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11 Mar 2019

11/03/19 - Heather Moore is Managing Director, Trafficking and Slavery Research Group, School of Social Sciences, Monash University.

Good modern slavery policy, more than the sum of its parts

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In reflecting on the passage of the Australian Modern Slavery Act (AMSA), States considering similar legislation may draw insights not just from how the Act performs based on its final provisions, but also from the range of processes, decisions and negotiations that ultimately determined those provisions.

Though potentially obvious to some readers, a good law is more than the sum of its parts; such, hopefully, are based on the best possible set of ideas grounded with evidence. A good law is also one that has been designed in a way that it can be effectively implemented to realise its purpose, and can be measured to determine whether it succeeded in doing so.

Factors to achieving good laws

With so much of the debate concentrated on reporting threshold and compliance, both participants and onlookers may have missed these and other factors, which are equally important to achieving good legislation. These other factors include:

  • What resources are likely to be available to support implementation of a law;
  • The political and/or social and economic context in which a law is designed, passed and executed; and
  • A law’s harmonisation with related policy frameworks.

Good laws can be impaired or rendered useless if they lack the political will and resourcing necessary to fulfil their purpose. On this basis, the provisions that go into a law should aim for the ideal, but ultimately be decided on the achievable.

That is not to say that reform advocates should sacrifice on their principles, but rather, they should be realistic in the current context and remember that modest and iterative change is often more sustainable and effective.

Insights from Australia

The Australian experience offers some useful insights where the focus on compliance seemed to occur with almost no regard for necessary requirements to ensure that a compliance framework would be both enforceable and effective. This would certainly include a certified list of reporting entities, so one knows to whom the penalty may apply, and commensurate resourcing to evaluate the expected number of statements and engage with reporting entities where necessary.

However, to confirm such a list would have required a narrowing of reporting entities, which decision-makers were unprepared to do. This is not to suggest that a compliance framework is unnecessary or that human rights policy should be determined by what funding the government of the day is prepared to allocate. Rather, it suggests that it is short-sighted to conclude the Australian Act is weak simply because it lacks penalties.

The low rate of compliance with the UK’s Act is not simply about absence of penalties, but also that s54 did not receive commensurate government support for proper implementation. The New South Wales MSA, which does include financial penalties for non-compliance, had no assessment undertaken during the drafting stage to forecast how many and which companies would be affected and consequently, what amount of funding would be required to effectively monitor compliance and issue penalties for failing to meet requirements under the law.

As previous bloggers have noted, the Australian Act makes some important improvements on the UK Act and the more modest approach of Version 1.0 may prove more effective by virtue of its manageability.

The context for feasibility

Central also to the passage and ultimate effectiveness of a policy is feasibility within the current context. Campaigners seeking strong modern slavery policy must consider in particular the political context in which they work and not underestimate the complex and laborious task of shepherding a bill through what one former Australian Senator has termed the “sausage-making factory” that is the Parliament.

While not perfect, the passage of an Australian law introducing new regulation onto big business under the current government was actually a miraculous achievement.  What is more, in the broader context, the government cleverly calibrated a policy that was so fair to business that it would be reputationally risky to publicly oppose it.

Harmonising policy frameworks

A third and final point for consideration is how the provisions of a law will or will not fit with related policy frameworks. A key tension in the AMSA—one which was detected in the broader MSA inquiry but failed to make it into the final law— is where new corporate responses will meet immigration controls.

Whilst very recent media releases signal potential change, the historically harsh response to exploited unlawful migrants has been out of step with anti-trafficking policies and may undermine genuine efforts by business to root out slavery in domestic supply chains.

Towards meaningful policy

In conclusion, it may be said that the best policy goes far enough to make a meaningful difference, but not so far that it achieves nothing. Accordingly, governments considering modern slavery legislation would do well to set a long-term vision of success and design policy that achieves measurable outcomes with due consideration for the range of critical influencing factors that will ultimately determine the policy’s success or failure.

Reflexões sobre a lei australiana de escravidão moderna e além

Modern Slavery Act: Does Business Realise What It’s Asking For?

Vanessa Zimmerman, CEO, Pillar Two 18 Fev 2019

From the Modern Slavery Act to binding rules on corporations

Sam Cossar-Gilbert, Coordinator, Friends of the Earth International. 17 Fev 2019

Can the Australian Modern Slavery Act offer the meaningful protections labour needs?

Andrea Maksimovic is the Associate Director of International and Civil Society at the Australian Council of Trade Unions. 6 Fev 2019

View Full Series