2019 ALHR Business and Human Rights Report Card – Australia Score: C
In 2019 the Australian Government took some positive steps in fulfilling its obligation under Pillar 1 of the United Nations Guiding Principles on Business and Human Rights (UNGPs) [1] to protect against business-related human rights abuses. Notably, in September 2019 the Modern Slavery Business Engagement Unit, Department of Home Affairs, published the Commonwealth Modern Slavery Act 2018 Guidance for Reporting Entitles (Guidance). A further positive step is the reform undertaken by the Australian National Contact Point (AusNCP) which aims to modernise the way the AusNCP operates and to enhance transparency, accountability and the independence of the complaint handling process.
The Australian Government has also recently announced new initiatives to strengthen its response to modern slavery including a Modern Slavery Expert Advisory Group to help implement the Modern Slavery Act 2018 (Cth) (Act); the establishment of a Modern Slavery Recognition Scheme “to acknowledge those who demonstrate excellence in innovation or collaboration to improve supply chain transparency to combat modern slavery”[2]; and a public consultation paper to inform the development of Australia’s strategic framework titled “National Action Plan to Combat Modern Slavery 2020-24”[3]. ALHR notes that the Government’s proposed National Action Plan to Combat Modern Slavery 2020-24 is a strategic framework document and does not replace the National Action Plan on Business and Human Rights which Australia is yet to develop.[4]
Whilst ALHR welcomes these developments and initiatives, more work is needed to ensure that modern slavery offences are not committed or facilitated by Australian businesses, both when operating within Australia and overseas. Further, the Australian Government should require businesses to conduct due diligence to determine the human rights impacts of their environmental practices. For example, the Australian Government should require companies to assess their use of water, pollution control and waste disposal which may impact upon the right to life, right to health and the right to water.
Commonwealth Modern Slavery Act 2018 Guidance for Reporting Entitles
The aim of the Guidance is to provide businesses with information about their reporting requirement obligations to ensure compliance under the Act.[5] This is a positive development following the Act coming into force on 1 January 2019, however ALHR is of the view that the Guidance fails to provide businesses with sufficient information and guidance about the modern slavery offences defined in the Act. Further, the Guidance falls short on highlighting the penalties associated with committing modern slavery offences which would act as a deterrence for businesses.
In May 2019, prior to the Guidance being published, ALHR made submissions regarding the Modern Slavery Act 2018 Draft Guidance for Reporting Entities.[6] ALHR specifically recommended that the Guidance make reference to the modern slavery offences as defined in s 4 of the Act. This recommendation was not taken up by the Australian Government.
The Guidance defines “modern slavery” as “including eight types of serious exploitation”.[7] In defining modern slavery in this way, the Guidance omits a number of modern slavery offences including the offence of trafficking in children, the removal of organs offence, and organ trafficking offences. The Guidance fails to refer to the Criminal Code Act 1995 (Cth) (Criminal Code) and makes no mention of the term “modern slavery offences”. Rather, the Guidance uses the term “types of exploitation” in defining modern slavery, which, respectfully, is not reflective of how it is defined under the Act, and can be potentially confusing to businesses.
Further, ALHR is of the view that it is important businesses are provided with Guidance about the law and penalties pertaining to modern slavery offences, which includes information about the offences in Division 270 and 271 of the Criminal Code. This will enable businesses to be educated about the law and understand the serious consequences of committing modern slavery offences.
For the reasons above, ALHR is of the view that the Guidance should be amended to correctly define modern slavery in accordance with the Act and provide further information to businesses about penalties for committing modern slavery offences pursuant to the Criminal Code.
Reforms to the Australian National Contact Point
ALHR notes positive developments in relation to the operation of the AusNCP. The role of the AusNCP is to facilitate the adoption and implementation of the OECD Guidelines for Multinational Enterprises (Guidelines) by businesses, and it offers a platform to resolve complaints made against businesses for failing to comply with the Guidelines.
Following lobbying by civil society and the findings of the 2017 Independent Review of the AusNCP, in particular the findings of AusNCP’s limited independence, transparency and visibility amongst its stakeholders,[8] the Australian Government introduced major reforms to the AusNCP.[9]
The reforms include the appointment of an Independent Examiner; the creation of a multi-stakeholder Governance and Advisory Board, comprising of civil society, trade unions, businesses and government, to consider specific cases and offer advice to the Independent Examiner; and revised procedural guidance.
These reforms mark an important step forward in fulfilling Australia’s obligation under Pillar 3 of the UNGPs regarding effective state-based non-judicial grievance mechanism as a remedy for corporate human rights abuses.[10] To further strengthen the Government’s transparency, independence and visibility of the AusNCP, ALHR continues to call for sufficient staffing and financial resourcing of the AusNCP,[11] as well as providing clear information on the budget designated to its process.
