Modern Slavery and Corporate Responsibility – How can Commercial Organisations measure up in Australia?

The existence of modern slavery is often perceived as an offshore problem, yet it is estimated that there are at least 4,300 slaves in Australia today directly affected by modern slavery in its various forms. Large organisations in Australia and trading internationally now have to ask themselves – can we do better? This is not just a question of risk assessment but of effectiveness. 

On the 28^th March 2019, Professor Felicity Gerry QC from Green’s List appeared at a panel event together with Jo Pride, CEO of Hagar Australia and Dr Marie Segrave, Associate Professor at Monash University. The event was part of the Victorian Women Lawyers event series and was held at Maurice Blackburn Lawyers, hosted by Jacinta Lewin, Senior Associate in the Social Justice Practice.

After discussion of the wide definition of Modern Slavery to include human trafficking in organised crime as well as corporate and Government responsibility for slavery in commercial supply chains, the panel considered three pieces of legislation which might require corporate and Government reporting:

1. Australian Modern Slavery Act  (Cth) 2019 - turnover of more than $100 million – currently no Commissioner and no sanction for not reporting slavery in supply chains but potential for reputational damage or loss of opportunity to bid for Government work.
2. NSW Modern Slavery Act  2019 - turnover of more than $50 million – Has appointed a Commissioner and imposes a sanction for not reporting which is up to $1.1million. There is also potential for reputational damage and loss of opportunity to bid for Government work.
3. UK Modern Slavery Act  2015 - turnover of more than £36 million – Has appointed a Commissioner. Currently no sanction for not reporting slavery in supply chains but potential for reputational damage and loss of opportunity to bid for Government work. A recent review indicates legislation likely to be tightened soon.

The Commonwealth MSA came into force on 1 Jan 2019. The definition of ‘slavery’ provided under section 4 is expansive, including any conduct which would constitute an offence under current anti-slavery law (ss 270-1 of the Criminal Code), ‘trafficking in persons’ as defined under Article 3 of the UN Trafficking Protocol and ‘the worst forms of child labour’, as defined in Article 3 of the ILO Convention. Modelled on part of the MSA (UK), the Act requires commercial organisations including Government Departments in Australia (with turnovers of more than $100 million) to produce ‘modern slavery statements’ that acknowledge the risks of modern slavery in their operations and supply chains, as well as including information about actions being taken to address those risks. At the state level, New South Wales has added to federal law by passing its own Modern Slavery Act (‘NSW Act’). This differs in a few significant ways from the Federal act. Firstly, the NSW Act lowers the revenue reporting threshold; a company must fulfil reporting requirements if turnover exceeds $50 million. Secondly, it imposes monetary penalties of up to $1.1 million for businesses that fail to comply. Finally, it appoints an independent anti-slavery commissioner to oversee business compliance.  

The MSA (UK) came into force on the 29^th of October 2015. In the context of supply chain regulation, the Act introduced a reporting requirement. Commercials organisation supplying goods or services in the United Kingdom that have an annual global revenue of at least £36 million must publish an annual slavery and human trafficking statement, which must be displayed publicly by the company. Organisations must also undertake to develop policies and processes to investigate and prioritise risk. This legislation has extraterritorial effect, in that it applies to any commercial organisation who supplies goods or services wherever incorporated which has a demonstrable business presence in the UK and a global turnover of £36 million or more. The definition of ‘Commercial organization’ is wide. The Act has a ‘name and shame’ provision and establishes an independent Anti-Slavery Commissioner. 

The panel gave examples of their experiences and knowledge in the corporate, criminal, migration and NGO sectors and in the Q and A made suggestions for how lawyers can assist in the development of corporate responsibility in this field. 

Felicity Gerry QC specialises in substantial and complex criminal matters often with an international element and also with a corporate cross over. She is contributing author 

• Modern Slavery and Human Trafficking Law and Practice 2018 Bloomsbury. Law and Practice
• Human Trafficking: Emerging Legal Issues and Applications. Edited by Nora M. Cronin and Kimberly A. Ellis. Lawyers & Judges Publishing Company, Inc 2017. 

She is currently leading a project on Why Victoria should have its own MSA. She spoke at the International Bar Association Annual Conference in Sydney 2017 on global corporate responsibility in this area which can be viewed here and was recently interviewed on the Cth MSA by Sydney Criminal Lawyers here. 

For more information please contact:

Felicity Gerry QC

Crockett Chambers

Level 7

530 Lonsdale Street

Melbourne, Vic. 3000

Ph:  +61 (03) 9225 7010