The spotlight shifts to gender, business and human rights

Louise Chappell is Professor and Director of the Australian Human Rights Institute at UNSW Sydney.

While good reasons abound to celebrate the Australian Parliament’s passage of the Modern Slavery Act in November 2018, its consideration of gender issues was not one of them.

The Act means large businesses must report on the risks of modern slavery in their operations and supply chains. It relies on international instruments, including the Convention on the Elimination of all forms of Discrimination against Women and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. However, the Act is a missed opportunity to clearly explicate gender-based rights violations in modern slavery practices, to provide guidance on appropriate remedy for such violations or, at a minimum, to specify the need for gender-disaggregated reporting.

Gender dimensions of modern slavery

Australia is a known destination country for women trafficked into the sex industry, as agricultural workers, and as victims of forced marriage. Women are exploited as migrant care workers, and suffer serious economic, social and political rights violations when their partners, family members or children are caught up in modern slavery practices.

Unfortunately, the Modern Slavery Act fails to address these and other gender dimensions of modern slavery. As with so many human rights instruments, these dimensions will have to be ‘retrofitted’ via the interpretation of the legislation to ensure it captures the full range of harms specifically suffered by women and girls as a result of business-related rights abuses.

Internationally and in Australia, not only modern slavery, but many business-related human rights violations, are increasingly recognised as affecting men and women differently. Due to entrenched gender-based structural inequality, women are vulnerable to particular exploitation through trafficking, workplace discrimination, (absence of) labour market regulation, and business-related climate and environmental degradation. Women experience harms because of their roles as primary carers and consumers, as custodians of land, and because of the sexual division of labour that places them in marginal jobs in marginal industries with limited access to economic and political power.

Gender-based harms

The types of business-related rights violations women experience are various and widespread affecting those in high, medium and low income countries, including sex and pregnancy discrimination, pay inequity, sexual harassment and abuse, and a higher burden of particular diseases. Many harmful business practices have a disproportionate impact on women and girls. For instance, the ILO suggests that women and girls comprise 70 per cent of all people experiencing modern slavery.

As with the MSA, the international UN Guiding Principles on Business and Human Rights (UNGP) also fail to fully outline the gender aspects of business-related rights violations. However, recognising this omission, the UN Working Group on Business and Human Rights has recently prioritised the issue, with the launch of a thematic project on adding a gender lens to business and human rights.

Spearheaded by working party member Professor Surya Deva, the project involves widespread global consultation to mainstream the issues within the BHR field. It develops guidance to assist both States and business enterprises with practical recommendations for what it means to protect, respect and remedy the rights of women in a business context in line with the UNGPs. Co-ordinating agencies and actors working in the BHR field, it explores ways to empower women who are at-risk or have been adversely affected by business-related human rights abuses. The report stemming from the project is due to be submitted to the UN Human Rights Council in mid-2019.

Further initiatives

In November 2018, Australia hosted a gender lens consultation to feed into this project. The event focussed on women’s domination in low paid and marginalised jobs, such as in the care and sex industries; pay inequality; integrating the UN Convention of the Elimination of all forms of Discrimination against Women (CEDAW) and an intersectional approach in responses to the UNGPs; the cost of mining and other extractive industries on women’s rights; and, the need for government and business to develop appropriate remedies. Modern slavery was also discussed including the trafficking of women for sex work and other occupations, and Australia’s need to ensure that female workers in overseas supply chains were not exploited.

This month the Danish Institute for Human Rights added to the growing attention to this issue with its release a ground-breaking report Women in Business and Human Rights. This report highlighted the need for state action on gender-sensitive UNGP implementation in areas including labour rights, land and natural resources, essential services and privatisation, trade and investment and the right to remedy.

Towards greater inclusivity

The fact that the spotlight has now shifted onto gender and business and human rights practices is encouraging. Through the efforts of the UN Working Group, civil society, and government, it is possible to foresee a future where the specific business-related risks confronting women as workers, consumers and land custodians are not only better recognised, but addressed, remediated and ultimately prevented. Australia can do more to support these international efforts, starting with a concerted effort to ensure its groundbreaking modern slavery legislation is gender sensitive in order to equally protect the rights of women and men who are vulnerable to these practices.