policy dialogue, information sharing and practical
cooperation to help the region tackle people smuggling, trafficking in persons and related
transnational crime: see .
38
The Bali Process, Bali Process Government and Business Forum
39
For discussion of the modern slavery frame’s broad appeal in the US context, see O’Connell
Davidson, Modern Slavery: The Margins of Freedom, above n 10, ch 1.
40
Joint Standing Committee on Foreign Affairs, Defence and Trade, above n 3.
41
Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia,
Inquiry into Establishing a Modern Slavery Act in Australia—Submissions (2017)
Defence_and_Trade/ModernSlavery/Submissions>.
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Chains Reporting Requirement.
42
This paper was released before the federal
parliamentary inquiry had a chance to publish its findings and recommendations, but
just in time for the Bali Process Government and Business Forum mentioned above. This
discussion paper outlined key features of the government’s proposed model and sought
feedback from stakeholders. Just a day later, a federal joint parliamentary committee
released an interim report, which recommended that the government introduce a
requirement for large Australian companies to report on actions taken to identify and
address risks of modern slavery in their operations and supply chains.
43
At the time of
writing this article, the precise features of the impending Australian model remain
unclear. It is likely to closely resemble the UK approach, but with more detailed
mandatory reporting criteria, and provide for the establishment of a centralised
repository of statements. Key areas of ongoing contestation include the types of entities
to which the reporting requirement will apply and the proposed revenue threshold (the
government has proposed $100 million, which is seen as too high by many civil society
groups); and whether or not penalties may be imposed on businesses that fail to comply
with the reporting requirements (the government has proposed that no penalties be
imposed on non-compliant companies).
This brief account of the arrival of the modern slavery paradigm in Australia reveals
both similarities and differences when compared to developments in the US and the UK.
Like in the US, powerful philanthropists in Australia have played a key role in bringing
the issue to public consciousness and pushing for government support and action. Also
like in the US and the UK, the nature and trajectory of government responses has been
shaped in important ways by transnational civil society networks. In the UK, however,
Judy Fudge and other scholars have drawn attention to the way in which anti-migration
polices of the Conservative Government and the determination to make the UK a hostile
environment for undocumented migrant workers formed a key part of the political
economy context leading to the UK MSA. This current has been less present in Australian
discourse around modern slavery (at least explicitly).
44
Instead, the adoption of a UK-
style transparency in supply chains provision would appear to be supported by the
Australian Government at least in part because it dovetails nicely with its desire to
establish itself as a regional and international leader on human trafficking and modern
slavery.
45
As discussed further below, the type of approach embodied in the UK model
is also consistent with the Australian Government’s determination to ‘take action’ but,
at the same time, to avoid implementing measures that would have a ‘high regulatory
impact on the business community’ and be inconsistent with the Government’s
Regulatory Reform Agenda.
46
42
Attorney-General’s Department, above n 2.
43
Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia,
Modern slavery and global supply chains: Interim report of the Joint Standing Committee on Foreign
Affairs, Defence and Trade’s inquiry into establishing a Modern Slavery Act in Australia (2017).
44
This is significant considering the strength of these currents elsewhere in Australian political
discourse.
45
See, eg, Department of Foreign Affairs and Trade, Submission No 32 to Joint Standing
Committee on Foreign Affairs, Defence and Trade, Inquiry into establishing a Modern Slavery
Act in Australia, 4 May 2017.
46
Attorney-General’s Department, above n 2, 11.
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A Accounting for Modern Slavery’s Momentum
Chuang has described the phenomenon by which the trafficking frame has expanded to
encompass other forms of labour exploitation as ‘exploitation creep’.
47
She argues that
this doctrinal and discursive imperialism has largely been the result of well-intentioned
and strategic bids ‘to subject a broader range of practices to a greater amount of public
opprobrium’.
48
The characterisation of egregious worker exploitation as issues of
modern slavery and trafficking was not natural or inevitable.
49
Rather, it is the product
of a series of developments that have converged and lent momentum to the modern
slavery frame. In this section we provide a brief political economy analysis of why the
idea of modern slavery has traction.
As discussed briefly in the previous section, the idea of modern slavery has been
driven by, and in turn helped consolidate, ‘a particular US anti-trafficking approach’
centred on the use of criminal justice frames and approaches.
50
This criminal justice
frame has been particularly attractive to states and also to business for a range of reasons.
The paradigm does not fundamentally challenge state or business interests or priorities.
Here, we agree with others that modern slavery is a ‘discourse of depoliticisation’.
51
The
traction of the idea is intimately connected to the use of criminal law and criminal
sanctions as ‘the pre-eminent way of expressing [this] social opprobrium’.
52
The
criminal justice model individualises responsibility, locating the source of the problem in
the deviant behaviour of individuals.
53
This criminal approach, with its attendant depoliticisation, is attractive to states in a
number of respects. First, the criminal approach is free of the power re-balancing
principles and institutions that are a key aspect of labour regulation. Labour regulation
understands exploitation to occur through systems of power that ar e at the heart of
relations between capital and labour. It seeks to redress the imbalance of power between
capital and labour through structures of collective bargaining and so on discussed
further later in this paper. A criminal approach understands exploitation to be an
aberration rather than part of a system of inequality. It does not seek to empower or
collectively organise those who are trafficked or find themselves in bonded labour; it
understands these people as agentless.
Second, modern slavery absolves the state of responsibility for its role in creating
structures and conditions that permit or indeed facilitate serious labour exploitation.
54
It does not challenge the state to address conditions such as strict border controls which
might perversely encourage people-smugglers to circumnavigate official border-entry,
and thus increase the danger of slavery or forced labour for those that are smuggled.
Nor does it challenge states to reckon with the role of weak enforcement of labour laws
by inspectorates or courts that may enable this coercion to take place. Third, the
47
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6.
48
Ibid 611.
49
Fudge, ‘Modern Slavery and Migrant Domestic Workers’, above n 6, 2.
50
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6, 611.
51
O’Connell Davidson, ‘New Slavery, Old Binaries’, above n 10, 245; Chuang, ‘Exploitation
Creep and the Unmaking of Human Trafficking Law’, above n 6, 638.
52
Fudge, ‘Modern Slavery and Migrant Domestic Workers’, above n 6, 2.
53
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6, 636–
7.
54
Ibid; Fudge, ‘Modern Slavery and Migrant Domestic Workers’, above n 6, 9–10.
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approach likely appeals to states because it is consistent with the idea of the strong and
responsive state without requiring the expansion of labour regulation or other
unpalatable regulation. States under pressure to be ‘tough on crime’ can create the
appearance of being tough on modern slavery, and at the same time remain free to
weaken labour regulation and trade unions through other reforms.
For business, the criminal model is far more appealing than other solutions to forced
labour such as the expansion of labour law. First, the criminal law approach to
addressing modern slavery is likely made more palatable for business by the absence of
unions in the system of enforcement. Second, it offers an opportunity to enhance state-
business relations on a socially beneficial issue. The state and business can be seen to be
doing good together. Indeed, it is notable that Walk Free emphasises that ‘[g]overnment
and business must work together by identifying the use of modern slavery in supply
chains and developing creative and lasting solutions to this issue’.
