LexisNexis Submission to the Australian Parliamentary Inquiry into Modern Slavery Joint Standing Committee on Foreign Affairs, Defence and Trade

03 December 2018

Introduction to LexisNexis & Rule of Law

LexisNexis is a leading global provider of legal and regulatory content and technology solutions that enable professionals in legal, corporate, tax, government, academic and non-profit organizations to make informed decisions and achieve better business outcomes. Through close collaboration with its customers, the company ensures organizations can leverage its solutions to reduce risk, improve productivity, increase profitability and grow their business. LexisNexis serves customers in more than 175 countries with 10,000 employees worldwide and is part of RELX Group, a world-leading provider of information and analytics for professional and business customers across industries.

Through our products and services LexisNexis passionately believes our company mission and fundamental purpose as a business is to advance the rule of law globally in order to spread the protection of the law to all people for the improvement of individual lives and society. We believe that meaningful economic and social development can only occur in societies where the rule of law exists.

A key pillar of the rule of law is the equality of all persons under the law, both in our accountability to and protection under the law. We support the introduction of a Modern Slavery Act to further strengthen the rule of law and provide the necessary protections to the disadvantaged and vulnerable members of our own society and promoting widespread accountability to a growing global issue.

Our submission comments on three sections of the Terms of Reference.

• The nature and extent of modern slavery mainly within Australia including the current status of modern slavery in Australia focusing on business accountability and advocating for a greater spread of responsibility to reject modern slavery from large organisations to smaller businesses.
• International best practice and examples employed by foreign governments and exploring the efforts of our parent company RELX to modern slavery both our domestic and global supply chains. The UK Modern Slavery Act 2015 effectiveness and opportunities to expand upon these provisions when considering modern slavery legislation in Australia.

Modern Slavery in Australia

Slavery is prohibited under Article 4 of the Universal Declaration of Human Rights, which states that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Modern definitions of slavery often cite the 1956 UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, namely that: "debt bondage, serfdom, forced marriage and the delivery of a child for the exploitation of that child are all slavery-like practices and require criminalisation and abolishment".

Modern slavery continues to take on new forms and includes practices such as human trafficking, forced labour and wage exploitation, debt bondage, forced marriage and involuntary servitude. All of these forms of slavery can be identified by “an element of ownership or control over another's life, coercion and the restriction of movement and by the fact that someone is not free to leave or to change an employer”.ⁱ

Examples of modern slavery in Australia

It is difficult to obtain accurate data measuring the prevalence of modern slavery in Australia, particularly as the gap between officially detected cases of slavery, incidents reported to NGOs, and undetected victims is unverifiable. Many instances of slavery are unreported, unprosecuted, or prosecuted as domestic violence or assault and therefore not recognised as modern slavery. Involuntary servitude, which often takes the form of forced labour and wage exploitation, is also challenging to identify, particularly in smaller businesses.

LexisNexis supports the work of local charity, Freedom Hub which is dedicated to supporting individuals and survivors of modern slavery perpetrated locally in Australia. CEO Sally Irwin observed that many instances of slavery encountered in the course of her work involved individuals brought into the country on legal visas and subsequently forced by their sponsors or local contacts to work to pay off the “debt” of coming into the country. In some cases involving sexual exploitation, victims have been forced to work under poor and dangerous conditions to pay off artificial debts ranging from $18,000 to $53,000.ⁱⁱ This brings to light an important distinction that enslaved individuals do not have to specifically be illegally trafficked into Australia. Many fall victim to slavery whilst legally residing in Australia.

Forced marriage is increasingly being recognised as a form of slavery, although it is challenging to detect in time to prevent. In the case of Kandal & Khyatt & Ors [2010] FMCAFam 508, a 17 year old girl prevented her forced marriage that was planned to take place in Lebanon by calling the Australian Federal Police. Australian girls as young as nine are known to have been sent overseas by family members to become child brides. In 2016, 69 cases of forced marriages were investigated by the Australian Federal Police, which is more than double that of the previous year.ⁱⁱⁱ 

The extent of human trafficking is also difficult to determine, although the Australian Federal Police received 119 new referrals for human trafficking between 2014 and 2015. This was an increase of 70 referrals from the previous year.^iv  

The isolated and hopeless situation of such victims was described by McInerney J as follows:

“How could they run away when they had no money, they had no passport or ticket, they entered on an illegally obtained visa, albeit legal on its face, they had limited English language, they had no friends, they were told to avoid immigration, they had come to Australia consensually to earn income and were aware of the need to work particularly hard in order to pay off a debt before they were able to earn income for themselves?”^v

Global Suppliers

Both shareholder and consumer pressure on large and global companies, as well as sustainable economic strategies, have led to an increased acceptance of corporate obligations to ensure the slave free status of their supply chains.

