Australia’s new modern slavery legislation: UTS LSS Keynote Address

On 4 October 2018, Partner Michael do Rozario delivered a keynote address on Australia’s new modern slavery legislation at the University of Technology Sydney Law Students’ Society (UTS LSS) Speaker Series II on Modern Slavery.

I start by joining in acknowledging the fact that we meet on indigenous land and by paying my respects to the Gadigal People of the Eora Nation.

I am honoured to be here today speaking to you. Firstly I would like to thank the UTS Law Students Society for the invitation. In particular, I want to acknowledge the LSS executive team and in particular Margaret Cai, Georgia Dixon, Liam Fairgreive and Jonathan Hetherington who have put this event together. Corrs is immensely proud to support the UTS Law Speaker Series.

I also want to acknowledge my fellow panellists. The honourable Paul Green MLC is a large part of the reason that we are here today, discussing Australia’s new modern slavery legislation. His work, his drive and his dedication to the issue in NSW Parliament led to the passing of Australia’s first Modern Slavery legislation, the NSW Modern Slavery Act of 2018. Paul Green’s passion on this issue is evident and the second reading speech Paul gave in the Legislative Council, stands as an exemplar of the genre. I urge you all to google it, bookmark it and read it on your way home.

I also want acknowledge UTS’s Gerard Brennan Professor of Law, Paul Redmond AO. Paul is largely responsible for my interest and involvement in preventing modern slavery, and I will tell you about that later. Paul has been a constant voice calling for the protection of human rights and the prevention of modern slavery. I have had the honour of observing Paul deploy his vast knowledge and passion for the need for business to observe and promote human rights, up close, for several years.

I also want to acknowledge Professor Jennifer Burn, Director of Anti-Slavery Australia and Professor of Law at the University of Technology Sydney. The thought leadership and advocacy of Anti-Slavery Australia has been so important to bringing clarity to why modern slavery laws are needed – by reminding us that modern slavery laws are about protecting real people in our society, locally and globally. One of the most important roles of law schools is to not only teach the law, but to lead the way for the profession and society in critiquing and driving reforms of our laws and legal framework. Professor Burn and Anti-Slavery Australia brings great credit to the UTS law school by doing just that.

I also want to acknowledge my professional colleagues, Geraldine Johns-Putra from Minter Ellison and Jacob Smit from Norton Rose Fulbright. Both of those firms are at the vanguard of helping business respond to the new modern slavery legislation. The legal profession, which many of you will join, sooner or later, has a significant part to play in preventing modern slavery.

Ladies and gentlemen, let’s celebrate a few things.

I want to start by celebrating the passing of Modern Slavery Legislation in NSW and the imminent passing of Modern Slavery Legislation at a Commonwealth Level. I want to celebrate that in particular, because it occurs in the 70th anniversary year of the Universal Declaration of Human Rights. I also want to celebrate it because the legislation, which is unanimously welcomed by all sides of politics comes precisely at the time when human rights as a concept has been under sustained political attack.

The Modern Slavery legislation reminds us that Human Rights is about people. The Universal Declaration was written in in 1948 in the aftermath of the Second World War by and on behalf of people who had painful direct experience of a war that contravened every standard of decency and literally went nuclear. It was a war in which thousands of Australians, and tens of thousands of people from all races and walks of life were enslaved in terrible conditions to provide forced labour and sex for invading military forces. Often they did not survive the brutality. The stories of the Australian soldiers who provided forced labour on the Thai Burma border and other places, are legendary here and the heroism of those people is part of the reason we call that generation the greatest generation. Australia was one of the eight nations that drafted the Universal Declaration of Human Rights for the world in 1948. It is the legacy of that greatest generation of Australians that we strive to uphold when we talk about human rights.

The preamble of the universal declaration records, in raw terms, why to the minds of the greatest generation such a commitment by every person and every nation was needed.

The second paragraph of the preamble reads:

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

It’s a paragraph that speaks of direct experience of the pain of brutality and the universal hope that we should all do better.

When you read the accounts of modern slavery such as those the Honourable Paul Green referred to in his Second Reading Speech; when you read the papers and watch the videos on UTS’s Anti-Slavery Australia website, when you read the submissions of the grass roots religious and civil society organisations to the various parliamentary inquiries, when you read and watch the great work done by investigative journalists from 4 Corners to the Daily Telegraph to expose modern slavery in Australia, you read of the very same – and I quote “disregard and contempt for human rights, which have resulted in barbarous acts and outraged the conscience of mankind”, that our forebears 70 years ago came together to prevent.

We should celebrate the Modern Slavery legislation because provides concrete evidence that the call of our ancestors in the Universal Declaration 70 years ago still resonates today, not as the political football that some commentators characterise human rights as, but as a unifying force amongst our politicians and our society.

Modern slavery is about people.

My involvement in the issue of modern slavery came through a Sydney based charity called the Diplomacy Training Program, which was so ably chaired by Professor Paul Redmond for a long time, until we finally let him retire this year. For those not familiar with this remarkable organisation, the DTP trains civil society advocates in human rights and the UN system, in the Asia Pacific. It takes Asia Pacific very literally – working from Fiji right through to Lebanon. One of the core areas of training that the DTP uniquely does, is in relation to migrant labour – which plays vital role in the economic fabric of the Asia Pacific. Migrant labour in itself, can be a good thing. It provides manpower in countries that need it, and it provides work and foreign currency remittances for families and governments in countries that have an excess supply of working age people. Many families in the Asia Pacific region rely on money sent back by a family member working overseas. While there is a good and legitimate level at which the system works well – including in Australia – quite often it is an industry riddled with corruption, criminality, forced labour and exploitation. Or, modern slavery.

