Live Q&A with the Australian Border Force
The Modern Slavery Act: a revolutionary piece of legislation. But the dos and don’ts of compliance can be tricky, to say the least.
That’s why we’ve invited experts from Modern Slavery and Human Trafficking Branch of the Australian Border Force (ABF) to host a live webinar about the ins and outs of the ABF’s expectations, recommendations, and future plans. We hope this will help companies better navigate and comply with the MSA’s reporting requirements.
The following Q&A is based closely on the transcript of CENTRL’s Webinar On-Demand with the Australian Border Force. The text has been edited for clarity, but the full webinar is available to watch here.
Q: The first question is about timing: we’ve had a three-month extension on the first two reporting deadlines because of the pandemic. Are those extensions going to carry forward, or will the original statutory deadlines be in place? For example, if the year ends the 31st of December 2020, what is the submission deadline to the ABF?
A: The short answer is that no further extensions are being considered, and it will revert to the usual statutory deadline. So, for your entity that means your applicable reporting period is based off your accounting, or financial year. Let’s say that’s a calendar year—you will be reporting on your January to December—then your statement will be due six months after the end of your reporting period. So, if your reporting period concludes on the 31st of December, your Modern Slavery Statement will be due by the 30th of June.
Q: What does targeted feedback look like for reporting entities? Is it just general good/bad practice trends, or will each entity receive feedback based on their statement?
A: It’s feedback to selected entities. So not every entity will receive feedback on their statement. The feedback we’re providing is more than just the generic good practice trends we’ve run through today, or the areas for improvement. It’s specific feedback on that entity’s statement, where we’re really looking to try to eradicate some of those technical non-compliance errors.
But also, where there are entities that have clearly tried to do the right thing and are very close, but maybe just falling down on one or two of the criteria, we will be providing that feedback to selected entities.
Q: Is anyone aware of benchmarking of modern slavery studies that are underway?
A: It’s all very new, and we’ve been contacted by a few academics who are waiting for the first full reporting cycle to conclude before they conduct too much of that analysis, so that they have a full picture. I think there’s a few different organizations who have put out varying levels of detail and analysis of the first few tranches of statements, but I think from most engagement we’ve had with academics and civil societies that they’re waiting for the conclusion of the first reporting cycle before they really undertake a detailed analysis of some of the statements.
Q: When looking at the operations components of assessing risk, what examples would you provide as addressing risk? Is this mainly addressed through human resource policies or do we need to broaden this to map against UNGPs in relation to human rights?
A: It’s really up to the anti-determinant, and we certainly don’t prescribe any specific actions that an entity must take—they really should be in response to the risks you’ve identified. So, depending on the risks you’ve identified that may be that you can mitigate some of those risks by the introduction of certain policies, or hiring practices, or due diligence requirements that you place on downstream suppliers. It really depends on the risks you identify.
Q: What does the ABF plan to do to ensure that more boards of directors and governing bodies understand their role in ensuring compliance?
A: From our perspective it’s a really key feature of the action, and something that is deliberately in there to ensure that these statements, and the actions that entities are taking, and the issues at stake do have that high-level buy-in. In terms of how to secure that high-level buy-in, again, we don’t prescribe any certain actions. It’s really up to the entity.
It is important that the board or the principal governing body of the entity sets a very strong tone at the top, to ensure that compliance with these new requirements is embedded throughout the organization, and so that everyone in the organization understands the board’s commitment to ensuring that the company produces a compliant Modern Slavery Statement. We’ve talked about training your own employees and training your suppliers on how to comply with the Modern Slavery Act.
There needs to be some training of the board as well, so that they understand what the requirements are and what their commitment needs to be. There’s actually a blog post I just drafted that is posted on our site, which talks about the board. In addition to understanding what they need to do, they also need to engage the business more to understand what the business is doing.
There are certain key questions that the board should be asking of senior management within the organization: What are you doing to comply with the Modern Slavery Act? What resources do you need that you don’t have now? What are we doing and what do we plan to do going forward? Because clearly, we have to document that in our Modern Slavery Statement to show continuous improvement. I also think boards should be asking senior management “What does our company look like in comparison to our competitors or peers in the marketplace?”