55
There is little
mention of other actors. Third, the approach does not challenge standard business
models or methods of profit generation. According to this model, extreme exploitation
is not the product of, or in any way linked to, the institutions and practices of modern
capitalism but rather to deviant individuals. Finally, and as has been argued
persuasively by LeBaron and Rühmkorf, it is possible to explain business support for
the specific type of transparency-based regulation embodied in the UK MSA model as
an effective strategy through which to stave off stronger forms of regulation (such as is
found in the Bribery Act 2010 (UK) and human rights due diligence models).
56
The UK
model, it is argued, amounts to little more than statutory endorsement of existing
voluntary CSR approaches and initiatives.
57
In the Australian context, opposition to the
possibility of penalties being imposed on companies that fail to comply with the
proposed reporting requirement by the very same actors that have called for the
introduction of a reporting requirement would appear to lend support to LeBaron and
Rühmkorf’s thesis.
For civil society organisations, characterising a form of labour exploitation as modern
slavery brings with it a simple and unassailable moral force, which is capable of
galvanising a very wide range of actors. These include actors that in other circumstances
may not be allies. In the US, the modern slavery frame has helped bring African
American and low-wage migrant workers in coalitions against workers’ rights abuses.
58
In the UK, Fudge details how the frame has been used by advocacy groups to convince
successive UK governments of the need to permit workers engaged on domestic workers
visas to change employers.
59
In this way, the frame has given civil society organisations
55
Walk Free Foundation, The Case for an Australian Modern Slavery Act (2017) Walk Free
Foundation,
2.amazonaws.com/content/uploads/2017/03/20160209/The-Case-for-an-Australian-
Modern-Slavery.pdf>.
56
Genevieve LeBaron and Andreas Rühmkorf, ‘Steering CSR Through Home State Regulation:
A Comparison of the Impact of the UK Bribery Act and Modern Slavery Act on Global Supply
Chain Governance’ (2017) 8(S3) Global Policy 15; Genevieve LeBaron and Andreas Rühmkorf,
‘The Domestic Politics of Corporate Accountability Legislation: Struggles Over the 2015 UK
Modern Slavery Act’ (2017) 0(0) Socio-Economic Review 1.
57
LeBaron and Rühmkorf, ‘The Domestic Politics of Corporate Accountability Legislation:
Struggles Over the 2015 UK Modern Slavery Act’, above n 56, 2.
58
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6, 612.
59
Fudge, ‘Modern Slavery and Migrant Domestic Workers’, above n 6, 2.
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traction concerning groups of people who have otherwise been vilified. A slave is an
agentless victim, in contrast to an illegal ‘job stealing’ immigrant who has jumped the
queue for entry to the country. It is for this reason that the frame is attractive to, and
used increasingly by, rights advocates. It also helps to explain why trade unions in
Australia have been supportive of the approach, instead of insisting on a labour
regulation approach which would provide a role for them as monitors and enforcers.
60
III THE PROMISE AND PERILS OF THE MODERN SLAVERY FRAME
Modern slavery abolitionism has led to important advances. In many countries,
including Australia, it is directing attention to the presence of egregious practices that
may otherwise have been overlooked or tolerated.
61
It is also fa cilitating, if not
compelling, heightened awareness of the risks implicit in corporate supply chain
structures. It has brought to the forefront of business and consumer minds the notion
that products and services they are benefiting from may be produced via complex
supply chain arrangements in which workers are subject to unacceptable conditions. In
February 2016, for example, the Sydney Morning Herald revealed that iconic Australian
surf wear brand Rip Curl was using North Korean workers subject to slave-like
conditions to produce some of their clothing.
62
While the implications of such reportage
is unclear, and of course it tends to be limited to a focus on modern slavery rather than
other forms of labour exploitation or broader human rights or environmental concerns,
this pedagogical function may nonetheless be among the phenomenon’s most positive
contributions.
The modern slavery phenomenon not only highlights the need for consumers and
businesses to think about the providence of the products and services they consume, it
also seems to be spurring on regulatory action by the government. By elevating concern
with corporate supply chain models to national law-making, the modern slavery
paradigm appears to be achieving a feat that has long eluded civil society groups in
Australia. Transnational supply chain regulation in Australia has generally proceeded
at a glacial pace. Other OECD countries, such as the US and France, have developed
various legal initiatives as shown in the timeline above. Meanwhile, Australia is a
laggard in the implementation of the OECD Guidelines for Multinational Enterprises and
other such international norms which encourage countries to regulate the human rights
practices of business in their operations overseas and in their supply chains. The modern
slavery movement has generated broad, bipartisan agreement involving both business
and civil society. This agreement may not be complete (for example, the business group
ACCI has withheld support), but it is unusually widespread.
Despite these positive results, our argument is that there are also risks associated
with the increasing focus on modern slavery. The first set of risks goes to an overly
optimistic account of what the UK-style initiative is capable of achieving. The second set
60
Australian Council of Trade Unions, Submission No 113 to Joint Standing Committee on
Foreign Affairs, Defence and Trade, Parliament of Australia, Inquiry into Establishing a Modern
Slavery Act in Australia, 4 May 2017.
61
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6, 649.
62
Nick McKenzie and Richard Baker, ‘Surf Clothing Label Rip Curl Using ‘Slave Labour’ to
Manufacture Clothes in North Korea’, The Sydney Morning Herald (online) 21 February 2016
manufacture-clothes-in-north-korea-20160219-gmz375.html>.
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of risks goes to the potential for the modern slavery frame to be embraced at the expense
of more thorough and effective means of regulating supply chains. We expand on this
argument below.
A Being Realistic about the UK-Style Corporate Disclosure Approach
In this section of the paper, we consider the impact of the UK MSA and any potential
Australian Act which is modelled on it. As noted above, the UK MSA transparency in
supply chain provision is having some positive impacts, including on levels of
awareness of this issue among companies, consumers and investors. There is also
evidence to suggest that it is prompting more companies to adopt policies and processes
relating to modern slavery. It may be that the most appropriate way to see the Act is one
among many tools that can be used to promote greater corporate accountability for
labour exploitation in domestic and transnational supply chains. However, it has a
number of limitations which we consider in this section.
1 Exaggerated Scope
First, we suggest that there is a tendency to overstate the scope of issues that will be
addressed by any prospective Australian Modern Slavery Act. Some of the commentary
on the proposed initiative has suggested that such a development would help address
the types of systematic exploitation that have been recently exposed in various sectors
of Australian and international labour markets. Amongst other examples these include
the systematic underpayment of workers in franchises such as 7-Eleven, Caltex and
Pizza Hut, as well as in the poultry processing sector and Australia’s horticultural
industry.
