19 December 2023 Update: The Review of the Modern Slavery Act 2018 Report was published on 19 December 2023 and acknowledged the significant extent and impact of modern slavery in NSW. The committee was particularly concerned to learn that an estimated 80 to 98 per cent of victim-survivors remain unidentified out of a possible 16,400 cases each year in New South Wales.

The Modern Slavery Act 2018 is therefore an important piece of legislation enacted to address the issue of modern slavery by requiring NSW Government agencies, local councils and state-owned corporations to report on how they are addressing modern slavery risks in their supply chains, and providing for the establishment of the NSW Anti-slavery Commissioner, the first such position in any Australian jurisdiction. The Act also creates modern slavery offences.

This review examined whether the Act is adequately addressing modern slavery risks and whether the Commissioner is effectively equipped to do so. The committee acknowledged that there is clear evidence highlighting areas where the Act can be strengthened, particularly in relation to the detection and exposure of modern slavery, compliance and enforcement, support for victim-survivors and the role of the Commissioner. This aligns with the evidence from NSWCCL in both our submission and our evidence to the committee. 

Finding 1 
That the committee needs to involve people with lived experience expertise in its review of the Act before making further recommendations, noting that this has not been possible given the requirement to complete the report within 24 months of the commencement of the Act.

Recommendation 1 
That the Modern Slavery Committee continue to review the Modern Slavery Act 2018 in the next six months specifically seeking evidence from people with lived experience expertise and considering the evidence already received.
Recommendation 2 
That the NSW Government seek to amend the Modern Slavery Act 2018 to explicitly provide for the Anti-slavery Commissioner's annual and other reports to be tabled out of session or made publicly available immediately after being furnished to the Presiding Officers, as provided for in the original Modern Slavery Bill 2018.

The report can be found here. Our submission can be found here.

The Global Slavery Index 2023 estimated there are 41,000 victims of modern slavery in Australia. In financial year ended 30 June 2022, authorities received 294 modern slavery reports in Australia, which was an increase of 31% from the prior year. It is also reported that an estimated 16.400 people in NSW are victims of modern slavery.

Even with these numbers being 'low' in comparison to other jurisdictions, it is estimated only 1 in 5 victims are detected in Australia. Roughly 1670 modern slavery cases have been referred to the Australian Federal Police but only 31 offenders convicted.

The NSW Modern Slavery Act requires NSW state-owned corporations who are not otherwise required to report under the Modern Slavery Act 2018 (Cth) (Commonwealth Modern Slavery Act) to volunteer to do so. The NSW Modern Slavery Act applies a different definition of modern slavery to that in the Commonwealth Modern Slavery Act. Additionally, the NSW Modern Slavery Act:

• introduced an Anti-Slavery Commissioner who has broad powers relating to modern slavery including the ability to implement a code of practice and consulting with the Auditor-General and NSW Procurement Board to monitor the effectiveness of due diligence procedures in place to ensure goods and services procured by government agencies are not the product of modern slavery; and
• requires NSW government bodies and councils to include a statement in their public annual report outlining:
  • any action taken in relation to a significant issue identified by the Anti-Slavery Commissioner concerning the operations of the agency during the financial year; and
  • the steps taken to ensure goods and services procured during the financial year were not the product of modern slavery.

The objects of the NSW Modern Slavery Act are:

• to combat modern slavery;
• to provide assistance and support for victims of modern slavery;
• to provide for an Anti-slavery Commissioner;
• to provide for detection and exposure of modern slavery that may have occurred or be occurring or that is likely to occur;
• to raise community awareness of, and provide for education and training about, modern slavery;
• to encourage collaborative action to combat modern slavery;
• to provide for the assessment of the effectiveness and appropriateness of laws prohibiting modern slavery and to improve the implementation and enforcement of such laws;
• to provide for mandatory reporting of risks of modern slavery occurring in the supply chains of government agencies;
• to make forced marriage of a child and certain slavery and slavery-like conduct offences in New South Wales;
• to further penalise involvement in cybersex trafficking by making it an offence to administer a digital platform for the purpose of child abuse material or encourage another person to use a digital platform to deal with child abuse material;
• to provide for education, training and guidance about identifying and addressing modern slavery taking place within supply chains of organisations.

The objects of the NSW Modern Slavery Act are quite broad. It appears the NSW Modern Slavery Act achieves objects (c), (e) and (g) through the introduction of the Anti-Slavery Commissioner and the actions taken by the Anti-Slavery Commissioner to date. Objects (i) and (j) were introduced into the Crimes Act 1900 (NSW) and potentially therefore can be considered to be achieved.

It is harder to quantify the impact of the NSW Modern Slavery Act and any ancillary actions taken by virtue of the NSW Modern Slavery Act in regards to objects (a), (b), (d), (f), (h) and (k).

Some of these objects may be achieved through the objectives of the NSW Anti-Slavery Commissioner's Strategic Plan 2023-2026, being:

• build prevention capacity: to ensure NSW government and non-government systems can identify vulnerability to modern slavery and prevent victimisation;
• enable remedy: to improve access for people with lived experience to effective remedy – including essential services, justice, self-determination and empowerment;
• foster responsible business practices: to show leadership in identifying and addressing modern slavery in supply chains and investment portfolios;
• change the narrative: make the case for anti-slavery in a convincing and empowering way; and
• develop a community of purpose: to lay the foundations for sustainable and inclusive implementation of the NSW Modern Slavery Act.

These objectives could be strengthened by explicitly stating that effective communication is underpinned by ensuring information be provided to CaLD communities in their own languages.

The ability to 'review and determine whether the policy objectives of the NSW Modern Slavery Act remain valid and whether the terms of the NSW Modern Slavery Act remain appropriate for securing the objectives'  is made more challenging by reason that it is relatively difficult to ascertain which entities (if any) are reporting under the Commonwealth Modern Slavery Act due to the provisions of the NSW Modern Slavery Act. We could not find an example on the register of an entity reporting under the Commonwealth Modern Slavery Act due to section 25A of the NSW Modern Slavery Act.

On this basis, we recommend that the Anti-Slavery Commissioner is required to publish the entities which are reporting under the Commonwealth Modern Slavery Act due to section 25A of the NSW Modern Slavery Act.