Australia makes progress towards an Anti-Slavery Commissioner - what this means for NZ's future modern slavery regime

Last week, the Australian Senate's Legal and Constitutional Affairs Legislation Committee (Committee) reported back on the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 (Bill). This Bill would represent the first substantive amendment to the Modern Slavery Act 2018 (Act) since it came into force over five years ago. The Bill would establish an Anti-Slavery Commissioner (Commissioner) and set out their core functions.
 
This alert summarises the proposed changes in Australia, and comments on how those changes may influence New Zealand's own future modern slavery legislation, although the timing for the introduction of such legislation is, for the moment, unclear.

Australia: the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023

Functions of the new Anti-Slavery Commissioner

The Australian Anti-Slavery Commissioner would have a myriad of functions including to:¹

• promote compliance with the Act;

• support businesses to address the risks of modern slavery in their operations and supply chains;

• support victims;

• have a public role in supporting and conducting education initiatives and research about modern slavery;

• consult and liaise with Government bodies and other persons and organisations on matters relating to modern slavery; and

• advocate to the Commonwealth Government on matters relating to modern slavery and, on request, provide advice to the Minister.  

These functions would enable the Commissioner to work with Government, business, civil society, and other stakeholders to support compliance with the Act, increase transparency in supply chains, and combat modern slavery in Australia and abroad.² The Commissioner's functions would be distinct from the functions of the Modern Slavery Business Engagement Unit in the Attorney-General’s Department, which is responsible for administering the Act, providing guidance and awareness raising to reporting entities on compliance with the Act, assessing modern slavery statements, and maintaining the Modern Slavery Statements Register.³ 

Ability to request information from other agencies

The Commissioner would be independent and have discretion in carrying out its functions and powers.⁴ The Commissioner would be able to request information from Commonwealth agencies (which includes all Government departments) that is relevant to the performance of the Commissioner's functions, and those agencies would be required to, so far as is reasonably practicable, comply with the request.⁵

Measures to align with Government priorities

In preparing its Strategic Plan (which will state the Commissioner's priorities and principal objectives for a period of up to three years), the Commissioner would be required to consult with the Minister and the Secretary of the Department.⁶ This consultation is aimed at aligning the Commissioner's activities with the efforts of the Australian Government, where practicable.⁷ In addition to this consultation requirement, the Strategic Plan would be required to not include "sensitive information". This is information the disclosure of which would or might:⁸

(a) prejudice the security, defence or international relations of Australia; or
(b) prejudice the investigation of, or the prosecution of a person for, an offence; or
(c) endanger the life or safety of any person.

The Senate Committee's report made reference to possible tension between the inability to refer to sensitive information and the Commissioner's ability to engage independently with modern slavery issues in countries which provide supply networks for businesses in Australia. As the Bill currently stands, the sensitive information prohibition may impinge on the independence of the Commissioner by imposing a restriction on what the Commissioner can publish. With respect to the Strategic Plan, it would be unclear who ultimately makes the decision of what is or is not sensitive information. The Committee recommended that the term "sensitive information" be clarified in either the Bill or the explanatory memorandum to ensure that the independence of the Commissioner is not called into question.

A focus on support for victims of modern slavery

The Committee recommended that the Bill should require greater engagement with victim-survivors of modern slavery. Under the current Bill, the Commissioner would be able to engage directly with victims to ensure their views and voices are heard and reflected in modern slavery policies and strategies. The Committee recommended that the Bill be amended to also include requirements that the Commissioner develops specific guidelines in their Strategic Plan to support victim-survivors of modern slavery, and engages with victim-survivors of modern slavery in carrying out the functions of their role. Some of the options mentioned in submissions to the Committee include an advisory panel made up of victims of modern slavery and a staff member of the Commissioner who has lived experience of modern slavery.⁹
 
The Bill provides that, although the Commissioner would provide information to victims in relation to government and non-government resources, programs and services, the Commissioner would not investigate or resolve complaints concerning individual instances or suspected instances of modern slavery. Nor would the Commissioner have investigative or coercive powers to enable them to compel others to provide information. Instead, the responsibility to investigate individual cases, or suspected cases, of modern slavery would remain with Australia's law enforcement agencies.¹⁰ While agreeing that the Commissioner should not have the power to investigate individual cases of modern slavery, the Committee recommended that the office of the Commissioner should be able to make appropriate arrangements (for example a memorandum of understanding) with relevant law enforcement agencies to facilitate the referral of cases for investigation.

Next steps

The Bill is yet to pass through the second reading, committee of the whole, and third reading stages in the Senate. The recommendations from the Committee will now be considered by the Senate before the Bill passes through all these stages. Any amendments made by the Senate will need to be agreed to by the House of Representatives before the Bill becomes law.

What does this mean for New Zealand's future modern slavery regime?

Previous Government's proposal of a public register

Since the new Government has taken office, momentum on introducing modern slavery legislation has stalled. The previous Government had intended to introduce legislation that would establish a public register to enable transparency over organisations' and businesses' supply chains. Organisations with more than NZD$20m in revenue would have been required to report on the actions they are taking to address the risk of exploitation in their operations and supply chains. See our previous alert for a breakdown of the previous Government's proposal.
 