63
These are unlikely to constitute forced labour, servitude or human
trafficking because of the stringency of tests applied to prove such egregious forms of
labour exploitation, and the authors are not aware of any efforts by the authorities to
prosecute them as such. Some cases exhibit certain aspects of the hallmarks of such
offences, such as unlawful passport retention, high and hidden recruitment fees
resulting in indebtedness that can trap workers in their jobs, deceptive recruitment
practices, the presence of third party intermediaries, highly constrained freedom of
movement and poor living conditions. But much of the conduct reported—however
appalling—does not constitute modern slavery. A transparency in supply chain
provision of the type required by the proposed Modern Slavery Act will not prevent 7-
Eleven-type practices, or afford much needed protection to migrant workers engaged
on Australian farms. It will not prevent much of the unscrupulous and systematic
exploitation of migrant workers that has been revealed as pervading sectors of the
Australian labour market. Nor, despite the impression conveyed to the contrary by
articles on modern slavery leading with images of the Rana Plaza factory collapse, will
it prevent such international industrial disasters. These stem from factors such as
existing global production models, the inadequacies of legal institutions in developing
countries, the failure of governments in developed states to adequately regulate the
63
Adele Ferguson, ‘Wage Fraud: Pizza Hut Hit with Fines’, The Sydney Morning Herald (online)
27 January 2017 hut-hit-
with-fines-20170126-gtzrbx.html>; Adele Ferguson, ‘Is the Caltex Franchise Model Worse for
Workers than 7-Eleven?’, The Sydney Morning Herald (online) 26 November 2016
worse-for-workers-than-7eleven-20161125-gsxth3.html>; ‘Baiada Accused of Using Labour
Hire Companies which Exploit Foreign Workers’, ABC News (online) 5 May 2015
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extraterritorial activities of firms domiciled in their territories, and the failure of
multinational companies to conduct adequate human rights due diligence.
The UK initiative is limited to the most egregious forms of labour exploitation. While
the precise standards covered by any potential Australian version remain unclear, it is
likely to focus on a similarly narrow category: slavery, servitude, human trafficking and
forced labour. These all have precise legal definitions under Australian criminal law.
Even if we presume effectiveness (see further below) a company may comply with the
reporting requirements and indeed take meaningful action to identify, prevent and
address risks of modern slavery in their supply chains, without taking action to ensure
it is respecting other labour rights, such as the level and timely payment of wages,
working hours, freedom of association, discrimination, health and safety and so on.
There is the possibility that some companies may put in place due diligence processes
to pick up risks of modern slavery that are cast broadly enough to detect the existence
of other (non-modern-slavery) forms of labour abuse. These companies might be
compelled to address them. However, these positive outcomes of a Modern Slavery Act
for broader labour abuses would be accidental and far from guaranteed.
2 Exaggerated Impact
We also observe a tendency to exaggerate the likely impact of a modern slavery act
approach. For instance, in 2016, Angel Gurría, the Secretary-General, OECD, lauded the
UK Government for its leadership, observing that ‘With the passage of the UK Modern
Slavery Act, it is now illegal for UK businesses not to take action to prevent modern
slavery in their supply chains.’
64
In reality, the UK MSA does not make inaction illegal,
and it does not cover all UK business, just the largest ones. Yet such claims about the
transformative potential of the supply chain reporting requirement are not uncommon.
The UK provisions (and presumably any Australian version) do not impose legal
liability on companies for modern slavery within their domestic or transnational supply
chains. Instead, companies are encouraged in their efforts to eradicate modern slavery
by requiring them to publicly report on measures they are taking to identify and address
modern slavery in their operations and supply chains. This is intended to prompt
companies that have not thought about these issues to start doing so and through
enabling NGOs and others to compare and benchmark approaches, to fuel a ‘race to the
top’.
Under the UK model, companies that meet the threshold size are only required to do
three things: (i) to publish an annual ‘slavery and human trafficking statement’ that
discloses steps the company has taken during the financial year to ensure that slavery
and human trafficking is not taking place in any of its supply chains or in any part of its
own business (even if this means stating that the organisation has taken no such steps);
65
to have the statement approved by the board or its equivalent;
66
and to publish the
statement on its website (where it has one), including a link to the statement in a
prominent position on the website’s homepage.
67
Beyond this, it is essentially up to
individual companies to explain their policies and practices, and in what level of detail,
64
Angel Gurría, ‘Opening Remarks’ (Speech delivered at the Fourth Global Forum on
Responsible Business Conduct, Paris, 8 June 2016).
65
Modern Slavery Act 2015 (UK) s 54(4).
66
Ibid s 54(6).
67
Ibid s 54(7).
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although further guidance is provided in sub-section 54(5) of the UK MSA. In addition,
pursuant to section 54(9) of the UK MSA under which the Secretary of State may issue
further guidance, the UK Home Office has published ‘Transparency in Supply Chains etc.:
A Practical Guide’, which elaborates on the detail companies may wish to include within
their statement.
68
There is an emerging body of evidence measuring the effectiveness of the UK model,
based on early compliance. This evidence suggests that the regulatory initiative is
having an impact but that this impact is limited in important ways. First, many
companies that are required under the UK MSA to report are producing statements that
do not meet the minimum requirements set down in the Act. A March 2016 study of 75
Modern Slavery Statements by companies in the UK found that many statements lacked
adequate detail, with only 9 of the statements meeting the minimum requirements
required by the Act and covering the six suggested areas found in s 54(5) of the UK
MSA.
69
A 2018 study which assessed Modern Slavery Statements produced by
multinational companies in the information, communication and technology (ICT)
sector (a sector at high risk of forced labour) found that, three years after the introduction
of the reporting requirement, only 18% of the statements (14 out of 79) analysed were
compliant with the three minimum requirements of the Act.
70
Second, the wide latitude and ambiguity over the content of statements has meant
many statements produced in response to the UK MSA contain little or no relevant or
useful information. A 2017 study of statements reported that while there was some
improvement in relation to the length and detail of statements when compared to those
issued 12 months previously, this improvement was largely in relation to company
structure, operations, supply chains and modern slavery policies. Most statements (58%)
still only addressed risk assessment processes minimally and did not identify priorities
for action based on the assessment. In addition, only 11% of companies in the sample
disclosed specific cases where steps were taken in response to identified modern slavery
risks. The report concluded that whilst there were some exceptions:
our analysis shows that superficial and broad descriptions of process and actions remain
the norm for the bulk of reporters. In this respect, as modern slavery reporting becomes
more routine, there is a danger that the default position could be anodyne statements that
68
Broadly, this guidance recognises that the content and level of detail should be determined
by each organisation based on its risk profile (including its sector, the complexity of its
structure and supply chains, and the sectors and regions in which its suppliers operate):
United Kingdom, Transparency in Supply Chains etc.: A Practical Guide, 10 [4.2]
906/Transparency_in_Supply_Chains_A_Practical_Guide_2017.pdf>.
