On 17 November 2021 the NSW Parliament passed the Modern Slavery Amendment Act 2021 (NSW) (2021 MS Act) making miscellaneous amendments to the Modern Slavery Act 2018 (NSW) (2018 MS Act) as previously passed in 2018. Shortly after the 2018 Act had passed, it was tabled by parliament and was never given a commencement date.
The Amendment Act is set to commence on 1 January 2022. The 2021 Act made a number of significant amendments. Whilst there is still an Anti-Slavery Commissioner with minor amendments made to provisions relating to their cooperation with other agencies and preparation of reports, there is no longer a penalty provision dealing with the maximum monetary penalty for an offence under s 33(2). Importantly, s 24 (relating to transparency of supply chain) and s 29 (enabling courts to make certain post-conviction orders relating to modern slavery offences) have been repealed. The result of this is that commercial organisations will no longer have to report under the NSW legislation (noting that the Commonwealth legislation may still apply for companies with annual consolidated revenue of greater than AUD$100 Million).
Previously, section 14(1) referred to cooperation between the Commissioner and government or non-government agencies. It has been amended so that it now applies to cooperation between the Commissioner and government agencies of the State and persons and bodies that provide services to, or advocate for, victims of modern slavery.
Section 20 has been amended to permit the Commissioner to bring information obtained to the attention of the NSW Police Force that might be of material assistance in securing the apprehension, prosecution or conviction of an offender in relation to a child abuse offence under s 316A Crimes Act 1900.
The previous section 24 (transparency of supply chain) has been repealed so that mandatory reporting of risks only applies to government agencies and not commercial organisations.
Section 29 has been repealed so that the court is no longer able to make a modern slavery risk order that prohibits a person (who has been convicted of an offence) from engaging in conduct specified in the order.
Proceedings for an offence are now only able to be dealt with summarily before the Local Court under section 33 of the Act (as opposed to summarily in both the Local and District Court previously). Section 33(2) has been omitted so that there is no maximum monetary penalty that the Local Court may impose (previously 100 penalty units).
Under the new section 35, upon request, the Commissioner of Police is to provide information to the Anti-slavery Commissioner which cannot be disclosed except with the written consent of the Commissioner of Police – s 35(1) and (2). There are exceptions to this under s 35(3). If the Commissioner of Police refuses then they must provide reasons in writing for their refusal (s 35(4)). Another new provision, section 36, requires the Minister to Review the Act as soon as possible after 12 months from the commencement.
Personal liability: Section 16 has been altered and section 16A has been inserted to clarify the personal liability of persons who cooperate with the Commissioner, as well the personal liability of the Commissioner.
Information recorded on public register: section 26 has also been altered to give the Commissioner greater discretion as to what information is appropriate to record on the public register (s 26(1)(d)), as well as requiring the Commissioner to include other information required by the regulations (s 26(1)(e)).
Other important amendments to the Schedules to the Act include the clarification of an uncommenced offence in the Crimes Act 1900 (NSW) dealing with child forced marriage. The 2021 MS Act makes further provision to deal with the provision of recognition payments under the Victims Rights and Support Act 2013 (NSW) to certain victims of acts of modern slavery.
For corporates, the 2021 MS Act means that the NSW regime is only tangentially relevant in the sense that a company’s value chain may include supplies and goods sourced in NSW from government (that may be the subject of reporting), and therefore the company can be provided with the modern slavery statement to understand their own supply chain better in order to report under the Modern Slavery Act 2018 (Cth). Also, corporations don’t get the benefit from anti-slavery commissioner actively investigating modern slavery issues, so modern slavery issues in procurement and supply chains may not be discovered in Australia as easily.
While the 2018 MS Act would have meant companies caught between the threshold of $50 - $100 million in turnover would have been made to report, that section has been repealed such that a company’s value chain will benefit from the knowledge but corporations do not have to lodge a statement.
Finally, corporates should note that one of the amendments stipulates that the Minister must review the Act within 12 months, so it is possible that the 2021 MS Act will be the subject of future law reform next year to reintroduce provisions that were recently removed. We note that the Commonwealth Modern Slavery Act 2018 is also due for review in 2022 so we may see some changes to that legislation, including potentially a lowering of the mandatory reporting threshold and potential offence provisions for non-reporting.
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