Modern Slavery Act 2018 (NSW)

Modern Slavery Act 2018 No 30 An Act to make provision with respect to slavery, slavery-like practices and human trafficking and to provide for the appointment and functions of an Anti-slavery Commissioner; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Modern Slavery Act 2018. 2 Commencement This Act commences on 1 January 2022. 3 Objects of Act The objects of this Act are as follows— (a) to combat modern slavery, (b) to provide assistance and support for victims of modern slavery, (c) to provide for an Anti-slavery Commissioner, (d) to provide for detection and exposure of modern slavery that may have occurred or be occurring or that is likely to occur, (e) to raise community awareness of, and provide for education and training about, modern slavery, (f) to encourage collaborative action to combat modern slavery, (g) 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, (h) to provide for mandatory reporting of risks of modern slavery occurring in the supply chains of government agencies, (i) to make forced marriage of a child and certain slavery and slavery-like conduct offences in New South Wales, (j) 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, (k) to provide for education, training and guidance about identifying and addressing modern slavery taking place within supply chains of organisations. 4 Extraterritorial application (1) It is the intention of the Parliament that this Act apply within the State and outside the State to the full extent of the extraterritorial legislative capacity of the Parliament. (2) Without limiting subsection (1), it is the intention of the Parliament that the operation of this Act is, as far as possible, to include operation in relation to the following— (a) things situated in or outside the territorial limits of this State, (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this State, (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction. 5 Definitions (1) In this Act— Commissioner means the Anti-slavery Commissioner appointed under Part 2. Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. forced labour has the meaning it has in section 270.6 of the Commonwealth Criminal Code. function includes a power, authority or duty, and exercise a function includes perform a duty. government agency means any of the following— (a) a government sector agency (within the meaning of the Government Sector Employment Act 2013), (b) a NSW Government agency, (c), (d) (Repealed) (e) a council, county council or joint organisation within the meaning of the Local Government Act 1993, (f) any other public or local authority that is constituted by or under an Act or that exercises public functions, (g) any public or local authority that is constituted by an Act of another jurisdiction that exercises public functions. modern slavery includes the following— (a) any conduct constituting a modern slavery offence, (b) any conduct involving the use of any form of slavery, servitude or forced labour to exploit children or other persons taking place in the supply chains of organisations. Modern Slavery Committee means the joint committee called the Modern Slavery Committee constituted under this Act. modern slavery offence means the following— (a) an offence described in Schedule 2, (b) an offence of attempting, or of incitement, to commit an offence described in Schedule 2, (c) conduct engaged in elsewhere than in New South Wales that, if it occurred in New South Wales, would constitute a modern slavery offence under paragraph (a) or (b). organisation includes a government agency and a commercial organisation. Presiding Officer means the President of the Legislative Council or the Speaker of the Legislative Assembly. However— (a) if there is a vacancy in the office of President, the reference to the President is a reference to the Clerk of the Legislative Council, or (b) if there is a vacancy in the office of Speaker, the reference to the Speaker is a reference to the Clerk of the Legislative Assembly. servitude has the meaning it has in section 270.4 of the Commonwealth Criminal Code. slavery has the meaning it has in section 270.1 of the Commonwealth Criminal Code. strategic plan—see section 11. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. (3) A reference in this Act to a government agency of the State is a reference to a government agency other than a public or local authority constituted by an Act of another jurisdiction. Part 2 Anti-slavery Commissioner Division 1 Appointment of Commissioner 6 Appointment of Anti-slavery Commissioner (1) The Governor may appoint an Anti-slavery Commissioner. (2) The Commissioner holds office for the term, not exceeding 5 years, specified in the instrument of appointment, but is eligible for re-appointment. (3) A person is not eligible to be appointed for more than 2 terms of office as Commissioner, whether or not consecutive terms. (4) The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister. 6A Employment and remuneration (1) The employment of the Commissioner is, subject to this Act, to be governed by a contract of employment between the Commissioner and the Minister. (2) The following provisions of, or made under, the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to the Commissioner, but in the application of those provisions a reference to the employer of a Public Service senior executive is to be read as a reference to the Minister— (a) provisions relating to the band in which an executive is to be employed, (b) provisions relating to the contract of employment of an executive, (c) provisions relating to the remuneration, employment benefits and allowances of an executive. (3) The office of Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office, except as provided by this section. 