However, the implementation of slave free policies is not a simple task, particularly when a company’s revenue is founded on an obscure or complex international supply chain.  As Slavery Links Australia Inc stated in its June 2014 submission to the Treasury’s Competition Policy Review:^vi 

“Removing slavery from supply chains will promote wage growth in Australia’s trading partners and thereby protect Australia’s working conditions with mutual benefit for each partner’s standards of living…[However] the management of supply chains is beyond the capacity of any purchasing officer or business. There are grounds for special action by governments to lead the way, to work out what can be done and how.”

In terms of large businesses, government should partner with organisations to determine compliance standards of supply chains, establish policies to ensure market forces do not favour slave-based industry, and hold it accountable for complying with those same policies.  Government should also provide guidance and resources to investigate supply chain origins and ensure transparency in business practices.

Small Businesses

Many small and local Australian businesses across the hospitality, service and construction industries have recently come under investigation for forced and exploitive labour, which in some circumstances constitute slavery. According to the Australian Bureau of Statistics, there are nearly 800,000 employers nationwide that can be defined as a small business, having between 1 to 19 employees with less and a $5 million annual turnover. In the period between 2009 and 2010, approximately 30% of the investigations conducted by Australian Federal Police into people trafficking for labour exploitation did not relate to sexual services industry. Accordingly, current labour law investigations may only hint at the possible number of undetected cases of small businesses benefiting from unlawful, slave-based labour practices.

Even well-meaning business owners may find themselves using slaved-based labour practices without the right education or knowledge, for example by relying on third party placement agencies, as can be the case for farmers who use labour hire companies for seasonal work.  These companies will employ backpackers who need to work in agriculture for a specific time in order to obtain their second year 417 visa.   The industry is rife with student exploitation and the remote and regional aspect of the work sites adds to the victim’s isolation and vulnerability.

According to journalist Emma Reynolds “Dark industry of backpacker exploitation” and the Four Corners expose “Slaving Away”: ^vii

“Australia is one of the few countries in the world with no regulation or licensing arrangements for labour hire companies, in the face of growing pressure from the International Labour Organisation. Several commenters said better FWO [Fair Work Ombudsman] resourcing would lead to better enforcement of the rules, with the ombudsman often failing to inspect the most notorious farms or advertising when it would hold inspections, allowing rogue operators to evade detection.”

International Best Practice

Identifying international best practice employed by governments, companies, businesses and organisations to prevent modern slavery in domestic and global supply

The UN Guiding Principles on Business and Human Rights and Ten Principles of the United Nations Global Compact are the main international instruments that help guide responsible business and promote action on corporate sustainability-related issues at the global and local level. Since the enactment of the UK Modern Slavery Act 2015 (MSA), there is movement towards embedding mandatory human rights due diligence into local laws across the globe:

