The Australian Government has launched its much anticipated online Modern Slavery Statements Register housed on the Australian Border Force website (Modern Slavery Register). Reporting entities, such as large entities with a consolidated revenue of $100 million for the reporting period (including corporate Commonwealth entities and Commonwealth companies which meet this threshold) and the Commonwealth itself, will use the centralised portal to submit their modern slavery statements.

The Commonwealth is required to report on behalf of non‑corporate Commonwealth entities.

To recap, under the Modern Slavery Act 2018 (Cth) (Modern Slavery Act), reporting entities must cover seven mandatory criteria in their annual modern slavery statement. This includes describing the risks of modern slavery practices (such as human trafficking, slavery, servitude, forced labour, debt bondage and the worst forms of child labour) in the operations and supply chains of the reporting entity and any entities it owns or controls and describing the actions taken to assess and address these risks, including due diligence and remediation processes.

As previously reported, following consultation on a draft, the Australian Government released detailed guidance for reporting entities which sets out how it expects reporting entities to address the seven mandatory criteria in their modern slavery statements (Guidance for Reporting Entities). We know from advising clients over the past two years that it takes considerable forward planning and investment of resources in order to be in a position to address the mandatory criteria in a manner consistent with the Guidance for Reporting Entities. Corporate Commonwealth entities and Commonwealth companies (that are reporting entities) are required to submit their own compliant modern slavery statement and should consider the Guidance for Reporting Entities which is expressly stated to cover these entities.

Due to the impact of Covid-19, the Australian Government granted a temporary three month extension for the deadline for all entities whose reporting periods ended on or before 30 June 2020 to submit their year one modern slavery statements. The new, extended deadline for submission of a modern slavery statement for reporting entities that use the Australian Financial Year (1 July 2019 – 30 June 2020) is 31 March 2021.

What does the launch of the Modern Slavery Register mean for Commonwealth entities?

The open and transparent Modern Slavery Register has clearly been designed with the ‘race to the top’ objective in mind and will capture information about Australian Government entities that are also reporting entities.

It is clear this objective remains front and centre for the Australian Government: 'This is the world’s first, government-run website of its kind, and will provide Australian consumers, investors and civil society with an unprecedented window into the global supply chains that produce the goods and services we use every day,' Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Hon Jason Wood MP said on the release of the Modern Slavery Register.

The Modern Slavery Register has functionality which appears to allow anyone to:

• download an Excel spreadsheet list of statements;
  
• search statements by reporting period, entity revenue, countries where headquartered, industry sector and overseas reporting obligations; and
  
• search generally via any phase and to refine searches using the categories above.

Maddocks Partner Sonia Sharma, who specialises in modern slavery law compliance, says the Modern Slavery Register is an important milestone:

“Having a look at the Modern Slavery Register, it is clear to see how easy it would be to compare the Australian Government (including any applicable corporate Commonwealth entities and Commonwealth companies) with private industry. We also know that civil society groups have been working on their own technology to be able to analyse trends and data. It’s safe to say that the world will be watching as Australian reporting entities submit their first statements. A public and central register is a powerful tool for tracking an entity’s compliance with the modern slavery requirements. It is clear a copy and paste or cookie cutter approach to compliance, whether by industry or government entities, will quickly be 'called out' and reporting entities need to carefully plan to ensure they address all the mandatory criteria.”.

More resources released for government procurement officials

At the time of publishing the Guidance for Reporting Entities, the Australian Government stated ‘separate information will be provided for non-corporate Commonwealth entities covered by the consolidated Commonwealth Government statement’. This has now arrived in the form of the toolkit titled: ‘Modern Slavery Toolkit for Government Procurement Officers’ (Toolkit). The various resources included in the Toolkit are optional, practical tools for agencies to use for higher risk and/or higher value procurements. They are not mandatory.

The Modern Slavery Act requires the Australian Government itself to prepare an annual modern slavery statement (Commonwealth Statement) explaining how the Australian Government is assessing and addressing modern slavery risks in its global operations and supply chains. The Commonwealth Statement will also be published on the Modern Slavery Register. As noted above, the Australian Government (via the Australian Border Force) will prepare a single Commonwealth Statement covering all non-corporate Commonwealth entities (NCCEs).

The Toolkit is aimed at Australian Government procurement officers who work in any government department, agency or body. It provides a range of resources to assist procurement officers to identify, assess and manage modern slavery risks. The Toolkit has been designed to be used within the existing Commonwealth procurement framework, primarily the Commonwealth Procurement Rules.

