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senate vote 2018-11-28#9
Edited by
mackay staff
on
2018-12-29 12:41:09
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Title
Bills — Modern Slavery Bill 2018; in Committee- Modern Slavery Bill 2018 - in Committee - Penalties for failing to comply
Description
<p class="speaker">Don Farrell</p><p>by leave—I move opposition amendments (3) to (6) on sheet 8549 together:</p><p class="italic">(3) Clause 11, page 10 (lines 3 to 13), omit the clause, substitute:</p>- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2018-11-28.204.1) moved by Senator [Don Farrell](https://theyvoteforyou.org.au/people/senate/sa/don_farrell) (SA), which means they failed.
- ### What were the amendments?
- [According to Senator Farrell](https://www.openaustralia.org.au/senate/?gid=2018-11-28.204.1):
- > "*These Labor amendments will introduce penalties for failing to comply with any modern slavery act. As we've said over and over again, big business cannot be trusted to police themselves on modern slavery. The experience overseas makes the need for penalties crystal clear. Anti-Slavery Australia provided evidence to the Legal and Constitutional Affairs Legislation Committee inquiry into the bill to show that, in the United Kingdom, in the three years since the UK Modern Slavery Act's enactment, only about half of the 9,000 to 11,000 organisations that the UK government estimates are required to report have produced a slavery and human trafficking statement. That's simply not good enough. Labor does not want to see only half of the companies complying with the requirements of this bill.*"
- ### What is this bill all about?
- According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1819a/19bd012):
- > *The Bill will require around 3,000 entities based or operating in Australia to prepare annual statements on potential modern slavery risks in their operations and supply chains, and the steps they have taken to address those risks.*
<p class="italic">11 Simplified outline of this Part</p><p class="italic">This Part requires modern slavery statements to be given annually to the Minister, describing the risks of modern slavery in the operations and supply chains of reporting entities and entities owned or controlled by those entities.</p><p class="italic">The statements must also include information about actions taken to address those risks.</p><p class="italic">Joint modern slavery statements may be given on behalf of one or more reporting entities.</p><p class="italic">There are civil penalties for reporting entities that fail to comply with these requirements.</p><p class="italic">The Minister must prepare an annual modern slavery statement on behalf of all non-corporate Commonwealth entities.</p><p class="italic">The Minister must report annually to the Parliament about compliance by reporting entities with this Act.</p><p class="italic">(4) Page 13 (after line 27), at the end of Part 2, add:</p><p class="italic">16A Civil penalty for failure to give or prepare modern slavery statement</p><p class="italic"> <i>Compliance within the first 2 years of this Act</i></p><p class="italic">(1) An entity is liable to a civil penalty if:</p><p class="italic">(a) a modern slavery statement that covers the entity, for a reporting period, is required to be given or prepared within the 2 year period starting on the day this section commences; and</p><p class="italic">(b) a modern slavery statement that covers the entity for that reporting period is not given or prepared under any of sections 13 to 15 (whether or not the entity giving or preparing the statement complies with the requirements of subsection 13(2), 14(2) or 15(2)).</p><p class="italic">Civil penalty: 1,000 penalty units.</p><p class="italic"> <i>Compliance from 2 years onwards</i></p><p class="italic">(2) An entity is liable to a civil penalty if:</p><p class="italic">(a) a modern slavery statement that covers the entity, for a reporting period, is required to be given or prepared after the end of the 2 year period starting on the day this section commences; and</p><p class="italic">(b) a modern slavery statement that covers the entity for that reporting period is not given or prepared in accordance with any of sections 13 to 15.</p><p class="italic">Civil penalty: 1,000 penalty units.</p><p class="italic">(3) Subsection 93(2) of the <i>Regulatory Powers (Standard Provisions) Act 2014</i> does not apply in relation to a contravention of subsection (2) of this section.</p><p class="italic">16B Annual report by Minister on compliance with Act</p><p class="italic">(1) As soon as practicable after the end of each financial year, the Minister must cause to be prepared a report on compliance by reporting entities with their obligations under this Act during the financial year.</p><p class="italic">(2) Without limiting subsection (1), the report must include:</p><p class="italic">(a) a list of each entity that is a reporting entity at any time during the financial year; and</p><p class="italic">(b) a list of each entity that has failed, at any time during the financial year, to comply with a requirement to give a modern slavery statement.</p><p class="italic">(3) The Minister must cause the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is prepared.</p><p class="italic">(5) Clause 21, page 16 (lines 3 to 9), omit the clause, substitute:</p><p class="italic">21 Simplified outline of this Part</p><p class="italic">This Part deals with the following miscellaneous matters:</p><p class="italic">(a) things done by an unincorporated entity;</p><p class="italic">(b) civil penalties;</p><p class="italic">(c) the Minister's capacity to delegate powers and functions under this Act;</p><p class="italic">(d) review of this Act;</p><p class="italic">(e) the power to make rules.</p><p class="italic">(6) Page 16 (after line 14), after clause 22, insert:</p><p class="italic">22A Civil penalty provisions</p><p class="italic"> <i>Enforceable civil penalty provisions</i></p><p class="italic">(1) Subsections 16A(1) and (2) of this Act are each enforceable under Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>.