Our Patron Her Excellency the Honourable Margaret Beazley AC QC, Governor of New South Wales, has provided us with an update of her 2019 Charteris Oration.

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Modern Slavery

When delivering the Charteris Oration for the AIIA’s Annual Dinner in 2019, I reflected on the current estimate that 40 million people worldwide are trapped in Modern Slavery. To phrase that in 2020 vernacular,that is nearly double the number of people who are recorded as having contracted COVID-19.

Modern Slavery includes forced labour, debt bondage, human trafficking, descent-based slavery, forced marriage, child marriage, domestic slavery and trafficking and child soldiers. In contemporary society, one of the greatest areas of risk for Modern Slavery is within the supply chains of large entities, where workplace conditions of subcontracting entities are left unmonitored.

Attempts to identify and monitor modern slavery conditions, with an aim to their elimination, have, like most things in 2020, been impacted by COVID-19.  If anything, the restrictions on global movement of people and goods has likely increased the risk that practices constituting Modern Slavery will go undetected.   As noted in the Australian Border Force, Modern Slavery Information Sheet: Coronavirus changes to supply chains ‘can disproportionately affect some workers and increase their exposure to modern slavery and other forms of exploitation’, with fear of loss of income and a low awareness of workplace rights.

Emphasis has been given to the responsibility of corporations to be vigilant in monitoring potential risks of modern slavery, with the government encouraging entities to prioritise maintaining supplier relationships and fostering open communication with suppliers.  However, because of the current difficulties that entities have faced in collecting information from or visiting suppliers due to COVID-19, the first reporting deadline under the Commonwealth Act has been extended to 31 March 2021.

As I noted in the Charteris Oration, the NSW Act was not then in force, having been referred to the NSW Legislative Council’s Standing Committee on Social Issues for review.  The Standing Committee received 102 submissions over the course of its inquiry and delivered its final report on 25 March 2020. Their 17 recommendations support the enactment of the Modern Slavery Act 2018 (NSW), pending some amendments, including introducing a statutory review of the Act, to be conducted by the Anti-Slavery Commissioner every 3 years, in conjunction with the Commonwealth’s review of its Act, and the repeal of s 29 (‘Modern Slavery Risk Orders’). Under s 29, a Risk Order could be made by a court where a person had been convicted of a relevant slavery offence, prohibiting the person from engaging in specified conduct if the making of the order would reduce the risk of conduct that constituted Modern Slavery.

Notably, the Report expressed support for the value and function of the office of the Anti-Slavery Commissioner, particularly in regard to providing access to support for victims of Modern Slavery, and the benefit of capturing the estimated 1,650 entities within the $50-$100million revenue range, who would not be required to report under the Commonwealth legislation. The Report recommended a target date for the Act’s commencement of 1 January 2021.

Whilst the Commonwealth Criminal Code criminalises acts of servitude, forced labour, forced marriage, debt bondage and trafficking as constituting ‘slavery’ or ‘slavery-like’ offences, it is the ‘name and shame’ approach embedded in both the Commonwealth and State legislation that is believed will have the greatest corporate reach and be the most effective preventative measure to stem the practice of Modern Slavery.  Recent examples of exposure of poor or wrong corporate conduct indicates that this is likely to be so.  British online clothing retailer Boohoo experienced this when it lost more than £1bn from its market value in 2020 after investigations revealed that the company had underpaid workers in its supply chain in Leicester and further, that those workers were being placed at risk of COVID-19 due to unsafe working conditions.

One concern that has been expressed with the manner of operation of the Modern Slavery legislation , both in Australia and elsewhere, is that it will be seen as no more than a ‘tick box’ compliance provision, with little active engagement by corporations in introducing steps to combat slavery in their supply chains.  To some extent, the UK experience bears that out.  However, in an era of increased consumer activism, the legal requirement to publicly state the steps a corporation is taking to reduce the risk of Modern Slavery in its supply chain is at least salutary and, it is to be hoped, will increasingly become an effective measure to reduce and hopefully rid commerce of extortionate and even evil practices.

The Honourable Margaret Beazley AC QC

Governor of New South Wales

The Honourable Margaret Beazley AC, QC is an Australian jurist who is the 39th and current Governor of New South Wales, serving since 2 May 2019. She was the president of the New South Wales Court of Appeal, the first woman to hold the office, from 2013 until February 2019.