Human Rights Defender Volume 28 Issue 1 by HumanRightsUNSW

HUMAN RIGHTS DEFENDER Konica Minolta’s Journey in Human Rights

DR DAVID COOKE AND NICOLE D’SOUZA

The Role of Business to Support the Work of Human Rights Defenders A Personal Perspective

Why it is Time for an Enforceable International Living Wage Treaty

ANDY HALL

DR SHELLEY MARSHALL

SPECIAL ISSUE: HUMAN RIGHTS AND BUSINESS HUMAN RIGHTS DEFENDER | VOLUME 28: ISSUE 1 – MAY 2019

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MANAGING EDITORS:

AUSTRALIAN HUMAN RIGHTS INSTITUTE Website: www.humanrights.unsw.edu.au Email: humanrights@unsw.edu.au Twitter: @humanrightsUNSW LinkedIn: Australian Human Rights Institute

DR CLAIRE HIGGINS is a Senior Research Associate at the Andrew and Renata Kaldor Centre for International Refugee Law, at UNSW Sydney. She is the author of ‘Asylum by Boat: origins of Australia’s refugee policy’ (NewSouth, 2017) and was a Fulbright Postdoctoral Scholar at Georgetown University, Washington DC, in 2018. Claire is the Editor-in-Chief for the Human Rights Defender. DR PICHAMON YEOPHANTONG is an Australian Research Council DECRA Fellow and Senior Lecturer in International Relations and Development in the School of Humanities and Social Sciences, UNSW Canberra at the Australian Defence Force Academy.

DR CAROLINE LENETTE is Senior Lecturer in the School of Social Sciences, UNSW Sydney and a member of the Forced Migration Research Network, an interdisciplinary network of leading researchers in refugee and migration studies. Caroline’s research explores how storytelling through creative means can influence decision-makers towards meaningful change, and the ethical considerations of collaborative, arts-based research.

GUEST AND STUDENT EDITORS: ANGELA KINTOMINAS is a Scientia PhD Scholar at UNSW Sydney. Her research interests are in the intersections of gender, socio-economic rights and migration and her work is informed by feminist, socio-legal and interdisciplinary approaches to law. Angela is a Research Associate with the Social Policy Research Centre and the Migrant Worker Justice Initiative and is a Teaching Fellow at UNSW Law. ANDY SYMINGTON is a PhD candidate at UNSW Law and an Associate of the Australian Human Rights Institute. He is researching business and human rights, focusing on the extraction of lithium in the high Andean salt flats of South America. In 2018 he was honoured to be the recipient of UNSW’s inaugural Judith Parker Wood Memorial Prize for human rights law. He is an experienced freelance writer and journalist. JOSH GIBSON is a PhD Candidate and Garth Nettheim Doctoral Teaching Fellow at UNSW Sydney. As a member of the Australian Human Rights Institute and Gilbert + Tobin Centre, Josh’s research interests include anything public law and human rights. His research focuses on human rights litigation, social movement strategies and the institutionalisation of human rights norms. Josh teaches human rights law at Macquarie University. © 2019 Human Rights Defender. The views expressed herein are those of the authors. The Australian Human Rights Institute accepts no liability for any comments or errors of fact. Copyright of articles is reserved by the Human Rights Defender. ISSN 1039-2637 CRICOS Provider Code. 00098G

HUMAN RIGHTS DEFENDER | VOLUME 28: ISSUE 1 – MAY 2019

PHOTOS Cover image: Aubrey Comben www.aubreycomben.com @aubreycomben Aubrey Comben is a filmmaker and photographer based in Melbourne, Australia. Aubrey completed his undergraduate degree in photography at RMIT University, Melbourne. Aubrey’s series ‘Living in China’ explores the Chinese living situation and a lack of individuality and sense of isolation in this way of living and working. Contents page image: www.shutterstock.com Student editor: Nechama Basserabie Production manager: Gabrielle Dunlevy Designer: Stephanie Kay, On the Farm Creative Services

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Editorial

Modern Slavery – A Prison Without Walls

Konica Minolta’s Journey in Human Rights

Trade Unions v. Social Audits: Addressing Labour Exploitation in Woolworths’ Domestic Food Supply Chain

Josh Gibson, Angela Kintominas and Andy Symington

Moe Turaga

Dr David Cooke and Nicole D’Souza

Dr Katie Hepworth and Freya Newman

Public Interest Litigation Matures in Australia Josh Gibson

The Role of Business to Support the Work of Human Rights Defenders - A Personal Perspective Andy Hall

The Royal Commission and Discrimination in the Insurance Industry: An Interview with PIAC’s Michelle Cohen Nechama Basserabie

Business and Human Rights and Gender Equality: Working Towards an Intersectional, Feminist and Transformative Agenda Angela Kintominas

Why it is Time for an Enforceable International Living Wage Treaty Dr Shelley Marshall

Shaping the Future of Sustainable AI and Automation: Why Human Rights Still Matter Kylie Porter

Lithium-ion Batteries: Positive and Negative Rights Impacts Andy Symington

CONTENTS HUMAN RIGHTS DEFENDER VOLUME 28: ISSUE 1 – MAY 2019

Photo Essay: On the Frontline of Climate Change and Displacement Aude-Emilie Dorion

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BUSINESS AND HUMAN RIGHTS: CURRENT AND FUTURE CHALLENGES EDITORIAL BY JOSH GIBSON, ANGELA KINTOMINAS AND ANDY SYMINGTON

When a tailings dam at the Córrego do Feijão iron-ore mine near Brumadinho in Brazil burst in January 2019, it unleashed a torrent of sludge that overwhelmed a town and killed hundreds.1 This horrific disaster was yet another reminder of the huge impact corporations can have on human rights. The company involved, Vale, is the world’s largest iron-ore miner. It was the joint-venture partner with BHP at another Brazilian mine where a similar dam burst in 2015, killing 19 people and sending toxic slurry over 600 kilometres downstream to the ocean, devastating the environment over a huge area. In Bangladesh, garment workers have been striking for higher wages this year, bringing that industry into renewed focus and reminding us that, despite global scrutiny in the wake of the Rana Plaza disaster that killed over a thousand people in 2013, conditions remain desperately poor. Although there was recently a small wage increase conceded, unions say that a 50% increase beyond that would be necessary in order to constitute a living wage.2 Factory owners also sacked more than 5000 workers who had been involved in the strikes. The field of business and human rights seeks to address these and other impacts, an increasingly important task in our globalised world where large companies are often more powerful economic actors than the states in which they operate. Of the top 100 entities by revenue in 2017, only 29 were countries; the rest corporations.3

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THE BUSINESS AND HUMAN RIGHTS LANDSCAPE Ideally, the business and human rights endeavour would apply a universal standard to regulate corporate behaviour in order to avoid and mitigate negative impacts by companies on the rights of workers, local communities and other stakeholders. The reality is, however, that the business and human rights framework is somewhat piecemeal, with elements of hard law, ‘soft law’ and voluntary industry initiatives combining in a fast-evolving landscape. International human rights law is generally held to apply only to states. While states are obliged to protect the rights of individuals from violation by companies, in practice there are several stumbling blocks. Foreign investment is a key goal for most governments, who tend to be reluctant to deter potential investors by imposing legal and regulatory strictures on them. Some states may lack the capacity to do so even if willing. Companies are also adept at using subsidiaries, flags of convenience and other elements of corporate structure to avoid legal responsibility. These points, as well as the highly-publicised impacts of large western multinational companies in poorer nations such as those in Brazil described earlier, have led to efforts to make countries take responsibility for the actions of their companies overseas. A business and human rights treaty is currently being drafted in the United Nations system;4 an early version implies that it will seek to oblige states to create legislation clarifying company responsibilities, even when operating overseas. Human rights provisions are also increasingly appearing in bilateral investment treaties.

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Recent regional and domestic legislation seeks to directly impose human rights obligations on business. The European Union now requires large companies to publish reports that analyse policy in the context of human rights, among other elements.5 A 2017 French law imposes human rights reporting obligations on large companies, including overseas operations.6 There are similar initiatives in several other jurisdictions. Specific business and human rights issues have also been a recent focus of activism and lawmaking. For example, the UK and Australia have implemented modern slavery legislation which require businesses above a certain size to report on the risks of modern slavery in their operations and supply chains and the actions they have taken to address those risks.7 Though there has been criticism that the threshold – only companies with consolidated annual revenue of A$100 million must report in Australia, for example – is too high, the legislation can be seen as a step in the right direction. OTHER INITIATIVES Through the 21st century, various soft law initiatives have encouraged companies to consider and mitigate their human rights impact and that of their subsidiaries and supply chain. Some of these have been company- or industry-developed corporate responsibility standards; others are codes that have been created after multistakeholder dialogue, such as the United Nations’ Guiding Principles on Business and Human Rights,8 around which much of the business and human rights dialogue has coalesced. Similar standards have been developed by the ILO, the OECD and other bodies. The Guiding Principles specify three actions that corporations should undertake as part of their responsibility to respect human rights: a policy commitment, a human rights due diligence process and mechanisms to remedy violations.9 Human rights due diligence is now seen as a cornerstone of corporate respect for human rights. It differs from other corporate due diligence processes in that it is focused on risk to rights holders rather than risk to the company. The Guiding Principles specify that the process should include identification of actual or potential human rights impacts, integration of findings in company processes, tracking of effectiveness of action, and external communication of how the company is addressing its human rights impacts and risks. Human rights due diligence is a valuable tool, but it is important not to lose sight of the fact that success must be measured by rights outcomes rather than procedural compliance. Linking the process to domestic law with extraterritorial scope and penalties for non-compliance, as the French law mentioned above does, is perhaps the best way forward.

The same focus on rights-holders means that the remedy requirement mandated by the Guiding Principles and other instruments must be available, accessible, prompt, fair and effective. Victims of corporate human rights violations, whether individuals or communities, must be able to seek real redress if the aspirational language of business and human rights is to be realised on the ground. This issue of Human Rights Defender speaks to a range of these approaches. DEVELOPMENTS IN AUSTRALIA Violations of human rights by business do not only take place in distant lands or developing nations. Moe Turaga’s story of hardship brings this reality closer to home. After two years in Australia, often working seven days a week, Moe would soon come to learn that his family had received no money at all since he left Fiji, due to deception by his recruiter. Moe is now a strong advocate for ending slavery globally. Consumers in Australia, as he describes, ‘don’t know that the watermelon or tomato in their kitchen could have been picked and packed by someone that is being seriously abused’. The prevalence of wage theft and labour exploitation in Australia has been well-documented by media exposés, academic research and government inquiries. The contribution by Dr Katie Hepworth and Freya Newman contends that Australia’s new modern slavery legislation ‘is no panacea for eradicating worker exploitation’ and further points to the limitations of voluntary self-regulation and private compliance initiatives such as social auditing and reporting mechanisms on their own. The advocacy of the Australasian Centre for Corporate Responsibility and LUCRF Super in relation to Woolworths’ supply chain points to the role of shareholder resolutions as an innovative tool of corporate governance. In a statement to Human Rights Defender, Woolworths acknowledged the vulnerabilities faced by migrant workers in the Australian horticulture industry and said its Responsible Sourcing Program was the beginning of work to achieve meaningful change, as part of a multi-stakeholder process. While enforcing corporate compliance is one of the key challenges for business and human rights, an Australian business model may provide promising signs for the future. David Cooke and Nicole D’Souza provide detailed insight into how Konica Minolta Australia has developed processes to better ensure ethical compliance with best practice on modern slavery through supply chains. By detailing the difficulties and successes that Konica Minolta Australia faced and continues to face, this piece grapples with challenges in this area but provides a framework for future ethical compliance.

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TACTICS AND CHALLENGES FOR DEFENDING HUMAN RIGHTS Civil society, individuals and social interest groups play a large role in shaping corporate responsibility and accountability for business and human rights breaches. This is particularly important when considering mechanisms for remedying human rights violations. Josh Gibson reviews how Australian civil society can engage with human rights breaches by using public interest litigation as a strategic tool. His article places this growing Australian trend in the context of work undertaken by the Grata Fund, a leading third party litigation funding organisation that removes financial barriers for public interest litigants. Nechama Basserabie speaks to the Public Interest Advocacy Centre (PIAC), asking how the recent Australian Banking Royal Commission10 considered insurance companies’ treatment of consumers experiencing mental health issues. In doing so, PIAC highlights that the Royal Commission was an important institutional response in holding insurance companies to account for the way they treat consumers. Andy Hall provides a powerful account of the real risks that human rights defenders face in doing their work, ranging from harassment, intimidation, abuse of court process, physical violence, and even death. He calls upon the private sector to develop explicit policies to properly address the dangers human rights defenders face, and to work more constructively with them. BUSINESS AND HUMAN RIGHTS: WHAT HAS GENDER GOT TO DO WITH IT? Across the world, businesses must now comply with a range of domestic legislation related to gender equality, such as non-discrimination and equality laws, modern slavery laws and gender-pay reporting regulations. Similarly, a growing body of international law is relevant to business and gender. The UN Working Group on Business and Human Rights is currently conducting a thematic project to unpack the gender dimensions of the Guiding Principles on Business and Human Rights, which will culminate in a report to the Human Rights Council due in June 2019.11 There is an increasing awareness that gendered impacts of business-related human rights abuses are diverse and far-reaching. Women are impacted by business as direct employees or workers further down supply chains. But they are also likely to experience business use of land and natural resources, the privatisation of essential services and trade and investment policies in ways that are different to men. In the aftermath of business-related human rights abuses, the impact upon women who end up caring for injured or disabled workers is often not

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acknowledged.12 Angela Kintominas takes stock of these trends and argues that an intersectional lens is needed to capture the experiences of precarious workers in the bottom of global value chains and in highly feminised types of work. Shelley Marshall’s contribution makes a compelling case for how an enforceable living wage instrument could allow trade unions and other organisations representing workers to bring claims for their living wages in national and international tribunals. A living wage is increasingly out of reach for the world’s most precarious workers: garment workers in global supply chains, homeworkers, gigeconomy workers and others that are not adequately protected by traditional labour laws. In many industries these workers are overwhelmingly women. NEW TECHNOLOGIES AND HUMAN RIGHTS

Business is the key driver of technological change and of much scientific discovery. In some fields, advances are made at dizzying speed, but the rights implications are often unclear and legislation is unable to keep pace with the rapidity of development. There are several important human rights issues associated with new technologies.13 Some of these are positive. Worker-voice tools and blockchain technology promise improved scrutiny of complex supply chains, while social media may make it easier for workers to document and call out abusive employment conditions.14 Other impacts are potentially negative. Social media technology creates new risks of worker surveillance by companies and government authorities, while platforms have been accused of facilitating hate speech in the case of the March 2019 Christchurch massacre and violence in Myanmar against the Rohingya,15 among other incidents. Automation will have a huge impact on the right to work, while technology is facilitating ever-more-precarious jobs in the gig economy. The business model of many large IT corporations is based on harvesting our data, raising huge questions around the right to privacy. Many algorithms seem to reinforce existing discrimination, while the development of automatic weapons systems – to be examined in the next issue of Human Rights Defender – has especially frightening implications. How can we control the process and keep human rights front-and-centre? Buy-in from companies is essential if technological development is not to race forwards unchecked. In this issue, Kylie Porter considers the role that human rights must play in the future of automation