69
CORE and Business and Human Rights Resource Centre, ‘UK Modern Slavery Act: First 75
Statements In’ (Press Release, 7 March 2016)
content/uploads/2016/03/CORE-BHRRC-press-release_modern-slavery-
statements_160307_.pdf>.
70
KnowTheChain, Eradicating Forced Labour in Electronics: What Do Company Statements Under
the UK Modern Slavery Act Tell Us? (March 2018) KnowTheChain, 4.
Report_Final_Web.pdf>.
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deal only in generalities. This would run counter to the intention of the Act and is unlikely
to meet the expectations of regulators, civil society or, increasingly, investors.
71
Another study conducted in 2016 found that only 23% of companies surveyed reported
having modern slavery due diligence processes in place and the clear majority (81%) of
these companies reported no increase in available resources allocated to address modern
slavery since the UK MSA was introduced.
72
The 2018 study of the ICT sector noted
above also found that many company statements lacked credibility and substance.
Indeed, the majority of company statements did not address forced labour risks specific
to the electronics sector, even though the nature of these risks (eg the exploitation of
migrant workers through recruitment agencies) are widely documented.
73
The risk of the UK model promoting ‘tick the box’ responses from business has been
noted by the UK Independent Anti-Slavery Commissioner. In 2016, Commissioner
Hyland OBE observed:
It is clear that the Modern Slavery Act has pushed modern slavery up the agenda and into
the boardrooms of large businesses, which is a move in the right direction. Now, we need
to see companies produce statements that both comply with the Act’s requirements and
point to decisive action being taken, as opposed to merely being a ‘tick box’ exercise.
74
The risk of superficial or cosmetic forms of compliance is not limited to the UK MSA.
Similar problems have been observed in the US in the context of the California
Transparency in Supply Chains Act, with studies noting that commercial organisations are
interpreting the reporting requirements however they see fit and in widely divergent
ways.
75
Empirical research on the conflict mineral supply chains transparency measures
in section 1502 of the US Dodd-Frank Wall Street Reform and Consumer Protection Act 2010
(Dodd-Frank Act) also suggest an emerging problem with superficial reporting.
76
71
Lis Cunha and Stuart Bell, Modern Slavery Statements: One Year On (April 2017) Ergon
Associates, 10
content/uploads/2016/03/MSA_One_year_on_April_2017.pdf?x74739>.
72
Quintin Lake et al, Corporate Leadership on Modern Slavery: How Have Companies Responded to
the UK Modern Slavery Act One Year On? (Hult International Business School and The Ethical
Trading Initiative, November 2016) 16–17
modern_slavery_full_report_2016.pdf>. Allocated budget does not of course indicate
effectiveness, although it would seem a reasonable proxy for the seriousness with which a
company takes an issue.
73
KnowTheChain, above n 70, 4.
74
Kevin Hyland OBE, UK Independent Anti-Slavery Commissioner, quoted in Lake et al, above
n 72, 68.
75
Shuangge Wen, ‘The Cogs and Wheels of Reflexive Law—Business Disclosure Under the
Modern Slavery Act’ (2016) 43 Journal of Law and Society 327, 355. See also Jonathan Todres,
‘The Private Sector’s Pivotal Role in Combating Human Trafficking’ (2012) 3 California Law
Review Circuit 80,95.
76
This provision essentially requires publicly traded companies that manufacture products
using certain conflict minerals originating in the Democratic Republic of Congo and
bordering countries to issue a Conflict Minerals Report detailing the due diligence measures
taken to determine whether those conflict minerals directly or indirectly financed or
benefited armed groups in the covered countries. Analysis of the first set of Conflict Mineral
Reports submitted by companies in response to this requirement has found only around 7%
of companies reported strong due diligence measures: Galit A Safarty, ‘Shining Light on
Global Supply Chains’ (2015) 56(2) Harvard International Law Journal 419, 423. Another study
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From a regulatory perspective, the lack of detail required to be disclosed by
companies under the UK and other models is problematic. The UK model can be
understood as a transparency or disclosure-based form of regulation,
77
which involves
‘the mandatory disclosure of structured factual information by private or public
institutions in order to advance a clear regulatory goal’.
78
This type of mandated
information disclosure regulation is intended to educate and encourage corporate ‘self-
reflection’ by injecting new risk factors into the management thought process.
79
It is also
intended to help drive accountability and improved company performance by making
available the information necessary for better engagement by the company with
stakeholders on how it is managing these risks. The basic policy justification for this type
of mandatory information disclosure is the problem of information asymmetry.
80
Corporations have information that outside stakeholders could use to hold corporations
accountable or further their learning, but those stakeholders cannot gain access to the
information at all or without incurring significant costs. Through mandated disclosure,
the government addresses the asymmetry problem and allows the interested
stakeholders to act upon the information as they see fit. Corporate disclosure of social
information results in changed behaviour by way of an ‘action cycle’ involving multiple
steps.
81
An organisation discloses new information, stakeholders take in and process the
information, the stakeholders then decide to alter their behaviour based on the new
information, and the organisation then recognises those changes and responds
appropriately.
82
Despite its increased popularity in recent decades, transparency-based regulation is
not always the most appropriate form of regulation to use to further public policy goals
and it does not work in all cases. From a regulatory perspective, there are a number of
important conditions which must be met to ensure the success of this type of
transparency-based regulation: that is, to ensure that it has its intended effect on
company behaviour.
83
Critical among these is that a company discloses detailed and
material information on the specific issue. This is necessary for at least three reasons.
The first is to encourage companies to engage in ‘self-referential fact finding’ and collect
relevant information
84
(eg on their supply chains beyond Tier 1 and where there are the
greatest risks of modern slavery). The second is to ensure accountability and to provide
information that allows stakeholders such as civil society, potential business partners,
concluded that many companies complying with the requirements have done so, ‘in a largely
superficially manner, suggestive of minimal effort’: Jeff Schwartz, ‘The Conflict Minerals
Experiment’ (2016) 6(1) Harvard Business Law Review 129, 131.
77
Wen, above n 75; David Weil et al, ‘The Effectiveness of Regulatory Disclosure Policies’ (2006)
25(1) Journal of Policy Analysis and Management 155.
78
Weil et al, above n 77, 155.
79
David J Doorey, ‘Who Made That? Influencing Foreign Labour Practices through Reflexive
Domestic Disclosure Regulation’ (2005) 43(4) Osgoode Hall Law Journal 353, 371.
80
Ibid 156. See also Wen, above n 75, 329.
81
Weil et al, above n 77, 157.
82
Ibid; David Hess, ‘The Three Pillars of Corporate Social Reporting as New Governance
Regulation: Disclosure, Dialogue and Development’ (2008) 18(4) Business Ethics Quarterly 447,
457–8.
83
See, eg, Hess, above n 82; Weil et al, above n 77, 173; Archon Fung and Mary Graham and
David Weil, Full Disclosure: The Perils and Promise of Transparency (Cambridge University
Press, 2007); and Doorey, above n 79.
