In the modern era, slavery should be a concept relegated to history, a grim reminder to many nations of the checkered past that helped their civilisations to develop. Yet in the present day, all-too-common stories of human trafficking, forced labour and sexual servitude indicate that slavery is alive and well around the world. The Walk Free Foundation, an organisation which aims to end slavery and human trafficking, produces the Global Slavery Index (GSI) which ranks countries based on the prevalence of modern slavery. The 2016 GSI estimated that 45.8 million people are subject to some form of slavery.

While Australia shares the bottom rank on the GSI, with the lowest percentage of the population in modern slavery, Dr Jennifer Burn, director of Anti-Slavery Australia, has reportedly stated that slavery has “never been a bigger problem in Australia than it is right now”. This seems to be supported by the modern slavery inquiry of the Joint Standing Committee on Foreign Affairs, Defence and Trade, which in December 2017 recommended the introduction of a national Modern Slavery Act in its report ‘Hidden in Plain Sight’.

Preempting the Federal Government, NSW has taken the first steps towards introducing legislation to combat modern slavery, with the Modern Slavery Bill 2018 (NSW) (the Bill) passing the Legislative Council on 3 May. Once passed by the Legislative Assembly, the Bill will introduce a number of new offences and dramatically reform the way commercial and non-government organisations conceptualise and deal with modern slavery issues.

Concept of Modern Slavery and New Offences

The Bill introduces a new concept of ‘modern slavery’, and identifies a number of criminal offences which constitute modern slavery. Modern slavery includes any conduct:

• constituting a modern slavery offence
• involving the use of any form of slavery, servitude or forced labour to exploit children or other persons taking place in the supply chains of government or non-government agencies.

A modern slavery offence means committing, or attempting or inciting to commit, an offence listed in Schedule 2 of the Bill. In an attempt to capture international acts of exploitation, it is also a ‘modern slavery offence’ if an offence is committed elsewhere in Australia or globally that, if committed in NSW, would be a relevant offence in NSW.

Schedule 2 sets out a number of offences against the Crimes Act 1900 (NSW) and the Commonwealth Criminal Code which are taken to be modern slavery offences. These offences include slavery, servitude and forced labour offences under the Criminal Code, as well as sexual servitude and human trafficking offences under the Crimes Act.

The offences of producing, disseminating and possessing child abuse material, and of using children to produce child abuse material, are also taken to be modern slavery offences. A new offence has also been added of administering a digital platform used to deal with child abuse material. ‘Deal’ in this context includes viewing, uploading and downloading child abuse material.

The Bill also introduces a number of additional criminal offences to the Crimes Act which will form part of the definition of modern slavery. These include an offence of entering into a forced marriage with a child, and a new offence of slavery, servitude and child-forced labour. This will make it an offence to require a child to perform 'forced or compulsory labour'; while this does not include normal civil obligations, all of the circumstances are relevant to determining whether work or service constitutes forced or compulsory labour, including the vulnerability of the child and whether exploitation, coercion, threat or deception are involved. Schools should keep the wide scope of this potential offence in mind, particularly in the context of planning working experience placements for students.

Anti-slavery Commissioner and Modern Slavery Committee

The Bill provides for an Anti-slavery Commissioner to be appointed as an independent public sector entity. The Commissioner will not be subject to the direction or control of the Premier or any other Minister in respect of its functions. Its functions will include:

• promoting action to combat modern slavery and to identify and supporting victims of modern slavery
• making recommendations and providing information, advice, education and training about action to prevent, detect and investigate modern slavery offences
• working with government and non-government agencies to combat modern slavery and provide assistance to victims of modern slavery
• monitoring reporting concerning risks of modern slavery, the effectiveness of legislation and governmental policies and action in combating modern slavery
• raising community awareness of modern slavery.

The functions of the Commissioner will be monitored and reviewed by the newly constituted Modern Slavery Committee, a joint committee of members of Parliament which will report to Parliament on the Commissioner’s functions, reports and other activities.

Transparency of Supply Chains

The concept of ‘supply chains’ is used frequently in the Bill but remains undefined. A supply chain is a well-known commercial and economic concept that essentially means a sequence, system or network of different entities, activities, information and resources that are involved in moving a product or service from the supplier to the customer. Promoting the transparency of supply chains is a key objective of the Bill.

Under the proposed amendments, each commercial organisation will be required to prepare a publicly available modern slavery statement every financial year. This statement must comply with the Modern Slavery Regulations (yet to be developed), which may require the statement to include information on the organsation’s:

• structure, business and supply chains
• due diligence processes in relation to modern slavery in its business and supply chains,
• operations which present a risk of modern slavery taking place, and the steps taken to assess and manage that risk
• training about modern slavery available to its employees.

It will be an offence to:

• fail to prepare a modern slavery statement for each financial year
• fail to make the modern slavery statement public
• provide false or misleading information in relation to the modern slavery statement

Each offence has a maximum penalty of 10,000 penalty units, or $1.1 million.

Most schools will not be affected by this amendment, as it currently only applies to organisations which supply goods/services for profit or gain and have a total annual turnover of $50 million or more. However, because ‘profit or gain’ is not defined and is not linked to the ACNC’s definition not-for-profit, large schools, particularly school groups with significant annual turnover, should ensure they are aware of any broadening of this definition under the Modern Slavery Regulations.

Modern Slavery Risk Orders

The Bill also enables a NSW court to make a ‘modern slavery risk order’, which can prohibit a person convicted of a modern slavery offence from engaging in particular conduct, such as contacting any victim of the modern slavery offence or their relatives.

To make such an order, the court would need to be satisfied that the person poses a risk of engaging in conduct constituting modern slavery, and that the order will reduce the risk and is necessary for protecting a person or persons from physical or psychological harm caused by such conduct.

Schools and Modern Slavery

Schools may assume that the only link between them and this Bill are hyperbolic complaints by students about their homework. But in reality, there are a number of clear impacts on the education sector, the most significant being an amendment to the Education Act 1990 (NSW). The Bill introduces a new minimum requirement for the NSW secondary education curriculum – as part of the course of study in the key learning area of Human Society and its Environment, Years 7-10 students must be educated on the prevention of modern slavery as defined in the Bill.

This upcoming curriculum addition is of particular importance for non-government schools, as it is a registration requirement to comply with the minimum curriculum under section 47 of the Education Act. Schools should hence anticipate further changes to the NSW Registration Manuals by the NSW Education Standards Authority (NESA) as a result of the Bill.

Schools should also be preparing to take the new concept of modern slavery into account in their child protection policies and procedures, as slavery would very likely be considered a form of child abuse subject to reporting obligations.

Even though this is a NSW Bill, the recommendations contained within the report ‘Hidden in Plain Sight’ have national significance. In the future, perhaps all schools will need to be aware of, and comply with, a national Modern Slavery Act.