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and artificial intelligence. She makes the important point that companies who build the importance of human rights into their development will be creating better systems in the long run. Andy Symington then examines the importance of lithium-ion battery technology, which offers exciting opportunities in the move away from fossil fuels through its use in electric vehicles and renewable energy storage. However, he also identifies significant challenges in the extraction of the minerals involved: problem areas where mining companies and battery manufacturers must improve their human rights performance. LOOKING AHEAD These key themes illustrate both the importance and the potential of business and human rights to our present and future. They are the focus of the Australian Human Rights Institute’s 2019 conference Innovate Rights, which brings together viewpoints on these pressing issues from the perspectives of business, academia, activism and more.16

1. Responsible Mining Foundation, ‘Tailings Management: Learnings and Good Practice’ 5 February 2019 https://www. responsibleminingindex.org/en/foundation/research-insights/1. 2. Sarah Butler, ‘Why are Wages so Low for Garment Workers in Bangladesh?’ The Guardian 22 January 2019 https://www. theguardian.com/business/2019/jan/21/low-wages-garmentworkers-bangladesh-analysis. 3. Milan Babic, Eelke M Heemskerk & Jan Fichtner, ‘Who is More Powerful - States or Corporations?’ The Conversation 11 July 2018 https://theconversation.com/who-is-more-powerful-statesor-corporations-99616. See also Milan Babic, Jan Fichtner & Eelke M Heemskerk ‘States versus Corporations: Rethinking the Power of Business in International Politics’ (2017) 52(4) The International Spectator 20. 4. Human Rights Council, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights Resolution 26/9, 14 July 2014, UN Doc A/HRC/RES/26/9. 5. Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 Amending Directive 2013/34/EU as Regards Disclosure of Non-Financial and Diversity Information by Certain Large Undertakings and Groups Text with EEA Relevance 2014 Amendment (1), 1. 6. Loi N° 2017-399 Relative Au Devoir de Vigilance Des Sociétés Mères et Des Entreprises Donneuses d’ordre 2017. 7. Modern Slavery Act 2015 (UK); Modern Slavery Act 2018 (Cth). 8. United Nations Human Rights Council, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie’ 21 March 2011, UN Doc A/HRC/17/31. 9. For a helpful overview of the UN Guiding Principles see Shift, ‘UN Guiding Principles on Business and Human Rights’ https://www. shiftproject.org/un-guiding-principles/#prevent-negative-impacts. 10. Commonwealth of Australia, Final Report of the Royal Commission

The topics covered here emphasise that business is integral to the key global challenges of our time. Human rights are inseparable from the broad issues of sustainability, technology, equality, biodiversity and climate change that will shape our future; corporations can have immense negative impacts on these, but also possess huge positive transformative power. Companies thus have a crucial role to play in not just the enjoyment of human rights going forward, but in guaranteeing the very meaning of the concept in the long term. On that theme, the issue concludes on a contemplative note with Aude-Emilie Dorion’s striking photo essay highlighting the vulnerability of our Pacific region to climate change. This is an on-the-ground glimpse of human rights impacted by the actions of bigger players; in Dorion’s words, ‘what happens here matters to all of us’. It emphasises the crucial importance of government, business and society working together to avoid and mitigate human rights impacts which have the potential to be catastrophic.

11.

12.

13.

14.

15.

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into Misconduct in the Banking, Superannuation and Financial Services Industry (4 February 2019) https://treasury.gov.au/ publication/p2019-fsrc-final-report. Royal Commissions are the highest form of inquiry on matters of public importance in Australia. As part of this process, the Working Group held an Australian consultation in November 2018 co-hosted by the Australian Human Rights Institute alongside the Australian Human Rights Commission and RMIT CPOW: United Nations Human Rights, Gender Lens to the UNGPs https://www.ohchr.org/EN/Issues/ Business/Pages/GenderLens.aspx. See eg Beth Goldblatt and Shirin M Rai, ‘Recognizing the Full Costs of Care? Compensation for Families in South Africa’s Silicosis Class Action’ (2018) 27(6) Social & Legal Studies 671; Beth Goldblatt and Shirin Rai, Submission to the Working Group on the issue of human rights and transnational corporations and other business enterprises in response to the Open Call for Input regarding the Working Group’s Report on the Gender Lens to the UN Guiding Principles on Business and Human Rights (26 October 2018) https://www.ohchr.org/Documents/Issues/ Business/Gender/UniversityTechnologySydney.pdf. The Australian Human Rights Commission is conducting a twoyear study on new technologies and human rights; their report is expected towards the end of 2019. See further: https://tech. humanrights.gov.au/. See further Bassina Farbenblum, Laurie Berg and Angela Kintominas, Transformative Technology for Migrant Workers: Opportunities, Challenges and Risks (Open Society Foundations, 2018) https://www.mwji.org/publications. Paul Mozur, ‘A Genocide Incited on Facebook With Posts From Myanmar’s Military’ New York Times 15 October 2018 https:// www.nytimes.com/2018/10/15/technology/myanmar-facebookgenocide.html. See further Australian Human Rights Institute, Innovate Rights, 14-16 May 2019 https://www.humanrights.unsw.edu.au/innovate-rights.

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MODERN SLAVERY A PRISON WITHOUT WALLS MOE TURAGA Moe Turaga is an advocate for ending slavery globally, a disability sector worker and an Independent candidate for the Central Queensland seat of Hinkler in the 2019 federal election.

I come from a settlement in Fiji near the capital, Suva. As you know, many people in Fiji are struggling to survive as Fiji is still a developing country. My dad was one of the only members of our family who had a stable job as a dock worker. This meant that in addition to supporting my mum and siblings he also supported 10-15 other family members on his $80-$90 per week salary. This is typical in Fiji. Unfortunately, my dad died when I was 13 years old and our family was left without a steady income.

As in many parts of the world, there is a lot of pressure on the eldest boy in the family to help their families survive by working. I loved school education and had good marks throughout. But, by the time I was 15, I had to drop out of school and look for work to earn money to help my mother with my two younger siblings. So, I worked in a shop as a retail assistant for $25 per week which I gave to my mother to help feed our family. When I turned 17, I was approached by a cousin to go to Australia where he said I could study and earn money – much more than $25 per week – which he would send back to my mother on a regular basis for them to live on. I was excited about the possibility of going back to school. Now, this cousin was a church minister and a respected and trusted man in our society and family. He was not someone to be questioned – he was someone that you would trust to do the right thing. So, I agreed to go to Australia. All of my travel was arranged by him and he brought me with him to Australia in April 1988. He had not allowed me to bring many clothes and I was unprepared for the cold weather in my shorts and sandals. When I arrived, he took my passport and gave it to a migration agent who he said would assist in our permits and legal issues. He also told me there was a debt that I had to pay off first for travel and visa costs and he sent me to work as a machinist in western Sydney. For a few months, I made over $400 per week there but I had to give it all to my cousin to pay back the debt – an amount that I never knew. He assured me he was sending money to my mother. After seven months, he took me to a farm in Victoria where we worked on grape farms on two properties owned by the same family. I lived in a two-bedroom pickers hut provided on that farm with six other cousins. I didn’t know how much money my cousin was getting for my labour. There was never any contract or accounting for my work. I jumped on the truck at 6am and pruned and picked grapes until 6pm or dusk, seven days per week. These grapes went to supermarkets and farmers’ markets in Melbourne and Sydney. When there were no grapes to pick or prune, I picked watermelons and lettuce at their other farms, some of which went to fast food restaurants.

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I did this while still living in the pickers hut at the grape farm. Through my cousin, the farmer gave our group $100 per week with which we had to buy our food and basic items for living. Sometimes we would catch fish down in the river nearby and I’m sorry to admit sometimes we stole farm animals for food. We relied on carp and yabbies to sustain or supplement our diet at times. For us Fijians, it was really, really cold. Our only source of heat was the oven which we would sometimes turn on for warmth. It’s a sacrifice we made with the understanding that some monies were being given to our family back in Fiji. After about two years, I was finally able to contact my mother and found out that my cousin had never sent money to her. She had not received anything since I had worked as a machinist. I couldn’t believe this and I was emotionally devastated. I felt cheated and deceived by this man who I and our community trusted. But I also felt trapped because of his position of power in our society and that I would be shamed by my community if I complained or came home empty-handed. I would be seen as the wrong-doer or the rebellious person who didn’t make good of the opportunity that was provided to me. He would be believed while I would be considered ungrateful. He could poison the community against me. The power and fear of this shame kept me in a prison without walls, afraid to ask for help. Also, my passport was still with the migration agent in Sydney. So, I kept on working for a while in hope that I could find a way out of this situation. During some parts of the year I was able to walk into town and go to church on Sunday. I met other farmers there and decided to talk to them about what was happening. One farmer, Audrey, became very concerned and she offered to employ me on her farm. I decided that I had nothing left to lose anymore and took up the opportunity given by her and her husband. We had to leave the grape farm at night for our safety. She taught me skills like how to drive a forklift, drive a car and operate other farm machines. It was exhilarating to get paid a real wage into my own hand and to finally have money to get new clothes. It makes me sad now, but I remember how happy

Moe Turaga speaks at St. Bakhita’s Day Ethical Sourcing Seminar in Sydney, February 2019. Photo: Supplied.

I was to finally replace a pair of pants that I had almost worn through. I was proud to send the money I made to my mother and hear her voice on the phone. Audrey helped me to get my passport back from the migration agent. I was like a lost and abused kid and she became a mother figure to me. I ate at the table with her and her family and was treated as an equal. Audrey rescued me and restored my faith in humanity. Her family changed my whole perspective about life in Australia. I was able to socialise without fear. I made friends and became a part of the life of the town. Eventually, I met someone who became my wife and I have stayed permanently in Australia with four beautiful children. I would like to take this moment to acknowledge Audrey and her family for giving me the opportunity to believe in people again. I had my eldest child born whilst I was on Audrey’s farm, and she treated my oldest son as her grandson even though she has her own biological grandkids.

I don’t know how many people my cousin trafficked to Australia. I estimate that he would have made up to $200,000 from exploiting me for those years. I am marked by slavery forever. The scars on my back from when I fell off the truck into barbed wire and received no care are a regular reminder of this terrible time in my life.

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When I was first made aware by Alison Rahill and Jenny Stanger (from the Catholic Archdiocese of Sydney AntiSlavery Taskforce) that people are still living in these situations in 2017, my heart wept quietly, and I came home thinking about what happened to me as a young man here in Australia.1 I have always protected my kids and family from that part of me and that story. After I had the chance to meet Rosie Ayliffe and hear the story of her daughter’s fate something changed.2 I knew then what it must have been like for my mum all those years back, not knowing if I was dead or alive. That pain and loss as a parent resonated with me. It was God’s timing for me to stand up and tell my story in hope that it will provide some assistance to the modern slavery conversation. Even though I knew that part of my Fijian family would hate me for opening up the past, I thought it would comfort and encourage those still living in these conditions to speak out and seek assistance. An emotional burden has been lifted off my shoulders and I am blessed and comforted by the many people I have met. This has encouraged me to advocate for improved rights for those who are trying to better their families by labouring in our country. Most consumers out there still don’t realise that modern slavery practices are alive and well in Australia and especially in the horticultural industry. They don’t know that the watermelon or tomato in their kitchen could have been picked and packed by someone that is being seriously abused. Farmers may not be aware that the labour hire contractor he or she is using is fraudulent or corrupt. I believe that there are still a lot of good people out there who are doing the right things. But there is also a lot of abuse. It doesn’t have to be that way; we don’t have to accept it. We need government, big retailers and everyone down their supply chains to come together with unions and the community to especially protect foreign workers. My advocacy started in August 2017 when Andrew Forrest from the Walk Free Foundation invited me to

1. See Catholic Archdiocese of Sydney Anti-Slavery Taskforce, ‘Modern Slavery’, https://www.sydneycatholic.org/solidarity-andjustice/anti-slavery/. 2. Rosie Ayliffe, ‘Rosie Ayliffe: I won’t be ignored in my battle for migrant mothers like Mia’, The Sydney Morning Herald, July 17 2017, https://www.smh.com.au/lifestyle/rosie-ayliffe-i-wont-beignored-in-my-battle-for-migrant-workers-like-mia-20170716gxcf4u.html. 3. See Minderoo Foundation – Walk Free, https://www.minderoo. com.au/walk-free/?utm_medium=301&utm_source=www. walkfreefoundation.org; Rebecca Turner, ‘Modern slavery has many faces – and Moe Turaga is one of them’, ABC News, 25 August 2017, https://www.abc.net.au/news/2017-08-25/slaverydid-not-come-with-chains-for-moe-turaga/8844188.

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share my story for the first time in public at the Bali Process Business and Government Forum in Perth.3 There were hundreds of business and government leaders there from 45 countries including Pacific nations and I was featured in national media. In 2018, I was engaged in organising Pacific Islanders and other communities in four agricultural exploitation hotspots in Victoria, New South Wales and Queensland to identify and respond to slavery via the Freedom Links project with The Salvation Army.4 I also gave evidence at the Commonwealth Inquiry into Establishing a Modern Slavery Act for Australia and my story is part of the official Hidden in Plain Sight report.5 Faith communities can play an important role in reaching vulnerable people, especially in Pacific Island communities, and these communities deserve support. I was able to work again with the Walk Free Foundation to link with the Pacific Conference of Churches to form the Pacific Freedom Network.6 In 2019, I plan to keep adding my voice wherever I can and hope that with the passage of the Modern Slavery Act there will start to be some real improvements.7 I recently spoke at an event with the Catholic Archbishop of Sydney, Most Rev Anthony Fisher, and Jennifer Westacott, head of the Business Council of Australia. If this leadership is followed by action, then it will make a difference. As a member of a rural community today I see many vulnerable temporary workers coming to Australia from all over the world seeking an opportunity. Farming is still hard work and there are still people like my cousin exploiting others for their own profit. People in this situation don’t know that there are people working hard to close down opportunities for this sort of exploitation. I urge you, as strongly as I can, to continue to take action against modern slavery. Editor’s note: Rosie’s daughter Mia was killed in 2016 while in North Queensland doing agricultural work as part of a temporary visa arrangement.

4. Simone Worthing, ‘Freedom partnership supports exploited fruit pickers’, The Salvation Army – Others, 8 May 2018, https://others. org.au/news/2018/05/08/freedom-partnership-supportsexploited-fruit-pickers/. 5. Joint Standing Committee on Foreign Affairs, Defence and Trade, ‘Hidden in Plain Sight’ (Report), December 2017, available at https:// www.aph.gov.au/Parliamentary_Business/Committees/Joint/ Foreign_Affairs_Defence_and_Trade/ModernSlavery/Final_report. 6. See Minderoo Foundation – Walk Free, ‘Religious leaders come together in New Zealand to eradicate modern slavery’ (Media Release), 9 November 2018, https://www.minderoo.com.au/ global-freedom-network/news/religious-leaders-come-togetherin-new-zealand-to-eradicate-modern-slavery/. 7. Modern Slavery Act 2018 (Cth)

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KONICA MINOLTA’S JOURNEY IN HUMAN RIGHTS DR DAVID COOKE Dr David Cooke was appointed as the first non-Japanese Chairperson and Managing Director of Konica Minolta in Australia in 2013. He is a graduate of the Australian Institute of Company Directors and a Fellow of the Australian Institute of Managers. He is also the Chairperson of the UN Global Compact Network Australia and a Non-executive Director of Sustainalytics. He also chairs the UNSW Australian Human Rights Institute Advisory Committee and is an Adjunct Professor at UTS Business School.

