Australia has committed to eradicating modern slavery, with the Modern Slavery Act (Cth) being hailed as the first critical step in 2018. However, global legislative developments show that Australia is lagging behind its international counterparts.

A 2022 report entitled Paper Promises? Evaluating the Early Impact of Australia’s Modern Slavery Act stated that companies are failing to comply with the mandatory reporting requirements, companies are failing to identify or disclose obvious modern slavery risks, and companies are failing to take effective actions to address risk.

For example, only 34 per cent of companies disclose collaboration with key stakeholders to address modern slavery conditions. Australian Border Force has been praised for consulting civil society and the private sector in relation to rules of modern slavery implementation. However, there have been calls for companies to make use of the considerable expertise of worker bodies and other expert civil society bodies when it comes to detecting and remediating modern slavery.

VIEW ALL

Similarly, a 2017 government report entitled Hidden in Plain Sight recognised “the long-standing commitment to combatting modern slavery in Australia and around the world” by the Australian government. However, many of the recommendations have not been implemented.

A 2013 report, Trading Lives: Modern Day Human Trafficking, similarly made recommendations to address the rights of people working under such conditions that have not been implemented.

Justine Nolan, professor at UNSW and director of the Australian Human Rights Institute, stated that the Modern Slavery Act (Cth) is “significant as a mechanism for generating public awareness. It is generating increased engagement by consumers, civil society, investors and business with modern slavery issues and a broader understanding of the risks associated with consumptive spending and supply chain sourcing.”

Professor Nolan warned that “there are a number of outstanding questions around the efficacy of the current disclosure laws and whether such laws can result in a substantive improvement in working conditions in global supply chains. Legislative refinements should include strengthening the enforcement framework and introducing an independent commissioner to monitor compliance with the law.” 

Furthermore, she said that “even with refinements, modern slavery reporting regimes are inherently limited, requiring companies to report, rather than to act, and attaching only indirect liability for human right abuses through failings in reporting. An essential element of what companies should be reporting on is their due diligence efforts. Reporting is simply the final step in the process of identifying, assessing and addressing risks, and tracking the effectiveness of those responses.”

Professor Nolan predicted that “for reporting to be legitimate, it must be based on effective due diligence and this could be made mandatory in the Modern Slavery Act (Cth) or a new and complementary law could be established focused on human rights due diligence more broadly not just for modern slavery”.

Shelley Marshall, associate professor at RMIT, has indicated that human rights are a key indicator when implementing the modern slavery legislation. She said that “one of the most important steps in addressing modern slavery is when jobs go out for tender. Those responsible for tender documents should stress the importance of human rights, and ensure that a proven track record of ethical conduct is part of the selection criteria. Selection panels should be given scope to choose tenders on the basis of quality, and human rights performance over price.”

Associate Professor Marshall went further, saying that “the types of evidence that tenderers might provide include human rights due diligence processes to detect and address modern slavery, worker voice mechanisms, enterprise agreements with unions, participation in legitimate multi-stakeholder organisations, audits by legitimate third parties, and participation in ethical labelling systems”.

A three-year review of the modern slavery legislation has been called for in 2022, coinciding with the election of a new government. Associate Professor Marshall said that “both the ALP and the Greens have made firm policy commitments to strengthen the Modern Slavery Act and other government actions to combat modern slavery. Both the ALP and the Greens have promised fines. The ALP have also promised the creation of anti-slavery commissioner, who would work with business, civil society, NGOs and state and territory government.”

Associate Professor Marshal praised the call for the appointment of an anti-slavery commissioner in Australia. She said that “an anti-slavery commissioner is much needed to improve the poor level of compliance and improve transparency of supply chains. Our research shows that there is a very low level of knowledge about what steps to take to address modern slavery amongst most reporting entities.”

Whilst contract law is often referred to as a suitable arena for the prohibition of slavery by corporations, Associate Professor Marshall has stated that there are weaknesses in prohibiting slavery exclusively through using contract law. She said that “while there is a temptation for legal practitioners to develop clauses for contracts for supply that warrant that no modern slavery has occurred in the production or service supplied, there is no evidence that such clauses are effective in reducing modern slavery. Indeed, the evidence suggests that suppliers sign contracts with such clauses without knowing how to act on them.”

Similarly, the review of the modern slavery legislation could focus issues on supporting the victim. Associate Professor Marshall argued that “there also needs to be much more of a victim-centred approach with a holistic human rights-based approach to victim support. The government’s response so far has been very company focussed, but far more resources should be provided for detection and support of victims of modern slavery. There is little evidence that companies are remediating modern slavery or compensating victims. The new government should therefore set up a victim compensation scheme.”

Any such reforms must take into consideration ongoing research on human trafficking, which has also debunked stereotypes about the victims of modern slavery. The mythology is that offenders are exclusively male, foreigners, unknown to their victims and use physical force to control.

For example, there is the misconception that most victims of trafficking will be subject to psychological force rather than physical control. Dr Nerida Chazal from the University of South Australia stated that women usually bond with male traffickers through a common background, language, friendship and nationality, where trust and often an intimate relationship are established from the outset.

“This trust is then exploited by traffickers using subtle, coercive and psychological control – not physical violence – to co-opt them into sex work and slavery,” she said.