National Action Plan on Business and Human Rights
As a priority for 2020 ALHR urges the Australian Government to introduce a National Action Plan on Business and Human Rights (NAP) to ensure the effective implementation of the UNGPs. In light of Australia’s forthcoming United Nations Universal Periodic Review (UPR), and recalling the recommendations of the 2016 UPR to adopt an Australian NAP,[12] as well as the advice given by the Government’s own Multi-Stakeholder Advisory Group on the Implementation of the UNGPs and [12] the call by civil society, it is of critical importance that Australia introduce a NAP [13] without further delay to foster best practice and promote a culture of human rights.
Modern Slavery Act 2018 (NSW)
In 2018, ALHR commended the NSW Government for being the first jurisdiction in Australia to introduce modern slavery legislation.[14] In 2019, ALHR made two submissions in respect of the MS Act, and the draft Modern Slavery Regulation 2019 (NSW) (MS Regulation). In its submissions, [15] ALHR commended the NSW Government for seeking to be a leading jurisdiction in combating modern slavery practices both domestically and internationally. Acknowledging this, ALHR also called for the strengthening of the MS Act and MS Regulation in order to ensure that it would achieve its overarching purpose, particularly, the implementation of ALHR’s key recommendation that the government’s forthcoming guidance material should clarify the reporting requirements and penalties for commercial entities with employees in NSW and an annual turnover of $50 million or more. Disappointingly, the MS Act is yet to come into force. In 2019 the MS Act was referred to the Standing Committee on Social Issues for inquiry. The ALHR Business and Human Rights Co-Chairs gave evidence at the inquiry, in particular in respect of the issue of penalties, the lower reporting threshold, the Anti-Slavery Commissioner, and organ trafficking offences. Importantly, ALHR strongly advocated that s 32 of the Human Tissue Act 1983 (NSW) not be omitted from the MS Act as recommended in the NSW Government’s submission.[16]
Endnotes:
[1] United Nations (2011) Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, UN Doc HR/PUB/11/04, available at https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
[2] Joint media release with the Hon Marise Payne MP, Hon Christian Porter MP and the Hon Anne Ruston – New initiatives to combat modern slavery ( 2019), available at https://minister.homeaffairs.gov.au/jasonwood/Pages/new-initiatives-combat-modern-slavery.aspx.
[3] See the call for submissions here: https://minister.homeaffairs.gov.au/jasonwood/Pages/new-initiatives-combat-modern-slavery.aspx.
[4] See: Towards an Australian National Action Plan on Business & Human Rights: Business Roundtables, http://www.unglobalcompact.org.au/new/wp-content/uploads/2016/08/Summary-Towards-Aust-NAP-o n-BHR-FINAL.pdf
[5] Commonwealth Modern Slavery Act 2018 Guidance for Reporting Entitles, available at https://www.homeaffairs.gov.au/criminal-justice/files/modern-slavery-reporting-entities.pdf
[6] See: ALHR submission on the Modern Slavery Act 2018 Draft Guidance for Reporting Entities, available at https://alhr.org.au/submission-modern-slavery-act-2018-draft-guidance-reporting-entities/
[7] Ibid, p8.
[8] Independent Review (2017) Australian National Contact Point under the OECD Guidelines for Multinational Enterprises, available at https://ausncp.gov.au/sites/default/files/inline-files/Final-Report.pdf.
[9] The Australian Treasury repose to the Independent Review, available at https://ausncp.gov.au/sites/default/files/inline-files/Tsy-Response-AusNCP-2017-Review-336095.pdf 37 n1, Principle 27, UNGPs.
[10] See: ALHR submission to the consultation on Australia’s OECD’s National Contact Point (2017), available at https://alhr.org.au/wp/wp-content/uploads/2017/09/ALHR-NCP-Submission-FINAL210717-signed.pdf.
[11] General Assembly (2016) Report of the Working Group on the Universal Periodic Review: Australia, UN Doc A/HRC/31/14, available at https://undocs.org/A/HRC/31/14
[12] Multi-Stakeholder Advisory Group on the Implementation of the UN Guiding Principles on Business and Human Rights (2017) Advice on the prioritisation of issues and actions to implement the UN Guiding Principles on Business and Human Rights (UNGPs), available at https://dfat.gov.au/international-relations/themes/human-rights/business/Documents/final-msag-prioriti es-paper.pdf.
[13] For ALHR’s position on an Australian NAP see ALHR (2016) Policy Paper on an Australian National Action Plan (NAP) to implement the UN Guiding Principles on Business and Human Rights (UNGPs), available at http://alhr.org.au/wp/wp-content/uploads/2016/02/NAP-Policy-Paper-16.2.pdf
[14] See: https://alhr.org.au/alhr-calls-formal-consultation-nsw-modern-slavery-supply-chain-reporting-regulations/
[15] See: https://alhr.org.au/submission-legislative-council-standing-committee-social-issues-inquiry-modern-slavery-ac t-2018-associated-matters/; https://alhr.org.au/submission-draft-modern-slavery-regulation-2019-nsw-section-24-modern-slavery-act-201 8-nsw/
[16] See: https://www.parliament.nsw.gov.au/lcdocs/submissions/64692/0001%20%20NSW%20Government.pd f