6B Vacancy in office (1) The office of Commissioner becomes vacant if the Commissioner— (a) dies, or (b) completes a term of office and is not re-appointed, or (c) resigns the office by instrument in writing addressed to the Minister, or (d) is removed from office by the Governor under section 6C, or (e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the Commissioner's creditors or makes an assignment of the Commissioner's remuneration for their benefit, or (f) becomes a mentally incapacitated person, or (g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (h) is imprisoned in respect of a conviction for an offence punishable in New South Wales by imprisonment or for an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence so punishable. (2) If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy. 6C Removal from office (1) The Governor may remove the Commissioner from office, but only for incompetence, incapacity or misbehaviour. (2) The Commissioner cannot be removed from office under the Government Sector Employment Act 2013, Part 6. 6D Acting Commissioner (1) The Minister may appoint a person to act as the Commissioner during the illness or absence of the Commissioner or during a vacancy in the office of Commissioner. (2) A person, while acting as Commissioner, has and may exercise the functions of the Commissioner and is taken to be the Commissioner. (3) The Minister may, at any time, remove a person from office as acting Commissioner. (4) An acting Commissioner is entitled to be paid the remuneration, including travelling and subsistence allowances, that the Minister may from time to time determine. (5) A person must not be appointed to act as the Commissioner for a period that exceeds 6 months or that in total exceeds 6 months in any 12-month period. 7 Independence of Commissioner The Commissioner is not subject to the control and direction of the Minister in respect of the exercise of the Commissioner's functions under this Act. 8 Staff of Commissioner (1) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise the Commissioner's functions. (2) The Commissioner may arrange for the use of the services of any staff or facilities of a government agency and may, with the approval of the Minister, engage such consultants or contractors as are necessary for the purposes of this Act. Division 2 Functions of Commissioner 9 General functions of Commissioner (1) The functions of the Commissioner are as follows— (a) to advocate for and promote action to combat modern slavery, (b) to identify and provide assistance and support for victims of modern slavery, (c) to make recommendations and provide information, advice, education and training about action to prevent, detect, investigate and prosecute offences involving modern slavery, (d) to co-operate with or work jointly with persons and organisations to combat modern slavery and provide assistance and support to victims of modern slavery, (e) to monitor reporting concerning risks of modern slavery occurring in supply chains of government agencies, (f) to monitor the effectiveness of legislation and governmental policies and action in combating modern slavery, (g) to raise community awareness of modern slavery, (h) to exercise such other functions as are conferred or imposed on the Commissioner by or under this or any other Act. (2) In exercising the Commissioner's functions, the Commissioner must encourage good practice in— (a) the prevention, detection, investigation and prosecution of modern slavery, and (b) the identification of victims of modern slavery. (3) Unless the contrary intention appears, the Commissioner's functions may be exercised with respect to any government agency, person, matter or thing (whether or not they are in or of, or for, the State), so long as the function is exercised in relation to a matter to which this section relates. 10 Restriction on exercise of functions (1) The Commissioner does not generally have the function of investigating or dealing directly with the complaints or concerns of individual cases but may take them into account and draw conclusions about them solely for the purpose of, or in the context of, considering a general issue. (2) The Commissioner may, despite subsection (1), provide individuals and their families, friends and advocates with information about and referral to government and non-government programs and services. 11 Strategic plan (1) In this section— strategic plan means a plan setting out how the Commissioner proposes to exercise the Commissioner's functions in the period to which the plan relates. (2) The Commissioner must, as soon as reasonably practicable after the Commissioner's appointment, prepare a strategic plan. (3) The strategic plan is to be prepared in consultation with the Minister. (4) A strategic plan must— (a) state the period (not being less than one year or more than 3 years) to which it relates, and (b) outline the Commissioner's key objectives and priorities for that period. (5) In particular, and without limiting subsection (4) (b), the plan must address the following— (a) a strategy to combat human trafficking in accordance with the National Action Plan to Combat Modern Slavery 2020–25 launched by the Assistant Minister for Customs, Community Safety and Multicultural Affairs on 9 December 2020, (b) strategies for raising public awareness about modern slavery and providing education and training about combating modern slavery. (6) A new strategic plan may be made in accordance with this section to replace an earlier strategic plan. (7) The Commissioner is to cause a copy of the strategic plan (and any replacement strategic plan) to be published on a publicly accessible website. 