NSW Bill to Amend Modern Slavery Act Introduced
Thursday 4 November 2021 @ 1.48 p.m. | Legal Research
On 14 October 2021, the Modern Slavery Amendment Bill 2021 (NSW) (‘the Bill’) was introduced to the Legislative Council by Don Harwin, the Minister for the Public Service and Employee Relations, Aboriginal Affairs, and the Arts (‘the Minister’).
The Bill has yet to pass the lower house following its introduction.
Purpose of the Bill
The Bill proposes amendments to to the Modern Slavery Act 2018 (NSW) (“the Principal Act”). The originating Bill of the Principal Act was discussed in an earlier TimeBase article.
In his second reading speech, the Minister noted that the Principal Act was passed following its introduction as a Private Member’s Bill. The Minister stated that:
“[a]s a private member's bill, the [Principal] Act was not developed with full access to the Government's resources and expertise, such as the benefit of expert legal advice and advice from operational agencies.”
The Minister continued by stating that the current Bill is intended to:
“resolve those deficiencies and to allow the [Modern Slavery] Act to commence on 1 January 2022.”
Clarifying Cooperation between the Commissioner and other agencies
The Bill intends to clarify the requirement of cooperation between the Anti-slavery Commissioner ('the Commissioner') and other agencies.
Currently, section 14 the Principal Act requires that the Commissioner and government or non‑government agencies cooperate with each other. The Minister stated in his second reading speech that the Bill would replace this provision to clarify that:
“government and relevant non-government agencies are required to cooperate with the commissioner and not each other in the exercise of the commissioner's functions.”
The Bill also proposes to replace the broader term of “non-government agency” with a list of specific bodies, which specialise in advocacy and providing services for victims of modern slavery.
The Bill also proposes the introduction of a new section 35 into the Principal Act, which would provide for information-sharing arrangements between the Commissioner of Police and the Commissioner. The Minister commented that these arrangements were requested by the NSW Police Force to support enforcement of the Principal Act in his second reading speech.
Repeal of Certain Reporting Requirements
The Bill proposes to repeal two sets of provisions of the Principal Act.
Firstly, the Bill proposes to repeal the provisions that relate to the requirement for commercial organisations to prepare modern slavery statements. These statements outline the steps taken by an organisation to ensure goods and services are not products of supply chains in which modern slavery is taking place.
Currently, commercial organisations in NSW with an annual consolidated revenue of at least $50 million are required to comply with the reporting requirements under the Principal Act. If the commercial organisation’s annual consolidated revenue is equal to or exceeds $100 million, the organisation must also comply with the reporting requirements under the Commonwealth equivalent requirements in the Modern Slavery Act 2018 (Cth) (which was passed subsequent to the passage of the Principal Act). The originating Bill for the Modern Slavery Act 2018 (Cth) was discussed in an earlier TimeBase article.
The Minister commented in his second reading speech that the repeal of reporting requirements under the Principal Act will:
“remove the regulatory burden on the New South Wales private sector and businesses of complying with two schemes.”
The Minister clarified that the Bill's passage will mean that commercial organisations with an annual consolidate revenue between $50 and 100 million are not obliged but may volunteer to report. The Commissioner would play an active role in encouraging volunteer reporting.
The Minister also noted that:
"the New South Wales Government has urged the Commonwealth to revisit the reporting threshold, with the New South Wales Government's express preference of harmonising the threshold at $50 million".
Repeal of Modern slavery risk orders scheme
Secondly, the Bill proposes to repeal provisions of the Principal Act which enable courts to make “modern slavery risk orders”. These orders are court orders that prohibit a person convicted of modern slavery offences from engaging in certain conduct.
Regarding these provisions, the Minister explained further in his second reading speech that:
“[t]he orders fit poorly into the existing criminal justice frameworks and are the most problematic aspect of the [Principal] Act ... of particular concern is the ability of a court to make a modern slavery risk order of its own initiative, which is a significant departure from the ordinary exercise of judicial power. This may impair the institutional integrity of New South Wales courts to a sufficient degree to give rise to a risk of constitutional invalidity.”
In place of these provisions, the Bill seeks to amend the Crimes (High Risk Offenders) Act 2006 (NSW) such that offenders convicted of modern slavery offences relating to sexual servitude can by subject to post-sentence detention and supervision orders.
Clarification of Child Forced Marriage Offence
The Principal Act also contains an amendment to the Crimes Act 1900 (NSW) that has not yet commenced. This amendment was to introduce a new offence prohibiting child forced marriage.
According to the Minister's second reading speech, the Bill intends to amend the offence to:
“align the definition of "forced marriage" with the counterpart offence in the Commonwealth Criminal Code, including by ensuring that where both partners to a forced marriage are victims—for example, both are children who have been coerced into the marriage—neither is guilty of the offence of procuring a forced marriage.”
Introduction of Recognition Payments
If assented, the Bill will allow certain victims of acts of modern slavery to receive recognition payments under the Victims Rights and Support Act 2013 (NSW).
Under the Bill, only victims of acts of modern slavery that occurred in NSW will be eligible for recognition payments. The Minister stated:
“This is consistent with the requirement that, to be eligible for victims support under the victims support Act, the act of violence must have occurred in New South Wales. This was recently confirmed in DRJ v Commissioner of Victims Rights (No 2), from which the High Court declined to grant special leave to appeal.”
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Modern Slavery Amendment Bill 2021 (NSW) and explanatory materials available from TimeBase's LawOne service.