NICOLE D’SOUZA Nicole D’Souza is the Ethical Sourcing Manager at Konica Minolta Business Solutions Australia. She holds Bachelors degrees in Arts and Law and a Master of Laws from the University of Sydney, through which she spent time in Nepal and conducted research on international human rights responses to human trafficking. She has worked in domestic and international human rights advocacy and as a human rights, regulatory, trade union, public interest and litigation lawyer in Sydney, Hong Kong, London and Geneva.

What was the initial motivator for you to eradicate modern slavery from the company’s supply chain? Konica Minolta Australia is a market leading provider of integrated print hardware and software solutions, 3D printing and robotics, and a fully owned subsidiary of Konica Minolta Incorporated (“KMI”). Our parent company KMI, is a publicly-listed Japanese multinational technology business with offices in 49 countries around the world with a strong commitment to Corporate Social Responsibility, evidenced by our ranking in the Dow Jones Sustainability Index for seven consecutive years, including the last two years as an Industry Leader. Konica Minolta Australia’s first exposure to the idea of modern slavery came in 2013 when we held a conference for our sales representatives in Siem Reap, Cambodia, amidst the breathtaking temple complex of Angkor Wat. We had arranged for a local Cambodian activist named Somaly Mam to be our keynote speaker. Some twenty years prior she had founded an organisation called AFESIP (a French acronym for Acting for Women in Distressing Situations) that worked with young women who had been trafficked into sexual slavery, in the areas of rescue, rehabilitation and empowerment. Cambodia is a source, transit and destination country for human trafficking and on that first evening we also met several young women who had themselves been trafficked varyingly within, out of and into Cambodia, and with the support of AFESIP were now attending Phnom Penh University. They were in their first year of degrees in law, accounting, nursing and psychology. There was not a person in the room who was not moved by their stories that night. It soon became apparent just how vulnerable young women from impoverished backgrounds might be to sexual exploitation. Having had our eyes opened to the nature of these issues, we resolved as a company to provide ongoing support to help fund this vitally important work and we continue to do so five years later.

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Upon our return this led to some self-reflection. We began to research the issue of modern slavery in business supply chains to try to better understand what our own role was in relation to these issues. We initially turned to the Walk Free Foundation in Perth that had been established by Andrew ‘Twiggy’ Forest. They provided invaluable guidance in helping us to establish our own ethical sourcing program. We hired a business and human rights specialist to lead this work, and thereafter launched our Ethical Sourcing Roadmap,1 Human Rights Position Statement 2 and Supplier Code of Conduct 3, aligning our approach with international good practice in this area and consciously adopting a human rights based approach. Our Ethical Sourcing Program is one which involves cross-functional engagement across the organisation, from the development of procurement policies and practices to the consideration of the inclusion of ethical sourcing clauses in our contracts, to the education and training of our staff to build support for and engagement with this work, to communicating and reporting on our work as part of our commercial relationships and obligations, to our engagement with our suppliers to both understanding our risks as well as to work with them to build their capacity and engagement with these issues. A key part of our work in recent years has been our advocacy work in relation to the passage of Modern Slavery legislation as well as our external engagement with other businesses now looking to commence work on their own operations in this area. WHAT HAVE BEEN THE TOUGHEST CHALLENGES AND THE BIGGEST REWARDS? After becoming aware of the scale, complexity and enormity of the challenges in tackling modern slavery, we realised from a business perspective how daunting this challenge could be. No single entity or business can alone solve these multidimensional global issues. Instead, international cooperation and commitment from governments and business is required, as well as involvement from human rights experts and civil society who bring insights into the experiences and perspectives of victims of modern slavery. Complicating this layered approach is the general low-level recognition by the corporate world toward the complex nature of modern slavery. Once businesses become aware of their potential exposure to modern slavery – which is an ambitious goal in itself – the challenge then becomes how to address it. Understanding these challenges early on, Konica Minolta Australia adopted a human rights-based approach in line

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with international human rights law and the UN Guiding Principles on Business and Human Rights. We joined collaborative efforts both in Australia and internationally to advocate for action by business and government to set a level playing field for business and to support greater public awareness of the nature of modern slavery. Globally, our parent company, Konica Minolta Inc, joined the Responsible Business Alliance, an industry-leading coalition for the electronics industry focussed on responsible sourcing, and the UN Global Compact Network (UNGCN) Japan, providing standards and a guiding framework for our work in this area. One of the greatest rewards has been the positive impact of this endeavour on our employee engagement, with employees stating that they feel proud to be associated with a company that cares about tackling modern slavery. Additionally, we have been buoyed by the positive responses from our key suppliers in response to our engagement with them as part of our ethical sourcing work. For instance, the CEO of one of our suppliers became a major benefactor of our charity partner Project Futures, which raises funds to support the work of AFESIP as well as for victims of modern slavery in Australia. Another positive outcome has been the excellent engagement and support that we have received by joining the UNGCN Australia and in particular their Community of Practice on Modern Slavery, a community of businesses who are committed to and taking action in relation to ethical sourcing and business and human rights more broadly. Being recognised by Anti-Slavery Australia in 2017 with the bestowal of their Freedom Award and then in 2018 by the Australian Human Rights Commission as the recipient of the Human Rights Award for Business were both humbling and a wonderful way to celebrate our efforts with our staff, our suppliers and customers more broadly.

One of the challenges businesses in Australia must now confront is how they will conduct their supplier verification and engagement, navigating the different tools and methodologies that exist, while confronting the absence of uniformity and consistency around such practices. As both a supplier and a customer, Konica Minolta Australia has developed some insights into the state of play in this area and is now playing an active role in engaging in the shaping of such tools into the future.

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WHAT ARE SOME OF THE KEY LESSONS FOR BUSINESSES THAT ARE JUST STARTING ON THIS PATH? 1. Focus on the ultimate social impact you are seeking to achieve, even if that is a long-term goal that requires collaboration. Understand the underlying purpose for which you are taking action and how it fits into the broader global movements and standards in this area, such as the Sustainable Development Goals, OECD Guidelines and industryspecific or other existing multi-stakeholder initiatives. 2. Seek guidance from the experts. Whilst the idea of modern slavery is new and confronting to many businesses, it has been the life’s work of many in academia, civil society and consulting to address corporate modern slavery. This is an area ripe for cross-pollination. 3. Conduct a human rights due diligence assessment and identify your most salient risks by considering what your core business is and who your key external stakeholders are. This will enable you to focus on where your greatest risks of negative human rights impacts might be occurring. 4. Build support internally from relevant stakeholders so that your ethical sourcing program is connected with the core parts of your operations and is sufficiently resourced. Consider the need to engage with and work towards embedding this work in your legal, human resources, procurement, finance, operations, risk, marketing, service delivery and other functions. 5. Map your supply chain. Many businesses do not have this visibility, so this will be the starting point for many. 6. Establish a set of minimum standards for your suppliers and be prepared to work with them to build capacity in this area. 7. Identify how you can engage with workers on the ground throughout your supply chains, such as through grievance mechanisms, worker wellbeing assessments and by connecting with civil society organisations and trade unions, remembering that at the heart of this agenda is the prevention of the most severe forms of labour exploitation. 8. Consider how you will address remediation of human rights and labour rights issues, including those that fall outside the definition of ‘modern slavery’ with your suppliers.

1. https://www.konicaminolta.com.au/KonicaMinolta/ media/KonicaMinolta/Insight%20Series/KonicaMinolta-Ethical-Sourcing-Roadmap_v2.pdf 2. https://www.konicaminolta.com.au/KonicaMinolta/ media/KonicaMinolta/Insight%20Series/Human-RightsPosition-Statement_121216.pdf 3. https://www.konicaminolta.com.au/KonicaMinolta/ media/KonicaMinolta/About/CSR/Konica-Minolta_ Supplier-CoC.pdf

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TRADE UNIONS V. SOCIAL AUDITS ADDRESSING LABOUR EXPLOITATION IN WOOLWORTHS DOMESTIC FOOD SUPPLY CHAIN DR KATIE HEPWORTH Dr Katie Hepworth is the Director of Workers’ Rights at ACCR. She has a background in the trade union movement, in campaign, policy and research roles.

FREYA NEWMAN Freya Newman is the Research and Education officer at ACCR. She has a background in communications and research, having worked as a media advisor, communications strategist, political campaigner and research assistant.

“I have two simple questions to the chairman. How many other farmworkers have been exploited just like I was in Woolworths’ farms? And how do you know this? Second, what steps will you take to make sure that Woolworths’ farmers know that it is wrong to threaten workers and what actions are you taking to protect workers when they join unions and speak out against exploitation?” Putri Nazeri, Malaysian farm worker, addressing Gordon Cairns, Woolworths CEO.1 In 2018, the Australasian Centre for Corporate Responsibility (ACCR) together with superannuation fund LUCRF Super, co-filed a shareholder resolution with Australian-listed company Woolworths Ltd. Together with fellow supermarket brand Coles, Woolworths is the principal buyer of fresh fruit and vegetables in

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Australia, with the pair accounting for 67.5% of market share by sales value in 2017-18.2 In the past three years, there has been significant media exposure of the major and persistent labour rights violations in Australian domestic fresh food supply chains, including by Woolworths’ major strategic suppliers.3 The resolutions that were put forward in both 2017 and 2018 establish a set of supply chain management principles to mitigate the multitude of business and operational risks associated with these violations in Woolworths’ supply chain. This article discusses these principles in the context of broader legislative changes to address modern slavery, with specific attention to the role of shareholder resolutions in achieving corporate change. ACCR is a not-for-profit organisation working to highlight emerging areas of business risk through private and public engagement with Australian listed companies. Shareholder resolutions are one of the tools of engagement that we have to further corporate governance. They are means by which investors can place particular issues onto the agendas of listed companies, with the aim of

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changing corporate behaviour.4 They are also one of the few opportunities for impacted communities to raise their concerns directly with a company board, both through the engagement process and by speaking on the resolution at the company Annual General Meeting (AGM). At the 2018 Woolworths’ AGM, Putri Nazeri, a Malaysian farm worker who was employed on Woolworths’ supplier farms, recounted the exploitation that she had experienced on Australian farms.5 The kind of experiences she recounted – of being underpaid and forced to pay her employer for transport to work and accommodation in a rundown premises – have been extensively documented through media exposés and government inquiries. These media and government investigations have demonstrated many of the International Labor Organization (ILO) indicators for the presence of modern slavery, including the retention of identity documents, threats of physical and sexual violence, trading of sexual favours for payment, isolation from other workers and communities, excessive overtime, severe underpayments and the withholding of wages.6 The presence of indicators of modern slavery in Australia’s domestic food supply chain, coupled with the passing of the Commonwealth Modern Slavery Bill in late 2018, framed the investment sector’s understanding of suitable and sufficient strategies for dealing with the severe human rights’ risks in the Woolworths’ supply chain. However, ACCR believes that the new law is no panacea for eradicating worker exploitation in Australian supply chains. The Commonwealth Modern Slavery Bill requires Australian businesses with a revenue of at least AU$100 million to submit annual reports on the risks of modern slavery to their supply chains and operations to a central, public register. There are no penalties for companies which fail to report, although they may be ‘called out’ by the Minister, who is empowered to report instances of non-compliance to the federal parliament. This additional transparency may assist civil society organisations and investors to engage with companies on supply chain issues. However, reporting cannot properly address labour exploitation and ensure decent work in supply chains. In the first instance, the absence of modern slavery does not ensure that workers in supply chains are afforded legal minimum conditions – only that they are not forced or coerced to work. Secondly, where the data presented in company modern slavery statements is obtained through audits that are conducted by third party auditors without direct trade union involvement or monitoring, it is unlikely that its identification of issues in the workforce will be anything more than superficial. In 2017 the ILO published a report describing current best practice across multiple industry sectors to ensure

workplace compliance in global supply chains. The report was based on a comprehensive review of policies and programmes that had been deployed globally over the last 30 years. The report was critical of the ability of voluntary self-regulation and ‘private compliance initiatives’ – such as codes of conduct, auditing, certification schemes or other self-reporting mechanisms such as the UN Global Compact or the Global Reporting Initiative – to sufficiently manage business and operational risks from labour violations in supply chains.7 It found that social audits have limited effectiveness in exposing workplace issues such as harassment, wage theft, excessive overtime, and freedom of association violations,8 as it is too easy for employers and managers to misrepresent the realities of a workplace during an audit.9 While there has been limited work done on social audits in agricultural supply chains, the findings of the ILO correlate with the experiences recounted by Putri Nazeri at the Woolworths’ AGM: ... when I worked at one of your big suppliers [...] the company knew [an audit was about to occur] beforehand and would ask us to spend a day before to clean the whole packing shed and [...] remind us to pack the perfect vegetables when the visitor pass by. On the day that the visitor would come, the farmer and the contractor would send home all the undocumented and cash workers, the visitor walked through the factory with the boss, but didn’t speak with any of the workers.10

Woolworths CEO Gordon Cairns did not dispute Putri’s experience of audits in the Australian farm sector. Instead, he responded with a commitment to undertake unannounced audits in the ‘highest risk areas’ to overcome the problems she described.11 Cairns’ commitment to undertake unannounced audits does not adequately address the serious risks in Woolworths business. Studies clearly demonstrate that workers and their unions are crucial to an effective due diligence process to mitigate labour rights violations in supply chains. Workers are able to continually monitor and report on issues at production sites.12 However, before workers can adequately participate in monitoring their own workplaces, studies show that they must be provided with in-depth education on their workplace rights by trade unions and be supported to raise concerns.13

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Shoppers are becoming more aware about the workforce behind their fresh produce. Image: www.shutterstock.com

Drawing on this research, and the experience of farm workers in Woolworths’ supply chain, the 2018 resolution called on the company to work with the National Union of Workers (NUW) to implement a labour hire prequalification program, ensure trade union involvement in grievance procedures and worker education, and provide ongoing disclosure to shareholders about its fresh food supply chain.14

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This resolution was the second that ACCR and LUCRF Super filed with Woolworths regarding their domestic food supply chain. The first resolution in 2017 had followed two years of engagement between the NUW and Woolworths about ways to end labour rights abuses and improve compliance on Woolworths supplier farms in Australia.15 The resolution was withdrawn by ACCR, NUW and LUCRF Super prior to the meeting, following Woolworths’ commitments to: … work collaboratively [with the NUW] towards the implementation of an agreed pre-qualification programme for labour-hire providers to ensure that all labour providers who wish to operate in Woolworths’ direct fresh food supply chains comply with labour and human rights standards.16

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The decision to file a second resolution followed the stalling of those negotiations, and a failure by Woolworths to implement sufficient mechanisms to address the risks in their supply chain. The second resolution and accompanying investor brief emphasised the importance of trade unions in helping to address worker exploitation in supply chains and was highly critical of Woolworths’ reliance on third party audits and whistleblower hotlines.17 The 2018 resolution achieved a significant vote of 14.92% at the Woolworths AGM,18 with a number of investors speaking publicly about their support for the principles expressed through the resolution.19 Engagement with the company is ongoing, with a third resolution possible should the talks fail to deliver a result that properly addresses the human and labour rights risks in its supply chain. This will only occur through a program that does not rely on third party audits, and properly recognises the role of trade unions and an organised workforce in monitoring the dayto-day operations in the global supply chain.

