With the Modern Slavery Bill 2018 passing the Senate recently, we thought it timely to revisit the proposed legislation, and discuss Federal government procurement compliance.

Modern slavery is a term used to cover a range of exploitative practices including forced labour, wage exploitation, debt bondage and human trafficking. In 2016, it was estimated that 40.3 million people globally experienced modern slavery daily, including 24.9 million in forced labour. Alarmingly, one in four victims of modern slavery were children, with women and girls disproportionately affected by forced labour.

According to the Global Slavery Index 2018, there were an estimated 15,000 people living in conditions of modern slavery in Australia in 2016. Migrants, especially individuals from India, the Philippines, Thailand and Afghanistan were particularly vulnerable, although Australian citizens have also reported exploitation. In terms of forced labour specifically, wage abuse and exploitation were found in industries including agriculture, construction, domestic work, meat processing, cleaning, hospitality and food services. It should be noted, however, that the scale of forced labour in Australia remains difficult to determine.

Modern Slavery Bill 2018

On 28 June 2018, the Australian government introduced the Modern Slavery Bill 2018 to parliament. Guided by the UK’s Modern Slavery Act 2015, the proposed legislation would require Australian entities and foreign entities operating in Australia with an annual consolidated revenue of $100m or more to publish yearly statements outlining how modern slavery in their supply chains and operations was being addressed.

Modern slavery is often “hidden in plain sight” according to the Human Rights Commission, and, said Commission President, Rosalind Croucher earlier this year, “require[s] effective partnerships across public and private sectors to effectively eliminate risks. 

“Addressing company reporting requirements is a good first step. We also need to address Australian criminal laws, labour laws and other laws to counter modern slavery,” Croucher concluded. 

According to Patricia Carrier, Project Manager for the Modern Slavery Registry, “the draft legislation goes beyond the UK Modern Slavery Act which will result in higher compliance and more meaningful reporting.”

For example, the Bill’s mandatory reporting criteria endeavours to:

provide certainty for business and ensure high-quality Modern Slavery Statements. These criteria will require reporting entities to provide information about: their structure, operations and supply chains; potential modern slavery risks; actions taken to assess and address these risks; and how they assess the effectiveness of their actions.

There will also be:

a Government-run, public central repository to ensure all Modern Slavery Statements are easily accessible. Reporting entities will need to publish Modern Slavery Statements within six months from the end of their financial year.

Some of the suggested amendments to the Bill

Explanations for failure to comply include:

• The Minister may request an explanation from an entity about the entity’s failure to comply with a requirement in relation to modern slavery statements, and may also request that the entity undertake remedial action in relation to that requirement. If the entity fails to comply with the request, the Minister may publish information about the failure to comply on the register or elsewhere, including the identity of the entity.

• Subsection (1): If the Minister is satisfied that a reporting entity has failed to comply with a requirement in relation to modern slavery statements, the Minister can give a written request to the entity to provide an explanation for the failure to comply and or undertake remedial action in relation to that requirement.

• If the Minister is satisfied that a reporting entity has failed to comply with a request under subsection (1), the Minister can publish the name of the entity and information about the failure to comply on the register or in any other way the Minister believes is appropriate. To review the Minister’s decision in this instance, the entity may make an application to the Administration Appeals Tribunal.

Three-year review amendments include:

Under the Three-year review, the absence of a penalty for non-compliance, a feature in both the UK (injunction) and the recently passed NSW legislation ($1.1 million fine), has been addressed with the Senate recommending the inclusion of the following clause:

Whether additional measures to improve compliance with this Act and any rules are necessary or desirable, such as civil penalties for failure to comply, and if so, when…

You can read the suggested amendments in full here.

Federal Government procurement

Like the NSW legislation, public sector reporting has been included in the draft Bill, with the Federal Government required to publish a consolidated statement annually on behalf of the Australian Public Service. According to the Modern Slavery Reporting Requirement fact sheet, “Commonwealth corporations and Commonwealth companies will publish separate Modern Slavery Statements if they meet the revenue threshold.”

‘This underlines the government’s commitment to leading by example in the fight against modern slavery,” Alex Hawke, the Assistant Minister for Home Affairs, said, an example that will hopefully engender public trust and strengthen Commonwealth procurement practices.

The Modern Slavery Bill 2018 passed the Senate on 28 November, 2018. Next step is the House of Representatives. 

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Resources

• Defining and measuring modern slavery, Parliament of Australia

• Fact Sheet: Modern Slavery Reporting Requirement

• Forced labour, modern slavery and human trafficking, ILO

• Global Slavery Index and Country Data (Australia)

• Modern Slavery Bill 2018, Parliament of Australia

• Modern Slavery Bill 2018, Documents and transcripts, Parliament of Australia

• Modern slavery reporting rules will cover APS procurement, The Mandarin

• Suggested Senate amendments to the Modern Slavery Bill 2018

• Tackling Modern Slavery in Supply Chains, CIPS guide

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IMAGE: Used under licence from shutterstock.com

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A participant in the UN Global Compact, CourtHeath seeks to raise awareness about the sustainable development goals and the principles of the Global Compact with business and government organisations in Victoria. The elimination of all forms of forced and compulsory labour and the effective abolition of child labour are two of the ten principles of the Global Compact. The Global Compact repudiates slavery and child labour internationally.

Written by Wendy Cavenett