Every year, Corrs undertakes a pro-bono project that brings together our summer clerks and our lawyers to deliver a major piece of work for a charity or a cause. In 2012, the DTP approached Corrs about a pro-bono project involving Nepalese migrant workers in the Middle East. I don’t mind saying that our team did a great job getting on top of on a hard and foreign topic. They provided the DTP with an analysis that brought together the laws in Nepal that regulated migrant labour, with the human rights treaties, instruments and norms that Nepal and the destination states in the Middle East had signed up to. Our summer clerks presented their work to the DTP in the last week of their clerkship, went back to uni and eventually joined the firm as grads. In the meantime, the DTP was busy training Nepalese civil society advocates, who had previously struggled to gain traction with the UN System in support of Nepal’s migrant workers. By being able to demonstrate the breaches of laws and human rights norms that Nepalese migrant workers were subject to in the middle east, the Nepalese advocates were able to engage the UN Special Rapporteur on Migrant Labour and through him, start to secure the release and return of some of the Nepalese labourers who were being held against their will and forced to work in the middle east. Just before those grads started, we received word that the first 15 Nepalese men had been released from Saudi Arabia as a result of the intervention of those DTP trained advocates and the UN Special Rapporteur. It was nice to hear and nice to think that we played some small part in that.

But shortly after that, we got a photo of the group that I think really brought it home: 15 young blokes – of roughly university age – who carried with them the hopes and fortunes of their families, who had faces and names and now had a future that included freedom. Many more have followed. People just like us. Paul invited me to join the board of the DTP in 2015 and I have had the privilege of playing a small part in its work since then, particularly in relation to migrant labour.

Unfair migrant labour practices that constitute modern slavery happen in Australia. They happen in our agricultural industry, our sex industry, our domestic and industrial labour force and sometimes in plain sight in our petrol stations and convenience stores. Australia has plenty of laws that make such practices illegal and punish the perpetrators, but there is still much work to do in protecting the victims of those practices in Australia, who often live in fear of repercussions from the Australian justice or immigration systems, and from the slave traders who have deceived, coerced and threatened them. But luckily, we have a motivated civil society, honest law enforcement and a receptive political class on this issue.

At a local level, Australia, while not perfect, is acting.

At an international level, it is much harder. In many places around the world, civil society is repressed, law enforcement is corrupt and the political class is not receptive. While advocacy is always important, the moralising of rich countries is used as a political tool to re-inforce the status quo. Similarly, banning or withdrawing commerce from countries or regions that have working conditions that constitute modern slavery, usually hurts the very people that we ought to be helping, by removing their only access to work or sustenance.

However we have seen that consumer pressure – market forces, if you like – can be a very powerful tool in fighting modern slavery. Modern slavery is terrible for business – Nike has struggled to remove the 1990s sweatshop stigma from its products, notwithstanding 20 years of factory audits. Nike still makes products in low cost destinations using local contractors who employ a local manual labour workforce, but despite widespread agreement that conditions at factories that make Nikes have improved significantly since the 1990s the Nike brand will be always tarred with the sweatshop stigma. It was public commercial pressure that forced Nike to review its supply chains, put in place transparent audits, consider whether the practices were acceptable and encourage those suppliers who had unacceptable practices to change or lose Nike’s business.

That is the model that the Modern Slavery legislation follows. It is what we are asking our companies to do. In NSW, companies with more than $50 million in turnover will be required to publish a modern slavery statement. At a Commonwealth level, companies with turnover of $100 million or more will be asked to do the same. You will note the difference between requiring and asking. Nevertheless, there is now an expectation, reflected in legislation, that companies will:

• review and disclose to the public the structure of their operations and supply chain;
• describe the risks of modern slavery in their operations and supply chain;
• describe the actions in place to assess and reduce these risks; and finally
• describe how the entity assesses the effectiveness of these actions.

That means, that we as consumers and citizens should have better visibility and clarity as to the source of our goods and services and the actions that the companies we buy from, are taking to monitor and improve their supply chains.

We should be under no misapprehension that we are asking business to do something that, for many of them, will be burdensome, hard and high-stakes. That’s why there are three big-law commercial lawyers on this panel. Additionally, there are many small businesses that supply to companies caught by the legislation that will now have contractual terms imposed upon them, in terms of their own supply chains. This legislation will burden them too.

For businesses that are preparing for the commencement of this legislation, there is still a fair amount of uncertainty. We currently have the perverse spectre of companies with a NSW presence and turnover of between $50 million and $100 million being prosecuted and fined for not publishing a modern slavery statement, while companies over $100 million and therefore covered by the Commonwealth regime will not be. Similarly, NSW will directly punish companies subject to its act for publishing misleading modern slavery statements, while it seems that the Commonwealth will rely on Corporations Act and competition law prohibitions that already exist for false or misleading statements. The Commonwealth Bill has not yet passed the senate and may well be amended. In NSW, Premier Berejiklian has flagged that there will be amendments to the NSW Act to harmonise parts of it, and presently the regulations needed to make the Act work have not been published. And of course, the other states and territories may well decide to regulate the issue separately again.

All of these things remain to be worked out by our politicians, advised upon by lawyers, agonised over by company officers and then tested in the market and the court of public opinion by companies whose prosperity and future depend upon getting it right. I repeat that we are asking business to do something that is burdensome, hard and high stakes.

But 70 years after the universal declaration of human rights, it is important that we, as a society, not tolerate the “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind” and that we strive for “the freedom of speech and belief and freedom from fear and want that has been proclaimed as the highest aspiration of the common people”.

To the honourable Paul Green and to all of your colleagues in parliament, congratulations on passing the NSW legislation. The legislation when it commences will give force to NSW’s and Australia’s aspiration to protect human dignity.

Thank you again to UTS Law Students Society for inviting me to speak. We have a stellar panel here this evening and I look forward to the discussion.