The Modern Slavery Act 2018 (NSW) (the NSW Act) was given Royal Assent on 29 November 2021 and will take effect on 1 January 2022. The NSW Act has been significantly constricted since the Act was first passed in 2018, in an attempt to preserve its purpose, noting that it is to operate alongside the Federal Government’s Modern Slavery Act 2018 (Cth) (the Federal Act).
The practical effect of the NSW Act, as amended, is that only NSW Government agencies and those private corporations which deal with NSW Government agencies will be affected by the legislation.
The NSW Act’s history
The NSW Act was initially passed by Parliament on 21 June 2018. Shortly afterwards, the state Government indefinitely deferred its commencement to avoid inconsistencies with the Federal Act , which passed just three weeks after the NSW Act was introduced.
The NSW Government’s Legislative Council Standing Committee on Social Issues released a report on the NSW Act in March 2020. In response to the Committee’s findings, the NSW Government introduced the Modern Slavery Amendment Bill 2021 (the Bill) to remedy the NSW Act’s deficiencies. We have summarised the material changes below.
Reporting
The Bill, which passed on 19 November, removed the supply chain reporting obligations and non-compliance penalties for private entities from the NSW Act. Previously, businesses with an annual turnover of more than $50 million were required to prepare a modern slavery report. Now, private entities will only be obligated to report under the Federal regime, which affects corporations with a consolidated revenue of over $100 million annually.
NSW government agencies will, however, be required to submit modern slavery statements, which will be annually published on an openly accessible website, with written notice given to the NSW Anti-Slavery Commissioner. Those required to report include: Government sector agencies, NSW government agencies, councils, state-owned corporations, and any public/local authority that exercises public functions.
Risk order
Importantly, the Bill has also removed the ability of courts to make “risk orders”. These would have prevented individuals convicted of offences under the NSW Act to engage in conduct which might result in further slavery. These orders were largely criticised for fitting poorly alongside pre-existing NSW laws.
Recognition payments
The Bill amends the Victims’ Rights and Support Act 2013 (NSW) to make various references to “victims of modern slavery”. This allows for the provision of recognition payments and counselling to victims of modern slavery. Notably, to be eligible for the payments, the Bill requires that the offending acts must have occurred in NSW.
Anti-Slavery Commissioner
The Bill has reaffirmed that an Anti-Slavery Commissioner will be integral to NSW’s modern slavery regime. The office of the Anti-Slavery Commissioner will:
- monitor the State government’s policies;
- issue codes of practice to avoid modern slavery; and
- operate a register that identifies agencies which do not comply with the codes of practice.
As of the date of publication of this article, no one has been appointed to the role.
Audits
The NSW Act will allow the Auditor-General to conduct audits of “any or all particular activities of a government agency” to determine whether the government agency is ensuring that the goods and services it procures are not the product of modern slavery.
Significantly this means that other than for NSW Governmental agencies, only private corporations which deal with the NSW Government will be affected by the introduction of the NSW Act. We anticipate, however, that those private corporations that do business with the NSW Government will be subject to a stringent due diligence process in order that NSW government agencies may discharge their own responsibilities under the NSW Act.
Next steps?
If your business provides any goods and services to NSW government agencies, please contact Bird & Bird to discuss how the commencement of the Modern Slavery Act 2018 (NSW) might affect your business from 1 January 2022.
For further information, please contact:
Kristy Peacock-Smith, Partner, Bird & Bird
