The Modern Slavery Act 2018 (NSW) (NSW Act) is no longer commencing on 1 July 2019, as had been earlier anticipated.  It is now set to be either amended or repealed, after the NSW Government announced that it had received advice from the Department of Premier and Cabinet that the Act contained unspecified “defects requiring urgent attention”.

The government mentioned that these defects expose the NSW Act to the risk of a constitutional challenge.  The government has indicated that this is because of the overlap between the NSW and Commonwealth Modern Slavery Acts, and the application of section 109 of the Australian Constitution. 

The NSW Act, a draft Amendment Bill and draft Regulation have been referred to the Standing Committee on Social Issues for consultation, inquiry and report.  The Committee is to advise whether the Commonwealth Act renders the NSW Act inoperable or unnecessary, in full or in part, and whether the NSW Act as it stands requires amendment or repeal.

Unlike the Commonwealth legislation, the NSW Act as currently drafted has a lower revenue threshold for reporting entities ($50 million compared to $100 million), establishes an Anti-slavery Commissioner, contains penalties for failing to report or producing misleading statements and establishes a modern slavery framework for NSW Government agencies. 

The NSW Act, which passed both houses of the NSW Parliament on 27 June 2018, will now be considered by the Committee before coming before the House again at a reporting date yet to be decided.

The delay in the NSW Act does not affect the operation of the Commonwealth Modern Slavery Act 2018 (Cth) which came into effect on 1 January 2019. 

Authors: Andrew Hii and Isobel O’Brien

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