Quite smartly human rights are back on the front page, thanks to Wednesday’s outcome of the voluntary postal survey on marriage equality.
It should pave the way to a bigger infusion of rights, with the next milestone a Human Rights Act for the entire nation. Possibly, there would have been no need for a postal survey or even a parliamentary skirmish if there has been a Human Rights Act in the first place.
The course of justice under such an overarching scheme might well have prevailed against any law that offended a right so fundamental as the right to marry another human being. It’s not as though advances in human affairs against the power of the state fall dutifully into our lap. Even when the opposing arguments are feeble or not much more than lies, human progress has to be fought for, wrenched from the maw of flint-hearted people who like things just as they were.
There are a lot of battlements to breach before a national Human Rights Act is on the books. Nonetheless, there is movement at the station and a relatively unnoticed but important step is in the hands of a multi-party, joint parliamentary committee looking at combatting slavery .
Slavery, it might be imagined, is something that died with Abraham Lincoln, Robert E. Lee and Jim Crow, although the American civil war was far from the last word on the topic.
Slavery is still an economic principle but its shape is different and today has an updated name, “modern slavery”: forced labour, wage exploitation, involuntary servitude, debt bondage, human trafficking, child labour, sex slavery and forced marriage. And yes, “domestic servitude” is included.
The definition is wide and, lawyers might think, loose — yet, in whatever form, slavery, modern or ancient, has proved difficult to eradicate.
Australia is not exempt from any of these scourges. In 2013 there were amendments to the Criminal Code dealing with human trafficking and slavery-related offences. The original offence relating to sexual servitude was expanded to cover servitude in any industry, adding a standalone offence of forced labour and criminalising forced marriage.
Since the amendments in 2013 and up to June 30, 2017 there have been 491 referrals in Australia to the AFP mainly relating to forced marriage, sexual exploitation, labour exploitation, child trafficking and trafficking.
Between 2004 and 30 June 2017 there have been 20 convictions for slavery and slavery offences in Australia.
The parliamentary committee is taking steps to see that something small, but hopefully meaningful, is done. So far it has received over 200 submissions, produced an interim report, and has a final report under consideration.
The encouraging aspect is that this cross-party committee gives in-principle support for a Modern Slavery Act, drawing on some of the better features of the UK Act of the same name.
The proposed legislation would require mandatory reporting of what goes on in the supply chains for the provision of goods and services and require businesses to examine each component of what is assembled and supplied and to report annually on what it finds and what progress has been made to eradicate elements that constitute modern slavery.
Indeed, there would be a government funded central repository of modern slavery statements, and businesses would be required to publish a slavery statement with their annual report.
In the UK the reporting threshold is £36 million (Dh174.6 million) annual turnover for corporations. The committee in Canberra is considering a similar threshold, which would put it at between $50-60million annual turnover for Australian companies, government agencies and organisations, including religious outfits.
Already the battle lines are drawn. The Australian Chamber of Commerce and Industry says that reporting requirements should be the subject of further consultation. The executive director of the Australian Retailers Association, Russell Zimmerman, says: “Special care must be taken regarding over-regulation and impact on businesses with small turnover who do not have the resources to deal with what are very complex issues.”
Human rights barrister Kate Eastman SC is concerned that the reporting threshold will mean many businesses escape the mandatory requirement.
Further, she says that the committee’s focus on the UK model overlooks the potential to harmonise an Australian Modern Slavery Act with current protections in Australian law, including fair work provisions and immigration law.
Eastman also points out that as the current proposals stand, one of the biggest potential areas of impact is in the legal sector, where the fattest firms would be subject to mandatory reporting.
“It may raise questions about the recruitment practices of law firms and it will require law firms to think about some of the businesses with which they partner.”
The parliamentary committee does recognise “there is significant potential to improve” on the UK reporting model.
The British experience is that because there are no penalties for non-compliance, many businesses and organisations have not reported. Nonetheless, the parliamentary committee thinks that the UK’s “market based” model will “develop over time and encourage a ‘race to the top’ for businesses and organisations”.
It is proposing that in Australia there be penalties for failure to report supply chain information with the publication of the names of companies, businesses, organisations and government bodies that do not comply with the supply chain reporting requirements. The committee suggests an “opt-in” system where smaller businesses can report their supply chain investigations.
There is support for the proposal that the commonwealth government only have procurement relationships with businesses that comply with modern slavery requirements.
An independent anti-slavery commissioner is also proposed, which could incorporate within the role the current people smuggling and human trafficking ambassador. There might even be a little anti-slavery “mark” on goods made by compliant business.
There is contention around penalties and the extent to which slavery victims have recourse to compensation. Eastman says that the reporting model is “politically easier to sell”.
The committee recently visited Mildura, the heart of much of Australia’s fruit picking where there’s been a sorry history of mistreatment and underpayment of seasonal workers. Melbourne lawyer Vicknaraj Thanarajah has provided information about Malaysian workers exploited in the fruit industry.
It’s not an uncommon story. “Fixers” or agents target poor regions of Malaysia where people are lured to Australia on promises of lucrative sums of money. They are required to pay a deposit to cover the flights, accommodation and visas.
In fact, they invariably enter Australia on tourist visas and work illegally on a farm, soon realising they are not making the money they were encouraged to think was possible. Certainly, insufficient money to buy a ticket home, Thanarajah says.
He suggests measures that will “name and shame” perpetrators and to target the issue in countries where cheap labour is sourced.
There are also cases before the courts in Western Australia where a joint police operation in Carabooda aimed at a money laundering syndicate operating out of farms and market gardens found 122 “non-citizens”, 199 of who were “removed from Australia”.
Tigers can still be dangerous even if they have no teeth. It is evident that the preferred option to address modern slavery is to hold the teeth but to have claws deliver a few scratches.
It’s a drip, drip process, but like seat belts, anti-smoking measures, asbestos and sugar, ultimately it catches on.
— Guardian News & Media Ltd
Richard Ackland is a Guardian Australia columnist. He publishes the law journals Justinian and Gazette of Law and Journalism.
