Update on modern slavery legislation in Australia
April 2, 2019
In the September 2018 issue of Commercial Directions, we reported on the status of modern slavery legislation in Australia.
At that time, legislation on this issue had already been passed in NSW and draft legislation was being considered by the Commonwealth Parliament.
Since our article was published, there have been some developments at the Commonwealth level.
While the NSW legislation (passed on 27 June 2018) is still to take effect, and no regulations have been released which provide clarification on the requirements of a modern slavery statement to be published under the Modern Slavery Act 2018 (NSW) (NSW Act), the Commonwealth Modern Slavery Act 2018 (Cth) (Commonwealth Act) has now been passed.
The Commonwealth Act requires entities based or operating in Australia with a consolidated annual revenue exceeding $100 million to report annually on the risks of modern slavery in their operations and supply chains.
While the NSW Act will require (when it comes into force) organisations caught by the mandatory reporting requirements to publish a modern slavery statement, the Commonwealth Act requires an entity caught by its mandatory reporting requirements to provide a copy of its modern slavery statement to the Minister to publish on the Modern Slavery Register – an online register which may be accessed by members of the public at no charge.
The Commonwealth Act
As envisaged when the Commonwealth Act was introduced as a bill for consideration, a modern slavery statement submitted under the Commonwealth Act must:
- identify the reporting entity, its structure, operations and supply chains
- describe the risks of modern slavery practices in the entity’s operations and supply chains (including in controlled entities)
- describe any actions taken by the reporting entity (and its controlled entities) to assess and address those risks, including due diligence and remediation processes, and
- assess the effectiveness of any actions taken.
While the Minister may make rules regarding the Commonwealth Act, the rules may not impose an offence or civil penalty, or provide powers of arrest, detention, entry, search or seizure. Further, once the NSW Act becomes operative, entities which would otherwise be caught by both Acts do not have to submit modern slavery statements under both, with the NSW Act stating that the requirements for organisations to prepare modern slavery statements do not apply to any entity which has obligations under a corresponding Commonwealth law.
Entities caught by the Commonwealth Act should start taking action now to comply with their obligations. Entities who will be caught when the NSW Act takes effect should ensure they are well placed to comply with the new reporting requirements as soon as the law is proclaimed.
The NSW Act is anticipated to come into effect mid-2019.
Further information / assistance regarding the issues raised in this article is available from the author, Tina van Epen, Partner, or your usual contact at Moray & Agnew.
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