The Toolkit follows the release in June 2020 of:

• The Commonwealth Modern Slavery Statement – Scoping Paper which outlines the content that will be included in the Commonwealth Statement, including the key modern slavery risk areas that the Australian Government is targeting for action, and the steps it is taking to respond to these risks. The Scoping Paper also outlines how the Australian Border Force is responsible for preparing the Commonwealth Statement and is working closely with key NCCEs to assess and address modern slavery risks through a formal interdepartmental committee and specialist inter-agency working groups focused on key issues.

• The 2019 Annual report to Parliament on the implementation of the Modern Slavery Act – which covers the Australian Government’s separate requirement to report annually on the actions it is taking to implement the Modern Slavery Act.
  

In the Scoping Paper, the Australian Government states that it will address Mandatory Criteria 4 (the actions it has taken to assess and address modern slavery risks) by outlining 'a range of overarching whole-of-government actions to combat modern slavery risks, such as the development of training materials for Commonwealth officers, policy commitments and contract clauses, supplier engagement activities, and procedures to respond to, and remediate, allegations of modern slavery'.

In other words, the Toolkit is a key feature of the Commonwealth’s own compliance regime for Mandatory Criteria 4 and will likely feature in the Commonwealth Statement when it is published. The Toolkit includes:

• a risk screening tool – intended to be used at the beginning of a new procurement, or when assessing the risk of modern slavery in existing contracts to assess the general risk classification of the procurement
  
• tender guidance – which includes key considerations for procurement officers such as how to address modern slavery risks when preparing request documentation and evaluating tenders and when to include specific modern slavery clauses in contracts (it is anticipated that model clauses will be made available on ClauseBank)
  
• a supplier questionnaire – which is a tool to assist Australian Government agencies to assess their suppliers’ policies and practices to identify, assess and mitigate modern slavery risks in their supply chains and operations.
  

The impact of the Toolkit is twofold.

1. Those working in Australian Government procurement will need to be across how to manage modern slavery risks across the full procurement lifecycle and consider in what circumstances it would be helpful to use the resources provided in the Toolkit – this will require some time, energy and education to come up to speed with the Modern Slavery Act and the Toolkit and operationalising modern slavery risk assessment and management within the agency.
   
2. Entities wishing to do business with the Australian Government (regardless of whether they are reporting entities under the Modern Slavery Act) may need to be able to address modern slavery issues to be in the running to win Australian Government work.
   

Partner Gavan Mackenzie who specialises in Australian Government procurement says:

'Procurement officers will play a vital role in ensuring that the Australian Government effectively manages modern slavery risks as part of its own supply chain. Procurement officers should not delay in understanding how the Modern Slavery Act applies to their agency and should ensure that their agency’s procurement practices and documentation adequately consider and address modern slavery issues.'

Next steps

Given these recent major developments, now is a good time to familiarise yourself with the Modern Slavery Act compliance obligations and how this may impact upon your Commonwealth entity, company or agency (as applicable). The steps you might take next are different depending on whether you are required to submit your own modern slavery statement or will be covered by the Commonwealth Statement.

Corporate Commonwealth entities and Commonwealth companies who have to submit their own modern slavery statement if they had a consolidated revenue of at least $100 million for the reporting period

Non‑corporate Commonwealth entities such as government departments and agencies who will be covered by the Commonwealth’s statement

Schedule a catch-up with your internal modern slavery compliance project team to check how your entity or company is implementing the requirements of the Modern Slavery Act. Bring in your communications team so they are across the regime and understand the seven mandatory criteria. Schedule a clear submission timetable: Now that the first reporting year is over, now is the time to be clearly mapping out your schedule for drafting your modern slavery statement, confirming you have addressed the mandatory criteria, educating your executive and organising the approval and signing of your statement. Develop a long term plan: The Modern Slavery Act is a continuous improvement regime – reporting entities can only report on what has happened in the relevant reporting year. Accordingly, forward planning and continuous improvement are essential. Consider taking the steps listed opposite and be familiar with how the Commonwealth itself is addressing compliance.

Review the Scoping Paper to better understand how the Government is taking a targeted, risk-based approach to assessing and addressing modern slavery risks in its supply chains and how the Australian Border Force will prepare the Commonwealth Statement. Take note of the priority key risks areas flagged in the Scoping Paper (namely, textiles procurement, construction, cleaning services and investment activity). If you are involved in procurement activities, familiarise yourself with the Toolkit and consider how this may impact upon your agency’s existing procurement processes and how your agency can manage modern slavery risks across the whole procurement lifecycle. Make sure you have reviewed and updated your agency’s procurement and contracting templates to ensure that they allow the agency to effectively manage modern slavery risks.