The Cases of the United Kingdom, Australia and Canada
To what extent do national legislations increase transparency and resilience within supply chains and partnerships, ensure due diligence and lead to the protection of victims of human rights abuse? Do they allow for sanctions and penalties against individuals and corporations engaging in modern slavery? Is a more comprehensive approach needed to help prevent human rights abuse in supply chains?
This article has two components.
Contemporary forms of human exploitation in modern slavery – who does it affect, and where is it predominant?
What have high-income countries done to combat modern day slavery?
- Efforts by the United Kingdom and Australia – have they been successful? Can they be improved?
- Efforts by the Canadian government – is it time for tougher rules over a wider spectrum of human rights abuse?
What is modern day slavery? Who does it affect?
Many countries abolished slavery in the 19th century. In 1926 the League of Nations adopted its convention abolishing slavery, and in 1948 the Universal Declaration of Human Rights confirmed that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”
However, modern day slavery continues in contemporary forms of human exploitation. According to the Global Slavery Index, some 40 million people across the world are victims of modern slavery, with 25 million people trapped in several forms of exploitation, including forced labour, bonded labour, child slavery, human and sex trafficking, and forced marriage.
Forced labour and bonded labour are the most widespread forms of modern slavery across the world and the most prominent within supply chains of major corporations. Both occur in the workplace where groups of less advantaged individuals are controlled by their employers and forced to engage in hard labour against their will.
The scope of victims of modern slavery is not merely limited to individuals or communities living in low-income countries. According to Anti-Slavery International, “modern slavery can affect people of any age, gender or race.” Generally, forced labour includes individuals who are vulnerable, easy targets prone to manipulation, such as migrants, marginalized communities, isolated communities, poor families, and unemployed individuals including women and children.
Bonded labour includes individuals who are unable to repay their debts and are, as a result, forced to engage in long-term labour in order to pay off the amounts they owe. An example of bonded labour in many low-income countries is when individuals with no job prospects accept what seems like plausible work abroad but which turns out to be specious offers aimed at exploiting the workers. Individuals in marginalized communities tend to get trapped in similar situations, often due to bondage or lack of protection and rights, and many of them are unable to escape or report on their experiences.
Usually, modern slavery is accompanied by degrading treatment and manipulative behavior. This includes coercion, threat and use of force, control, manipulation, as well as mental and physical abuse. Through these techniques, employers have often led victims to believe that they are physically constrained and obligated to follow the rules and restrictions imposed upon them, which violate their basic human rights and freedoms. Generally, victims comply out of fear and lack of protection.
Modern slavery is predominant in fields that require hard physical labour, such as:
- The garment industry
- The seafood industry
- Jewellery work
- The making of mobile phones, laptops and computers
- The car wash and auto detailing industry
- The beauty industry, particularly in nail bars.
What have high-income countries done to combat modern day slavery?
High-income countries, such as England, Australia and Canada, have recognized the existence of modern slavery and have attempted to take action against it. In a series of interviews, I engaged in solution-based conversations that aimed to examine and analyze these countries’ efforts to combat modern slavery through the rule of law.
The United Kingdom
The Modern Slavery Act was enacted in 2015 to combat slavery and trafficking in the United Kingdom. The Act contains a number of provisions on forced labour in supply chains, child trafficking, prostitution, punishment and sanctions, the protection of victims, and the formation of an independent Anti-Slavery Commissioner. It also focuses on the reinforcement of existing slavery offences across the country.
From the outset, the Act was criticized by anti-slavery activists as insufficient.
Joanna Ewart-James, executive director at Freedom United, said “When the government first put the Bill in Parliament, there was nothing in it about business action even though the UK is known for its economic power and there was a real opportunity to leverage that influence to address modern slavery.”
As a result of this criticism, the government established an independent review of the Modern Slavery Act and appointed retired judge Baroness Elizabeth Butler-Sloss and two Members of Parliament to evaluate its strengths and weaknesses and propose ways to enhance it.
In an interview with Baroness Butler-Sloss, she explained that the purpose of the Act and the independent review is to strengthen some of its provisions as modern slavery continues to expand across the country. She said that the review has allowed them to recommend multiple changes that would require companies to act against exploitation in the workplace.
“Ensuring compliance and driving up the quality of statements produced by eligible companies,” was a priority of the committee, Butler-Sloss said. It recommended that “there be a mandatory requirement for all companies with over 36 million pounds profit to do an annual report, and if they don’t there will be consequences.”
She said that some corporations were supportive of mandatory reporting. “Big companies actually came to us and told us – like Sainsbury’s, Primark, those big companies – that they actually wanted this legislation to have a level playing field, because they were obeying and other companies weren’t.”
The recommendation did not succeed.
“What the government did was to put in a voluntary scheme, where people were to put in, on a voluntary basis, a report annually, about how they were dealing with modern slavery,” she said. “The result has been that 40% have not done it, because there was no proper restriction on them.”
Ewart-James allows that there are increased discussions about modern slavery in the corporate sphere, but the legislation is not as strong as it could be regarding the reporting that is done.