• France: On 21 February 2017, the French National Assembly (Assemblée nationale) adopted proposed legislation to define a corporate duty of vigilance across all sectors of business. The law is not yet in force, it has been referred to the French Constitutional Council to examine the law’s compatibility with the French Constitution. If enacted, relevant companies will be required to create and publish an annual ‘vigilance plan’, which identifies and mitigates risks to human rights and fundamental freedoms, serious bodily injury, health and the environment. Non-compliance could result in fines of up to €30m. This proposed law is limited however to large companies, namely those with over 5,000 employees residing in France or 10,000 employees working globally (if those employees are under French control).
• European Union: The EU Non-Financial Reporting Directive requires 8,000 large EU companies and financial corporations to disclose in management reports information on their policies, main risks and outcomes relating to respect for human rights.^viii
• The Netherlands: The Dutch government have focussed on the garment production and textile supply chain by signing the Agreement on a Sustainable Garment and Textile Sector together with 55 businesses and respective organisations with the aim of improving the sustainability of international production and supply chains by international responsible business conduct. The group will draw up an annual action plan, based on an investigation of risks within the production and supply chain. An independent party (based in the Social and Economic Council of the Netherlands) will assess the plans. In addition, the Dutch government will work with other countries to strengthen health and safety matters, and to expand the agreement to the level of the European Union.
• USA: Some states in the US, have introduced some laws to combat human trafficking. In 2015, a federal bill was introduced (Business Supply Chain Transparency on Trafficking and Slavery Act of 2015 (H.R. 3226 and S.1968)) which has been referred to Committee. If enacted, this law will require certain companies to disclose information describing any measures the company has taken to identify and address conditions of forced labour, slavery, human trafficking, and the worst forms of child labour within the company’s supply chains.

LexisNexis is devoted to the advancement of the rule of law around the globe, carrying out several activities to promote the rule of law. Recently, LexisNexis received the Freedom House Corporate Leadership Award for its efforts and work in promoting the rule of law.^ix One of its contributions to the rule of law includes close collaboration with the UN Global Compact to produce the Business for the rule of law Framework (Framework).^x The Framework’s purpose is to advance the rule of law by engaging responsible business to support the building / strengthening of legal frameworks and promotion of more accountable institutions that complements government action. The Framework contains practical guidance and examples of actions that businesses have taken to support the rule of law, including the provision of legal help for victims of human trafficking.^xi The Framework advocates the importance of engaging and securing the C level and executive commitment to sustainable and responsible business practices to apply a top down approach to securing slave free responsible processes and supply chains.

In 2016, LexisNexis’ parent company, RELX group published its 2016 Modern Slavery Statement,^xii in line with the requirements under the UK Modern Slavery Act which reported on its internal actions to avoid slavery and human trafficking, which includes the dissemination of the RELX Code of Ethics and Business Conduct to each employee and made publicly available and in 14 languages.^xiii

With respect to RELX’s supply chain, all suppliers are required to sign up to the RELX Supplier Code of Conduct^xiv (Code). The Code is available in different languages and copies are posted in every job site in the local language so all supplier employees can read and understand their obligations. Regular unannounced audits and inspections take place to ensure that the suppliers are complying with the Code. RELX reserves the right to terminate contracts with suppliers who do not meet the Code and this is written into all new contracts.

In addition to the Code, we run a number of schemes to assist suppliers and employees.

• A third party service runs a confidential reporting line that is available 365 days of the year. All reports
  are promptly investigated;
• We work with our suppliers to improve their practices such as assisting with proof of age record
  keeping;^xv and
• There are plans to increase supplier training with an additional training module on anti-slavery and antihuman
  trafficking.

UK Modern Slavery Act 2015

Provisions in the United Kingdom’s legislation which have proved effective in addressing modern slavery and whether similar or improved measures should be introduced in Australia.

The UK Modern Slavery Act 2015 (MSA) is a ground-breaking piece of legislation with the potential to have a significant and positive impact on addressing the issue of modern slavery.

Since enactment, there has been a significant increase in the identification of slavery victims and a corresponding increase in slavery-related prosecutions.^xvi Significantly, the legislation has created an impetus for change within corporations as businesses are becoming more aware of the issue and their responsibility to act.^xvii

Further, the MSA has stimulated government action across the globe as countries start to introduce new measures to combat modern slavery. For example, US trading laws are being reviewed to close potentially permissive loopholes and German chancellor Angela Merkel as chair of this year’s G20 has made it a priority to promote human rights due diligence.^xviii

While the MSA is a positive step in tackling the issue of modern slavery, it is a work in progress with some significant areas for opportunity.^xix

Section 54 Transparency in supply chains etc

Section 54 of the MSA is designed to enhance supply chain transparency by requiring certain companies to publish annual “slavery and human trafficking statements.” While the reporting requirements may have stimulated companies to give greater consideration to potential instances of slavery in their supply chains, the provisions could be enhanced by including mandatory reporting requirements, a central repository for the publication of statements and penalties for non-compliance.