WOOLWORTHS GROUP RESPONSE FOR UNSW HUMAN RIGHTS DEFENDER MAGAZINE Woolworths takes its responsibility to identify and remedy human rights violations in the supply chain seriously. Our Responsible Sourcing Program, launched in July 2018, is underpinned by risk-based due diligence that enables us to focus efforts on the most salient human rights risks. Knowing the unique vulnerabilities faced by migrant workers in our Australian horticultural supply chain, Woolworths has devised a specialised program to address the issues at multiple levels. In the past nine months we have:

• Launched Requirements for Labour Providers in our Australian Horticultural Supply Chain as the first step to ensure suppliers have better oversight of labour agents in the supply chain. • Held a week of activities on the theme of Responsible Recruitment including auditor and supplier training on indicators of forced labour. We will continue and expand this training. • Hosted a Retail Roundtable with our peers to discuss opportunities for alignment on key issues to establish consistent expectations for suppliers and better outcomes for workers. • Engaged the Fair Farms Initiative on developing an industry Standard to assess and develop supplier capacity for social compliance. • Alongside the NUW, retailers and other industry bodies, Woolworths participated in the first meeting of the Fair Work Ombudsman’s Harvest Trail Stakeholder Reference Group, an ongoing collaboration until June 2020. • Continued to meet with the NUW as per our 2017 agreement. We know this work is just the beginning. Achieving meaningful and sustained change for vulnerable farm workers will require a genuine multistakeholder response from retailers, suppliers, industry, unions, academics and, importantly, government. Woolworths is already at the table. We will continue to operate in good faith and remain ready to participate in ongoing discussions with the NUW and other key stakeholders. More information is available in Woolworths ASX response to the 2018 ACCR Shareholder Resolution.

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1. For the webcast of Woolworths’ 2018 AGM, see https://edge. media-server.com/m6/p/y5xg24hn. 2. Ibis World, “IbisWorld reveals state of the supermarkets and grocery industry” (Press Release), 23 February 2018, https:// www.ibisworld.com/industry-insider/press-releases/checkoutupdate-q1-2018-ibisworld-reveals-the-state-of-play-in-thesupermarkets-and-grocery-stores-industry/. 3. Ben Schneiders, “Key farm scheme badly rorted, farm workers paid $8 per hour”, The Sydney Morning Herald, 19 May 2018, https://www.smh.com.au/business/workplace/key-farm-schemebadly-exploited-migrant-workers-paid-8-an-hour-20180518p4zg53.html; Nick McKenzie and Nick Toscano, “Seasonal Workers Program participants told if they join union they’ll get no work”, The Sydney Morning Herald, 11 March 2017, http://www. smh.com.au/business/seasonal-workers-warned-if-they-join-aunion-theyll-get-no-work-20170309-guujgv.html; Ruby Jones, “Two Wells tomato growers Perfection Fresh face scrutiny after worker, union speak out”, ABC News, 11 August 2017, http:// www.abc.net.au/news/2017-08-11/union-calls-for-urgent-audit-oftomato-grower/8799686; Richard Baker, Nick McKenzie and Ben Schneiders, “Another supermarket fruit supplier caught allegedly underpaying migrants”, The Sydney Morning Herald, 15 Nov 2018, http://www.smh.com.au/business/workplace-relations/anothersupermarket-fruit-supplier-caught-allegedly-underpayingmigrants-20161115-gspu0v.html; SMH, “Migrant workers in slavelike conditions, 4-corners reports”, The Sydney Morning Herald, 4 May 2015, http://www.smh.com.au/national/migrant-workers-inslavelike-conditions-abcs-four-corners-reports-20150504ggu12u.html; Fair Work Ombudsman, “Harvest Train Inquiry: A Report on Workplace Arrangements along the Harvest Trail,” 2018; Commonwealth of Australia. “Report of the Migrant Workers Taskforce March 2019”, 2019; Commonwealth of Australia. 4. For more information about the operation of shareholder resolutions, see: https://accr.org.au/wp-content/uploads/ACCR_ intl_cf_sh_res_final2014.pdf. 5. Patrick Hatch, “Woollies to be grilled on farm exploitation at AGM”, Sydney Morning Herald, 21 November 2018, https://www. smh.com.au/business/companies/woolies-to-be-grilled-on-farmexploitation-at-agm-20181120-p50h76.html. 6. ILO, ILO Indicators of Forced Labour, Geneva, ILO, 2012, https:// www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/ documents/publication/wcms_203832.pdf. 7. ILO, Workplace Compliance in Global Supply Chains, Geneva,

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8. 9.

10. 11. 12.

13.

14. 15. 16.

17. 18.

19.

ILO, 2017, pp. 10–15, https://www.ilo.org/sector/Resources/ publications/WCMS_540914/lang--en/index.htm. Ibid, pp. 10–15. Duncan Pruett, “Looking for a quick fix: How weak social auditing is keeping workers in sweatshops” (Report), Clean Clothes Campaign, 2005; Amsterdam, p. 14. For the webcast of Woolworths’ 2018 AGM, see https://edge. media-server.com/m6/p/y5xg24hn. Ibid. Duncan Pruett, “Looking for a quick fix: How weak social auditing is keeping workers in sweatshops”, Clean Clothes Campaign, 2005, p. 79. Ethical Trading Initiative, “ETI Annual Report 2003/04: Putting Ethics to Work”, 2004; London, http://www.ethicaltrade.org/Z/lib/ annrep/2004/en/index.shtml. See also: World Bank, “Strengthening Implementation of Corporate Social Responsibility in Global Supply Chains”, World Bank, 2003, http://siteresources. worldbank.org/INTPSD/Resources/CSR/Strengthening_ Implementatio.pdf. https://accr.org.au/wp-content/uploads/ATT-A-WOW-2018resolutions-and-supporting-statements.pdf https://accr.org.au/wp-content/uploads/Woolworths-InvestorBrief.pdf Woolworths Group, “Woolworths reaffirms commitment to improving labour rights in fresh food supply chains” (Press Release), 22 November 2017, https://www.woolworthsgroup.com. au/page/media/Press_Releases/woolworths-reaffirmscommitment-to-improving-labour-rights-in-fresh-food-supplychains. https://accr.org.au/wp-content/uploads/Woolworths-InvestorBrief.pdf Woolworths Group, 2018 AGM Results, 21 November 2018, https://www.woolworthsgroup.com.au/icms_docs/195451_2018agm-results-final-to-asx.pdf. Patrick Hatch, “Woollies to be grilled on farm exploitation at AGM”, Sydney Morning Herald, 21 November 2018, https://www. smh.com.au/business/companies/woolies-to-be-grilled-on-farmexploitation-at-agm-20181120-p50h76.html; Joanna Mather, “Woolworths faces shareholder resolution on labour rights”, AFR, 12 November 2018, https://www.afr.com/personal-finance/ superannuation-and-smsfs/woolworths-faces-shareholderresolution-on-labour-rights-20181109-h17q91.

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PUBLIC INTEREST LITIGATION MATURES IN AUSTRALIA JOSH GIBSON Josh Gibson is a current PhD Candidate and Garth Nettheim Doctoral Teaching Fellow at UNSW Sydney. Josh is a guest editor on this issue and tweets @joshgibs0n

INTRODUCTION

BACKGROUND

In 2018, a disability discrimination case against the Commonwealth Bank of Australia (CBA) was brought before the Federal Circuit Court (FCC). Graeme Innes, former Australian Disability Discrimination Commissioner, and Nadia Mattiazzo initiated the landmark case against the CBA. They argued that the CBA’s new transactional touchpads – known as Albert terminals – which were introduced in 2015 and are present across thousands of Australian businesses posed particular problems for the nearly 350,000 blind and vision-impaired people of Australia.

In 2016, Blind Citizens Australia and the Public Interest Advocacy Centre (PIAC) supported a number of Australians who were adversely impacted by the Albert machines to lodge a complaint with the Australian Human Rights Commission (AHRC). The allegation was that CBA had discriminated against the complainants by failing to ensure that vision-impaired people could appropriately access the machines.3 At the time, around 88,000 Albert terminals were active across Australia.4

While the case was eventually settled out of court, it was a symbolically important achievement for vision-impaired Australians. As part of the settlement, CBA introduced new training and software so that vision-impaired customers have better access to the terminals.1 As Mr Innes told the Australian national TV program 7.30 Report,

‘[o]ne of the benefits of running these sorts of court challenges is that it demonstrates to organisations, in whatever area, that they can’t treat people with disabilities differently to the way that people without disabilities are treated’.2 It additionally provides a good example in considering how the burgeoning movement of public interest litigation (PIL) is being emboldened in Australia in order to hold governments and corporations to account.

While efficient for processing sales, these machines posed particular problems for vision-impaired people. The touchpad screens are flat glass, with no fixed buttons. While some small purchases can be made by simply tapping a card, larger purchases that require a visionimpaired person to enter their PIN will be virtually impossible for them to complete without revealing their PIN to someone else. As Mr Innes highlights, revealing a PIN to another person may, in fact, breach the contract between a consumer and their bank.5 As Ms Mattiazzo also asks: would you trust a stranger with your bank PIN? Deliberating on this question, Ms Mattiazzo, and many thousands of other vision-impaired people, had to grapple with the realities of this scenario wherever an Albert terminal was present. At the end of 2017, after 18 months of conciliation through the AHRC, the matter was left unresolved. The complainants were left unsatisfied. With a further desire for justice, they had no choice but to lodge a complaint with the FCC. On 9 March 2018, the case was accordingly lodged in the FCC. The complainants were represented by senior solicitor Michelle Cohen from PIAC, and received financial backing from the Grata Fund (Grata).

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PUBLIC INTEREST LITIGATION AND HUMAN RIGHTS IN AUSTRALIA: HISTORY, CHALLENGES, FUTURE The use of PIL is a common legal strategy across the world, often used to ‘trigger social or legal change where there is no political will to do so, and obtain redress for injustices experienced by disadvantaged groups’.6 In recent decades, a renewed interest in public interest cases in Australia has meant significant successes for a range of plaintiffs in a variety of human rights areas including indigenous, environmental and LGBTIQ+ rights. The right to challenge such policies and laws, as has been argued, is ‘essential to a liberal democracy such as Australia, which thrives on a plurality of different views about desirable rules, directions, attitudes and behaviours in society’.7 Yet, two considerations continue to hinder the momentum of PIL in Australia: what exactly is meant by public, and whose interests are we talking about? As academics have identified, ‘public interest’ is a ‘complex and tricky concept to navigate because it has intentionally evolved as ambiguous and mutable’.8 The Australian Law Reform Commission, recognising how amorphous the notion of public interest is, have declared that public interest ‘should not be defined’.9 While the public interest is indeterminate in nature, particularly considering Australia’s pluralistic diversity, PIAC provides helpful insights into determining when a matter of public interest is raised. To PIAC, such issue is raised when:

• The matter is one of public importance; and • The matter will have a far-reaching impact, beyond the individual parties’ rights, of which the outcome will affect larger groups of people; and • Important understandings of rights or obligations will be determined or enforced.10 What remains even more unique about the Australian PIL narrative is that, unlike other countries including the USA, Canada, post-apartheid South Africa and India, Australia operates without an overarching Bill or Charter of Rights. In fact, Australia is the only democratic country in the world that operates without any consolidated legislative or constitutional human rights framework.11 As a result, this means that one branch – the judiciary – has no systematised legal instrument to measure human rights breaches against. This has led to a haphazard approach towards human rights considerations in Australia, with the overall fabric of human rights viewed as ‘more of a patchwork quilt, frayed at the edges, than a secure and comprehensive regime of rights and freedoms’.12 One of the key driving forces attempting to reconcile this human rights lacuna is the movement of PIL. While not always ‘successful’, in terms of court outcome, PIL has

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played an important role in securing redress for many Australians on a range of social and policy related issues. For example, in the environmental space, we can look to the Tasmanian Dams13 case, which was seen as a key campaign to ‘inject environmental harm considerations into policy and law-making processes’.14 Viewing the social movement campaign against indefinite detention, important cases such as Al-Kateb15 and Plaintiff S9916 have shifted public sentiment on refugee and asylum seeker policy issues. The sex and gender movement has also experienced broad PIL interest, with cases like Norrie17 and the same-sex marriage case18 providing contemporary examples of how policies and governmental overreach on grounds of sex and gender can be challenged. Each of these examples of the broader movements highlight how PIL campaigns in Australia have been able to foster broad social support, and administer responses within courts. Such movements have emboldened the Australian social psyche to respond to public interest issues in distinct ways, particularly given the absence of a bill or charter of rights. And while the movement continues to grow, certain barriers stand in the way of broader PIL participation. BARRIERS TO PUBLIC INTEREST LITIGATION IN AUSTRALIA Despite the growing successes of PIL in Australia, general hostility towards public interest litigation still exists.19 Evidently, there are a range of distinct barriers that plaintiffs face in bringing public interest case to an Australian court. Most notably is the issue of costs. Public interest litigants in Australia take on a high financial risk when considering litigation as a strategic choice. According to the Commonwealth Attorney-General’s Department, the average cost including disbursements for applicants lodging a Federal Court case in 2007/08 was $111,130.20 This exorbitant access cost excludes many potential litigants from approaching the courts as a space to resolve matters of public importance. Further, the risk of costs being apportioned after the case has been decided can have particularly chilling effects for public interest litigants. The indemnity rule, whereby the winning party have their costs paid by the losing party, applies equally to public interest cases.21 While the courts have broad discretion to depart from the indemnity rule, they rarely do. Adverse costs orders arising out of the indemnity rule have been seen as the greatest deterrent to public interest litigation being used in Australia.22 As former High Court Judge Michael Kirby contends, these current restrictions must be removed in order to ‘enliven a more active democracy in appropriate instances and to enhance the larger accountability of politicians, officials, corporations and powerful individuals’.23

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RESPONSES TO FINANCIAL BARRIERS AND LOOKING FORWARD: THE GRATA FUND Institutionalised financial barriers are now being targeted by a range of organisations across Australia, including Grata in order to assist litigants bring claims of public interest matters to the courts. Grata is a relatively new public interest litigation body that provides ‘third party litigation funding by way of adverse costs protection and disbursement funding to plaintiffs in public interest matters’.24 Grata does not take a financial return in exchange for their support, and are instead motivated by social impact and movements that advance the public interest. As Grata outline, they use litigation as ‘a powerful tool to protect and advance the rights and freedoms of ordinary people.’25 Grata challenge both government and corporate behaviour. Grata provided financial support to the disability discrimination case against the CBA. Without such financial support, the complainants may never have had the opportunity to challenge the discriminatory actions of CBA. While there are inherent problems with out of court settlements, the outcome of this case highlights another positive example of how corporate responsivity can be

