• Internal Code :
  • Subject Code : BULAW5915
  • University : Federation University
  • Subject Name : Corporations Law

Modern Slavery Act 2018

Part A

It must be noticed that every individual has a right to live free from any form of slavery. However, it is an awful state of affairs that many others and children are being socially trapped in slavery. Modern slavery can be termed as harsh and severe exploitation of a group of people for personal or commercial profit. Mere serving the food, working in factories or working as a form of nanny, cooks or cleaners can also be categorized under modern slavery. It is important to know that the main characteristic of modern slavery is that people who are trapped under slavery are being controlled by other individuals and they face a high amount of violence and threats. There are various instances where the people trapped under modern slavery are forced under inescapable death and most of the time when they are working outside their own country; their passport is being taken away1. It is important to know that globally approximately 40 million people can be categorized to be trapped under modern slavery.

In Australia, one in four children is trapped under modern slavery, and it must be noticed that almost three-quarters of these people are inclusive of women and young girls. It is important to know that in Australia many businessmen and organizations are unaware of the fact that they work in promoting slavery in their organizations. Various statistics can show incidents of modern slavery in the territory of Australia. The statistics also reflect the lower level of awareness in the citizens of Australia regarding the issue of modern slavery. More than 150$ billion are generated from the worldwide Private economy only from the forced labour itself.

Various behaviours can be categorized under the realm of modern slavery. The most common behaviour is human trafficking under which coercion to transport, threat, use of violence, and women and young girls are harboured for exploiting them for forced prostitution. Human trafficking is not only limited for exploiting the girls physically for prostitution but it goes beyond the criminality of organ removal. Apart from this forced labour, where people are made to work against their wish under any threat and bonded labour where people are trapped under the powerful man due to poverty are the most common forms of modern slavery. The behaviour of people that can be categorized under modern slavery is also inclusive of early marriages and slavery of children where they are exploited to achieve any profit or gains. This is the reason why Australia came up with the Modern Slavery Act 2018 (Cth) to herald a new statutory policy that must be implied by the large organizations operating in the territory of Australia.

There is a severe impact of modern slavery upon the territory of Australia. According to the global slavery index of 2018, it had been estimated that in the year 2016 more than 15000 people were living under the conditions of modern slavery in the territory of Australia5. The Australian federal police, support for trafficked people program and the commonwealth director of public prosecutions have also taken out various reports which show that concerning the modern slavery in the territory of Australia more than 69 offences are related to the offence of forced marriage and more than 39 cases are categorized under sexual exploitation under various forms. Apart from this since the year 2004, the commonwealth director of public prosecutions (CDPP) had contended that more than 19 individuals are prosecuted for the offences related to modern slavery each day in the territory of Australia, 10 of these 19 individuals are convicted for servitude offences and others related to the offences of human trafficking, especially which involve the exploitation of women and children.

There are various cases of forced labour that can be predominantly seen in Australia under various industries especially construction, domestic work, agriculture, meat processing, and cleaning services. It is important to know that in the territory of Australia most of these industries employ a larger percentage of migrant workers from various places who enter into the territory Australia on a temporary visa which is usually taken away by their masters. Apart from this in the year 2016, a senate inquiry was constituted where it was seen that most of the migrant workers are abused for their wages and visas and these are particularly those people who have come to Australia on working holiday visa, skill temporary visa these entire seasonal worker program visa.

The report in the year 2017 showed that more than 4300 migrant workers were found to be categorized under the silent underclass of migrant workers who are primarily the international students who are paid below the minimum wage and are working under miserable conditions that can by potentially amounted as forced labour7. Apart from this as per the result suggested by the Australian government, it was found out that women who are coming from Asia are usually exploited in the sex trafficking industry. In the year 2017, the Malaysian woman was convicted of trafficking her friend into Australia by forcing her to work as a sex worker.

The extent and impact of modern slavery can also be seen in the territory of Australia as a common form of forced marriage where it was seen that according to the National Children's Youth and as per Law Centre, it was reported that more than 250 cases of forced child marriages are filed in Australia where Australian citizens are involved with their family members for organizing a marriage overseas without their free consent9. It is important to know that this is a very sad state of affairs that to date there are no strict convictions for forced marriages in Australia. These are enough pieces of evidence to show the extent and impact of modern slavery in Australia.

Part B

A.1.