84
Doorey, above n 79, 363.
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investors and the public to evaluate company performance and identify best practice.
Detailed information is also necessary to evaluate whether self-regulation on an issue is
working or if some other approach is required.
Information must also be produced in a manner that is broadly comparable in
quality, detail and vocabulary. Research from a variety of regulatory disclosure regimes
has shown that where regulators provide organisations with a broad discretion to
determine the content and extent of disclosure, there is less likelihood of such a
regulatory measure altering business incentives or performance.
85
This is necessary to
enable and facilitate meaningful analysis and comparison by NGOs, consumers,
investors and other interested parties. These parties are also less likely to use
information provided where there is a high cost associated with collecting and
understanding it.
The provision of clear and detailed standards or criteria for company reporting are
also important to eliminate potential competitive disadvantages that may arise for
companies that do genuinely and in good faith take, and report in detail on, efforts to
address risks of modern slavery in their supply chains. In this context, a ‘prisoner’s
dilemma’ problem may arise because a firm may be reluctant to voluntarily disclose
information for fear of being compared negatively to its rivals and possibly tainting the
whole industry.
86
While mandatory disclosure requirements in theory resolve this
dilemma by forcing all enterprises to report, providing companies with such a great deal
of latitude in what detail to report can still result in competitive disadvantages. Those
who report in good faith may still be exposing themselves in ways that less transparent
companies are not. This highlights the importance of the aim of levelling the playing
field, as stated above. Finally, some standardisation of details required is necessary to
ensure that regulators can identify and sanction inadequate information disclosure.
87
IV ALTERNATIVE APPROACHES
In this section, we describe two broad alternatives to the modern slavery approach.
While we describe these as alternatives, we are not suggesting that these and a Modern
Slavery Act are mutually exclusive. Indeed, we can imagine a regulatory approach
which would add criminal penalties to labour law penalties, augmented by transparency
provisions. As it currently stands, however, we argue that the modern slavery approach,
with its criminal justice and reporting orientation, runs the risk of directing attention
and resources away from these more promising approaches to addressing serious forms
of labour exploitation.
A A Labour Regulation Approach
What would a labour regulation approach to egregious forms of labour abuse look like,
and how would it compare with the modern slavery approach? Happily, this is not an
abstract question. There are existing labour regulation approaches that we can examine
to find this out. This section starts by describing a labour regulation approach in broad
terms. It then briefly discusses several relevant models, as found in ILO instruments and
in Australian labour law.
85
David Weil et al, above n 77, 176.
86
Wen, above n 75, 349.
87
Ibid 355.
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Labour regulation institutions provide various means of increasing the agency of
employees/workers who are considered to lack power relative to capital. Labour
regulation establishes ‘fair practices’ for negotiation and certain standards below which
parties cannot negotiate. These process rights exist in relation to the negotiation of
individual contracts, and also in relation to collective bargaining. Indeed, one of the most
important aspects of labour regulation is the protection of the right for workers to
increase their power by coming together, collectively organising and being represented
through trade unions. As Shamir notes, a labour approach contains a ‘contextual
understanding of power dynamics in market settings, attention to the operation of
background rules, and the role of direct collective action in transforming economic
market inequalities’.
88
When workers are harmed in some way, they are able to bring
claims in court or in labour tribunals. If the type of harm is systemic or experienced by
a collective of workers, the workers have the right to strike, make collective complaints
or bargain collectively. In contrast to the labour regulation approach to empowerment,
the modern slavery approach casts those experiencing harm as victims, to be rescued
and protected.
89
There are no institutions which empower workers by bringing them
together. The workers themselves do not make claims under the modern slavery
approach; the states make criminal charges on their behalf.
Labour regulation sets various standards and rights which address the causes of
exploitation at various points in the working relationship or over a worker’s life: at the
point of hiring, while employed, and at the point of firing, redundancy or retirement. It
aims to put a floor on competition between businesses on the basis of the cost of labour.
In contrast, the modern slavery approach does not tackle the conditions that enable
severe forms of labour exploitation to exist or even prosper—including intentional
corporate strategy that seeks to maximise profits by lowering wages.
90
The first alternative model to what we have characterised above as the modern
slavery approach can be found in the 2014 Protocol to the ILO Convention on Forced
Labour (C29). This Protocol seeks to address bonded and forced labour, and the
trafficking associated with these forms of exploitation, through strengthening and
expanding labour regulation. The protocol and its accompanying recommendation call
for states to recognise fundamental principles and rights at work and address the root
causes of workers’ vulnerability to forced or compulsory labour.
91
It calls for measures
such as the expansion of labour law protections to cover all workers, and the
strengthening of social protection and labour law enforcement. It also emphasises the
importance of states taking measures to address the specific vulnerabilities experienced
by migrant workers, including by way of providing information to migrant workers (on
departure and arrival) and regulating labour recruiters and employment agencies. It also
recommends that states provide guidance and support to employers to take ‘effective
measures to identify, prevent, mitigate and account for how they address the risks of
88
Shamir, above n 8, 98.
89
Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6, 609;
Fudge, Modern Slavery and Migrant Domestic Workers, above n 6.
90
Cathy Feingold, A Binding Convention on Decent Work: The First Step to Workers’ Rights (13
September 2016) openDemocracy
yes>.
91
International Labour Organization, Forced Labour (Supplementary Measures) Recommendation
No 203, 4(j), 103rd ILC sess (11 Jun 2014).
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forced or compulsory labour’ in their operations and supply chains.
92
Australia has not
yet ratified the Protocol, though the government has pledged ‘to progress’ its
ratification.
93
Australian labour law does not explicitly address forms of modern slavery
offences.
94
These most egregious forms of labour abuse are instead addressed in the
Criminal Code.
95
Nevertheless, the Fair Work Act 2009 (Cth) (‘FW Act’) can be used to
prosecute forms of labour exploitation involving under or non-payment of wages, where
the employer is in breach of an Award or a Minimum Wage Order.
96
Provisions
concerning the use of coercion (section 343) and undue influence or pressure (section
344) may also be applied. The Act also contains a number of wage-related provisions
which have application with respect to the payment of bonds or deductions from pay.
97
Under recent reforms (discussed below), the penalties imposed on employers may be
increased ten-fold in cases of ‘serious contraventions’.
98
Both the Fair Work
Ombudsman and trade unions can bring claims under these provisions. Despite not
explicitly addressing forced labour, because of the high threshold required to constitute
one of the slavery offences under the criminal code, the FW Act remains a particularly
important legal avenue for prosecuting modern slavery-type offences.
The obvious limitation of the civil remedy provisions in the FW Act for failure to
comply with minimum employment standards identified above is that they ascribe
liability for contraventions of certain provisions of the Act and of industrial instruments
to the primary employer.
