It looks increasingly like Australia will legislate an antipodean equivalent of the Modern Slavery Act following the tabling, earlier today, of the interim report of the Joint Standing Committee on Foreign Affairs, Defence and Trade. You can find my previous writing on this topic in the Melbourne Journal of International Lawhere and my submission to the inquiry here.
The interim report, ‘Modern slavery and global supply chains’, (“the Interim Report”) is encouraging and frustrating in equal measures. It is frustrating for two reasons:
First, in my view, the Committee does not go far enough in recommending action to combat modern slavery. The focus of legislative action remains on soft-touch regulatory measures (principally disclosure), that were criticised in a range of submissions from civil society organisations. Changing market behaviour remains the principal form of regulation.
Second, the language of the Committee’s recommendations is extremely tentative. Perhaps the worst is: “The Committee recommends that the Australian Government consider supporting in-principle …”, which is not the surest commitment to reform. This tentativeness is particularly galling given that this is the second Committee report to deal with the suggestion that an Australian equivalent of the Modern Slavery Act 2015 (UK) be legislated.
But the Interim Report is also encouraging. The Committee gives “in principle support” for the introduction of a stronger regime than appears in the equivalent British legislation (the Modern Slavery Act 2015). So, in spite of my (expected) disappointment, there is much that is good in the report, such as recommendations to:
- strengthen procurement guidelines (para 4.44);
- impose penalties for not reporting or under-reporting (para 4.37), although it is unclear what this means alongside their statement that “the Committee considers that the market-based model of compliance used in the UK will develop over time and encourage a ‘race to the top’ for businesses and organisations”; and
- the establishment of a central repository of statements, which has been a key concern of civil society (para 4.16).
In other respects, the recommendations mirror those in the British legislation (such as the establishment of an Anti-Slavery Commissioner).
There is also a, somewhat peculiar, recommendation towards the end of the Interim Report that the Committee:
“[in] its final report should consider other measures to combat modern slavery in global supply chains, such as regulating the importation of goods that have been produced using modern slavery.” (para 4.52)
This recommendation has a great deal of promise because, if an importation regime akin to the Illegal Logging Prohibition Act 2012 were adopted, the regime would be far stronger; indeed, it would be a revolutionary development and one that I have previously argued for.
The Government’s Response
In seeming anticipation of the Interim Report, the Government yesterday released a Consultation Paper, ‘Modern Slavery in Supply Chains Reporting Requirement‘. The Consultation Paper quells any optimism one might have had about the prospects of the Australian Government introducing a stronger regulatory approach.
The Government’s position is made clear in its three proposed “options” to address modern slavery which are to (1) “take no further action” (though the adjective further appears misplaced); (2) develop “measures to raise the business community’s awareness of modern slavery”; or (3) legislate “targeted” regulatory measures. Only the third is, in my view, a credible option if the Government is genuinely interested in lessening the incidence of modern slavery. But the Government is also clear that it:
“is not considering other potential options that would impose a high regulatory impact on the business community and may be inconsistent with the Government’s Regulatory Reform Agenda.”
What the Government is effectively saying in this Consultation Paper is, if you think modern slavery warrants a regulatory approach stronger than just disclosing that you have measures in place to address slavery, then change the Government.
Ryan J. Turner 