1. Paul Farrell, “Commonwealth Bank settles discrimination claim by blind Australians over touchpad devices”, ABC News, 11 January 2019, https://www.abc.net.au/news/2019-01-10/commonwealthbank-settles-discrimination-claim/10702194. 2. The 7:30 Report with Leigh Sales, “Commonwealth bank settles discrimination claim by blind Australians over touchpad devices” (Video), ABC, 11 January 2019, https://www.abc.net.au/7.30/ commonwealth-bank-settles-discrimination-claim-by/10706774. 3. Public Interest Advocacy Centre, “Blind consumers launch discrimination case re CBA’s ‘nightmare’ EFTPOS machines” (Media Release), Public Interest Advocacy Centre, 16 March 2018, https://www.piac.asn.au/2018/03/16/blind-consumers-launchdiscrimination-case-re-cbas-nightmare-eftpos-machines/. 4. Ibid. 5. The 7:30 Report with Leigh Sales, “Commonwealth bank settles discrimination claim by blind Australians over touchpad devices” (Video), ABC, 11 January 2019, https://www.abc.net.au/7.30/ commonwealth-bank-settles-discrimination-claim-by/10706774. 6. Eliza Ginnivan, “Public interest litigation: mitigating adverse costs order risk” [2016] PrecedentAULA 62; (2016) 136 Precedent 22. 7. Andrea Durbach et al, ‘Public Interest Litigation: Making the Case in Australia’ (2013) 38(4), Alternative Law Journal, p. 220. 8. Jane Johnston, “Whose interests? Why defining the ‘public interest’ is such a challenge”, The Conversation, 22 September 2017, https://theconversation.com/whose-interests-why-definingthe-public-interest-is-such-a-challenge-84278. 9. Australian Law Reform Commission, “Balancing privacy and other interests” in Serious Invasions of Privacy in the Digital Era (DP 80), Commonwealth of Australia, 31 March 2014, https://www.alrc. gov.au/publications/8-balancing-privacy-other-interests/meaningpublic-interest 10. Public Interest Advocacy Centre, Submission to the NSW Law Reform Commission, A public interest approach to costs: submission to the NSW Law Reform Commission inquiry into security for costs and associated orders’, (19 August 2011) 2, https://www.piac.asn.au/wp-content/uploads/11.08.19_a_public_ interest_approach_to_costs.pdf. 11. George Williams and Daniel Reynolds, A Charter of Rights for Australia (UNSW Press, 4th ed, 2017).

influenced through public interest cases, challenged by everyday Australians. Such cases are often only made possible by the financial backing from organisations like Grata. As Grata’s executive director Isabelle Reinecke has stated, ‘[p]eople really need to be able to hold corporations accountable to the law in courts, but the financial barriers in Australia are just too high.’26 This case highlights important inroads occurring in the PIL space in Australia in that organisations like Grata now exist to financially support potential public interest complainants; a dramatic shift in addressing prohibitive costs, which have historically dissuaded would-be public interest litigants from introducing claims. Corporate – and government – culture in Australia may not be accustomed to private individuals or groups challenging their decisions on public interest grounds. However, ensuring the voices of the public become more present in Australian courts has come pointedly into focus in recent times. By providing financial support to litigants who wish to raise matters of public importance, organisations like Grata enable everyday Australians, who otherwise operate in a system absent of a national human rights framework, to target governments and corporations that impinge on the ideal Australian way of life.

12. Australian Alliance of Lawyers, Submission 1017 to the Human Rights Consultation Committee (2005) as cited in Human Rights Consultation Committee, Parliament of Victoria, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 5. 13. Commonwealth v Tasmania (Tasmanian Dam Case) [1983] 158 CLR 1. 14. Andrea Durbach et al, ‘Public Interest Litigation: Making the Case in Australia’ (2013) 38(4), Alternative Law Journal, p. 220. 15. Al-Kateb v Godwin (2004) 219 CLR 562. 16. S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483. 17. NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490. 18. Commonwealth of Australia v Australian Capital Territory (2013) 250 CLR 441. 19. Michael Kirby, ‘Deconstructing the Law’s Hostility to Public Interest Litigation’, Law Quarterly Review, (2011) 127. 20. Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, 41. 21. Eliza Ginnivan, “Public interest litigation: mitigating adverse costs order risk” [2016] PrecedentAULA 62; (2016) 136 Precedent 22. 22. Public Interest Advocacy Centre, Submission to the NSW Law Reform Commission, A public interest approach to costs: submission to the NSW Law Reform Commission inquiry into security for costs and associated orders’, (19 August 2011) 2, https://www.piac.asn.au/wp-content/uploads/11.08.19_a_public_ interest_approach_to_costs.pdf. 23. Michael Kirby, ‘Deconstructing the Law’s Hostility to Public Interest Litigation’, Law Quarterly Review, (2011) 127, p. 48. 24. Grata Fund, Submission to the Australian Law Reform Commission, Inquiry into Class Action Proceedings and Third Party Litigation Funders, (31 July 2018) 4, https://www.alrc.gov. au/sites/default/files/subs/29_grata_fund._.pdf 25. https://www.gratafund.org.au/ 26. The 7:30 Report with Leigh Sales, “Commonwealth bank settles discrimination claim by blind Australians over touchpad devices” (Video), ABC, 11 January 2019, https://www.abc.net.au/7.30/ commonwealth-bank-settles-discrimination-claim-by/10706774.

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THE ROLE OF BUSINESS TO SUPPORT THE WORK OF HUMAN RIGHTS DEFENDERS – A PERSONAL PERSPECTIVE ANDY HALL Andy Hall is a migrant worker rights consultant who currently lives in Nepal and is focusing on promoting ethical recruitment of migrant workers in Asia. Andy tweets @atomicalandy

Cheap Has a High Price,1 a report published by NGO Finnwatch in 2013, investigated risks of forced labour, human trafficking, child labour, low wages and other human rights violations in labour intensive export sectors in Thailand. I worked as the research coordinator on this project which exposed, amongst other things, serious human and labour rights violation allegations against a predominately migrant workforce at a pineapple processing factory in Prachuap Khiri Khan province in southern Thailand. In response to the report, Natural Fruit Company, which owned the factory, filed multiple criminal defamation and other civil and criminal charges 2 against me alleging an intention of harming the company and causing financial loss. The Office of the Attorney General later joined as co-prosecutor with Natural Fruit in the criminal proceedings. I decided at the time that I would not pursue bail against these unjust charges. I thought spending years in a Thai jail to await a verdict that would eventually vindicate me was the only principled way to protest this abusive and intimidating treatment. I felt I was relatively privileged, because

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so many activists in Thailand disappear or are assassinated3 for similar work. Researching alleged human rights abuses should never be a crime. I felt I had to take a firm and public stand in order to highlight the risks that human rights defenders face. But as the months passed I realised that there were other ways to draw attention to, and help put an end to, the abuse of the domestic legal system to harass and silence human rights defenders. I did not need to be a martyr to protest this injustice. Instead, I could engage the business sector to take their responsibilities under the UN Guiding Principles on Business and Human Rights seriously by responding to these strategic lawsuits against public participation (or ‘SLAPP’ cases). This could help distinguish companies who are willing to support the work of human rights defenders at risk from the ones who are not. I therefore approached the Thai Tuna Industry Association, Thai Frozen Foods Association and Thai Union Group, who agreed4 to cover the bail surety for my release from detention pending trial. In the years that followed, global media attention helped to galvanise change to combat the systematic exploitation of migrant workers in Thailand that our research uncovered. But this publicity also led to an increase in SLAPP cases filed against me, colleagues at the Migrant Worker Rights Network (MWRN) 5 and 14 migrant workers who filed a complaint with the national

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human rights commission about labour conditions at the Thammakaset poultry farm.6 As a result of this deteriorating situation, a number of organisations such as Human Rights Watch called upon the Thai government7 to respect its obligations under international law to prevent businesses intimidating human rights advocates and suppressing freedom of expression. Although the government promised to enact anti-SLAPP legislation and enhance protection for human rights defenders in the future, it nonetheless insisted that these prosecutions were private disputes that independent courts should adjudicate on alone. Importantly, a number of companies and business associations issued statements,8 including Nordic companies and business associations such as Amfori and the Ethical Trading Initiative. Some private sector actors went further by drawing upon the respect and remedy obligations of the UN Guiding Principles on Business and Human Rights. Finnish retailer S-Group flew to Bangkok to testify at my trial.9 S-Group also provided, through Freedom Fund, the â&#x201A;Ź12,000 (AU$ 19,000) deposit required to appeal the decision by a Thai Court,10 which ordered me to pay â&#x201A;Ź 270,000 (AU$ 430,000) in civil defamation damages to Natural Fruit. The Thai Tuna Industry, and Thai Union Group, together with Finnwatch, pooled funds to pay a fine to ensure my release from detention following my conviction in 2016,11 prior to it being overturned in May 2018.12

Top and middle image: Andy Hall pictured outside Bangkok South Criminal Court after the verdict on September 20, 2016. Bottom image: Andy Hall pictured with members of S Group, a Finnish grocery retail chain who gave testimony in favour of Hall during his criminal trial. Photos: Supplied.

When the 14 former Thammakaset workers were charged for defamation several Nordic companies and a Thai poultry firm pooled funds to pay for bail, fines if convicted (they were eventually acquitted) and some of their burgeoning legal costs. Alongside Amfori and ETI, these Nordic companies also advocated for the workers to be compensated 1.7million (AU$75,500) by government as per the compensation order issued in 2016 (it remains unpaid). Importantly, these companies assumed wider supply chain responsibility for all exploited workers in their sector, as well as the human rights defenders who advocate for them. Companies are often risk averse and avoid public engagement for fear of assuming liability. Hence, I have reasons to assume that additional private sector support for us has happened behind closed doors. It is clear that some private sector actors indeed respect and appreciate the work we do.

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In contrast to these positive developments, some European private sector actors did not engage because the companies Thammakaset and Natural Fruit were not in their direct supply chains. Assistance from US, Japanese and Australian companies was also sought to no avail. Concerningly, Lidl, Aldi and Rewe simply suspended sourcing poultry from Thailand13 once the Thammakaset case went public, rather than engaging with the issues.

Today private sector actors are taking steps to develop systemic corporate responsibility principles and due diligence standards to prevent labour abuses in their supply chains. It seems like it is the right moment to also develop standards for business support for human rights defenders, as the UN Working Group on Business and Human Rights is already doing.14 There are some important first steps that companies can take. First, like the Nordic companies who publicly and financially supported human rights defenders in my case, global brands and businesses should oppose unjustified and abusive use of courts to intimidate human rights defenders even where those workers or defenders are not directly in their supply chains. Second, in the face of daily reports of attacks, killings, and SLAPP prosecutions against human rights defenders, it is crucial more companies develop and systematically apply explicit corporate policies to address risks to human rights defenders. Apart from Adidas,15 Coca Cola16 and FIFA,17 few companies I am aware of have developed such policies. Supporting the work of human rights defenders

1. https://www.finnwatch.org/images/cheap%20has%20a%20 high%20price_exec%20summary_final.pdf 2. http://finnwatch.org/images/pdf/NaturalFruitvsAndyHallQA_ May312018.pdf?utm_source=Andyn+kontaktilista&utm_ campaign=f01a295f04-EMAIL_CAMPAIGN_2018_04_23_ COPY_01&utm_medium=email&utm_term= 0_16dcaaec6cf01a295f04-200420821 3. https://lens.blogs.nytimes.com/2016/05/23/murdered-fordefending-thailands-environment/ 4. https://www.finnwatch.org/en/news/194-thai-industry-commitsto-support-bail-out 5. https://www.fortifyrights.org/publication-20180206.html 6. https://www.reuters.com/article/us-thailand-labour-rights/ myanmar-workers-fight-defamation-charges-in-thai-chicken-farmcase-idUSKBN1C92D2 7. https://www.hrw.org/news/2015/08/20/joint-letter-thailandprime-minister-charges-against-andy-hall 8. https://andyjhall.wordpress.com/support/ 9. https://www.finnwatch.org/en/news/391-finnwatch-and-retailchain-s-group-to-testify-at-andy-hall%27s-trial 10. https://www.bangkokpost.com/news/general/1435398/thaicourt-finds-british-labour-activist-defamed-fruit-firm

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should be done alongside audits and multi-stakeholder initiatives to demonstrate that companies take supply chain due diligence obligations under the UN Guiding Principles on Business and Human Rights seriously. Third, human rights defenders need to be supported to work constructively with leading companies to address the systematic exploitation in global supply chains before conflict becomes public, acrimonious and aggressive. The basis for this challenge is a continuing lack of supply chain traceability and transparency. Positive examples exist where companies such as Marks & Spencer18 and H&M19 publish information allowing anyone to link workplaces in at-risk countries to their companies. However, in most situations, linking rights violations on the ground to major brands with leverage to resolve these abuses remains challenging, if not impossible, in practice. It has been a source of great encouragement that my own personal fight against worker exploitation has received so much private sector support, alongside support from traditional allies like trade unions, NGOs and parliamentarians.20 The harassment myself and my colleagues continue to face in Thailand is however minor compared to that faced by many other human rights defenders globally who continue to be killed and attacked. I hope that some of these positive steps taken by private sector actors in support of human rights defenders outlined here can contribute to systematic and sustainable engagement on these issues by more companies in the future. Direct support by global businesses and brands for human rights defenders, coupled with increased traceability and transparency in supply chains, can make working on business and human rights issues less risky, more constructive and more meaningful.

11. http://time.com/4500771/british-activist-andy-hall-migrant-laborguilty-defamation/ 12. https://www.telegraph.co.uk/news/2018/05/31/thai-courtdismisses-criminal-defamation-charges-against-british/ 13. https://finnwatch.org/images/pdf/ TheLongRoadtoRespectingLabourRights.pdf 14. https://www.ohchr.org/en/issues/business/pages/ hrdefenderscivicspace.aspx 15. https://www.adidas-group.com/media/filer_public/f0/c5/ f0c582a9-506d-4b12-85cf-bd4584f68574/adidas_group_and_ human_rights_defenders_2016.pdf 16. https://www.coca-colacompany.com/stories/human-rightsdefenders-and-the-coca-cola-company 17. https://www.fifa.com/governance/news/y=2018/m=5/news=fifalaunches-complaints-mechanism-for-human-rights-defendersand-journalists.html 18. https://interactivemap.marksandspencer.com/ 19. https://sustainability.hm.com/en/sustainability/downloadsresources/resources/supplier-list.html 20. https://www.business-humanrights.org/en/thailand-publicsupport-for-activist-andy-hall-grows-trial-for-case-filed-by-naturalfruit-begins-2-sept

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THE ROYAL COMMISSION AND DISCRIMINATION IN THE INSURANCE INDUSTRY AN INTERVIEW WITH PIAC’S MICHELLE COHEN NECHAMA BASSERABIE Nechama Basserabie is a final-year student at UNSW Sydney studying a Bachelor of Art Theory/Laws. She is the student editor of this issue. Nechama is interested in issues of gender justice and social policy and their interaction with the law.

