Australia is considering whether to adopt modern slavery legislation, similar to that found in the United Kingdom (UK) and California .  “Modern slavery” has been identified as including slavery, forced labour and wage exploitation, involuntary servitude, debt bondage, human trafficking, forced marriage and other slavery-like exploitation occurring today.

A current federal parliamentary Committee inquiry into the matter has received strong interest from a broad group including retailers, financial institutions, governments, not-for-profit organisations, universities, law firms, individuals and other interested parties. Supply chain transparency is a key area of focus for the inquiry, including requirements for relevant parties to report that their global supply chains are free of slavery and human trafficking.

Prior inquiries on modern slavery

This is not the first time Australia has contemplated modern slavery, as the Joint Standing Committee on Foreign Affairs, Defence and Trade undertook an inquiry on the subject in 2012/13. On that occasion, the Committee’s terms of reference were slavery, slavery like conditions and people trafficking, with a focus on Australia efforts to address people trafficking, ways to encourage international action on the matter, and international best practices. That Committee issued its report Trading Lives: Modern Day Human Trafficking in 2013.

UK Modern Slavery Act 2015

The UK introduced the Modern Slavery Act of 2015, which is generally considered to be a ground-breaking and comprehensive development in this area (and is endorsed in many submissions to the current Australian inquiry). Although many parts of the UK’s Modern Slavery Act involved a combination of existing separate criminal legislation for offences including human trafficking and slavery, the Act introduced a new requirement requiring certain companies to publish an annual statement of the steps taken to eliminate the risks of modern slavery within their business and supply chains.

Scope of new Australian inquiry

The enactment of the UK legislation appears to have influenced the Australian Attorney-General, who has asked the Joint Standing Committee on Foreign Affairs, Defence and Trade to conduct an inquiry in the establishment of an Australian version, having regard to the findings of the Committee in 2012/13.

This new Australian inquiry will consider a broader range of issues compared to the earlier inquiry, including:

  • The nature and extent of modern slavery in Australia and globally.
  • The prevalence of modern slavery in domestic and global supply chains of businesses and organisations’ operating in Australia. This is a key issue of importance for many businesses in assessing and managing their supply chain risks.
  • Identifying international best practice employed by governments, companies, businesses and organisations to prevent modern slavery in domestic and global supply chains, with a view to strengthening Australian legislation.
  • The implications for Australia’s visa regime, conformity with the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, as well as federal compensation for victims of modern slavery.

The inquiry will also consider which provisions in the UK legislation have proven effective in addressing modern slavery, whether similar or improved measures should be introduced in Australia, and whether Australia should have its own Modern Slavery Act.  To date, the Committee has received 185 submissions. A hearing was held in Canberra on 30 May 2017 attended by Kevin Hyland, the United Kingdom Independent Anti-Slavery Commissioner, with further hearings to follow.

Supply chain transparency

Elements of the UK legislation the Committee is focusing on for adopting in Australia include the UK requirement for businesses and organisations to report on how they ensure their global supply chains are free of slavery and human trafficking.

The UK legislation requires certain commercial organisations to publish an annual statement which either provides information on:

  • the steps that have been taken to ensure that slavery is not occurring in the organisation and its supply chain; or
  • confirmation that no such steps have been taken.

The statement must be published on the organisation’s website, or where an organisation does not have a website, provided in writing upon request.  The provision targets larger corporations based in the UK as set forth in the definition of “commercial organization.”

The format and content of the statement is not mandated but the legislation makes suggestions for content such as, among other things, the organisational structure, business and supply chains, the policies relating to slavery and human trafficking, risks and steps taken to manage the risk for slavery and trafficking.

The statement must be approved by the Board of Directors and signed by a Director. There is no strict timeline to publish the statement but the guidance published with the legislation recommends that the statement is published as soon as reasonably practicable after a company’s year end, and ideally within 6 months.

Interestingly, there is no financial sanction imposed on a company for failing to publish a statement. However, some organisations may be concerned about negative publicity if they fail to publish, and there is currently some lobbying in the UK to introduce stricter sanctions in order to drive compliance.  We will be closely watching and monitoring these developments as they are applicable to many types of supply chains.

Author

Anne Petterd focuses on technology, telecommunications, customs and export controls, and consumer and commercial law issues. Much of her practice involves online, telecommunications and IT businesses as well as defence and government procurement. She previously worked with the Australian Government Solicitor. She also worked in Baker McKenzie's London office for 18 months and seconded to major telecommunications and information technology service providers. Anne handles projects involving digital economy, cloud computing and large-scale IT supplies in the Asia Pacific. Her work focuses on the retail, telecommunications, defence, government and financial services sectors, and often involves new business models and test regulatory issues on privacy and telecommunications. Anne also advises on customs assessment, compliance and export control requirements as well as related trade and product compliance issues. She regularly works with regulators on these matters.

Author

Alethea Giles is an associate in the Technology, Communications and Commercial (TCC) team at Baker McKenzie, Sydney. Alethea joined the Firm in 2004 and transitioned into TCC in 2011. Her focus is information technology, privacy and surveillance, telecommunications and radiocommunications regulation, and franchising law. Alethea has been involved in a number of pro bono activities for the Firm’s cancer referral service, and has assisted in telecommunications disputes, the drafting of indigenous artists' agreements, and immigration representation. She is also a Justice of the Peace. Alethea advises telecommunication network operators, device manufacturers and importers on a range of telecommunication and radiocommunication issues including importation requirements, spectrum regulation and the use of telecommunication networks. She assists various information technology clients in the preparation of end-user licence agreements, website terms and conditions, and FAQs which comply with consumer law. She also advises clients on compliance with privacy, spam and surveillance laws. Alethea has advised finance, luxury brand and technology companies in relation to distributor agreements, Australian franchising law and compliance with the mandatory Franchising Code of Conduct. She works with global and national clients who are entering the Australian market or who are seeking to renew their current agreements and business practices. She also assists clients to prepare business structures and processes which enable more effective franchising operations.

Author

Duncan is a partner in the IT/Commercial Department of Baker McKenzie’s London office. He joined Baker McKenzie in 1994 and became a partner in 2002. Duncan is ranked as a leading commercial contracts lawyer by both the Legal 500 and Chambers UK directories, with Chambers reporting that clients praise his ability to "tease out the issues in a project and make practical and commercial suggestions for their resolution. He has a non-confrontational approach which assists relationship building" (Chambers 2016). Duncan drafts, advises on and negotiates a wide range of commercial agreements including long term supply arrangements, agency and distribution agreements and outsourcing agreements. His outsourcing experience includes advising on transactions for the pharmaceuticals and healthcare, financial services, FMCG and telecoms sectors. Duncan also assists clients in preparing terms of business and related documentation for new business processes and offerings. Duncan has spent extended periods of his career on secondment to clients in both the UK and continental Europe