Australian Modern Slavery Legislation Comparison of the NSW

Australian Modern Slavery Legislation Comparison of the NSW and Cth Acts Luke Geary, Partner, Not-for-Profit, Mills Oakley Melbourne | Sydney | Brisbane | Canberra | Perth 1

Overview – NSW Legislation § § The Modern Slavery Bill was passed by both houses of the NSW Parliament on 21 June 2018 and assented to on 27 June 2018 but is still awaiting commencement Commercial organisations with annual turnover >$50 m are required to report on actions taken to eliminate slavery from supply chains Fines for not-reporting or providing false or misleading information Regulation to determine mandatory reporting requirements (e. g. supply chain structure and risks, due diligence, training) MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 2

Overview – Cth Legislation § In June 2018 the Commonwealth Government introduced the Modern Slavery Bill into the Federal Parliament § On 29 November 2018 the Modern Slavery Bill was passed by both houses. § The Modern Slavery Act 2018 received Royal Assent on 10 December 2018 and commenced on 1 January 2019. § Organisations with an annual turnover of more than $100 million will be subject to reporting requirements. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 3

Overview – Cth Legislation § First reporting period is the reporting entity’s first financial year which starts after commencement of the Act (i. e. 2019 -2020 financial year). § First Modern Slavery reports are due within 6 months of the end of the reporting entity’s reporting period (i. e. by end of 2020 calendar year for entities with a 30 June FY). § A non-reporting entity may voluntarily comply with the reporting requirements – s. 6. Modern Slavery Statements will be published on the Modern Slavery Register, freely accessible on internet – ss. 18, 19. § MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 4

Overview – Cth Legislation § § Consequences for non-compliance with reporting requirements include a request by the Minister for an explanation and/or remedial action – s. 16 A(1). Information can be published about a reporting entity’s failure to comply with a request for explanation and/or remedial action – s. 16 A(2). Annual report to Parliament about the implementation of the Act, including about compliance by entities and identifying best practice modern slavery reporting –s. 23 A. Review after 3 years, including whether additional measures to improve compliance are necessary, such as civil penalties – s. 24. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 5

Comparative Summary Commencement Reporting Threshold Federal New South Wales 1 January 2019 $100 million Awaiting proclamation $50 million Reporting Criteria Mandatory criteria including structure, operations and supply chains of reporting entity, risks in supply chain, actions taken and due diligence etc. Criteria required under regulation, which may require organisations structure, business and supply chains, due diligence processes and risks in supply chain etc. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 6

Comparative Summary Federal New South Wales Can non. Yes obligated entities report? Exempt Reporting Below $ threshold Bodies Reporting for Foreign Entities? Yes Generally no. However, Minister has power to specify criteria Below $ threshold; those that do not supply for profit/gain; where entity already subject to reporting by Commonwealth or other State Yes MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 7

Comparative Summary Federal New South Wales Meaning of Entity Individual, body corporate, body politic, partnership, unincorporated association, trust, super fund or deposit fund Meaning of Not mentioned in the Act Organisation Not mentioned in the Act Any corporation or unincorporated partnership or association MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 8

Comparative Summary Federal New South Wales Public Sector Reporting Yes Required to take “reasonable steps” Overseeing Body Business Engagement Unit in the Department of Home Affairs Yes, Minister responsible for Modern Slavery Register Independent Anti-Slavery Commissioner Public pressure for accountability at this stage 10, 000 penalty units Publication of Statement Penalties Published as prescribed by regulations MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 9

Comparative Summary Federal New South Wales Review Every 3 years Commissioner has the power to recommend changes in annual reports Offences Relevant Acts, Protocols, conventions: • Criminal Code Act 1995 (Cth) • Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children • ILO Convention Relevant Acts: • Crimes Act 1900 (NSW) • Human Tissue Act 1983 (NSW) • Criminal Code Act 1995 (Cth) • For more detailed information please visit: https: //www. millsoakley. com. au/thinking/australiabecomes-one-of-the-first-nations-to-take-on-modern-slavery/ MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 10

Extracts – Modern Slavery Act 2018 (Cth) modern slavery - s. 4 means conduct which would constitute: (a) an offence under Division 270 or 271 of the Criminal Code; or (b) an offence under either of those Divisions if the conduct took place in Australia; or (c) trafficking in persons, as defined in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, done at New York on 15 November 2000 ([2005] ATS 27); or (d) the worst forms of child labour, as defined in Article 3 of the 25 ILO Convention (No. 182) concerning the Prohibition and 26 Immediate Action for the Elimination of the Worst Forms of Child Labour, done at Geneva on 17 June 1999 ([2007] ATS 28 38). MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 11

