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The case for Australian modern slavery legislation

A contentious solution to a titanic problem

Art: Garnet Chan Art: Garnet Chan

Kevin Hyland, the UK’s first Independent Anti-Slavery Commissioner, speaking in Sydney at an event held by the Lowy Institute on 30 May, has just an hour to unravel the nexus between globalisation, trade, human rights, law and order, and ‘modern slavery.’

“In few other crimes are human beings used as commodities over and over again, for the gain of others.” Hyland speaks emphatically, earnestly, as if he wants the audience to consider the weight of each word.

The day before he presented for the Lowy Institute, Hyland appeared before a Parliamentary Committee to make a case for introducing modern slavery legislation in Australia, modelled on the UK’s Modern Slavery Act 2015.

What is ‘modern slavery’? At the Lowy Institute event, Hyland defined modern slavery as “an umbrella term, covering a number of often related serious abuses, including forced labour, child slavery, and all forms of trafficking in persons, including of sexual exploitation, forced criminality, organ removals and domestic servitude.” The term is intentionally anachronistic rhetoric, deployed in advocacy and policy circles for its shock value.

In February this year, the Attorney-General initiated a Parliamentary Inquiry into Establishing a Modern Slavery Act in Australia. The Joint Standing Committee on Foreign Affairs, Defence and Trade has embarked on the gruelling process of raising an embryonic idea which, months or even years from now, could mature into an act.

“I am pretty confident that we can come up with strong recommendations that can gain multi-party support so we can actually proceed with legislation,” Chris Crewther, the chair of the subcommittee leading the Inquiry, told Honi. “I imagine that you would probably be looking at around mid-2018 at the earliest before [legalisation] comes before Parliament.”

The Inquiry held the first public hearing, featuring Kevin Hyland, last Wednesday and is currently[1] reading written submissions penned by concerned individuals and organisations, arguing that Australia should adopt aspects of the UK’s Modern Slavery Act.

Australia is not looking to import the UK act word for word, because some of its provisions overlap provisions of Australian criminal law. Australia outlawed slavery in 1824 and incorporated slavey offences into the Commonwealth Criminal Code Act 1995 in 1999. Division 270 of the Criminal Code criminalises “slavery,” defined as “the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised,” and “slavery-like conditions,” such as servitude[2], forced labour and forced marriage. Division 271 criminalises debt bondage and trafficking offences, including organ trafficking.[3] The maximum penalty for a “slavery offence” – for treating a person like property, like an object to be bought and used and sold or discarded, as distinct from other forms of exploitation informally categorised as ‘modern slavery’ –  is a 25-year jail sentence.[4]

However, a highly-praised provision of the UK act, for which there is no equivalent in Australian law, is Section 54 on supply chain transparency. Under UK law, a company with a turnover of over £36 million that does business in the UK has to publish an annual statement outlining the steps taken to ensure that its supply chains are not strung together by slave labour. This provision is not perfect – for example, due to a pesky loophole, British companies are not required to report on the supply chains of their wholly foreign owned subsidiaries that do not engage in commercial activity with the UK.

Last Monday the Federal Opposition pledged allegiance to the cause, declaring support for some sort of modern slavery legislation and announcing a policy that builds on provisions of the UK act. Labor’s proposed policy aims to account for the lax reporting requirements of the UK act, such as the loophole that allows companies to fulfil their legal obligations by simply uploading an approved report, even if this report states that the company has not taken any steps to combat modern slavery in supply chains.

Participants in the Australian debate are touting the merits of other novel provisions of the UK act, such as the office of an Independent Anti-Slavery Commissioner, but the supply chain transparency provision has received a lot of attention because the idea is trending in the corporate world. For example, the submissions of Wesfarmers and Woolworths Ltd., Australia’s two largest companies by revenue as of 2016, almost[5] exclusively focus on supply chain transparency. Modern slavery represents risk for investors, which amounts to risk for upper management; embracing a culture of corporate social responsibility represents reward. The Inquiry will prepare an interim report specifically addressing the supply chain term of reference in late August, reflecting the skewed focus of the debate.

Sally Irwin, CEO of the Freedom Hub, a small business that funnels 100% of its profit into rehabilitating survivors of slavery, supports the move to hold transnational corporations accountable but feels like the focus on supply chains overlooks the fact that there are slaves in Australian communities, often working in the retail, hospitality and horticultural sectors.

“There’s millions and millions of people in slavery overseas, it seems like a huge problem, but why should we wait until there’s millions here before we do something? ” Irwin asks.

Similarly, Anti-Slavery Australia, a legal research centre within the UTS Faculty of Law, highlights the need to improve slavery support services in Australia. For instance, Anti-Slavery Australia would like to disentangle the human trafficking visa program from the criminal justice process.