12 Commissioner's public awareness and advice functions generally The Commissioner is— (a) to promote public awareness of modern slavery and its effects on its victims, and (b) to provide advice, education and training on ways to prevent modern slavery taking place and assist the victims of modern slavery, and (c) to encourage reporting of instances of suspected modern slavery to appropriate authorities (including without limitation reporting by sex workers and bodies or organisations representing sex workers), and (d) to establish and maintain a hotline (or utilise a hotline maintained by another person or body) for provision of advice and assistance to children and other persons who are, or may be, victims of modern slavery. 13 Referral of matters to police and other agencies in the State and elsewhere (1) This section applies to any information obtained by the Commissioner in the course of exercising the Commissioner's functions, being reports or other information relating to modern slavery or suspected instances of modern slavery. (2) The Commissioner may refer any such information to the Commissioner of Police, the Ombudsman, the Secretary of the Department of Communities and Justice or any other investigative or government agency (whether or not they are in or of the State) that the Commissioner considers appropriate. (3) In exercising the Commissioner's functions, the Commissioner may work in co-operation with educational institutions, bodies and organisations representing the interests of any industry and such other persons, bodies and organisations as the Commissioner thinks appropriate. (4) Information may be referred in accordance with this section despite the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 but only to the extent that it is relevant to the exercise of a function of the Commissioner under this Act. 14 Co-operation between the Commissioner and New South Wales agencies (1) Government agencies of the State and persons and bodies that provide services to, or advocate for, victims of modern slavery in the State must work in co-operation with the Commissioner in the exercise of the Commissioner's functions. (2) The duty to co-operate includes the following duties— (a) the duty to disclose information that is likely to be of assistance to the Commissioner or an agency in the exercise of functions imposed on the Commissioner or agency with respect to modern slavery and victims of modern slavery, (b) the duty to provide reasonable assistance and support to the Commissioner or an agency in connection with the exercise by the Commissioner or an agency of functions with respect to modern slavery and victims of modern slavery. (3) Arrangements may be made by the Minister with the Minister to whom a government agency is responsible to secure such co-operation, including in connection with the provision by the agency of information (or access to documents) required by the Commissioner in relation to services or issues affecting the victims. (4) A reference in this section to the provision of access to documents includes a reference to the provision of copies of documents. (5) Information must be provided in accordance with this section despite the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 but only to the extent that it is relevant to the exercise of a function of the Commissioner under this Act. 15 Co-operation with other persons and organisations (1) In exercising the Commissioner's functions, the Commissioner may work in co-operation with the persons and organisations that the Commissioner thinks appropriate. (2) The Commissioner may consult with, and disseminate information to, the persons and organisations that the Commissioner thinks appropriate. 16 Personal liability—co-operation with Commissioner (1) No criminal or civil liability, apart from under this Act, attaches to a person for the following— (a) compliance, or purported compliance in good faith, with a requirement made under this Act, (b) providing information to the Commissioner. (2) Without limiting subsection (1), if a person provides information, a document or other thing to the Commissioner, no civil liability attaches to the person for doing so, whether the liability would arise under a contract or otherwise. (3) If information, a document or other thing is provided to the Commissioner, no liability for defamation or other civil liability is incurred because of the provision of the information, document or thing. 16A Personal liability—Commissioner and others (1) A matter or thing done or omitted to be done by the Commissioner or a person acting under the direction of the Commissioner does not, if the matter or thing was done or omitted to be done in good faith for the purpose of exercising a function under this Act or under another law, subject the Commissioner or person so acting personally to an action, liability, claim or demand. (2) However, the liability attaches instead to the Crown. 17 Incidental powers The Commissioner has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of the Commissioner's functions. Any specific powers conferred on the Commissioner by this Act are not taken to limit by implication the generality of this section. 