Regulating through reporting: an anticipatory assessment of the Australian Modern Slavery Acts

Abstract

ABSTRACT In 2018, two Australian Parliaments—the Parliament of Australia and the Parliament of New South Wales—passed complementary statutes requiring large entities to report annually on measures they have taken to detect and respond to modern slavery in their operations and supply chains. The statutes build upon transparency requirements in United Kingdom and Californian legislation touching slavery and human trafficking in supply chains. Indeed, the Australian statutes are part of a growing movement towards mandated social reporting requirements as an alternative to direct regulation of corporate conduct. While the mandated disclosure content is identical under the two Australian statutes for the distinct group of entities to which each applies, the statutes adopt significantly different models of regulation through mandatory reporting. As with their UK model, both statutes rely primarily on market sanctions for their efficacy. The statutes assume that consumers, investors, civil society, and the media will actively monitor business operations and relationships, and thereby reinforce business incentives to protect reputation. Experience with the UK statute, however, casts doubts on the effectiveness of these sanctions alone. This paper examines the Australian models for the purpose of assessing their likely effectiveness and proposes strengthening measures. Since the first statements are not due until 2021, assessments are anticipatory. The paper draws lessons from the models for the design of targeted non-financial reporting provisions as regulatory tools. It also reflects on the political choices underlying these statutes, which have resulted in differential regulatory treatment of those business-related human rights harms that fall within and those that lie beyond the umbrella of modern slavery.