99
However under section 550, responsibility for breach of civil
92
Ibid. The protocol is part of the ILO’s strategy to target the ‘worst forms of “un-decent
labour”’ such as forced labour and child labour, so as to revive the institution’s global
relevance. While this approach has been successful, and resulted in new partnerships
between nation-states and the ILO, it has been cri ticised for failing to see the worst forms of
exploitation as the consequence of economic systems that produce various types of less than
decent work. In other words, it accepts the rules of the game, instead of trying to change the
rules: Jens Lerche, ‘A Global Alliance against Forced Labour? Unfree Labour, Neo-Liberal
Globalization and the International Labour Organization’ (2007) 7 Journal of Agrarian Change
425.
93
Australian Government, Department of Employment, Australia’s Pledge to Progress Ratification
of the Forced Labour Protocol (27 November 2017)
c/other/australias_pledge_final_0.pdf>.
94
One explanation for this is, as Shamir puts it, ‘[f]rom a labor perspective, the difference
between exploitation of workers and trafficking is a matter of degree and not kind. All forms
of labor entail some degree of human commodification; forced labor and trafficking are
perhaps its most extreme manifestations’: Shamir, above n 8, 110.
95
Criminal Code Act 1995 (Cth) (‘Criminal Code’). Div 270 of the Criminal Code criminalises
offences relating to slavery; sub-s 270.4(1) defines servitude; sub-s 270.6(1) of the Criminal
Code defines forced labour; div 271 of the Criminal Code criminalises human trafficking into,
from, or within Australia, and contains specific offences for domestic trafficking, child
trafficking and organ trafficking.
96
[PR593544] set the wages for employees not covered by an enterprise agreement or a modern
award.
97
FW Act ss 323–6.
98
Ibid s 557A.
99
Ibid pt 4-1. These standards include the National Employment Standards, a term of a modern
award or enterprise agreement or the sham contracting provisions. The civil remedies
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remedy provisions in the Act may be extended beyond the person directly responsible
in the breach to others ‘involved in’ the contraventions. This includes where a person
has aided or abetted the contravention; procured or induced it (whether by threats or
promises or otherwise); conspired with others to bring it about; or been, in any way, by
act or omission, ‘knowingly concerned’ in the contravention. These ‘accessorial liability’
provisions of the federal FW Act have proven to be an important mechanism to promote
greater accountability of lead firms for contraventions of employment standard
regulation that have occurred within domestic supply chains.
100
Indeed, they have been
strategically used by the Australian employment standards enforcement agency—the
Office of the Fair Work Ombudsman (FWO)—for precisely this purpose. While such
efforts have met with some success, however, the application of the provisions is limited
by the fact that they impose a high threshold in terms of the requisite level of knowledge
a lead firm must be proven to have to establish liability for breaches occurring further
down in its supply chain.
101
Recent amendments to the FW Act offer another potential regulatory approach
through which to extend responsibility for exploitative labour practices in a supply
chain context. In response to revelations of widespread and systematic non-compliance
with labour laws in a number of well-known franchising networks, the Federal
Parliament in 2017 passed the Fair Work Amendment (Protecting Vulnerable Workers) Act
2017 (Cth) (‘Protecting Vulnerable Workers Act’). This Act contained three relevant
reforms. First, it provided for higher penalties to be imposed in relation to ‘serious
contraventions’ of key provisions of the FW Act.
102
Second, it strengthened the evidence-
gathering powers of the labour inspectorate so that it can better regulate labour
standards in complex business relationships. Third, it extends liability for employment
contraventions beyond the direct employer in certain circumstances. Under the new
provisions, a ‘responsible franchisor entity’ (or one of its officers) will be held liable for
prescribed contraventions committed by their franchisees where they ‘knew, or
reasonably ought to have known, about the contraventions and have failed to take
reasonable steps to prevent them.’ Similar provisions apply to holding companies in
relation to contraventions committed by their subsidiaries.
103
Detailed consideration of
how the approach embodied in these reforms could be applied to supply chains more
broadly is beyond the scope of this paper. However, the reforms would appear to
embody significant potential to extend liability for contraventions of employment laws
to businesses that can be shown to be exerting significant control or influence over
entities within their supply chains.
provided for generally include a pecuniary penalty and compensation orders, although the
courts have a broad power to make ‘any order the court considers appropriate’: FW Act s 545.
100
For a discussion of other strategies used by the FWO in this space, see Tess Hardy and John
Howe, ‘Chain Reaction: A Strategic Approach to Addressing Employment Noncompliance
in Complex Supply Chains’ (2015) 57(4) Journal of Industrial Relations 563. See also Tess Hardy,
‘Who Should be Held Liable for Workplace Contraventions and on What Basis?’ (2016) 29
Australian Journal of Labour Law 78.
101
To be liable under s 550 of the FW Act, an alleged accessory must have had ‘knowledge of the
essential matters which go to make up the contravention,’ even if they were not actually
aware that the law was being broken. For discussion see Hardy, above n 100.
102
FW Act s 557A.
103
See FW Act pt 4-1, div 4A.
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The final model for the extension of liability in supply chains identified here is the
set of provisions in the FW Act that apply to homeworkers (referred to as outworkers in
the statute) in the textile, clothing and footwear industry. Under Division 3 of the Act,
outworkers can make claims against parties higher in the supply chain for unpaid pay
including remuneration, leave, superannuation or reimbursements.
104
There is no
requirement to show knowledge or intentional participation.
105
It is the view of the
authors, however, that these sections are limited, and extension of liability and
responsibility under the Protecting Vulnerable Workers Act offers a more promising way
forward.
B A Human Rights Due Diligence Approach
The second regulatory approach against which we contrast the modern slavery frame is
human rights due diligence. Human rights due diligence encourages companies to
identify, assess and mitigate their actual and potential adverse impacts on
internationally-recognised human rights. Below, we offer a brief description of the
concept’s origins and main features. We then explain how the approach offers a more
comprehensive and potentially effective means of addressing labour exploitation
(including those forms of exploitation associated with modern slavery) in domestic and
transnational corporate supply chains. This section finishes with a brief discussion of
what a public regulatory framework for human rights due diligence could look like.
The concept of human rights due diligence is elaborated upon in the UN Guiding
Principles on Business and Human Rights.
106
While not legally binding, the Guiding
Principles are widely accepted as the most authoritative global standard on business and
human rights, and have been incorporated into numerous transnational regulatory
instruments including the OECD Guidelines on Multinational Enterprises (to which
Australia is an adherent) and the ILO’s Tripartite Declaration of Principles concerning
Multinational Enterprises and Social Policy. The Australian Government co-sponsored the
UN resolution endorsing the Guiding Principles and continues to reiterate its support for
them.
104
Ibid ss 789CA, 789CB and 789CC stated that when a TCF outworker performs TCF work for
a person, and that responsible person does not pay an amount that is payable, in relation to
the TCF work, an indirectly responsible entity (higher in the supply chain) is liable to pay the
unpaid amount.
