Women, work and global supply chains: the gender-blind nature of Australia’s modern slavery regulatory regime

ABSTRACT

In 2018, the Parliament of Australia enacted the Modern Slavery Act 2018 (Cth), which—despite its misleading and expansive title—primarily requires medium- and large-scale businesses to undertake due diligence to identify the risks of exploitation in their supply chains. This article argues that, despite its attempt to enhance the accountability of businesses, the Act is “gender blind”, as it fails to acknowledge and address the divergent experiences of men and women with supply chains—either as workers or affected stakeholders. The shortcomings in the Act can be traced back to the limitations of the Inquiry of the Joint Standing Committee on Foreign Affairs, Defence and Trade, which called for submissions from interested stakeholders in the lead-up to the Act’s adoption. Although that inquiry received submissions from a broad cross-section of individuals and organisations, including civil society, it offered legislators few potential solutions for incorporating a gender perspective into the law. The lack of gender-responsive, good practice modern slavery laws in other jurisdictions further undermined the legislative drafting process. As a result, the Act largely disregards systemic gender inequality, and thereby fails to effectively prevent Australian companies from perpetuating or benefiting from it. At a minimum, the Act should have required companies to conduct gender-sensitive due diligence and collect gender-disaggregated data. If it had done so, the Act could have been regarded as a “gender-responsive” law that helps to address the gendered implications of global modern slavery.

KEYWORDS:

• modern slavery
• supply chains
• women workers
• parliamentary inquiry
• gender-disaggregated data
• gender-sensitive due diligence

Acknowledgement

I am grateful to the participants in the Innovate Rights Academic Workshop for their useful insights on my research and to the Australian Journal of Human Rights’ external reviewers for their feedback. I owe particular thanks to José-Miguel Bello y Villarino for his invaluable feedback on earlier drafts of this paper. However, any remaining errors or omissions are my own.

Notes

1. To date, NSW is the only Australian state to introduce such a law. However, the NSW Act is yet to come into force and is currently the subject of another Parliamentary Inquiry, in light of alleged inconsistencies with the Commonwealth Act (see NSW Legislative Council 2019).

2. Two of the submissions were confidential and could not be accessed as a result.

3. This included a school that raises funds for an orphanage in Cambodia and the UK Home Office.

4. Consider, for example, the 1926 Convention to Suppress the Slave Trade and Slavery; the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; and the 2000 United Nations Trafficking Protocol.

5. For instance, it increased the penalties for forced marriage from four years’ imprisonment to seven for a base offence and from seven years’ imprisonment to nine for an aggravated offence. The amendments also expanded the definition of forced marriage to include circumstances in which a person does not freely and fully consent to a marriage because he or she is incapable of understanding the nature and effect of a marriage ceremony for reasons such as age or mental capacity. Under the amended definition, a person under 16 years of age is presumed to be incapable of understanding the nature and effect of a marriage ceremony.

6. As noted earlier, 223 out of the 225 are publicly available. Two submissions by individuals remain anonymous and confidential.

7. Some of the recommendations made and principles set out in this paper also acknowledge the relevance of discrimination on the basis of sexual orientation and gender identity.

Additional information

Notes on contributors

Ramona Vijeyarasa

Dr Vijeyarasa is a leading gender equality scholar whose research has helped shape thinking in the areas of migration and trafficking, human rights, and international women’s rights. She is a Chancellor’s Post-Doctoral Research Fellow in the Faculty of Law at the University of Technology Sydney (UTS). She is the author of Sex, Slavery and the Trafficked Woman: Myths and Misconceptions about Trafficking and Its Victims (2015) and more than 20 other peer-reviewed publications on law and gender issues. Before joining UTS, she held several positions related to women’s rights in international organisations, non-profits and international NGOs. Dr Vijeyarasa’s international human rights activism has included advancing anti-trafficking victim reintegration networks in Vietnam and Ukraine; filing briefs before the European Court of Human Rights, the Supreme Court of Moldova, and the Supreme Court of the Philippines; making submissions to UN treaty bodies; and overseeing research and programming on women and youth in urban spaces. This rich experience informs her impact-driven approach to research, which creates sound methodologies to deliver tangible societal change and improve lives through the law. She presented an earlier version of this paper at UNSW’s Innovate Rights: New Thinking on Business and Human Rights Academic Workshop on May 14, 2019 in Sydney, Australia.