Under the current system, a formerly enslaved or trafficked person has to go through the Australian Federal Police to access the Support for Trafficked People program, a government-funded service administered by the Australian Red Cross. A victim without a valid visa can be granted a bridging visa,[6] which effectively entitles them to 45 days of emergency support. They may then be offered a more permanent visa[7] if they assist the AFP and in doing so, incur a risk that returning to their country of origin will put their life in danger.

“We would like to have more organisations being able to make referrals [to the Red Cross], rather than just the AFP,” says Elizabeth Sheridan, a lawyer from Anti-Slavery Australia. “But also…if there is some sort of barrier that prevents you from assisting the police that, in compelling and compassionate circumstances, you would be able to access that permanent residency without having to assist the police.”

“There is a myriad of reasons why people in this situation…choose not to go to the police,” says Indika Chandrasekera, another Anti-Slavery Australia lawyer. “Threats against the victim’s family, in their home country…The fear of being re-victimised during that process…Stigma…” Chandrasekera’s list continues.

The overriding focus on supply chain transparency can largely be attributed to the influence of Andrew and Nicola Forrest. Andrew Forrest, founder and chairman of iron ore mining company Fortescue Metals Group and Australia’s 6th richest person,[8] and his wife Nicola have channelled their wealth into setting the ‘new abolitionist’ agenda in Australia and abroad through their Walk Free Foundation.[9] The narrative propagated by the Foundation, encapsulated by their 2016 report, Harnessing the Power of Business to End Modern Slavery, has been criticised for representing big business as a class of latent superheroes, clumsily coming to terms with their own power, yet to don mask and cape. For example, in a 2015 essay Janie A. Chuang, Professor of Law at American University Washington College of Law, analyses how ‘philantrocapitalists’ have the money to ‘solve’ socioeconomic problems that stem from structural inequality, while simultaneously reinforcing structural inequality. The Foundation’s narrative, in which big business needs to step into “the governance gap created by globalisation” to fix the “world’s greatest evil” that is modern slavery, can be read as intentionally apolitical. According to Chuang, globalisation is presented as an exogenous force, rather than a system of governance designed to maximise the power of transnational corporate actors and delegitimise critique of the politics that went into the production of this system.

The Foundation may frame ‘slavery as individual deviance’ to eclipse the ‘slavery as a structural problem’ narrative, as Chuang claims; or the appeal to big business could be a realist attempt to work within the confines of an imperfect international system. Forrests’ recent $400 million donation to charity, which Malcolm Turnbull described as “biggest single philanthropic gift in our history and the largest donation by living Australian,” aimed to make corporations dwell on the adage about power and responsibility. Throwing your weight around is graceless, wield power with poise, the Forrests seem to say.

Chris Wright of the University of Sydney Business School, who specialises in supply chain and labour regulation,[10] welcomes supply chain transparency legislation but believes that “the single solution that would address these solutions in developing countries, in terms of monitoring companies,…is having a strong and independent trade union.”

Australia will probably pass some form of modern slavery legislation in the future because, even if the term ‘modern slavery’ is bombastic, minimising the frequency and severity of extreme exploitation is a bipartisan political issue backed by an array of influential actors and, more significantly, many of those actors are overflowing with wealth.

 

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[1]As of time of writing, the Parliament of Australia website states that the Inquiry is accepting submissions, but also states that the deadline for domestic submissions was 28 April and that the deadline for foreign submissions was 19 May. When Honi contacted Senator Fawcett’s Parliament House office on 30 May Fawcett’s office confirmed that, contrary to the conflicting information available on the Parliament of Australia website, the Inquiry ­­­is still accepting submissions.

[2] In legal-speak, “servitude” refers to a relationship in which the labourer feels like they cannot stop working or leave their place of work “because of the use of coercion, threat or deception” and because they are “significantly deprived of personal freedom in respect of aspects of his or her life other than the provision of labour or services.”

[3] The states also have laws in place to tackle slavery and human trafficking but most criminals are prosecuted under Commonwealth law because trafficking often occurs between states and because Commonwealth law is more comprehensive, especially after a 2013 amendment categorised forced labour and forced marriage as “slavery-like conditions,” broadened the definition of “coercion” and expanded the sexual servitude provision to include non-sexual forms of servitude.

[4] I could continue to pepper this piece with footnotes because the complexities of criminal law cannot fit into the space of a short article. If you would like to learn more but don’t want to read the whole Criminal Code, head to the website of Anti-Slavery Australia, a division of the UTS Faculty of Law.

[5] Woolworths’ submission include a brief paragraph on the definition of ‘modern slavery.’

[6] Bridging Visa F

[7] Referred Stay Visa

[8] As of May 2017.

[9] The Global Slavery Index, the Global Freedom Network, the Global Fund to End Slavery, the Freedom Fund, and Walkfree.org and technically all branches of the Walk Free Foundation. The Minderoo Foundation, the parent charity, also directly funds the anti-slavery initiatives of other charities, the Salvation Army’s Freedom Partnership.

[10] And, incidentally, a former editor of Honi!

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