It is important to note that the Modern Slavery Act 2018 (NSW) which is also known as the NSW Act, works to combat the issues of modern slavery in the territory of Australia. The act seeks to abolish the serious and heinous exploitation of forced labour and people who are subjected to human trafficking by providing assistance and support to the victims. The key element of the NSW Act was to promote transparency in the supply chains of business by implementing a mandatory reporting mechanism that will make the businesses report the risk of modern slavery in their supply chains and operations to the government. On 21st June 2018, the NSW Act was passed but it did not come into force due to the initiated inquiry by the parliament upon it.

However, on the other hand, the modern slavery act works and committed to promoting a fair and safe society for each individual by taking the modern slavery problem which is occurring in NSW. The major agenda of the Act was to establish an anti-slavery commissioner who will raise the awareness of modern slavery in NSW. apart from this the Act also works to develop a responsive approach for supporting the victims of modern slavery by setting out various guidelines that must be followed by the organizations by addressing the risk of modern slavery.

Modern slavery Act 2018 (Cth), is also known as a Commonwealth Modern Slavery Act that had received assent on 10th December 2018. It is important to note that this act applies to certain organizations that have a consolidated revenue of over $100 million for each financial year which is $50 million more than what has been provided under the regulations of the NSW Act. Even under the Commonwealth Act, the organizations are required to formulate and produce a modern slavery statement every year under which the entities are required to comply with certain guidelines provided under the provisions of the Act. The act will be applied only upon the entities which are Australian residents as per the Income Tax Assessment Act 1936.

A.2.

Corporate limited partnerships and trust which is under the Australian residence will also be regulated under this act. Under section 21 of the corporation's act, any entity which earns more than $100 million in the financial year will also be regulated. Under this at the minister of Home Affairs will maintain an online platform for registering the modern slavery statements which must be provided to the minister within 6 months after the end of every financial year13. Under the Commonwealth Act, the reporting organization must include in its modern slavery statement regarding the operations and structure of supply chain, the involvement of risk of modern slavery along with the inclusion of due diligence on the part of the entity.

The entities are also required to report the minister regarding their controls over there people walking under the organization. The slavery statement report must include that the organizations are providing training to the staff concerning the modern slavery issues so that the same can be combated efficiently. Apart from this, the entities in their modern slavery statement must include the consultation process with other organizations. Failure to comply with the regulations provided under the modern slavery act has been provided under section 16 sub-clause A of the Act14. There is no penalty imposed under this Act upon the entity. If the minister is satisfied that the entity has failed to comply with the modern slavery statement, then the minister asks the entity to furnish the reasons for not publishing the statement.

A.3.

The basic agenda of the NSW Act was to take a modern slavery statement by the organizations that are getting an annual turnover of 50 million dollars. This Act had prescribed regulations that must be incorporated by the organizations by having due diligence in their process of business and apart from this around $1.1million penalty is also be imposed under this Act if any organization fails to produce a modern slavery statement15. Under the NSW Act, the entities are required to provide a modern slavery statement and this applies only to the employees of NSW and not outside it. The act will apply only to the entities who work under the supply of services and goods for game and profit working in the territory of NSW.

It is important to note that the entity must not gain any less than $50 million per financial year and must not be under the NSW government policy. The entities are required to provide a statement that their product and service supply chains are not involved under any factors of modern slavery and are strictly abiding by the regulations prescribed under the NSW Act. The entities under this act must provide a report regarding their business structure and the due diligence on the part of the organization about the issue of modern slavery. Apart from this, the statement must be published stating all the parts of the organization as well as the supply chain which are prone to the risk of modern slavery under such circumstances. The entity must also state every step to manage that was on the part of the organization. It is important to know that the government agencies are exempted from the reporting requirements set by the NSW Act.

Any agency which is defined under the government sector employment act of 2013 will be considered as a government agency under NSW. Any incorporated company which can be categorized under the Corporation's Act 2001 which has one or more than one shareholder who is the minister of the Crown will also be categorized under the government agency. Any council which can be categorized under the local government act of 1993 or any other public or local authority under the NSW act which exercises functions of the public will be exempted for providing a statement regarding modern slavery for the procurement of services and goods.

A.4.