18 Delegation The Commissioner may delegate any of the Commissioner's functions (other than this power of delegation) to a member of the staff of the Commissioner or to a person of a class prescribed by the regulations. Division 3 Reports by Commissioner 19 Annual and other reports to Parliament (1) The Commissioner is required to prepare, within the period of 4 months after 30 June in each year, a report of the Commissioner's operations during the year ended on that 30 June and furnish the report to the Minister. The report is to be furnished to the Presiding Officer of each House of Parliament within 14 sitting days after it is given to the Minister. (2) A report by the Commissioner under this section must include the following— (a) a description of the Commissioner's activities during that year in relation to each of the Commissioner's functions, (b) a review of progress on implementation of the strategic plan relevant to the period to which the report relates, (c) an evaluation of the response of relevant government agencies to the recommendations of the Commissioner, (d) any recommendations for changes in the laws of the State, or for administrative action, that the Commissioner considers should be made as a result of the exercise of the Commissioner's functions. (3) In particular, and without limiting subsection (2) (c), the report is to include a review of the following— (a) the extent to which the government of NSW has provided mandatory training on modern slavery to front-line government agencies and the public generally during the year, (b) the extent to which the government of NSW has implemented changes in the information and communications technology use policies applicable to government agencies to prohibit the viewing of child abuse material and provided clear guidelines for responding to failures to comply with those policies during the year, (c) action by the Department of Communities and Justice during the year to develop a system of support (including provision of accommodation) for victims of forced under-age marriage, irrespective of whether any offence against the victim has been prosecuted. (4) The Commissioner may, at any time, make a report on any particular issue or general matter relating to the Commissioner's functions and furnish the report to the Minister who is to furnish the report to the Presiding Officer of each House of Parliament. (5) The Commissioner is to make a special report to the Minister on any particular issue or general matter requested by the Minister. The special report may be furnished by the Minister to the Presiding Officer of each House of Parliament. (6) A report given to the Presiding Officer of a House of Parliament under this section, or section 22(3), must be laid before the House within 5 sitting days of the House after it is received by the Presiding Officer. (7) If the House is not sitting, a report under this section or section 22(3) may instead be given to the Clerk of the House. (8) A report given to the Clerk of a House under subsection (7)— (a) is taken to have been given to the Presiding Officer of the House and laid before the House, and (b) may be printed or published by the Clerk, and (c) if printed or published by the Clerk—is taken to be a document printed or published by the House, and (d) must be recorded, on the first sitting day of the House after the Clerk receives the report— (i) for the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, or (ii) for the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly. 20 Reports under Children and Young Persons (Care and Protection) Act 1998 and Crimes Act 1900 (1) Information obtained by the Commissioner while exercising the Commissioner's functions may be used for the following purposes— (a) making a report to the Secretary of the Department of Communities and Justice under the Children and Young Persons (Care and Protection) Act 1998, section 24, (b) bringing information to the attention of a member of the NSW Police Force that might be of material assistance in securing the apprehension of an offender, or the prosecution or conviction of an offender, for a child abuse offence within the meaning of the Crimes Act 1900, section 316A. (2) The Commissioner must use the information for those purposes if the Commissioner has reasonable grounds to suspect that a child or young person, or a class of children or young persons, is at risk of significant harm. Division 4 Modern Slavery Committee 21 Constitution of Committee (1) On the commencement of this Division and as soon as practicable after the commencement of the first session of each Parliament, a joint committee of members of Parliament, to be known as the Modern Slavery Committee, is to be appointed. (2) The Modern Slavery Committee has the functions conferred or imposed on it by or under this or any other Act. 22 Functions of Committee (1) The Modern Slavery Committee has the following functions under this Act— (a) to inquire into and report on matters relating to modern slavery, (b) to report to both Houses of Parliament on matters relating to modern slavery. (2) Nothing in this Division authorises the Modern Slavery Committee to investigate a matter relating to particular conduct. (3) The Commissioner may, as soon as practicable after a report of the Modern Slavery Committee has been tabled in a House of Parliament, make and furnish to the Presiding Officer of that House a report in response to the report of the Committee. 23 Membership of Committee (1) The Modern Slavery Committee is to consist of 8 members, of whom— (a) 4 are to be members of, and appointed by, the Legislative Council, and (b) 4 are to be members of, and appointed by, the Legislative Assembly. (2) The appointment of members of the Committee is, as far as practicable, to be in accordance with the practice of Parliament with respect to the appointment of members to serve on joint committees of both Houses of Parliament. (3) A person is not eligible for appointment as a member of the Modern Slavery Committee if the person is a Minister of the Crown or a Parliamentary Secretary. (4) Schedule 1 contains provisions relating to the Modern Slavery Committee. Part 3 Supply chains 24 (Repealed) 25 Government agency procurement The Commissioner must regularly consult with the Auditor-General and the NSW Procurement Board to monitor the effectiveness of due diligence procedures in place to ensure that goods and services procured by government agencies are not the product of modern slavery. 