The Public Interest Advocacy Centre (PIAC) is a Sydney-based independent, not-for-profit legal centre whose work ensures the preservation of basic rights through legal assistance, strategic litigation and public policy development. PIAC’s advocacy regarding discrimination by insurance companies against people with previous or current mental health conditions began in 2012 after advocacy groups Mental Health Australia and beyondblue approached PIAC with concerns about systemic practices within the insurance industry. The recent Financial Services Royal Commission,1 the highest form of inquiry into a matter of public importance in Australia, gave PIAC the opportunity to request an investigation into the issue. The Commission made recommendations regarding the insurance industry which PIAC considers to be ‘a step towards restoring the balance that has long favoured banks and insurers over consumers’. While these changes are encouraging, PIAC believes that discrimination by insurers against people with mental health conditions is set to continue unless codes and legislation are amended to increase transparency and accountability. Michelle Cohen, Senior Solicitor in Strategic Litigation at PIAC, shares her insight with us.

What were your hopes for the Banking Royal Commission, particularly in terms of findings that could have an impact on human rights in Australia? What tends to be the approach of insurance companies to consumers who have experienced or are experiencing mental health issues?

We wanted the Banking Royal Commission to investigate the systemic discrimination by insurers, in the way insurers design, price and offer policies and assess claims for people with past or current mental health conditions. Since 2013 PIAC has been acting for clients who have been discriminated by insurers, contrary to the provisions of the Disability Discrimination Act 1992 (Cth) (DDA). However the insurance industry has been extremely slow to recognise the need for reform and it is difficult for groups such as PIAC, without access to insurers’ internal practices and submissions, to fully expose the scale of the issue.

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Further, many consumers may not realise that conditions imposed on their insurance policy by an insurer could amount to unlawful discrimination. When they do, it is a significant commitment to proceed to bring a claim against an insurance company. There is a large amount of personal and financial risk involved. Because of this, and the ability of insurance companies to offer monetary settlements to confidentially resolve claims of unlawful discrimination, it is difficult to achieve wide spread systemic change using the complaints-based systems set up by the DDA. From our casework, PIAC is aware that life insurers are denying cover and applying broad, blanket mental health exclusions that are not supported by evidence and do not reflect the risk posed by the applicant to the insurer. As a result, it is extremely difficult for individuals with past or current mental health conditions to obtain insurance with mental health cover, or to obtain insurance at all. We have also observed insurers cancelling policies and refusing to pay claims on the basis of imputed mental health conditions. These problems arise in both general and life insurance. We believe that these practices are unfair and can be in breach of the DDA. To comply with the DDA, insurers must ensure that their decisions are based on actuarial or statistical data that is reasonable for the insurance provider to rely on and the decision is reasonable having regard to that data and other relevant factors. We are concerned that in many cases, insurers make decisions in circumstances where they may not have the statistical or actuarial data to support their decision, or whether the data upon which they rely is out-of-date, general in nature or not relevant.

What are the positive changes we can expect to see in the insurance industry as a result of the Royal Commission’s findings? Are there further measures that if implemented would eliminate discrimination?

The Commission has made a number of important recommendations that will ultimately benefit and protect consumers. One of the Commission’s recommendations is to amend section 29(3) of the Insurance Contracts Act 1974 so that an insurer can only cancel an insurance policy on the basis of non-disclosure or misrepresentation if it can show that it would not have entered into a contact on any terms.

This recommendation closes a loophole that insurers have relied on to cancel policies for innocent non-disclosure of a mental health history in circumstances where that history is entirely unrelated to the illness that is the subject of an insurance claim. It will mean that insurers will be forced to vary policies, which is already currently an option for them, instead of cancelling in extremely unfair circumstances. The Royal Commission has also recommended that the Financial Services Council of Australia and the Insurance Council of Australia establish enforceable codes of conduct, where previously the insurance industry has largely been self-regulated. Our hope is that having enforceable provisions in industry codes creates greater public accountability and assists to change the entrenched practices of insurers.

Is there a significance to the Royal Commission addressing the issue of mental health in its investigation of insurance companies? Do you feel this reflects a broader trend of growing awareness in the Australian business sector?

Absolutely. The practices of insurers also fall well below community standards and expectations, in that they have the potential to affect a significant proportion of the community. 45% of Australians will experience a mental health condition at some point in their lives. These figures mean that the practices of insurers have the potential to affect many Australians. There is still more work to be done to ensure that insurers do not discriminate against current and prospective policy holders on the basis of mental health. The Royal Commission focused primarily on the claims handling process and not on the underwriting process. A focus on the underwriting process will require insurers to be more transparent about how they make decisions relating to mental health. PIAC will continue to act for individuals in this area, and where possible work with the industry and government to establish an environment where insurers deal with individual insurance policy application and claims based on robust, contemporary statistical and actuarial data.

1. See ‘Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry’, 2019, https://financialservices. royalcommission.gov.au/Pages/default.aspx.

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Image: catastrophe_OL www.shutterstock.com

BUSINESS, HUMAN RIGHTS AND GENDER EQUALITY WORKING TOWARDS AN INTERSECTIONAL, FEMINIST AND TRANSFORMATIVE AGENDA ANGELA KINTOMINAS Angela Kintominas is a Scientia PhD Scholar at UNSW Law. She researches in the intersections of gender justice, socio-economic rights, care and migration. Angela is a guest editor on this issue and tweets @akintominas.

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Gender equality and women’s economic empowerment are swiftly moving from the margins of the business and human rights agenda towards the centre. Yet we are often captivated by a small slice of ‘women in business’ issues: women entrepreneurs and business leaders, building the business case for gender equality, breaking the glass ceiling, promoting women into senior management and onto corporate boards. The Australian Workplace Gender Equality Agency’s 2019 report, for example, celebrates that ‘women are gaining ground’ and progressing into management roles at a faster rate than men, but cautions that for the top spot of CEO female representation remains ‘glacial and parity looks to be centuries away’.1

It laments that ‘the highest paid 10% of men will earn at least $600K in total salary, whereas the highest paid 10% of women will earn $436K, a difference of over $160K’.2 Whilst efforts to improve gender equality in these tiers of business are commendable, they are not the whole story. A structural and intersectional approach can help bring the bigger picture of women and the world of work to the fore. BEYOND BOARDS: WOMEN AND THE WORLD OF WORK Women across the world continue to make up the lowestpaid workers in highly-feminised, precarious forms of work.3 In countries such as Australia, women are overrepresented in temporary, part-time and casualised work.4 Globally, women are concentrated in the bottom of global value chains on factory floors and in farms.5 Women in the informal economy – domestic workers, garment workers, agricultural workers, waste pickers, home-based workers – sit outside the purview of formal legal, labour and social protections altogether. Women’s increased participation in both formal and informal work has also not reduced their load of unpaid care.

Worldwide, women typically spend 4 hours and 25 minutes doing unpaid care work every day compared to 1 hour and 23 minutes for men.6 Many single headed households are run by women, and women are more likely to take significant time out from paid work due to care responsibilities. Women therefore tend to be more time-poor, have lower incomes and savings, and at greater risk of poverty in older age.

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The causes of these gendered inequalities go beyond the confines of the workplace alone. Ideologies of motherhood and domesticity perpetuate stereotypes that housework and caring for the young, elderly and the disabled is ‘women’s work’. Certain industries are deemed to be inappropriate or unsafe for women. Stereotypes about women’s capabilities and roles also underlie gender pay gaps, sexual harassment, sexual violence and discrimination. Importantly, gender-based discrimination intersects with discrimination on the basis of age, ethnicity, migration status, religion, HIV/Aids status, education, language and disability. Harmful norms also limit women’s mobility, access to public spaces and safe public transport. As well as cultural and social dimensions, there are structural, economic and technological shifts such as the rise of global supply chains and the gig economy. Although we often think of Uber as emblematic of the gig economy, there has also been a surge in child-minding, care and cleaning work facilitated by platforms whose consequences need to be better understood.7 A related structural shift is that governments are retreating from supplying care services directly under new models of marketisation and privatisation. When more care work gets redirected to the home, women shoulder it or they outsource it to other women: to grandmothers, domestic workers and au pairs, or low-paid care workers who are also often migrant women. The transfer of reproductive and caring labour by some women to other women -often described as ‘global care chains’ -- no doubt reaffirms the gendered nature of care work.8 Much of the research on ‘global care chains’ has until recently overlooked Australia because of the limited direct migration pathways into care work. But migrant workers nonetheless make up a substantial part of Australia’s highly gendered care workforces.9 In 2016, 37.1% of Australia’s 295,324 frontline care workers were born overseas, up from 31.2% in 2011, and higher than the proportion of overseas-born workers in the total workforce (30.6%).10 The new Pacific Labour Mobility Scheme, which commenced in July 2018, is also Australia’s first labour migration policy to formally and explicitly target women migrant workers for care work.11

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IT STARTS IN THE HOME: CONTESTING AND EXTENDING WHAT COUNTS AS ‘WORK’ It is clear that the redistribution of care work is central to gender equality: until men take on greater care responsibilities within households, women’s options are constrained. Business has a significant role to play in challenging gender stereotypes and shifting intrahousehold dynamics. This involves introducing policies that effectively facilitate parental and carer leave, and ensuring it is actually taken up by men as well as women. Where women inevitably take on high levels of care work at different times in their lives, it should be recognised as work, and supported and remunerated as such by their employers as well as governments. Business must also champion gender equality and economic empowerment for their care workforces. Care workers contend with issues of informality, casualised and insecure work, low pay and limited career progression -all invariably linked to the devaluation of care as women’s work. Improving wages and job security for care workers, providing predictable and sufficient hours and paid leave should be front and centre to the business and gender equality agenda. Cooperatives should likewise be considered as a promising and disruptive new business model for the delivery of care.12 Outside of care industries, raising wages and improving job security in other feminised industries such as cleaning and hospitality will have a significant impact for women workers. Where companies outsource production to women workers overseas, they should be held to the standard outlined in the ILO’s Decent Work Agenda,13 the Sustainable Development Goals,14 and other emerging principles.15 Finally, business must firmly support women workers’ (including domestic and informal workers) right to join and form unions and participate in collective organising to negotiate terms and conditions of their employment and influence policies that impact their lives. Whilst gender equality has become increasingly salient in business and human rights discourse it is crucial to ensure that approaches are inclusive, intersectional and focus on structural issues. For a start, any effort to bring about gender equality at work is woefully incomplete without recognising, reducing and redistributing the work of care.

1. Workplace Gender Equality Agency and Bankwest Curtin Economics Centre, Gender Equity Insights 2019: Breaking Through The Glass Ceiling (WGEA Gender Equity Series, 2019) 8, 15 https://www.wgea.gov.au/sites/default/files/documents/ BCEC-WGEA-Gender-Equity-Insights-2019-Report.pdf 2. Ibid 8. 3. See generally Danish Institute for Human Rights, Women in Business and Human Rights: A Mapping of Topics For State Attention in United Nations Guiding Principles on Business and Human Rights Implementation Processes (November 2018) 12 https://www.humanrights.dk/publications/womenbusiness-human-rights. 4. See eg Sarah Kaine and Martijn Boersma, ‘Women, Work and Industrial Relations in Australia in 2017’ (2018) 60(3) Journal of Industrial Relations 317. 5. Christine Svarer et al, Empowering Female Workers in the Apparel Industry: Three Areas for Business Action (BSR, June 2017) 7 https://www.bsr.org/reports/BSR_Empowering_ Female_Workers_in_the_Apparel_Industry.pdf. 6. See eg Abigail Hunt and Emma Samman, ‘Gender and the Gig Economy: Critical Steps for Evidence-Based Policy’ (ODI, January 2019) https://www.odi.org/sites/odi.org.uk/files/ resource-documents/12586.pdf; Julia Ticona, Alexandra Mateescu and Alex Rosenblat, ‘Beyond Disruption: How Tech Shapes Labor Across Domestic Work & Ridehailing’ (Data & Society, 26 June 2018) https://datasociety.net/wp-content/ uploads/2018/06/Data_Society_Beyond_Disruption_FINAL.pdf. 7. See eg Abigail Hunt and Emma Samman, ‘Gender and the Gig Economy: Critical Steps for Evidence-Based Policy’ (ODI, January 2019) https://www.odi.org/sites/odi.org.uk/files/ resource-documents/12586.pdf; Julia Ticona, Alexandra Mateescu and Alex Rosenblat, ‘Beyond Disruption: How Tech Shapes Labor Across Domestic Work & Ridehailing’ (Data & Society, 26 June 2018) https://datasociety.net/wp-content/ uploads/2018/06/Data_Society_Beyond_Disruption_FINAL.pdf. 8. Diane Sainsbury, ‘Gender, Care and Welfare’ in Georgina Waylen et al (eds), Oxford Handbook of Gender & Politics (Oxford University Press, 2013). 9. Elizabeth Adamson & Deborah Brennan, ‘Return of the Nanny: Public Policy towards In-home Childcare in the UK, Canada and Australia’ (2017) 51(7) Social Policy and Administration 1386; Joanna Howe, Sara Charlesworth and Deborah Brennan, ‘Migration Pathways for Frontline Care Workers in Australia and New Zealand: Front Doors, Side Doors, Back Doors and Trapdoors’ (2019) 42(1) University of New South Wales Law Journal 211. 10. Christine Eastman, Sara Charlesworth and Elizabeth Hill, Factsheet 1: Migrant Workers in Frontline Care (2018) https:// www.sprc.unsw.edu.au/media/SPRCFile/Migrants_in_ Frontline_Care_Final.pdf. 11. Elizabeth Hill, Matt Withers and Rasika Jayasuriya, The Pacific Labour Scheme and Transnational Family Life: Policy Brief (2018) https://www.sprc.unsw.edu.au/media/SPRCFile/PLS_ Policy_Brief_FINAL_June_2018.pdf. 12. See eg Matthew Lenore, ‘Providing Care through Cooperatives: Literature Review and Case Studies’ (ILO, 1 March 2017) https://www.ilo.org/wcmsp5/groups/public/--ed_emp/---emp_ent/---coop/documents/publication/ wcms_546178.pdf 13. See eg Convention No 189 Concerning Decent Work for Domestic Workers, adopted 100th ILC Session, Geneva, 16 June 2011, entry into force 5 September 2013; International Labour Organization, Recommendation No 201 Concerning Decent Work for Domestic Workers, adopted 100th ILC Session, Geneva, 16 June 2011. 14. United Nations General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1 15. See Women’s Empowerment Principles https://www. empowerwomen.org/en/weps/about; Magali Barraja, Gender Equality in Social Auditing Guidance (BSR, 2018) https:// www.bsr.org/reports/BSR_Gender_Equality_in_Social_ Auditing_Guidance.pdf; Ethical Trading Initiative, Gender Equality in Global Supply Chains (2018) https://www. ethicaltrade.org/issues/gender-equality-global-supply-chains.

