Business & Human Rights Update: September

[At the end of each month, I will be publishing a brief update collating news, resources, and materials relevant to the business and human rights conversation in New Zealand. For this season, at least, I will give particular attention to developments around modern slavery / due diligence legislation, which is currently being considered by our Government.]

NEW ZEALAND UPDATES

New White Paper on Modern Slavery from Auckland University ?

The content is wide-ranging: it details the problem of modern slavery in New Zealand, addresses various definitional issues, and then probes New Zealand’s legal response. The heart of the paper, as I read it, is in its treatment of modern slavery or due diligence legislation. It surveys recent international trends, and makes the case for stronger human rights due diligence legislation (as increasingly found across the EU) as opposed to the transparency models exemplified in the UK and Australia’s current Modern Slavery Acts. ??

You can find a Newsroom summary here, and the full write-up here.

The mahi was done by academics associated with the recently-formed Centre for Research on Modern Slavery at the University of Auckland Business School, in partnership with LawAid International. ??

Shameless Podcast Plug

If you want a short, accessible (and even engaging?!) intro to some of these issues, check out the podcast I worked on with The Préscha Initiative. The second episode (covering the issue of modern slavery within Aotearoa) heavily features Dr Christina Stringer, one of the key authors of the White Paper.

World Vision/Trade Aid Submission on Modern Slavery Legislation

After presenting their 37,000 strong Sign For Freedom petition to Parliament in July, World Vision and Trade Aid wrote a submission to the Petition Committee. It maps out in more detail some of the legislative specifics that these NGOs (and others) are calling for. To summarise a few of their points, these organisations say the legislation should:

• Apply to the public and not for profit sector as well as businesses; to NZ entities and entities operating in NZ; and to all sized entities (including SMEs), but with a proportionate approach to the level of obligations;
• Be based on the UN Guiding Principles, which importantly means requiring mandatory due diligence (not just reporting obligations);
• Provide penalties for non-compliance (noting critiques of the UK Act as being essentially a tiger without teeth);
• Provide for an independent body such as an independent antislavery commissioner (and here the UK and NSW give us two examples to follow);
• Include a built-in regular review mechanism to allow for evaluation of the effectiveness of the law.

Will a modern slavery case go the Supreme Court?

It was big news when in March 2020 a man was convicted and sentenced to 11 years in jail (with no minimum period) for multiple counts of human trafficking and dealing in slaves. Here's some news coverage from the time.

The man has now applied for leave to appeal to the Supreme Court, after the Court of Appeal rejected his conviction appeal earlier this year in [2021] NZCA 372.

I should add that the Solicitor-General’s sentencing appeal met with more success before the Court of Appeal. Though the Court refused to adjust the overall sentence—finding it was “lenient but available” to the Sentencing Judge (at [81])—the Court diverged from the High Court in finding there was justification to impose a five-year minimum period of imprisonment. This was on grounds that “general deterrence and accountability are important considerations in offending of this kind and they apply with considerable force in this particular case” (at [85]).

Import Bans

Across the ditch, the Australian Senate recently voted in favour of a Bill that would prohibit the importation of goods produced or manufactured by forced labour. The prohibition applies globally—a significant change from an earlier bill that focused only on the importation of goods from China. Contravention would also attract penalties.

But the bill is not law yet; it still needs to go through the House of Representatives, with possible amendments to come. The text and explanatory memorandum for the bill can be found here.

From a New Zealand perspective, Prof Kris Gledhill wrote an excellent short piece in [2021] NZLJ 223 arguing that a ban on slave labour products is not only required by international law, but is readily achievable through an Order in Council under the Customs and Excise Act 2018, s 96. A shorter version of his argument can be found on The Conversation.

Also worth mentioning in this context is a fairly recent report of the Modern Slavery Policy and Evidence Centre on the effectiveness of forced labour import bans. They certainly don’t rule out import bans, but they do suggest there is a lack of clear evidence about their effectiveness. So more research work needs to be done!

INTERNATIONAL NEWS

Passing of Professor John G Ruggie

Professor John G. Ruggie (1944-2021), author of the UN Guiding Principles on Business and Human Rights, has sadly just recently passed away. I didn’t know him personally, so feel a little tentative including this. But the more I have engaged with the business and human rights field, the more I’m blown away by the impact he had, and the way he touched so many lives. My thoughts are with the many people in the field who did know him; it sounds like he was a remarkable person. The Business and Human Rights Centre has collected tributes here.

Upcoming COP26

With COP26 just around the corner, and the chilling findings of the IPCC’s sixth report still on our minds, it’s worth reflecting more deeply on the intersections of human rights and the environment. We all know they are intrinsically connected, but how can businesses best address risks to people and planet in a holistic way and how can the policy environment enable this transition? Too often these environment/sustainability and human rights conversations are siloed from each other, which makes it trickier for businesses to navigate a holistic way forward.

I found the reflections of BHR consultant, Anna Triponel, a helpful starting point here.

A collection of other news stories

Here are some other relevant and interesting news stories I came across this past month:

• Google illegally underpaid thousands of temporary workers, finds recent investigation
• Majority of venture capital’s failing on responsibility to provide human rights oversight
• Australian meat industry accused of exploiting Pacific Islander migrant workers;

.....

That's all for September. Did I miss anything? Get anything wrong? Any feedback on how I can present these updates?

Thanks for engaging!