Tackling Human Trafficking in Governments Supply Chains: Legal Certainty and Effectiveness Issues Under the Australian Commonwealth Procurement Rules Model
| Author | Miriam Amanze,Dermot Cahill,Ceri Evans |
| DOI | http://doi.org/10.1177/0067205X221126554 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | ARTICLES |
Article
Federal Law Review
2022, Vol. 50(4) 479–503
© The Author(s) 2022
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DOI: 10.1177/0067205X221126554
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Tackling Human Trafficking in
Governments Supply Chains: Legal
Certainty and Effectiveness Issues
Under the Australian
Commonwealth Procurement Rules
Model
Miriam Amanze*, Dermot Cahill** and Ceri Evans***
Abstract
International organisations emphasise how Governments around the world must use the public
procurement process to aid a global drive to eliminate human trafficking in their supply chains. In
this significant and original contribution, the authors examine a leading procurement model, the
Australian Commonwealth Procurement Rules (CPR), for the purpose of examining whether the
CPR model satisfies the necessary standards of Legal Certainty and Effectiveness for addressing the
risk of trafficking occurring in public sector supply chains. The research generates new insights for
countries seeking to tackle trafficking via public procurement systems and identifies pitfalls for
countries to avoid if seeking to emulate the Australia CPR model, making appropriate reference to
US and UK models where appropriate. The authors demonstrate how key elements of the CPR
model fail to provide for the required degree of Legal Certainty and Effectiveness to tackle
trafficking. System failure is demonstrated by analysis of the CPR, showing either how key CPR
provisions fail to satisfy these 2 key tests, or because there is a complete absence of appropriate
provisions to comprehensively deal with the risk of trafficking in public sector supply chains. This
article should serve not only as a guide to countries yet to address human rights considerations in
their public procurement supply chains, but also as a blueprint for countries around the world
seeking to re-evaluate whether existingprovisions in their domestic procurement frameworks are
fit to tackle the global scourge of trafficking in public supply chains.
Received 21 June 2021
*Dr Miriam Amanze, Lecturer in Law, Open University. The lead author may be contacted at miriam.amanze@open.ac.uk
**Professor Dermot Cahill.
***Mr Ceri Evans, University of Wales Trinity Saint David.
I Introduction
Public procurement activities present Governments and the public sector with opportunities to
use their purchasing power as the medium through which to promote attainment of social,
economic and environmental objectives, also known as t he sustainable procurement agenda.
1
Typically accounting for 12 per cent of a nation’s GDP, Governments and the wider public
sector as major purchasers of goods, works and services are in a strong position to leverage
behaviour change on their suppliers’operations and supply chain practices in the drive to attain
these worthy objectives.
2
However, despite holding this strong leverage, a key element of the
sustainable procurement agenda —using procurementprocesses to combat human trafficking in
supply chains —has not translated into significant deployment at the impleme ntation level.
While advanced economies such as Australia, New Zealand, Canada, the United States(US) and
the United Kingdom (UK) have issued a joint statement of intent stating th at they will ‘analyse,
develop, and implement measures to identify, prevent and reduce the risk of human trafficking
in government procurement supply chains’,
3
actual implementation of measures at the national
level has been slow. Additionally,where anti-trafficking measur es have been attempted through
these countries’respective national procurement frameworks, they have proven, to a degree,
ineffective and deficient.
4
In this paper, the authors will analyse this problem by examining, as a case study, the measures
adopted by the Commonwealth of Australia’s federal procurement system which seeks to reduce the
risk of human trafficking contaminating public sector supply chains.
5
Guiding this study shall be a
key question possessing a dual focus:
1. See generally Christopher McCrudden, ‘Using Public Procurement to Achieve Social Outcomes’[2004] 28(4) Natural
Resources Forum 257; Lin Li and Ken Geiser, ‘Environmentally Responsible Public Procurement (ERPP) and its
Implications for Integrated Product Policy (IPP)’(2005) 13(7) Journal of Cleaner Production, 705; Lutz Preuss,
‘Addressing Sustainable Development Through Public Procurement: The Case of Local Government’(2009) 14(3) Supply
Chain Management 213.
2. ‘Public Procurement’,Organisation for Economic Co-operation and Development (Web Page) <https://www.oecd.org/
governance/ethics/public-procurement.htm>.
3. UK Home Office, ‘Principles to Guide Government Action to Combat Human Trafficking in Global Supply Chains’,UK
Home Office (Policy Paper, 13
th
March 2020) www.gov.uk/government/publications/trafficking-in-supply-
chains-principles-for-government-action/principles-to-guide-government-action-to-combat-human-trafficking-in-global-
supply-chains-html-version>; Australian Ministr y for Foreign Affairs, ‘Principles to Guide Government Action to
Combat Human Traffickin g in Global Supply Chains’,Australian Department of Foreign Affairs and Trade (Joint
Statement, 24 September 2018) www.foreignminister.gov.au/minis ter/marise-payne/media- release/principles-
guide-government-action-combat-human-trafficking-global-supply-chains>; UK Home Office, ‘UK Government
Modern Slavery Statement’(Corporate Report, 26 March 2020) <https://www.gov.uk/government/publications/uk-
government-modern-slavery-statement>.
4. For example, the US Federal Acquisition Regulation 48 CFR (‘FA R ’) § 22.17 (2022) on Combating Trafficking in Persons
has been heavily criticised by several authors such as Tara Woods, ‘Utilizing Supply Chain Transparency measures to
Trafficking in Persons: A Comparative Analysis of Swedish Systems’[2019] 48(2) Public Contracts Law Journal 423;
John G Bradbury, ‘Human Traffickingand Government Contractor Liability’(2008)37(4) Public Contract Law Journal
907; Victoria Starks, ‘The US Government’s Recent Initiatives to Prevent Contractors from Engaging in Trafficking in
Persons: Analysis of Federal Acquisition Regulation Subpart 22.17’(2008) 37(4) Public Contract Law Journal 879.
5. Trafficking will be the term chiefly used in this paper to describe a severe violation of human rights occasioned by use of
forced labour, child labour and severe labour conditions (excessive working hours, exposure to harmful substances, etc)
and is prohibited by international and domestic laws: see further section II below.
480 Federal Law Review 50(4)
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