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WHY IT IS TIME FOR AN ENFORCEABLE INTERNATIONAL LIVING WAGE TREATY DR SHELLEY MARSHALL Dr Shelley Marshall’s research focuses primarily on business and human rights and labour law and development. Shelley tweets @shelley_marshal

In February 2019, Oxfam released Made in Poverty: The True Price of Fashion, which revealed that women in Bangladesh and Vietnam who make clothes for the $23 billion Australian fashion industry are going hungry because of wages as low as 51 cents an hour.1 Of the 470 garment workers interviewed, all were employed at factories supplying brands such as Big W, Kmart, Target and Cotton On. One hundred per cent of surveyed workers in Bangladesh and 74% in Vietnam could not make ends meet.2 On a wage this low, it takes a Bangladeshi garment worker 84 hours to afford a doctor’s appointment. WHAT IS A LIVING WAGE? A ‘living wage’ is a wage that a worker can earn in a standard working week that is enough for her to pay for her basic living expenses (such as food, rent, healthcare, transport and education for herself and her family) and accrue a small amount of saving for times of emergency and old age.

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WHY THE CAMPAIGN FOR LIVING WAGES IS MORE PRESSING THAN EVER It is hard to believe that a campaign for living wages is still necessary, but there are a number of factors that have made achieving a living wage harder instead of easier this century. The growth of ‘non-standard’ work including part-time, temporary and fixed-term work, contracted labour and homework, the emergence of global supply chains, and the rise of the gig economy means that 60% of the world’s workforce is not covered by labour laws. Current labour laws are powerless to help these workers as they were designed with a different workforce in mind. Labour laws are also national in scope and struggle to handle the international dynamics of global supply chains and gig work platforms. Similarly, labour law regulates traditional employment relationships, whereas those pushing down wages often subcontract their production. Further, minimum wages have not kept up with increases in the cost of living in a majority of countries across the developed and developing world. Wage stagnation is a significant problem contributing to growing inequality. In key garment-producing countries, for example, the minimum wage only covers a fraction (18% to 66%) of what is estimated to be a living wage.3 And though there has been broad acceptance of the need to eliminate child and forced labour, the idea of a living wage does not enjoy the same level of acceptance.

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Those calling for a living wage continue to be treated harshly. In late January this year, 5000 garment workers were sacked in Bangladesh after going on strike for living wages. In 2014, Cambodian garment workers who conducted a general strike for a living wage were shot by the police, resulting in the death of four protestors.

Low wages is also a gendered problem. Women make up 90% of the 700,000 strong garment producing workforce that is the backbone of the Cambodian economy, producing around 87% of Cambodian GDP.4 The most vulnerable workers in the garment industry, homeworkers, are overwhelmingly women worldwide. This highlights the need for a gender justice approach to achieving a living wage. CAN WE LEAVE LIVING WAGES TO BUSINESS? Though Oxfam and other NGOs have focussed on business responsibility to ensure that living wages are paid throughout their supply chains, I believe the responsibility must be enforced jointly on states and business.

On 25 November 2013, H&M, one of the world’s biggest brands, made the bold promise to pay a ‘fair living wage’ to the garment workers in its supply chain by 2018. However it did not succeed, and has since backpedalled from the promise.5 If a company this large, who genuinely tried, cannot achieve living wages within its supply chains, then surely we need to look for alternative strategies. A STRATEGY FOR AN INTERNATIONALLY ENFORCEABLE LIVING WAGE INSTRUMENT My proposal, articulated in my new book titled Living Wage, calls for a new international labour law that countries would ratify with the promise of incrementally increasing minimum wages until they reach a living wage level.6 I call this the ‘Global Living Wage Instrument’, for want of a better name. Unlike labour conventions generated through the International Labour Organisation which are not enforceable at an international level, my strategy proposes both international and national tribunals. The former would allow for trade unions and

other working organisations representing working citizens to bring claims against states, at an international level, when they fail to set minimum wages at a living level or enforce them. The party representing the workers would be awarded amounts on top of any recovered funds, which could provide a major source of revenue. This would likely encourage worker organisations to protect the most vulnerable workers today that typically are not covered by current labour regulation, by monitoring and organising the informal sector of the workforce. National Supply Chain Tribunals would be established by every country that ratify the Global Living Wage Instrument as adjuncts to existing institutions, such as labour courts or tribunals. This way they can build specialist knowledge about work occurring in supply chains. The National Supply Chain Tribunals would have the power to hear and remedy disputes over unpaid living wages due to supply chain dynamics, either between workers and corporations, or between corporations themselves. States would also have the opportunity to recover funds they have been made liable to pay in the International Tribunal from the responsible parties in the supply chain, including employers, financiers and so forth. To do this, the states would have to actively inspect, collect evidence and in turn prosecute those supply chain actors whose business practices result in below living wages. The amount would be determined based on their contribution to the problem Notably, the National Supply Chain Tribunals would allow for claims to be brought against parties in the supply chains that do not directly employ the workers, including contractors, buyers, financiers, parent companies and so on. If a Tribunal finds that a supply chain party has hampered the payment of a living wage, the offending party would be liable to the extent that it was responsible for the under-payment of living wages. The Tribunals would also have the power to compel parties to change business practices that lead to unliveable wages, breaches of labour law and unsafe work practice. Orders could be issued by the Tribunal to relieve downwards pressure on production costs that leads to unliveable wages. It would incentivise actors to work together to achieve a living wage.

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The tribunals would address gendered injustice in several ways. The gendered pay gap reflects the incorrect assumption that women are not the main breadwinners. Yet the reality is that young female garment workers in Cambodia, for example, are often the main financial contributor within their extended families. They share oneroom apartments with three or four other women so they can send money to their villages.7 In response to current labour law’s focus on employment and its consequent exclusion of many women who conduct around 80% of informal work, Tribunals at both levels would regulate ‘work’, not ‘employment’, capturing the gendered nature of non-standard work. Further, by rewarding labour organisations for representing these workers, the system will encourage unions and other workers organisations that have traditionally represented men to collectively organise female-dominated sectors of supply chain workforces.

1. Oxfam Australia, Made in Poverty: The True Price of Fashion (2019) https://whatshemakes.oxfam.org.au/wp-content/ uploads/2019/02/Made-in-Poverty-the-True-Price-of-Fashion.Oxfam-Australia..pdf 2. Agence France Presse, ‘Bangladesh Strikes: Thousands Of Garment Workers Clash With Police Over Poor Pay’, The Guardian (online) 14 January 2019 https://www.theguardian.com/ world/2019/jan/14/bangladesh-strikes-thousands-of-garmentworkers-clash-with-police-over-poor-pay. 3. International Labour Organization, Global Wage Report 2008/2009 (2008) https://www.ilo.org/global/publications/ WCMS_100786/lang--en/index.htm 4. Better Factories Cambodia, Discussion Paper 29: Lights On: Transparency and Compliance – Evidence from Cambodia (2019) https://betterwork.org/blog/portfolio/discussion-paper-29-lightson-transparency-and-compliance-evidence-from-cambodia/; UNCTAD, ‘General Profile: Cambodia’ (2017) https://unctadstat. unctad.org/CountryProfile/GeneralProfile/en-GB/116/index.html.

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The idea of enforceable living wages may seem controversial, but there are similar international laws in relation to trade backed by tribunals. Why not have the same for living wages? So far, nothing else has worked on the global scale required to achieve wages that allow more workers to live in dignity.

5. Clean Clothes Campaign and International Labor Rights Forum, ‘Campaign launch: turn around, H&M!’ (2018) https://laborrights. org/releases/campaign-launch-turn-around-hm. 6. Shelley Marshall, Living Wage: Regulatory Solutions to Informal and Precarious Work in Global Supply Chains (2019) https:// global.oup.com/academic/product/living-wage9780198830351?cc=au&lang=en&. 7. Action Aid, The living conditions of garment workers in Cambodia, http://www.actionaid.org/cambodia/stories/living-conditionsgarment-workers-cambodia. Grant Whittington, Just How Tough Is it to Live On Garment-Worker Pay in Cambodia?, https://www. triplepundit.com/story/2015/just-how-tough-it-live-garmentworker-pay-cambodia/32906.

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SHAPING THE FUTURE OF SUSTAINABLE AI AND AUTOMATION WHY HUMAN RIGHTS STILL MATTER KYLIE PORTER Kylie Porter is Executive Director of the Global Compact Network Australia and tweets @kawporter

The fourth industrial revolution is upon us. The world is seeing a rapid increase in the use of Artificial Intelligence (AI) and automation which will reshape economics and businesses, change interactions between humans and machine and alter the landscape and future of work. AI and automation are expected to provide significant productivity benefits to the global economy and assist with lifting developing nations out of poverty. However, underlying the technology are concerns about privacy, the potential effect on decent work and the right to work, the battle for transparency of systems and the biased nature of algorithms. These apprehensions sit amidst growing recognition of the responsibility of business to respect human rights. The corporate responsibility to respect human rights is embedded in the United Nations Guiding Principles on Business and Human Rights (UNGPs). This responsibility includes an expectation that companies identify their actual and potential human rights impacts and have mechanisms in place to adequately address them. Businesses must seek to prevent, mitigate and remedy human rights impacts that they identify they have caused, or contribute to, including those associated with their own operations, products, services and business relationships. The UNGPs provide a valuable framework for companies to consider how AI and automation may impact on human rights of their employees and their broader stakeholders, including the community.

POSITIVE IMPACTS Technological advances in disruptive technologies such as AI and machine learning have already provided operational efficiencies, labour productivity and economies of scale for many businesses. According to McKinsey,1 the latest generation of AI advances that deploy artificial neural networks (a key component of machine learning) could account for US$3.5 to US$5.8 trillion in annual value for a range of sectors â&#x20AC;&#x201C; from healthcare to retail, travel, oil and gas, as well as the public and social sectors. In addition to contributing to economic growth, these advances can provide unimaginable progress on some global challenges. For example, AI has provided the Intergovernmental Panel on Climate Change with more accurate weighting models while also improving weather forecasting and the prediction of extreme weather events.2 Machine learning is a critical component in making electricity generated from renewable energy sources such as solar and wind at scale; de-carbonising power grids globally to expand the use of renewable energy and increase energy efficiency; and technology that provides access to energy for remote and disadvantaged communities. AI also provides opportunities for increased resource productivity and efficiency through better monitoring and reporting of crops and land conditions, thus enhancing agricultural sustainability. AI will also provide improvements to healthcare systems through advances like AI-assisted robotic surgery that is estimated to significantly reduce a patientâ&#x20AC;&#x2122;s time in hospital, virtual nursing assistants and more effective skin cancer and eye-health diagnoses.3

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There’s been a rapid growth in AI and automation but is this what the future of work will look like? Image: www.shutterstock.com

These advances also contribute to various Sustainable Development Goals (SDGs) including good health and wellbeing, sustainable cities and communities, responsible consumption and production and climate action. IMPACT ON DECENT WORK While AI and automation will bring about positive changes, the rapid developments also bring risks. Over the coming years we will see a decline in some jobs (and an increase in others), although predictions for the actual impact vary widely. Job loss could increase the trust deficit with the institutions responsible for advancing these technologies. For example, McKinsey predicts that automation will lead to the displacement (through either the loss of jobs or jobs being replaced through automation) of 15 percent (or 400 million) of the global workforce between 2016 and 2030,4 whereas a World Economic Forum report predicted that 75 million jobs will be displaced by 2022,5 but that there would be an overall net positive impact on jobs from AI/ automation. According to the International Monetary Fund (IMF), automation will have the greatest negative impact on women, with approximately 26 million jobs held by women across 30 countries being replaced in the next 20

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years and approximately 180 million jobs having a high probability of being impacted by automation.6 These outcomes have the capacity to affect the right to work and to increase inequality and disadvantage. In 2019, businesses will need to consider what the cost of AI and automation is on their employees, their suppliers and the broader community. And importantly, how they are going to achieve effective consultation with affected groups so that potential challenges can be turned into opportunities? While technology has, historically, been a net job creator, businesses will need to consider their investment in people and ensure that they are providing an environment for re-learning, skills enhancement and STEM-based education (Science-TechnologyEngineering-Math). Business will also need to look at training and recruiting people with social, emotional and cognitive skills that assist with complex problem solving and creativity; fundamental components to an AI-based workplace and key skills for the ‘new workforce’. Business should also consider strategies that prevent AI and automation from eroding progress in equal pay and number of women in

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the workplace. While positive opportunities will likely prevail in traditionally female-dominated industries such as healthcare and social services, there is a risk that without improving STEM-based skills and providing the right working environment to encourage female leadership we will see reductions in gender equality.

of the continued increase in demand for transparency and openness, which must include a willingness to share the process by which an AI system made a particular decision – for example, what the influencing factors were in deciding on a loan, a job interview or on judicial processes.

OTHER HUMAN RIGHTS IMPACTS

Remediation is a core component of the UNGPs and it is likely that businesses will see increased pressure on their ability to provide consumers with access to redress. While AI systems may be developed with proprietary technology, businesses should be mindful of the consumer right to challenge a decision that they view as unfair. Business should also consider having a publicly-available mechanism in place that provides consumers with the procedure for appealing a decision, as well as the ability to provide adequate remedy. This will also require business to regularly monitor and test systems to ensure that they reduce any discriminatory trends and reduce broader human rights impacts. Done well, AI systems can help to establish better, more transparent grievance mechanisms for consumers.

Businesses have a responsibility to respect human rights, which includes an expectation that companies identify their actual and potential human rights impacts. While AI and machine learning can bring about quicker decision making for business activities such as loan approvals, insurance estimates and analysis of medical data, many of these algorithms can lead to bias and negative selfreinforcing loops. This is a particular concern if the data that the algorithm is based on already contains inherent biases, which the machine will learn and amplify. Bias may be racial, gender- or socio-economic-based, leading to discrimination and perpetuating negative stereotypes. By adopting active inclusion – such as more diverse groups of people, minorities and outliers – in the development and ongoing monitoring of their datasets, business could reduce the risk of discrimination and undo this bias. By undertaking a human rights impact assessment when developing new technologies to capture any actual and potential human rights impacts of the system, businesses can seek to prevent and mitigate against these biasbased risks. The right to privacy is another concern of AI, particularly in light of near-ubiquitous data collection. In 2018, events such as the Facebook-Cambridge Analytica scandal demonstrated this risk and emphasised the concerns of data ethicists, human rights advocates and consumers about the need for an AI system to be developed with due consideration for the respect of controls, permission and personal data. This is further reflected by concerns that the algorithms controlling AI systems are opaque and whether these systems adequately respect the human rights of an individual or a group. In 2019 business should be mindful

1. 2. 3. 4. 5. 6.