Because that registry is a valuable resource, not just for me to help our clients understand where the market’s going, but it’s also a valuable resource for the board to understand, and for senior management to educate the board of where the company stands in comparison to others in the same industry who are submitting statements. And of course, the board doesn’t want to sign off on a statement if on a scale of one to ten, their statement is a one and everybody else in the marketplace is a ten.
Q: What are the ABF’s expectations in assessing small suppliers based in Australia that use labor? Example, physiotherapists. Do you expect small suppliers to have Modern Slavery Compliance programs and written employment practice policies? Can you give us some guidance on that?
A: If those smaller suppliers fall under the revenue threshold, obviously they’re not obligated to report under the act. However, we do encourage any entities to submit a voluntary statement. As for the risks—just because some entities may say (we’ve had this question from counselling services and things like that) “Well, we don’t have any modern slavery risks because we don’t have supply chains.”
You may not have supply chains, but you still use computers and electronics, and you still have cleaners in your building, and so your operations will probably be the area of highest risk for those smaller suppliers like physiotherapists or whatnot. Medical supplies also have a high-risk supply chain as well.
Any entity that voluntarily submits a statement is held to the same standard as an entity that is required to report, so we’ll be looking at small entities who submit statements. Their statements will be assessed on the same criteria and to the same standard as large entities who were required to report under the act.
Q: Will you be providing any specific guidance around remediation? Because I think after your first hundred statements you said that remediation was something that was a bit of an issue.
A: It’s not one of the mandatory criteria in the act, so entities obviously don’t have to address it. But in line with the UNGPs and certainly a victim-centered approach, it’s important that entities are turning their minds to remediation, because hopefully by enforcing this transparency framework and requiring businesses to look back through their supply chains, it’s going to become more and more common that practices are identified, so that it’s going to be important that entities have effective remediation processes or pathways in place.
We understand that this is very difficult, and for new business—as it is for government. And we’re grappling with this same question in our in our own context. So, we are looking at putting out some guidance. We’re actually funding a peak body here to develop and do some research into that for us, and then we’ll put some guidance out publicly in the next probably six months or so to assist businesses. And that guidance will include a range of options and different remediation frameworks that businesses can adapt and pick and choose from and mold into their own context.
Q: Several organizations, like local councils, are excluded from reporting. So how are we to investigate if there are risks there, as these organizations make up part of our operations (waste, removal etc.)?
A: This goes back to the point about meaningful and effective supplier engagement. And I think most entities reporting under the act will have suppliers that aren’t captured by the act’s requirements. So, it’s really important that you engage with them as effectively as you can, to try and get some of that information to assess your own risks.
And this is where collaboration might be useful as well—if there’s a number of entities that use those same waste removal services or cleaning services, perhaps you can look to collaborate with some of your other business peers and use that leverage to work with that supplier and get the responses and the engagement that you need from that supplier.
Q: We’re almost out of time, so I’m going to finish off with what one of your audience members said: that the ABF deserves significant applause and appreciation for the way they have approached implementation of the MSA. No other government entity in the world has provided such detailed, concrete, and operationally sensible guidance on human rights.
So, the last question is: what can we expect from the anticipated review of the Modern Slavery Act?
A: As many of you may know, there’s a legislative requirement that the act be reviewed three years after it commences, so that will be at the start of 2022. The review will really consider all things that go into the operation and effectiveness of the act, so some of those were kind of debated heavily in the development of the act, and put off, I think with an intention of revisiting next year. So, things like penalties, I imagine, will be discussed again.
We recognize that the whole multiple reporting period deadlines and things is confusing, so I imagine that will also be on the table again, and we know The UK is considering moving to one reporting period and one deadline for all entities. So, we’ll be considering all those things and looking at what other jurisdictions are doing, and trying to make sure that we reduce the burden on businesses as much as possible, and align and make sure that all these schemes are consistent. So, really everything is on the table.
There will be a wide and comprehensive consultation process which we encourage you to be engaged with. A consultation paper will be released, which will outline the scope and parameters of the review, which will be quite broad. And we encourage you to submit your views and your thoughts on that. Particularly, I think we have a bit of a sense now on some of the practical issues with implementation, but if there’s any other issues you would like to discuss, please engage in that consultation process—we’d like to hear from you. And we’ll consider the range of issues that are brought to our attention in that review.