“The government decided not to set up a centralized repository where those reports that companies are required to produce would be held. This makes it very difficult for organizations and individuals to find out who’s actually taking action, what they’re doing, and if it is meaningful towards ending modern slavery,” Ewart-James said.
In Australia, however, she says that they were able to get a requirement that provides for a clear list of who is caught by the legislation, and a government minister is required expected to report on that information to Parliament.
Australia
The Modern Slavery Act was enacted in 2018 to help combat human exploitation in Australia. The Parliament of Australia was heavily influenced by the Modern Slavery Act in the United Kingdom, and critics consider this one to be insufficient also.
Dr. Ramona Vijeyarasa, legal practitioner and Chancellor’s Postdoctoral Research Fellow at the University of Technology Sydney, says that although the Act applies to businesses that have a turnover of more than one million dollars per year and requires them to report on slavery offenses within their supply chains, it does not allow for sanctions and fines on companies that do not comply.
In addition to the problematic lack of sanctions, Dr. Vijeyarasa argued that the Act is not a gender responsive legislation.
“It’s the law’s role to actually unearth and address inequality and unfortunately there’s nothing gender responsive about Australia’s Modern Slavery Act,” she said. The Act should be “gender responsive in its goals and gender responsive in helping facilitate a better understanding of how men and women experience supply chain exploitations in different ways.” Dr. Vijeyarasa further explained that the current legislation does not seek to either promote equal relations between men and women who work in supply chains or recognize gender segregated work practices. According to her, “there’s no call for gender sensitive due diligence investigations and no sense that mechanisms will be created to ensure that women workers can report on their experiences in a safe environment and that their confidentiality will be protected.”
Ewart-James agrees that anti-slavery legislation does not address the needs of people affected. “Some of the mechanisms that have been introduced aren’t achieving what they are apparently set out to achieve because they don’t support people in a way that gives them an option to get out of trafficking and not be vulnerable to falling back into it.”
The New South Wales parliament supported a legislation that would improve on the national law. The Business and Human Rights Resource Center, in its submission to a governmental inquiry into the proposed legislation, stated that “the inclusion of penalties for non-compliance… and provision for an Anti-Slavery Commissioner represent key improvements, not only on other Australian legislation, but on comparable modern slavery reporting laws worldwide.” However, the government did not implement the law, and in June 2019 sent it to a committee for further discussion.
Canada
In April 2019 the Canadian government established the office of an Ombudsperson for Responsible Enterprise, with “the mandate to review alleged human rights abuses arising from a Canadian company’s operations abroad, make recommendations, monitor those recommendations, recommend trade measures for companies that do not co-operate in good faith, and report publicly throughout the process. The CORE’s scope will focus on the mining, oil and gas and garment sectors.”
Advocates were dismayed that the new office would not be able to compel evidence and testimony. Emily Dwyer, coordinator of the Canadian Network on Corporate Accountability (CNCA), says that “from the perspective of our network, a focus on transparency alone, on reporting alone, or respecting a single set of rights alone is not enough. “
Dwyer says that the network has called on the government of Canada to “look at the examples of supply chains due diligence legislation that exist around the world and try to follow or build on the best in class examples.”
Frustrated by the reliance on “collaborative fact-finding” rather than investigation and by delays in making the office operational, the CNCA withdrew from the Multi-Stakeholder Advisory Body on Responsible Business Conduct, so that its membership is now almost entirely industry representatives. As of the federal election in October 2019, the role of the Ombudsperson for Responsible Enterprise had not been finalized and the office was not operational.
Another initiative in Canada is a private member’s bill. The Modern Slavery Act. Proposed in December 2018, it would impose a requirement on businesses to report on forced labour and child labour and imposes punishment on companies that fail to comply.
Member of Parliament John McKay, the bill’s sponsor, says that the main goal of the proposed act is to “compel companies of a certain size – which in this case is 20 million dollars’ worth of sales and 40 million dollars’ worth of assets – to disclose on an annual basis to the Minister of Public Safety that they have examined their supply chains and that they are satisfied that there is no element of slavery or forced child labour in the supply chains.” In the event of failing to comply and to report on findings, the Minister of Public Safety would be able to conduct an investigation and fine companies up to $250,000.
With the dissolution of parliament in September 2019, the bill had not been passed and thus is removed from the agenda, but it could be reformulated for another attempt in the future. (Very few private member’s bills succeed.)
For Dwyer and the CNCA, a focus on modern slavery alone will not be sufficient to deal with human rights abuse in supply chains.
“We have asked for Canadian supply chain legislation to provide for liability and remedy if a company fails to exercise due diligence and causes harm,” Dwyer said. The network would like legislation “that should cover the full complement of internationally recognized human rights including environmental harm, not just looking at a limited set of rights, that should articulate that companies have a responsibility to respect internationally recognized human rights, and that should require companies to take measures to identify, prevent, mitigate and account for how they address human rights abuse and environmental impacts.
“As significant as the problems of modern slavery and child labour are, there can be unintended consequences,” Dwyer said. “For example, if you are asking a company to look through its supply chains and assess and report if there is use of child labour or forced labour, and you come across other rights violations, you have no obligation, no incentive, and no requirement to report on that.”