</p><p class="italic">Note: Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i> allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.</p><p class="italic"> <i>Authorised applicant</i></p><p class="italic">(2) For the purposes of Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>, the Secretary of the Department is an authorised applicant in relation to subsection 16A(1) or (2) of this Act.</p><p class="italic"> <i>Relevant court</i></p><p class="italic">(3) For the purposes of Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>, each of the following courts is a relevant court in relation to subsection 16A(1) or (2) of this Act:</p><p class="italic">(a) the Federal Court of Australia;</p><p class="italic">(b) the Federal Circuit Court of Australia;</p><p class="italic">(c) a court of a State or Territory that has jurisdiction in relation to the matter.</p><p class="italic"> <i>Extension to external Territories etc.</i></p><p class="italic">(4) Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>, as it applies in relation to subsection 16A(1) or (2) of this Act, extends to<i>:</i></p><p class="italic">(a) every external Territory; and</p><p class="italic">(b) acts, omissions, matters and things outside Australia.</p><p class="italic"> <i>Liability of Crown</i></p><p class="italic">(5) Part 4 of the <i>Regulatory Powers (Standard Provisions) Act 2014</i>, as it applies in relation to subsection 16A(1) or (2) of this Act, does not make the Crown liable to a pecuniary penalty.</p><p>These Labor amendments will introduce penalties for failing to comply with any modern slavery act. As we've said over and over again, big business cannot be trusted to police themselves on modern slavery. The experience overseas makes the need for penalties crystal clear. Anti-Slavery Australia provided evidence to the Legal and Constitutional Affairs Legislation Committee inquiry into the bill to show that, in the United Kingdom, in the three years since the UK Modern Slavery Act's enactment, only about half of the 9,000 to 11,000 organisations that the UK government estimates are required to report have produced a slavery and human trafficking statement. That's simply not good enough. Labor does not want to see only half of the companies complying with the requirements of this bill.</p><p>The ACTU in its submission argued that:</p><p class="italic">In order to make any difference to the lives of workers in Australia and abroad, the Modern Slavery Act must act as a serious motivator for companies to start acting upon the values expressed in their statements and guidelines and provide an effective deterrent for those who fall short of their obligations.</p><p class="italic">Hence, any Australian legislation enacted should include a strong enforcement mechanism imposing penalties on companies that do not comply with due diligence and reporting requirements.</p><p>If the modern slavery bill is going to work, it needs to have teeth. That's why we are moving these amendments.</p> <p class="speaker">Linda Reynolds</p><p>The government doesn't support these amendments. Firstly, in relation to including penalties for noncompliance, the bill should not be amended to include civil penalties for noncompliance. Critically, business feedback shows that market scrutiny as well as reputational risk and reward will drive compliance more effectively than punitive penalties. A penalty regime would be complex and resource intensive, and would likely require a new regulatory enforcement body. Imposing penalties would also not address the most likely reason for noncompliance over the first three years, which is largely implementation. These barriers to compliance are best addressed by providing support to businesses to actually assist them to comply rather than through penalties. This is the exact reason why the government has committed $3.6 million to establish a business engagement unit to advise and support businesses through this process.</p><p>The government has also proposed amendments, which have just passed, to strengthen compliance by empowering the minister to require an entity to explain and remedy noncompliance, empowering the minister to publicly name a noncompliant entity and also providing a clear pathway to future penalties if compliance rates are found to be inadequate at the mandatory three-year review. The Senate Legal and Constitutional Affairs Legislation Committee did support the government's approach to penalties and, as recommended by the committee, the proposed amendments specify that penalties will be considered at the three-year review rather than imposing penalties at this early stage.</p><p>In relation to the requirement for the minister to report annually to the parliament listing noncompliant activities, the government has moved amendments, which have already passed, to require the minister to report annually to parliament, and the government will also publish lists of all entities that do not report on the central register of statements. The bill should not be amended further to require an annual report to list all entities that have not complied. This is due to a range of practical impediments which have been discussed previously in this chamber. As recommended by the committee, we will continue to explore the options to publish a list in future, once we have compiled the list. This does not require legislation.</p> <p class="speaker">Nick McKim</p><p>The Australian Greens will support this amendment from the Australian Labor Party which effectively inserts penalties for failure to comply with provisions in this legislation. We think this will significantly strengthen the bill. We accept that there's a philosophical difference between the coalition parties and the Greens in terms of the level of trust that we have in big business to do the right thing. We believe that it is important to work with business to bring them along on this journey but that we need to keep an appropriately sized stick in the back of our legislative pocket to ensure that there are ramifications for any business which fails to comply.</p><p>The CHAIR: The question is that amendments (3) to (6) on sheet 8549, as moved by Senator Farrell, be agreed to.</p>
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