Prevention by Government
In this episode, Fuzz Kitto delves into the role of governments in preventing modern slavery, citing key legislations worldwide, including the Californian Transparency in Supply Chain Act, the UK Modern Slavery Act, and the Australian Modern Slavery Act. He outlines the evolution of legislation, emphasising the shift from soft law to hard law, increased focus on due diligence in supply chains, and the move towards human rights and values-based legislation. Fuzz also discusses other ways governments can prevent modern slavery, including enforcement of laws already in place, funding research and bringing together actors in all parts of society together to combat modern slavery.
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G’day, I’m Fuzz Kitto CoDirector of Be Slavery Free and welcome to this podcast of Slavery Unravelled.
In the last 2 episodes we have been looking at the importance of prevention. Prevention of modern slavery is much better than cure in so many ways. From economical, social, health, well-being… but most of all prevention helps stop modern slavery before it happens.
We often look at the myths around modern slavery. Things like:
Isn’t slavery a thing of the past? No, there are more slaves in the world now than any time in history
Isn’t slavery isolated to poor countries? No, slavery is in every country in the world from poorest to richest
I can understand how this happens to children but shouldn’t adults be smarter? No, people’s vulnerability through poverty and the desire for a better life or a better life for their children, means adults get tricked, coerced or deceived and then trapped into modern slavery
If the conditions are so bad why don’t people just leave? They don’t leave because they can’t. Either their identity papers or passports are taken off them, meaning they can’t travel, or they are threatened with violence or they threaten to harm or kill their families or psychologically they are threatened.
But one of the most common myths or questions we get asked is: I understand that this is a problem, but shouldn’t governments just fix it?
Like businesses and civil society – governments have a role to play and creating legislation, engaging the public service signing and upholding international protocols are all important and they are part of the solution. Role definition is really key in working out who is best to do what? What is the role and capacity of business? What is the role of civil society and consumers? And in this podcast I want to look at the role of governments, particularly in preventing modern slavery.
Legislation around the world
So what’s been happening around the world? Laws of a country help project, express and formulate, the values of a society or country. It has been interesting to see the evolution of modern slavery legislation. One of the first of the rank was the Californian Transparency in Supply Chain Act - it was passed in 2010. What is significant with a state law? Well, the state of California has an economy the size of Germany and is bigger than the Australian economy. Arnold Schwarzenegger was Governor of California and he got his Attorney General to draw up legislation to tackle modern slavery. She is now the Vice President of the United States.
The Californian Transparency in Supply Chain Act asked businesses with annual worldwide gross receipts exceeding $100 million are required to disclose their efforts to eradicate slavery and human trafficking from their supply chains. This may include conducting audits or inspections of suppliers, subcontractors, and other business partners. It included:
· disclosure
· verification
· auditing
· certifications
· training and Education
Next came the UK Modern Slavery Act in 2015 – it included:
Transparency in Supply Chains. Similar to the Californian Transparency in Supply Chain Act, businesses operating in the UK with an annual turnover above 33 million pounds are required to publish a slavery and human trafficking statement. The statement should outline the steps taken by the organisation to prevent modern slavery in its operations and supply chains.
The Act established an Independent Anti-Slavery Commissioner responsible for encouraging good practice, supporting victims, and monitoring the effectiveness of measures taken to combat modern slavery. The Commissioner publishes an annual report to highlight progress and challenges in combating slavery and human trafficking.
The Act also introduced new offences related to slavery, servitude, forced or compulsory labour, and human trafficking. Individuals and organisations found guilty of these offenses can face severe penalties, including imprisonment and fines.
Then came the Australian Modern Slavery Act in 2018. We spent 2 years of our life lobbying for this act. I had been in the UK when NGOs gathered together about the Act. The government said if they came up with the core inclusions they thought needed to be in the act then they could possibly get them in. I attended 2 of the meetings. They could not agree and could not work together.
I came back to Australian and said to Carolyn Kitto, Co-Director of Be Slavery Free “if we get one in Australia we will get the Civil Society groups together and we will try and work together and sit down with companies and have a dialogue about when we think would be important to have included”. And we did.
The Australian Modern Slavery Act came about because of a government inquiry headed by Chris Crewther. He was the youngest member politician of the Liberal party and he headed a group of 33 politicians from across the parties. As they progressed the members of the inquiry said “we thought we were pretty informed people – but we had no idea what was happening!” The report was aptly titled, Hidden in Plain Sight.
We worked closely with the politicians and with the Minister covering Modern Slavery who was Senator Linda Reynolds. She was able to get through the cabinet what she could.
It included:
That the Act requires businesses and other entities with annual consolidated revenue of AUD 100 million or more to prepare and submit an annual Modern Slavery Statement.
This statement outlines the steps the organization has taken to address modern slavery within its operations and supply chains.
The Act emphasises the importance of addressing slavery practices in global supply chains.
Businesses are required to identify and examine the potential risks of modern slavery in their supply chains and take action to mitigate these risks.
The Act does not include financial penalties for non-compliance. However, reputational damage, as well as potential public scrutiny and supply chain implications, can motivate businesses to comply with the reporting requirements.
However, a review has been held now and new recommendations include the establishment of an Anti-Slavery Commissioner, penalties, a due diligence frame work that they report on and penalties the production of a list of commodities from particular regions and countries.
The EU are now developing the EU Due Dilligence for Human Rights which will include the banning of goods produced under forced labour to be able to enter and be sold in the EU.