It is important to know the major difference between the NSW act and the Modern Slavery Act, 2018 (Cth). It is important to note that the NSW is an act and the latter is the Commonwealth bill. The major difference between both the Acts is that the Commonwealth Act does not impose any sort of penalties upon the entity on the grounds of failing of publishing the modern slavery statement or under any circumstances where the entity had provided false or misleading information regarding the provisions of the modern slavery act. It is important to note that under the Commonwealth bill the minister, instead of imposing a penalty of $1.1 billion like the NSW Act, the minister request entity to provide for the information regarding not publishing the modern slavery statement. The minister will ask the entity to who published the fact of failure of compliance with the minister's request of publishing the modern slavery statement into the register according to the Modern Slavery Act 2018 (Cth).

Moreover, Commonwealth Act provides that the mentioned regulations in the Act must not impose any civil penalty or any offence. A review of The Commonwealth act will also be undertaken after the commencement of the act in the next 3 years. Also, the major difference between the NSW Act and the Commonwealth Act is that the NSW act covers the entity that has a turnover of $50million to $100million and the Commonwealth act will cover the entities that have a turnover of $100million or more than that.

A.5.

The NSW Act or the Modern Slavery Act 2018 (NSW) was passed on 21st June 2018 but it must be noted that the same did not come into force because the NSW government defer the commencement regarding the legislation by initiating and inquiry upon the NSW Act17. Various doubts were raised regarding whether the NSW act works according to the Federal Modern Slavery Act 2018 or not. Apart from this the Commonwealth act came into force in the year 2019 on the 1st of January and had established a reporting requirement related to National modern slavery for various entities in the market of Australia. It is important to know that the NSW Act was the first jurisdiction in the territory of Australia which had legislated against modern slavery and had recognized the crimes prevalent against the individuals.

It must be noted that the NSW act has not commenced and the directions of the Act are not yet in force. In the year 2019 on 6th August certain social issues were announced by the legislative council standing committee regarding the act and certain modifications and amendments seed to shape the act according to the guidelines of the committee. This is a reason why the NSW modern slavery act of 2018 is different from the Commonwealth modern slavery act of 2018. so it can be said that it is the Commonwealth modern slavery act of 2018 which had received the assent and had also commenced on 10th of December in the year 2018 along with the operating provisions which were commenced in the year 2019 on 1st of January unlike the modern slavery act of 2018 (NSW).

Bibliography

Acts/Legislations

Explanatory Memorandum, Modern Slavery Bill 2018, p. 3.

Modern Slavery Act 2018 (NSW) s 5(1) (definition of ‘government agency’)

Modern Slavery Act 2018 (NSW), section 25 and amendments to the Public Works and Procurement Act 1912 (NSW) at item 5.6 of Schedule 5 to the Modern Slavery Act 2018 (NSW)

Modern Slavery Act 2018 (NSW), section 26.

The Modern Slavery Act 2018 (NSW)

Journals/Online sources

2016 Global Slavery Index, pp 4 and 29, Retrieved from: https://www.globalslaveryindex.org/download/.

Anti-Slavery Australia, Submission 156, p. 48; Charles Wilson, Submission 12, p. 2.

David, F 2010, Labour Trafficking, Research and Public Policy Series: Australian Institute of Criminology, p. 26. Available from: http://www.aic.gov.au/media_library/publications/rpp/108/rpp108.pdf.

Focus on Labour Exploitation (FLEX), Submission 163, p. 6; Slavery Links Australia, Submission 170, p. 5

Hawke, Government strengthens Australia's response to modern slavery, op. cit. See also Australian Government, Budget measures: budget paper no. 2: 2018–19, p. 127.

ILO, Abolition of Forced Labour Convention (No. 105), Geneva, 1957 and ILO, Protocol of 2014 to the Forced Labour Convention, 1930, Geneva, 2014.

Interdepartmental Committee on Human Trafficking and Slavery 2016, Trafficking in Persons: The Australian Government Response 1 July 2015 – 30 June 2016, Australian Government. Available from: https://www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Documents/Report-of-the-interdepartmental-committee-on-human-trafficking-and-slavery-july-2015-to-June-2016.pdf.

International Labour Organisation, ILO Indicators of Forced Labour, 2013, accessed at http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---il yangon/documents/publication/wcms_227848.pdf.

Reilly, A 2012. ‘Protecting vulnerable migrant workers: the case of international students’. Australian Journal of Labour Law, vol. 25, no. 3, pp. 181-208.

Renshaw, L 2016, Migrating for work and study: The role of the migration broker in facilitating workplace exploitation, human trafficking and slavery. Australian Institue of Criminology. Available from: http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi527.pdf.

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