Dr Anne Gallagher AO
2017 may be seen, in hindsight, as the Year of the Slave. Almost immediately after his inauguration, President Trump vowed to "bring the full force and weight of our government" to combat this “epidemic”. In September at the UN General Assembly, new data on the number of slaves (40.3 million) was publicly released. The data was generated by an alliance between the International Labour Organisation and Walk Free, the authors of the methodologically troubled Global Slavery Index. A high-level panel convened to mark the occasion and discuss “the greatest issue of our time” included UK Prime Minister Theresa May and Presidential Adviser Ivanka Trump.
Theresa May’s role was not an accidental one. The United Kingdom has been at the forefront of this global campaign, principally through its success in marketing the Modern Slavery Act 2015 (the 'MSA') as a legislative game-changer – a model that other States seeking to burnish their anti-slavery credentials could usefully follow.
The MSA is certainly unusual. While most countries have adopted legislation criminalizing trafficking and related forms of exploitation, only a few have gone as far as the UK in legislating for “supply chain transparency” or creating independent oversight mechanisms (in the form of an Anti-Slavery Commissioner).
In February 2017, the Australian Parliament established an Inquiry into whether Australia should adopt a version of the MSA. Anne Gallagher, in her role as Academic Adviser, gave evidence and coordinated Doughty Street Chambers’ (‘DSC’) submission to the Inquiry.
The submission acknowledged that the MSA has some positive features that Australia could usefully consider when seeking to further refine its laws. These include prevention provisions focused on encouraging business to identify and respond to exploitation in their supply chains and the creation of an independent mechanism to oversee implementation of the law.
But the submission was clear that the MSA has significant weaknesses which are too often ignored by those who are pushing it as a model for other countries to follow. Not least is its startling, unconscionable failure to provide minimum statutory entitlements to victims of exploitation.
Drafters of the MSA chose to not specify the rights of person assessed to be victims of trafficking. They also chose to not impose an obligation on government authorities to provide support. Rather, the MSA authorises the relevant public official to issue guidance (Article 49) and make regulations (Article 50) concerning victim identification and support. These can, of course, be amended at any time.
The practical impact of the MSA’s failure to mandate victim rights and entitlements is partially moderated by the UK’s obligations under European law – which include substantial and detailed protections for victims of trafficking. Even leaving aside the very real possibility that this safety net will be removed, the experience of DSC and others has confirmed that securing such rights is a difficult and time-consuming process, often requiring court action. In short, and contrary to the dominant PR spin, this aspect of the MSA is far from international good practice.
As widely expected, the Parliamentary Inquiry’s report, released in December 2017, calls for the introduction of a Modern Slavery Act in Australia, along with the establishment of an independent Anti-Slavery Commissioner. Several of its key recommendations draw on the DSC submission. The Inquiry recommends the introduction of a statutory defence for victims who commit status-based offences, similar to but stronger than that set out in Article 45 of the MSA. The report also recommends the establishment of a national compensation scheme for victims of exploitation.
But opportunities to address more fundamental problems were missed. Australia’s criminal justice response to trafficking is desperately in need of review and reform. Too few victims are ever identified, and successful prosecutions are vanishingly rare. The Inquiry was made aware of these failings but declined to even call for a review of what is going so terribly wrong. And while the report acknowledges the need to protect victims’ rights, it tinkers with details rather than proposing that the new law unambiguously articulate obligations of protection and support.
The main problem with the report is the disproportionate attention it pays to the newly fashionable ‘solution’ of supply chain transparency. As I have written elsewhere, addressing supply chains must be part of any comprehensive attack on exploitation. It is, however, no silver bullet. In fact, there is a real risk that the current obsession with supply chains, as reflected in the global marketing of the MSA and the Australian Inquiry’s final report, will deflect precious time, energy and resources away from the grindingly difficult, less glamorous tasks we know to be critical to making a difference. These include: identifying and supporting victims; securing more and better prosecutions; reducing the vulnerabilities of migrants and migrant workers; enforcing labour legislation; and addressing the structures and attitudes that help to normalize exploitation.