After much discussion, the Australian government has followed the examples set by the NSW government and overseas countries.
On 29 November 2018, the Modern Slavery Act 2018 (Cth) (Commonwealth Act) was passed by Parliament. It will join the Modern Slavery Act 2018 (NSW) (NSW Act) and impose reporting obligations on large businesses.
Both Acts will come into effect when the respective governments announce it in their gazettes in the near future. The first reporting obligation will likely kick in on 30 June 2020.
It is hoped that such anti-slavery laws will make a dent into the staggering number of people that are subjected to modern slavery. The Global Slavery Index estimates that this is 40.3 million people globally, 25 million in the Asia-Pacific region, and 15,000 in Australia. Such exploitation is estimated to be produce $150 billion per year for the global private economy.
Who is affected by the Commonwealth Act?
- are based or carry on business in Australia, and
- have a revenue of over $100 million for a financial year,
are affected by the Commonwealth Act.
This includes not just individuals and companies, but also partnerships, trusts, and superannuation funds. Not-for-profits and foreign companies should be aware that the Act will apply to them if they satisfy conditions (1) and (2) above. All Australian-based principals and contractors should check their balance books. Any entity that might be affected by the Act should seek advice.
In total, there are approximately 3000 large companies and entities who will now be required to lift the lid on how their supply chains create risks of modern slavery.
In a world first, the Australian government itself will also be subject to the same reporting requirements as the private sector. This includes not just the Australian Government, but also Corporate Commonwealth entities, and Commonwealth companies. The Act does not capture state governments.
Any entity may also volunteer to submit a report on its activities.
However, even if an entity does not fall under (1) or (2) above, it may be affected by the NSW Act (see below).
What do entities have to do?
Entities must produce a signed Modern Slavery Statement. This statement must:
- describe the structure, operations and supply chains of the reporting entity;
- describe the risks of modern slavery practices in these operations and supply chains;
- this includes the operations and supply chains of any entities that the reporting entity controls (e.g. a subsidiary company)
- describe actions taken by the entity to assess and address these risks (including due diligence and remediation processes);
- this will include policies and processes to manage the risks and training for staff about modern slavery
- make an assessment of the effectiveness of these actions;
- describe any process of consultation that a reporting entity has with entities that it controls, and
- include any other relevant information.
The statement must be given to the Minister for Home Affairs within 6 months of the end of the reporting period. As mentioned, this will likely be within 6 months of 30 June 2020.
These reports will be stored by the Minister for Home Affairs, in a register that will be called the Modern Slavery Statements Register. The Register will be made accessible to anyone for free on the internet.
The Commonwealth Act imposes no obligations on businesses to actually take steps in response to the risks of slavery in supply chains. It merely requires reporting on them.
Legally trained readers will be thinking that these obligations can only apply to natural persons or corporate entities. This is why, in the case of non-persons like partnerships, the obligations will be imposed instead on a responsible member of the entity. This will fall on persons such as a trustee, or an administrator.
What if the entity doesn’t report?
In short, nothing.
In contrast to the NSW Act (below), the Commonwealth Act does not provide for any penalty if an entity does not produce a report.
However, this might change in the near future as the Commonwealth Act takes effect and entities develop processes for compliance. The federal Labor Party has indicated that it supports penalties for an entity’s failure to report. Thus, depending on the outcome of 2019 elections and other factors, this situation may change.
What about state laws?
Entities should be aware that they may be subject to separate obligations imposed on them by state governments.
For instance, in mid-2018 the NSW government passed the NSW Act which requires entities to report to it about risks to modern slavery. In fact, these obligations are in some cases much more stringent.
Like its Commonwealth counterpart, it is not yet in force.
When it does come into effect, the NSW Act will apply to organisations that:
- supply goods and services for profit or gain, and
- have employees in NSW, and
- have a turnover of $50 million or more for the financial year.
Certain NSW government agencies are affected, as are non-corporate entities such as partnerships. Not-for-profits however will not need to report to the NSW government.
To satisfy the NSW Act, an entity’s modern slavery statement must outline steps taken to ensure that an organisation’s goods and services are not the product of supply chains in which modern slavery is taking place.
In contrast to the Commonwealth Act, the NSW Act imposes hefty penalties for not producing a statement to the NSW government, or for providing false or misleading information in the statement. The maximum penalty is $1.1 million in either case.
The NSW Act also allows courts to make modern slavery risk orders against a person. Such orders may prohibit certain actions, such as contacting any victim of the modern slavery offence.
Large businesses and not-for-profits now have legal obligations to examine their goods and services supply chains. They must inform the public about their findings and what they are doing to address them. In some cases, they will be reporting to multiple governments so they should seek advice as soon as possible on the requirements that apply to them.
As the Assistant Minister for Home Affairs states, it is hoped that these Acts will drive a ‘race to the top’ in which businesses compete for the favour of market funders, investors and consumers by improving their supply chain ethics.
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