105
See Shelley Marshall, ‘An Exploration of Control in the Context of Vertical Disintegration,
and Regulatory Responses’ in Chris Arup et al (eds), Labour Law and Labour Market Regulation:
Essays in the Construction, Constitution, and Regulation of Labour Markets and Work Relationships
(Federation Press, 2006) 542; Shelley Marshall, ‘Australian Textile Clothing and Footwear
Supply Chain Regulation’ in Colin Fenwick and Tonia Novitz (eds), Human Rights at Work:
Perspectives on Law and Regulation (Hart, 2010) 555; Shelley Marshall, ‘How does Institutional
Change Occur? Two Strategies for Reforming the Scope of Labour Law’ (2014) 43(3) Industrial
Law Journal 286; Michael Rawlings and John Howe, ‘The Regulation of Supply Chains: An
Australian Contribution to Cross-National Legal Learning’ in Katherine Van Wezel Stone
(ed), Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Russell Sage
Foundation, 2013) 233.
106
United Nations Office of the High Commissioner, Guiding Principles on Business and Human
Rights, UN Doc HR/PUB/11/04 (16 June 2011)
> (‘Guiding Principles’).
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Human rights due diligence is the means through which a business can
operationalise its responsibility to respect human rights in its operations and supply
chains. It can be understood as a technique or process by which companies can identify
and limit their adverse impacts on human rights.
107
It can also be understood as an
evolving (and potentially legal) standard of corporate conduct required to discharge the
corporate responsibility to respect human rights.
108
It is different from other forms of
corporate due diligence, in that it requires companies to focus on risks to rights-holders
(not to the company itself); is ongoing (in contrast to transactional due diligence); and
requires companies to engage with,
109
and communicate details of their due diligence
efforts to, external stakeholders.
110
Human rights due diligence encourages companies to identify, assess and mitigate
their actual and potential adverse impacts on all internationally-recognised human
rights,
111
not just the smaller subset of rights associated with modern slavery. In doing
so, it avoids any notion that there are ‘acceptable’ and ‘unacceptable’ forms of
exploitation—a proposition that tends to be implicitly conveyed by an exclusive focus
on modern slavery.
112
In the labour rights context, for example, this means that a
company is obliged to consider its actual and potential risks to workers in areas
including freedom of association and collective bargaining, health and safety, non-
discrimination, fair and just working conditions, a living wage and so on.
Human rights due diligence involves a company prioritising for attention those
human rights risks that are most relevant to its activities and operating context. The
107
Karin Buhmann, ‘Neglecting the Proactive Aspect of Human Rights Due Diligence? A
Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for
Promoting Pillar Two Action’ (2017) 3(1) Business and Human Rights Journal 11.
108
See further Jonathan Bonnitcha and Robert McCorquodale, ‘The Concept of ‘Due Diligence’
in the UN Guiding Principles on Business and Human Rights’ (2017) 28(3) European Journal
of International Law 899; John Gerard Ruggie and John F Sherman III, ‘The Concept of ‘Due
Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan
Bonnitcha and Robert McCorquodale’ (2017) 28(3) European Journal of International Law 921.
The exchange between these authors concerns the nature of human rights due diligence and
its relationship to the corporate responsibility to respect human rights. For yet another
potential formulation, see Doug Cassel, ‘Outlining the Case for a Common Law Duty of Care
of Business to Exercise Human Rights Due Diligence’ (2016) 1 Business and Human Rights
Journal 179.
109
Guiding Principle 18 of the Guiding Principles provides that the risk identification and
assessment stage of the HRDD process should ‘involve meaningful consultation with
potentially affected groups and other relevant stakeholders, as appropriate to the size of the
business enterprise and the nature and context of the operation.’ There is a divergence of
views as to what form and level of engagement this necessitates in practice, and the extent to
which consultation is required at other stages of the due diligence process.
110
See further Guiding Principle 21 of the Guiding Principles.
111
Guiding Principle 12 of the Guiding Principles and commentary. This includes, at a minimum,
those in the International Bill of Human Rights (the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights), and the principles concerning fundamental rights in
the eight ILO core conventions as set out in the Declaration on Fundamental Principles and
Rights at Work.
112
O’Connell Davidson, ‘New Slavery, Old Binaries’, above n 10, 249. See also Chuang,
‘Exploitation Creep and the Unmaking of Human Trafficking Law,’ above n 6.
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approach recognises that not all companies pose the same level of risk to the same
human rights, and that factors such as company size, sector and operational context are
important in determining which human rights are at greatest risk from company
operations. For example, the human rights risks that are most salient for enterprises in
the apparel or toy sectors will differ from those rights issues faced by of enterprises in
the extractive or pharmaceutical sectors. This does not mean that these risks will or
should become the exclusive focus of the company, or that they can afford to ignore
other human rights issues, but that these risks will most likely need to be the subject of
the most immediate, systematised and regular attention.
113
A human rights due diligence approach, we argue, is more likely to lead to robust
responses to the most egregious labour breaches than the modern slavery approach,
while also ensuring that the company responds to a broader range of labour rights
issues. One reason for this is because human rights due diligence encourages companies
to achieve supply chain visibility (and not just of ‘first tier’ suppliers) as a first step in
understanding where risks may lie and which issues to prioritise for remediation.
Another is because the approach is proactive—it places responsibility on the company
not just to identify and respond to, but to seek out and address actual or potential
negative impacts that its activities have on workers. A further basic but important
distinction from the modern slavery corporate disclosure type approach is that human
rights due diligence demands that a company acts, not just that it reports on what (if
anything) it is doing.
Done properly, human rights due diligence involves stakeholder engagement and
partnership—including with other companies, suppliers, sub-contractors, trade unions,
civil society organisations, experts and multi-stakeholder initiatives. This emphasis on
participation and on the establishment of meaningful and long-term partnerships
reflects a growing body of evidence indicating the limitations of unilateral approaches
to managing labour and human rights risks, and the need for such processes to include
ongoing company engagement, negotiation or collaboration with stakeholders if they
are to be effective.
114
Furthermore, through demanding that companies address a much
broader range of labour rights issues, a human rights due diligence approach
encourages companies to address issues (such as an absence of written contracts dealing
with terms of employment, a lack of freedom of association or exploitative recruitment
practices) before they escalate into extreme forms of labour exploitation or slavery. It is
no coincidence that companies widely recognised as adopting sophisticated approaches
to addressing modern slavery in their supply chains tend to approach the task through
a broader human rights due diligence framework.
115
113
United Nations Office of the High Commissioner, The Corporate Responsibility to Protect
Human Rights: An Interpretive Guide, UN Doc HR/PUB/12/02 (2012)
114
See, eg, Jennifer Schappert, Rethinking Due Diligence Practices in the Garments Supply Chain, (24
April 2015) OECD Insights
diligence-practices-in-the-apparel-supply-chain/>; Ethical Trading Initiative, Human Rights
Due Diligence Framework (May 2016)
rights-due-diligence-framework>.