Currently the Act does not stipulate any mandatory minimum requirements companies must meet in order to satisfy section 54. ^xx Additionally, the Act does not stipulate any monetary or criminal penalties for failure to comply with the section.^xxi

Any reporting requirements adopted in Australian legislation should impose mandatory reporting requirements with a penalty for non-compliance to promote consistency and transparency between companies.

A central, publically available, online repository of statements should be created to further enhance a culture of supply chain transparency and legislative compliance. The legislation should also confer authority on a statutory body, such as a slavery ombudsman, to enforce compliance with the new legislation.

Section 45 Defence for slavery or trafficking victims who commit an offence

One of the main criticisms of the MSA is that it does not provide adequate protection or compensation for victims.

Section 45 of the MSA provides a statutory defence to any crime perpetrated by a victim of slavery when committed as a ‘direct consequence’ of his or her trafficking. The Act does not define the term ‘direct consequence.’^xxii This inherent ambiguity potentially dampens its effectiveness. In adopting modern slavery legislation, the Australian government should address potential ambiguities to ensure protection for victims. Additionally, any new legislation should include specific civil causes of action for victims of slavery, servitude, forced labour and human trafficking.

The MSA in section 2 uses the word ‘travel’ within the definitions of Human trafficking. This differs from the internationally recognised terminology thus creating potential difficulty convicting cases where movement is harder to prove.^xxiii Any Australian legislation should address this ambiguity by conforming to the definition in the United Nations Convention against Transnational Organized Crime and the Protocols Thereto.^xxiv

The offence provisions within the MSA do not explicitly focus on the particular vulnerabilities of children. The Australian government should consider creating separate offences focusing on child exploitation in order to ensure the most vulnerable members of society are adequately protected. The legislation should include a definition of child exploitation that covers all forms of abuse including sexual exploitation, forced labour, domestic servitude and forced criminality.^xxv

The Australian government should also include provisions for the adequate training of frontline services, such as police officers and healthcare providers, so they can correctly identify and address occurrences of slavery.^xxvi In the UK it has been found that front line personnel do not have the adequate skills in properly responding to instances of contact with victims of modern slavery. In the UK, a study found that approximately 1 in 8 National Health Service staff members have treated victims of human trafficking for a range of issues including mental health and only a fraction felt equipped to respond.^xxvii

Extraterritorial reach

The MSA currently lacks extraterritorial jurisdiction and only covers offences that occur within the UK. Thus a company has latitude to engage in forced labour or hold a person in slavery abroad without committing any offence under the Act. The Australian government should enact provisions that have a wider extraterritorial reach so that it can prosecute offences committed by Australian natural or juridical persons regardless of where the offence was committed.

In summary, the Australian government has the opportunity to introduce laws that build on the UK’s provisions and address the limitations in relation to:

• Supply chain transparency;
• Mandatory due diligence requirements and civil remedies for supply chain violations;
• Victim protection; and
• Extraterritorial reach.

The MSA applies to companies that generate revenue of over £36m. As stated above, LexisNexis submits that the threshold should be critically reviewed.

Conclusion:

According to founder and CEO of the International Justice Mission, Gary A Haugen, there is a best estimate of 27 million people enslaved in the world today which is more than in any time in history^xxviii. Modern slavery is a global epidemic that many Australians believe happens only in the developing world.

Through our Rule of Law efforts and collaboration with organisations such as The Freedom Hub, LexisNexis recognizes the critical need to protect all persons from modern slavery in Australia and whole heartedly supports the introduction of an Australian Modern Slavery Act.

We advocate for legislation to hold all businesses, regardless of size and across a number of industries, accountable to their responsibilities to uphold the basic human rights of those in their employ.

We call for the introduction of a specific branch or ombudsmen to ensure specialization, education and support to the Australian government and public to implement, adhere and monitor the impact of Modern Slavery legislation. And we highlight the need for greater victim and survivor protection under the proposed legislation to ensure the most vulnerable members of our society are able to be protected under the rule of law.