The European Parliament, in its resolution of 10 March 2021 calls upon the EU Commission to propose Union rules for comprehensive corporate due diligence obligations, with consequences including civil liability for those companies that cause or contribute to harm by failing to carry out due diligence.
At the end of September, NZ released their draft legislation. Under the new law, companies will be required to be transparent and annually disclose the risks of modern slavery in their supply chains and operations. The law will apply to all companies with an annual revenue over $20 million, which includes around 4000 entities in New Zealand.
Then there is the NSW Modern Slavery Act. The act defines modern slavery broadly to include various types of exploitation, such as forced labour, human trafficking, debt bondage, child labour, and servitude. It applies to both private sector and public institutions with a total annual turnover of at least AUD 50 million. Covered organisations are required to submit their annual statements to the Anti-Slavery Commissioner, who oversees compliance with the Act. The statements should include the steps taken to identify and assess modern slavery risks, the actions taken to address these risks, and the effectiveness of these actions.
The Act aims to promote transparency, encourage due diligence, and ultimately reduce the occurrence of modern slavery within the supply chains and operations of covered organisations.
President Biden in the USA has created the Uyghur Forced Labor Prevention Act. They have invested US$268 mill and created a staff of over 300 to deal with it. Some of our legal partners in the USA say it is one of the most radical pieces of legislation brought into the USA in 100 years. It creates a notion of “Rubuttable Presumption”. What that means is that goods imported from regions and countries known to have slavery in the production of them are presumed to have slavery in the supply chain and it is on the importers to prove that it doesn’t. It’s like the French law where if you are arrested you are presumed to be guilty and you have to prove that you are not.
It is similar to the USA Border Protection clause that President Obama signed in before he left office evoking an old law that said goods produced with slavery would not be allowed into the United States – remember they had a civil War over slavery. The Border Protection Law states that it is Illegal to bring goods into the USA if it has forced labour in the supply chain. Companies which are accused of doing so have their goods held at ports until they can prove it does not have forced labour in the supply chain. Again, the Rebuttable Presumption is applied and it is called a WRO. WRO stands for Withhold and Release Order.
Emerging trends in legislation
We did a major contract as 6 other NGOs working together with on overseas company who had such a WRO slapped on them because of accused labour abuses in their factories in Malaysia.
One of the things our Be Slavery Free Team did was to look at the emerging trends in legislation regarding modern slavery in the next 3-5 years. It ended up being a 78 page document. But there were some obvious emerging trends that we saw happening:
A move from Soft Law to Hard Law - Best practice principles and voluntary guidelines are being transformed into hard legal obligations
From self-disclosed practices to due diligence - new wave of legislation like those latter ones I have been mentioning trend is away from disclosure-based legislation to duty-based models which codify mandatory human rights due diligence.
Looking not only at supply chains but also Value Chains – There is a growing acceptance that responsibility to undertake human rights due diligence extends to a company’s entire value chain - downstream and upstream. It is about a fairer distribution of profits from goods.
Businesses must trace entire value chain, both upstream and downstream, to ensure that they are able to identify, mitigate, and remediate human rights risks and impacts.
Forced Labour import bans - Increasing number of import bans are being introduced to prevent goods produced wholly or in part with forced labour from entering certain jurisdictions (inc. US, UK, Canada, Australia, and EU).
Move to a Human Rights and Values based legislation - Both legislation and business practice are moving from a compliance approach – which easily became a “tick and flick” - to a focus on values and how they are embedded and actioned in a society or a business.
So, this is what has been happening with legislation and what is emerging. Each has an aspect of analysing what is happening and an element of prevention.
They started off with suggesting guidelines and standards and the need to look for modern slavery – but with no penalties. Sadly, such legislation was not that effective in making much of a dent in preventing modern slavery. We said to one government official imagine if we applied this approach to taxes? It is only a guideline that you need to pay taxes and how much? And that is just concerning money – which a government needs to function. Modern Slavery legislation concerns people, their lives, their families their communities and their countries.
The other area of prevention that governments do is to protect and uphold legislation – what is called rule of law. Police, officials, inspectors all are a part of a government’s role. If resources, technology, tools and appropriate staffing are not adequately supplied by government then legislation is toothless.
When we started to get involved in this work many of the police and officials covering modern slavery in governments were sceptical of the extent of modern slavery existing. That is certainly not the case now! And there are many outstanding police and officials that understand it and that it is a fast-growing crime.
The other area of governments role in this prevention is the research, funding and policy development to bring together all the groups involved trying to make changes to modern slavery. In Australia, drugs are the biggest crime issue and around $128mill per year is budgeted for countering and preventing it. Modern Slavery is the second biggest international crime and around $10.6mill was budgeted for 5 years. In the last budget and additional $24.5 million was added to support those who have experienced modern slavery. In fairness as the new Anti-Slavery Commissioner comes into effect more funds will be put to support their role.
Well, that is a glimpse into the role of government and some of the things that have been done and are emerging.
What can you do help this happen in government? There are petitions and submission that we are continually involved in. They are on our website and we often have petitions to other countries’ governments because of what is happening there and because they affect us. The other thing you can do is to communicate with you state and federal politicians to tell them how important this is and that you want them to increase efforts to prevent modern slavery occurring. Never underestimate the power and role you have as a voter.
Well, that’s some more insights to help unravel modern slavery for you. This has been Fuzz Kitto and may you have a slavery free day.