115
See, eg, The H&M Group, The H&M Group Modern Slavery Statement: Financial Year 2015/2016
(30 January 2017)
/CSR/Report%202016/HMgroup_Modern_Slavery_Statement_2015-2016.pdf>. See also the
approaches taken by companies scored highest under the KnowtheChain benchmarking
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What would a public regulatory framework for human rights due diligence look like?
To date, state efforts to promote and mandate corporate uptake of the practice has been
limited, piecemeal and tentative, as well as largely confined to western developed
nations. There are, however, more substantive moves to integrate human rights due
diligence into national law in several Western European states. Most prominent among
these is France’s adoption of a law requiring very large companies to establish, publish
and implement a due diligence (‘vigilance’) plan for human rights risks.
116
The trend
towards institutionalisation of human rights due diligence at the national level, however
slow and insipid, is only likely to continue given the appeal of the concept to civil society
actors looking to secure greater accountability of corporate actors for working conditions
in their domestic and transnational supply chains.
There are a wide range of possibilities for regulating for corporate human rights due
diligence, ranging from the potential to attach human rights due diligence requirements
to government contracts;
117
through to expanding the UK style disclosure reporting to
human rights risks more broadly;
118
through to proposals for the imposition of a duty
of care on companies to avoid infringing on human rights, with accountability arising
for failure to exercise due diligence. An emerging body of literature is also looking at
how state efforts to promote or mandate the practice can be designed in a way that
encourages companies to self-regulate within a broader framework of accountability,
underpinned and strengthened by substantive and procedural rights.
119
V CONCLUSION
Australia is following in the footsteps of the UK and the US by framing a set of
particularly egregious labour exploitative practices as ‘modern slavery’. While the
precise details are not yet clear, there is little doubt that Australia will soon see a
legislated UK-style reporting requirement for modern slavery in supply chains. The
introduction of such a requirement will only add further momentum to the modern
slavery frame in Australia, promoting greater engagement with the issue in the
initiative: . A number of civil society organisations also
advocate for this approach: see, eg, CORE et al, Tackling Modern Slavery through Human Rights
Due Diligence (1 June 2017)
content/uploads/2017/06/Core_DueDiligenceFINAL-1.pdf>.
116
Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises
donneuses d’ordre (France) JO, 28 March 2017. See also the Netherlands’ Child Labour Due
Diligence Law (‘Wet Zorgplicht Kinderarbeid’): India Committee of the Netherlands, Child Labour
Due Diligence Law for companies adopted by Dutch Parliament (8 February 2017)
117
See, eg, various civil society and academic submissions to the 2016–17 federal parliamentary
inquiry into the Commonwealth procurement framework, available at
ees/Government_Procurement/CommProcurementFramework>. See generally the
International Learning Lab on Public Procurement and Human Rights,
118
This approach was advocated by a number of NGOs and trade unions in their submissions
to the recent parliamentary inquiry. The final report noted that the mandatory reporting
requirements could be expanded to other human rights issues ‘once the reporting
requirement becomes established’: above n 3, [5.24]–[5.29].
119
See generally Buhmann, above n 107.
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boardrooms of Australian companies, as well as by the media, civil society and
academia. Based on the UK experience, it will also fuel an explosion in auditing, legal,
advisory and consultancy firms marketing their expertise and products in this area.
It has not been our intention in this article to suggest that these developments are not
significant or positive. Rather, our intention has been to act as a small counterpoint to
the overwhelming enthusiasm for the modern slavery approach. We wish to draw
attention to the risks, as well as the promises, implicit in focusing on modern slavery
and the regulatory approach that it is associated with. We have raised concerns about
the tendency for exaggeration in relation to the scope and impact of a UK-style
transparency in supply chains initiative. There is little evidence to suggest that the
adoption of such a UK-style reporting requirement is on its own capable of transforming
business practice or leading to the eradication of modern slavery. There is also little to
suggest that it will compel corporate actors to become aware of, and address, broader
labour rights issues in their supply chains, such as unsafe workplaces or systematic
underpayment of wages.
We have also sought in this article to encourage greater reflection on the implications
of modern slavery as a frame and discourse. These implications may be subtle but, we
argue, significant for how problems around worker vulnerability and exploitation are
understood and addressed. Building on extant critical perspectives on modern slavery,
we have drawn attention to the way in which a modern slavery approach privileges
criminal law responses that individualise blame and fail to address the causes of
egregious labour exploitation that lie in inter-state relations and wider business practice.
Prioritising a criminal justice lens risks overlooking the importance of addressing labour
exploitation within broader labour and business regulation frames. To bring the
limitations of the approach into further relief, comparisons have been drawn in this
paper with a labour regulation approach and a human rights due diligence one. These
constitute broader and potentially more effective frames through which to address
labour exploitation in increasingly complex corporate supply chains.
There are some indications to suggest that Australia may not be as enthusiastic an
adherent of a criminal justice frame as its UK and US counterparts. Particularly
promising in this regard is the final report of the federal parliamentary inquiry into
modern slavery, released in December 2017. This report recognises the need for efforts
to address modern slavery to include measures to address forms and causes of labour
exploitation more broadly, including through the need to reform Australia’s visa
framework so as to remove ‘tied’ visa conditions and a range of initiatives directed at
expanding information and awareness among migrant workers of their employment
rights in Australia. It also recommended the introduction of a national labour hire
licensing scheme, review of the adequacy of existing penalties for employers found to
be exploiting workers and greater resourcing of the federal labour inspectorate.
120
Relevantly for our argument above, the Committee al so recommended that the
Australian Government ratify the Protocol of 2014 to the Forced Labour Convention, 1930.
121
The report suggests that there may be some capacity to secure improvements to labour
regulation that would assist our most vulnerable workers by pursuing reforms via the
modern slavery frame, even where these same reforms are closed off in the industrial
relations context. Illustrating the power and currency of the modern slavery approach,
120
Joint Standing Committee on Foreign Affairs, Defence and Trade, above n 3.
121
Ibid [3.58].
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the same report recommended the incorporation of the term ‘modern slavery’ into
official state usage.
122
We do not yet know which of these recommendations (if any) will
be adopted by the Australian Government.
The types of practices that fall within the ambit of ‘modern slavery’ are part of a much
broader range of labour rights violations that exist in domestic and transnational supply
chains. Discussions of modern slavery may be an opening to this larger picture—
through which a broader and more substantial discussion on the need to address labour
exploitation eventuates and real progress in terms of social awareness and regulatory
frameworks is achieved. We hope this is so. But, as we and others have argued, there are
risks implicit in uncritically embracing a modern slavery frame. At worst, we can
envision a situation in which the mere publication of a modern slavery statement
becomes an accepted proxy of a company’s commitment to managing its supply chains
responsibly. This paper is a call for attentiveness to the perils, as well as the promise, of
the modern slavery discourse and of the need for vigilance as to its trajectory, the extent
to which it delivers on its promises and its implications for other approaches and
possibilities.
122
Ibid [3.65]. It also referred to Walk Free Foundation as ‘an international body’, on par with
the International Labour Organisation.
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