01 Aug 2018

CU LAB: Modern slavery laws: who's covered and what happens now

NSW now has modern slavery laws, and the Commonwealth will soon have them too. Lauree Coci explains who's caught by them, what they'll need to do, and how the two regimes will work together.

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It's a very exciting time for our anti-slavery movement in Australia.  In June this year we had the Commonwealth Modern Slavery Bill tabled before Parliament and that came shortly after New South Wales actually passed its own Modern Slavery Act.  So what this means is that organisations are now required to comply with anti-slavery measures that are set out in this piece of Legislation.  Effectively companies will need to file a Modern Slavery Statement which talks about the steps that they're taking to combat slavery in their business operations and their supply chains.

Who will the legislation apply to?

The Commonwealth legislation is going to apply to those organisations that are operating in Australia or carrying on business in Australia so that  includes foreign entities, it also includes commercial organisations, non for profit organisations so charities, universities and government agencies that have an annual global turnover exceeding $100m.  Now the catchment under the New South Wales Act is slightly different, the New South Wales Act applies to commercial organisations not including Government entities that have a global annual turnover of exceeding $50m and that have New South Wales employees.

What are the reporting requirements?

Organisations caught under both the New South Wales Act and the Commonwealth Bill will be required to file a Modern Slavery Statement or to publish a Modern Slavery Statement.  The Statement must describe detail about the entities organisation structure and supply chains, the risks of modern slavery occurring in its business operations but also its supply chains including that of its subsidiary companies.  It will also need to identify what steps the company or the organisation is taking to combat this issue now that might include due diligence processes, risk assessment processes, remediation and any kind of corrective actions that have been taken and then also a bit of detail around how successful those initiatives have been.  Once you've prepared your Modern Slavery Statement you will need to file it with or register it with in terms of the Commonwealth Bill a responsible Minister and in terms of the New South Wales Act the New South Wales Anti-Slavery Commissioner.  Relevantly under the Commonwealth Bill the Minister will have the discretion to refuse to accept a Modern Slavery Statement if your Statement doesn't comply with the criteria set out in the Legislation.

What are the consequences of non-compliance?

If you don't comply with this Legislation then under the New South Wales Act you will face penalties of up to $1.1m for not filing a Modern Slavery Statement or for filing a Statement that contains misleading or false information in it.  In terms of the Commonwealth Bill it's not currently proposed that there will be penalties faced by companies for non-compliance but where companies need to be concerned is if you don't file a Statement it's possible NGOs or journalists will get access to that fact by simply applying to the responsible Minister to get copies of the Register, the Modern Slavery Register that will be kept by that Minister.  So it's quite possible that you will face reputational or brand damage or it could be that your organisation and its directors and senior leadership team could face perhaps breaches of directors' duties if your organisation is not complying with this law and also the high standards of ethical behaviour.