Contact:
Veronica Rios
Executive Manager Content & Rule of Law
LexisNexis Asia Pacific

ⁱ UNESCO, Social and Human Sciences: Slavery (http://www.unesco.org/new/en/social-and-humansciences/themes/international-migration/glossary/slavery/)
ⁱⁱ Anti-People Trafficking Interdepartmental Committee, TRAFFICKING IN PERSONS: The Australian
Government Response 1 July 2010 – 30 June 2011
(https://www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Documents/ReportoftheAntiPeopleTraffickingInter
departmentalCommitteeJuly10toJune11.pdf)
ⁱⁱⁱ SBS News, Number of Australian ‘child bride’ cases double in a year’, 2016, http://www.sbs.com.au/news/article/2016/09/20/number-australian-child-bride-cases-doubles-year
^iv Ibid. n ii, at p24.
^v R v Wei Tang [2006] VCC 637 at [6]
^vi Slavery Links Australia Inc, Submission to the Treasury’s Competition Policy Review (June 2014)
http://competitionpolicyreview.gov.au/files/2014/06/Slavery Links.pdf
^vii Four Corners, Slaving Away: Dark industry of backpacker exploitation, http://www.news.com.au/finance/work/at-work/dark-industry-of-backpacker-exploitation/newsstory/2ca6dc87f2f6f6b342f3678460c802c6
^viii International Trade Union Confederation, Closing the loopholes – How legislators can build on the UK Modern Slavery Act, http://www.ituc-csi.org/IMG/pdf/uk modern slavery act.pdf
^ix Freedom House, Freedom House Announces Six Human Rights Awards (2017), https://freedomhouse.org/article/freedom-house-announces-winners-six-human-rights-awards
^x United Nations Global Compact, Business for the Rule of Law Framework (2015) https://www.unglobalcompact.org/docs/issues doc/rule of law/B4ROL Framework.pdf
^xi Ibid. n5, at p24
^xii RELX, Modern Slavery Statement (2016) http://www.relx.com/Documents/modern-slavery-statement.pdf
^xiii RELX, Code of Ethics and Business Conduct (2015), http://www.relx.com/investorcentre/corporatestructure/Documents/code-of-ethics/code-of-ethics-english.pdf 
^xiv RELX, Supplier Code of Conduct (1 January 2017)
^xv RELX, Protecting Human Rights Modern Slavery Act Statement (February 2017)
^xvi In 2014 – 2015 there was a 40% increase in identification of slavery victims and a 19% increase in slaveryrelated prosecutions. See: https://www.gov.uk/government/uploads/system/uploads/attachment data/file/542047/2016 07 31 Haughey Re view of Modern Slavery Act - final 1.0.pdf , at p 3.
^xviii Ibid. n xi
^xix UK Government, The Modern Slavery Act Review, https://www.gov.uk/government/uploads/system/uploads/attachment data/file/542047/2016 07 31 Haughey Re view of Modern Slavery Act - final 1.0.pdf (Prime Minister Theresa May commissioned an independent review into the Act and its effectiveness with the intention of improving on flaws.)
^xx Modern Slavery Act 2016 (UK), s 54 (5) (a)-(f)
^xxi Ibid. n xiv
^xxii The Anti-Trafficking Monitoring Group, Class Acts Examining modern slavery legislation across the UK, http://www.ecpat.org.uk/sites/default/files/atmg class acts report web final.pdf
^xxiii Ibid. n xiv, at s 2 and n xvi at p 6
^xxiv United Nations Office on Drugs and Crime, United Nations Convention Against Transnational Organized
Crime and the Protocols Thereto,
https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf, Article 3
(a), at p 42
^xxv Ibid. n xvi at p 27 
^xxvi Anti-Slavery Commissioner, Annual Report 2016,
http://www.antislaverycommissioner.co.uk/media/1097/annual-report-2016.pdf 
^xxvii King’s College London, Few NHS staff feel able to deal with victims of human trafficking – report,
http://www.kcl.ac.uk/ioppn/news/records/2015/August/FewNHSstafffeelabletodealwithvictimsofhumantrafficking%
E2%80%93report.aspx
^xxviii Haugen, Gary A. & Buttros, Victor, 2014, The Locus Effect: Why the End of Poverty Requires the End of
Violence, Oxford University Press (UK)