FEATURE
AUSTRALIAN BUSINESSES MUST JOIN TO ERADICATE MODERN SLAVERY DR JACOBA BRASCH QC, PRESIDENT, LAW COUNCIL OF AUSTRALIA “It is a confronting reality that even in the present day, men, women and children all over the world remain victims of modern slavery. They are bought and sold in public markets, forced to marry against their will and provide labour under the guise of “marriage,” forced to work inside clandestine factories on the promise of a salary that is often withheld, or on fishing boats where men and boys toil under threats of violence. They are forced to work on construction sites, in stores, on farms, or in homes as maids. Labour extracted through force, coercion, or threats produces some of the food we eat, the clothes we wear, and the footballs we kick. The minerals that men, women, and children have been made to extract from mines find their way into cosmetics, electronics, and cars, among many other products.”1
A
ccording to experts, there are more people enslaved today than at any other time in history - roughly 13 million people were captured and sold as slaves between the 15th and 19th centuries,2 whereas the most recent, reliable data available estimates that 40.3 million people3 are living in some form of modern slavery, 70% of whom are women and girls.4 For Australia, the Walk Free experts estimate 15,000 people are living in modern slavery,5 but alarmingly add a rider that the prevalence estimates for various countries, including ours, are likely higher than previously understood.6 However, many Australian businesses are unaware of the risk of slavery in their business or supply chain – for example, in 2019, Australian retailers Target and Cotton On ceased sourcing cotton from China’s Xinjiang province, following an expose by ABC’s Four Corners.7 Walk Free also note: even in countries with seemingly strong laws and systems, there are critical gaps in protections for groups such as irregular migrants, the homeless, workers in the shadow or gig economy, and certain minorities. These gaps, which are being
12 THE BULLETIN August 2021
actively exploited by criminals, need urgent attention from governments.8 Thus, in 2018, the Commonwealth enacted the Modern Slavery Act 2018 (Cth), which came into force on 1 January, 2019. It established mandatory Reporting Requirements for businesses with a revenue of $100M and above.9 Those under that threshold can voluntarily report.10 In turn, the Law Council of Australia, guided by its Business and Human Rights Committee, has collaborated with the Association of Corporate Counsel and released a fact sheet to help businesses understand their reporting requirements under the Modern Slavery Act 2018 (Cth). It is available on the Law Council website.11 There is no doubt that taking action to combat modern slavery makes good business sense. Businesses that take action to combat modern slavery in their operations and supply chains are protecting themselves against possible business harm while improving the integrity and quality of their supply chains.12 They can also increase profitability, investor confidence and access to financing opportunities.13 Whether a mandatory or voluntary reporter, a ‘modern slavery statement’ is submitted to the Minister, via a publicly accessible registry on the Australian Border Force’s website.14 The modern slavery statement must: • identify the reporting entity; • describe the structure, operations and supply chains of the reporting entity; • describe the risks of modern slavery practices in the operations and supply chains of the reporting entity, and any entities that the reporting entity owns or controls; • describe the actions taken by the reporting entity and any entity that the reporting entity owns or controls, to assess and address those risks, including due diligence and remediation processes;
• describe how the reporting entity assesses the effectiveness of such actions; and • describe the process of consultation with any entities the reporting entity owns or controls, and any entity with which it is issuing a joint modern slavery statement; and • include any other information that the entity giving the statement considers relevant.15 The statement must be given to the Minister within six months after the end of the reporting entity’s reporting period (usually its financial year), in a manner approved by the Minister.16 However, the drafting of such a statement should not be the starting point of working to eradicate modern slavery. Instead, all businesses should be continually assessing and addressing any modern slavery risks.17 This includes the implementation or enhancement of sound governance and policy frameworks which should be cross functional and include, legal, procurement, compliance and risk, with all business units involved in the process.18 Also critical for any business is building awareness of what modern slavery is in practice and how it may be relevant to a particular business or organisation. Yet it is not just the principal organisation that has to consider this, but also those who procure finished goods, use contractors, hold events, provide food and supplies, or invest in the business.19 They must all examine their activities and supply chains to evaluate risk. Further, entities within the corporate group, and external organisations such as suppliers, unions, contractors, and other stakeholders also should be consulted.20 A risk assessment and response process, along with due diligence on modern slavery risks, would include mapping key parts of the organisation’s operations and supply chain, as well as the organisation’s investment portfolio. There may be a need to amend contract