Examples – Types of offences caught by the definition of “modern slavery” Offences against the Crimes Act 1900 (NSW)/Commonwealth Criminal Code: § Causing sexual servitude; § Conduct of business involving sexual servitude; § Children not to be used for production of child abuse material; § Production, dissemination or possession of child abuse material; § Administering digital platform used to deal with child abuse material; § Slavery and slavery-like offences; § Forced labour offences; § Deceptive recruiting for labour or services; § Forced marriage offences; § Offence of trafficking in persons. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 12

Extracts – Modern Slavery Act 2018 (Cth) Reporting Entity - s. 5(1) (a) an entity with a consolidated revenue of at least $100 million for the reporting period, if the entity: (i) is an Australian entity at any time in that reporting period; or (ii) carries on business in Australia at any time in that reporting period; (b) the Commonwealth; (c) a corporate Commonwealth entity, or a Commonwealth company with a revenue of at least $100 million for the reporting period. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 13

Extracts – Modern Slavery Act 2018 (Cth) Modern Slavery Statement – ss. 12 to 15 Means a statement prepared for the purposes of the reporting entity which: (a) complies with the mandatory reporting requirements (s. 16); (b) is in the approved form, approved by the Minister; (c) is approved by the relevant representative of a reporting entity; and (d) is given to the Minister within 6 months of the end of the reporting period for the entity. § MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 14

Extracts – Modern Slavery Act 2018 (Cth) Mandatory criteria for modern slavery statements – s. 16 (1) In its modern slavery statement , the reporting entity must, in relation to each reporting entity covered by the statement (including entities the reporting entity owns or controls): (a) identify the reporting entity; and (b) describe its structure, operations and supply chains; and (c) describe the risks of modern slavery practices in its operations and supply chains; and (d) describe the actions taken by it to assess and address those risks, including due diligence and remediation processes; (may include the development of policies and processes to address modern slavery risks, and providing training for staff about modern slavery); and (e) (f) (g) describe how it assesses the effectiveness of such actions; and describe the process of consultation with: (i) any entities it owns or controls; and (ii) in the case of a reporting entity covered by a statement under section 14—the entity giving the statement; and include any other information that it, or the entity giving the statement, considers relevant. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 15

Extracts – Modern Slavery Act 2018 (Cth) Explanations for failure to comply etc. – s. 16 A (1) If the Minister is reasonably satisfied that an entity has failed to comply with a requirement to give a modern slavery statement, the Minister may give a written request to the entity to do either or both of the following: (a) provide an explanation for the failure to comply within a specified period of at least 28 days; (b) undertake specified remedial action …within a specified period of at least 28 days. …. (4) If the Minister is reasonably satisfied that an entity has failed to comply with a request under subsection (1), the Minister may publish the following information on the register, or in any other way the Minister considers appropriate: (a) the identity of the entity; (b) if the request relates to the entity’s failure to comply with subsection 14(2) (joint modern slavery statements) in relation to a modern slavery statement—the identities of the reporting entities covered by the statement; (c) the date the request was given, and details of any extension given …. (d) details of the explanation or remedial action requested, and the period for compliance; (e) the reasons why the Minister is satisfied that the entity has failed to comply with the request. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 16

Extracts – Modern Slavery Act 2018 (Cth) S. 16 A(5) An entity fails to comply with a request if, and only if: (a) no explanation is given in response to the request within the period specified in the request under paragraph (1)(a) (as extended, if at all, under subsection (2)); or (b) no remedial action is undertaken in response to the request within the period specified in the request under paragraph (1)(b) (as extended, if at all, under subsection (2)). MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 17

Modern Slavery Act 2018 (Cth) • For more detailed information please visit: https: //www. millsoakley. com. au/thinking/australiabecomes-one-of-the-first-nations-to-take-on-modernslavery/ MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 18

Contact Us Luke Geary Partner, Not-for-Profit Mills Oakley P: (07) 3228 0429 M: 0403 030 430 E: lgeary@millsoakley. com. au Disclaimer This Power. Point presentation is intended to provide only a limited analysis of the subject matter covered. It does not purport to be comprehensive, or to provide legal advice. Any views or opinions expressed are the views or opinions of the presenter, and not those of Mills Oakley as a Firm. Readers should satisfy themselves as to the correctness, relevance and applicability of any of its content, and should not act on any of it in respect of any specific problem or generally without first obtaining their own independent professional legal advice. www. millsoakley. com. au 19