What are we missing by focusing on modern slavery?
What are we missing by focusing on modern slavery?
As this blog series has been celebrating, we now have NSW and Commonwealth Modern Slavery Acts. As we reach half way in this blog series, we wanted to examine why this form of exploitation is attracting more concern and attention than other equally egregious breaches of labour rights, such as death and serious injury, or low wages which affect a larger number of workers.
Though there are strong social movements against wage theft or for a living wage, these movements are not gaining the same type of political traction as the modern slavery movement. And why is supply chain transparency in corporate supply chains the preferred way to tackle modern slavery—as opposed to those methods proposed in the International Labour Organisation’s 2014 Protocol to the International Convention on Forced Labour (C29), for example, or in the UN Guiding Principles for Business and Human Rights?
Some background to modern slavery abolitionism
To understand the rise of the modern slavery approach to exploitation, we have to conduct some historical analysis. The antecedents of the current modern slavery phenomenon are commonly traced to two developments in the late twentieth and early twenty-first centuries which explain how trafficking and some forms of labour exploitation came to be addressed together under the banner of modern slavery.
Obama administration expansion of anti-trafficking efforts to include some labour exploitation
The first is the proliferation in legal, political and bureaucratic initiatives directed at combatting human trafficking. This charge was led by the United States, where efforts to combat trafficking through the use of criminal law have long enjoyed bipartisan support. Under the Obama Administration, the trafficking frame was broadened significantly to encompass other forms of severe labour exploitation such as forced labour, but not broader labour standards. It was also during this period that these various practices began to be commonly described as ‘modern slavery’.
The influence of philanthropists
A second source of modern slavery abolitionism is the influence of powerful individuals who have strongly advocated for greater attention to be paid to recognition and eradication slavery rather than, say, wage theft. Philanthropists have added further momentum to the movement. These include such prominent figures as Australian mining magnate Andrew Forrest, who in 2012 founded anti-slavery NGO the Walk Free Foundation. One of Walk Free Foundation’s objectives is securing legislative change in ‘key countries’ that requires supply chain transparency in corporate supply chains. Through enrolling other actors, funding research and having the power to attract media attention, these philanthropists shape public awareness and understanding of an issue. These actors are also an important source of funding. They can devote significant sums to compiling data that shows the scale and scope of the problem. They also provide a funding source for NGOs that is not susceptible to the vagaries of changes in political administrations or membership numbers.
The adoption in the UK of the Modern Slavery Act 2015 gave the global momentum around modern slavery a further and significant boost. This Act’s transparency in supply chains provision has attracted considerable interest internationally, and indeed was the inspiration for our own regulatory initiatives.
Reasons why government and business prefer the modern slavery approach to others
On top of these developments we have the political economy of modern slavery. With its criminal justice and corporate transparency approaches, the modern slavery frame is more appealing to state and business than other possible frames through which to address severe labour exploitation for a number of reasons.
As Judy Fudge has argued, modem slavery absolves the state of responsibility for its role in the structures and conditions that permit or indeed facilitate serious labour exploitation. It does not, for example, challenge the state to address conditions such as strict border controls (which might perversely encourage people-smugglers to circumnavigate official border-entry), or unauthorised work. It also misses the fact that strong and effective labour market regulation across all industries is a critical aspect—indeed, we would argue, the most critical aspect—of any successful strategy to prevent severe forms of labour exploitation.
In fact, the modern slavery approach enables states to create the appearance of being tough on modern slavery without having to adopt stronger or more effective labour or business regulation.
For business, the modern slavery frame does not involve third parties such as unions and civil society in a formal system of enforcement in the same way that other laws do. Nor does the modern slavery approach challenge standard business models or methods of profit generation. Extreme exploitation, according to the modern slavery frame, is not the product of, or in any way linked to, the institutions and practices of modern capitalism or to business models. It is the fault of deviant individuals (‘bad apples’).
Staving off stronger forms of regulation
It has also been argued that business support for the specific type of transparency-based regulation embodied in the UK MSA model is an effective strategy for staving off stronger forms of regulation. In the Australian context, opposition to penalties being imposed on companies failing to comply with reporting requirements came from some of the same actors that have called for the introduction of a reporting requirement. Firms like Nestle, which was in favour of fines, were seen to be in the minority.
No-one wants to be seen to be against tackling modern slavery
For civil society, the modern slavery paradigm has proven an effective frame through which to pursue objectives. It is because of its unassailable moral force that we have seen the casting of more and more exploitative labour practices as ‘modern slavery’. Janie Chuang describes this phenomenon as 'exploitation creep'. She argues that this creep has largely come about because of well-intentioned and strategic bids by civil society and others “to subject a broader range of practices to a greater amount of public opprobrium.”
What alternative approaches are we missing out on?
All this is not to suggest that growing awareness of extreme forms of labour exploitation or regulatory initiatives that encourage businesses to take a better look at their supply chains are not good things. But we do think there is value in understanding why modern slavery has experienced the phenomenal trajectory that it has. It also helps us to recognise that Australia’s embracing of the modern slavery paradigm may carry with it risks as well as benefits.
We think it helps to explain why coercive forms of labour exploitation are not being tackled via labour regulation, for example, which is one of the key recommendations of the ILO’s Protocol to the International Convention on Forced Labour. It also explains why it may be difficult to achieve rights to remedy against companies or a stronger human rights due diligence requirement, in line with the the UN Guiding Principles for Business and Human Rights.
This blog draws on the argument the authors make in the Federal Law Review titled ‘Should Australia be Embracing the Modern Slavery Model of Regulation?’ https://flr.law.anu.edu.au/flr/article/should-australia-be-embracing-modern-slavery-model-regulation