Anti-slavery laws get buried by NSW Government

Passed in both houses – but may never become law

New South Wales’ modern slavery laws may never actually become law, despite being passed by the Upper and Lower Houses in June, 2018, and receiving royal assent last December.

A quirk in the state’s legislative process means even though the Act was debated and voted on, it doesn’t become law until it is proclaimed by the State Government. Instead of proclaiming it on July 1 as scheduled, the NSW Government has chosen to defer it indefinitely and open a further parliamentary inquiry.

The fight against modern slavery

The law would have seen NSW take the strongest stance against modern slavery in Australia.

The law would have required companies with a turnover of $50 million or more to publicly report the steps they’ve taken to eliminate slavery from their supply chains. It would also have introduced new NSW offences of slavery, servitude and child forced labour, and child forced marriage. Plus, it would have appointed an anti-slavery commissioner.

The law would have seen NSW take the strongest stance against modern slavery in Australia.

However, in a submission to the parliamentary inquiry, the NSW Government argued the law was not properly drafted. It also asked the inquiry to consider “whether the NSW act is, in whole or in part, still necessary” with the Commonwealth’s Modern Slavery Act having come into force on January 1.

Special Minister of State Don Harwin said the bill had “defects requiring urgent attention” which might make it inconsistent with the federal Modern Slavery Act.

But Professor Jennifer Burn, the New South Wales Interim Anti-Slavery Commissioner, proposed amendments to the Modern Slavery Act “to ensure it works efficiently”.

“We have worked closely with the Commonwealth to ensure that the New South Wales scheme is consistent with the Commonwealth Modern Slavery Act,” said Burn.

“During this time I have had the privilege of working with a dedicated team within the Department of Premier and Cabinet to raise awareness of the Act and set it in motion. I am passionate about eradicating modern slavery and I believe it can be done if we draw together.”

The government’s failure to proclaim the Act could be seen as NSW backing away from its strong position. For example, federal laws do not require compulsory reporting by a company until it has a turnover of $100 million, compared with $50 million in the NSW’s Act.

In addition, the NSW legislation would see companies face fines of up to $1.1m or two years’ in jail for deliberately filing false or misleading information about their anti-slavery efforts. The federal laws do not. Another difference is federal legislation makes no provision for an anti-slavery commissioner.

“The NSW government seems to be walking back from its commitments.” – Carolyn Kitto

Elizabeth Greenwood, Policy Manager for the NSW Business Chamber, told parliament, “Our view is that there is already Federal legislation in place. There is no need for penalties.”

Unsurprisingly, the NSW Government’s failure to commit to the legislation’s implementation has concerned anti-slavery groups.

“At a time when other governments are seeking to strengthen their response to modern slavery, the NSW government seems to be walking back from its commitments,” Carolyn Kitto, director of Be Slavery Free, told The Guardian.

In addition, the legal quirk around NSW’s proclamation of law has worried experts such as Alex Stedman, Senior Council Officer of Procedure for Department of the Legislative Council of NSW Parliament.

“The proclamation device allows a government to delay the operation of an act until administrative arrangements or delegated legislation are in place to allow the statute to operate,” said Stedman. “The issue here is not the administrative convenience this affords but the reality that this effectively allows an executive to determine when, or even if, a law duly passed by the NSW parliament will have effect.