25A State owned corporations must make voluntary modern slavery statements if not already required (1) This section applies to a State owned corporation that is not a reporting entity within the meaning of the Modern Slavery Act 2018 of the Commonwealth. Note— See the Modern Slavery Act 2018 of the Commonwealth, section 5 for the meaning of "reporting entity" under that Act. (2) A State owned corporation to which this section applies must volunteer to comply with the requirements of the Modern Slavery Act 2018 of the Commonwealth, as referred to in that Act, section 6, if it is eligible to do so. Note— A corporation that volunteers under the Modern Slavery Act 2018 of the Commonwealth, section 6 is a reporting entity for the purposes of that Act. (3) A State owned corporation that has volunteered under subsection (2) must not revoke a notice given under the Modern Slavery Act 2018 of the Commonwealth, section 6. 25B State owned corporations must publish Commonwealth modern slavery statements As soon as is practicable after giving the Minister, within the meaning of the Modern Slavery Act 2018 of the Commonwealth, a modern slavery statement under that Act, a State owned corporation must— (a) publish a copy of the modern slavery statement on a publicly accessible website kept by the corporation, and (b) give the Commissioner written notice that the statement has been published. 26 Public register (1) The Commissioner is to keep a register in electronic form that— (a), (b) (Repealed) (c) identifies any government agency failing to comply with directions of the NSW Procurement Board under section 175 of the Public Works and Procurement Act 1912 concerning procurement (within the meaning of Part 11 of that Act) of goods and services that are the product of modern slavery and whether the government agency has taken steps to ensure compliance in the future, and (c1) identifies any State owned corporation that has failed to provide the Minister, within the meaning of the Modern Slavery Act 2018 of the Commonwealth, with a modern slavery statement for a reporting period under that Act, and (d) includes other information the Commissioner thinks appropriate, and (e) includes other information required by the regulations to be recorded on the register. (2) The Commissioner is to make the register publicly available free of charge. (3) The regulations may— (a) require government agencies to give specified information to the Commissioner for inclusion on the register, and (b) specify the way the information is to be given to the Commissioner. 27 Codes of practice (1) The Commissioner may develop, and make publicly available, codes of practice for the purpose of providing guidance in identifying modern slavery taking place within the supply chains of organisations and steps that can be taken to remediate or monitor identified risks. (2) A code of practice may refer to or incorporate, with or without modification, a standard or other document prepared or published by a body specified in the code, as in force at a particular time or from time to time. 28 Commissioner's public awareness and advice functions—supply chains (1) The Commissioner may promote public awareness of and provide advice on steps that can be taken by organisations to remediate or monitor risks of modern slavery taking place in their supply chains, including encouraging organisations to develop their capacity to avoid such risks. (2) Without limiting subsection (1), the Commissioner may make information available to organisations and other persons about matters to consider in relation to employing persons to work in supply chains. Part 4 29 (Repealed) Part 5 Miscellaneous 30 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 31 Annual reports (1) The annual reporting information for a GSF agency under the Government Sector Finance Act 2018 is to include the following matters— (a) a statement of the action taken by the agency in relation to any issue raised by the Anti-slavery Commissioner during the financial year then ended concerning the operations of the agency and identified by the Commissioner as being a significant issue, (b) a statement of steps taken to ensure that goods and services procured by and for the agency during the financial year then ended were not the product of modern slavery within the meaning of the Modern Slavery Act 2018. (2) This section commences on the commencement of Part 7.3 of the Government Sector Finance Act 2018. 32 Expenditure under this Act Any expenditure incurred in the administration or execution of this Act by the State is to be paid out of money to be provided by Parliament. 33 Nature of proceedings for offences Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court. 34 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The regulations may create an offence punishable by a penalty not exceeding 50 penalty units. 35 Commissioner of Police to provide certain information (1) The Commissioner of Police is, on request or in accordance with arrangements with the Commissioner, to provide the Commissioner with information regarding modern slavery and victims of modern slavery. (2) The Commissioner is not to disclose information provided under this section except with the written consent of the Commissioner of Police. (3) The Commissioner of Police is not required to provide information under t