This article presents an update and extension to our previous article Introduction of Modern Slavery Legislation.
The Modern Slavery Act 2018 (the ‘Act’)1 requires entities that are based, or operating, in Australia which have a consolidated revenue of at least $100 million to produce a modern slavery statement. This therefore includes foreign entities operating in Australia.
What is modern slavery?
The ‘Act’ defines modern slavery as including eight types of serious exploitation:
- Trafficking in persons;
- Slavery; servitude;
- Forced marriage;
- Forced labour;
- Debt bondage;
- Deceptive recruiting for labour or services; and
- The worst forms of child labour.
The worst forms of child labour are namely when children are subjected to slavery, or similar practices, or engaged in hazardous work.
Modern Slavery Statements
There are three different types of statements:
- Modern slavery statements for single reporting entities;
- Joint modern slavery statements (covering more than one entity); and
- Commonwealth modern slavery statements.
There are specific requirements that an entity must follow to prepare a joint statement. For helpful advice on these requirements, refer to the guide for reporting entities in the resources below.
What do the entities have to report?
The statements must include the following:
- Identify the reporting entity;
- Describe the reporting entity’s structure, operations and supply chains;
- Describe the risks of modern slavery practices in the operations and supply chains of the reporting entity and any entities it owns or controls;
- Describe the actions taken by the reporting entity and any entities it owns or controls to assess and address these risks, including due diligence and remediation processes;
- Describe how the reporting entity assesses the effectiveness of these actions;
- Describe the process of consultation with any entities the reporting entity owns or controls (a joint statement must also describe consultation with the entity giving the statement); and
- Provide any other relevant information.
AusMine Resources 2
In its statement, AusMine Resources reports on its actions to assess and address modern slavery risks in its operations, including risks associated with the construction of a new mining facility overseas and the joint venture gas facility it operates. AusMine Resources also reports on how it incorporates modern slavery into its risk assessments and due diligence processes when it considers investing in non-operated joint ventures.
Where it identifies that there may be a high level of modern slavery risks associated with a non-operated joint venture activity (i.e. where the joint venture is in a country with a high prevalence of modern slavery), AusMine Resources outlines its approach to engaging with the operating companies to mitigate these risks.
For example, AusMine explains how it has raised modern slavery risks through the management committee of one of its non-operated joint ventures. AusMine Resources is not required to report on the individual operations and supply chains of its non-operated joint ventures.
When do we need to report?
Entities will need to begin reporting on their first full reporting period after 1 January 2019, and they have a 6-month deadline to submit the statement after the annual reporting period.
For example, if the annual reporting period for the entity is 1 July – 30 June, then the first reporting period is 1 July 2019 – 30 June 2020, and the statement is due by 31 December 2020.
Does the statement require approval?
The ‘Act’ requires that an entity’s statement is approved by the principal governing body of the reporting entity (i.e. the Board) and is signed by a responsible member of the reporting entity’s principal governing body (i.e. Chair/member of the Board). The statement must clearly state that it has been approved by the body by naming the governing body and specifying the date of approval.
Where are the reports sent?
The companies will need to submit their approved statement as a standalone document to the dedicated Modern Slavery Business Engagement Unit of the Australian Border Force by emailing email@example.com.
What happens if the statement is late?
The Government will not issue fines if the statement is late. It can require noncompliant entities to take remedial action to ensure compliance, including requiring an entity to provide or revise a statement. The Government may also publicly name entities that fail to comply.
In June 2018, New South Wales government was the first jurisdiction in Australia to pass legislation aimed at combatting modern slavery practices also named ‘Modern Slavery Act 2018’. It is similar to the ‘Act’ as it will require businesses to identify and report on the risk of modern slavery, however, it has a lower threshold ($50m) and it will impose penalties for non-compliance ($1.1m or two years jail sentence).
However, unusually, the commencement of the NSW Act has been deferred indefinitely due to “defects requiring urgent attention”, and inconsistencies with the ‘Act’. It will be important to continue to monitor developments with this Act especially as it will affect more companies with the lower threshold.
The UK Modern Slavery Act entered into force in 2015 and applies to commercial organisations carrying out business in the UK. Entities operating in both Australia and the UK can submit the same statement if it meets all the requirements of both Acts.
- Modern Slavery Act 2019 – https://www.legislation.gov.au/Details/C2018A00153
- Commonwealth Modern Slavery Act 2018 Guidance for Reporting Entities – Department of Home Affairs – https://www.homeaffairs.gov.au/criminal-justice/files/modern-slavery-reporting-entities.pdf