The Ministry for Business, Innovation, and Employment's (MBIE) discussion document released in 2022 noted that many jurisdictions have established independent bodies to support the delivery of their modern slavery regimes but MBIE did not, at that time, have proposals for whether an independent oversight mechanism should be introduced, or what function it should or could have.¹¹ Most submitters on the discussion document agreed an independent oversight mechanism is necessary.¹² The Cabinet Paper agreeing to implement modern slavery legislation noted that, as part of further work, a new independent Commissioner function could be introduced via amendments to the regime.¹³

Current Government's intentions

In the November 2023 briefing to the incoming Minister for Workplace Relations and Safety, MBIE noted that prioritisation and timing of modern slavery legislation was for the Minister. In January 2024, Hon Brooke van Velden stated that Cabinet has "yet to make decisions" regarding the previous Government's proposal.¹⁴ The introduction of a modern slavery regime does not feature in the coalition agreements or National's 100-Day Plan. However, the National party has previously supported the introduction of modern slavery legislation. Former Workplace Relations and Safety spokesman Paul Goldsmith, upon the previous Government's decision to introduce modern slavery legislation, stated that "[introduction of a modern slavery Bill] should have been a higher priority".¹⁵ New Zealand also has increasing international obligations in this space (further discussed below).

Calls for a more sophisticated modern slavery regime in NZ continue

Meanwhile, New Zealand businesses have called on the new Government to introduce modern slavery legislation with more stringent requirements than the previous Government proposed, including due diligence requirements.¹⁶ These businesses have noted that European nations are introducing laws around due diligence and warned that “failing to align New Zealand’s laws with international standards will put existing agreements and future trade negotiations at risk”. For example, the United Kingdom – New Zealand Free Trade Agreement which entered into force on 31 May 2023 requires each Party to encourage private and public sector entities operating in its territory to take appropriate steps to prevent modern slavery in their supply chains.¹⁷ In this regard, the FTA also requires each Party to adopt or maintain measures appropriate to meet that goal.¹⁸
 
The previous Cabinet did agree that further work should be undertaken on stronger, more complex and novel measures, including responsibilities to undertake due diligence and to "take action". The idea being that, subject to further analysis and future Cabinet decisions, such measures could be introduced separately in due course through further legislative amendments (similar to Australia's approach with the Anti-Slavery Commissioner outlined above). In other words, a sequenced approach to regulation was recommended.
 
How the new coalition Government approaches modern slavery legislation remains to be seen, but alignment with the evolving Australian regime, to ensure efficiency and avoid duplication for trans-Tasman firms, could be on the cards.
 
If you have any questions regarding the emerging modern slavery regulatory framework, please contact one of our experts below.

This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

1. ^∧  Modern Slavery Amendment (Australian Ant-Slavery Commissioner) Bill 2023 (here), at clause 4, section 20C.

2. ^∧  See Explanatory Memorandum (here), at clause 16.

3. ^∧  See Explanatory Memorandum (here), at clause 20.

4. ^∧  Modern Slavery Amendment (Australian Ant-Slavery Commissioner) Bill 2023 (here), at clause 4, section 20J.

5. ^∧  Modern Slavery Amendment (Australian Ant-Slavery Commissioner) Bill 2023 (here), at clause 4, section 20W(1) and (3).

6. ^∧  Modern Slavery Amendment (Australian Ant-Slavery Commissioner) Bill 2023 (here), at clause 4, section 20X(6).

7. ^∧  See Explanatory Memorandum (here), at clause 70.

8. ^∧  Modern Slavery Amendment (Australian Ant-Slavery Commissioner) Bill 2023 (here), at clause 3, section 4.

9. ^∧  Legal and Constitutional Affairs Legislation Committee, Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 [Provisions] (here), at 2.79 and 2.87.

10. ^∧  See Explanatory Memorandum (here), at clause 12.

11. ^∧  Ministry of Business, Innovation and Employment, A Legislative Response to Modern Slavery and Worker Exploitation (8 April 2022) (here), at p 71 and 72.

12. ^∧  Ministry of Business, Innovation and Employment, Consultation on Legislation to Address Modern Slavery and Worker Exploitation – Summary of feedback (September 2022) (here), at p 18.

13. ^∧  Hon Carmel Sepuloni, Proactive release of Cabinet paper: Modern Slavery and Worker Exploitation: Supply Chain Legislation (27 September 2023) (here), at [50].

14. ^∧  See Newsroom, Modern slavery laws plans up in air (18 January 2024) (here).

15. ^∧  See New Zealand Herald, New anti-slavery rules proposed by Carmel Sepuloni, Rob Fyfe for companies with $20m+ revenue (28 July 2023) (here). 

16. ^∧  See the Businesses' Open Letter here. 

17. ^∧  UK-NZ FTA, Art 23.9(2) (here).

18. ^∧  UK-NZ FTA, Art 23.9(2)(a) – (d) (here).