CONCLUSION The growth in AI and automation will continue regardless of how the space is regulated and monitored. Whether it is sustainable in the long run, though, and is viewed positively rather than negatively, will depend on taking a responsible, rights-based approach. The Australian Human Rights Commission has begun exploring the impact of technology on human rights broadly and its final report and recommendations will be handed down later this year. While this report will focus on the intersection between technology, free speech and democracy, it will contain important insights for Australian businesses; insights that the Global Compact Network Australia is considering as part of its engagement activities with members. The migration to more automation and AI makes it clear that in 2019 and beyond, businesses that place human rights at the forefront of the development, deployment and monitoring of these systems will be leading in their commitment to respecting human rights and creating better systems in the long term.

https://www.mckinsey.com/featured-insights/future-of-work/ai-automation-and-the-future-of-work-ten-things-to-solve-for https://blogs.ei.columbia.edu/2018/06/05/artificial-intelligence-climate-environment/ https://www.weforum.org/agenda/2018/09/7-amazing-ways-artificial-intelligence-is-used-in-healthcare/ https://www.mckinsey.com/featured-insights/future-of-work/ai-automation-and-the-future-of-work-ten-things-to-solve-for http://www3.weforum.org/docs/WEF_Future_of_Jobs_2018.pdf https://www.weforum.org/agenda/2018/04/why-embracing-human-rights-will-ensure-AI-works-for-all/

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LITHIUM-ION BATTERIES POSITIVE AND NEGATIVE RIGHTS IMPACTS ANDY SYMINGTON Andy Symington is a PhD candidate at UNSW Law, an Associate of the Australian Human Rights Institute, and a guest editor on this issue. Andy tweets @andysymington

It is becoming increasingly apparent that the potential impacts of climate change make it not only an enormous environmental and political challenge, but also the defining human rights issue of this century. Minimising planetary warming and avoiding or mitigating its worst effects are crucial to ensuring that the ability of whole segments of global society to enjoy numerous rights is not severely curtailed. In many ways, the battle against climate change should be seen not just as a fight for rights but as a struggle for the feasibility of the very concept of human rights as we currently understand it.

Within this struggle, the specific case of the lithium-ion battery is an intriguing one: this technology has enormous positive rights potential, but current production methods involve serious negative impacts. Lithium-ion batteries, ubiquitous in smartphones and other consumer electronics, are also what power the new generation of electric vehicles. Additionally, they are our principal means of storage of renewable energy: Elon Musk’s much-hyped installation for the South Australian government in 2017 was an example of the technology’s ground-breaking capabilities. As such, lithium-ion batteries are currently key to the moving away from fossil fuels, but their manufacture is also associated with a series of worrying human rights impacts that pose a challenge to extractive companies, battery producers and vehicle makers. HOW IT WORKS There are various types of lithium-ion batteries but the basic configuration is of two electrodes immersed in a lithium salt solution. The negative electrode (anode) is usually made of graphite, while its counterpart cathode is

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typically made from a lithium oxide combined with other metals. Different cathode materials give distinct combinations of performance, safety, weight and cost. The configuration generally used for electric vehicles – which sport an array of several thousand batteries – has a cathode containing lithium, nickel, cobalt and either manganese or aluminium. There are serious human rights concerns associated with the extraction of several of these metals as well as with the production of graphite for the anode. GRAPHITE An extended Washington Post investigation into the manufacture of lithium-ion batteries highlighted that, in China, this ‘clean technology’ was produced via ‘oldfashioned industrial pollution’ from graphite factories.1 Refining mined graphite carpets local communities in sooty particles, polluting local water supplies, damaging food sources and endangering health. The heavy use of acid in the process causes further environmental damage. While synthetic graphite and an acid-free method of processing mined graphite are available, lower production costs of the pollution-heavy method2 means that it predominates. As graphite is the largest single component of lithium-ion batteries, and electric vehicle makers are under pressure to produce cars at consumer-friendly prices, this presents a major business human rights challenge to companies right through the supply chain. LITHIUM Lithium is mined in many countries across the world, but it is another form of extraction that is causing particular alarm. High in the Andes of Chile and Argentina, companies pump enormous quantities of brine from beneath the surface of vast salt pans. The water is then evaporated off over the course of a year or so, leaving a lithium-rich sludge that can be refined. The region is an

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arid, environmentally precarious zone, and local indigenous communities have grave concerns towards the impact on fresh water aquifers and traditional livelihoods as well as the regular absence of consultation for projects on their lands.3 Again, cost-cutting drives this form of lithium extraction, which is cheaper than traditional mining. While less water-intensive technologies are in development, these are likely to raise production costs too. COBALT A majority of the world’s cobalt is mined in the Democratic Republic of the Congo, where an Amnesty International report revealed atrocious human rights conditions in its artisanal extraction, including young children working in dangerous underground environments with no safety equipment.4 Though companies have since reduced the amount of cobalt in their lithium-ion batteries, under current technology there is a threshold beneath which it will be impossible to drop without compromising both performance and safety. Companies have voiced their intention to move to ‘next-gen’ tech, but a cobalt-free battery still appears some way off.5 NICKEL Mining and smelting of nickel take place in several countries and have been associated with serious air and water pollution. In 2017, the Philippines, at the time the world’s largest producer of nickel ore, shut down mines accounting for half of its production over environmental concerns—an extraordinary step. There have also been serious impacts from nickel mining in Russia and Canada, among other places.6 The lowering of cobalt content in batteries has meant a corresponding increase in nickel, which now forms the majority of most electric vehicle battery cathodes by weight. This means that any increase in nickel price has a significant impact on the profit margins of carmakers such as Tesla, yet another area where cost pressures can compromise rights.

1. Peter Whoriskey, ‘In Your Phone, In the Air’, Washington Post, 2 October 2016, available at https://www.washingtonpost.com/ graphics/business/batteries/graphite-mining-pollution-inchina/?tid=a_inl 2. Karim Zaghib et al, ‘Purification process of natural graphite as anode for Li-ion batteries: chemical versus thermal’ (2003) 19 Journal of Power Sources 8 3. Todd C. Frankel and Peter Whoriskey, ‘Tossed Aside in the ‘White’ Gold Rush: indigenous people are left poor as tech world takes lithium from under their feet’, Washington Post, December 19 2016, https://www.washingtonpost.com/graphics/business/ batteries/tossed-aside-in-the-lithium-rush/?noredirect=on.

CHALLENGES The issues discussed here can also be considered as part of traditional tensions between the extractive industries and human rights concerns. Yet the crucial potential of lithiumion technology to help reduce carbon emissions raises the stakes even further. Constantly-improving technology will likely mitigate some of the worst human rights impacts of mineral extraction over time, but market pressures also favour lower-cost extraction methods, which are generally those with the worst human rights impacts. These often disproportionately affect women and children, who tend to see few of the benefits of extractive industry presence but bear a significant portion of the risk. As in many areas of business human rights, we can campaign for better government regulation of company practice, but given that some minerals are found in zones of poor governance and others can be sourced from multiple countries, corporate responsibility to respect human rights is also central. This responsibility extends right up the supply chain, from mining companies through to battery manufacturers and vehicle producers. Consumers also have an important role to play. Though the rapid pace of technological advances can mean that human rights issues are sidelined until development is well underway, reputation-sensitive companies like Apple and Tesla have recently, under public scrutiny, made positive decisions to reduce problem elements like mined graphite and cobalt in their products. Better lithium extraction methods and improved nickel-smelting processes are further areas where corporations can be persuaded to take human-rights-friendlier approaches via civil society and consumer pressure. Lithium-ion battery technology represents an enormous opportunity in the move towards renewable energy but also poses its own series of significant business human rights challenges. Pursuing technological advances while respecting on-the-ground rights is key to achieving a truly sustainable energy revolution.

4. Amnesty International, ‘”This is what we die for”: Human rights abuses in the Democratic Republic of the Congo power the global trade in cobalt’, 19 January 2016, available at https://www. amnesty.org/en/documents/afr62/3183/2016/en/ 5. Angela Chen, ‘Elon Musk wants cobalt out of his batteries — here’s why that’s a challenge’, The Verge, 21 June 2018, https:// www.theverge.com/2018/6/21/17488626/elon-musk-cobaltelectric-vehicle-battery-science 6. Gavin M. Mudd, ‘Global trends and environmental issues in nickel mining: Sulfides versus laterites’ (2010) 38 Ore Geology Reviews 9.

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ON THE FRONTLINE OF CLIMATE CHANGE AND DISPLACEMENT AUDE-EMILIE DORION Aude-Emilie Dorion is a photographer and writer from New Caledonia, who has travelled to different parts of the world capturing the faces, places and events that shape lives.

Mangroves, the natural breakwater that protect Fiji’s shorelines, are being washed away. Communities like Korova settlement are on the frontline of the fight to restore the balance. Image: © Aude-Emilie Dorion.

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In 2018, you travelled to Korova Settlement in Suva, Fiji, to see the first-hand impacts of climate change. Korova is a coastal settlement with only eight houses. Is this because the population has been forced to abandon the village? Describe for us the environment there, and the community’s experience of rising sea levels?

The population of Korova settlement originally comes from the island of Moce, located on the border of eastern Fiji in the Lau Archipelago. The families of traditional fishermen originally moved to Suva, the capital, to ensure their children had access to an education system. But as the sea level had risen considerably over the past 20 years, there has been mangrove loss, and the community now lives under acute threat of flooding.

You met a village chief named Semiti Cama. What did he tell you about how the changing climate is changing the traditional way of life?

Semiti Cama had always pursued a path rooted in the culture of the Lau people and their past traditions. For the villagers, the ocean is sacred and its mana (spirit) nothing compared to the riches of this world. The chief is now concerned that if they must move inland because of the soil erosion, they won’t be able to maintain their traditional knowledge in sailing and fishing that have characterised and fed their tribe for thousands of years.

The community at the Korova Settlement have lived in an environmentally responsible way but are facing the consequences of industrialisation and globalisation. What would you like business and government to know about the impact of climate change on Pacific Island communities?

Rapid industrialisation and urbanisation have destroyed so many mangrove ecosystems in the Pacific islands and elsewhere in the world. This is a concern as these coastal and marine ecosystems are important for sustaining livelihoods, providing food and nutritional security. It is striking to see how these issues remain outside the scope of the political debate and industrial lobby’s concern.

In Korova settlement and elsewhere, environmental actions are too often left to associations and communities in the field, rather than emerging out of clear guidance developed at an institutional level.

“The shores are the frontline of climate change. What happens here matters to us all.” You are a photojournalist from New Caledonia. Tell us more about your work, your motivation and the environmental and human rights challenges that you are most interested in?

I have travelled and lived in different parts of the world, capturing the faces, places and events that shape lives. My commitment to bring the forsaken into light is not an occupational pastime or a way to assuage my own conscience; in so many places around the globe you see that for most people, alienation and inequity have increased. We have developed so many technologies and wealth and yet, we are forced to see that the gap between the haves and have-nots is only becoming wider. Living in the Pacific for the past seven years, I have met people who show great resilience despite their life difficulties. Global warming is a multiplier of threats, worsening difficult situations, and that made me start focusing my work on global warming and environmental issues. I usually like to take assignments when I know that my photos or articles can be a catalyst for change.

SEE MORE OF AUDE-EMILIE DORION’S WORK: www.aedphoto.com www.behance.net/AEDPHOTO Aude-Emilie Dorion travelled to Korova as part of a collaboration between Internews’ Earth Journalism Network (EJN), the COP 23 Presidency Secretariat, and the Secretariat of the Pacific Regional Environment Programme (SPREP), supported by the Pacific Islands News Association (PINA).

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Unexpected violent weather threatens the villagers’ way of life. Outside the cities, half of all households depend on fishing. Image: © Aude-Emilie Dorion.

“With no warning the sea can get very rough nowadays with all sorts of changing” Setareki Cama.

In Korova, life is organised along traditional lines. Respecting the sea means no use of motor boats. Image: © Aude-Emilie Dorion.

HUMAN RIGHTS DEFENDER | VOLUME 28: ISSUE 1 – MAY 2019

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Villagers have made the choice to stay for the children’s education, despite the dangerous weather changes. Image: © Aude-Emilie Dorion.

To protect themselves from the sea level rise, villagers are burying old tires in the sand in an effort to stop erosion. Image: © Aude-Emilie Dorion.

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The people are making do with limited means. Rebuilding lives every time it is necessary and trying to avoid pandemic diseases after floods. © Aude-Emilie Dorion.

Life on Fiji has evolved with the swell, but the tide is now turning. The sea is warming, killing the fragile ecosystem beneath. © Aude-Emilie Dorion.

HUMAN RIGHTS DEFENDER | VOLUME 28: ISSUE 1 – MAY 2019

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“When fishing is unsuccessful, we rely on the manufacturing of Tapas (barkcloths). We sell them cheap in the marketplace” Vunisa Baleinabola.

COMING SOON FROM UNSW PRESS IN SEPTEMBER 2019

Addressing Modern Slavery Justine Nolan and Martijn Boersma

Long after slavery was officially abolished, the practice not only continues but thrives. An estimated 40 million people are modernday slaves, more than ever before in human history. Whether they are women in electronics or apparel sweatshops, children in brick kilns or on cocoa farms, men trapped in bonded labour working on construction sites, or girls forced into domestic servitude or sex work, millions of people are forced to perform labour through the use of force, intimidation or deceit. Modern slavery is an integral part of the global economy. It even becomes part of our daily lives when we use or buy products that are made through exploitative labour practices. In a world of growing inequality, consumers and business are both part of the problem and the solution. While we have all become accustomed to fast fashion and cheap consumer goods, we must take responsibility for exploitation at different points along complex supply chains. This important book examines slavery in the modern world and outlines ways it can be stopped.

Classification | Human Rights | Law September 2019 ISBN 9781742236438 UNSW Press 178pp, PB, 210x135mm RRP AU$29.99 NZ$34.99

About the Authors JUSTINE NOLAN is Associate Professor and Associate Dean in the Faculty of Law at the University of New South Wales and co-author of The International Law of Human Rights (OUP, 2017) and Business and Human Rights: From Principles to Practice (Routledge, 2016). She has extensive experience as a human rights advocate, having worked in the US at Human Rights First. She was involved in the establishment of the Fair Labor Association and worked with companies, unions and NGOs to develop labour rights monitoring standards for apparel factories. In 2017, Justine was appointed to the Australian Government’s MultiStakeholder Advisory Group on Business and Human Rights. MARTIJN BOERSMA is a lecturer in management at the University of Technology Sydney, specialising in industrial relations, business ethics and human resource management. Martijn has published widely on these topics. He was part of a multi-stakeholder ‘Supply Chains Working Group’ initiated by the Australian Federal AttorneyGeneral’s Department, which explored strategies to address labour exploitation in supply chains, including slavery and human trafficking. Prior to joining UTS, Martijn was active in the Australia trade union movement and has worked as a researcher for United Voice, a trade union that represents Australian workers in predominantly low-paid industries. Previously, Martijn worked in the international head office of Greenpeace in Amsterdam.

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NewSouth Publishing • University of New South Wales Sydney NSW 2052 • www.newsouthbooks.com.au

HUMAN RIGHTS DEFENDER | VOLUME 28: ISSUE 1 – MAY 2019

Human Rights Defender Volume 28 Issue 1

Articles inside

Lithium-Ion Batteries - Positive and Negative Rights Impacts

Modern Slavery: A prison without walls

The Role of Business to Support the Work of Human Rights Defenders